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holding that a letter from the complainant's psychiatrist established a nexus between the complainant's mental disability and a comfort dog
Summary of this case from C.G. v. Saucon Valley Sch. Dist.Opinion
Case No. CV 12-06388 DDP (RZx)
10-28-2013
SHARON SMITH, an individual, Plaintiff, v. HAROLD POWDRILL, ZELMA POWDRILL, individuals, Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION FOR SUMMARY JUDGEMENT AND
GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
[Dkt Nos. 29, 30]
Before the court are cross motions for summary judgment brought by Plaintiff Sharon Smith and Defendants Harold Powdrill and Zelma Powdrill. Having considered the parties' submissions and heard oral argument, the court adopts the following order.
I. Background
Plaintiff is the former tenant of a rental unit owned and operated by Defendants. Plaintiff's claims center on Defendants' allegedly unlawful threat to evict her after Plaintiff requested that she be permitted to live with a companion dog as an accommodation to her mental disabilities.
Defendants own an 8-unit residential property located at 4205 Degnan Boulevard in Los Angeles, California (the "subject property"). Defendants reside in Texas. Defendants' children, Valerie and Phillip Powdrill, assist them in operating the property.
Plaintiff suffers from various mental disabilities, with symptoms that include depression, frequent bouts of crying, and anxiety. Her psychiatrist, Dr. David L. Friedman, diagnosed her as "temporarily totally disabled" and suffering from adjustment disorder, pain disorder, and insomnia. (Declaration of Sharon Smith in Support of Motion, Ex. A. (Dr. Friedman Letter); Declaration of Dr. David Friedman in Support of Reply to Defendant's Opposition.) Plaintiff asserts that her mental disabilities inhibit her ability to take care of herself, get out of bed, interact with others, and remain focused. (Smith Decl. ¶ 5.) Plaintiff, a former clerk typist, also suffers from injuries in both wrists for which she has received surgery but not fully recovered. (Id. ¶ 2.)
For several years, Plaintiff has lived with a companion dog, Layla, a ten-pound terrier, which she asserts helps to alleviate the symptoms of her mental disabilities. She states that the dog "helps me keep a regular routine of caring for myself, motivates me to get out of bed, clean, maintain relationships with friends and family, and to exercise." (Smith Decl. ¶ 6.)
In late June 2012, after working with Philip Powdrill to clean the apartment, Plaintiff moved into the subject property before seeing, signing, or reviewing a lease agreement with Defendants. (Id. ¶ 11; Deposition of Phillip Powdrill at 39:18-25, 40:1-4.) Around the time Plaintiff began moving into the property, she informed Philip Powdrill that she would live with a dog, which she stated was a companion animal necessary to address her disabilities. Philip Powdrill subsequently acknowledged the presence of the dog at the home in a text message, inquiring about how it was doing in its new home. (Smith Decl., Ex. B.)
There is some dispute as to what Plaintiff told Phillip Powdrill, but Defendants have indicated they accept Plaintiff's version of events for the purposes of its summary judgment motion. (Dfdts.' MSJ at 1, fn 1.)
On or about June 30, 2012, Valerie Powdrill provided Plaintiff with a copy of the a rental agreement to review and sign. The agreement contained a "no pets" clause, which states: "No dog, cat, bird, or other domestic pet or animal of any kind may be kept on or about the premises without LANDLORD's written consent." (Smith Decl., Ex. G at 5.) Plaintiff signed the lease, but did not initial the page with the no-pet provision. (Id.)
Uncomfortable with representations by Philip Powdrill that she could keep the dog so long as she kept it on the "down low," (Smith Decl., Ex. C-F), on or about July 12, 2012 Plaintiff sent a handwritten letter to Defendants requesting an exception to the no-pet policy. (Smith Decl., Ex. H.) In the letter, Plaintiff introduced herself as a new tenant and stated that she has undergone surgery to both her hands due to workplace injuries, receives disability benefits, and is currently attending physical and mental therapy. (Id.) Plaintiff stated that she was unaware of the no-pet policy when she moved in and requested an accommodation to allow her to keep the dog because it had been deemed a necessary form of emotional support by her doctor. (Id.) She described the dog as "well trained, doesn't bark, [and] completely house broken." (Id.)
Plaintiff attached a letter from her psychiatrist, Dr. Friedman, which contains the following text:
Please be advised that I have been treating Ms. Smith since April 2012. As part of her psychiatric difficulty she suffers from a severe Adjustment Disorder, Pain Disorder, and Insomnia. Due to Ms. Smith's psychiatric condition, having a companion animal would be of much benefit to her mental state and necessary for her continued stabilization. I believe, Ms. Smith should be allowed to have such a animal at her place of residence. Should you have any questions please do not hesitate to contact this office.(Smith Decl., Ex. H.)
On July 16, 2012, Defendant Zelma Powdrill replied to Plaintiff's letter, denying the request for an accommodation. (Smith Decl., Ex. I.) The reply letter first asserts that Plaintiff has given differing explanations as to who owns the dog and whether it would be living with her. (Id.) It then states: "Your letter dated July 12, 2012, asking us to allow you and the dog to stay, indicates you are in possession of a dog in the apartment. (Id.) Our lease clearly states no pets are allowed, therefore we have enclosed a NOTICE TO PERFORM CONDITIONS AND COVENANTS OR QUIT." (Id.) Defendants attached said notice, which states that Plaintiff has three days to comply with the lease covenants or quit the premises. (Id.)
On July 24, 2012, Gabriela Garcia, a former Case Analyst at the Housing Rights Center (HRC), called and spoke with Defendant Zelma Powdrill. During this conversation, Ms. Garcia stated that Plaintiff is a person with mental disabilities and requires the use of a companion animal to alleviate the symptoms of her disabilities. (Deposition of Zelma Powdrill at 56:6-24; Declaration of Gabriela Garcia ¶ 4.) Defendant Zelma Powdrill stated that she received Plaintiff's July 12, 2012 letter and the letter from Dr. Friedman. Ms. Powdrill stated that she will not allow Plaintiff to keep the companion dog in the unit, asserting that allowing her to do so would result in extra costs to renovate the apartment, that dogs are meant to be kept outside, and that she wanted Plaintiff out of the unit. (Zelma Powdrill Dep. at 56:6-24.) Ms. Garcia subsequently sent a letter to Defendant Zelma Powell memorializing the conversation and confirming Defendants' refusal to grant Plaintiff's requested accommodation. (Declaration of Judith Vasan, Ex. H.)
On the following day, July 25, 2012, Plaintiff filed the instant lawsuit.
On or around February 7, 2013, Plaintiff notified Defendant of her intent to vacate the apartment by March 7, 2013. Plaintiff vacated the property on that date. (Smith Decl. ¶ 25-26.)
Plaintiff asserts that Defendants' actions caused her emotional distress, including stress, heightened depression, increased anxiety, fear of retaliation and eviction, and humiliation. (Smith Decl. ¶ 27.)
Plaintiff asserts claims under (1) the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3601 et seq.; (2) the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12955 et seq.; (3) the California Disabled Persons Act ("DPA"), Cal. Civil Code §§ 54-55.2; (4) the Unruh Civil Rights Act ("Unruh Act"), Cal. Civil Code §§ 51-52, and (5) Negligence. Plaintiff and Defendants have filed cross motions for summary judgment as to liability with respect to each of these claims.
II. Legal Standard
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.
III. Discussion
A. Claims under Fair Housing Amendments Act (FHAA)
Plaintiff alleges that Defendants are liable under three provisions of the FHAA: (1) refusing to make a reasonable accommodation because of a disability in violation of 42 U.S.C. 3 604(f)(3)(B); (2) otherwise making a dwelling unavailable to a renter because of a disability in violation of 42 U.S.C. § 3604(f)(1)(A); and interfering with a person in the exercise or enjoyment of rights guaranteed by the Fair Housing Act in violation of 42 U.S.C. § 3617. Each theory of liability is considered below.
1. Defendants Denied Plaintiff a Reasonable Accommodation
We begin with Plaintiff's assertion that Defendants' conduct constituted a refusal to make a reasonable accommodation under the FHAA.
The FHAA 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 FHAA'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).
To state a claim of discrimination based on failure to reasonably accommodate, a plaintiff must demonstrate that (1) she suffers from a handicap as defined by the FHAA; (2) defendants knew or reasonably should have known of the plaintiff's handicap; (3) accommodation of the handicap may be necessary to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation. Giebeler v. M & B Associates, 343 F.3d 1143, 1147 (9th Cir. 2003) (quoting United States v. Cal. Mobile Home Park Mgmt . Co., 107 F.3d 1374, 1380 (9th Cir. 1997)). We consider each element in turn.
(a) Plaintiff suffers from a disability
The uncontroverted facts show that Plaintiff suffers from a disability. Under the FHAA, "handicap" means (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment. 42 U.S.C. § 3602(h)(1)-(3).
The court uses the now preferred term "disability" in place of "handicap" elsewhere in this Order.
The Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) are jointly responsible for enforcing the FHA, as amended by the FHAA. A joint statement issued by these agencies on May 17, 2004 titled Reasonable Accommodations under the Fair Housing Act ("Joint Statement") describes the meaning of relevant terms. It specifies that a "physical or mental impairment" as defined by the FHA "includes, but is not limited to, such diseases as . . . emotional illness." Joint Statement at 3. It further notes that the term "substantially limits" indicates "that the limitation is 'significant' or 'to a large degree'" and the term "major life activity" means "those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, and speaking." Joint Statement at 4.
The uncontested record shows that Plaintiff has a mental disability that substantially impairs her major life activities. Plaintiff's psychiatrist Dr. Friedman diagnosed her as "temporarily totally disabled and suffering from Adjustment Disorder with Mixed Emotional Features, Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, and Insomnia due to Adjustment Disorder with Mixed Emotional Features." (Friedman Decl. ¶ 7.) As a licensed physician and surgeon with "expert[ise] in diagnosing and treating anxiety and depression" and a Dimplomate of the American Board of Psychiatry and Neurology, Dr. Friedman appears to have the specialized knowledge necessary to provide expert testimony on this matter. (Id. at ¶ 1-6; Friedman Letter.); Fed. R. Evid. Rule 702. Plaintiff asserts that her condition inhibits her ability to take care of herself, get out of bed, interact with others and remain focused. (Smith Decl. ¶ 3.)
Defendants have pointed to no evidence controverting Dr. Friedman's diagnosis or Plaintiff's assertions. Nor is there indication in the record that Defendants sought to take Dr. Friedman's deposition.
Dr. Friedman's declaration was presented with Plaintiff's Reply after Defendants objected that Plaintiff's claim of disability was based solely on Plaintiff's own declaration and the Dr. Friedman's letter and that no foundation was laid for the latter's expertise. (Dfdts.' Opp. at 4.) However, following the submission of Dr. Friedman's declaration, Defendants made no request for a sur-reply, nor did they make any request in open court for additional time to supplement the record. The court therefore will consider Dr. Friedman's declaration for the purposes of the instant motion.
(b) Defendant knew or should have known of Plaintiff's disability
The undisputed facts show that defendants knew, or should have known, of Plaintiff's disability. As stated above, Plaintiff sent a letter to Defendants on July 12, 2012 requesting an exception to the no-pet rule as an accommodation for her mental disability. In this letter, Plaintiff informed Defendant that she was attending "mental therapy" and that her companion dog Layla "has been deemed to be [her] emotional support... by [her] doctor." (Smith Decl. ¶ 17, Ex. H.)
Plaintiff attached a letter from Dr. Friedman stating that he was treating Plaintiff and that she suffers from "a severe Adjustment Disorder, Pain Disorder as well as Insomnia." (Smith Decl., Ex. H.) Defendants acknowledged receipt and responded to Plaintiff's communication, denying the request and issuing a 3-Day eviction notice. Additionally, Defendant Selma Powdrill admits that she spoke by telephone on July 24, 2012 with Gabriela Garcia of the Housing Rights Center who informed her of Plaintiff's mental disability and requested an accommodation for her. (Zelma Powdrill Dep. at 56:6-24; )
Defendants assert that, despite these communications, they did not believe that Plaintiff was truly mentally disabled. (Dfdts.' Opp. at 5.) To justify this skepticism, Defendants note that Plaintiff spent substantial time cleaning the Subject Property to ready it for her to live in. However, while Defendants' assertions may go to whether Plaintiff was physically disabled, Defendants do not explain how her assistance in cleaning the apartment contradicts her diagnosis of mental disability, since Plaintiff does not assert that her mental disability renders her incapable of carrying out any productive activity.
Moreover, it is undisputed that Defendants failed to ask Plaintiff for further documentation or engage an "interactive process" to assuage any doubts they harbored about her mental disability. "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue." Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996). See also Rodiriguez v. Morgan, 2012 WL 253867 *9(C.D. Cal. Jan. 26, 2012) (holding that, after being appraised of plaintiff's disabilities, "if Defendant had any questions regarding the full nature and scope of Plaintiff's disabilities ... he should have opened a dialogue with her and/or her representative"); Book v. Hunter, 2013 WL 1193865 *4 (D. Or. Mar. 21, 2013) ("The defendants may have believed that the plaintiff was not truly disabled or that her request for accommodation was unreasonable. However, under the FHAA they were required to engage in an interactive process to determine whether or not that was the case.")
Defendants further argue that the letter Plaintiff submitted to Defendants did not state that Plaintiff was "disabled." (Dfdts.' Opp. at 5.) However, defendants cite no authority to support their assertion that Plaintiff was required to use term "disabled" in order to effectively notify them of her disability.
Thus, on the undisputed facts, Plaintiff has shown that Defendants knew or should have known of Plaintiff's disability.
(c) Accommodation was necessary for Plaintiff to fully use and enjoy the unit
The undisputed facts show that Plaintiff's requested accommodation was necessary for Plaintiff to fully use and enjoy the unit. See Giebler, 343 F.3d 1143. 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). Courts in this Circuit have held that exceptions to no-pet rules may be required as accommodation in the case of untrained companion animals that provide emotional support to individuals with mental disabilities. See Book v. Hunter, 2013 WL 1193865 (D. Or. Mar. 21, 2013) (finding that landlord violated the FHA by failing to provide an exception to a no-pet policy for an individual suffering from anxiety, depression, and fibromyalgia who sought to live with an emotional companion animal); Ass'n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F. Supp. 2d 1268, 1288 (D. Haw. 2012) ("Whether [a particular animal] qualifies as an 'assistance animal' or 'reasonable accommodation' will depend largely on the determination of [the plaintiff's] disability and the accommodation necessary to ameliorate the effects of the disability.")
Here, as discussed above, Plaintiff suffers from depression, anxiety, and insomnia that impair her ability to engage in daily functions, including taking care of herself, getting out of bed, and interacting with others. According to Plaintiff, the companion dog, Layla, alleviates these symptoms by motivating her to maintain a regular routine, get out of bed, clean, maintain relationships with others, and exercise. Paintiff's psychiatrist stated in a letter dated July 5, 2012 that "[d]ue to Ms. Smith's psychiatric condition, having a companion animal would be ... necessary for her continued stabilization." (Smith Decl., Ex. H.) Defendants have not substantively contested this evidence. Accordingly, there is no triable issue as to whether the requested accommodation was necessary.
(d) Defendant failed to provide Plaintiff with a reasonable accommodation
Defendants do not contest that they refused Plaintiff's request for an exception to the no-pet rule as an accommodation for her disability. Indeed, it is undisputed that on July 16, 2012 Defendants responded to Plaintiffs July 12, 2012 request to live with her dog by issuing her a 3-Day Notice to Perform Conditions or Covenants or Quit, requiring that she remove the dog or vacate the premises. Defendant Zelma Powdrill subsequently told an HRC representative on July 24, 2012 that she would not allow Plaintiff to keep the companion dog and that she wanted Plaintiff out of the unit.
Nor do Defendants present sufficient evidence to create a triable issue as to whether the requested accommodation was reasonable. "Ordinarily, an accommodation is reasonable under the FHAA when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens." Giebeler, 343 F.3d at 1157 (internal citations and question marks omitted). "[T]he history of the FHAA clearly establishes that Congress anticipated that landlords would have to shoulder certain costs involved, so long as they are not unduly burdensome." United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994).
Here, Defendants argue that they denied the accommodation in part because of "potential extra costs" in cleaning the unit after Plaintiff moved out. (Dfdts.' MSJ at 2.) However, the facts here do not indicate that such costs would be unduly burdensome. Defendants do not contest that the dog in question is a 10-pound terrier that is "well trained, doesn't bark, [and is] completely house broken." (Smith Decl. ¶ 19, Ex. H.) Moreover, at the time Defendants issued Plaintiff the 3-Day Notice, they had accepted a security deposit of $850.00 from Plaintiff.
If Defendants felt that the accommodation imposed unreasonable costs, they were required to engage in an "interactive process" with Plaintiff to explore alternatives. See Jankowski, 91 F.3d at 895; Rodiriguez, 2012 WL 253867 at *9; Book, 2013 WL 1193865 at *4; Joint Statement at 7. Such a process could have resulted, for example, in agreement on a larger security deposit. Defendants engaged in no such process and have provided no evidence that the requested accommodation imposed unreasonable costs. While a landlord might not be required to accommodate all dogs, the facts in the present case do not present a triable fact as to whether the accommodation at issue here was unduly burdensome.
Additionally, defendants argue that their actions do not violate the FHAA because they did not take further legal action to evict Plaintiff after issuing her the 3-Day Notice. (Dfdts.' Opp. at 6.) Defendants argue that "Plaintiff was given exactly what she requested" because "Plaintiff was permitted to reside at the Subject Property with her dog until she moved out" voluntarily. (Pltf.'s Opp. at 6-7.)
Defendants' argument relies exclusively on Congdon v. Strine, 854 F. Supp 355 (E.D. Pa 1994), a case that is distinguishable from the present one. In Congdon, a mostly wheelchair-bound plaintiff alleged violations of the FHAA on the ground that her landlord's elevator maintenance policies failed to take account of her disability and that the landlord's decision to not renew her lease was made in retaliation for filing complaints about the elevator's condition with governmental agencies. Id. at 357-58. Partly on the ground that defendants did not take further action to evict the plaintiff, the court held that the landlord's announcement that it would not renew her month-to-month tenancy did not fall within the "otherwise making a dwelling unavailable to a renter" language of 42 U.S.C. § 3604(f)(1). See 854 F. Supp 355.
Congdon is distinguishable for at least two reasons. First, Plaintiff's claim deals with a different prong of 42 U.S.C. § 3604, subsection(f)(3), which prohibits landlords from "refusing to make a reasonable accommodation" to a person with a disability. Unlike in Congdon, the facts here clearly demonstrate that Defendants refused Plaintiff's request for an accommodation. Though the refusal was accompanied by a 3-day notice of eviction, the refusal alone would have been violative of § 3604(f)(3)(B). Second, the Congdon court based its finding that the defendants did not make the dwelling "unavailable" in part on the fact that
Strine and his agents made offers to rent other apartments to the Congdons, including an offer to rent her an apartment in the same building on the first floor. Indeed, Strine never denied housing to the Congdons. To the contrary, Strine undisputedly offered the Congdons alternatives, albeit not to their taste.Id. at 359 (citations to the record omitted). Unlike the facts in Congdon, Defendants in the present case did not offer alternatives or engage in any dialogue with Plaintiff as to her request for an accommodation. They instead responded to Plaintiff's request by issuing her a 3-Day Notice, a position Defendants reinforced several weeks later when they told Plaintiff's advocate, HRC, that they wanted Plaintiff out of the apartment.
Defendants also argue that their "[a]cceptance of rent to cover a period after the termination of a 3-day Notice waive[ed] Plaintiffs' prior breach, making the 3-Day Notice moot." (Dfdts.' Reply at 2, citing EDC Associates, Ltd. V. Gutierrez, 153 Cal. App. 3d 167, 170-71 (1984); Kern Sunset Oil Co. V. Good Roads Oil Co., 214 Cal. 435, 440 (1931); Salton Community Services Dist. V. Southard, 256 Cal. App. 2d, 526, 530 (1967).) However, even accepting Defendants' assertion as true, the Defendants' receipt of rent would only have worked to prevent Defendants from lawfully evicting Plaintiff on the basis of Plaintiff's breach of the no-pet policy prior to the date rent was accepted. It would not have prevented Defendants from pursuing an unlawful detainer action against Plaintiff going forward, and, it appears, Plaintiff continued to fear such action. See, e.g. Kern Sunset Oil Co., 214 Cal. at 440-41 ("[I]f the landlord accepts rent from his tenant after full notice or knowledge of a breach of a covenant or condition in his lease for which a forfeiture might have been demanded, this constitutes a waiver of forfeiture which cannot afterward be asserted for that particular breach or any other breach which occurred prior to the acceptance of the rent.") Nor does acceptance of rent demonstrate agreement to provide the accommodation requested, particularly given Defendants' obligation to engage in an interactive process with Plaintiff relative to her reasonable accommodation request. See, supra, Section 3(A)(1)(b). The failure to engage with Plaintiff as to her requested accommodation is particularly noteworthy in light of Plaintiff's lawsuit, which was filed July 25, 2012, the day after Defendant Zelma Powdrill reinforced Defendants' position that they would not make an exception to the no-pet policy and wanted Plaintiff out of the apartment. (See Zelma Powdrill Dep. at 56:6-24.) Finally, acceptance of rent would not nullify Plaintiff's asserted emotional damages during the period leading up to Defendants' receipt of the rent.
2. Defendants' Conduct Made Unit "Unavailable"
The court next considers Plaintiff's claim that defendants unlawfully made the unit "unavailable" to her or denied the unit to her because of her disability. 42 U.S.C. § 3604(f)(1)(A) makes it unlawful to "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a [disability] ... of that buyer or renter." The phrase "otherwise make unavailable or deny," as one district court has noted, "appears to be as broad as Congress could have made it" and encompasses such conduct as "the imposition of more burdensome application procedures, of delaying tactics, and of various forms of discouragement by resident managers and rental agents." United States v. Youritan Const. Co., 370 F. Supp. 643, 648 (N.D. Cal. 1973) (construing parallel language in 42 U.S.C. § 3604(a)).
In the present case, Defendants' issuance of a 3-Day Notice in response to Plaintiff's request for an accommodation for her disability, in combination with Defendants' other communications, had the effect of making Plaintiff choose between living in the apartment and having access to a medically necessary companion animal. These actions constituted "mak[ing] unavailable or deny[ing" the apartment unit to Plaintiff under § 3604(f)(1)(A).
Defendants challenge to this claim relies exclusively on Congdon v. Strine (discussed in the immediately preceding section). (See Dfdts.' Opp. at 6.) Congdon offers greater support for Defendants with respect to this claim than it does with respect to the reasonable accommodation claim discussed supra in Section III(A)(1) because the portion of Congdon relied upon by Defendants does address § 3604(f)(1)(A). However, the court finds that Congdon is nonetheless fundamentally distinguishable on the facts because, unlike the current case, the defendant in Congdon sought to ensure that the a dwelling was made available to the plaintiffs by offering them alternative housing options. See 854 F. Supp 355 at 359. Defendants made no similar efforts here.
3. Defendants' conduct Interfered with Plainitff's Exercise and Enjoyment of FHAA rights.
The court next considers Plaintiff's claim under 42 U.S.C. § 3617. This statute provides that "[i]t 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.
"The Supreme Court has instructed that we are to treat '[t]he language of the [FHA as] broad and inclusive.'" Walker v. City of Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001) (quoting Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). "'[I]interference,'" in particular, '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.'" Id. (quoting United States v. Hayward, 36 F.3d 832, 835 (9th Cir.1994)). "Interference" has also been described as "the act of meddling in or hampering an activity or process" (Id.)
The undisputed facts show that Defendants interfered with Plaintiff's exercise of her right to obtain a reasonable accommodation for her disabilities under the FAHA, FEHA, and DPA. By responding to Plaintiff's request for an accommodation for her disability by issuing her a 3-Day Notice, and subsequently reiterating that they wanted Plaintiff out of the apartment if she insisted on keeping the companion animal, Defendants engaged in conduct that would give a person in Plaintiff's position cause to hesitate in seeking to enforce her right to obtain a reasonable accommodation for her disabilities. In opposing this claim, Defendants again rely exclusively on Congdon in asserting that their conduct did not constitute interference. (Dfdts.' MSJ at 4.) But, as discussed, Congdon is distinguishable from the present case because of the efforts that the landlord defendants in Congdon made to provide alternative housing options to the plaintiff. See 854 F. Supp at 359. The lack of such engagement in the present case supports Plaintiff's claim that Defendants' issuance of the 3-Day Notice and other communications interfered with the exercise of Plaintiff's fair housing rights.
B. Claim under California Fair Employment and Housing Act (FEHA)
The FEHA prohibits, as unlawful discrimination, "a refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling." Cal. Gov't Code S 12927(c)(1). The FEHA was written to "to conform California law on the subject of fair housing to the Federal Fair Housing Act." Broodmore San Clemente Homeowners' Assn. v. Nelson, 25 Cal. App. 4th 1, 5-7 (1994).
The elements to prove a "reasonable accommodation" claim under the FEHA are the same as those under the FHAA, as reviewed above. A plaintiff must provide that she (1) suffers from a disability as defined in the FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation. Auburn Woods I Homeowners Ass'n v. Fair Employment & Hous. Comm'n, 121 Cal. App. 4th 1578, 1592(2004).
Disability under the FEHA encompasses "mental disability" which are defined as "any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity." Cal. Gov't Code § 12926(j)(1). This definition is at least as encompassing of Plaintiff's mental disabilities as the definition of "disability" under the FHAA, as defined in 42 U.S.C. § 3602(h)(1)-(3)and interpreted by HUD and DOJ. See, supra, Section III(A)(1)(a).
Because Plaintiff has established she is entitled to summary judgment as to each of these elements with respect to her FHAA reasonable accommodation claim, she is also entitled to summary judgment as to her FEHA reasonable accommodation claim.
C. California Disabled Persons Act (DPA)
The DPA provides that "[a]ny person renting, leasing, or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises." Cal. Civ. Code § 54.1(3)(A). This language closely parallels the language defining a "reasonable accommodation" claim under the FEHA. See Cal. Gov't Code § 12927(c)(1). In light of these similarities, this court finds, as another court in this district recently did, that the same four elements under the FEHA criteria can establish a refusal to provide reasonable accommodation claim for the DPA. See Rodriguez v. Morgan, 2012 WL 253867 at *5 (C.D. Cal. Jan. 26, 2012).
As Plaintiff has established she is entitled to summary judgment as to her FEHA reasonable accommodation claim, she is likewise entitled to summary judgment as to her DPA reasonable accommodations claim.
D. California Unruh Civil Rights Act (Unruh)
Plaintiff asserts a claim under the Unruh Civil Rights Act, Cal. Civ. Code § 51. This statute provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Id. Prevailing plaintiffs may recover actual damages or automatic minimum statutory damages in the amount of $4,000, as well as attorneys fees. Cal. Civ. Code § 52. Plaintiff asserts that Defendants' denial of a reasonable accommodation for her disabilities violates the Unruh Act. (Pltf.'s MSJ at 18.)
Defendants challenge the Unruh claim on the grounds that Plaintiff has not proved intentional discrimination. (Dfdts.' Opp. at 10.) However, a preliminary question, not raised by Defendants, is whether Plaintiff's reasonable accommodation claim may be brought under the Unruh Act. The issue is whether the Unruh Act requires residential landlords to provide reasonable accommodations for disabled tenants. In agreement with the analysis of Judge Wu in Rodriguez v. Morgan, 2012 WL 253867 (C.D. Cal. Jan. 26, 2012), the court finds that it does not.
The Unruh Act does not specifically include a requirement for the provision of reasonable accommodations. This makes it distinct from the federal FHA and California's FEHA and DPA, as discussed, respectively, in Sections III(A)(1), III(B), and III(C). The Unruh Act does include a provision providing that "[a] violation of the right of any individual under the federal Americans with Disabilities Act [ADA] of 1990 shall also constitute a violation of this section." Cal. Civ. Code § 51(f). The ADA, in turn, includes a reasonable accommodations requirement as a component of its ban on discrimination in "public accommodations." See 42 U.S.C. § 12182 and § 12182(b)(2)(A)(ii) (defining discrimination to include a failure to make reasonable accommodations for individuals with disabilities). However, the ADA's reasonable accommodations requirement does not extend to residential housing. See 42 U.S.C. § 12181(7) (defining "public accommodations" to include "an inn, hotel, motel, or other place of lodging . . . . "; Independent Hous. Servs. v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 n. 14 (N.D.Cal.1993) (statutory history of ADA indicates lack of intent to extend reasonable accommodations requirement to residential housing).
Plaintiff accurately asserts that the Unruh Act, unlike the ADA, does apply to residential housing. See Marina Point v. Wolfson, 30. Cal 3d 721, 731 (1982) ("For nearly two decades the provisions of the Unruh Act, in light of its broad application to 'all business establishments,' has been held to apply with full force to the business of renting housing accommodations.") However, it does not follow from this fact that the California legislature intended to expand the ADA's reasonable accommodations requirement beyond the requirement's scope under the ADA itself (as California's legislature did by including a reasonable accommodations requirement that is applicable to residential housing in the FEHA and DPA, discussed supra in Sections III(B) and III(C)), and the court has seen no authority indicating that the legislature had such an intention.
In sum, the court agrees with Judge Wu's analysis in Rodriguez v. Morgan and finds that Plaintiff's claim under the Unruh Act must be dismissed.
E. Claim for Negligence
The court finds it unnecessary for the resolution of this matter to reach Plaintiff's negligence claims.
IV Conclusion
For the reasons set forth herein, the court GRANTS Plaintiff's motion for summary judgement and DENIES Defendants' motion for summary judgment as to liability for Plaintiff's claims under the Fair Housing Amendments Act, the California Fair Employment and Housing Act, and the California Disabled Persons Act. The court GRANTS Defendants' motion for summary judgement and DENIES Plaintiff's motion for summary judgment as to Plaintiff's claim under the Unruh Civil Rights Act. IT IS SO ORDERED.
The court notes that, in light of the present order, it need not address Plaintiff's recently filed motions in limine. (See DKT Nos. 40, 41.)
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DEAN D. PREGERSON
United States District Judge