Hamilton v. Lincoln Mariners Associates Limited et al

Filing 7

ORDER: The Motion to Dismiss is granted. (Doc. 3 ). The Complaint is dismissed without prejudice. No later than thirty (30) days from the date this Order is filed, Plaintiff may file a motion for leave to amend the Complaint accompanied by a propose d first amended complaint. If Plaintiff does not file a motion for leave to amend, this case shall remain closed or be remanded to San Diego County Superior Court, where this case was originally filed. Signed by Judge William Q. Hayes on 10/14/2014. (mdc)

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FILED

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OCT 1 4 2014

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES HAMILTON, an individual,

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Plaintiff, 1 ORDER
vs.
LINCOLN MARINERS
ASSOCIATES LIMITE~\.dba
MARINERS COVE APAKTMENT

HOMES, a limited liability company;

AIMCO-GP INC, a corporation'
MARIBEL ROBLES, an individual;
and DOES 1 through 20, inclusive,

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I CASE NO. 14cv1689-WQH (NLS)

Defendant.

1711 HAYES, Judge:
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The matter before the Court is the Motion to Dismiss filed by Defendants. (ECF

19 No.3).
20 I. Background
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On June 11,2014, Plaintiff James Hamilton commenced this action by filing the

22 Complaint in San Diego County Superior Court. (ECF No. 1 at 9). On July 17, 2014,
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Defendants Lincoln Mariners Associates Limited, dba Mariners Cove Apartment

2411 Homes ("Mariners Cove"), Aimco-GP, Inc. ("Aimco"), and Maribel Robles
25 II (collectively "Defendants") removed to this Court on the basis of federal question
2611 jurisdiction. (ECF No.1 at 2). On July 24, 2014, Defendants filed the Motion to
2711 Dismiss. (ECF No.3). On August 19,2014, Plaintiff filed an opposition. (ECF No.
28114). On August 26,2014, Defendants filed a reply. (ECF No.5).
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1 II. Allegations of the Complaint
2

Since February 2012, Plaintiff has been a resident of 4330 West Point Loma

3 II Boulevard, leased by Mariners Cove. Plaintiff has been diagnosed by the Veterans
4 II Administration with Post Traumatic Stress Disorder ("PTSD") "with a 100% disability
5 II rating" and "degenerative arthritis, bUlging discs, and chronic pain in the lower lumbar
6 II ofthe back and spine" with a disability rating of 50%. (ECF No. 1 at 12). "Plaintiff
7 notified Defendants of his disabilities in February, 2012. He later reminded them of
8 his disabilities, including, but not limited to, the date of approval of his parking space
9 assignment, and at the times Plaintiff made complaints about the dumpster noise,
10 dumpster smell, and parking lot traffic. Id.
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When Plaintiff first signed a lease with Mariners Cove, he requested a three

12 bedroom apartment. Plaintiffwas told he would be placed on a waiting list and would
13 II be notified when a three bedroom apartment became available. Plaintiff later learned
14 II that a three bedroom apartment had become available, but he witnessed new tenants
15 II moving into that apartment. "Defendants then disclosed that there was not, in fact, a
16 II waiting list, and that the prior representation was false." Id. at 12. When Plaintiff
17 II complained to corporate customer relations about this "false representation," "the
18 II necessity to have the dumpster relocated," and his disability, Defendants failed to
19 accommodate him and instead retaliated. Id.
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Plaintiff also complained to Mariners Cove about electrical, plumbing, and

21 II mechanical violations in the building, "unsatisfactory disabled access (raised sidewalks
22 II and limited parking spaces), substandard housing conditions, excessive noise
23 II (especially around the dumpster), fire hazards regarding excessive leaves and tree
24 II debris in the gutter systems and on the roofs," and lack of appropriate security. Id. at
25 II 13. Plaintiff also complained about landscaping and lawn maintenance activities "as
2611 early as 6:30 a.m.," but "Mariners Cove has refused to limit the landscaping and
2711 maintenance activities to reasonable hours." Id. at 14.
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Plaintiffalso complained about other tenants violating their leases by exceeding
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1 maximum permitted pet provisions, allowing animals to "wander unchecked and
2 unleashed in the common areas," owning dog breeds not permitted on the property, and
3 II smoking cigarettes and marijuana. Id. at 13-14. Mariners Cove has ignored all of
4 II these complaints.
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"On September 1, 2013, a theft occurred at the main leasing office where the

6 II perpetrator stole residents' files (includingPlaintifrs). However, Mariners Cove failed
711 to notify Plaintiff ofthe breach ofsecurity and theft ofPlaintifrs personal information
8 II for twenty (20) days, when a notice dated September 20, 2013 was finally provided."
9 II Id. at 13. In order to accommodate his PTSD, Plaintiff installed security cameras at his
10 II unit. "In response to Plaintiff s installation of security cameras to monitor his door
11 II stoop, stairs, and parking space, Mariners Cove, including, but not limited to Maribel
1211 Robles, threatened and harassed him with legal action and eviction." Id. at 15.
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Plaintiff has also been denied requests to install a tarp over his balcony and a

1411 washer/dryer in his unit, even though others tenants have been permitted to do so.
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On March 18, 2014, Mariners Cove (and specifically, Maribel
Robles) provided Plaintiff notice that his lease would not be renewed
without J?roviding any explanation, even though he had been a tenant in
excess 01 two (2) years, and entitled by law to be offered a renewal of his
lease under similar terms pursuant to San Diego Municipal Ordinance §
98.0701 et seq. On May 6, 2014, Plaintiffwas given a notice of intent to
perform a pre-move out inspection. Although Plaintiff also fulJy paid his
rent for tne month of June z 2014" MariberRobles issued a Three Day
Notice to Pay Rent or QUIt on June 4 2014. Also on June 4,. 2014,
Plaintiff was finally' prOVIded a renewal of his lease, but only after the
expiration of the prior lease, and thus forcing Plaintiff into a month to
month lease with a $300.00 increase until such time as he acce.pted the
lease renewal. Plaintiff was told that he would be assessed fees iflie failed
to give at least 60 days notice of his intent not to renew his lease.
Plaintiff has also complained to Mariners Cove that the tenants in
apartment 4332 F continue to create excessive noise ~ermit their children
to play outside unsup'ervised (which results in the chIldren playing "ding
dong aitch), playing in the parking lot area and around the dumpsters, an
of which exacerbate Plamtiffs PTSD disability. Despite PlaintIffs
repeated complaints Mariners Cove refused to take any action, and
instead issued to Plaintiff a Non-Renewal/Termination Notice (in
violation of San Diego Municipal Ordinance § 98.0701 et seq.).
During Plaintiffs tenancy, the premises have not been in a habitable
condition, includin~, but not lImited to" dry rot and damage to the stairs
leading to PlaintiffS apartment water oeing shut off by Mariners Cove
without reasonable notice to Plaintiff, mold on the premises, termite
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damage, bird feces that is permitted to accumulate, exterior door that does
not seal, and unreasonable and noxious odors that emanate from dumpster
located outside of Plaintiffs apartment.

3 Id. at 15.
4 II

The Complaint asserts the following claims for relief: disability discrimination

5 II in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. section
611 3604(f)(2)(A) and (C) (third claim); violation of the Fair Housing Act ("FHA"), 42
711 U.S.C. section 3604(f)(3)(B), for failure to make reasonable accommodations (fifth
8 claim); violation of the FHA, 42 U.S.C. section 3617, for retaliation (sixth claim);
9 violation of the FHA, 42 U.S.C. section 3604(c), for unlawful statements (seventh
10 claim); and thirteen state-law claims.
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III. Discussion

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A. Rule 12(b)(6) Standard

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Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state

14 a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of
15" Civil Procedure 8(a) provides that "[a] pleading that states a claim for relief must
16 II contain ... a short and plain statement ofthe claim showing that the pleader is entitled
1711 to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where
18 " the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable
19" legal theory. SeeBalistreriv. PacificaPoliceDep 't, 901 F.2d696, 699 (9th Cir. 1990).
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"[A] plaintiff s obligation to provide the 'grounds' ofhis 'entitle [ment] to relief

21 II requires more than labels and conclusions, and a formulaic recitation of the elements
2211 ofa cause ofaction will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
23 II (quoting Fed. R. Civ. P. 8(a»). "To survive a motion to dismiss, a complaint must
2411 contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
25 " plausible on its face. '" Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Twombly,
26" 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual
27 II content that allows the court to draw the reasonable inference that the defendant is
28 II liable for the misconduct alleged." Id. (citation omitted). "[T]he tenet that a court must
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1 II accept as true all of the allegations contained in a complaint is inapplicable to legal
2 II conclusions. Threadbare recitals of the elements of a cause of action, supported by
3 mere conclusory statements, do not suffice." Id. (citation omitted). "When there are
4 well-pleaded factual allegations, a court should assume their veracity and then
5 determine whether they plausibly give rise to an entitlement to relief." Id. at 679. "In
6 sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content,
7 II and reasonable inferences from that content, must be plausibly suggestive of a claim
811 entitling the plaintiff to relief." Moss v. US. Secret Serv., 572 F.3d 962,969 (9th Cir.
9 2009) (quotations omitted).

l O B . DisabiliQ' Discrimination and Failure to make Reasonable
AccommodatIons in Violation of 42 U.S.C. § 3604(t)(2)(A) and (C)
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(Third and Fifth Claims)
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Defendants contend that Plaintiff has failed to allege any facts to "support his

13 II bald conclusion that Defendant discriminated against Plaintiff in the terms, conditions,
14 II or privileges of the rental of his unit." (ECF No. 3-2 at 18). Defendants contend that
15 II Plaintiff has failed to allege any facts demonstrating that Defendant discriminated
16 II against Plaintiffbecause Plaintiffis a member ofa protected class. Defendants contend
17 II that Plaintiff has alleged no facts demonstrating discrimination against someone
18 II associated with Plaintiff. Finally, Defendants contend that Plaintiff has failed to
19 II identify a reasonable accommodation, communications with Defendants regarding a
20 II possible accommodation, or reasons why those accommodations were necessary.
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Plaintiff asserts that he has alleged four pages of specific facts that show

22 II Defendants discriminated against him in the terms, conditions, or privileges of his
23 II rental unit. Plaintiff also asserts that he has alleged that he requested a three bedroom
24 II apartment and requested to be moved away from the dumpster in order to accommodate
25 II his disability.
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42 U.S.C. sections 3604(f)(2)(A) and (C) make it unlawful to "discriminate

27 II against any person in the terms, conditions, or privileges ofsale or rental ofa dwelling,
28 II or in the provision of services or facilities in connection with such dwelling, because
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1 " ofhandicap of.... that person; or .... any person associated with that person." 42 U.S.C.
21! § 3604(f)(2)(A) and (C). "Discrimination" includes:

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(A) a refusal to permit, at the expense of the handicapped person
reasonable modifications ofexisting premises occupied or to be occupied
by such p'erson if such modifications may be necessary to afford such
p'erson fUll enjoyment ofthe premises except that, in the case of a rental,
the landlord may where it is reasonable to do so condition permission for

a modification on the renter agreeing to restore the interior ofthe premises

to the condition that existed oefore the modification, reasonable wear and

tear excepted.

(B) a refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a dwelling ....
42 U.S.C. § 3604(f)(3)(A) and (B). The Court ofAppeals for the Ninth Circuit applies
Title VII discrimination analysis in examining FHA discrimination claims. Gamble v.
City ofEscondido, 104 F 3d 300, 305 (9th Cir. 1997). Under the McDonnell Doug/as

burden-shifting framework applicable in Title VII and FHA discrimination cases, "the

laintiff must first establish a prima facie case." Id.
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In the case of intentional discrimination, the "plaintiff carries the initial burden
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of showing actions taken by the [defendant] from which one can infer, if such actions
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remain unexplained, that it is more likely than not that such actions were 'based on a
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discriminatory criterion .... '" Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978)
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(applying McDonnell Douglas analysis in Title VII context). In the case of an alleged
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failure to make reasonable accommodations, "a plaintiffmust prove all ofthe following
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elements: (1) that the plaintiff or his associate is handicapped within the meaning of
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42 U.S.C. § 3602(h); (2) that the defendant knew or should reasonably be expected to
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know of the handicap; (3) that accommodation of the handicap may be necessary to
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afford the handicapped person an equal opportunity to use and enj oy the dwelling; (4)
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that the accommodation is reasonable; and (5) that defendant refused to make the
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requested accommodation." DuBois v. Ass 'n ofApartment Owners of2987 Kalakaua,
26 " 453 F.3d 1175, 1179 (9th Cir. 2006).
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The Complaint alleges that Defendants discriminated against Plaintiff, "a person
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with a disability, in the terms, conditions, or privileges of sale or rental of a dwelling,
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1 " or in the provision of services or facilities in connection with such dwelling, because
211 of Plaintiffs disability ...." (ECF No. 1 at 17). The Complaint alleges that this
3 II discrimination was "intentional, willful, and taken in disregard of the rights of
411 Plaintiff." [d. at 18. The Complaint fails to specify what Defendants did that
5 II constitutes disability discrimination in violation of the FHA or which disabilities
611 formed the basis of Defendants' discrimination.

The Complaint fails to allege

7 II sufficient factual matter to permit the inference that Defendants actions were more
8 II likely than not motivated by discriminatory criteria, specifically, that Plaintiff was
9 II denied privileges given to other residents because ofhis disabilities. Cf Pers. Adm'r
10 II ofMass. v. Feeney, 442 U.S. 256,279-80 (1979) (holding that equal protection clause
1111 intentional discrimination requires "a particular course of action at least in part
1211 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group").
13 II The Court concludes that Plaintiff has failed to state a claim for intentional disability
14 II discrimination.
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As to the alleged failure to provide a reasonable accommodation, the Complaint

16 II alleges that "Plaintiff complained to corporate customer relations regarding his
17 II disability, the request for the three bedroom apartment .... and the necessity to have the
18 II dumpster relocated." (ECF No. 1 at 12). The Complaint alleges that "Mariners Cove
19 II failed to provide a reasonable accommodation, but instead engaged in retaliatory
20 II conduct against Plaintiff." [d. at 13. The Complaint fails to allege facts demonstrating
21 II that accommodations were necessary for a particular disability or that the requested
22 II accommodations would be reasonable. The Complaint also fails to allege facts
23 II demonstrating that Plaintiff requested accommodations based on his disability. The
24 Court concludes that Plaintiff has failed to state a claim for violation of the FHA for

25 intentional disability discrimination or for disability discrimination in the failure to
26 accommodate Plaintiff's disabilities.
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Defendants' motion to dismiss Plaintiff s third claim and fifth claims is granted.

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C. Retaliation in Violation of 42 U.S.C. § 3617 (Sixth Claim)
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Defendants contend that Plaintiff has failed to allege that he engaged in any

2 protected activity.

Defendants contend that Plaintiff has failed to allege that

3 II Defendants retaliated against Plaintiff because of Plaintiff s protected activity.
4 Defendants contend that Plaintiffs allegations show that the alleged retaliation was in
5 response to Plaintiffs "unilateral" installation of security cameras on Defendants'
6 property and Plaintiff s failure to renew his annual lease within a required time.
7 Plaintiff asserts that he alleged both specific requests for accommodations and specific
811 adverse housing consequences as a result of these requests for accommodations.
9 II Plaintiff asserts that there is a causal link between the two, supporting a claim for
10 retaliation.
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42 U.S.C. section 3617 provides that "[i]t shall be unlawful to coerce, intimidate,

12 II threaten, or interfere with any person in the exercise or enjoyment of, or on account of
13 II having exercised or enjoyed, or on account ofhis having aided or encouraged any other
14 II person in the exercise or enjoyment of, any right granted or protected by section 3603,
1511 3604, 3605, or 3606 of this title." 42 U.S.C. § 3617. To state a claim for retaliation
1611 under the Fair Housing Act, the plaintiff must show: (1) he engaged in protected
1711 activity; (2) adverse action causally linked to the protected activity; and (3) resulting
1811 damage. San Pedro Hotel Co., Inc. v. City ofLos Angeles, 159 F.3d 470, 477 (9th Cir.
1911 1998).
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The Complaint alleges that "Defendants coerced, intimidated, threatened, or

21 II interfered with Plaintiff in the exercise or enjoyment of, or on account of his having
22 II exercised or enjoyed any right granted or protected by the provisions of the Fair
23 II Housing Act, in violation of 42 U.S.C. § 3617." (ECF No.1 at 20). The Complaint
2411 further alleges that "[i]n response to Plaintiffs installation of security cameras to
25 II monitor his door stoop, stairs, and parking space, Mariners Cove, including, but not
26 II limited to Maribel Robels, threatened and harassed him with legal action and eviction."
2711 Id. at 15. The Complaint alleges that although Plaintiff received a notice that his lease
28 II would not be renewed "without providing any explanation," he was later provided a
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111 renewal ofhis lease, but "only after the expiration of the prior lease, and thus forcing
211 Plaintiff into a month to month lease with a $300.00 increase until such time as he
3 II accepted the lease renewal." Id.
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The allegations supporting Plaintiff's sixth claim are a "[t]hreadbare recital[] of

5 II the elements of a cause of action, supported by mere conclusory statements .... " Iqbal,
611 556 U.S. at 678. The factual allegations found elsewhere in the Complaint are also
7 1\ insufficient to state an FHA retaliation claim. The Complaint fails to sufficiently
8 II identify a protected activity that forms the basis for Plaintiff's retaliation claim. There
9 is no authority for the proposition that Plaintiff's unilateral installation of security
10 cameras on leased property is protected activity, i.e., a "right granted or protected by
1111 section 3603,3604,3605, or 3606" ofthe FHA." 42 U.S.C. § 3617. As a result ofthe
1211 failure to identify a protected activity, the Complaint does not adequately allege an
13 1\ adverse action that is causally linked to a protected activity. The Complaint fails to
141\ identify any other protected activity. The Court concludes that the Complaint fails to
15 1\ state a retaliation claim under the FHA.
16 II

Defendants' motion to dismiss Plaintiffs' sixth claim is granted.

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D. Unlawful Statements in Violation of 42 U.S.C. § 3604(c) (Seventh Claim)

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Defendants contend that the Complaint fails to identify any statement by

19 II Defendants indicating an intention to make a preference against disabilities or to
20 II discriminate on the basis of disability. Plaintiff does not address the sufficiency ofhis
21 1\ seventh claim in opposition.
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Section 3604(c) makes it unlawful to "make, print, or publish, or cause to be

23 II made, printed or published any notice, statement, or advertisement, with respect to the
24 II sale or rental of a dwelling that indicates any preference, limitation, or discrimination
25 II based on race, color, religion, sex, handicap, familial status, or national origin, or an
2611 intention to make any such preference, limitation, or discrimination." 42 U.S.C. §
2711 3604(c).
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The Complaint lacks any factual allegations to support this claim. The only
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1 II alleged statement related to "the sale or rental of a dwelling" is the oral promise to
2 II place Plaintiff on a waiting list for a three bedroom apartment. However, this statement
3 II does not "indicate any preference, limitation, or discrimination based on ....
4 II handicap .... " 42 U.S.C. § 3604(c). The Court concludes that Plaintiff fails to state an
5 II unlawful statements claim under the FHA.
6 II

Defendants' motion to dismiss Plaintiffs' seventh claim is granted.

7 II

E. State Law Claims

8 II

The Complaint's remaining claims assert violations of California law: violation

911 of California's Fair Employment and Housing Act, violation of California Civil Code
10 II section 51, intentional infliction ofemotional distress, violation ofC ali forni a Business
11 II and Professions Code section 17200, breach of the warranty of habitability (both
1211 statutory and common law), breach of the covenant of quiet enjoyment, violation of
13 II California Civil Code section 1942.5 et seq., negligence, constructive eviction, breach
14 II ofcontract, negligent maintenance ofthe premises, and breach ofthe implied covenant
15 II of good faith and fair dealing. This case was removed to this Court on the basis of
16 II federal question jurisdiction. The notice of removal only states that this Court has
1711 supplemental jurisdiction over the remaining state-law claims. (ECF No.1 at 3).
18 II

The federal supplemental jurisdiction statute provides: "[i]n any civil action of

19 II which the district courts have original jurisdiction, the district courts shall have
20 II supplemental jurisdiction over all other claims that are so related to claims in the action
21 II within such original jurisdiction that they form part of the same case or controversy
2211 under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district
23 II court may decline to exercise supplemental jurisdiction over a state law claim if:
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(1) the claim raises a novel or complex issue of State law,

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(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction

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(3). th~ 4istrict court has dismissed all claims over which it has original
JUrISdIctIOn, or

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(4) in exceptional circumstances, there are other compelling reasons for
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declining jurisdiction.
28 U.S.C. § 1367(c). Having dismissed all federal claims asserted by Plaintiff against

3 I Defendants, the Court declines to exercise supplemental jurisdiction over the state law
411 claims pursuant to 28 U.S.C. § 1367(c). See San Pedro Hotel Co., 159 F.3d at 478.
5 " IV. Conclusion

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IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. (ECF

7 II No.3). The Complaint is DISMISSED without prejudice. No later than thirty (30)
8 II days from the date this Order is filed, Plaintiff may file a motion for leave to amend the

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Complaint accompanied by a proposed first amended complaint. The first amended

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versions of the complaint or other filings in this action. If Plaintiff does not file a

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complaint must be complete in itself and may not incorporate by reference prior

12 motion for leave to amend, this case shall remain closed or be remanded to San Diego
13 II County Superior Court, where this case was originally filed .
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151 DATED: /,;,4-rdr
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United States DWIct Judge

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