Johnson v. Birks Properties, LLC et al

Filing 15

ORDER Granting in Part and Denying in Part Defendants' Motion to Dismiss 11 . Plaintiff is granted leave to file a Second Amended Complaint. Any Second Amended Complaint should be filed within forty-five (45) days of the issuance of this Order. Signed by Judge Gonzalo P. Curiel on 1/11/22. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEPHANIE JOHNSON, an individual,

Case No.: 21-CV-01380-GPC-DEB

Plaintiff,

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v.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PURSUANT
TO RULE 12(B)(6) AND RULE
12(B)(1)

BIRKS PROPERTIES, LLC, a Delaware
company; ROGER BIRKS, an individual,
and DOES 1 through 10, inclusive,

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Defendants.

[ECF No. 11]

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On November 4, 2021, Defendant Birks Properties, LLC and Defendant Roger Birks

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(“Defendants”) filed a Motion to Dismiss Plaintiff’s First Amended Complaint pursuant

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to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and 12(b)(1). ECF No. 11. On

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December 3, 2021, Plaintiff opposed. ECF No. 13. On December 17, 2021, Defendants

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replied in support of their Motion. ECF No. 14. Having considered the parties’ filings, the

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Court finds this matter suitable for disposition on the papers and HEREBY VACATES

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the hearing previously set for January 14, 2022.

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I.

BACKGROUND
The dispute before the Court concerns a residential lease entered into by Plaintiff

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and Defendant Birks Properties. ECF No. 9 ¶ 10. The lease stated that no pets or animals

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were allowed to be kept in or around the property. Id. ¶ 11. Plaintiff suffers from a mental

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health disability, the diagnosis of which prompted her to get an emotional support animal

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(“ESA”), a dog named Benji. Id.¶ 14. In March 2021, Plaintiff informed Defendant Roger

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Birks that she wanted to move Benji into the unit as her ESA. Id.¶ 15. On March 31,

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2021, Mr. Birks informed Plaintiff that Benji could be on the property, but that he would

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require an additional security deposit of $700. Id. ¶ 18. Mr. Birks subsequently informed

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Plaintiff that he would not be renewing her lease, because she had violated the lease by

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moving a dog onto the premises without permission. Id. ¶ 21. According to Plaintiff, Mr.

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Birks stated, “When your lease comes back around, I’m not going to want a dog on the

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property. I don’t want animals on my property, then everybody else is going to think they

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can have animals on the property.” Id. ¶ 19. Mr. Birks also questioned why Benji was not

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going to work with Plaintiff, given that Benji was an ESA. Id. ¶ 20. In June 2021, Mr.

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Birks told Plaintiff’s roommate, Kiara Johnson, that he would be willing to renew the

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lease with her so long as there were no pets in the unit, but that he would not renew the

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lease with Plaintiff. Id. ¶ 25.

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After filing an initial Complaint, Plaintiff then filed the instant Amended

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Complaint, claiming: 1) disability discrimination under the Fair Housing Act, 2)

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disability discrimination under the California Fair Employment and Housing Act, 3)

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Disability Discrimination under the California Unruh Civil Rights Act, 4) Negligence,

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and 5) Unfair Business Practices as defined in California Business & Professions Code

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§ 17200 et seq. Defendants move to dismiss all five claims under Rule 12(b)(6), failure to

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state a claim upon which relief can be granted. Defendants further move to dismiss the

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second, third, fourth, and fifth claims for relief for lack of subject matter jurisdiction,

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because these four claims arise under California state law and this Court therefore

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exercises supplemental jurisdiction based on Plaintiff’s first claim arising under federal

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law.

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II.

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DISCUSSION
A.

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Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(6)
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Legal Standard under Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint, i.e.

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whether the complaint lacks either a cognizable legal theory or facts sufficient to support

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such a theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citations omitted).

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For a complaint to survive a Rule 12(b)(6) motion to dismiss, it must contain “sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007)). In reviewing the motion, the Court accepts the allegations in the

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complaint as true and construes the pleadings in the light most favorable to the non-

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moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th

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Cir. 2008). However, threadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly,

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550 U.S. at 555). The court is also not required to accept as true mere legal conclusions.

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Id. Determination of whether a complaint states a plausible claim is “context specific,

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requiring the reviewing court to draw on its experience and common sense.” Id. at 663-

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64. Dismissal without leave to amend is improper unless it is clear that amendment would

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be futile. Id.

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2.

Whether Plaintiff’s Claims are Sufficiently Pled to Survive a Rule

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12(b)(6) Motion

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a.

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Disability Discrimination Under the Fair Housing Act

Plaintiff first pleads a claim under 42 U.S.C. §§ 3601 et seq., the Fair Housing Act

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(“FHA”). The FHA allows for both disparate treatment (i.e. intentional discrimination)

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and disparate impact claims. Avenue 6E Investments, LLC v. City of Yuma, Ariz., 818

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F.3d 493, 502 (9th Cir. 2016). Disparate impact “recognizes that the arbitrary quality of

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thoughtlessness can be as disastrous and unfair to private rights and the public interest as

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the perversity of a willful scheme.” Id. at 503 (citing United States v. City of Black Jack,

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Mo., 508 F.2d 1179, 1185 (8th Cir. 1974)).
i.

Discrimination under § 3604(c)

42 U.S.C. § 3604(c) makes it illegal to “make, print, or publish . . . any notice,

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statement, or advertisement, with respect to the sale or rental of a dwelling that indicates

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any preference, limitation, or discrimination . . . based on . . . handicap . . . or an intention

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to make any such preference, limitation, or discrimination.” § 3604(c) applies to all

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written or oral notices or statements by “a person engaged in the sale or rental of a

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dwelling.” 24 C.F.R. § 100.75(b). No discriminatory intent is required. Housing Rights

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Ctr. v. Sterling, 404 F. Supp. 2d 1179, 1193 (C.D. Cal. 2004). “An oral or written

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statement violates § 3604(c) if it suggests a preference, limitation, or discrimination to

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the ‘ordinary listener’ or reader.” Id. Section 3604(c) protects existing tenants, not just

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prospective ones. Id. To establish a claim under § 3604(c), a plaintiff must show that: (1)

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the defendant made a statement; (2) the statement was made with respect to the rental of a

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dwelling; and (3) the statement indicated a preference, limitation, or discrimination on a

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disallowed basis. See Wentworth v. Hudson, 493 F.Supp.2d 559, 565 (E.D.N.Y. 2007)

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(discussing elements of Fair Housing Act claim). HUD has interpreted § 3604(c) to

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“apply to all written or oral notices or statements by a person engaged in the sale or rental

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of a dwelling.” 24 C.F.R. § 100.75(b).

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Here, Plaintiff has alleged that Defendant Roger Birks, a rental unit manager, made

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a statement with respect to the rental of a dwelling: “When your lease comes back

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around, I’m not going to want a dog on the property. I don’t want animals on my

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property, then everybody else is going to think they can have animals on the property.”

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ECF No. 1 at 5. The question posed is whether this statement indicates a disallowed

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preference, limitation, or discrimination. This statement, read in context, ignores the

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Plaintiff’s documented medical condition and need for an accommodation in the form of

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an ESA. At this early juncture, and taking all allegations in the light most favorable to the

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non-moving party, the Court finds that the statements alleged by Plaintiff and attributed

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to Defendant plausibly express a preference against or limitation on those residents who

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rely on ESAs. As such, Plaintiff has pled a claim under 42 U.S.C. § 3604(c) that survives

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a Rule 12(b)(6) Motion to Dismiss. Defendants’ Motion to Dismiss this claim is

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DENIED.

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ii.

Discrimination under § 3604(f)(1)(A)

Plaintiff further pleads a violation of § 3604(f)(1)(A). 42 U.S.C. § 3604(f)(1)

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provides in relevant part that it is unlawful to “discriminate in the sale or rental, or to

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otherwise make unavailable or deny, a dwelling to any buyer or renter because of a

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handicap of . . . that buyer or renter . . .” For “purposes of this subsection, discrimination

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

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practices, or services, where such accommodations may be necessary to afford such

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person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). The

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FHA therefore imposes “an affirmative duty upon landlords reasonably to accommodate

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the needs of handicapped persons . . . not only with regard to the physical acommodations

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. . . but also with regard to the administrative policies regarding rentals.” Giebeler v.

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M&B Assocs., 343 F.3d 1143, 1146 (9th Cir. 2003) (citing United States v. Cal. Mobile

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Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994) (internal citations omitted)).

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To state a claim based on failure to reasonably accommodate, “a plaintiff must

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demonstrate that (1) she suffers from a handicap as defined by the FHAA; (2) defendants

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knew or reasonably should have known of the plaintiff’s handicap; (3) accommodation of

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the handicap may be necessary to afford plaintiff an equal opportunity to use and enjoy

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the dwelling; and (4) defendants refused to make such accommodation.” Smith v.

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Powdrill, 2013 WL 5786586, at *4 (C.D. Cal. Oct. 28, 2013) (citing Giebeler, 343 F.3d

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at 1147 (9th Cir. 2003)). Applying these principles here, Plaintiff has adequately pled that

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she suffers from a disability and that Defendants should have known of the disability

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because she provided them with paperwork from her doctor. ECF No. 9 at 4. Plaintiff has

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also sufficiently alleged that accommodation of her handicap was necessary to afford her

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an equal opportunity to use and enjoy the dwelling, because she could not live there

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without the support of her ESA. Id. Finally, Plaintiff has sufficiently alleged that

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Defendants refused to make a reasonable accommodation in their rule or policy against

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animals in order to allow her to live with her ESA, by threatening not to renew her lease

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because of the presence of the animal. Id. at 5.

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Defendants argue that a claim under § 3604(f)(1)(A) cannot stand unless the

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dwelling is actually made “unavailable,” and point to attached emails from Plaintiff’s

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counsel to argue that Plaintiff still lives on the property. ECF No. 14 at 5. However, the

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Court at this time considers only matters presented in the pleadings. More importantly,

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the statute allows for multiple bases on which to consider potential discrimination. If the

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claim were brought solely under the “make unavailable” prong of § 3604(f), the fact that

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Plaintiff has not alleged that the home is actually unavailable might defeat that claim. See

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Thompson v. Westboro Condominium Ass’n, 2006 WL 2473464, at *2 (W.D. Wash. Aug.

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25, 2006) (discussing Plaintiff’s claims that a home was made unavailable). However,

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§ 3604(f) also clearly permits a claim based on discrimination more broadly, including a

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refusal to make reasonable accommodations. See id. (discussing a further basis for a

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discrimination claim based on a failure to accommodate). Therefore, as Plaintiff has

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adequately pled a claim under § 3604(f)(1)(A) for discrimination for failure to reasonably

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accommodate as defined in § 3604(f)(3)(B), Defendants’ Motion to Dismiss is DENIED

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as to this claim.

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iii.

Discrimination under § 3604(f)(2)(A)

Plaintiff also pleads a violation of § 3604(f)(2)(A), which provides against
discrimination “against any person in the terms, conditions, or privileges of sale or rental

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of a dwelling, or in the provision of services or facilities in connection with such

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dwelling, because of a handicap of . . . that person . . .” 42 U.S.C. § 3604(f)(2)(A).

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“Discrimination may be shown through disparate treatment, disparate impact, or refusal

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to make ‘reasonable accommodations in rules, policies, practices, or services, when such

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accommodations may be necessary to afford the handicapped individual an equal

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opportunity to use and enjoy a dwelling.” Southern California Housing Rights Ctr. v. Los

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Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1066 (C.D. Cal. 2005). To

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establish a case of disparate treatment based on handicap, “Plaintiff must show that: (1)

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[s]he has a handicap as defined in the statute; (2) [s]he was treated differently in the

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terms, conditions, or privileges of [her] rental relationship or in the provision of services

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or facilities to [her] as a tenant; and (3) the different treatment was, at least in part,

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because of [her] handicap.” Moye v. Conifer Group, Inc., 2016 WL 4010025, at *2 (D.

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Or. July 25, 2016). This discrimination need not be motivated by personal prejudice or

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animus to constitute a violation of the FHA. Id. (citing Johnson v. Macy, 145 F. Supp.3d

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907, 915 (C.D. Cal. 2015)).

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Taking all allegations in the Complaint as true and in the light most favorable to
Plaintiff, the Court finds that Plaintiff has sufficiently alleged a claim under
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§ 3604(f)(2)(A) at this early stage of the case. Plaintiff has pled that she has a handicap.

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Furthermore, Plaintiff has pled that she was treated differently in the terms, conditions,

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and privileges of her rental relationship—namely, that her roommate, who is not alleged

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to suffer from a handicap, was offered a lease renewal while Plaintiff was not. Finally,

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Plaintiff has plausibly alleged that the differential treatment was motivated at least in part

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by her disability, i.e. by the fact that she needed an ESA with her. Therefore, the Court

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DENIES Defendants’ Motion to Dismiss Plaintiff’s § 3604(f)(2)(A) claim.

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Because Plaintiff’s claims under the FHA survive Defendants’ Motion to Dismiss,
and in the interest of a full consideration of the parties’ filings, the Court will proceed to a
consideration of whether Plaintiff’s state claims survive a Rule 12(b)(6) motion.
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Disability Discrimination Under the California Fair
Employment and Housing Act

California Government Code § 12955 makes it unlawful for the owner of any

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housing accommodation to discriminate against any person on a disallowed basis,

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including disability. Cal. Gov’t Code § 12955 (“FEHA”). In general, “California

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explicitly prohibits its fair housing laws from being construed to provide fewer rights or

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remedies than the FHA and its implementing regulations.” Inland Mediation Bd. v. City

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of Pomona, 158 F. Supp. 2d 1120, 1150 (C.D. Cal. 2001). Therefore, to the extent that

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Plaintiff has stated a claim that is sufficient to withstand a Rule 12(b)(6) Motion under

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the FHA, she has also done so under FEHA. See Pack v. Fort Washington II, 689

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F.Supp.2d 1237, 1248 (E.D. Cal. 2009) (“California courts rely on federal housing

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discrimination law to interpret analogous provisions of FEHA . . .Therefore, violations of

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the Fair Housing Act will constitute violations of the parallel provisions of FEHA.”).

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Plaintiff raises her FEHA claim under §§ 12955(a), (c), (d), and (k).

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§§ 12955(a) and (d) are “general prohibitions against discrimination based on

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protected characteristics.” Id. “Discrimination” under the FHA includes a failure to make

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reasonable accommodations in rules, policies, practices, or services, when such

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accommodations “may be necessary to use and enjoy a dwelling.” 42 U.S.C.

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§ 3604(f)(3)(B); Cabrera v. Alvarez, 977 F. Supp. 2d 969, 975 (N.D. Cal. 2013). These

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general prohibitions against discrimination also track Plaintiff’s claim under

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§ 3604(f)(2)(A) of the FHA. Taking the allegations in the Complaint as true and in the

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light more favorable to Plaintiff as the nonmoving party, the Court therefore finds that

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Plaintiff has sufficiently alleged a §§ 12955(a) and (d) claim that is plausible on its face

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and survives a Rule 12(b)(6) motion to dismiss. Defendants’ Motion to Dismiss is

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therefore DENIED with regard to Plaintiff’s § 12955(a) and (d) claims.

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The substantive prohibitions of § 12955(c) are the same as those of 42 U.S.C.

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§ 3604(c). Therefore, insofar as Plaintiff has stated a claim that plausibly entitles her to

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relief under § 3604(c), she has also done so under § 12955(c). Inland, 158 F. Supp. 2d at

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1151 (C.D. Cal. 2001) (finding congruity between the two statutory provisions).

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Defendants’ Motion to Dismiss is therefore DENIED as to § 12955(c).

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Similarly, the substantive prohibitions of § 12955(k) closely track those of

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42 U.S.C. § 3604(f)(1)(A), which prohibits the owner of any housing accommodation

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from discriminating against, or making unavailable or otherwise denying a dwelling

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based on discrimination because of, among other reasons, disability. Mei Ling v. City of

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Los Angeles, 2012 WL 12918729, at *5 (C.D. Cal. Apr. 10, 2012). Because the Court has

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denied Defendants’ Motion to Dismiss with regard to § 3604(f)(1)(A), the Motion to

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Dismiss is similarly DENIED with regard to § 12955(k).

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c.

Disability Discrimination under the California Unruh Civil
Rights Act

California Civil Code § 51 (the “Unruh Act”) states, in pertinent part, that all

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persons within the state of California, regardless of disability (among other grounds) are

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entitled to full and equal accommodations, advantages, facilities, privileges or services in

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all business establishments of any kind. Cal. Civ. Code § 51. To prevail on a claim under

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the Unruh Civil Rights Act, a plaintiff must establish that: (1) she was denied full and

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equal accommodations, advantages, facilities, privileges, or services in a business

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establishment; (2) her disability was a motivating factor for this denial; (3) defendants

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denied plaintiff the full and equal accommodations, advantages, privileges, facilities, or

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services; and (4) plaintiff suffered injury, damage, loss, or harm as a result of defendant’s

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wrongful conduct. Wilkin-Jones v. Cty. of Alameda, 859 F.Supp.2d 1039, 1048 (N.D. Cal.

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2012). “Business” is defined broadly, and thus certainly applies to Defendants, as

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landlords. Id. at 1049. Where a plaintiff makes an Unruh Act claim in conjunction with

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an ADA claim, no intentional discrimination need be shown. Id. at 1051. However, where

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a plaintiff pleads an Unruh Act claim separate from an ADA claim, as here, she must

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allege intentional discrimination. Id. (citing Earll v. eBay, Inc., No. 5:11-cv-00262-JF

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(HRL), 2011 WL 3955485, at *3 (N.D.Cal. Sept. 7, 2011)).

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Assuming that Plaintiff has sufficiently alleged that she was denied full and equal

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accommodation, her claim under the Unruh Act fails because the Amended Complaint

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does not allege facts showing that Defendants evinced an intent to discriminate. Cf.

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Lentini v. California Ctr. for the Arts, Escondido, 370 F.3d 837, 850 (9th Cir. 2004)

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(describing active concealment of discriminatory acts through lying as intentional

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discrimination under the Unruh Act). While Plaintiff’s disability and the acquisition of

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her ESA which followed from the disability might be motivating factors in Defendants’

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behavior, this is not the same thing as showing that Defendants acted with the intent to

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discriminate against Plaintiff. Therefore, Defendants’ Motion to Dismiss is GRANTED

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as to Plaintiff’s Unruh Act Claim. Plaintiff is GRANTED leave to amend.

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d.

Negligence

To prevail on a negligence claim, a plaintiff must show that the defendant owed
her a duty, that the defendant breached that duty, and that the breach was a proximate or
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legal cause of plaintiff’s injuries. Merrill v. Navegar, Inc., 26 Cal.4th 465, 477 (2001).

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Plaintiff claims that Defendants owed Plaintiff a duty to operate the property in a manner

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free from unlawful disability discrimination, and that Defendants violated that duty by

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negligently failing to properly hire and train employees and themselves. ECF No. 9 at 9.

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However, the facts alleged in the Complaint do not touch on the subject of training,

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failure to train, or hiring decisions which may reflect negligence on the part of

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Defendants. This leaves Plaintiff with a recitation of the bare legal elements of the claim.

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“[T]he tenet that a court must accept a

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complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s

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elements, supported by mere conclusory statements.”) As such, Plaintiff has failed to

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state a claim for negligence upon which relief may be granted, and Defendants’ Motion

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to Dismiss is GRANTED. Plaintiff is GRANTED leave to amend.

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e.

Unfair Business Practices

Finally, Plaintiff asserts a claim under California Business and Professions Code

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§ 17200 et seq. (“UCL”), alleging that Defendants “have engaged in a pattern or practice

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of unlawful discrimination based on disability in the operation of the Subject

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Property . . .” ECF No. 9 at 10. Unfair competition under the UCL is broadly defined to

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include “any unlawful, unfair or fraudulent business practice.” Korea Supply Co. v.

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Lockheed Martin Corp., 29 Cal.4th 1134, 1143 (2003). “Violations of other laws, when

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committed pursuant to business activity, become independently actionable under the

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UCL and subject to its remedies.” People ex rel. Kennedy v. Beaumont Investment, Ltd.,

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111 Cal.App.4th 102, 120 (2003). Remedies under the UCL are cumulative. Id.

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Therefore, insofar as Plaintiff has sufficiently pled claims under the FHA and FEHA, her

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UCL claim also survives a Rule 12(b)(6) motion. Defendants’ Motion to Dismiss as to

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Plaintiff’s UCL claim is DENIED.

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Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(1)

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B.

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Defendants argue that the Court should dismiss all of Plaintiff’s federal claims and

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therefore all state law claims whose jurisdiction is supplemental to the federal claims.

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Because one of Plaintiff’s federal law claims survives, and because the Court grants

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Plaintiff leave to amend, Defendants’ Motion to Dismiss pursuant to Rule 12(b)(1),

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subject matter jurisdiction, is DENIED.

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CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

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Defendants’ Motion to Dismiss. Plaintiff is GRANTED leave to file a Second Amended

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Complaint. Any Second Amended Complaint should be filed within forty-five (45) days

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of the issuance of this Order.

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IT IS SO ORDERED.
Dated: January 11, 2022

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