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Michael Allen
Stephen M. Dane
John P. Relman
Thomas J. Keary
Pending admissionpro hac vice
D. Scott Chang, #146403
Relman & Dane, PLLC
1225 l9th Street, NW, Suite 600
Washington, DC 20036
Telephone : (202) I 28-1888
Fax: (202) 728-0848
Attorneys for Plaintffi
National Fair Housing Alliance, Inc., et aI.,
Plaintiffs,
V ,
A.G. Spanos Construction, Inc.; et al.,
Defendants.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. C07-3255 - SBA
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFFS' OPPOSITION TO
DEFENDANT HIGHPOINTE
VILLAGE'S MOTION TO DISMISS
PLAINTIFFS' FIRST AMENDED
COMPLAINT
[Fed. R. Civ. P. 12(bx6)l
Hearing Date:
Time:
Dept:
Complaint
March I l, 2008
1:00 p.m.
Courtroom 3
Filed: June20"2007
I
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 1 of 18
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il.
m.
TABLE OF CONTENTS
TABLE OF AUTHORITIES.
INTRODUCTIONANDSUMMARYOFARGUMENT.. . . . . . . . . . . . . . . I
FACTUAL BACKGROUND. ..........5
ARGUMENT. . . . . . , , . , , ,7
STANDARD OF REVTEW UNDER RULE l2(bx6). ........7
THE STATUTE OF LIMITATIONS DOES NOT BAR SUIT AGAINST HIGHPOINTE
PLAINTIFFS NEED NOT SUE ON BEHALF OF PEOPLE WITH DISABILITIES, AND
NEED NOT ALLEGE THAT THEY ARE MEMBERS OF THE PROTECTED CLASS IN
ORDER TO BE "AGGRIEVED PERSONS" UNDER THE FAIR HOUSING ACT . .. . . ....1 1
PLAINTIFFS HAVE ADEQUATELY PLED THEIR STANDING TO SUE LINDER THE
F H A . . . . . . . . 1 I
l l
National Farr Housine Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
A.
B.
C.
D.
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 2 of 18
TABLE OF AUTHORITIES
CASES
Alexander v. Riga,208 F.3d 419 (3d Cir. 2000). .....................12
Dion, LLC v. Infotek Wireless,Inc.,2007 WL3231738 (l{.D.Cal. Oct. 30,2007)......................7
Equal Rights Center v. Equity Residentiql, 483 F. Supp. 2d 482 (D. Md. 2007)..........................12
Fair Housing of Marin v. Combs, 285 F. 3d 899 (9th Cir. 2002) ..4,12,13
Garcia v. Brocla,vay, 503 F.3d 1092 (gth Cir.2007) .............7, 8
Garcia v. Broclo,uay,_ F.3d - , 2008 WL 90233 (9th Cir. Jan. 7 ,2008)........ ..........8
Gladstone Realtors v. Vill. of Bellwood, 441U.S. 91 (1979)....... .............12
Guerra v. Cuomo, 176 F.3d 547 (D.C. Cir. 1999). ..................10
Hargraves v. Capital City Mortgage Corp., 140 F. Supp. 2d7 (D.D.C. 2000) ............9
H a v e n s R e a l t y C o r p ' v ' C o l e m a n ' 4 5 5 U ' S . 3 6 3 ( | g 8 2 )
Moseke v. Miller & Smith, lnc.,202 F. Supp. 2d 492 (E.D.Va. 2002) ....8, 9
Nat'l Adver. Co. v. City of Raleigh, 947 F.2d I 158 (4th Cir. 1991). .....9, 10
Smithv. Pacific Prop. & Dev. Corp.,358 F.3d 1097 (9thCir.2004) ...............4,12,13
Syversonv. IBM Corp., 472F.3d1012 (9thCir.2007). ............7
Tolbert v. State of Ohio Dep't of Transp., 172F.3d934 (6th Cir. 1999) ....................10
TOPIC v. Circle Realty, 532F.2d 1273 (gthCir.1976). .........13
Trfficante v. Metropolitan Life Ins. Co.,409 U.S. 205 (1972) ................1I
United States v. Balistrieri, gSl F .2d 916 (7th Cir. 1992) ......12
United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129 (D. Idaho 2003) ..............8
STATUTES
Fair Housing Act, 42 U.S.C. $ 3601 et seq......... ..............passim
OTHER AUTHORITIES
H.Rpt. 100-71I, repr inted at 1988 U.S.C.C.A.N. 2173, 2179.. . . . . . . . . . . . . . .5,6
Robert G. Schwemm, HOUSING DISCRIMINATION: LAW AND LITIGATION (Thompson
West)(2007) $ 25: 10.. . . . . . . . . . . . .
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et ali ir4.rnor-dut Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 3 of 18
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Plaintiffs National Fair Housing Alliance, Inc., Fair Housing of Marin, Inc., Fair Housing Napa
Valley, Inc., Metro Fair Housing Services, Inc. and Fair Housing Continuum, Inc. submit this
Memorandum of Points and Authorities in Support of their Opposition to Defendant Highpointe
Villaee's Motion to Dismiss Plaintiffs' First Amended Complaint.
I. INTRODUCTION AND SUMMARY OF ARGUMENT
The complaint herein alleges that A.G. Spanos Construction, Inc., A.G. Spanos Development,
lnc., A.G. Spanos Land Company, Inc., A.G. Spanos Management, Inc. and The Spanos Corporation
I
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 4 of 18
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(hereinafter, the 'ospanos Defendants" or "Defendants") have been engaged in a continuing violation
since the 1990s, consisting of a pattern and practice of designing and building at least 82 apartment
complexes' in ten states-an average of more than five per year-that violate the design and
construction provisions of the Fair Housing Act (hereinafter, "FHA" or "Act"), and are therefore made
unavailable to wheelchair users and other people with mobility impairments. The development of these
properties was continuous and seamless, one overlapping another, and the instances of noncompliance
are identical or remarkably similar from one property to another. The Spanos Defendants have
acknowledged that as many as l9 properties encompassed in the First Amended Complaint (hereinafter,
"FAC") were either built within two years of the filing of the complaint, or are still under construction.2
Therefore, there can be no question that the statute of limitations concerning the last discriminatory act
in the series did not even begin to run until after the filing of the complaint. This pattern and practice has
l Plaintiffs acknowledge, and apologize to the Court for, their error in listing Constellation Ranch in Fort
Worth, Texas and Orion at Roswell in Roswell, Georgia, in mis-numbering the apartment complexes in
the appendix to the FAC. Removing these from the purview of the FAC, however, still leaves 82
properties that are unquestionably pled into this case. Surely, this does not rise to the level of being
o'so
vague and ambiguous that [Defendants] cannot reasonably prepare a response," Fed. R. Civ. P. l2(e), as
suggested by Defendants. MDS 6-7. As modified by the foregoing, the FAC alleges violations of the
FHA's design and construction requirements at82lcnown properties, 34 of which were visited and/or
tested by Plaintiffs. The FAC also alleges that Defendants may have committed FHA design and
construction violations at other properties currently unknown to Plaintiffs, FAC fl 45, but likely to be
identified in discovery.
2 Five of these still appeared to be under construction at the time the original complaint was filed.
Defendants' Request for Judicial Notice [Doc. 48-5](hereinafter,
"RJN"), Exhibits I27,128,133,154
and 166. Defendants also concede that eight properties encompassed within the complaint were built
within two years of the filing of the complaint. MD 8:22-9:3; MS 8:4-12; MDIP 8:7-16. Plaintiffs are
perplexed about Defendants' concession that the complex known as The Coventry at City View in Fort
Worth was built within two years prior to the filing of the complaint herein. MD 9:l-2; MS 8:I0-I L
Defendants' own request for judicial notice suggests that the last certificate of occupancy was issued in
1996. RJN Exhibit 158. Finally, Defendants' filings with this Court suggest hat six additional
properties were completed within that period. RJN Exhibits 94 (Park Crossing in Fairfield, CA), 99
(Ashgrove Place in Rancho Cordova, CA), 100 (Stone Canyon in Riverside, CA), 13aA (Highpointe
Village, Phase II in Overland Park, KS), 153 (Auberry at Twin Creeks in Allen, TX) and 165 (Cheval in
Houston, TX).
2
Nutionul Fu pposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 5 of 18
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continued until the filing of this lawsuit and thereafter, in that construction of noncompliant units was
ongoing.
Highpointe Village, L.P., (hereinafter, "Highpointe") finds itself in this case because it was
named as one of two class representatives for current owners of FHA-noncompliant properties designed
and built by the Spanos Defendants. Plaintiffs do not seek to establish FHA liability against Highpointe,
the other class representative (Knickerbocker Properties, Inc. XXXVIII, hereinafter,
"Knickerbocker") or
any current owner. Rather, because current owners may be necessary parties in order to effectuate any
retrofitting relief the Court may order, Plaintiffs seek to join them in a defendant class so as to have their
interests efficiently represented before this Court.
Highpointe's motion to dismiss under Fed. R. Civ. P. l2(bX6) is premised on three arguments,
none of which supplies a basis for granting that motion. First, Highpointe contends that claims against it
are baned by the statute of limitations. Memorandum of Points and Authorities in Support of Defendant
Highpointe Properties, Inc.'s Motion to Dismiss (hereinafter, "Mem.") at ll-I4. Second, Highpointe
alleges that Plaintiffs are not o'aggrieved persons" for purposes of the FHA, and therefore cannot state a
cause of action under the FHA. Id. aL l4-I8. Finally, Highpointe claims that Plaintiffs have not
established their standing to bring this lawsuit. Id. at 18-24.
Each of these arguments is rehashed from the four motions filed concurrently by the Spanos
Defendants, and each can be disposed of on the same ground. Plaintiffs have already briefed these issues
extensively in their Consolidated Opposition to the Spanos Motions, at Sections IV.A and IV.B., filed
concurrently with this opposition, and incorporate their arguments herein by reference. For the
convenience of the Court and other parties, however, Plaintiffs summarize their points herein.
First, Highpointe's statute of limitations argument fails because the Spanos-built properly it owns
(Highpointe Village in Overland Park, Kansas) is part of the Spanos Defendants' larger pattern and
practice of designing and building inaccessible apartment complexes. Plaintiffs have alleged a
continuing violation of the FHA's design and construction accessibility requirements, with at least 19
violations occurring within the two years prior to the commencement of this litigation. See n.2, suprq,
and accompanying text. Relying on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), Plaintiffs
3
National r PPosition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 6 of 18
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seek to bring all 82 apartment complexes, including Mountain Shadows and The Commons within the
purview of this litigation. To the extent the Court accepts this view and denies the Spanos Defendants'
statute of limitations argument, it should necessarily apply this same "law of the case" to Highpointe's
motion, and deny it as well. Furthermore, as the Spanos Defendants have filed papers with the Court
establishing that the final certificate of occupancy for Highpointe Village was not issued until September
26,2005, Spanos Defendants' Request for Judicial Notice [Doc. 51, Exhibit 134A], there can be no
question that the statute of limitations had not run with respect to this property when the complaint was
filed in this action on June 20,2007.3
Second, Highpointe's contention that Plaintiffs fail to state a cause of action because they are not
"aggrieved persons" under the FHA flies in the face of established U.S. Supreme Court and Ninth
Circuit precedent. See Havens Realty Corp. v. Coleman,455 U.S. 363 (1982); Fair Housing of Marin v.
Combs,285 F.3d 899 (9th Cir.2002); Smith v. Pacific Prop. & Dev. Corp., 358 F.3d 1097 (9th Cir.
2004). All of these cases, binding on the Court and on Highpointe, make clear that Plaintiffs can
establish their right to sue under the FHA without doing so on behalf of tenants with disabilities. Indeed,
all three cases stand for the proposition that, at the pleading stage, Plaintiffs achieve "aggrieved person"
status simply by alleging they "have been injured by a discriminatory housing practice." 42 U.S.C. $
3602(i) 42 U.S.C. $ 3602(0 defines the term
"discriminatory housing practice" to mean'oan act
unlawful under section 804" of the Fair Housing Act,42 U.S.C. $ 3604, which includes the design and
construction of apartment complexes in a fashion to render then inaccessible to and unusable by people
with disabilities. 42 U.S.C. $ 3604(f). Plaintiffs have pled harm vis-d-vis the Spanos Defendants, FAC
nn72-78, and because Highpointe's presence in the case is only for purposes of effectuating any future
relief ordered by the Court, this element of Highpointe's motion is premature at best.
Finally, Highpointe contends that Plaintiffs lack standing to sue under the FHA, parroting the
arguments made by the Spanos Defendants in their parallel motion to dismiss [Doc. 48]. Plaintiffs have
3 While Plaintiffs initially pled that Highpointe Village was "completed in 2003," FAC fl 62, it has since
leamed from the Spanos Defendants that the final certificate of occupancy was not issued until
September 26,2005, well within the two-year period prior to the filing of the complaint herein. RJN
Exhibit 134A.
4
Nutionul Fu pposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 7 of 18
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established, pursuant to the FHA and its interpretations by the U.S. Supreme Court and the Ninth
Circuit, that they are 'oaggrieved persons" as that term is defined at 42U.5.C. $ 3602(i), and that they
have had their missions frustrated by the Spanos Defendants' design and construction of inaccessible
housing, and have been required to divert their scarce resources from other valuable work in order to
counteract the effects of that inaccessible housing. Plaintiffs need not show that Highpointe or any
current owner caused, or in the future will cause, any harm. Rather, Highpointe and Knickerbocker, and
the class of current owners Plaintiffs would have them represent, are only present in the case to ensure
that any remedial order the Court may enter will not be frustrated by the unwillingness of current owners
to permit the Spanos Defendants to enter their properties to carry out retrofitting of units and common
areas.
U. FACTUAL BACKGROUND
Collectively, the Spanos Defendants represent the fifth-largest apartment development enterprise
in the country. FAC fl2. Since 1960, Defendants have built more than 120,000 apartments in over 400
complexes across the country.Id. Begiwring in March 1991, the FHA required those who designed and
built such complexes to incorporate certain basic features to ensure that they were
"accessible to and
usable by [people with disabilities]." H.Rpt. 100-71 1, reprinted at 1988 U.S.C.C.A.N. 2173, 2187 .
Sophisticated entities like the Defendants, who have been steeped in the business of real estate and
development for decades, are presumed to know the mandates of the FHA. See general/y, Robert G.
Schwemm, HOUSING DISCRIMINATION: LAW AND LITIGATION (Thompson West)(2007), $
25:10, at pp. 25-52 to 25-53.
This litigation commenced on June 20, 2007, and was based on careful investigations of
Defendants operations and visits to 34 apartment complexes that Defendants had designed and built,
FAC fl 3. The Spanos Defendants filed a series of motions to dismiss and for other relief on August 15,
2007 [Docs. 15-19]; these were withdrawn on September 12,2007. Plaintiffs filed their First Amended
Complaint ("FAC") on October 12,2007, adding The Spanos Corporation as a party and naming a
defendant class consisting of all current owners of FHA-noncompliant apartment complexes designed
and built by the Spanos Defendants. FAC'lT'lJ 30, 32. Plaintiffs named Highpointe and Knickerbocker as
5
National Fa pposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 8 of 18
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defendant class representatives. Id. OnDecember 21,2007, the Spanos Defendants filed a request for
judicial notice [Doc. 51] and renewed their previous motions [Docs. 48,49,50 and 52]. It is to these
motions that this Opposition responds.
The FAC alleges that the Spanos Defendants have engaged in a continuing pattern and practice
of designing and building "covered multifamily dwellings," 42 U.S.C. $3604(0(7), in a fashion to make
them inaccessible to people with disabilities, in violation of 42 U.S.C. $$ 3604(f)(l), 3604(f)(2) and
3604(0(3XC). FAC fll|83, 84. Through on-site investigations at 34 apartment complexes, Plaintiffs
documented violations of the design and construction requirements of the FHA. nn 42,44,45. These
violations render all or part of these complexes inaccessible to and unusable by people with mobility
impairments. FAC flfl 46, 47. Because at least 47 other untested properties share common design
features with the tested properties, Plaintiffs have reason to believe that the untested properties may also
violate the FHA's design and construction requirements. FAC'!J6.
Based on the Spanos Defendants' own Request for Judicial Notice [Doc. 5l], it is clear that they
have been continuously involved in the design, development and construction of covered multifamily
dwellings for several decades. Exhibit No. I to this opposition is a simple table prepared by Plaintiffs to
assist the Court in understanding the overlap between these developments. Inasmuch as multifamily
development is a complicated process requiring years of planning and execution at each site, the Court
can see from Exhibit No. 1 that, from at least 1995 to the present day, the Spanos defendants must have
been involved in overlapping development at multiple sites, and that completion of one Spanos property
and commencement of another must have been virtually seamless in time. And, as the pleadings make
clear, identical or very similar violations are noted in apartment complex across the Spanos portfolio.
FAC tTfl 4s-s2.
The Spanos Defendants' noncompliance with the FHA is not a trivial matter. Inaccessibility has
serious and significant consequences forpeople with disabilities. FAC fl 8. Not least among these is the
extent to which inaccessible housing frustrates the national objective of integrating people with
disabilities into "the American mainstream." H.Rep. 100-717,reprinted at 1988 U.S.C.C.A.N. 2173,
2179.
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 9 of 18
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The presence of Highpointe (and Knickerbocker and the class of current owners they may
represent following certification of the defendant class) is required in order to effectuate any remedial
retrofitting order entered by the Court.
III. ARGUMENT
A. STANDARD OF REVIEW UNDER RULE 12(bX6)
As this Court has recognized, a claim may be dismissed under Fed. R. Civ. P. l2(b)(6) only
"if it
does not ostate a claim upon which relief can be granted.' . . . When considering a motion to dismiss
under Rule 12(b)(6), the plaintiffs complaint is liberally construed and all well-pleaded facts are taken as
true. Dion, LLC v. Infotek Wireless, Inc., 2007 WL 3231738 (N.D.Cal. Oct. 30,2007), quoting from
Syverson v. IBM Corp., 472F.3d 1072, 1075 (9th Cir. 2007).
B. THE STATUTE OF LIMITATIONS DOES NOT BAR SUIT AGAINST HIGHPOINTE
Highpointe seeks to bar litigation against it by asserting that construction on the property it owns
was completed in 2003, Mem. at 3:6-8, and therefore beyond the limitations period of the FHA. Mem.
l1-14. But its argument are wrong for three reasons. First, it appears from papers filed with this Court
that Highpointe Village did not get is final certificate of occupancy until September 26,2005, which is
within two years prior to the filing of the complaint. RJN Exhibit 134A.
Second, if the Court should determine that Highpointe Village is part of a continuing violation on
the part of the Spanos Defendants, then that property will be part of the litigation, notwithstanding the
date of their construction; as a current owner whose cooperation in any retrofitting relief the Court may
direct the Spanos Defendants to undertake, Highpointe presence may be required under Fed. R. Civ. P.
l9 and, thus, not subject to the kind of statute of limitations defense that might be available to the
Spanos Defendants. Highpointe's motion virtually ignores Havens Realty Corp. v. Coleman, 455 U.S.
363 (19S2), the Supreme Court's controlling decision on application of the FHA's statute of limitations
to allegations of continuing violation.
Third, Highpointe's motion to dismiss relies on the now-vacated panel opinion in Garcia v.
7
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al; Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 10 of 18
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Broclauay,5O3 F.3d 1092(gthCir.2007),whichhasbeenaccepted for enbancrehearing,see Garciav.
Broclarvay,_ F.3d _, 2008 WL 90233 (9th Cir. Jan.7,2008). In the interim, the Ninth Circuit has
ordered that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court ofthe
Ninth Circuit." 1d Unlike the Spanos Defendants, Highpointe has yet to acknowledge that Garcia is a
nullity which cannot be cited to this Court.a Without Garcia, Highpointe's entire argument with respect
to the statute of limitations relies on Moseke v. Miller & Smith, lnc.,202 F. Supp. 2d492,494-95
(E.D.Va. 2002) and United States v. Taigen & Sons, Inc., 303 F. Supp. 2d Il29 (D. Idaho 2003). For the
reasons outlined below, neither case is sufficient grounds for granting Highpointe's motion.
Moseke cannot support the motion to dismiss because the defendants in that case who were
responsible for multiple developments essentially agreed with Plaintiffs' position in the case at bar. The
Moseke defendants "proffer[ed] that the statute of limitations expired two years after the completion of
the last condominium development . . . ." Mosekp, 202F. Supp. 2d at 50I (emphasis added). The
decision in Moseke was premised on that proffer, as the court held that the suit was baned because
"[t]he
last condominium development at issue in this matter was constructed more than two years before this
suit commenced" Id. at 507. The Taigen court simply would have had no reason to opine on the
application of the statute of limitations with respect to private litigants because that case was brought by
the U.S. Department of Justice, which is subject to an entirely different statute of limitations.s
Proper analysis of the continuing violation in the case at bar must be groundedin Havens Realty
Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court's controlling decision on application of the
FHA's statute of limitations to allesations of continuins violation.6 Under Havens, Plaintiffs' claims are
a The A.G. Spanos Defendants acknowledge that Garcia was accepted for en banc rehearing after
their opening brief was filed. See Notification of Change in Status of Authority Cited (Docket No. 70)
(Feb. 6,2008).
5 The limitations period in 42 U.S.C. $ 3613(a)(1) is specific to private actions under the FHA, but the
Magistrate Judge addressed 28 U.S.C. 5 2462, which applies generally to government-initiated actions
seeking civil penalties. See id. at ll43-44. The District Court Judge did not address either provision.
6 Plaintiffs have briefed this issue extensively in the their Consolidated Opposition to the Spanos
Defendants' Motions, at Section IV.A, filed concurrently with this Opposition. Rather than repeat that
argument, Plaintiffs incorporate it herein by reference.
8
Nutiond ru position
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 11 of 18
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timely if filed within two years of "the last asserted occurrence of [a discriminatory housing] practice."
Id. at380-81. The FAC herein pleads a continuing violation, FAC fll|49, 50,74,84, and the Spanos
Defendants have acknowledged that as many as 19 properties encompassed in the First Amended
Complaint (hereinafter, "FAC") were either built within two years of the filing of the complaint, or are
still under construction.T See alsoMD 8:22-9:3; MS 8:4-12;MDIP 8:7-16. If the Court adopts the
Havens analysis and denies the Spanos Defendants' motions with respect to the FHA statute of
limitations, it must also deny Highpointe's motion on these same grounds.
Highpointe contends that the continuing violation doctrine is "not relevant here . . . where the
alleged FHA claims would have been actionable immediately upon completion." Mem. at 13:8-9, citing
to Moseke and Hargraves v. Capital City Mortgage Corp.,140 F. Supp. 2d 7 , 18 (D.D.C. 2000).
Highpointe misconstrues Moseke, in which the court held that the action was time-barred because
"[t]he
last FHA non-compliant condominium development at issue in this matter was constructed more than
two years before this suit commenced." In this matter, it is clear that there are at least 19 Spanos-built
developments-including Highpointe Village itself-that are within the two year period prior to the
filing of the complaint. That is, there is no argument that the suit is simply about the continuing effects
of prior discrimination; Plaintiffs herein have pointed to repeated instances of fresh discriminatory acts
within the limitations period, thus distinguishing this case from those relied upon by Highpointe.,vrz.,
7 Fine of these still appeared to be under construction at the time the original complaint was filed.
Defendants' Request for Judicial Notice [Doc. 48-5](hereinafter,
'.RII{"), Exhibits I27,128,133,154
and 166. Defendants also concede that eight properties encompassed within the complaint were built
within two years of the filing of the complaint.MD 8:22-9:3; MS 8:4-12; MDIP 8:7-16. Plaintiffs are
perplexed about Defendants' concession that the complex known as The Coventry at City View in Fort
Worth was built within two years prior to the filing of the complaint herein. MD 9:l-2; MS 8:10-l L
Defendants' own request for judicial notice suggests that the last certificate of occupancy was issued in
1996. RJN Exhibit 158. Finally, Defendants' filings with this Court suggest hat six additional
properties were completed within that period. RJN Exhibits 94 (Park Crossing in Fairfield, CA), 99
(Ashgrove Place in Rancho Cordova, CA), 100 (Stone Canyon in Riverside, CA), l34A (Highpointe
Village, Phase II in Overland Park, KS), 153 (Auberry at Twin Creeks in Allen, TX) and 165 (Cheval in
Houston, TX).
s
Nutiond r PPosition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 12 of 18
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Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1 158 (4th Cir. 1991) and Tolbert v. State of Ohio Dep't of
Transp., 172F.3d934 (6thCir. 1999), cited at Mem. 13-14.
Reliance on Hargraves is similarly misplaced. Citing to Guerra v. Cuomo, 176 F.3d 547, 551
(D.C. Cir. 1999), and holding that "[the continuing violation] theory applies where defendants commit
'repeated, but distinct, discriminatory acts, some inside and some outside the limitations period,"'the
Hargraves court held that the plaintiffs had sufficiently pled a continuing violation. 140 F. Supp. 2d at
18. Plaintiffs have pled that the Spanos Defendants have committed repeated discriminatory acts, at as
many as 82 apartment complexes in 10 states. As Hargraves teaches, that is sufficient to make out a
continuing violation.
Highpointe and Knickerbocker (and the class of current owners they would represent) are not
being sued for violation of the FHA's design and construction provisions, but simply as parties that may
be required to effectuate whatever relief the Court may direct the Spanos Defendants to undertake. In
that light, there is no separate statute of limitations applicable to Highpointe and Highpointe. Their
presence in the case is, in a sense, will depend on the Court's determination that the continuing violation
doctrine is applicable and that Highpointe and Highpointe properties are pafi of the litigation. It does
not depend on the number of properties owned by Highpointe, or whether Highpointe was actively
involved in the design and construction of noncompliant complexes.
Highpointe's obligation to permit any retrofits required by the Court rests on its status as a party
may be necessary to effectuate that relief, and not on its own liability. Fed. R. Civ. P. 19. In other
the very idea of a statute of limitations as to Highpointe is inapposite. Plaintiffs seek relief
against the Spanos Defendants that would include not only an order to bring 82 apartment complexes
(including those owned by Highpointe) into compliance with the FHA at no cost to the curuent owners,
but also that the Spanos Defendants conduct those retrofits in a manner least likely to interfere with the
rights of current owners or tenants. Finally, the Owner Defendants could seek an order requiring the
Spanos Defendants to reimburse them for any loss of revenue or out-of-pocket expenses occasioned by
the retrofitting.
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
which
words,
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C. PLAINTIFFS NEED NOT SUE ON BEHALF OF PEOPLE WITH DISABILITIES. AND
NEED NOT ALLEGE THAT THEY ARE MEMBERS OF THE PROTECTED CLASS IN
ORDER TO BE "AGGRIEVED PERSONS" UNDER THE FAIR HOUSING ACT
Highpointe suggests that Plaintiffs are not "aggrieved persons" under the FHA, because they "do
not claim to be members of or sue on behalf of the protected class [of people with disabilities]." Mem.
at 15: 1 . From that faulty proposition, Highpointe contends that Plaintiffs cannot state a cause of action
under the FHA. This contention is simply not true. To be an "aggrieved person" under the FHA, a
plaintiff must "claim[] to have been injured by a discriminatory housing practice." 42 U.S.C. $$
3602(iXl), 3613(aX1XA). Indeed, courts have established the FHA standing requirement by reference
to the "aggrieved person" phrase in the Act. See, e.9., Trfficante 409 U.S. at 205.
Highpointe alleges that "Plaintiffs do not allege to have been injured by the Spanos Defendants'
making a dwelling unit Highpointe village unavailable to a particular renter (or his associate) because of
a handicap of a particular person." Mem. at 18. This point, borrowed nearly wholesale from the Spanos
Defendants' primary motion to dismiss, can be answered in the same fashion that Plaintiffs answered the
Spanos Defendants: Standing for these organizational Plaintiffs does not rest on an injury caused by the
fact that the Plaintiffs cannot live in a particular dwelling, as was the case in the precedent cited by
Defendants. Instead, as organizations, Plaintiffs' standing rests on the consequence of Defendants'
design and construction of inaccessible buildings, which frustrate Plaintiffs' missions and forces them to
divert their scarce resources. These injuries occur even though the organizations have no interest or
ability to live in the subject properties. Of course, no court considering organizational standing under
the FHA has ever required the organization to establish an interest in living in the subject building as a
prerequisite for standing to sue under the Act. Defendants' assertion to the contrary has no basis in law
or fact.
D. PLAINTIFFS HAVE ADEQUATELY PLED THEIR STANDING TO SUE UNDER THE
FHA
Highpointe contends that Plaintiffs do not have standing under the FHA because "Plaintiffs do
not claim to be disabled renters, nor do they sue on behalf of disabled renters who claim to have been
denied a rental at Highpointe Village or any of the other properties sued upon." Mem. at 19. Plaintiffs
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National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 14 of 18
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have already briefed these issues extensively in their Consolidated Opposition to the Spanos Motions, at
Section IV.B., and incorporate their arguments herein by reference. In short, the FHA provides that fair
housing organizations can establish standing based on frustration of mission and diversion of resources
to counteract instances of discrimination. Havens,455 U.S. at363; Smith v. Pacific Properties and
Development Corp., 358 F.3d 1097,ll05 (gth Cir.2004): see also Fair Housing of Marin v. Combs, 285
F.3d at 905 (9th Cir,2002); Alexander v. Riga,208 F.3d 419, 421 n.4 (3d Cir. 2000); United States v.
Balistrieri, gSl F.2d 916 (7thCir.1992); Equal Rights Center v. Equity Residential,4S3 F. Supp. 2d482
(D. Md. 2007) (frnding organizational standing in context of challenge to defendant's design and
construction of inaccessible buildings). Inasmuch as Plaintiffs have pled such injury caused by the
Spanos Defendants,nnT2-78, they are "aggrieved persons" under 42 U.S.C. $ 3602(i), and have
standing to sue.
Highpointe's contention that "any claim for diversion of resources for referring, consulting or
placing disabled persons necessarily requires allegations that plaintiffs counseled specific person who
wished to live at each apartment complex sued upon," Mem. at2I, is simply not supported by the two
cases cited by Highpointe. Highpointe's reliance on Gladstone Realtors v. Vill. of Bellwood, 441 U.S.
91,ll2-15 (1979) is misplaced. The referenced portions of that opinion deal with the standing of
individual plaintiffs whose standing derived from their proximity to the discriminatory racial steering.
Plaintiffs in the case at bar are not individuals, but one national fair housing organization with a national
service area and four regional fair housing organizations with their own defined service areas that
include one or more Spanos-built noncompliant apartment complexes. The injury that they suffer is not
limited to any individual neighborhood or community, but extends to the full limits of their service
areas.
At least one federal court has rejected a defendant's attempt to defeat the standing of a
Washington, D.C.-based fair housing organization challenging a builder's design and construction of
inaccessible buildings throughout the country. Equal Rights Center v. Equity Residential, 483 F. Supp.
2d 482 (D. Md. 2007). As the court stated, "the very fact that plaintiff undertook a nationwide
investigation of defendants' violations is proof positive of plaintiff s concrete injury." Id. at 487 .
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
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Again, the fair housing organization was not limited to a constrained geographical area around its office.
Instead, as a fair housing organization, the plaintiff was o'an organization with a mission that is national
in scope and breadth." Id. Application of that same standard to Plaintiff National Fair Housing Alliance
is certainly warranted on the allegations of the FAC.
Nor is Highpointe's contention supported by TOPIC v. Circle Realty, 532F.2d 1273,1275 (gth
Cir.1976). There, then-Judge (now Justice) Kennedy held that "the role played by defendants' alleged
racial steering in denying the plaintiffs the benefits of living in an integrated community may be so
attenuated as to negate the existence ofany injury in fact." In the case at bar, the concrete injury in fact
suffered by Plaintiffs is pled in sufficient detail to survive a motion to dismiss. See FAC nn72-78.
The frustration of mission and diversion of resources caused by the Spanos Defendants'
discriminatory design and construction at as many as 82 apartment complexes is sufficient to ground
standing. Highpointe's contention that these were "self-inflicted," Mem. at2l: 20, is unsupported.
Finally, citation to cases under the Americans with Disabilities Act, Mem. at22-24, is immaterial
to the question of whether Plaintiffs have standing under the FHA. Binding U.S. Supreme Court and
Ninth Circuit precedent provide all the guidance that is needed with respect to Plaintiff s standing to sue
under the FHA. See Havens, 455 U.S. a|363; Smithv. Pacific Properties and Development Corp.,358
F.3d 1097, 1 105 (9th Cir.2004); Fair Housing of Marin v. Combs, 285 F.3d at 905 (9th Cir. 2002)
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. Inc.. et al: Memorandum Of Points And Authorities In Support Of Plaintiffs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs' Frrst Amended Complaint
I J
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IV.
for the foregoing reasons,
CONCLUSION
Wherefore,
Dismiss [Doc.60].
Plaintiffs pray that the Court deny Highpointe's Motion to
Dated: Februarv 19.2008
Respectfully submitted,
/s/ D. Scott Chang
Michael Allen
Stephen M. Dane
John P. Relman
Thomas J. Keary
Pending admissionpro hac vice
D. Scott Chang, #146403
Relman &Dane, PLLC
1225 l9th Street, NW, Suite 600
Washington, DC 20036
Telephone : (202) 7 28-1888
Fax: (202) 728-0848
Attorneys for Plaintffi
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National Fair Housing Alliance. et al. v. A.G. Spanos ConStruction" I c.. et al: Memorandum Of Points And Authorities In Support Of PlaintifB'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintifls'First Amended Complaint
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 17 of 18
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CERTIFICATE OF SERVICE
I hereby certify that on this the lgth day of February 2008, I filed the foregoing Memorandum of
Points and Authorities In Support of Plaintiffs' Opposition to Defendant Highpointe Village L.P.'s
Motion to Dismiss Plaintiffs'First Amended Complaint with the Court's ECF system, which sent
electronic notice to:
Stephen Walters
Makesha Patterson
Allen Matkins Leck,, Gamble, Mallory & Natsis, LLP
Three Embarcadero Center, l2th Floor
San Francisco, CA 94lll
swalters @all enmatkins. com
mp atterso n @allet:.rr:tatkin s. c o m
Attorneys for Defendant Knickerb o cker Pr opertie s
Thomas Keeling
Lee Roy Pierce Jr.
Freeman, D'Aiuto, Pierce, Gurev, Keeling & Wolf
1818 Grand Canal Boulevard
Stockton, California
tkeeling@freemanfi rm. com
Attorneyfor Defendants A.G. Spanos Construction, Inc.,
A.G. Spanos Development, Inc., A.G. Spanos Land Company, Inc.,
A.G. Spanos Management, Inc., and The Spanos Corporation
Shirley Jackson
Steefel, Levitt, & Weiss, LLP
One Embarcadero Center, 30th Floor
San Francisco, CA 94lll
sjackson@steefel.com
Attorney for Defendant Highpointe Village, L.P.
/s/ Nicholas Cain
Nicholas Cain
National Fair Housing Alliance. et al. v. A.G. Spanos Construction. lnc.. et al: Memorandum Of Points And Authorities ln Support Of Plainti{fs'Opposition
To Defendant Highpointe Village's Motion To Dismiss Plaintiffs'First Amended Complaint
l 5
Case 4:07-cv-03255-SBA Document 76 Filed 02/19/2008 Page 18 of 18
