Morgan et al v. Fairway Nine II Condominium Association, Inc. et al

Filing 91

ORDER ON REPORT AND RECOMMENDATIONS It is hereby Ordered that the Report and Recommendation entered on 2/11/15 (Dkt. 83 ) is ADOPTED IN PART AND REJECTED IN PART. The Defendants' Motion for Summary Judgment, Plaintiffs' Motion for Parti al Summary Judgment, and Plaintiffs' Motion to Dismiss and/or Strike Defendants Counterclaim (Dkt. 54 , 58 , 60 ) are DENIED. This matter remains set for 4/21/15 at 9:30 a.m. in Boise, Idaho. The parties are directed to confer with one anothe r regarding this trial setting and advise the Court on or before 4/6/15 as to whether they would like to pursue another round of mediation/alternative dispute resolution or whether they intend to proceed to trial. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BERNARD L. MORGAN and
MARILYN L. MORGAN, husband and
wife,

Case No. 1:13-CV-00481-EJL
ORDER ON REPORT AND
RECOMMENDATION

Plaintiffs,
v.
FAIRWAY NINE II CONDOMINIUM
ASSOCIATION, INC., an Idaho
corporation; PIONEERWEST
PROPERTY MANAGEMENT LLC., an
Idaho limited liability company; and
Does 1 - 10,
Defendants.

INTRODUCTION
On February 11, 2015, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation (“Report”), recommending that Defendants’ Motion for
Summary Judgment, Plaintiffs’ Motion for Partial Summary Judgment, and Plaintiffs’
Motion to Dismiss and/or Strike Defendants’ Counterclaim all be denied. (Dkt. 83.) Any
party may challenge a magistrate judge’s proposed recommendation by filing written
objections to the Report within fourteen days after being served with a copy of the same. See
28 U.S.C. § 636(b)(1); Local Civil Rule 72.1(b). The district court must then “make a de

ORDER ON REPORT AND RECOMMENDATION- 1

novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The district court may accept, reject, or
modify in whole or in part, the findings and recommendations made by the magistrate judge.
Id.; see also Fed. R. Civ. P. 72(b). The Plaintiffs filed objections to the Report. (Dkt. 86.) The
matter is now ripe for the Court’s consideration. See Local Civil Rule 72.1(b)(2); 28 U.S.C.
§ 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report which objection is made.” Id. Where, however,
no objections are filed the district court need not conduct a de novo review. In United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements
of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, “to the
extent de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.” Peretz, 501 U.S. at 939 (internal
citation omitted). Neither the Constitution nor the statute requires a district
judge to review, de novo, findings and recommendations that the parties
themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an
objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.”); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for
Article III purposes unless requested by the parties) . . . .

ORDER ON REPORT AND RECOMMENDATION- 2

See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days
of service of the Report and Recommendation). “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
The Court has reviewed the entire Report as well as the record in this matter for clear
error on the face of the record and none has been found. The Court has also conducted a de
novo review of those portions of the Report to which the Plaintiffs have objected and finds
as follows.
DISCUSSION
The full procedural background and facts of this case are properly articulated in the
Report and the Court incorporates the same in this Order. (Dkt. 83.) In short, the Amended
Complaint states claims alleging the Defendants violated the Fair Housing Amendments Act
of 1988 (“FHA”), 42 U.S.C. § 3601 et seq., Fair Housing Regulations, 24 C.F.R. § 100 et
seq., Negligence, Breach of the Covenant of Good Faith and Fair Dealing, and Intentional
Infliction of Emotional Distress. (Dkt. 40.) Plaintiffs’ claims arise from allegations that the
Defendants denied the Plaintiffs’ request to install a refrigerated air conditioning unit at the
condominium residence they own which is located in the Fairway Nine II condominiums,
Phase IV, Sun Valley, Idaho. Plaintiffs claim the air conditioning unit is necessary because
ORDER ON REPORT AND RECOMMENDATION- 3

they, as well as several of their grandchildren, suffer medical issues which have caused
disabilities making it necessary that they have cool, filtered air in a climate controlled
environment. (Dkt. 40 at ¶ 17-18.) Defendants have filed a separate Verified Counterclaim
seeking a declaration that Plaintiffs are in violation of the Covenants, Conditions, and
Restrictions of the property (“CCRs”). (Dkt. 39.) The parties filed Cross-Motions for
Summary Judgment and Plaintiffs filed a Motion to Dismiss and/or Strike the Counterclaim.
The Report recommends denying each of the Motions. Plaintiffs objections assert 1) the
Report improperly recited the “reasonable and necessary” standard applicable under the Fair
Housing Act and 2) the Report erred in its conclusions regarding availability of alternative
remedies. (Dkt. 86.)
1)

Reasonable and Necessary Accommodation
The Report recommends denying Plaintiffs’ Motion for Partial Summary Judgment

because questions of fact exist as to whether refrigerated air conditioning is either a
necessary or reasonable accommodation under the circumstances presented by those
disabilities. (Dkt. 83 at 32-33.)1 Plaintiffs object arguing the Report misconstrues the
“reasonable and necessary” standard applicable to their accommodation request made under
the FHA. (Dkt. 86 at 2.)
Plaintiffs contend the Report improperly applied the case of Prindable v. Association
of Apt. Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawai’i 2003) by imposing a
1

The Report also denies Plaintiffs’ Motion for Partial Summary Judgment because
genuine issues of fact exist as to whether Plaintiffs are handicapped under the FHA. (Dkt.
83 at 32.) Plaintiffs have not objected to this conclusion.
ORDER ON REPORT AND RECOMMENDATION- 4

higher burden of proof on, and/or improperly shifting the burden to, Plaintiffs’ to show that
the requested accommodation – refrigerated air conditioning – not only provides the
necessary relief but also that no other accommodation can provide the same relief. (Dkt. 86
at 2-4.) The correct standard, Plaintiffs argue, requires only a showing that the
accommodation can provide the requested relief; i.e., the proper analysis is to review what
the requested accommodation provides rather than if other accommodations are also suitable.
(Dkt. 86 at 3.) “All that is needed to show that a requested accommodation is reasonable is
that a nexus exists between the requested accommodations and the disability.” (Dkt. 86 at 4.)
Plaintiffs argue they have met the standard here because the refrigerated air conditioning
accommodation requested in this case provides the requested accommodation of cool, filtered
air.
The FHA makes it unlawful “[t]o discriminate 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 with such dwelling, because of a handicap of [that person].” 42
U.S.C. § 3604(f)(2)(A). The Report correctly identifies the elements of the prima facie case
for a FHA accommodation claim. (Dkt. 83 at 6.) As relevant to this objection, the elements
require the Plaintiffs to prove the accommodation of their handicap is necessary and
reasonable. (Dkt. 83 at 6.) The arguments in Plaintiffs’ objections treat the necessary and
reasonable elements as one standard while the Report considered each separately. Because
the two are separate elements of the prima facie case, this Court too will consider Plaintiffs’
objections as to each element separately.
ORDER ON REPORT AND RECOMMENDATION- 5

A.

Necessary Element

As to the “necessary” element, the accommodation sought must be “necessary to
afford [the claimant] full enjoyment of the premises”...or “equal opportunity to use and enjoy
a dwelling.” 42 U.S.C. § 3604(f)(3)(A&B). The FHA’s definition of prohibited
discrimination encompasses “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)(B). An
accommodation is necessary if there is evidence “showing that the desired accommodation
will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of
the disability.” Dadian v. Vill. of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001) (internal
citation and quotation marks omitted). “To prove that an accommodation is necessary,
‘[p]laintiffs must show that, but for the accommodation, they likely will be denied an equal
opportunity to enjoy the housing of their choice.’” Giebler v. M&B Assocs., 343 F.3d 1143,
1155 (9th Cir. 2003) (quoting Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th
Cir. 1996)).
In this case, the Report concludes that the record contains evidence showing the
Plaintiffs are handicapped such that they need to have cool, filtered air in a climate-controlled
environment. (Dkt. 83 at 13.) The Report then goes on to distinguish between an
accommodation for simply cool, filtered air and one more specifically for refrigerated air
conditioning. (Dkt. 14.) After discussing the Prindable case, the Report concludes that
“Plaintiffs’ refrigerated air conditioning unit can only be a necessary accommodation under
ORDER ON REPORT AND RECOMMENDATION- 6

the FHA if it is ‘peculiarly suited to ameliorate the unique problems’ presented by Plaintiffs’
handicaps.” (Dkt. 83 at 12-16.) In this regard, the Report considers the Plaintiffs’ requested
accommodation as not one for merely air conditioning but, instead, for refrigerated air
conditioning. (Dkt. 83 at 16-17.) The Report finds there is nothing “in the record [that]
establishes a prima facie showing that refrigerated air conditioning is uniquely situated –
‘necessary’ – to treat [the Plaintiffs’] handicaps.” (Dkt. 83 at 17) (emphasis in original.)
Thus, while the record may support a finding that cool and filtered air in an climatecontrolled environment is a necessary accommodation, the Report concludes that Plaintiffs
have not shown that their particular requested accommodation for refrigerated air
conditioning is a necessary accommodation as a matter of law. (Dkt. 83 at 18-22.)
Having reviewed the Report, Plaintiffs’ objections, and the record herein, this Court
finds that, for purposes of this motion, the record supports a finding that Plaintiffs have
demonstrated their disabilities necessitate an accommodation to provide clean, filtered air
conditioning in their home so that they may equally and/or fully enjoy their premises.
Whether that “need” can be met by non-refrigerated air conditioning or not is a question of
fact that remains in this case. The nuances discussed in the Report distinguishing between
the need for cool, filtered air versus refrigerated air conditioning relate to the Report’s
finding that a genuine issue of material fact exists in regards to the necessity of the requested
accommodation.
Again, the necessity requirement of the prima facie case asks whether “the desired
accommodation will affirmatively enhance a disabled plaintiff's quality of life by
ORDER ON REPORT AND RECOMMENDATION- 7

ameliorating the effects of the disability.” Dadian, 269 F.3d at 838. The Report finds that the
record supports a finding that Plaintiffs have shown the prima facie element of necessity at
least in so far as their requested accommodation is for cool, filtered air. The Report, however,
finds that the same cannot be said to the extent the requested accommodation is for
refrigerated air conditioning; i.e., Plaintiffs have not shown evidence that refrigerated air
conditioning is necessary to accommodate their particular disabilities as a matter of law. To
that end, the Report denied Plaintiffs’ Motion for Partial Summary Judgment. This Court
agrees with and adopts that conclusion. That being said, this Court does not adopt and is not
bound by any particular findings made by the Report concerning this element going forward.
B.

Reasonable

As to the reasonableness of the accommodation, the Report recommends denying
Plaintiffs’ Motion for Partial Summary Judgment because the Plaintiffs have offered no
evidence that their as-installed refrigerated air conditioning unit is a reasonable
accommodation as a matter of law. (Dkt. 83 at 22.) Having reviewed the record in this case
de novo, this Court too finds that a question of fact exists as to the reasonableness element
of the Plaintiffs’ prima facie case which precludes summary judgment.
“The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case
determination.” DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175,
1179 (9th Cir. 2006). (quoting Cal. Mobile Home Park, 107 F.3d at 1380). An
accommodation is “reasonable” if it does not impose “undue financial and administrative
burdens” or constitute a “fundamental alteration in the nature of [defendants'] program.”
ORDER ON REPORT AND RECOMMENDATION- 8

Giebler, 343 F.3d at 1157 (citation omitted).
Here, the Report finds that the air conditioning unit installed by Plaintiffs violates the
CCRs and creates conditions which the CCRs were designed to prevent stating:
Simply put, the record does not contain any persuasive reason to support a
claim that a refrigerated air conditioning unit installed on the outside of
Plaintiffs’ condominium is a reasonable accommodation to address Plaintiffs’
handicaps. The legitimate concerns over a need for cool, filtered air can be met
by alternatives that do not raise even a genuine issue of fact as to whether they
could possibly outweigh the legitimate interests served by the HOA’s
prohibition on such units. Whatever benefits flow to Plaintiffs in the
installation of such a unit are outweighed by the costs to Defendants and
others. As a result, no evidence exists that Plaintiffs’ as-installed, outside
refrigerated air conditioning unit is a reasonable accommodation as a matter
of law.
(Dkt. 83 at 25-26.) This Court does not adopt the Report’s discussion and/or findings
regarding the reasonableness element in this regard. In particular, whether the benefits of the
accommodation to Plaintiffs outweigh the costs to the Defendants. The weighing between
the accommodation and costs to Defendants as well as the discussion concerning alternatives
forms of accommodations are open questions in this case that are subject to dispute.2 As
such, the Court does not adopt the Report’s discussion concerning those matters. All that this
Court finds here is that summary judgment is precluded because questions of fact exist
concerning the reasonableness of Plaintiffs’ requested accommodation.
Having reviewed the record de novo, the Court finds that at this stage of the case,
Plaintiffs have not met their initial burden to show the requested accommodation is
2

This issue overlaps with the Plaintiffs’ objections concerning the burden of proof and
consideration of alternative forms of accommodations. Those issues are discussed in the next
section of this Order.
ORDER ON REPORT AND RECOMMENDATION- 9

reasonable as a matter of law. To some extent this burden includes Plaintiffs demonstrating
their accommodation is not an undue burden or fundamental alteration on the Defendants’
program. Plaintiffs have not made this showing as a matter of law and, therefore, summary
judgment is denied.
2)

Availability of Alternative Remedies
The Report discusses other types of air conditioning units that could provide cool

filtered air conditioning to Plaintiffs’ property, e.g., water-cooled and/or inside room-based
air conditioners, which it infers could be reasonable accommodations. (Dkt. 83 at 29-30.)
Plaintiffs argue the existence of alternative remedies is moot/irrelevant if those remedies
were not available at the time of the request and/or if the requested accommodation is
reasonable. (Dkt. 86 at 4.) Further Plaintiffs maintain the disabled individual is best equipped
to know what accommodations will work for them. Plaintiffs contend the Report’s
recommendation as to the lack of reasonableness based on the existence of other remedies
is incorrect. (Dkt. 86 at 5.) This objection goes to whether the Report’s analysis improperly
shifted the burden to Plaintiffs.
In Footnote eleven the Report discusses the burden of proof as to reasonableness
likening it to the burden used under the Rehabilitation Act and the Americans with
Disabilities Act. (Dkt. 83 at 23) (discussing Giebeler, 343 F.3d at 1156-58). This Court finds
no error in the Report’s statement of the applicable burden of proof. The Plaintiffs bear the
initial burden of proving the elements of their FHA claim as to both reasonableness and
necessity. As to reasonableness, Plaintiffs must show the existence of a reasonable
ORDER ON REPORT AND RECOMMENDATION- 10

accommodation; i.e., that a reasonable accommodation was possible. Once that initial
showing is made, the Defendants must show that the accommodation is unreasonable.
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783-84 (7th Cir.
2002) (citing Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)) (other citations
omitted). The Seventh Circuit described the burden of proof in FHA cases as follows:
The employee must show that the accommodation is reasonable in the sense
both of efficacious and of proportional to costs. Even if this prima facie
showing is made, the employer has an opportunity to prove that upon more
careful consideration the costs are excessive in relation either to the benefits
of the accommodation or to the employer's financial survival or health.
Id. (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)). The Report’s statement of law
is consistent with this Court’s view of the applicable burdens in this case. That being said,
this Court does not adopt the Report’s discussion regarding the reasonableness element in
so far as it appears to make findings regarding other forms of air conditioning that could
adequately meet Plaintiffs’ needs and/or weighs the interests of the respective parties.
This Court’s own view of the record is that those matters turn on disputed facts. For
instance, it is disputed whether alternative forms of air conditioning can provide the
accommodation necessitated by Plaintiffs’ disabilities. While Plaintiffs clearly prefer
refrigerated air conditioning, the record is disputed as to whether another form of air
conditioning would accommodate Plaintiffs’ disabilities and if that other type of system was
available at the time of the Plaintiffs’ request. Likewise, the question of how the Defendants’
interests weigh against the Plaintiffs’ requested accommodation is disputed. There does not
seem to be any dispute that the refrigerated air conditioning unit installed by Plaintiffs
ORDER ON REPORT AND RECOMMENDATION- 11

violates the CCR. Questions of fact remain, however, as to whether the interests behind the
CCRs make the requested accommodation unreasonable. These findings cannot be made as
a matter of law upon the record as it currently stands. For that reason, the Court denies
Plaintiffs’ Motion for Partial Summary Judgment. What each side can prove at trial
concerning the reasonableness of the requested accommodation remains to be seen.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on February 11, 2015 (Dkt. 83) is ADOPTED IN PART AND
REJECTED IN PART as stated herein.
IT IS FURTHER ORDERED that the Defendants’ Motion for Summary Judgment,
Plaintiffs’ Motion for Partial Summary Judgment, and Plaintiffs’ Motion to Dismiss and/or
Strike Defendants’ Counterclaim (Dkt. 54, 58, 60) are DENIED.
This matter remains set for April 21, 2015 at 9:30 a.m. in Boise, Idaho. The parties
are directed to confer with one another regarding this trial setting and advise the Court on or
before April 6, 2015 as to whether they would like to pursue another round of
mediation/alternative dispute resolution or whether they intend to proceed to trial.

DATED: March 24, 2015

Honorable Edward J. Lodge
U. S. District Judge
ORDER ON REPORT AND RECOMMENDATION- 12