Hicks et al v. Makaha Valley Plantation Homeowners Assn. et al
Filing
52
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT (ECF No. 42 ). Signed by JUDGE HELEN GILLMOR on 6/30/2015. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on 7/1/2015 the date of this docket entry Modified service date on 6/30/2015 (ecs, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHARLES A. HICKS; DENEEN HICKS; )
STACY HICKS,
)
)
)
Plaintiffs,
)
)
)
vs.
)
)
MAKAHA VALLEY PLANTATION
)
HOMEOWNERS ASSOCIATION; HAWAII )
)
FIRST, INC.,
)
)
Defendants.
CIV. NO. 14-00254 HG-BMK
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT
(ECF No. 42)
Plaintiffs Charles A. Hicks, Deneen Hicks, and Stacy Hicks,
proceeding pro se, complain that Defendants Makaha Valley
Plantation Homeowners Association and Hawaii First, Inc.
discriminated against them.
They claim discrimination based on
their race, African-American, and Mr. Hicks’ disability, in
violation of the Fair Housing Act, 42 U.S.C. §§ 3604(b), (f),
3617, Hawaii Revised Statutes, Chapter 368 (establishing the
Hawaii Civil Rights Commission), and the Hawaii Discrimination in
Real Property Transactions Act, Hawaii Revised Statutes, Chapter
515-3(2) and (9) and 515-16(6).
Defendants are the condominium
association and the management company for Makaha Valley
1
Plantation condominiums where Plaintiffs owned a condominium
unit.
Defendants move to dismiss for failure to state a claim.
Defendants’ Motion to Dismiss Amended Complaint (ECF No. 42) is
DENIED.
PROCEDURAL HISTORY
On May 29, 2014, Plaintiffs Charles A. Hicks, his wife,
Deneen Hicks, and their daughter, Stacy Hicks, proceeding pro se,
filed their Complaint. (ECF No. 1.)
Prior to filing their May 29, 2014 Complaint in this Court,
Plaintiffs filed complaints with the U.S. Department of Housing
and Urban Development (“HUD”) and the Hawaii Civil Rights
Commission (“HCRC”). (Def. Motion at Exhibits B and C, ECF No.
28-4 and 28-5).1
HUD referred the matter to the HCRC for
1
Pursuant to Fed. R. Evid. 201(b), the Court takes judicial
notice of the following documents attached to Defendants’ prior
Motion to Dismiss as public records whose accuracy is not in
dispute: (1) Letter from U.S. Department of Housing and Urban
Development to Hawaii First, Inc., dated July 9, 2012,
transmitting Plaintiffs’ housing discrimination complaint, dated
June 28, 2012, attached as Exhibit B (ECF No. 28-4); (2) Letter
from the Hawaii Civil Rights Commission to Makaha Valley
Plantation Homeowners Association, dated October 24, 2012,
transmitting Plaintiffs’ discrimination Complaint, dated October
17, 2012, attached as Exhibit C (ECF No. 28-5); and (3) Letter,
dated February 24, 2014, from Hawaii Civil Rights Commission to
Plaintiffs regarding Notice of Dismissal and Right to Sue,
attached as Exhibit D. (ECF No. 28-6.) See Anderson v. Holder,
673 F.3d 1089, 1094 n. 1 (9th Cir. 2012) (“[A court] may take
judicial notice of records and reports of administrative
bodies.”); Gallo v. Board of Regents of University of California,
916 F.Supp. 1005, 1007 (S.D. Cal. 1995) (“The Court may consider
both the EEOC right to sue letter and the EEOC charge, either as
2
investigation.
(Id.) On February 12, 2014, HCRC issued a “Notice
of Dismissal and Right to Sue” letter.
D, ECF No. 28-6.)
(Def. Opposition at Exh.
The HCRC dismissed the case on the basis of no
cause. (Id.)
Plaintiffs’ HUD/HCRC complaints contain the same allegations
as made by Plaintiffs in this action.
On November 28, 2014 Defendants Makaha Valley Plantation
Homeowners Association and Hawaii First, Inc. filed their Motion
for Dismissal of All Claims Against Defendants Makaha Valley
Plantation Homeowners Association and Hawaii First Inc. (ECF No.
28.)
On December 17, 2014, Plaintiffs submitted a letter to the
Court regarding “Opposition to Motion for Dismissal”.
In the
letter, Plaintiff Deneen Hicks stated that she intended “to
submit an answer to the court (a reply) on or before Jan. 8,
2015.”
(ECF No. 33.)
On December 18, 2014, the Court entered a Minute Order
giving Plaintiffs additional time, until January 8, 2015, to file
an Opposition and extending Defendants time to file a reply until
January 19, 2015. (ECF No. 32.)
On January 8, 2015, Plaintiffs filed an Opposition to
referenced in the complaint or as public records subject to
judicial notice.”).
3
Defendants Makaha Valley Plantation Homeowners Association and
Hawaii First, Inc.’s Motion for Dismissal of All Claims Against
Defendants Makaha Valley Plantation Homeowners Association and
Hawaii First, Inc. (ECF No. 34.)
On January 19, 2015, Defendants filed their reply. (ECF No.
36.)
On January 26, 2015, the Court issued an Order Granting
Defendants’ Motion for Dismissal of All Claims Against Defendants
Makaha Valley Plantation Homeowners Association and Hawaii First,
Inc. With Leave to Amend.
(ECF No. 38.)
On March 9, 2015, Plaintiffs filed an Amended Complaint.
(ECF No. 40.)
On March 20, 2015, Defendants Makaha Valley Plantation
Homeowners Association and Hawaii First, Inc. filed a Motion to
Dismiss Amended Complaint. (ECF No. 42.)
On March 24, 2015, the Court issued a briefing schedule
requiring Plaintiffs to file an Opposition by April 13, 2015 and
Defendants to file a Reply by April 28, 2015. (ECF No. 43.)
On April 13, 2015, Plaintiffs filed a request for extension
of time to file an Opposition to Defendants’ Motion to Dismiss
their Amended Complaint. (ECF No. 49.)
On April 14, 2015, the Court issued a Minute Order granting
Plaintiffs’ request for extension of time and giving Plaintiffs
until April 28, 2015 to file an Opposition to Defendants’ Motion
4
to Dismiss their Amended Complaint. (ECF No. 50.) The Minute
Order also extended Defendants time to file a reply to June 15,
2015.
Plaintiffs have not filed an Opposition and Defendants have
not filed a Reply.
Pursuant to Local Rule 7.2(d), the Court has elected to
decide this matter without a hearing.
BACKGROUND
Plaintiffs Charles A. Hicks and Deneen Hicks are a married
couple and plaintiff Stacey Hicks is their daughter.
¶ 3, ECF No. 40.)
(Am. Compl.
Mr. and Mrs. Hicks have two other adult
children who are not named as plaintiffs in this lawsuit.
(Id.)
According to the Amended Complaint, Mr. and Mrs. Hicks, and their
children, are African-American. (Id. at p. 17.)
Plaintiffs allege that on November 10, 2008, Plaintiff
Charles Hicks purchased a condominium at Makaha Valley Plantation
located in Waianae, Hawaii. (Id. at p. 6.) On November 10, 2008,
the Hicks family moved into their unit, Unit 37A, at Makaha
Valley Plantation. (Id. at p. 7.)
Plaintiffs lived at Makaha
Valley Plantation at least until February 2, 2012.
15.)2
(Id. at p.
Plaintiffs now reside in Georgia. (ECF No. 15.)3
2
Based on the allegations in the Amended Complaint, it is
unclear when Plaintiffs vacated the unit. Plaintiffs allege that
they “ultimately had to leave the island, on February 2, 2012.”
(Id. at p. 15.) In another part of the Amended Complaint,
5
Defendant Makaha Valley Plantation Homeowners Association is
the homeowners’ association for the condominium.
(Id. at p. 5.)
Defendant Hawaii First, Inc. has been the management company for
Makaha Valley Plantation Homeowners Association since May 2,
2010.
(Id. at p. 5.)
Plaintiffs allege that while residing at their Makaha Valley
Plantation condominium unit “they were subject to discriminatory
terms and conditions of tenancy based upon their race, color and
disability.”
(Id. at p. 5; see id. at 15.)
Plaintiffs allege
that they were harassed, ignored, and treated differently than
other non-black residents.4
Plaintiffs also allege that Mr. Charles Hicks is a disabled
veteran with post traumatic stress disorder (PTSD) who is
entitled to a reasonable accommodation of a quiet environment.
Plaintiffs allege that they requested that Defendant Makaha
Valley Plantation Homeowners Association notify the owner of the
however, Plaintiffs allege that a hole existed in their living
room “to the end of plaintiff’s tenancy on March 3, 2014.” (Id.
at p. 8.) It appears that Plaintiffs left Oahu and resided in
California from February 2, 2012 to March 4, 2013 and then
returned to Oahu until March 3, 2014. (Id. at p. 9.)
3
Plaintiffs filed a request to transfer this case to
Georgia. (ECF No. 15.) The Court denied Plaintiffs’ motion to
transfer venue because all Defendants reside in Hawaii and all
actions giving rise to the claims in this action occurred in
Hawaii. (ECF No. 27.)
4
In their Amended Complaint, Plaintiffs use the terms
“African-American” and “black” to describe themselves and the
term “non-black” to describe other residents.
6
unit above Plaintiffs regarding excessive noise to assist with
his reasonable accommodation request, but that Makaha Valley
Plantation Homeowners Association failed to notify the unit owner
as required by the Covenants, Conditions and Restrictions of the
Makaha Valley Plantation condominium project (CC&Rs).
In support of these claims, Plaintiffs’ Amended Complaint
describes a number of incidents that allegedly occurred while
Plaintiffs resided at their Makaha Valley Plantation condominium
unit.
Plaintiffs allege that these incidents violate both
federal and state anti-racial and disability discrimination laws.
Noise complaints about Plaintiffs
Plaintiffs allege that on their first day of tenancy in Unit
37A, November 10, 2008, security came to the unit and stated that
they received an excessive noise complaint regarding Plaintiffs’
unit. (Id. at p. 7.)
Plaintiffs contend that they were not
making excessive noise.
(Id.)
Plaintiffs allege that Defendants
continued to wrongly accuse them of noise violations. (Id.)
2008 leak from Unit 37B above Plaintiffs’ unit
According to Plaintiffs, in December 2008, a big rainstorm
caused a leak from Unit 37B’s upstairs lanai into their unit,
Unit 37A. (Id. at p. 8.)
room ceiling. (Id.)
The leak damaged Plaintiffs’ living
Plaintiffs allege that Defendants are
responsible for maintenance and repairs of the exterior of the
condominium project and that the damage to the inside of Unit 37A
7
was caused by inadequate and poor maintenance of the exterior
which, in turn, affected the inside of Plaintiff’s unit. (Id. at
p. 8.)
Plaintiffs allege that Defendants stopped the leak, but
only after it had damaged their living room ceiling.
(Id.)
Citations about bamboo divider, water hose, white netting on
lanai
Defendants cited Plaintiffs for having a bamboo divider on
their lanai which Plaintiffs erected for privacy.
(Id. at p. 8).
Plaintiffs were particularly concerned about privacy since they
were exercising their legal right to grow medical marijuana in
their home.
(Id.)
The citation from Defendants stated that the
bamboo divider was not appropriate lanai furniture.
(Id.)
Plaintiffs allege that they received inconsistent messages about
the bamboo divider and that the “defendants Board of Directors,
Head of Security” told Plaintiff Deneen Hicks that the dividers
were appropriate.
(Id.)
After receiving the fine, Plaintiffs
removed the bamboo divider.
(Id. at p. 9.)
Plaintiffs were also cited for other objects on their lanai,
including a water hose, cooler, and white netting. (Id. at p. 9.)
Plaintiffs allege that they noticed that, unlike them, other
tenants were allowed to maintain restricted items on their
lanais. (Id.)
Additional leaks from Unit 37B
Plaintiffs allege that in August 2009, a rental tenant
8
living in the unit above theirs, Unit 37B, rigged the toilet to
intentionally overflow when moving out.
(Id. at p. 9.)
The
overflow resulted in severe water damage to Plaintiffs’ bathroom
ceiling. (Id.)
Plaintiffs allege that Defendants were
responsible for ensuring that the leak was fixed and their
ceiling was properly repaired once Plaintiffs informed them of
the leak.
(Id.)
Plaintiffs allege that Defendants did not do a
leak investigation until April 2013 and the leak was not properly
fixed by the current owner of Unit 37A until the end of June
2013. (Id.)
According to Plaintiffs, they were in California from
February 2, 2012 to March 4, 2013. (Id.)
When Plaintiffs
returned home, they notified Defendants that there was still
water leaking into their unit.
(Id. at p. 9-10.)
Plaintiffs do
not allege that Defendants knew that the water leak was still an
issue prior to this time.
(Id. at p. 10.)
In response to
Plaintiffs notification, the on-site manager gave Plaintiff
Deneen Hicks the information for the new owner of Unit 37B. (Id.)
Plaintiffs contacted the new owners and the leak was repaired.
(Id.)
Plaintiffs acknowledge that Defendants provided them with
the contact information for the owners of Unit 37B both in August
2009 and in March 2013, but allege that Defendants would not give
them contact information “in between that time.” (Id. at p. 10.)
9
Non-renewal of Plaintiffs’ insurance
Plaintiffs allege that because of the continued water leaks,
they had to obtain high risk insurance at a premium cost to
Plaintiffs. (Id. at p. 10.)
Not allowing children to play on grass
In November 2010, Plaintiffs Deneen and Charles Hicks’ two
year old granddaughter was visiting.
(Id. at p. 10.)
Plaintiff
Deneen Hicks, one of her daughters, and her granddaughter were
out front of Plaintiffs’ unit. Plaintiff Deneen Hicks was talking
to her neighbor from Unit 40A.
(Id.)
Plaintiff Deneen Hicks,
one of her daughters, and her granddaughter were all outside
playing together on the grass.
(Id.)
Plaintiffs allege that
“defendants security came over to the plaintiff and her neighbor,
and told them the babies (toddlers) were not allowed to play on
the grass.”
(Id. at p. 11.)
The security guard told Plaintiff
and the neighbor that they needed to take the children to play by
the BBQ pits or the basketball court. (Id.)
Inspection of kiddie pool
Plaintiffs also express concern about another incident which
took place while their granddaughter was visiting. (Id. at p.
11.)
Plaintiffs Deneen and Charles Hicks allege that they were
at the condominium project’s kiddie pool with their granddaughter
when “the security guard employed by defendants” inspected the
kiddie pool at least three times.
10
(Id.)
This made Deneen and
Charles Hicks feel uncomfortable, and they left.
Medical marijuana
Plaintiff Deneen Hicks provided documentation to the on-site
management company regarding Plaintiff Charles Hicks’ right to
grow medical marijuana at Plaintiffs’ residence. (Id. at p. 11.)
The on-site management did not object to their growing of medical
marijuana.
Later, another member of the on-site management team
asked Plaintiff Charles Hicks to come to the management office
and lectured him about growing the medical marijuana only for
personal use and not to give or sell to other people on the
property.
(Id. at p. 12.)
Plaintiffs suggest that management
lectured Mr. Hicks because of his race.
Washing car
Plaintiffs allege that Mr. Hicks was washing his car in the
designated car washing area at the Makaha Valley Plantation
condominiums when a security guard approached him and asked him
if he lived there or what unit he was visiting and if he had
permission to use the car washing facilities.
(Id. at p. 12.)
Plaintiffs allege that their car, like all residents of Makaha
Valley Plantation, has a clearly visible parking sticker
indicating that the car’s owner is a resident of Makaha Valley
Plantation. (Id.)
Plaintiffs’ Amended Complaint does not state
what Mr. Hicks said in response to the security guard.
Plaintiffs allege that they “have observed other residents, non11
black, to wash their cars similarly displaying a resident
sticker, and without any questioning or interference by the
defendants security guards.”
(Id.)
Mowing grass
Plaintiffs allege that Defendants’ onsite gardener operated
a gasoline-powered industrial type lawnmower on a small patch of
grass outside of Plaintiffs’ unit for more than twenty minutes.
(Id. at p. 13.)
Plaintiffs allege that this was longer than
necessary and meant to disturb and annoy the Plaintiffs. (Id.)
Plaintiffs further allege that Defendants did so despite the fact
that they were aware that Plaintiff Charles Hicks’ disability
made him extremely sensitive to noise.
(Id.)
Failure to trim trees
Plaintiffs allege that Defendants contracted to have all of
the trees on the Makaha Valley plantation property landscaped and
trimmed, but did not trim the tree which hung above Mrs. Hicks’
assigned parking space.
(Id. at p. 13.)
Mrs. Hicks complained
to on-site management, but they did not take any action.
(Id.)
Racially derogatory epithets by resident in Unit 37B
Plaintiffs allege that on November 11, 2011, the resident in
the unit above Plaintiffs, Unit 37B, “engaged the plaintiffs in
an unprovoked stream of racially-derogatory epithets, including a
threat by the male in unit 37B, that he would ‘beat [CHARLES] to
death’, and intermittently stomping in the floor which made it
12
unbearable in the plaintiffs unit below.”
was not a face to face confrontation.
(Id. at p. 13.)
This
Rather, Plaintiffs allege
that the residents in Unit 37B were engaging in this behavior
from the inside of their unit.
(Id.)
According to the Amended
Complaint, Mr. Hicks instructed Mrs. Hicks to call Defendants’
security as well as the police.
to the unit and made a report.
arrived.
(Id.)
(Id.)
(Id.)
The security guard came
Soon after, the police
Plaintiffs asked the police to make a report
because this was not the first time such an incident had
occurred. (Id. at p. 14.)
Plaintiffs have had other negative
encounters with the residents above them. (Id.)
Plaintiffs decided to pursue a restraining order against the
resident above them.
Plaintiffs obtained a copy of the police
report from the November 11, 2011 incident, but the report had
the names of the residents in Unit 37B blacked out.
14.)
(Id. at p.
The police informed Mrs. Hicks that it was their policy not
to release un-redacted reports to private citizens.
(Id.)
Plaintiffs dispute the accuracy of the police report.
(Id.)
The police wrote the report as if Plaintiffs were the cause of
the altercation and that the residents in Unit 37B were the
victims.
(Id.)
Plaintiffs contend that the contrary is true.
(Id.)
Because she could not get their names from the police, Mrs.
Hicks asked the on-site managers for the names of either the
13
tenants or owners of Unit 37B (if the tenants were not the
owners).
Plaintiffs allege that they have a right to this
information under the CC&Rs and House Rules for Makaha Valley
Plantation.
(Id. at p. 15.)
An employee in the management
office named Nancy told Mrs. Hicks that she could not have the
contact information for the residents of Unit 37B, but that she
would take Mrs. Hicks’ contact information and have the residents
of Unit 37B call her.
(Id.)
Plaintiffs were never contacted.
Plaintiffs allege that they asked the management office
(Id.)
for contact information for the tenants or owners of Unit 37B at
least three times, but were not given it.
(Id.)5
Parking space for Plaintiff Stacey Hicks
In November 2011, Stacey Hicks started living with her
parents, Plaintiffs Deneen and Charles Hicks to attend school and
to work at the Makaha Valley Resort and Golf Club. (Id. at p.
15.)
The on-site management told Stacey Hicks that she was not
allowed to park in a guest spot, but that she needed to rent a
space from a tenant on the property that had an extra space. (Id.
at p. 15.)
Nancy in the on-site management office helped
Plaintiff find a tenant who had a parking space for rent.
(Id.)
Stacey Hicks rented the parking space for a month, but the tenant
had to terminate the contract to rent the parking space because
5
During the same time period, Plaintiffs allege that they
had problems getting Defendants to give them the owner of Unit
37B’s contact information to address the water leak.
14
someone was moving into the unit.
(Id. at p. 16.)
Stacey Hicks
then contacted another resident about renting a parking space.
(Id.)
When that resident said that Stacey could rent his parking
space, Defendants required Stacey to obtain a consent letter from
both the leaseholder and the unit owner.
According to
Plaintiffs, this requirement is in direct contradiction of the
CC&Rs and the House Rules.
documentation.
Plaintiffs had not obtained this
According to Plaintiffs, the security guard did
not allow Stacey’s vehicle on the property because she did not
have a parking spot.
After Stacey got off work around 11:00
p.m., she tried to come through the gate and the security guard
told her that management had turned off her parking pass because
the owners of the parking space that Stacey was trying to rent
had not confirmed that she could rent it.
(Id. at p. 16.)
Stacey called her parents, and Mr. and Mrs. Hicks went to the
security gate.
(Id. at p. 17.)
According to Plaintiffs, when Mr. Hicks tried to talk to the
supervisor, the supervisor kept backing up into the guard gate
shack and telling Mr. Hicks not to come near him.
17.)
(Id. at p.
The next day, Mr. Hicks received a citation for yelling at
the security guard. (Id.)
Plaintiffs acknowledge that they were
irritated by the security guard’s attitude, but dispute that
there was any basis for the citation.
15
(Id.)
Plaintiffs allege that they were treated differently than
other non-black residents.
They allege that “other residents who
were non-black were freely allowed to break other provisions of
the CC&R’s parking rules.”
(Id.)
As an example, Plaintiffs
allege that a truck owned by a non-black resident was allowed to
remain with a flattened tire for over two weeks in violation of
the CC&R’s, but was not ticketed by on-site management.
(Id.)
Plaintiffs similarly allege that a car with a bad oil leak
was allowed to remain on the property without receiving a
citation.
(Id.)
Plaintiffs allege that both vehicles were in
the immediate vicinity of their unit.
(Id.)
Plaintiff Charles Hicks’ alleged disability
The Amended Complaint alleges that Mr. Hicks is a
“permanently disabled veteran” who suffers from post traumatic
stress discover (PTSD) (Id. at p. 3-4).
According to the Amended
Complaint, Mr. Hicks’ PTSD is a disability that makes him
particularly sensitive to noise.
(Id. at p. 18.)
Mr. Hicks
alleges that he needed the reasonable accommodation of a quiet
environment.
(Id.)
Mr. Hicks alleges that Mrs. Hicks requested
this reasonable accommodation on his behalf but that Defendants
denied him this reasonable accommodation.
(Id.)
According to the Amended Complaint, in October and November
2011, Mrs. Hicks made a number of complaints to Defendant
Association of Apartment Owners of Makaha Valley Plantation about
16
the intentional noise being created by the tenant above
Plaintiffs’ unit. (Id. at p. 17.)
Plaintiffs believed that the
tenants were intentionally creating noise to harass Plaintiffs.
(Id.)
Plaintiffs allege that the CC&Rs state that complaints
involving a rental tenant should be referred to the unit’s owner.
(Id.)
Plaintiffs allege that Mrs. Hicks asked Defendant
Association of Apartment Owners of Makaha Valley Plantation to
report the noise disturbances being caused by the tenant to the
unit owner, but that the association never took any action to
contact the owner regarding Plaintiffs’ complaints.
According to
the Amended Complaint, Mrs. Hicks requested that the association
take the appropriate action to remedy the noise disturbances as a
reasonable accommodation for Mr. Hicks’ PTSD. (Id. at p. 18.)
Despite her requests, Plaintiffs allege that the association
failed to comply with the reasonable accommodation request
because it failed to notify the unit owner as required by the
CC&Rs.
STANDARD OF REVIEW
Motion to Dismiss
The Court must dismiss a complaint as a matter of law
pursuant to Federal Rule of Civil Procedure 12(b)(6) where it
fails “to state a claim upon which relief can be granted.”
Rule
(8)(a)(2) of the Federal Rules of Civil Procedure requires “a
17
short and plain statement of the claim showing that the pleader
is entitled to relief.”
When considering a Rule 12(b)(6) motion
to dismiss, the Court must presume all allegations of material
fact to be true and draw all reasonable inferences in favor of
the non-moving party.
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th
Cir. 1998).
Conclusory allegations of law and unwarranted inferences are
Id. at 699.
insufficient to defeat a motion to dismiss.
The
Court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.
550 U.S. 544 (2007).
The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.
129 S.Ct. 1937 (2009).
The Court stated
that “the pleading standard Rule 8 announces does not require
18
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me-accusation.”
at 1949 (citing Twombly, 550 U.S. at 555).
Id.
To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.
Id. (quoting Twombly, 550 U.S. at 570).
A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556).
Id. (citing
The plausibility standard is not akin
to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Twombly, 550 U.S. at 556).
Id. (quoting
Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S.
at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex. rel Hernandez v. Cnty. of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
19
omitted).
Pro Se Plaintiff
The Court construes the Complaint liberally because
Plaintiffs are proceeding pro se.
Erickson v. Pardus, 551 U.S.
89, 94 (2007).
ANALYSIS
Defendants contend that Plaintiffs’ Amended Complaint fails
to state a claim for race or disability discrimination.
Plaintiffs’ Amended Complaint references the federal Fair Housing
Act, 42 U.S.C. § 3601 et seq. and Hawaii’s state law counterpart,
the Hawaii Discrimination in Real Property Transactions Act,
Hawaii Revised Statutes, Chapter 515 (“HDRPTA”).6
Fair Housing Act
The Fair Housing Act, Section 3604 of Title 42, prohibits
discrimination “against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith, because of
6
Plaintiffs’ Amended Complaint also references Hawaii
Revised Statutes, Chapter 368. Chapter 368 of the Hawaii Revised
Statutes establishes the Hawaii Civil Rights Commission and
pertains to procedures for the commission to review alleged
unlawful discriminatory practices. Chapter 368 “does not provide
an individual cause of action in state or federal court.” Sherez
v. State of Hawai'i Dept. of Educ., 396 F.Supp.2d 1138, 1146 (D.
Haw. 2005).
20
race, color, religion, sex, familial status, or national origin.”
42 U.S.C. § 3604(b).
The Fair Housing Act also protects against a hostile housing
environment as a result of threats and intimidation.
Section
3617 provides:
It shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed, or
on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted
or protected by section 3603, 3604, 3605, or 3606 of this
title.
42 U.S.C. § 3617.
Finally, the Fair Housing Act prohibits discrimination based
on disability.
Under the Fair Housing Act it is unlawful to
“discriminate against any person ... in the provision of services
or facilities in connection with [his] dwelling, because of a
handicap” of that person or any person associated with that
person. 42 U.S.C. § 3604(f)(2).
Hawaii Discrimination in Real Property Transactions Act
The Hawaii Discrimination in Real Property Transactions Act
(“HDRPTA”), Hawaii Revised Statutes, Section 515-16 similarly
prohibits discrimination based on race or disability.
HDRPTA,
Section 515-16(6) states that it is a discriminatory practice:
To threaten, intimidate or interfere with persons in
their enjoyment of a housing accommodation because of the
race, sex, including gender identity or expression,
sexual orientation, color, religion, marital status,
familial status, ancestry, disability, age, or human
21
immunodeficiency virus infection of the persons, or of
visitors or associates of the persons.
Haw. Rev. Stat. § 515-16(6).
Section 515-3(9) of the HDRPTA makes it a discriminatory
practice for owners or any other person engaging in a real estate
transaction “[t]o refuse to make reasonable accommodations in
rules, policies, practices, or services, when the accommodations
may be necessary to afford a person with a disability equal
opportunity to use and enjoy a housing accommodation”.
Haw. Rev.
Stat. § 515-3(9).
A.
Race Discrimination Claims
To assert a Fair Housing Act claim under Section 3617,
Plaintiffs must allege that defendant “threatened, intimidated or
interfered” with their enjoyment of their dwelling because of
their race. 42 U.S.C. § 3617; see Brown v. City of Tucson, 336
F.3d 1181, 1191 (9th Cir. 2003) (discussing requirements for
Section 3617 interference claim); Halprin v. Prairie Single
Family Homes of Dearborn Park Ass'n, 388 F.3d 327 (7th Cir. 2004)
(homeowners’ allegations that their neighbors harassed them
because of religion and that such harassment was backed by
homeowners’ association to which they belonged were sufficient to
state claim under Fair Housing Act (FHA) provision making it
unlawful to coerce, intimidate, threaten or interfere with any
person on account of the exercise any right granted by the Act
22
and regulation prohibiting threatening, intimidating or
interfering with persons in their enjoyment of a dwelling because
of religion).
Under Section 3617, “the language ‘interfere with’
has been broadly applied to reach all practices which have the
effect of interfering with the exercise of rights' under the
federal fair housing laws.”
United States v. City of Hayward, 36
F.3d 832, 835 (9th Cir. 1994) (quoting Michigan Protection &
Advocacy Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)
(citations and quotations omitted)); see also Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972) (“The
language of the [FHA] is broad and inclusive.”); Nevels v.
Western World Ins. Co., Inc., 359 F.Supp.2d 1110, 1129 (W.D.
Wash. 2004) (“[I]nterference ... has been broadly applied to
reach all practices which have the effect of interfering with the
exercise of rights under the federal fair housing laws.”)
(internal quotation marks omitted).
Plaintiffs may also state a claim under Section 3604(b) by
alleging that (1) they have rights protected under the Fair
Housing Act; (2) defendants have engaged in discriminatory
conduct; and (3) as a result of defendants’ discriminatory
conduct, plaintiffs have suffered a distinct and palpable injury.
See Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999); The
Committee Concerning Community Improvement v. City of Modesto,
583 F.3d 690, 713 (9th Cir. 2009) (concluding that 42 U.S.C. §
23
3604(b) of the FHA reaches post-acquisition discrimination).
The same type of allegations state a claim under the Hawaii
Discrimination in Real Property Transactions Act, Haw. Rev. Stat.
§ 515-16(6).
See Mabson v. Ass'n of Apartment Owners of Maui
Kamaole, No. 06-00235 DAE LEK, 2007 WL 2363349, at *10 (D. Haw.
Aug. 13, 2007).
The Court categorizes Plaintiffs’ allegations based on race
discrimination and addresses them in turn.
1.
Alleged threats, intimidation, and interference by onsite management
Plaintiffs allege that Defendants discriminated against them
by engaging in unfair and harassing conduct.
In particular,
Plaintiffs complain of: unwarranted noise complaints written up
by on-site security against them; failure of the association and
on-site management to timely provide Plaintiffs with contact
information for tenants and/or owners of Unit 37B to address
water leaks; citations by on-site management for placing certain
objects on their lanai; a security guard preventing their
children from playing in the grass; a security guard’s intrusive
inspection of the kiddie pool while Mrs. Hicks and her
granddaughter were using it; questioning by a security guard
while Mr. Hicks was washing Mrs. Hicks’ car; lecturing by a
management company employee about Mr. Hicks’ growing of medical
24
marijuana; the on-site gardener’s prolonged and unnecessary
mowing of grass by Plaintiffs’ unit; the on-site management’s
failure to trim a tree above Plaintiffs’ assigned parking space
after Plaintiffs complained; and the on-site management’s
disparate enforcement of the condominium’s parking rules.
In their Amended Complaint, Plaintiffs generally allege that
such actions constitute “discriminatory terms and conditions of
tenancy based upon their race, color and disability, by the
defendants.”
(Am. Compl. at p. 5.)
In some of these instances,
Plaintiffs also expressly allege that Defendants treated them
differently than other non-black residents or otherwise suggest
that Defendants were interfering with Plaintiffs’ enjoyment of
their unit because of their race.
The majority of Plaintiffs’
allegations pertain to actions by on-site management or security.
Certain allegations also refer to “Defendants” collectively and
do not specify who engaged in the allegedly discriminatory
conduct.
That said, Plaintiffs’ Amended Complaint contains
significantly more detail than their original Complaint.
Defendant Hawaii First, Inc., as the management company,
may be liable for the allegedly discriminatory conduct by on-site
management employees.7
See Meyer v. Holley, 537 U.S. 280 (2003)
7
According to the Amended Complaint, Hawaii First, Inc.
has been the management company for Makaha Valley Plantation
condominiums since May 1, 2010. The prior management company was
Hawaiiana Management Co., which served from April 25, 1998 to May
1, 2010, and is not named as a defendant. (Am. Compl. at p. 5.)
25
(Fair Housing Act imposes liability without fault upon employer
in accordance with traditional agency principles, and thus is
imposes vicarious liability upon corporation for unlawful acts of
its employees).
Defendant Makaha Valley Plantation Association,
as the condominium association and principle or employer of the
management company, may also be vicariously liable for the
on-site management company's allegedly discriminatory conduct as
well as for its own conduct.
See Holley v. Crank, 400 F.3d 667,
670 (9th Cir. 2005) (recognizing applicability of vicarious
liability principles to Fair Housing Act claims); Alexander v.
Riga, 208 F.3d 419, 432-433 (3d Cir. 2000)(“Mr. Riga could not
insulate himself from liability for discrimination in regard to
an apartment building owned jointly by him and his wife and
managed for their joint benefit, merely by relinquishing the
responsibility for preventing discrimination to Mrs. Riga, his
managerial agent.”).
Although it is unclear whether the on-site
security guards were employed by the management company, the
association, or an entirely different entity, both Defendants may
also be vicariously liable for the allegedly discriminatory
conduct of the on-site security guards.
Mindful of the more liberal standard for pro se litigants,
the Court finds that Plaintiffs have alleged sufficient facts to
state a claim against both the management company, Defendant
26
Hawaii First, Inc. and the condominium association, Makaha Valley
Plantation Association, for violation of the Fair Housing Act and
the Hawaii Discrimination in Real Property Transactions Act based
on alleged racially discriminatory conduct by on-site management
employees and security guards.
2.
Hostile housing environment claim based on allegations
of discriminatory conduct by residents of Unit 37B
In addition to alleging that Defendants treated them
differently than other tenants because of their race, Plaintiffs
allege that the residents in Unit 37B, the unit above theirs,
engaged in hostile behavior toward Plaintiffs because of
Plaintiffs' race.
Plaintiffs allege that Defendants contributed
to the racially hostile environment by failing to help them
address it despite Plaintiffs having informed Defendants of the
situation.
Plaintiffs' allegations are in the nature of a hostile
housing environment claim under the Fair Housing Act, 42 U.S.C. §
3617.
The Ninth Circuit Court of Appeals has not yet addressed
the issue of whether a hostile housing environment claim is
actionable under the Fair Housing Act against a housing
association or management company for the discriminatory conduct
of one tenant against another.8
8
In a 2001 unpublished decision, Hall v. Meadowood Limited
Partnership, 7 Fed.Appx. 687, 689, 2001 WL 311320, at *1 (9th
Cir. 2001), the Ninth Circuit Court of Appeals suggested that it
27
Other Circuit Courts of Appeal and lower courts in this
Circuit, however, have recognized hostile housing environment
claims where a plaintiff can establish that she was subjected to
harassment that was sufficiently severe or pervasive so as to
interfere with or deprive the plaintiff of her right to use or
enjoy her home and where the management company knew or should
have known of the harassment but failed to take appropriate
action.
See Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th
Cir. 2003) (recognizing claim for disability harassment in the
housing context as actionable under the Fair Housing Act and the
Rehabilitation Act); Salisbury v. Hickman, 974 F. Supp. 2d 1282,
1290 (E.D. Cal. 2013) (reciting elements of hostile housing
environment claim based on sexual harassment); see also Doe v.
Hous. Auth. of Portland, No. 3:13-CV-1974-SI, 2015 WL 758991, at
*8 (D. Or. Feb. 23, 2015) (implicitly recognizing hostile housing
environment under 42 U.S.C. § 3617 based on allegations that
Defendants, including management company, allowed Plaintiff’s
neighbors to harass and threaten her).
To state a hostile housing environment claim based on race
discrimination against a management company or condominium
association, a plaintiff would have to show that: (1) she was
subject to unwelcome harassment based on her race; (2) the
would recognize a hostile housing environment claim under the
Fair Housing Act against a landlord for discriminatory conduct by
the apartment manager, if properly alleged.
28
harassment was sufficiently severe or pervasive to deprive her of
her right to enjoy her home; and (3) the management company or
condominium association knew or should have known of the
harassment in question and failed to take prompt remedial action.
See Neudecker, 351 F.3d at 364-65 (recognizing hostile housing
environment claim based on disability); Martinez v. California
Investors XII, No. CV 05-7608-JTL, 2007 WL 8435675, at *5 (C.D.
Cal. Dec. 12, 2007) (hostile housing environment claim requires
showing of intentional discrimination); see also Francis v. Kings
Park Manor, Inc., No. 14-CV-3555 ADS GRB, 2015 WL 1189579, at *11
(E.D.N.Y. Mar. 16, 2015) (“assuming, without deciding, that a
‘hostile housing environment’ claim is actionable against a
landlord or property owner under the FHA, a question unresolved
at this time by the Second Circuit, such a claim would require
allegations of intentional discriminatory conduct, or failure to
intervene, by the landlord or property owner based on a protected
category. Turning to whether the Plaintiff has adequately done so
in this case, the Court concludes that he has not.”).
Here, Plaintiffs have made sufficient allegations to state a
hostile housing environment claim based on race.
Plaintiffs
allege that the residents in Unit 37B engaged in racially
discriminatory conduct against Plaintiffs, and that the
Defendants knew of this conduct, but that Defendants failed to
follow the CC&Rs and House Rules or to otherwise assist them or
29
take any remedial action.
Plaintiffs also suggest a hostile housing environment claim
based on Mr. Hicks’ disability because of an incident where the
on-site gardener unnecessarily operated a loud lawn mower for
more than twenty minutes outside of Mr. and Mrs. Hicks’ bedroom
window.
(Am. Compl. at p. 12.)
Plaintiffs allege that this
occurred despite Defendants’ knowledge of his disability, PTSD,
that made him extremely sensitivity to noise.
(Id. at p. 13.)
Plaintiffs allege that the prolonged and unnecessary operation of
the gas lawn mower was meant to disturb and annoy Plaintiffs.
(Id.)
Plaintiffs have stated a hostile housing environment claim
against Defendants based on race and/or disability under Section
3617 of the Fair Housing Act.
B.
Discrimination Claim Based on Alleged Failure to Provide
Reasonable Accommodation
The Fair Housing Act makes it unlawful to “discriminate
against any person ... in the provision of services or facilities
in connection with [his] dwelling, because of a handicap” of that
person or any person associated with that person. 42 U.S.C. §
3604(f)(2).
Discrimination includes “a refusal to make
reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford [a
disabled] person equal opportunity to use and enjoy a
30
dwelling....” 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204.
“The reasonable accommodation inquiry is highly fact-specific,
requiring case-by-case determination.” DuBois v. Association of
Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.
2006)(quoting United States v. California Mobile Home Park Mgmt.
Co., 107 F.3d 1374, 1380 (9th Cir. 1997) (citations omitted)).
For a discrimination claim based on the failure to provide a
reasonable accommodation, a plaintiff is required to show that:
(1) he suffers a handicap as defined by the Fair Housing Act; (2)
defendants knew or should have known of plaintiff’s handicap; (3)
accommodation “may be necessary” to afford the plaintiff “an
equal opportunity to use and enjoy the dwelling”; and (4)
defendants refused to make such an accommodation. 42 U.S.C. §
3604(f)(3)(B). See Roman v. Jefferson at Hollywood LP, 495
Fed.Appx. 804, 805, 2012 WL 5351249, at *1 (9th Cir. 2012).
Plaintiffs allege that Defendants violated the Fair Housing
Act by failing to provide Mr. Hicks with the reasonable
accommodation of a quiet environment for his PTSD.
Because Mr.
Hicks is the individual with the alleged handicap for which a
request for reasonable accommodation was made, it is Mr. Hicks,
and not Mrs. Hicks or Stacey Hicks, who would have standing to
bring a disability discrimination based claim.
The Court finds that Mr. Hicks has stated a disability
discrimination claim against Defendants based on their failure to
31
provide Mr. Hicks a reasonable accommodation of a quiet
environment.
According to the Amended Complaint, Mr. Hicks has a
handicap, PTSD, and Defendants knew about Mr. Hicks’ handicap
because Mrs. Hicks told them.
The Amended Complaint further
alleges that Mrs. Hicks requested that the association
accommodate Mr. Hicks by taking appropriate action to remedy the
noise disturbances by the residents of Unit 37B.
The Amended
Complaint alleges that such an accommodation would have been
reasonable because it involved enforcing the CC&Rs and House
Rules.
Mr. Hicks has stated a disability discrimination claim
against Defendants under the Fair Housing Act, 42 U.S.C. §
3604(f), and the Hawaii Discrimination in Real Property
Transactions Act, Haw. Rev. Stat. § 515-3(11).
CONCLUSION
Plaintiffs have stated a claim for race discrimination under
the Fair Housing Act, 42 U.S.C. §§ 3604(b), 3617, and the Hawaii
Discrimination in Real Property Transactions Act, Haw. Rev. Stat.
§§ 515-3(2), 515-16(6).
Plaintiffs have stated a hostile housing environment claim
based on race and/or disability against Defendants under Section
3617 of the Fair Housing Act, 42 U.S.C. § 3617, and the Hawaii
Discrimination in Real Property Transactions Act. Haw. Rev. Stat.
§ 515-16(6).
32
Mr. Hicks has stated a disability discrimination claim under
the Fair Housing Act, 42 U.S.C. § 3604(f), and the Hawaii
Discrimination in Real Property Transactions Act, Haw. Rev. Stat.
§ 515-3(9), based on Defendants’ failure to address his
reasonable accommodation request and to reasonably accommodate
him.
Plaintiffs do not have a claim under Chapter 368 of the
Hawaii Revised Statutes.
Chapter 368 establishes the Hawaii
Civil Rights Commission and pertains to procedures for the
commission to review alleged unlawful discriminatory practices,
but does not create an individual cause of action in state or
federal court.
Defendants’ Motion to Dismiss (ECF No. 42) is DENIED.
IT IS SO ORDERED.
DATED: June 30, 2015, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
_________________________________________________________________
Charles Hicks et al v. Makaha Valley Plantation Homeowners
Association, et al.; Civ. No. 14-00254 HG-BMK; ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT (ECF No. 42)
33
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