Bock et al v. Brentwood Homeowners Association, Inc.

Filing 21

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that: Defendant's Motion to Dismiss (Dkt. 11 ) is GRANTED and Plaintiffs' Amended Complaint is dismissed with leave to amend. Plaintiff's Motion for Summary Judgment (Dkt. 6 ) is DENIED a s moot. Any amended complaint must be filed within 28 days of the issuance of this order. Plaintiffs may, in the alternative, file a Notice of Voluntary Dismissal if they no longer intend to pursue this case. If Plaintiffs fail to file a timely amended complaint, this case may be dismissed without further notice. Signed by Senior Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LES BOCK and DUNNIA E.
APLICANO, husband and wife,

Case No. 1:24-cv-00207-BLW
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
BRENTWOOD HOMEOWNERS’
ASSOCIATION, INC, an Idaho
nonprofit corporation,
Defendant.

INTRODUCTION
Before the Court is a motion to dismiss (Dkt. 11) filed by the Brentwood
Homeowners’ Association, Inc. and a motion for summary judgment (Dkt. 7) filed
by the plaintiffs, Les Bock and Dunnia E. Aplicano. For the reasons described
below, the Court will grant the Association’s motion to dismiss and deny the
plaintiffs’ motion for summary judgment as moot.
BACKGROUND
Mr. Bock owns a property within the Brentwood Subdivision in Garden
City, Idaho, where he lives with his wife, Ms. Aplicano. Am. Complaint at ¶¶ 6 &

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8, Dkt. 3. Over the last few years, it has become more difficult for the plaintiffs to
maintain their property due to their disabilities. Id. at ¶ 10. Both plaintiffs have
limited mobility that affects their ability to care for their property: Ms. Aplicano
due to rheumatoid arthritis and Mr. Bock due to complications from a childhood
accident. Id. Although the plaintiffs have not shared their diagnoses with other
members of the subdivision, they have disclosed to some members that they had
difficulty maintaining the property. Id. at ¶ 14.
The plaintiffs initially considered selling their Brentwood home and moving
to a new home, but ultimately determined moving was not economically feasible.
Id. at ¶¶ 11–12. Instead, they decided to relandscape the property to minimize the
required maintenance. Id. at ¶¶ 12–13. The plaintiffs engaged a landscaping firm to
create a plan that met their needs and, once complete, submitted this plan to the
President of the Association. Id. at ¶ 13. The President indicated he liked the plan,
and the plaintiffs contracted with the landscaping company for $24,000 to
complete the project. Id. At some point after construction of the new plan had
started, the Association President suggested the plaintiffs submit their landscaping
plan to the Architectural Control Committee. Id. at ¶ 15.
The Brentwood subdivision is governed by a Declaration of Covenants,
Conditions, and Restrictions. Id. at ¶ 9. Section 11.05 of the CC&Rs requires that

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any construction, modification, removal, or destruction of property first be
approved by the Architectural Control Committee without exception. Id. at ¶ 19.
The plaintiffs did not initially submit their plan to the Committee because they
believed Section 11.05 was not enforced, and they could proceed with the project
after showing the plans to the Association President. Id. at ¶¶ 9, 13, and 15. They
allege that the Association President shared this view. Id. at ¶ 13.
Nonetheless, at the suggestion of the Association President the plaintiffs
submitted their plan to the Committee for approval. Id. at ¶ 15. To their surprise,
the Committee rejected the application. Id. It explained that the plan used a
different color gravel from that used in other properties in the subdivision,
extended the gravel area all the way to the curb, and removed too much grass. Id.
Following this rejection, the plaintiffs filed their pro se complaint alleging
that the rejection of their plan constitutes a violation of the Fair Housing Act and
the Idaho Human Rights Act. Id. at ¶¶ 23–26. The Association now moves to
dismiss the Amended Complaint and the plaintiffs oppose the motion.
LEGAL STANDARD
The Association seeks dismissal of the claims against it pursuant to Rule
12(b)(1) and 12(b)(6). Where both jurisdictional and merits grounds are presented,
the Court looks to the jurisdictional issues first. Sinochem Int’l Co. v. Malaysia

MEMORANDUM DECISION AND ORDER - 3

Int’l Shipping Corp., 549 U.S. 422, 431 (2007).
Under Rule 12(b)(1), a complaint must be dismissed if it fails to adequately
allege subject matter jurisdiction. Federal courts are of “limited jurisdiction” and a
court is “presumed to lack jurisdiction in a particular case unless the contrary
affirmatively appears.” Stock W., Inc. v. Confederated Tribes of the Colville
Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). The plaintiff bears the burden of
establishing such jurisdiction exists. Kokkonen v. Guardian Life Ins. Of Am., 511
U.S. 375, 377 (1994).
Likewise, on a Rule 12(b)(6) motion, the Court must dismiss a cause of
action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). “[T]he court accepts the facts alleged in the Complaint as true, and
dismissal can be based on the lack of a cognizable legal theory or the absence of
sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital Partners, LLC,
718 F.3d 1006, 1014 (9th Cir. 2013). A complaint must plead “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when it pleads
facts that allow the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 556.

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ANALYSIS
The Court will first address the Association’s motion to dismiss the
plaintiffs’ Idaho Human Rights Act claim pursuant to Rule 12(b)(1) before turning
to the Association’s motion to dismiss the plaintiffs’ Fair Housing Act claim
pursuant to Rule 12(b)(6). Finally, the Court will address the plaintiffs’ motion for
summary judgment.
A.

Idaho Human Rights Act

The Association argues that the Court lacks subject matter jurisdiction over
the plaintiffs’ Idaho Human Rights Act claim because they have not exhausted
their administrative remedies. The Act requires a plaintiff to first file a claim with
the Idaho Human Rights commission before they file a complaint in state or federal
court alleging a violation of the Act. I.C. § 67-5908(2). This requirement is
jurisdictional. This means that if the plaintiff does not demonstrate they have
complied with the statute, the Court does not have the power to adjudicate the
claim and must dismiss any claim for a violation of the Act. See McWilliams v.
Latah Sanitation, Inc., 554 F. Supp. 2d 1165, 1183–84 (D. Idaho 2008). The
burden is on the plaintiffs to establish subject matter jurisdiction exists. Kokkonen,
511 U.S. at 377.
The plaintiffs do not allege that they filed a claim with the Idaho Human

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Rights Commission before bringing this claim. Instead, the plaintiffs cite to Collier
v. Turner Industries Group, LLC, 797 F. Supp. 2d 1029 (D. Idaho 2011), for the
proposition that the Court may exercise supplemental jurisdiction over their Idaho
Human Rights Act claim even where the exhaustion requirement is not met.
Response at 7, Dkt. 15. Not so. In Collier, the Court granted summary judgment on
a plaintiff’s Idaho Human Rights claim because they failed to file a claim with the
Idaho Human Rights Commission. 797 F. Supp. 2d at 1047. The plaintiffs, like the
plaintiff in Collier, have failed to establish they met this statutory requirement. The
Court, therefore, must dismiss their Idaho Human Rights Act claim.
B.

Fair Housing Act

The Association also requests dismissal of the plaintiffs’ Fair Housing Act
claim. The FHA 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 facilitates in connection with such dwelling, because of a handicap.” 42
U.S.C. § 3604(f)(2). The FHA provides that “an aggrieved person may commence
a civil action” for any violation of the statute. 42 U.S.C. § 3613(a)(1)(A). The
Association argues that the plaintiffs are not aggrieved persons under the FHA and,
further, that they have failed to adequately state a claim for relief. The Court will
discuss each argument in turn.

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1. Aggrieved Persons
The Association argues that the plaintiffs are not “aggrieved persons” under
the FHA. It emphasizes that that the plaintiffs have not suffered any harm as a
result of the Association’s denial of their application as the landscaping project
was completed without interference. Although not framed as such, the
Association’s argument, at its core, is that the plaintiffs lack standing under the
Act.
The FHA creates a private right of action for “any person who (1) claims to
have been injured by a discriminatory housing practice; or (2) believes that such a
person will be injured under a discriminatory housing practice that is set to occur.”
42 U.S.C. § 3602(i). The Supreme Court has held that standing under the FHA
“extend[s] to the full limits of Article III.” Havens Realty Corp. v. Coleman, 455
U.S. 363, 372 (1982). To establish Article III standing the plaintiffs must show: (1)
an injury-in-fact that was (2) caused by the defendant’s conduct and (3) is likely
redressable through a favorable judicial ruling. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). At the pleading stage, the complaint must clearly allege
facts demonstrating each element of standing. Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016).
The Association appears to argue only that the plaintiffs have not suffered

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any harm or, in other words, that they have not alleged any injury-in-fact. A harm
constitutes an injury-in-fact where it is “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal
quotation marks omitted). It appears from the Amended Complaint that the
plaintiffs completed their landscaping project despite the denial of their
application. The Amended Complaint does not include any allegations suggesting
the plaintiffs are, or will be, subject to any enforcement action as a result of the
denied application. The Court agrees with the Association that these allegations do
not constitute an injury-in-fact.
That said, the plaintiffs seek damages for emotional distress, humiliation,
and embarrassment caused by the Association’s conduct. Am. Complaint at 8, Dkt.
3. Such allegations of emotional harm, though rather bare, sufficiently allege
injury-in-fact. See Elliott v. QF Circa 37, LLC, No. 16-cv-0288-BAS-AGS, 2017
WL 6389775, at *6 (S.D. Cal. Dec. 14, 2017) (collecting cases). Accordingly, at
this stage of the litigation, the plaintiffs have adequately alleged injury-in-fact and
have standing under the FHA.
2. Failure to State a Claim
The plaintiffs nonetheless fail to state claim upon which relief may be
granted. The FHA defines discrimination to include, among other things, “a refusal

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to permit, at the expense of the handicapped person, reasonable modifications of
existing premises occupied or to be occupied by such person if such modifications
may be necessary to afford such person full enjoyment of the premises.” 42 U.S.C.
§ 3604(f)(3)(A). The plaintiffs make clear their claim is only for a failure to permit
modification pursuant to § 3604(f)(3)(A) rather than a failure to make an
accommodation claim pursuant to § 3604(f)(3)(B) as assumed by the Association
in its motion. Response at 5, Dkt. 15.
Courts evaluating reasonable modification claims use the same analytical
framework used to evaluate reasonable accommodation claims under the FHA. See
Hollis v. Chestnut Bend Homeowner’s Ass’n, 760 F.3d 531, 541 (6th Cir. 2014).
Accordingly, to state a claim for failure to permit reasonable modification, the
plaintiffs must allege: (1) they suffer from a handicap as defined by the FHA; (2)
that the Association knew or reasonably should have known of the plaintiffs’
handicap; (3) that modification to the premises may be necessary to afford the
plaintiffs an equal opportunity to use and enjoy their dwelling; (4) that the
modification is reasonable; and (5) the Association refused to permit the requested
modification. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d
1175, 1179 (9th Cir. 2006) (outlining elements of reasonable accommodation
claim); Garza v. Raft, No. C 98 20476 JF PVT, 1999 WL 33882969, at *2 (N.D.

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Cal. Nov. 30, 1999) (applying standard to reasonable modification claim). The
Association argues that the plaintiffs’ Amended Complaint fails to allege facts
sufficient to support the second, third, or fifth elements of their claim.
At the outset, the Court disagrees with the Association that the plaintiffs
have not sufficiently alleged that the modification is necessary for the plaintiffs’
enjoyment of the property. The Association suggests that Sections 5.07(f) and
5.16(c) of the CC&Rs allow the plaintiffs to have the Association perform
maintenance on their property. 1 It argues these provisions render any modification
unnecessary. Section 5.07(f) creates an easement to allow the Association to enter
the lot to perform maintenance and Section 16(c) provides that the Association is
responsible for the maintenance and landscaping of common areas. Def.’s Ex. A,
Dkt. 11-2. The creation of an easement and a separate requirement that the
Association maintain common spaces do not support the Association’s argument
that the plaintiffs can defer the maintenance of their property to the Association.

1

The Association requests that the Court take judicial notice of Brentwood Subdivision’s
CC&Rs, which were recorded in the Ada County Recorder’s Office. See Ex. A, Dkt. 11-2. Under
Federal Rule of Evidence 201(b), “[t]he Court may judicially notice a fact that is not subject to
reasonable dispute because it (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined form sources whose accuracy cannot
reasonably be questioned.” The plaintiffs do not question the authenticity of the CC&Rs and, as
a public record, the Court may take judicial notice. Accordingly, the Court takes judicial notice
of the Brentwood Subdivision’s CC&Rs filed at Dkt. 11-2.

MEMORANDUM DECISION AND ORDER - 10

Moreover, the Association has not cited any support for the claim that the
existence of such an option would render the modification unnecessary. As such,
the plaintiffs have adequately alleged that the modification is necessary.
Nonetheless, the plaintiffs’ allegations as to the second and fifth elements of
their reasonable modification claim fall short of the required pleading standard.
First, the Amended Complaint does not allege sufficient facts to support the
inference that the Association knew or should have known of the plaintiffs’
disability. The plaintiffs allege that over the past two years they “have casually
informed” others in the subdivision that they “needed to make changes or move”
because they felt they could not adequately take care of the property due to their
physical limitations. Complaint at ¶ 14, Dkt. 1. The Amended Complaint makes
clear that while some members of the subdivision knew of the plaintiffs’ physical
limitations, they have never disclosed specific details about their conditions. Id.
Even making every inference in favor of the plaintiffs, these allegations do
not support the conclusion the Association was aware of the plaintiffs’ disabilities.
At best, some owners knew the plaintiffs had difficulty caring for their property
due to some physical ailments. That being so, most owners did not know of the
plaintiffs’ challenge caring for their property let alone that that those difficulties
were due to disabilities. There are similarly no allegations that the plaintiffs’

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disabilities are visible, such that the Association should have been aware of their
existence. See Sanzaro v. Ardiente Homeowners Ass’n LLC, 21 F. Supp. 3d 1109,
1116 (D. Nev. 2014) (finding defendant should have known of disability where the
plaintiff cannot walk without a walker and brace because “her impairment would
be noticeable immediately upon viewing her.”).
While the plaintiffs do not need to disclose the details of their disabilities,
they must provide sufficient information to the Association such that it is aware the
plaintiffs have disabilities. See McClendon v. Bresler, No. 22-55068, 2022 WL
17958633, at *1 (9th Cir. Dec. 27, 2022) (“[A]lthough [the plaintiff] never
affirmatively identified her disability, her co-applicant’s. . . use of the terms
‘verified support animal,’ ‘reasonable accommodation,’ and ‘discrimination’ in her
emails to [defendant]. . . are evidence that defendant should have known.”). Often,
the facts supporting this requirement are subsumed in the request for
accommodation or modification. See Castellano v. Access Premier Realty, Inc.,
181 F. Supp. 3d 798, 805 (E.D. Cal. 2016) (finding defendant should have known
of disability where plaintiff sent a letter stating she suffered from mental illness
and physical handicaps and required an accommodation). The allegations in the
Amended Complaint, without more, do not support the inference that the
Association knew or should have known of the plaintiffs’ disabilities.

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Second, the Association argues that the plaintiffs have not sufficiently
alleged that the Association refused to permit the plaintiffs to make reasonable
modifications to their property. For one, it is unclear from the Amended Complaint
whether the plaintiffs made a request for modification. There are no specific
requirements an individual must comply with when requesting a reasonable
modification. See HUD and DOJ, Joint Statement, at 9–10 (2008),
https://www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf.
Rather “the requester must make the request in a manner that a reasonable person
would understand to be a request for permission to make structural change because
of a disability.” Id. The plaintiffs clearly allege they submitted a request for
modification at the suggestion of the Association President and consistent with the
requirements of the subdivision’s CC&Rs that all modifications must be approved
by the board. See Am. Complaint at ¶ 19, Dkt. 3. Nothing in the Amended
Complaint suggests that the plaintiffs communicated that the modification was
required “because of a disability.” HUD and DOJ, supra. These facts, alone, do not
support the inference that a reasonable person would know the plaintiffs were

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requesting a reasonable modification.2
Setting aside that the plaintiffs have not adequately alleged that they
requested a modification, it appears the plaintiffs completed the landscaping
project. The Association, by denying the plaintiffs architectural application, did not
refuse to allow the plaintiffs to make the modifications as the plaintiffs made the
modifications without interference from the Association. Although the plaintiffs
suggest in their response that they may be subject to some enforcement action as a
result of the denied application, the Amended Complaint does not allege any facts
to support this argument. See Response at 9, Dkt. 15. Accordingly, the plaintiffs
have failed to state a claim under the FHA for failure to permit modification and
the Court will dismiss the plaintiffs’ claim.
C.

Leave to Amend

The Court will grant the plaintiffs leave to amend their complaint.
Regardless of whether a party makes such a request, “[a] district court should grant

2

The plaintiffs suggest in their Amended Complaint that this provision was not enforced
as owners made modifications to the property all the time without approval. Am. Complaint. at
¶¶ 9, 15. The failure of some individuals to submit their plans for approval does not put the
Association on notice, without more, that the plan the plaintiffs submitted was a request for
reasonable modification rather than simply a request for modification pursuant to the CC&Rs.
The same is true of the plaintiffs’ unenforceability argument. See Id. at ¶¶ 20–22. Whether or not
the provision requiring approval is enforceable has no bearing on whether the plaintiffs made a
request for modification under the FHA.

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leave to amend. . . unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000) (en banc) (internal quotation marks omitted). Courts must be
particularly cautious before dismissing a pro se complaint without leave to amend.
See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002). Here,
additional facts may cure the deficiencies in the plaintiffs’ complaint. That said,
the plaintiffs may only amend their Idaho Human Rights Act claim if they filed a
claim with the Idaho Human Rights Commission. Based on the plaintiffs’ response
to the present motion it seems unlikely that they did; however, given their pro se
status the Court will provide the plaintiffs with an opportunity to amend to allege
these facts if they so exist. If the plaintiffs did not file a claim with the Idaho
Human Rights Commission, then any amended complaint should not include this
claim or it will be dismissed. Accordingly, the plaintiffs may amend their
complaint within 28 days of the issuance of this order.
D.

Plaintiffs’ Motion for Partial Summary Judgment

The plaintiffs have filed a motion for partial summary judgment. Based upon
the Court’s dismissal of the plaintiffs’ Amended Complaint, the Court denies the
motion as moot without addressing the merits of the motion. The plaintiffs may
renew this motion, if appropriate, in the future.

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ORDER
IT IS ORDERED that:
1.

Defendant’s Motion to Dismiss (Dkt. 11) is GRANTED and

Plaintiffs’ Amended Complaint is dismissed with leave to amend.
2.

Plaintiff’s Motion for Summary Judgment (Dkt. 7) is DENIED as

3.

Any amended complaint must be filed within 28 days of the issuance

moot.

of this order. Plaintiffs may, in the alternative, file a Notice of Voluntary Dismissal
if they no longer intend to pursue this case. If Plaintiffs fail to file a timely
amended complaint, this case may be dismissed without further notice.

DATED: August 30, 2024
_________________________
B. Lynn Winmill
U.S. District Court Judge

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