Opinion
19-CV-00486-TUC-JAS-LCK
08-04-2021
Brenda C. Norman and David Norman, Plaintiffs, v. Rancho del Lago Community Association, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Defendant's Motion for Partial Summary Judgment and Statement of Facts. (Docs. 58, 59.) Plaintiffs filed a responsive brief and a response to Defendant's statement of facts (Docs. 64, 65); Defendant replied (Doc. 66). The Magistrate Judge recommends the District Court, after its independent review of the record, grant summary judgment to Defendant.
Defendant also has filed a Motion to Strike certain evidence based on late disclosure by Plaintiffs. (Doc. 57.) Because Plaintiffs do not rely on any of the evidence disputed in the motion to strike to respond to the pending motion for summary judgment, the Court finds it most expeditious to address the dispositive motion first. Neither party requested oral argument pursuant to LRCiv. 7.2(f), and the Court finds that oral argument would not aid it in deciding the motion.
BACKGROUND
Plaintiffs Brenda and David Norman filed a Complaint on October 14, 2019, alleging Defendant Rancho del Lago Community Association discriminated against Brenda Norman (Norman) based on a handicap that limits her mobility. (Doc. 1.) Specifically, Defendant denied Plaintiffs' request to install a second driveway. In Claim 1, Plaintiffs allege violation of the Fair Housing Act (FHA) for discrimination based on handicap and refusal to provide a reasonable accommodation pursuant to 42 U.S.C. §§ 3604(f), 3613 (a, c). In Claim 2, Plaintiffs seek a declaratory judgment pursuant to state law. After the close of discovery, Defendant filed a motion for partial summary judgment as to the FHA claim.
SUMMARY JUDGMENT STANDARD
In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not produce evidence of a genuine issue of material fact but may satisfy its burden by “pointing out . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. Material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
Plaintiffs' Statement of Facts did not comply with the Local Rules. Their response to Defendant's Statement of Facts should have included, in separate numbered paragraphs: “any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party.” LRCiv 56.1(b). Instead, Plaintiffs included their facts within their memorandum of law, in narrative format. (Doc. 65 at 5-9.) Also, Plaintiffs' responsive brief included a factual Introduction and Overview without record citations, and it mentions information not in the record. (Doc. 65 at 1-5.) For that reason, the Court did not consider any information contained in that section of Plaintiffs' brief. Despite the rule violations, the Court considered Plaintiffs' Response to Defendant's Separate Statement of Facts (Doc. 64) and Plaintiffs' Statement of Facts (Doc. 65 at 5-9), to the extent supported by citations to the record.
Plaintiffs purchased a home at 10814 S. Distillery Canyon Spring Drive in Rancho del Lago. (Doc. 64, Ex. M ¶ 2.) On the north side of the house was a gravel- covered incline. (Id. ¶ 3.) Norman averred that she fell and had episodes of instability when attempting to walk on the gravel area. (Id.)
Norman was a police officer until 1994, when she was deemed permanently disabled due to an injury sustained in the line of duty. (Doc. 64, Ex. K at 18.) Aaron Halle, DC, Norman's chiropractor, has been treating Norman since 2017. (Doc. 64, Ex. 1 ¶ 2.) He averred that Norman has a right Achilles' heel injury and a low back injury that render her disabled and limited in the major activity of walking. (Id.) Dr. George Bradbury, orthopedic surgeon, averred that he conducted a tendon repair surgery on Norman's right Achilles in 2009. (Doc. 64, Ex. B ¶ 2.) He stated that Norman has right leg instability and weakness and is limited in her major activity of walking. (Id. ¶ 3.) Norman described her disability as difficulty walking on uneven surfaces, ” “issues with balance . . . stability, and . . . strength” due to spondylolysis. (Doc. 59, Ex. 4 at 33.) She testified that her difficulty walking on uneven ground has existed since 2000. (Id. at 38.) Norman reported that she is able to walk on surfaces that are not loose, and she does not use a device to assist her in walking. (Id. at 55; Ex. 13, P's Resp. to Request No. 4.)
Plaintiffs lived in their Rancho del Lago home at least six years prior to requesting permission to install a second driveway. (Doc. 59, Ex. 4 at 40; Ex. 13, P's Resp. to Request No. 8.) Norman explained that the only gate between the front and back yard was on the side of the house opposite the existing driveway; due to the terrain and rocks on that side of the house, she was endangering her safety to walk between the yards, which she did almost daily. (Doc. 59, Ex. 4 at 35-36.) Norman stated that she would use the gate to get the mail or sometimes just for exercise. (Id. at 36.) Norman testified that the absence of the second driveway precluded her from having a safe place for recreation and exercise because she has rosacea, and the other driveway is in the sun all day. (Id. at 51.)
On September 5, 2017, Plaintiffs submitted to Defendant an Architectural Variance Request (AVR) to install an 11-foot-wide concrete driveway in their side yard, opposite their 3-car garage and existing driveway, to create a solid walking surface on the right side of their home. (Doc. 59, Ex. 1; Doc. 64, Ex. C.) As part of the project description in the AVR, Plaintiffs stated: “My wife is disabled and has difficulty walking on rocks. . . .This surface will also be used by machinery to service our rooftop solar system and backyard swimming pool.” (Id.) Attached to the AVR was a letter from Dr. Halle who stated that he had been treating Norman for lower back pain since March 2017; he instructed her to walk more but she required good footing on solid ground with no loose gravel. (Doc. 64, Ex. C) Norman acknowledged there were multiple reasons they wanted to install a second driveway, not just her disability. (Doc. 59, Ex. 4 at 52; Ex. 1.) In addition to the reasons stated in the AVR, the second driveway was desired to increase the resale value of the house. (Doc. 59, Ex. 4 at 52-53; Ex. 1.) Plaintiffs also indicated that they wanted additional space to park a car on that side of the house. (Doc. 59, Ex. 14 at 23; Ex. 8 at 18:52-19:13, 26:42-27:08.)
In the statement of facts, Defendant included: “Plaintiffs already have a paved side path on that side of the house as well as a patio in the rear yard which offers perfect support for a ladder.” (Doc. 59 ¶ 3.) In support of this fact, Defendant cited “Photographs of Plaintiffs Residence, Norman 0000194 & Norman 0000196, attached as Exhibit 2.” (Id.) Attached as Exhibit 2 are two pages numbered RDL 000194 & RDL 000196, which are legal descriptions of property not photographs. Although undisputed, the Court does not rely on this fact as it is not supported by the record.
On October 4, 2017, Defendant sent Plaintiffs a letter denying their AVR, stating: “concrete driveway may not be installed on that side. May submit to install on opposite side.” (Doc. 59, Ex. 3.) Defendant delegated authority to Mabelle Gummere (Defendant's manager at the time) to decide Plaintiffs' AVR. (Doc. 64, Ex. D at 21, 24.) Gummere testified that she denied the request because she believed (based on prior conversations with Norman) that it was based solely on Plaintiffs' desire to park their daughter's car on the second driveway. (Id. at 24-26.) Norman said Gummere provided several different reasons why the second driveway was not allowed: it violated Article 2: Section 2(a) of the CC&Rs; it would interfere with curb street parking; pouring concrete over utility lines was forbidden; and concern over liability if the utility box were struck by a car backing out of the second driveway. (Doc. 64, Ex. M ¶ 9.)
Defendant's fact statement provides: “The AVR was denied because Plaintiffs have a three-car garage and there is ample room on the existing driveway. Plaintiffs have a flat surface to walk on in the backyard; and side yard parking is not permitted.” (Doc. 59 ¶ 8.) Defendant cites Exhibit 3. While Exhibit 3 is the letter denying Plaintiffs' AVR, it does not contain the justifications included in Defendant's statement of facts.
Spencer Brod (Defendant's manager after Gummere) testified that he had the power to approve Plaintiffs' second driveway, but he wouldn't do so if he thought the intent was to park a car there. (Doc. 64, Ex. I at 39-40.) Brod was enforcing what he understood to be a norm in the HOA, that parking is not allowed in the side yard. (Id. at 39.) Norman believes the AVR was denied because Defendant did not think it was needed for her disability. (Doc. 64, Ex. M ¶ 14.)
In an October 2018 HOA Dispute Process Petition, Plaintiffs noted that Defendant offered only one solution, to turn Plaintiffs' second driveway into a walkway. (Doc. 59, Ex. 7 at 3.) At deposition, Norman stated that a sidewalk was not sufficient because she had difficulty staying on a sidewalk due to her stability problems. (Doc. 59, Ex. 4 at 61.) Norman previously told Brod that a walkway, half the width of the driveway, would accommodate her needs for a stable walking surface. (Doc. 8 at 12:03-12:50.) In her declaration, Norman averred that they declined the accommodation of a walkway (not because it was insufficient to ameliorate her disability, but) because there are other second driveways in the neighborhood, they did not want to be the cause of other second driveways being destroyed, the driveway was a good accommodation for her walking instability, and “we needed the second driveway.” (Doc. 64, Ex. M ¶ 12.)
Plaintiffs installed a concrete driveway in the side yard, without Defendant's permission. (Doc. 59, Ex. 4 at 49-50.) Norman declared they did so because her instability had been worsening. (Doc. 64, Ex. M ¶ 8.) On November 7, 2017, Defendant sent Plaintiffs a document titled “Final Request for Information and Compliance.” (Doc. 59, Ex. 5.) In it, Defendant stated that the installation of the second driveway violated the CC&Rs, Article IV, Section 2(a):
Architectural control: No. improvements, alterations, repairs, excavation, grading, landscaping, or other work which in any way alters the exterior appearance of any property within Rancho del Lago, or the improvements located thereon, from its natural or improved state existing on the date a Tract Declaration for such property was first recorded shall be made or done without prior written approval for the Architectural Review Committee.(Id.) The Rancho del Lago CC&Rs do not contain language explicitly prohibiting second driveways. (Doc. 64, Ex. N.) On March 28, 2018, Defendant wrote a letter to Plaintiffs' counsel demanding that the driveway be removed within 14 days. (Doc. 59, Ex. 9.)
Defendant's expert, Mariesha Blazik, found that there was no relationship between an 11-foot-wide driveway and Norman's need for a solid walking surface. (Doc. 59, Ex. 15 at 6.) Dr. Halle and Dr. Bradbury opined that the second driveway was a “suitable accommodation” for Norman's disability. (Doc. 64, Ex. A ¶ 5 (erroneously labeled as a second paragraph 4); Ex. B ¶ 6.)
Other Rancho del Lago residents have had second driveways approved. Eric Vergara began digging for a second driveway prior to seeking permission and Defendant directed him to stop and apply in writing. (Doc. 64, Ex. E at 14.) Defendant approved Vergara's request to install a second driveway at his home in Rancho del Lago, which was based on the convenience of allowing his daughters to play around the house. (Id. at 6-7, 10-11.) Defendant has never contacted Vergara about removing the driveway or fined him for installing it. (Id. at 13.) Defendant approved Christina Waer to install a second driveway at her home in Rancho del Lago, which she requested to provide a place for her children to park and for access to the backyard. (Doc. 64, Ex. F at 5, 7-8.) Waer has never been told they cannot park in the second driveway. (Id. at 7.)
DISCUSSION
Defendant argues that Plaintiffs cannot establish entitlement to relief under the FHA, Claim 1. Defendants seek summary judgment on the FHA claim and related request for punitive damages.
Fair Housing Act Claims
Plaintiffs allege a violation of the FHA, which makes it unlawful to: “discriminate against any person in the terms, conditions, or privileges of . . . the provision of services or facilities in connection with [a] dwelling, because of a handicap of-(A) that person . . . .” 42 U.S.C. § 3604(f)(2). Discrimination under this provision includes:
(A) a refusal 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 . . . [and] (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.42 U.S.C. § 3604(f)(3). Defendant requests summary judgment as to Plaintiffs' claim that Defendant refused a reasonable and necessary accommodation and modification.
A prima facie case under 42 U.S.C. § 3604(f)(3) requires Plaintiffs to establish that: (1) Norman is handicapped as defined by 42 U.S.C. § 3602(h); (2) Defendant knew or reasonably should be expected to know of her handicap; (3) accommodating her handicap “may be necessary” to allow her an equal opportunity to use and enjoy the dwelling; (4) the requested accommodation or modification is reasonable; and (5) Defendant refused the accommodation. Dubois v. Ass'n of Apt. Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (citing United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1970)); 42 U.S.C. § 3604(f)(3)(A, B). Defendant contends that Norman is unable to establish that the requested driveway was necessary to allow her equal opportunity to use and enjoy her home; and Plaintiff did not request a reasonable accommodation.
Request for Reasonable Accommodation
As an initial matter, Defendant argues that Plaintiffs never sought an exception to Defendant's policies or practices. Rather, the AVR sought to make a structural change to the premises, which falls under the reasonable modification category rather than reasonable accommodation. Plaintiffs contend that their informal discussions with Brod amounted to a request to modify Defendant's policy prohibiting second driveways.
In support of this argument, Defendant relies upon the expert report by Blazik. However, Defendant did not cite the report for this proposition in the Statement of Facts. (See Doc. 59 ¶¶ 1-40.) Further, the Court need not rely on expert testimony to determine the legal parameters of Plaintiffs' claim.
Plaintiffs' initial request to build a second driveway could be construed as both a request for reasonable accommodation and a request for reasonable modification. Because Defendant had an informal policy against allowing second driveways, the AVR necessarily sought an exception to Defendant's policy. Additionally, Plaintiffs had conversations with Brod about Defendant's policies regarding second driveways and their desire to keep their driveway despite Defendant's policy or practice against it. Although these conversations occurred after the AVR was denied, Defendant has offered no reason why that timeframe is excluded from the Court's consideration. Once Plaintiffs built the driveway, they continued to advocate for it and Defendant continued to reject their requests to keep it. Therefore, the Court will consider Plaintiffs' Claim 1 as based on both subsection A and B of § 3604(f)(3).
Necessity of Modification/ Accommodation
Defendant argues that Plaintiffs have failed to show that the requested modification or accommodation, an 11-foot-wide driveway on the north side of their home, was necessary as required by the FHA. Subsections A and B both require that Plaintiffs establish the accommodation or modification “may be necessary” to allow Norman full and equal enjoyment of her property. Because the necessity inquiry is essentially identical for both subsections, the Court evaluates them together. See Hollis v. Chestnut Bend Homeowners Ass'n, 760 F.3d 531, 540-41 (6th Cir. 2014) (noting that no appellate court had set out the framework for a reasonable-modification claim but finding the operative elements the same as those for a reasonable-accommodation claim).
To prove that the driveway is a necessary accommodation or modification, Plaintiffs “must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003) (quoting Smith & Lee Assoc., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795 (6th Cir. 1996)). “Without a causal link between defendants' policy and the plaintiff's injury, there can be no obligation on the part of defendants to make a reasonable accommodation.” Cal. Mobile Home Park Mgmt. Co., 107 F.3d at 1380. Plaintiffs bear the burden of demonstrating causation, as well as that the accommodation or modification “seems reasonable on its face.” Ramos v. Neumann, 417 Fed.Appx. 640, 641 (9th Cir. 2011) (citing Giebeler, 343 F.3d at 1155-56). If Plaintiffs establish those elements, only then does the burden shift to Defendant to establish that it is not reasonable. Id.
Plaintiffs argue that they have established necessity because, prior to installing the second driveway, Norman risked falling when walking on the north side of her property. Plaintiffs rely entirely on the opinions of Drs. Halle and Bradbury. Norman's doctors opined that the driveway installed by Plaintiffs was a “suitable accommodation.” Because the driveway already had been installed, they did not offer an opinion about what accommodation was necessary; rather, they evaluated only whether the second driveway provided a sufficient surface for Norman to walk safely. The critical component of their opinion is that Norman should not walk on an uneven or gravel surface and needs a solid walking surface due to her disability. (Doc. 64, Ex. A ¶ 3-4; Ex. B ¶ 4-5.) They offered no opinion on whether a smaller walkway would suit this need or how large a walkway was necessary. Their opinion alone fails to establish that the second driveway was a necessary accommodation or modification to allow Norman to fully enjoy her property.
What Norman has demonstrated as necessary for her to have an equal opportunity to enjoy her property is a stable walking surface on the north side of her house connecting the back yard to the front yard. The remaining dispute is whether the requested accommodation - an 11-foot-wide driveway - is necessary to achieve the requirements of the statute. Plaintiffs offered no evidence that satisfies their burden on this narrow issue. When asked at deposition, Norman stated that her stability problems precluded her from walking on a neighborhood sidewalk (as presented in Defendant's statement of facts). Plaintiffs offered no evidence regarding a minimum width needed to accommodate Norman's stability challenges. However, she told Brod that a walkway half the width of the driveway, which would be five-and-a-half feet wide, would accommodate her need for a stable walking surface. Further, when Plaintiffs declined Defendant's suggestion of removing half the driveway, it was not because that option would not accommodate Norman's disability. Instead, their rejection was based on several other reasons - other people had second driveways, they didn't want neighbors to lose their second driveways because of them, and they needed a second driveway.
For the sake of thoroughness, the Court included, in the fact section, Plaintiffs' evidence about other neighbors with second driveways. However, the Court does not discuss those facts in its legal analysis because it is irrelevant to whether a second driveway was necessary to allow Norman full enjoyment of the property.
Plaintiffs offered no evidence that a surface wide enough for a car was necessary to accommodate Norman's disability. See Bryant Woods Inn, Inc. v. Howard Cty., Md., 124 F.3d 597, 605 (4th Cir. 1997) (declining variance because it would provide a benefit on a matter unrelated to ameliorating the effects of a handicap); see also Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 152 (2d Cir. 1999) (requiring that the “non-complying” features of the property be necessary based on the resident's disability). Although Norman stated that the driveway was a good accommodation for her, Plaintiffs failed to offer any evidence that it was necessary because a smaller walkway would not accommodate her disability equally as well. Cf. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 461 (3d Cir. 2002) (requiring a showing that expanding the allowed size of a group facility for handicapped individuals was therapeutically necessary (or financial required)); Sabal Palm Condos. of Pine Island Ridge Ass'n, Inc. v. Fischer, No. 12-60691-CIV, 2014 WL 988767, at *15-16 (S.D. Fla. Mar. 13, 2014) (rejecting condominium argument, that a dog over 20 pounds was not necessary, because resident offered evidence that her dog's size was matched to her wheelchair and was necessary to reach door handles and light switches and retrieve larger items). Plaintiffs fail to show that, but for an accommodation or structural modification allowing a second driveway, Norman will be denied an equal opportunity to fully enjoy her property.
Plaintiffs cite Cal. Mobile Home Park Mgmt. Co., 107 F.3d at 1381, which held that a handicapped person's use of a home is diminished if she “faces injury or pain by having to travel long distances from the house to the car.” In that case, the court held that causation was clear because, without parking available close to a handicapped person's dwelling, the person could suffer injury or pain in reaching her transportation. Id. at 1381-82. The plaintiff's initial obligation was to demonstrate a causal link that “defendants' policy caused an interference with her use and enjoyment.” Id. at 1381. Here, Defendant's policy was to preclude second driveways. Norman's disability does not require a second driveway to facilitate close access to a vehicle; she has that in her main driveway and 3-car garage. Rather, her disability requires a stable walking surface not a driveway. Defendants have established the right to summary judgment on Plaintiffs' FHA claim.
Punitive Damages
Defendant argues that Plaintiffs cannot make a prima facie showing for punitive damages. Plaintiffs requested punitive damages under the FHA, 42 U.S.C. § 3613(c)(1). Punitive damages are available if the Court finds a discriminatory housing practice has occurred. Id. The Court has concluded that Defendant is entitled to summary judgment on Plaintiffs' FHA claim. Because Plaintiffs cannot obtain any relief on their FHA claim, punitive damages are not available.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order Granting Defendant's Motion for Partial Summary Judgment (Doc. 58). Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.