Ford v. Affirmed Housing Group et al

Filing 45

ORDER Denying Defendants' 27 Motion for Partial Summary Judgment. The parties shall proceed knowing that Plaintiff is not pursuing a cause of action under the HUD regulations. Signed by Judge Thomas J. Whelan on 3/25/2014. (jah)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JASON FORD,

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Plaintiff,

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v.

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ORDER DENYING
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY
JUDGMENT [DOC. 27]

AFFIRMED HOUSING GROUP,
et. al.,
Defendants.

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Case No. 13-cv-996-W(RBB)

On April 25, 2013, Plaintiff Jason Ford commenced this action against the

21 owners and operators of the Studio 15 apartment complex in San Diego, California.
22 Defendants Affirmed Housing Group and Studio 15 Housing Partners, L.P. (“Studio
23 15”) now move for partial summary judgment.1 Plaintiff opposes.
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The Court decides the matter on the papers submitted and without oral

25 argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES
26 Defendants’ motion for partial summary judgment.
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Solari Enterprises, Inc. and Laura Dorval are defendants in this action, but are not parties to
the motion for partial summary judgment.
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13cv996

1 I.

BACKGROUND2

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Plaintiff is a person with a disability. (Compl. ¶ 4.) In June of 2012, he toured

3 an apartment at Studio 15, an apartment complex in San Diego, California. (Id. ¶¶ 11,
4 18.) Plaintiff and the social worker with whom he worked to find housing told the
5 Studio 15 rental agent that Plaintiff would need disability-related modifications to his
6 apartment. (Id.) On June 19, 2012, Studio 15 sent Plaintiff a “Letter of Intent” signed
7 by its manager, indicating that when Plaintiff’s application was approved, he could
8 move into Unit 132 at Studio 15. (Id. ¶ 19.) The next day, on June 20, Studio 15’s
9 manager called Plaintiff and left him a voicemail stating that his application had been
10 approved and that he could move in as soon as July 2, 2012. (Id.)
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The next day, on June 21, 2012, Monica Barraza, an independent living specialist

12 working with the non-profit Access to Independence, called Studio 15 and “left the
13 first of a number of messages about installing the modifications needed to enable Ford
14 to occupy his unit at Studio 15.” (Compl. ¶¶ 17, 20.) One week later, Plaintiff’s July
15 2 discharge date from Edgemoor Hospital—a nursing facility in Santee where he had
16 been undertaking rehabilitation—had to be postponed because Studio 15 had not made
17 the modifications that would allow Plaintiff to move in. (Id. ¶¶ 16, 21.) Plaintiff’s
18 doctor wrote discharge orders authorizing him to be released on July 16 instead. (Id.
19 ¶ 21.) However, Studio 15 repeatedly delayed installing modifications until Plaintiff’s
20 July 16 discharge date also had to be cancelled. (Id. ¶ 27.)
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One week later, on July 19, the manager of Studio 15 told a social worker with

22 Edgemoor Hospital that Plaintiff would not be allowed to move in. (Compl. ¶ 28.) The
23 manager told the social worker that Plaintiff’s modification request had been denied
24 and described Plaintiff as “too disabled” and as a “high liability” as a result of his
25 disability. (Id.) Solari Enterprises, Studio 15’s management company, issued a “Letter
26 of Ineligibility” to Plaintiff shortly thereafter. (Id. ¶ 29.)
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Plaintiff alleges the following in his complaint.
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13cv996

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On April 25, 2013, Plaintiff brought this action for violations of the Fair Housing

2 Act, the Rehabilitation Act, the California Fair Employment and Housing Act, the
3 California Unruh Civil Rights Act, the California Disabled Persons Act, and the
4 California Business and Professions Code § 17200 et. seq. in addition to claims for
5 breach of contract and for negligence. Plaintiff seeks compensatory damages, statutory
6 damages under the California Unruh Civil Rights Act and Disabled Persons Act,
7 punitive damages, treble damages, declaratory and injunctive relief, and attorneys’ fees.
8

Defendants now move for partial summary judgment on the ground that Plaintiff

9 lacks standing to enforce the Housing and Urban Development (“HUD”) regulations
10 promulgated under the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff opposes the
11 motion.
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Upon reviewing the moving papers, on January 21, 2013, the Court issued an

13 Order to Show Cause (“OSC”) why Defendants’ motion for partial summary judgment
14 should not be denied as calling for an advisory opinion on an issue not presented in the
15 case. Defendants filed a response on January 30, 2014, and Plaintiffs filed a reply on
16 February 10, 2014.
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18 II.

LEGAL STANDARD

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Summary judgment is appropriate under Rule 56(c) where the moving party

20 demonstrates the absence of a genuine issue of material fact and entitlement to
21 judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
22 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law,
23 it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
24 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled in part on
25 other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). A dispute
26 about a material fact is genuine if “the evidence is such that a reasonable jury could
27 return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
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13cv996

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A party seeking summary judgment always bears the initial burden of establishing

2 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving
3 party can satisfy this burden in two ways: (1) by presenting evidence that negates an
4 essential element of the nonmoving party’s case; or (2) by demonstrating that the
5 nonmoving party failed to make a showing sufficient to establish an element essential
6 to that party’s case on which that party will bear the burden of proof at trial. Id. at 3227 23. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
8 judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630
9 (9th Cir. 1987).
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“The district court may limit its review to the documents submitted for the

11 purpose of summary judgment and those parts of the record specifically referenced
12 therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir.
13 2001). Therefore, the court is not obligated “to scour the record in search of a genuine
14 issue of triable fact.” Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing
15 Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)). If the
16 moving party fails to discharge this initial burden, summary judgment must be denied
17 and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress
18 & Co., 398 U.S. 144, 159-60 (1970), superceded on other grounds by Celotex, 477 U.S.
19 at 322-23.
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If the moving party meets this initial burden, the nonmoving party cannot defeat

21 summary judgment merely by demonstrating “that there is some metaphysical doubt as
22 to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
23 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th
24 Cir. 1995) (“The mere existence of a scintilla of evidence in support of the nonmoving
25 party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 242, 252). Rather, the
26 nonmoving party must “go beyond the pleadings” and by “the depositions, answers to
27 interrogatories, and admissions on file,” designate “ ‘specific facts showing that there is
28 a genuine issue for trial.’ ” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
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13cv996

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When making this determination, the court must view all inferences drawn from

2 the underlying facts in the light most favorable to the nonmoving party.

See

3 Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of evidence, and
4 the drawing of legitimate inferences from the facts are jury functions, not those of a
5 judge, [when] he [or she] is ruling on a motion for summary judgment.” Anderson, 477
6 U.S. at 255.
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Rule 56(a) provides for partial summary judgment. See Fed. R. Civ. P. 56(a) (“A

8 party may move for summary judgment, identifying each claim or defense--or the part
9 of each claim or defense--on which summary judgment is sought.”). Partial summary
10 judgment is a mechanism through which the court deems certain issues established
11 before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981). “The
12 procedure was intended to avoid a useless trial of facts and issues over which there was
13 really never any controversy and which would tend to confuse and complicate a
14 lawsuit.” Id.
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16 III.

DISCUSSION

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“As is well known the federal courts established pursuant to Article III of the

18 Constitution do not render advisory opinions.” United Pub. Workers of Am. (C.I.O.)
19 v. Mitchell, 330 U.S. 75, 89 (1947), overruled on other grounds by Adler v. Bd. of Educ.
20 of City of New York, 342 U.S. 485 (1952). “[T]he implicit policies embodied in Article
21 III, and not history alone, impose the rule against advisory opinions on federal courts.”
22 Flast v. Cohen, 392 U.S. 83, 96 (1968). “The disagreement [posed in a case] must not
23 be nebulous or contingent but must have taken on fixed and final shape so that a court
24 can see what legal issues it is deciding, what effect its decision will have on the
25 adversaries, and some useful purpose to be achieved in deciding them.” Pub. Serv.
26 Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 244 (1952) (discussing the
27 propriety of declaratory relief). In order to avoid improper advisory opinions on
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13cv996

1 “abstract propositions of law,” “a present, live controversy” must exist concerning the
2 issues before the court. See Hall v. Beals, 396 U.S. 45, 48 (1969).
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Defendants move for partial summary judgment under the apparent assumption

4 that Plaintiff is attempting to enforce the HUD regulations promulgated under the
5 Rehabilitation Act, 29 U.S.C. § 794. These regulations provide that “a minimum of
6 five percent of the total dwelling units or at least one unit in a multifamily housing
7 project, whichever is greater, shall be made accessible for persons with mobility
8 impairments.” 24 C.F.R. § 8.22. The regulations further state that, “[a]n additional
9 two percent of the units (but not less than one unit) in such a project shall be accessible
10 for persons with hearing or vision impairments.” Id. Defendants argue that “there is
11 no basis for finding that [Plaintiff] has standing to enforce the 5% regulation” and that
12 “[Plaintiff] has no standing to state a claim for violation of the separate 2% set aside
13 requirement for vision and hearing impaired tenants in 24 C.F.R. § 8.22(b).” (Defs.’
14 Mot. 5:17–27.)
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As the Court noted in the OSC:
The Complaint mentions these HUD regulations only once
and only in its introduction, in paragraph thirteen.
Defendants’ motion cites Plaintiff’s second claim, for
violation of the Rehabilitation Act, as the basis for its
motion. However, Plaintiff’s second claim does not invoke
the regulations that Defendant cites, but rather “the
accessibility requirements of the Rehabilitation Act.”

20 (OSC 2:3–8 (internal citations omitted).)
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In their response to the OSC, Defendants contend that, “[i]n addition to the

22 allegations in the Complaint, Ford’s counsel have demonstrated both in their discovery
23 requests and settlement demands that one of Plaintiff’s major litigation objectives is to
24 privately enforce the HUD regulations.” (Def.’s OSC Response 2:10–12.) Defendants
25 cite discovery requests and correspondence with Plaintiff’s counsel as the grounds for
26 their understanding that Plaintiff seeks to privately enforce the HUD regulations
27 codified at 24 C.F.R. § 8.22. (Id.)
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13cv996

1

In his reply to the OSC, Plaintiff argues that “if Studio 15 had complied with the

2 Act’s command to provide access, as defined in 24 C.F.R. § 8.22, then the supply of
3 accessible dwellings at Studio 15 apartments would have been greater, increasing Ford’s
4 opportunity to rent an accessible dwelling and negating his need for a reasonable
5 modification.” (Pl.’s OSC Reply 3:6–10.) He further contends that “Studio 15’s failure
6 to comply with the Act’s accessibility requirement, as defined in 24 C.F.R. § 8.22, is
7 closely connected to its refusal to rent to Ford or make reasonable modifications in
8 violation of [29 U.S.C. § 794(a)].” (Id. at 3:10–16.)
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In the penultimate paragraph of his reply, Plaintiff states, “[a]lthough the

10 accessibility regulations in 24 C.F.R. § 8.22 are at issue in this case, they do not create
11 Ford’s right of action; instead, Ford sues under the Rehabilitation Act. He looks to the
12 definition of accessibility, as provided in 24 C.F.R. § 8.22, to inform and give meaning
13 to the Act’s accessibility requirement.” (Pl.’s OSC Reply 3:17–20.) That statement
14 effectively demonstrates that Plaintiff concedes that he is not pursuing a cause of action
15 under the HUD regulations, 24 C.F.R. § 8.22. Because Plaintiff concedes that he does
16 not seek enforcement of the HUD regulations, Defendants’ motion for partial summary
17 judgment calls for an advisory opinion regarding a cause of action that is outside the
18 scope of the operative complaint. See Mitchell, 330 U.S. at 89.
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CONCLUSION & ORDER

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In light of the foregoing, the Court DENIES Defendants’ motion for partial

22 summary judgment. The parties shall proceed knowing that Plaintiff is not pursuing a
23 cause of action under the HUD regulations.
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IT IS SO ORDERED.

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26 DATE: March 25, 2014
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HON. THOMAS J. WHELAN
United States District Court
Southern District of California

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