West v. Palo Alto Housing Corporation et al
Filing
109
Order by Judge Lucy H. Koh Granting in part and Denying in part 83 Motion to Dismiss with leave to amend.(lhklc2S, COURT STAFF) (Filed on 3/7/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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JAMES WEST,
Plaintiff,
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION TO DISMISS WITH LEAVE
TO AMEND
v.
PALO ALTO HOUSING CORPORATION,
et al.,
Re: Dkt. No. 83
Defendants.
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Plaintiff James West (“Plaintiff”), proceeding pro se, filed a third amended complaint
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against Defendants Palo Alto Housing Corporation (“PAHC”), PAHC Management and Services
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Corporation (“PAHC Management”), PAHC Apartments Inc. (“Barker Hotel”), Alma Place
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Associates LP (“Alma Place”), Candice Gonzalez (“Gonzalez”), Georgina Mascarenhas
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(“Mascarenhas”), April Fields (“Fields”), James Quinn (“Quinn”), Jocelyn Harrison (“Harrison”),
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and Evangeline Granadosin (“Granadosin”) (collectively, “Defendants”). In his third amended
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complaint, Plaintiff asserts causes of action arising out of his tenancies at the Barker Hotel and
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Alma Place, two apartments that provide low income housing. Before the Court is Defendants’
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motion to dismiss portions of Plaintiff’s third amended complaint. ECF No. 83 (“Mot”). Having
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
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considered the submissions of the parties, the relevant law, and the record in this case, the Court
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hereby GRANTS in part and DENIES in part Defendants’ motion to dismiss.
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I.
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BACKGROUND
A. Factual Background
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1. The Parties
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Plaintiff states that he is a “disabled African American male” who rented “low income
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housing units managed by” PAHC from 2008 to 2015. Third Amended Complaint (“TAC”) ¶ 4.
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Specifically, Plaintiff states that he rented a housing unit at the Barker Hotel from December 2008
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to July 2011 and another housing unit at Alma Place from July 2011 to April 2015. Id.
Plaintiff alleges that PAHC is a “non-profit community development organization”
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Northern District of California
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incorporated “as a public benefits corporation” whose purpose is “to develop, acquire, and manage
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low and moderate-income housing in Palo Alto, California.” Id. ¶ 5. Plaintiff further alleges that
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at all times relevant to the instant case, PAHC owned and managed the Barker Hotel, which is an
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apartment complex that provides low income housing. Id. ¶ 9. Relatedly, Plaintiff states that
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Alma Place is a “California Limited Partnership” that also provides low income housing. Id. ¶ 10.
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According to Plaintiff, PAHC is also the managing agent for Alma Place. Id. ¶ 6. Further,
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Plaintiff alleges that PAHC Management is a “PAHC affiliate that employ[]s the management
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officers, supervisors, maintenance personnel, site managers, and resident service coordinators” at
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PAHC and its associated properties. Id. ¶ 8.
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With regards to the individual defendants, Plaintiff alleges that Defendant Gonzalez is the
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President and CEO of PAHC, that Defendant Mascarenhas is the Vice President and property
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director of PAHC, and that Defendant Granadosin is the property supervisor for PAHC. Id. ¶¶ 11–
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13. Further, Plaintiff alleges that Defendant Fields “is a senior manager for [PAHC] at Alma
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Place,” that Defendant Quinn is “a site manager for [PAHC] at [the] Barker Hotel,” and that
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Defendant Harrison “is assistant manager for [PAHC] at Alma Place.” Id. ¶¶ 14–17.
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2. Plaintiff’s Experiences at the Barker Hotel and Alma Place
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
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Plaintiff’s third amended complaint asserts many factual allegations regarding his
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tenancies at the Barker Hotel and Alma Place in support of a variety of causes of action. The
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Court summarizes the portions of Plaintiff’s third amended complaint that are relevant to the
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instant order.
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a. The Barker Hotel
In November 2008, Plaintiff met with Defendant Quinn because Plaintiff was interested in
renting a unit at the Barker Hotel. Id. ¶ 19. Defendant Quinn showed Plaintiff several single room
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occupancy (“SRO”) rental units on the second floor. Id. Plaintiff “made several inquiries about
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the quietness and crime in the neighborhood,” and Defendant Quinn “informed Plaintiff that there
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was very little criminal activity [around the Barker Hotel] and only mentioned the occasional noise
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United States District Court
Northern District of California
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from a restaurant across the street.” Id. ¶¶ 20–21. Plaintiff submitted an application for an SRO at
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the Barker Hotel, and Defendant Quinn “informed Plaintiff sometime in November or December
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2008” that “Plaintiff was approved for SRO unit 19.” Id. ¶ 26. Plaintiff accepted the offer. Id.
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On December 16, 2008, immediately before moving into the Barker Hotel, Plaintiff met
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with Defendant Quinn, and Defendant Quinn informed Plaintiff that the lease agreement “was not
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available for [Plaintiff] to sign because [Quinn’s] office printer was not working.” Id. ¶ 29.
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Plaintiff asked Defendant Quinn about the contents of the lease agreement, and Defendant Quinn
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represented that it was a standard rental agreement. Id. ¶ 30. Then, Plaintiff Quinn took
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possession of SRO unit 19. Id. ¶ 33.
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On December 24, 2008, Plaintiff met again with Defendant Quinn in order for Plaintiff to
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pay the security deposit and pro-rated rent for December 2008. Id. ¶ 35. Defendant Quinn
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presented to Plaintiff a seven-page lease agreement with three pages of house rules, and “Plaintiff
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was surprised at the length and complexity of the rental agreement.” Id. ¶ 36. Plaintiff began
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reading the lease agreement, but “Defendant Quinn became impatient and began to yell at Plaintiff
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and insisted that Plaintiff sign the rental agreement.” Id. ¶ 37. When Plaintiff asked about the
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Barker Hotel’s grievance process, “Defendant Quinn stated that there was no grievance process.”
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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Id. ¶ 38. Eventually, Defendant Quinn stopped answering Plaintiff’s questions, so Plaintiff took
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the lease agreement to his room to read. Id. ¶ 39. Plaintiff called the PAHC office number and
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told Defendant Granadosin that he had questions about the lease agreement and that Defendant
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Quinn would not answer his questions. Id. Plaintiff also told Defendant Granadosin that Quinn
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had not “gone over the lease agreement with Plaintiff.” Id.
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Eventually, Plaintiff signed the lease and returned it to Defendant Quinn, who refused to
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give Plaintiff a signed copy. Id. ¶ 42. From then on, the relationship “between Plaintiff and
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[D]efendant Quinn became increasingly hostile.” Id. ¶ 44. For example, Plaintiff alleges that
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Defendant Quinn made false accusations that Plaintiff failed to comply with “the certification
process.” Id. ¶ 46. Further, Plaintiff states that in July 2009, during Plaintiff’s first “re-
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certification meeting,” “Defendant Quinn intentionally assault[ed] [Plaintiff] by kicking [Plaintiff]
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in the leg.” Id. Plaintiff also alleges that Defendant Quinn “did not display such hostility towards
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other white tenants.” Id. ¶ 75.
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Plaintiff further alleges that he experienced other forms of discrimination at the hands of
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Defendant Quinn. Specifically, Plaintiff states that when Plaintiff was initially inquiring into
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renting a unit at the Barker Hotel, Defendant Quinn only allowed Plaintiff to view SRO units on
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the second floor of the Barker Hotel, and never mentioned that Plaintiff could get on the wait list
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for any of the first floor units, which were designed as units for those with disabilities. Id. ¶ 75.
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In contrast, Plaintiff learned from a white male Barker Hotel resident named Neil that when Neil
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first inquired about renting a unit at the Barker Hotel, Defendant Quinn had informed Neil that a
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first floor unit would be opening soon. Id. Further, Plaintiff alleges that before allowing
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maintenance workers to enter units rented by women, Defendant Quinn would always give the
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women advance notice and ask for permission. Id. In contrast, Plaintiff alleges that Defendant
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Quinn never gave Plaintiff advance notice or asked for Plaintiff’s permission in similar
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circumstances. Id.
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Plaintiff complained about Defendant Quinn’s behavior to Quinn’s supervisors and PAHC
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
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managers, including Defendants Gonzalez, Granadosin, and Harrison, but Quinn’s behavior did
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not change. Id. ¶¶ 75, 83. At a July 17, 2009 meeting with Defendant Mascarenhas, Plaintiff
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asked Mascarenhas if there was any grievance procedure. Id. ¶ 47. Defendant Mascarenhas
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replied that there was such a procedure, but that she “didn’t have a copy available” and “would
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locate one and get [it] to” Plaintiff. Id. By September 20, 2009, Plaintiff still had not received a
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copy of the grievance procedure, so he emailed Defendant Mascarenhas asking for it. Id. Then,
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on December 1, 2009, Plaintiff emailed Defendant Gonzalez “requesting a hearing or meeting on
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[his] grievances regarding the Barker Hotel,” but Defendant Gonzalez “never wr[o]te[] back.” Id.
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¶ 48. “Plaintiff never received a copy of the Barker Hotel grievance procedure.” Id. ¶ 47.
During his tenancy at the Barker Hotel, Plaintiff was also affected by the noise level
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Northern District of California
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around the Barker Hotel. Specifically, Plaintiff’s SRO unit was located above a popular ice cream
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and yogurt shop at which customers “would engage [in] loud conversation and singing” and block
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the sidewalk and entry into the Barker Hotel. Id. ¶ 54. Further, “[a]nother late night disturbance
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was the B412 night club located across from the Barker Hotel,” which played very loud music and
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attracted “rowdy” patrons who would drink and fight in public. Id. ¶ 56. “Plaintiff made
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numerous complaints to the city code enforcement departments, [p]olice department, city council,
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and city [h]uman relations commission for assistance with the loud noise and disturbance cause[d]
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by the night club.” Id. ¶ 57. Specifically, Plaintiff complained to the Palo Alto Police Department
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in July 2009, and also went to a Palo Alto City Council meeting on July 6, 2009 “to complain
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about the noise from the nightclub and the poor police assistance.” Id. ¶ 59. Thereafter, “Plaintiff
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made repeated calls to the Palo Alto Police regarding the noise between 2009 and 2011.” Id. ¶ 63.
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When the night club went out of business, “Plaintiff organized a petition drive to request that the
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night club . . . remain closed.” Id. ¶ 64.
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b. Transition Between the Barker Hotel and Alma Place
After waiting on the wait list for a unit at Alma Place, Plaintiff eventually moved to Alma
Place on July 30, 2011. Prior to the move, on July 20, 2011, Plaintiff “requested an expedited
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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move arrangement” in order to avoid paying rent on two rental units at the same time, but
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Defendant Mascarenhas denied Plaintiff’s request. Id.¶ 67. Plaintiff informed the manager and
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assistant manager of Alma Place of this denial, and the manager and assistant manager negotiated
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a resolution with Defendant Mascarenhas that allowed Plaintiff to move into Alma Place on July
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30, 2011 while being liable for rent at the Barker Hotel until August 3, 2011. Id. ¶ 68. However,
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Plaintiff alleges that Defendant Mascarenhas “attempted to rescind the transfer agreement” and
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“only relented” when someone from “Project Sentinel contacted [Defendant Mascarenhas] per
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Plaintiff’s complaint.” Id. ¶ 70. Sometime in 2012, while Plaintiff was in a “cooking workshop,”
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Plaintiff learned that “expedited transfers” were typically “granted upon request.” Id. ¶ 75.
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Then, on July 29, 2011, “while Plaintiff was preparing for his move to” Alma Place,
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“Plaintiff and [D]efendant Mascarenhas got into a heated argument over the terms of the transfer
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agreement.” Id. ¶ 70. According to Plaintiff, Defendant Mascarenhas “wanted [Plaintiff] to move
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out on July 29, 2011,” but Plaintiff could not move on July 29, 2011 because the day worker he
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had hired and the moving van he had rented were not available that day. Id. Plaintiff alleges that
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Defendant Mascarenhas yelled that she wanted Plaintiff to “get out,” and that she didn’t “want any
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trouble-making blacks residing in properties” that she managed. Id.
c. Alma Place
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Plaintiff took possession of his unit at Alma Place on July 30, 2011. Id. ¶ 73. However,
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Plaintiff alleges that he “continue[d] to experience housing problems . . . until his departure from”
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Alma Place. Id. ¶ 75. As relevant to this order, Plaintiff alleges that he “requested a mediation of
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[a] rental dispute [with PAHC] . . . through the Palo Alto Mediation program,” and that Defendant
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Mascarenhas was PAHC’s representative at the mediation, which ended “unsuccessfully.” Id. ¶
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85. Plaintiff states that afterwards, on November 25, 2013, Defendant Mascarenhas wrote a letter
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to Plaintiff instructing him “not to write management regarding housing issues and to move out.”
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Id.
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Plaintiff also alleges that in 2014, Defendant Harrison “refused to investigate a noise
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complaint Plaintiff made against another white male resident” and “allowed a wom[a]n resident to
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subject [P]laintiff to racial [] slurs [and] sexual epithets after complaining about the wom[a]n
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resident[’s] loud noises and arguments.” Id. ¶ 75. Further, Plaintiff states that he “was offered a
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transfer unit at Alma Place but the offer was withdrawn by [D]efendant Fields [o]n October 28,
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2014 when a white male applicant wanted the unit.” Id.
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Moreover, Plaintiff alleges that he filed a “complaint of discrimination with” HUD on
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October 28, 2014 “against [] [D]efendants Fields, Alma Place Owners, Jocelyn Harrison, Candice
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Gonzalez, Georgia Mascarenhas based on race[,] color, [and] disability discrimination.” Id. ¶ 86.
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Plaintiff states that this HUD complaint was pending until January 15, 2015. See Pl. Opp. at 4.
Then, because of “the hostile environment at Alma Place,” Plaintiff decided to move out of
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Alma Place in 2015. TAC ¶ 88. Although an April 10, 2015 move-out date was scheduled, “[d]ue
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to an illness related to his disability, Plaintiff requested a reasonable accommodation for more
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time” in March 2015. Id. ¶¶ 88, 90. Plaintiff alleges that he “contacted [D]efendants[’] agents to
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start the process of engaging in a reasonable accommodation for more time to move out,” and that
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after waiting for a period of time, “the agents[’] attorney Steven Naumchik never engaged Plaintiff
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in a good faith and timely discussion of a reasonable accommodation” until Plaintiff “engage[d]
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the assistance of attorney to talk to attorney Naumchik to compel a response.” Id. ¶ 90. Then,
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“Plaintiff received a response a few days before his [April 10, 2015] move out date and the
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reasonable accommodation request was denied.” Id.
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B. Procedural History
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On January 17, 2017, Plaintiff filed his original complaint and an application to proceed in
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forma pauperis (“IFP”). ECF Nos. 1–2. Then, on February 2, 2017, Plaintiff declined magistrate
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judge jurisdiction. ECF No. 5. On that same day, Magistrate Judge Nathanael Cousins granted
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Plaintiff’s IFP application and issued a report and recommendation recommending dismissal of
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Plaintiff’s original complaint with leave to amend because the original complaint “provide[d] no
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facts to support” the claims in the complaint. ECF No. 6 at 2.
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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On February 9, 2017, the instant case was reassigned to the undersigned judge. ECF No.
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8. Then, on April 17, 2017, the Court adopted Judge Cousins’ report and recommendation and
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dismissed Plaintiff’s original complaint with leave to amend. ECF No. 11. On May 9, 2017,
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Plaintiff filed a first amended complaint. ECF No. 15.
On June 26, 2017, the Court issued an order directing the U.S. Marshal for the Northern
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District of California to serve Plaintiff’s first amended complaint upon the defendants. ECF No.
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Northern District of California
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On September 12, 2017, Defendants filed a motion to dismiss Plaintiff’s first amended
complaint. ECF No. 57. Then, on October 3, 2017, Plaintiff filed a second amended complaint.
ECF No. 66.
On October 19, 2017, the parties filed a stipulation allowing Plaintiff to file a third
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amended complaint (“TAC”) by November 1, 2017, and allowing Defendants to respond to the
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TAC by November 30, 2017. ECF No. 69. On October 24, 2017, the Court granted the parties’
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stipulation and denied as moot Defendants’ motion to dismiss Plaintiff’s first amended complaint.
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ECF No. 73.
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On November 1, 2017, Plaintiff filed a TAC. See TAC. The TAC asserts twenty-one
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causes of action. Specifically, the TAC asserts causes of action for: (1) violation of the Fair
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Housing Act (“FHA”), 42 U.S.C. § 3604; (2) violation of the Rehabilitation Act, 29 U.S.C. § 794;
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(3) violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (4) violation of the
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California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12955; (5) violation
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of California Government Code § 11135; (6) violation of 42 U.S.C. §§ 1981–83; (7) violation of
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18 U.S.C. §§ 1701–03, 1708; (8) violation of California Penal Code § 530.5; (9) retaliation in
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violation of 42 U.S.C. § 3617; (10) retaliation in violation of California Government Code §
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12955(f); (11) disability discrimination in violation of the Americans with Disabilities Act
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(“ADA”), 42 U.S.C. §§ 12131 & 12133; (12) disability discrimination in violation of the FEHA;
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(13) disability discrimination in violation of Unruh Civil Rights Act, Cal. Civ. Code § 51; (14)
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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fraud and concealment; (15) breach of contract; (16) intentional and negligent infliction of
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emotional distress; (17) violation of the California Unfair Competition Law (“UCL”), Cal. Bus. &
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Prof. Code § 17200 et seq.; (18) negligence based on “failure to prevent retaliation, train and
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supervise”; (19) negligence based on “failure to engage in reasonable accommodation
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discussions”; (20) breach of an implied covenant of good faith and fair dealing; and (21) violation
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of the Bane Act, Cal. Civ. Code § 52.1
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On November 29, 2017, Defendants filed a motion to dismiss portions of Plaintiff’s TAC.
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See Mot. Plaintiff opposed Defendants’ motion to dismiss on January 17, 2018, see ECF No. 101
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(“Pl. Opp.”), and Defendants filed a reply on January 24, 2018. ECF No. 103 (“Reply”).
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Northern District of California
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II.
LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
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short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint
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that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure
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12(b)(6). The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead
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“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is
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not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant
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has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule
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12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s]
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the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &
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Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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The Court, however, need not accept as true allegations contradicted by judicially
noticeable facts, see Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look
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beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6)
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motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.
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1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in
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the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per
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curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and unwarranted
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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183
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(9th Cir. 2004).
B. Leave to Amend
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If the Court determines that a complaint should be dismissed, it must then decide whether
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to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend
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Northern District of California
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“shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule
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15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v.
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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks
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omitted). When dismissing a complaint for failure to state a claim, “a district court should grant
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leave to amend even if no request to amend the pleading was made, unless it determines that the
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pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal
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quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing
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amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the
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moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532
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(9th Cir. 2008)
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III.
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DISCUSSION
In the instant motion, Defendants move to dismiss several portions of Plaintiff’s TAC.
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First, Defendants move to dismiss several state law claims as they pertain to Defendants Gonzalez,
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Mascarenhas, Granadosin, Fields, Quinn, and Harrison (collectively, the “Individual Defendants”).
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Mot. at 10–11. Second, Defendants move to dismiss Plaintiff’s cause of action for fraud and
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concealment. Id. at 4–6. Third, Defendants move to dismiss all causes of action asserted against
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Defendants Quinn, Mascarenhas, and Fields. Id. at 6–7. Fourth, Defendants move to dismiss all
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claims asserted pursuant to the FHA and the FEHA against Defendants Gonzalez, Granadosin, and
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Harrison. Id. at 8–10. Fifth and finally, Defendants move to dismiss Plaintiff’s cause of action for
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violation of the UCL based on a violation of the Palo Alto Municipal Code. Id. at 7–8. The Court
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addresses each argument in turn.
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A. Assorted State Law Claims Against the Individual Defendants
Plaintiff’s TAC asserts state law causes of action for, inter alia, (1) breach of contract; (2)
breach of an implied covenant of good faith and fair dealing; (3) negligence based on “failure to
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prevent retaliation, train, and supervise”; (4) negligence based on “failure to engage in reasonable
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accommodation discussions”; and (5) violation of the UCL. TAC 14–16. Defendants argue that
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Northern District of California
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Plaintiff has failed to sufficiently plead these claims against the Individual Defendants. Mot. at
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10–11. For the reasons stated below, the Court agrees with Defendants on all of the claims except
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for Plaintiff’s cause of action for violation of the UCL.
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First, as to Plaintiff’s causes of action for breach of contract and breach of an implied
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covenant of good faith and fair dealing, according to the TAC, Plaintiff entered into only two
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contracts: one with Barker Hotel, and one with Alma Place. TAC ¶ 100. Thus, Plaintiff does not
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allege that he contracted with any of the Individual Defendants. As a result, Plaintiff’s TAC fails
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to state a claim for either breach of contract or breach of an implied covenant of good faith and
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fair dealing against any of the Individual Defendants.
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Second, with regards to Plaintiff’s negligence cause of action based on “failure to prevent
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retaliation, train, and supervise,” the Court agrees with Defendants that this cause of action
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“cannot be asserted against the Individual Defendants” because it “relate[s] to the alleged action or
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inaction of PAHC Management . . . and not the individual defendants.” Mot. at 10–11. According
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to the TAC, this negligence cause of action is based on the breach of a duty to “hire, train,
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supervise, and discipline . . . employees.” TAC at 15. Under California law, it is clear that if such
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a duty exists, it belongs to the employer of the employees. See Prilliman v. United Air Lines, 53
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Cal. App. 4th 935, 955–56 (1997) (concluding that the plaintiff presented triable issues of fact
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with respect to his negligence cause of action based on United Air Lines’s failure to supervise
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employees and train employees about the plaintiff’s rights under the FEHA); Higgins v. Thrifty
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Payless, Inc., 2002 WL 57403, * 1 (Cal. Ct. App. 2002) (upholding a judgment against a
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pharmacy for negligence based on the pharmacy’s failure “to train adequately or supervise its
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pharmacists in providing prescriptions to customers”). However, the Court could not find any
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case that applied California law and recognized, either explicitly or implicitly, that one of the
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employer’s employees could also be held liable for a breach of the employer’s duty to train,
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supervise, and discipline its employees. Thus, the Court concludes that to the extent Plaintiff’s
negligence cause of action based on “failure to prevent retaliation, train, and supervise” is asserted
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against any of the Individual Defendants, it fails as a matter of law.
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Third, as to Plaintiff’s negligence cause of action based on “failure to engage in reasonable
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accommodation discussions,” the Court notes that according to Plaintiff’s TAC, this cause of
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action appears to be based on a breach of a duty to “engage Plaintiff in good faith reasonable
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accommodation discussions” regarding his move out of Alma Place. TAC ¶¶ 88, 90, 110. Even
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assuming that any of the Individual Defendants could be held liable for a breach of such a duty,
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the Court agrees with Defendants that Plaintiff has failed to allege facts that plausibly suggest that
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any of the Individual Defendants was involved in the failure “to engage in reasonable
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accommodation discussions.” Id. at 16. Plaintiffs’ TAC asserts only that Plaintiff “contacted
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defendants[’] agents to start the process of engaging in a reasonable accommodation for more time
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to move out” of Alma Place, that after a period of waiting, “the agents’ attorney Steven Naumchik
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never engaged Plaintiff in a good faith and timely discussion of a reasonable accommodation,”
23
and that Plaintiff “received a response a few days before his move out date and the reasonable
24
accommodation request was denied” after Plaintiff “engage[d] the assistance of attorney to talk to
25
attorney Naumchik to compel a response.” Id. ¶ 90. None of these allegations even mention any
26
of the Individual Defendants, let alone present enough facts to implicate any of the Individual
27
28
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
Defendants in the alleged failure to engage Plaintiff in reasonable accommodation discussions. As
2
a result, the Court concludes that to the extent Plaintiff’s negligence cause of action based on
3
“failure to engage in reasonable accommodation discussions” is asserted against any of the
4
Individual Defendants, it fails as a matter of law.
5
Finally, with regards to Plaintiff’s cause of action under the UCL, the Court disagrees with
6
Defendants’ argument that this claim “cannot be asserted against the Individual Defendants.”
7
Mot. at 10. The UCL prohibits any “unlawful, unfair or fraudulent business act or practice,” Cal.
8
Bus. & Prof. Code § 17200, and Defendants offer no authority to support the proposition that
9
individuals cannot be held liable for engaging in “unlawful, unfair or fraudulent” business
practices. Indeed, California law indicates that at least in some circumstances, individuals can be
11
United States District Court
Northern District of California
10
held liable for violations of the UCL. See O’Connor v. Uber Techs., Inc., 2014 WL 6354534, * 18
12
(N.D. Cal. Dec. 5, 2017) (stating that “an owner or officer of a corporation may be liable
13
individually under the UCL if he or she actively and directly participates in the unfair business
14
practice” (internal quotation omitted)).
15
Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s UCL claim
16
against the Individual Defendants, but GRANTS Defendants’ motion to dismiss Plaintiff’s causes
17
of action for breach of contract, breach of an implied covenant of good faith and fair dealing,
18
negligence based on “failure to prevent retaliation, train, and supervise,” and negligence based on
19
“failure to engage in reasonable accommodation discussions,” to the extent those causes of action
20
are asserted against the Individual Defendants. The Court provides leave to amend because
21
Plaintiff may be able to allege sufficient facts to assert these causes of action against the Individual
22
Defendants. See Lopez, 203 F.3d at 1127 (holding that “a district court should grant leave to
23
amend . . . unless it determines that the pleading could not possibly be cured by the allegation of
24
other facts” (internal quotation marks omitted)).
25
26
27
28
B. Fraud and Concealment Claim
According to Plaintiff’s TAC, Plaintiff’s cause of action for “Fraud & Concealment”
13
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
appears to be based on two theories. First, Plaintiff appears to assert that “Defendant Quinn’s
2
statement that there was little criminal activity” around the Barker Hotel in November 2008—
3
when Plaintiff visited the Barker Hotel and was contemplating renting a Barker Hotel unit—was
4
false because “Plaintiff suffer[ed] during his tenancy at the Barker Hotel due to the noise by the
5
nightclub across the street and the gelato ice cream shop below his [Barker Hotel] unit.” TAC ¶
6
93. Second, Plaintiff asserts that “Defendant Quinn’s statement that [there] was no grievance
7
process [at the Barker Hotel] . . . was also false,” and that Defendants Quinn, Mascarenhas, and
8
Gonzalez improperly failed to disclose the grievance procedure to Plaintiff even after Defendant
9
Mascarenhas told Plaintiff on July 17, 2009 that such a grievance procedure existed and that
10
United States District Court
Northern District of California
11
Mascarenhas would send a copy of it to Plaintiff. Id. ¶¶ 47, 94.
Defendants argue that Plaintiff’s cause of action for fraud and concealment should be
12
dismissed because it is time-barred by the applicable statute of limitations. Mot. at 4–6. For the
13
reasons stated below, the Court agrees with Defendants.
14
Under California law, “[a]n action for relief on the ground of fraud or mistake” must be
15
brought within three years after “the discovery, by the aggrieved party, of the facts constituting the
16
fraud or mistake.” Cal. Civ. Proc. Code § 338(d). As to Plaintiff’s first theory of fraud and
17
concealment, according to Plaintiff’s TAC, Plaintiff discovered “the noise by the nightclub across
18
the street and the gelato ice cream shop below his [Barker Hotel] unit”—which purportedly made
19
Defendant Quinn’s representation that there was “little criminal activity” around the Barker Hotel
20
false—by July 2009 at the very latest. TAC ¶¶ 59, 93. This is because Plaintiff alleges that
21
Plaintiff complained about the noise to both the Palo Alto City Counsel and the Palo Alto Police
22
Department in July 2009. Id. ¶ 59. Further, as to Plaintiff’s second theory of concealment,
23
Plaintiff learned of the existence of a Barker Hotel grievance procedure on July 17, 2009, because
24
that is the date on which Defendant Mascarenhas told Plaintiff that such a grievance procedure
25
existed. Id. ¶ 47. Thus, for both of Plaintiff’s fraud and concealment theories, Plaintiff learned
26
“the facts constituting the fraud or mistake” in July 2009. Cal. Civ. Proc. Code § 338(d).
27
28
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
However, Plaintiff filed the instant action on January 17, 2017—well outside of the three-year
2
limitations period. See ECF No. 1.
3
In his opposition to Defendants’ motion to dismiss, Plaintiff does not dispute that he knew
4
the factual basis for his fraud and concealment claim in July 2009. Instead, Plaintiff argues that he
5
is “entitled to both equitable estoppel and delayed discovery,” and that “[b]ased on both theories
6
of equitable estoppel and delayed discovery[,] Plaintiff[’s] claim for fraud and concealment did
7
not accru[e] [un]til March 2017.” Pl. Opp. at 3–4.
8
9
The Court is not persuaded by Plaintiff’s argument because Plaintiff’s TAC is devoid of
facts that plausibly suggest that either the doctrine of equitable estoppel or the delayed discovery
rule should be applied to Plaintiff’s fraud and concealment claim. First, as to the doctrine of
11
United States District Court
Northern District of California
10
equitable estoppel, equitable estoppel “addresses . . . the circumstances in which a party will be
12
estopped from asserting the statute of limitations as a defense to an admittedly untimely action
13
because his conduct has induced another into forbearing suit within the applicable limitations
14
period.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 383 (2003) (internal quotation marks and
15
citations omitted). In other words, a defendant can be equitably estopped from asserting a statute
16
of limitations defense if the plaintiff’s “delay in commencing action is induced by the conduct of
17
the defendant.” Atwater Elementary Sch. Dist. v. Cal. Dep’t of Gen. Servs., 41 Cal. 4th 227, 232–
18
33 (2007) (internal quotation marks and citations omitted). In the instant case, Plaintiff’s TAC
19
provides no facts that even remotely suggest that Plaintiff was induced by any of the Defendants
20
to delay in filing the instant action.
21
Second, “under the delayed discovery rule, a cause of action will not accrue until the
22
plaintiff discovers or should have discovered, through the exercise of reasonable diligence, all the
23
facts essential to the cause of action.” Prudential Home Mortg. Co. v. Superior Court, 66 Cal.
24
App. 4th 1236, 1246 (1998). As explained above, Plaintiff’s TAC demonstrates that Plaintiff’s
25
fraud and concealment cause of action accrued in July 2009 because Plaintiff discovered “all the
26
facts essential to” that cause of action in July 2009. Id. Specifically, as to Plaintiff’s first theory
27
28
15
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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1
of fraud and concealment, Plaintiff’s allegations that he complained about the noise level around
2
the Barker Hotel to both the Palo Alto City Council and the Palo Alto Police Department in July
3
2009 demonstrate that Plaintiff was well aware that Defendant Quinn’s representation about the
4
noise level around the Barker Hotel was false by July 2009. See TAC ¶ 59. Further, as to
5
Plaintiff’s second theory of fraud and concealment, Plaintiff’s TAC indicates that Plaintiff learned
6
of the existence of a Barker Hotel grievance procedure by at the latest July 17, 2009, when
7
Defendant Mascarenhas told Plaintiff that such a procedure existed and that she would send
8
Plaintiff a copy. Id. ¶ 47.
9
Plaintiff’s argument that he “was not able to under[stand] the nature of the full injury until
. . . after talking to a Santa Clara County Housing specialist” in March 2017, Pl. Opp. at 3–4, is
11
United States District Court
Northern District of California
10
unavailing. Under California law, “[i]gnorance of the legal significance of known facts . . . will
12
not delay the running of the statute.” Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110 (1988).
13
Instead, “the statute of limitations begins to run when the plaintiff suspects or should suspect that
14
her injury was caused by wrongdoing, that someone has done something wrong to her.” Id. Thus,
15
Plaintiff’s fraud and concealment cause of action accrued when Plaintiff learned enough facts to
16
suspect wrongdoing, which, as explained above, was in July 2009.
17
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s cause of action
18
for fraud and concealment. However, the Court affords leave to amend because Plaintiff may be
19
able to allege sufficient facts to support a cause of action for fraud and concealment. See Lopez,
20
203 F.3d at 1127 (holding that “a district court should grant leave to amend . . . unless it
21
determines that the pleading could not possibly be cured by the allegation of other facts” (internal
22
quotation marks omitted)).
23
24
C. Claims Against Defendants Quinn, Mascarenhas, and Fields
Defendants argue that all of the remaining claims in the TAC against Defendants Quinn,
25
Mascarenhas, and Fields should be dismissed as time-barred. Mot. at 6–7. The Court first
26
addresses Plaintiff’s remaining claims against Defendant Quinn. Next, the Court addresses
27
28
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1
Plaintiff’s remaining claims against Defendant Mascarenhas. Finally, the Court addresses
2
Plaintiff’s remaining claims against Defendant Fields.
3
1. Claims Against Defendant Quinn
4
In some parts of Plaintiff’s TAC, Plaintiff does not clearly identify the specific actions that
underlie each of Plaintiff’s causes of action. For example, one section of Plaintiff’s TAC lists
6
seven different statutes, but identifies neither the specific Defendants that are being sued under
7
each statute nor the specific actions that allegedly violated each statute. See TAC at 9–11.
8
However, construing Plaintiff’s TAC broadly and in Plaintiff’s favor, the Court surmises that all
9
of the remaining causes of action in the TAC against Defendant Quinn are as follows: (1) racial
10
discrimination in violation of the FHA, the FEHA, and 42 U.S.C. §§ 1981–83, based on Quinn’s
11
United States District Court
Northern District of California
5
failure to tell Plaintiff about the waitlist for the first floor units at Barker Hotel and Quinn’s hostile
12
treatment of Plaintiff (and corresponding lack of hostility towards white tenants), TAC ¶ 75; (2)
13
sex discrimination in violation of the FHA, the FEHA, and 42 U.S.C. § 1983, based on Quinn’s
14
failure to ask Plaintiff permission or give Plaintiff notice before allowing maintenance workers to
15
enter Plaintiff’s room, even though Quinn would always ask female tenants before allowing
16
maintenance workers to enter their rooms, id.; (3) intentional and negligent infliction of emotional
17
distress, id. ¶ 103; (4) engaging in unfair business practices in violation of the UCL, id. ¶¶ 105,
18
108; and (5) violation of the Bane Act. Id. ¶ 113.
19
The limitations periods for causes of action asserted pursuant to the statutes mentioned in
20
the paragraph above are as follows: (1) two years for a claim under the FHA, see 42 U.S.C. §
21
3613(a)(1)(A); (2) two years for a claim under the FEHA, see Cal. Gov’t Code § 12989.1; (3) two
22
years for a claim under 42 U.S.C. §§ 1981–83, see McKinney v. Boyd Gaming Corp., 12 F. App’x
23
599, 601 (9th Cir. 2001) (“Civil rights claims arising under 42 U.S.C. §§ 1981–83 are subject to
24
states’ statute of limitations for personal injury claims.”); Cal. Civ. Proc. Code § 335.1 (stating
25
that the limitations period for “[a]n action for assault, battery, or for the death of, an individual
26
caused by the wrongful act or neglect of another” is two years); (4) two years for a claim based on
27
28
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
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1
intentional or negligent infliction of emotional distress, see Cal. Civ. Proc. Code § 335.1; (5) three
2
years for a claim under the UCL, see Cal. Civ. Proc. Code § 338(a) (stating that the limitations
3
period for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” is
4
three years); and (6) two or three years, depending on the underlying violation of rights, for a
5
claim under the Bane Act. See Wilson v. City of Oakland, 2012 WL 669527, *3 n.6 (N.D. Cal.
6
Feb. 29, 2012) (“For liability arising out of common law neglect or personal injury, a two-year
7
statute of limitations applies, but for statutory actions, a three-year limitation applies.”).
8
Thus, all of the remaining claims in Plaintiff’s TAC against Defendant Quinn are subject to
limitations periods of either two or three years. Further, all of these claims are based on actions
10
taken by Defendant Quinn while Plaintiff was still living in the Barker Hotel because Defendant
11
United States District Court
Northern District of California
9
Quinn was the site manager for PAHC at the Barker Hotel. TAC ¶ 15. Relatedly, Plaintiff
12
discovered all the facts suggesting that Defendant Quinn discriminated against Plaintiff on the
13
basis of race and sex while Plaintiff was still a tenant of the Barker Hotel. See id. ¶ 75 (stating that
14
Plaintiff became aware of potentially favorable treatment to white tenants regarding the first floor
15
units from a white Barker Hotel tenant while Plaintiff was still living in the Barker Hotel). Thus,
16
because Plaintiff moved out of the Barker Hotel in August 2011, see id. ¶ 66, all of Plaintiff’s
17
remaining claims against Defendant Quinn accrued, at the very latest, in August 2011. However,
18
Plaintiff brought the instant action on January 17, 2017, which is well outside of the applicable
19
limitations periods for the remaining claims against Defendant Quinn.
20
The Court also notes that Plaintiff does not oppose Defendants’ motion to dismiss his
21
remaining claims against Defendant Quinn as time-barred. See Pl. Opp. at 4–5 (arguing that
22
Plaintiff’s FHA and FEHA claims against Defendants Mascarenhas, Granadosin, Fields, Harrison,
23
and Gonzalez are still valid, but failing to mention any claims against Defendant Quinn).
24
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s causes of action for
25
violation of the FHA, violation of the FEHA, violation of 42 U.S.C. §§ 1981–83, intentional and
26
negligent infliction of emotional distress, violation of the UCL, and violation of the Bane Act
27
28
18
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
against Defendant Quinn. The Court affords leave to amend because Plaintiff may be able to
2
allege sufficient facts to state one of these remaining claims against Defendant Quinn. See Lopez,
3
203 F.3d at 1127 (holding that “a district court should grant leave to amend . . . unless it
4
determines that the pleading could not possibly be cured by the allegation of other facts” (internal
5
quotation marks omitted)).
6
2. Claims Against Defendant Mascarenhas
7
Once again construing Plaintiff’s TAC broadly and in Plaintiff’s favor, the Court deduces
that all of the remaining causes of action in the TAC against Defendant Mascarenhas are as
9
follows: (1) racial discrimination in violation of the FHA, the FEHA, and 42 U.S.C. §§ 1981–83,
10
based on Mascarenhas’s statement to Plaintiff in July 2011 that Mascarenhas “wanted no trouble-
11
United States District Court
Northern District of California
8
making black tenants residing in properties she managed” and that she “wanted Plaintiff out,” as
12
well as Mascarenhas’s July 2011 denial of Plaintiff’s request for an expedited move-out of Barker
13
Hotel—which provoked Plaintiff’s suspicion when he learned “sometime in 2012” that “expedited
14
transfers were granted upon request,” TAC ¶ 75; (2) retaliation in violation of the FHA and the
15
FEHA based on Mascarenhas’s November 25, 2013 letter to Plaintiff “informing Plaintiff not to
16
write management regarding housing issues and to move out” after Plaintiff and PAHC
17
participated in mediation of a rental dispute, id. ¶ 85; (3) intentional and negligent infliction of
18
emotional distress, id. ¶ 103; (4) violation of the UCL, id. ¶ 108; and (5) violation of the Bane Act.
19
Id. ¶ 113.
20
Thus, as with the remaining claims against Defendant Quinn, all of Plaintiff’s remaining
21
claims against Defendant Mascarenhas are subject to limitations periods of either two or three
22
years. However, as noted above, all of Plaintiff’s remaining claims against Defendant
23
Mascarenhas accrued between July 2011 and November 25, 2013. Thus, because Plaintiff filed
24
the instant action on January 17, 2017—more than three years after November 25, 2013—the
25
remaining claims against Defendant Mascarenhas are all time-barred.
26
27
28
In Plaintiff’s opposition, Plaintiff opposes only the dismissal of Plaintiff’s FHA and FEHA
19
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
claims against Defendant Mascarenhas. See Pl. Opp. at 4–5. As to Plaintiff’s FHA claim,
2
Plaintiff argues that the statute of limitations was tolled from when Plaintiff filed a fair housing
3
complaint with HUD against Defendants Fields, Harrison, Gonzalez, Mascarenhas, and the owners
4
of Alma Place on October 28, 2014 until “the conclusion of the HUD investigation which was
5
January 15, 2015.” Pl. Opp. at 4; see TAC ¶ 86. Plaintiff is correct that a pending HUD
6
complaint tolls the limitations period on a claim if the HUD complaint is based on the same
7
discriminatory conduct as the claim. See 42 U.S.C. § 3613(a)(1)(B) (“The computation of such 2-
8
year period shall not include any time during which an administrative proceeding under this
9
subchapter was pending with respect to a complaint or charge under this subchapter based upon
such discriminatory housing practice.”). However, even assuming Plaintiff’s HUD complaint
11
United States District Court
Northern District of California
10
against Defendant Mascarenhas was based on the same discriminatory conduct as Plaintiff’s FHA
12
claims against Defendant Mascarenhas—which Plaintiff does not allege—Plaintiff’s FHA claims
13
against Defendant Mascarenhas would still be barred by the two-year statute of limitations
14
because the tolling period was only “about 79 days” long, Pl. Opp. at 4, while Plaintiff brought the
15
instant action at least three years after Plaintiff’s FHA claims against Defendant Mascarenhas
16
accrued.
17
Plaintiff further opposes dismissal of Plaintiff’s FHA and FEHA claims against Defendant
18
Mascarenhas by insisting that “Plaintiff alleges that the violations of discrimination by” Defendant
19
Mascarenhas “continued well after the HUD investigation only ending on April 10, 2015[,] when
20
Plaintiff left Alma Place.” Pl. Opp. at 4. While Plaintiff is correct that Plaintiff’s TAC alleges
21
other instances of housing discrimination and retaliation against Plaintiff that occurred between
22
2013 to 2015, Plaintiff’s TAC is devoid of any facts that plausibly suggest that Defendant
23
Mascarenhas actively “participate[d] in, authorize[d], or ratif[ied] the commission of [those] . . .
24
fair housing tort[s],” as is required to hold Defendant Mascarenhas individually liable for those
25
instances of alleged discrimination under the FHA and the FEHA. Fielder v. Sterling Park
26
Homeowners Ass’n, 914 F. Supp. 2d 1222, 1227 (W.D. Wash. 2012) (citing Smith v. Stechel, 510
27
28
20
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
2
F.2d 1162, 1163 (9th Cir. 1975)).
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s causes of
3
action for violation of the FHA, violation of the FEHA, violation of 42 U.S.C. §§ 1981–83,
4
intentional and negligent infliction of emotional distress, violation of the UCL, and violation of
5
the Bane Act against Defendant Mascarenhas. The Court affords leave to amend because Plaintiff
6
may be able to allege sufficient facts to state one of these remaining claims against Defendant
7
Mascarenhas. See Lopez, 203 F.3d at 1127 (holding that “a district court should grant leave to
8
amend . . . unless it determines that the pleading could not possibly be cured by the allegation of
9
other facts” (internal quotation marks omitted)).
3. Claims Against Defendant Fields
11
United States District Court
Northern District of California
10
Based on Plaintiff’s TAC, the Court surmises that all of the remaining claims against
12
Defendant Fields are as follows: (1) racial discrimination in violation of the FHA, the FEHA, and
13
42 U.S.C. §§ 1981–83, based on Fields’s alleged withdrawal of a transfer unit offer on October 28,
14
2014 “when a white male applicant wanted the unit,” TAC ¶ 75; (2) intentional and negligent
15
infliction of emotional distress, id. ¶ 103; (3) violation of the UCL, id. ¶ 108; and (4) violation of
16
the Bane Act. Id. ¶ 113. Further, all of Plaintiff’s remaining claims against Defendant Fields
17
appear to have accrued on October 28, 2014, because they all appear to be based on Fields’s
18
October 28, 2014 withdrawal of the transfer unit offer.
19
Plaintiff’s racial discrimination and intentional and negligent infliction of emotional
20
distress claims against Defendant Fields are subject to two-year limitations periods, while
21
Plaintiff’s UCL and Bane Act claims against Defendant Fields are subject to three-year limitations
22
periods. As a result, Plaintiff’s racial discrimination claim (pursuant to the FHA, the FEHA, and
23
42 U.S.C. § 1981–83) and Plaintiff’s intentional and negligent infliction of emotional distress
24
claim are both time-barred. Further, Plaintiff’s Bane Act claim against Defendant Fields is also
25
time-barred because Plaintiff did not assert a Bane Act claim against any of the Defendants until
26
he filed his TAC on November 1, 2017—more than three years after his Bane Act claim accrued.
27
28
21
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
However, Plaintiff’s UCL claim against Defendant Fields is not time-barred. This is because
2
Plaintiff asserted his UCL claim against Defendant Fields in the first amended complaint, see ECF
3
No. 14, which was filed within three years of October 28, 2014.
4
In Plaintiff’s opposition, Plaintiff opposes the dismissal of Plaintiff’s FHA and FEHA
5
claims against Defendant Fields. See Pl. Opp. at 4–5. As to Plaintiff’s FHA claim, Plaintiff
6
argues that the statute of limitations was tolled from when Plaintiff filed a fair housing complaint
7
against Defendants Fields, Harrison, Gonzalez, Mascarenhas, and the owners of Alma Place on
8
October 28, 2014 until “the conclusion of the HUD investigation which was January 15, 2015.”
9
Pl. Opp. at 4; see TAC ¶ 86. However, as discussed above, even assuming Plaintiff’s HUD
complaint against Defendant Fields was based on the same discriminatory conduct as Plaintiff’s
11
United States District Court
Northern District of California
10
FHA claim against Defendant Fields in Plaintiff’s TAC—which Plaintiff does not allege—
12
Plaintiff’s FHA claims against Defendant Fields would still be barred by the two-year statute of
13
limitations. This is because the two-year statute of limitations was tolled only from October 28,
14
2014 to January 15, 2015, and then ran from January 16, 2015 to January 16, 2017. Plaintiff filed
15
his original complaint on January 17, 2017. See ECF No. 1. Further, Plaintiff’s original
16
complaint did not mention Defendant Fields’s October 28, 2014 withdrawal of the transfer unit
17
offer from Plaintiff—indeed, Plaintiff did not assert that allegation until Plaintiff filed his first
18
amended complaint on May 9, 2017. See ECF No. 14 at 16. As a result, even accounting for
19
tolling, Plaintiff’s FHA claim against Defendant Fields is time-barred.
20
Like with Plaintiff’s FHA and FEHA claims against Defendant Mascarenhas, Plaintiff
21
opposes dismissal of his FHA and FEHA claims against Defendant Fields by arguing that “the
22
violations of discrimination by” Defendant Fields “continued well after the HUD investigation
23
only ending on April 10, 2015[,] when Plaintiff left Alma Place.” Pl. Opp. at 4. However, while
24
Plaintiff’s TAC does allege other instances of housing discrimination and retaliation against
25
Plaintiff from 2013 to 2015, Plaintiff’s TAC does not contain facts that plausibly suggest that
26
Defendant Fields actively “participate[d] in, authorize[d], or ratif[ied] the commission of [those] . .
27
28
22
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
. fair housing tort[s].” Fielder, 914 F. Supp. 2d at 1227. As a result, Plaintiff’s TAC does not
2
allege sufficient facts to hold Defendant Mascarenhas individually liable for those instances of
3
alleged discrimination under the FHA and the FEHA.
4
Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s UCL claim
against Defendant Fields, but GRANTS Defendants’ motion to dismiss Plaintiff’s causes of action
6
for violation of the FHA, violation of the FEHA, violation of 42 U.S.C. §§ 1981–83, intentional
7
and negligent infliction of emotional distress, and violation of the Bane Act against Defendant
8
Fields. The Court affords leave to amend because Plaintiff may be able to allege sufficient facts to
9
state one of these remaining claims against Defendant Fields. See Lopez, 203 F.3d at 1127
10
(holding that “a district court should grant leave to amend . . . unless it determines that the
11
United States District Court
Northern District of California
5
pleading could not possibly be cured by the allegation of other facts” (internal quotation marks
12
omitted)).
13
D. FHA and FEHA Claims Against Defendants Gonzalez, Granadosin, and Harrison
14
Defendants argue that all of the FHA and FEHA claims in the TAC against Defendants
15
Gonzalez, Granadosin, and Harrison should be dismissed as time-barred and for failure to state a
16
claim. Mot. at 8–10, 11. For the reasons stated below, the Court agrees that all FHA and FEHA
17
claims that Plaintiff’s TAC asserts against Defendants Gonzalez, Granadosin, and Harrison are
18
time-barred. Thus, the Court need not address Defendants’ alternative argument that Plaintiff has
19
failed to state FHA and FEHA claims against Defendants Gonzalez, Granadosin, and Harrison.
20
The Court first addresses Plaintiff’s FHA and FEHA claims against Defendant Gonzalez. Next,
21
the Court addresses Plaintiff’s FHA and FEHA claims against Defendant Granadosin. Finally, the
22
Court addresses Plaintiff’s FHA and FEHA claims against Defendant Harrison.
23
1. FHA and FEHA Claims Against Defendant Gonzalez
24
As an initial matter, it is unclear whether Plaintiff’s TAC asserts any FHA or FEHA claim
25
at all against Defendant Gonzalez. The only allegations in the TAC that mention Defendant
26
Gonzalez are as follows: (1) “Plaintiff complained about defendant[] Quinn’s conduct during the
27
28
23
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
signing of the lease agreement in December 24, 2008 and his hostile and harassment behavior
2
toward Plaintiff during [Plaintiff’s] tenancy [at the Barker Hotel] to . . . Gonzalez,” but Defendant
3
Quinn’s behavior did not change, TAC ¶¶ 75, 83; and (2) on December 1, 2009, Plaintiff emailed
4
Defendant Gonzalez “requesting a hearing or meeting on [Plaintiff’s] grievances regarding the
5
Barker Hotel,” but Defendant Gonzalez “never [wrote] back.” Id. ¶ 48.
6
Even assuming (without deciding) that Plaintiff can state a claim under either the FHA or
the FEHA against Defendant Gonzalez based on these allegations, Plaintiff’s claim would be time-
8
barred by the two-year limitations periods in both the FHA and the FEHA. See 42 U.S.C. §
9
3613(a)(1)(A); Cal. Gov’t Code § 12989.1. As discussed above, based on the only allegations in
10
the TAC that mention Defendant Gonzalez, any FHA or FEHA claim that Plaintiff asserts against
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United States District Court
Northern District of California
7
Defendant Gonzalez must be premised on events that occurred during Plaintiff’s tenancy at the
12
Barker Hotel, which means Plaintiff’s claim accrued by August 2011 (when Plaintiff moved out of
13
the Barker Hotel). See TAC ¶ 66. However, Plaintiff brought the instant action on January 17,
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2017—more than five years after August 2011, and therefore well outside of the two-year
15
limitations periods provided by the FHA and the FEHA. Thus, any FHA or FEHA claims asserted
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by Plaintiff against Defendant Gonzalez are time-barred.
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Plaintiff argues that his claims under the FHA and FEHA against Defendant Gonzalez are
18
not time-barred because “violations of discrimination by” Defendant Gonzalez “continued” until
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after “April 10, 2015[,] when Plaintiff left” Alma Place. Pl. Opp. at 4. However, while Plaintiff’s
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TAC alleges that Plaintiff suffered from other instances of housing discrimination and retaliation
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after August 2011, Plaintiff’s TAC does not allege facts that plausibly suggest that Defendant
22
Gonzalez actively participated in, authorized, or ratified any of those instances. See Fielder, 914
23
F. Supp. 2d. at 1227. As a result, Plaintiff’s TAC does not allege sufficient facts to hold
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Defendant Gonzalez individually liable for those instances of alleged discrimination under the
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FHA and the FEHA.
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Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s causes of
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
action for violation of the FHA and the FEHA against Defendant Gonzalez. The Court affords
2
leave to amend because Plaintiff may be able to allege sufficient facts to state a claim under either
3
the FHA or the FEHA against Defendant Gonzalez. See Lopez, 203 F.3d at 1127 (holding that “a
4
district court should grant leave to amend . . . unless it determines that the pleading could not
5
possibly be cured by the allegation of other facts” (internal quotation marks omitted)).
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2. FHA and FEHA Claims Against Defendant Granadosin
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Similarly, it is unclear whether Plaintiff’s TAC asserts any FHA or FEHA claim at all
8
against Defendant Granadosin. The only allegations in the TAC that mention Defendant
9
Granadosin are as follows: (1) “Plaintiff complained about defendant[] Quinn’s conduct during the
signing of the lease agreement in December 24, 2008 and his hostile and harassment behavior
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United States District Court
Northern District of California
10
toward Plaintiff during [Plaintiff’s] tenancy [at the Barker Hotel] to . . . Granadosin,” but
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Defendant Quinn’s behavior did not change, TAC ¶¶ 75, 83; and (2) on December 24, 2008,
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Plaintiff called the main PAHC office number and told Defendant Granadosin that Defendant
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Quinn would not answer Plaintiff’s questions about the lease agreement with the Barker Hotel. Id.
15
¶¶ 39–41.
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As with Plaintiff’s FHA and FEHA claims against Defendant Granadosin, even assuming
17
(without deciding) that Plaintiff can state a claim under either the FHA or the FEHA against
18
Defendant Granadosin, Plaintiff’s claim is barred by the two-year limitations periods in both the
19
FHA and the FEHA. See 42 U.S.C. § 3613(a)(1)(A); Cal. Gov’t Code § 12989.1. Like with
20
Plaintiff’s FHA and FEHA claims against Defendant Gonzalez, based on the only allegations in
21
the TAC that mention Defendant Granadosin, any FHA or FEHA claim that Plaintiff asserts
22
against Defendant Granadosin must be premised on events that occurred while Plaintiff lived at
23
the Barker Hotel, which means Plaintiff’s claim accrued by August 2011 (when Plaintiff moved
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out of the Barker Hotel). See TAC ¶ 66. However, Plaintiff brought the instant action well
25
outside of the two-year limitations periods provided by the FHA and the FEHA. Thus, any FHA
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or FEHA claims asserted by Plaintiff against Defendant Granadosin are time-barred.
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
Further, while Plaintiff argues once again that his FHA and FEHA claims against
2
Defendant Granadosin are not time-barred because “violations of discrimination by” Defendant
3
Granadosin “continued” until “April 10, 2015[,] when Plaintiff left” Alma Place, Plaintiff’s TAC
4
contains no facts to plausibly suggest that Defendant Granadosin actively participated in,
5
authorized, or ratified any discriminatory or retaliatory conduct against Plaintiff after August
6
2011. See Fielder, 914 F. Supp. 2d at 1227. As a result, Plaintiff’s TAC does not allege sufficient
7
facts to hold Defendant Granadosin individually liable for those later instances of alleged
8
discrimination under the FHA and the FEHA.
9
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s causes of
action for violation of the FHA and the FEHA against Defendant Granadosin. The Court affords
11
United States District Court
Northern District of California
10
leave to amend because Plaintiff may be able to allege sufficient facts to state a claim under either
12
the FHA or the FEHA against Defendant Granadosin. See Lopez, 203 F.3d at 1127 (holding that
13
“a district court should grant leave to amend . . . unless it determines that the pleading could not
14
possibly be cured by the allegation of other facts” (internal quotation marks omitted)).
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3. FHA and FEHA Claims Against Defendant Harrison
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Finally, the only allegations in the TAC that could potentially support FHA and FEHA
17
claims against Defendant Harrison are as follows: (1) while Plaintiff lived at the Barker Hotel,
18
Plaintiff complained to PAHC managers—including Defendant Harrison—about Defendant
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Quinn’s conduct and hostility towards Plaintiff, but Quinn’s behavior did not change, TAC ¶ 75;
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and (2) in 2014, Defendant Harrison “refused to investigate a noise complaint Plaintiff made
21
against another white male resident” and “allowed a wom[a]n resident to subject plaintiff to racial
22
[] slurs [and] sexual epithets after complaining about the wom[a]n resident[‘s] loud noises and
23
arguments.” Id.
24
As explained above, any FHA or FEHA claim based on a failure to correct Defendant
25
Quinn’s conduct accrued by August 2011 at the latest and is therefore time-barred. Thus, even
26
assuming (without deciding) that Plaintiff could state an FHA or FEHA claim against Defendant
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
Harrison based on Defendant Harrison’s failure to correct Defendant Quinn’s behavior, that claim
2
is barred by the two-year limitations periods in the FHA and the FEHA.
3
Further, again assuming without deciding that Plaintiff can state an FHA or FEHA claim
against Defendant Harrison based on Harrison’s alleged refusal to investigate Plaintiff’s noise
5
complaint and acquiescence to another resident’s racial and sexual insults towards Plaintiff,
6
Plaintiff alleges that those events occurred in 2014. See TAC ¶ 75. However, Plaintiff did not file
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his original complaint until January 17, 2017, and he did not assert these allegations until May 9,
8
2017, when Plaintiff filed his amended complaint. See ECF No. 14 at 16. Thus, even if Plaintiff’s
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FHA claim against Defendant Harrison was briefly tolled between October 28, 2014 and January
10
15, 2015 (when Plaintiff’s HUD complaint was pending), Plaintiff’s FHA and FEHA claim based
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United States District Court
Northern District of California
4
on Defendant Harrison’s 2014 conduct is still barred by the two-year limitations periods in the
12
FHA and the FEHA.
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Finally, although Plaintiff argues that “violations of discrimination by” Defendant Harrison
14
“continued” until “April 10, 2015[,] when Plaintiff left” Alma Place, as discussed above, the only
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factual allegations in the TAC that could support FHA and FEHA claims against Defendant
16
Harrison are about conduct that occurred in 2011 and 2014. In other words, Plaintiff’s TAC
17
alleges no facts that plausibly suggest that Defendant Harrison actively participated in, authorized,
18
or ratified any discriminatory or retaliatory conduct against Plaintiff after 2014. See Fielder, 914
19
F. Supp. 2d at 1227. As a result, Plaintiff’s TAC does not allege sufficient facts to hold Defendant
20
Harrison individually liable for those later instances of alleged discrimination under the FHA and
21
the FEHA.
22
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s causes of
23
action for violation of the FHA and the FEHA against Defendant Harrison. The Court affords
24
leave to amend because Plaintiff may be able to allege sufficient facts to state a claim under either
25
the FHA or the FEHA against Defendant Harrison. See Lopez, 203 F.3d at 1127 (holding that “a
26
district court should grant leave to amend . . . unless it determines that the pleading could not
27
28
27
Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
possibly be cured by the allegation of other facts” (internal quotation marks omitted)).
2
E. UCL Claim Based on Violation of Palo Alto Municipal Code
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Plaintiff’s TAC asserts a cause of action for violation of the UCL based on Defendants’
4
alleged violation of Palo Alto Municipal Code § 9.73, which is Palo Alto’s “city policy against
5
arbitrary discrimination.” See TAC ¶ 105. Defendants argue that this cause of action should be
6
dismissed because Palo Alto Municipal Code § 9.73 does not provide a private right of action.
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Mot. at 7–8.
The Court is not persuaded by Defendants’ argument. By basing his UCL claim on
9
Defendants’ alleged violation of Palo Alto Municipal Code § 9.73, Plaintiff is clearly asserting his
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UCL claim under the “unlawful” prong of the UCL. See In re Actimmune Mktg. Litig., 2010 WL
11
United States District Court
Northern District of California
8
3463491, *6 (N.D. Cal. Sept. 1, 2010) (“In the context of an unlawful-prong claim, a plaintiff
12
must establish that a defendant engaged in unlawful conduct, i.e., violated a federal, state or
13
municipal statute, ordinance or regulation.”). Thus, even though Palo Alto Municipal Code § 9.73
14
does not provide a private right of action, it is well-established that “[c]onduct that is prohibited by
15
a statute may be actionable under the UCL[‘s ‘unlawful’ prong] even if the predicate statute does
16
not provide a private right of action.” Banga v. Allstate Ins. Co., 2010 WL 1267841, *2 (E.D. Cal.
17
2010); see Stop Youth Addiction, Inc. v. Lucky Stores, Inc.¸17 Cal. 4th 553, 566 (1998) (rejecting
18
the argument that “a private UCL claim is barred whenever the predicate statute fails to afford a
19
private right of action”). As a result, the mere fact that there is no private right of action to enforce
20
Palo Alto Municipal Code § 9.73 does not preclude Plaintiff from bringing a UCL claim
21
predicated on § 9.73.
Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s UCL claim
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premised on an alleged violation of Palo Alto Municipal Code § 9.73.
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IV.
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CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
motion to dismiss. In particular:
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
1. The Individual Defendants’ motion to dismiss Plaintiff’s causes of action for breach of
2
contract, breach of an implied covenant of good faith and fair dealing, negligence
3
based on “failure to prevent retaliation, train, and supervise,” and negligence based on
4
“failure to engage in reasonable accommodation discussions” is GRANTED with leave
5
to amend.
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7
8
9
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2. The Individual Defendants’ motion to dismiss Plaintiff’s cause of action for violation
of the UCL is DENIED.
3. Defendants’ motion to dismiss Plaintiff’s cause of action for fraud and concealment is
GRANTED with leave to amend.
4. Defendant Quinn’s motion to Plaintiff’s causes of action for violation of the FHA,
United States District Court
Northern District of California
11
violation of the FEHA, violation of 42 U.S.C. §§ 1981-83, intentional and negligent
12
infliction of emotional distress, violation of the UCL, and violation of the Bane Act is
13
GRANTED with leave to amend.
14
5. Defendant Mascarenhas’s motion to dismiss Plaintiff’s causes of action for violation of
15
the FHA, violation of the FEHA, violation of 42 U.S.C. §§ 1981–83, intentional and
16
negligent infliction of emotional distress, violation of the UCL, and violation of the
17
Bane Act is GRANTED with leave to amend.
18
6. Defendant Fields’s motion to dismiss Plaintiff’s UCL claim is DENIED.
19
7. Defendant Fields’s motion to dismiss Plaintiff’s causes of action for violation of the
20
FHA, violation of the FEHA, violation of 42 U.S.C. §§ 1981–83, intentional and
21
negligent infliction of emotional distress, and violation of the Bane Act is GRANTED
22
with leave to amend.
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27
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8. Defendant Gonzalez’s motion to dismiss Plaintiff’s causes of action for violation of the
FHA and violation of the FEHA is GRANTED with leave to amend.
9. Defendant Granadosin’s motion to dismiss Plaintiff’s causes of action for violation of
the FHA and violation of the FEHA is GRANTED with leave to amend.
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
1
2
3
4
5
10. Defendant Harrison’s motion to dismiss Plaintiff’s causes of action for violation of the
FHA and violation of the FEHA is GRANTED with leave to amend.
11. Defendants’ motion to dismiss Plaintiff’s cause of action for violation of the UCL
based on violation of Palo Alto Municipal Code § 9.73 is DENIED.
Should Plaintiff elect to file an amended complaint curing the deficiencies identified
6
herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day
7
deadline or failure to cure the deficiencies identified herein will result in a dismissal with
8
prejudice of the deficient claims or theories. Plaintiffs may not add new causes of actions or
9
parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil
10
Procedure 15.
United States District Court
Northern District of California
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IT IS SO ORDERED.
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Dated: March 7, 2018
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______________________________________
LUCY H. KOH
United States District Judge
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Case No. 17-CV-00238-LHK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS WITH
LEAVE TO AMEND
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