Creason v. Singh et al, No. 3:2013cv03731 - Document 34 (N.D. Cal. 2013)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS by Judge Jon S. Tigar, granting in part and denying in part 11 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 11/26/2013)
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Creason v. Singh et al Doc. 34 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JANE L. CREASON, 7 Case No. 13-cv-03731-JST Plaintiff, 8 v. 9 PUNEET KAUR SINGH, et al., 10 Defendants. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS Re: ECF No. 11 United States District Court Northern District of California 11 12 I. INTRODUCTION Defendants Paneet Kaur Singh, Theodore Kimball and Kimball, Tirey & St. John LLP 13 14 (“KTC”) (collectively, “Defendants”) have moved to dismiss Plaintiff Jane Creason’s (“Plaintiff”) 15 complaint. ECF No. 11. 16 II. BACKGROUND Factual Background1 17 A. 18 Plaintiff, a trial attorney, worked for Defendant KTS, a law firm that represents owners and 19 20 21 22 23 24 25 26 27 28 1 On a motion to dismiss, the Court takes these factual allegations from the Complaint and deems them to be true. The Court also GRANTS Defendants’ request for judicial notice of the unlawful detainer complaint filed against Tenant A, and the documents submitted with it. ECF No. 12. “A court may . . . consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The unlawful detainer complaint is incorporated into the complaint by reference, the complaint is noticeable as the record of another court proceeding, and Plaintiff’s only objection to the notice has to do with the failure to redact names rather than its noticeability. ECF No. 19. As for Plaintiffs’ requests for judicial notice, ECF No. 18, she has not supported the request with sufficient authority demonstrating their noticeability, and Defendants have objected to notice on evidentiary grounds. ECF No. 21-1. The Court OVERRULES those objections for the purposes of resolving this motion, since considering the submissions would not alter the Court’s resolution of the motion. In considering all of these documents, the Court does not assume the truth of disputed factual assertions contained therein. Dockets.Justia.com 1 managers of residential and commercial properties. Complaint ¶¶ 2, 5, ECF No. 1.2 In summer 2 2012, Plaintiff worked on a matter in which KTS represented a residential landlord. ¶¶ 14, 30. 3 The landlord maintained a lease contract for a residential building in Novato, California, with 4 three tenants, including two tenants referred to in this order as “Tenant A” and “Tenant B.” Exh. 1 5 to Declaration of Corrie J. Klekowski 1-5 (“Klekowski Decl.”), ECF No. 13; Complaint ¶ 12. In May 2012, on behalf of the landlord KTS, prepared and served a Notice To Quit and 6 7 filed an Unlawful Detainer nuisance action against Tenant A, claiming that Tenant A had 8 assaulted Tenant B, engaged in a loud extended argument, and later barricaded himself in the 9 apartment, telling police that he had firearms and was prepared to kill himself and others, and 10 requiring the entire building to be evacuated. Exh. 1 to Klekowski Decl. 1-12-13; Complaint ¶ 12. Tenant B answered the unlawful detainer action on her own behalf, raising a “domestic United States District Court Northern District of California 11 12 violence” defense to eviction pursuant to Section 1161.3(a) of the California Code of Civil 13 Procedure. ¶ 18-20. Plaintiff informed Defendant Singh, Managing Partner of KTS’s Northern 14 California office, of various facts about Victim B’s defense, but Defendant Singh “dismissed [her 15 concern].” ¶ 3, 25-26. At a court settlement hearing, Plaintiff discovered that Tenant B had a 16 “complete and valid domestic violence” defense to eviction. ¶ 28. Plaintiff, on behalf of KTS and 17 representing the landlord, negotiated a stipulation with Tenant B settling the unlawful detainer 18 action and allowing Tenant B to remain in the unit. ¶ 30. Defendant Singh then removed Plaintiff as attorney from a large account. ¶ 36. Plaintiff 19 20 was later terminated in a meeting in Defendant Singh’s office, with Defendant Kimball, KTS’s 21 founder, appearing telephonically. ¶ 41. Defendant Kimball stated that Plaintiff had mishandled 22 the case by settling it, and should have proceeded to trial, whether or not she won, “so that the 23 client would look good to the Novato Police Department and City Council.” ¶¶ 43-45. 24 B. 25 Plaintiff filed this action in August 2013 against the aforementioned named Defendants as 26 Procedural History well as Does 1-10. Complaint. In it, she brings four causes of action under the federal Fair 27 28 2 All “¶” references are to the complaint. 2 1 Housing Act (“FHA”): the first on the grounds that Defendants interfered with her because of her 2 advocacy of the rights protected by the FHA, pursuant to 42 U.S.C. § 3617, and the second 3 through fourth on the basis of regulatory provisions interpreting the scope of the FHA. ¶¶ 51-62. 4 The complaint also brings state-law causes of action under the California’s Fair Employment and 5 Housing Act and for tortious discharge in violation of public policy. ¶¶ 63-86. 6 C. 7 Plaintiff’s first four causes of action allege violation of the Fair Housing Act, a federal 8 Jurisdiction statute, and so the Court has jurisdiction over those claims pursuant to 28 U.S.C. § 1331. D. 9 Legal Standard “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 10 United States District Court Northern District of California 11 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 12 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Dismissal is also proper where the 13 complaint alleges facts that demonstrate that the complaint is barred as a matter of law. See 14 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Jablon v. Dean Witter & 15 Co., 614 F.2d 677, 682 (9th Cir. 1980). For purposes of a motion to dismiss, “all allegations of material fact are taken as true and 16 17 construed in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 18 F.3d 336, 337-38 (9th Cir. 1996). However, “[w]hile a complaint attacked by a Rule 12(b)(6) 19 motion to dismiss does not need detailed factual allegations, a Plaintiffs’ obligation to provide the 20 ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a 21 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 22 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a pleading must allege “enough fact to 23 raise a reasonable expectation that discovery will reveal evidence” to support the allegations. 24 Twombly, 550 U.S. at 556. 25 III. ANALYSIS 26 A. 27 The FHA makes it “unlawful to coerce, intimidate, threaten, or interfere with any person in 28 First Cause of Action the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of 3 1 his having aided or encouraged any other person in the exercise or enjoyment of, any right granted 2 or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. Section 3 3604(b) of that title, in turn, makes it unlawful “[t]o discriminate against any person in the terms, 4 conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities 5 in connection therewith, because of race, color, religion, sex, familial status, or national origin.”3 6 “To establish a prima facie case of retaliation [under Section 3617], a plaintiff must show that (1) 7 he engaged in a protected activity; (2) the defendant subjected him to an adverse action; and (3) a 8 causal link exists between the protected activity and the adverse action.” Walker v. City of 9 Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001). 1. 10 Protected Activity United States District Court Northern District of California 11 The complaint does not allege facts from which it could plausibly be inferred that Plaintiff 12 engaged in protected activity. The complaint does not suggest, and the Court does not understand 13 Plaintiff to argue, that Defendants interfered with Plaintiff herself exercising a right protected by 14 the FHA or that they retaliated against her for herself exercising such a right. Putting the 15 remaining elements together as pertinent to Plaintiff’s complaint, Plaintiff must therefore allege 16 that she “aided or encouraged . . . [an] other person” in exercising or enjoying the right to be free 17 from sex discrimination in housing. Plaintiff alleges in the complaint that she engaged in such activity because she “assisted a 18 19 [v]ictim of domestic violence based on sex,” and “aided Victim [i.e., Tenant B] in her housing 20 rights.” ¶¶ 62, 66. She also alleges that Defendants’ opposition to her litigation tactics interfered 21 with her “advocacy of the rights protected by the Fair Housing Act.” ¶ 53. The difficulty, of 22 course, is that Plaintiff’s job, and her ethical and professional responsibilities, were to represent 23 the landlord, the party adverse to Tenant B in the eviction proceeding. Tenant B may have had a 24 meritorious defense to the eviction proceedings; perhaps it was true, or least Plaintiff felt it was 25 26 27 28 3 Defendants assert, and it appears to the Court, that Section 3604(b) contains the only provision cited in 42 U.S.C. § 3617 that might form the predicate for Plaintiff’s Section 3617 cause of action. Plaintiff does not point to any other provision of Sections 3603, 3604, 3605 or 3606 that might be applicable. 4 1 true, that Tenant B’s cause was the more noble one. But Tenant B was not her client. 2 In her opposition brief, Plaintiff puts it differently.4 She now claims that because she 3 “advocated for her client by negotiating a Stipulation to avoid housing discrimination based on sex 4 (a right protected by § 3604), she engaged in a protected activity and has a valid claim under 42 5 U.S.C. § 3617.” Plaintiff’s Opposition to Motion to Dismiss (“Opp.”) 3:25-28., ECF No. 16. She 6 also argues that it constitutes protected activity to “compl[y] with Fair Housing Laws,” and to 7 “ensure[] the eviction did not discriminate.” Opp. 8:17-19. 8 First of all, “[i]t is axiomatic that the complaint may not be amended by briefs in 9 opposition to a motion to dismiss.” Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1145 (N.D. Cal. 2010) (quoting Barbera v. WMC Mortgage Corp., No. C 04–3738(SBA), 2006 WL 167632, at *2, 11 United States District Court Northern District of California 10 n. 4 (N.D. Cal. Jan. 19, 2006)). Plaintiff’s brief is much more of a retraction of her original 12 allegations than a ‘clarification.’ Cf. Pegram v. Herdrich, 530 US 211, 230, n. 10 (2000). But even if the Court were to recast the complaint to make these allegations, they do not 13 14 state a claim. Plaintiff cites no case that, even by analogy, suggests that it is protected activity for 15 a non-landlord party to merely “comply” with Fair Housing laws, or to negotiate the resolution of 16 a case in a way that has the effect of avoiding potential violation of those laws. Section 3617 17 specifically protects those who “aid[] or encourage[] . . . [an] other person” in the exercise of the 18 exercise of that person’s housing rights. It does not encompass those who aid or encourage a 19 different party to engage in behavior that arguably has the effect of avoiding violation of housing 20 laws. At oral argument, Plaintiff’s counsel suggested that Plaintiff could have been aiding and 21 22 23 24 25 26 27 28 4 Plaintiff suggests that Defendants are somehow are being unfair by suggesting that she was aiding the tenant. See Opp. 16:25-26 (“Defendants argue that JANE CREASON was advocating for the tenant. Reading the Complaint in its entirety, this interpretation cannot be true.”). The complaint states specifically that Plaintiff was aiding and assisting the tenant. ¶¶ 62, 66. For this reason, the Court declines Plaintiff’s invitation to convert this motion into a summary adjudication of whether Plaintiff was, as she alleges in the complaint, advocating for Tenant B. On a motion to dismiss, the Court deems all matters alleged in the complaint to be true. Defendants have not “raised extrinsic matter outside the Complaint” in pointing out what the complaint itself says, and the documents of which Defendants sought judicial notice do not relate to the allegation that Plaintiff was advocating for the tenant. 5 1 encouraging Tenant B insofar as she was fulfilling her ethical and professional duty to Tenant B 2 not to subject Tenant B to a malicious prosecution. Even on that theory, however, Plaintiff’s 3 purpose in doing so would be to avoid a malicious prosecution, not to aid or encourage a tenant in 4 the exercising of her housing rights. Again, Plaintiff cites no authority adopting such an expansive 5 interpretation of Section 3617’s “aid or encourage” requirement. 6 Finally, Plaintiff argues that it is “implied in the complaint” that she was fired for 7 “refus[ing] to participate in a discriminatory housing practice.” The Court does not agree that that 8 implication is clear from the complaint. But even if it were, that allegation suffers from the same 9 infirmity as the others. 10 The Court does not suggest that attorneys representing landlords or, for that matter, United States District Court Northern District of California 11 attorneys in general bear no ethical responsibilities towards adverse parties, and neither does it 12 intend to diminish the importance of attorneys ensuring that their clients do not violate the FHA. 13 But Plaintiff has failed to demonstrate that she has a viable FHA claim on the facts alleged in the 14 complaint. 15 16 2. Sex Discrimination under the FHA for Domestic Violence Defendants also argue that Plaintiff has not stated a claim since “Section 3604 prohibits 17 gender discrimination, not evicting domestic violence victims.” Motion 7:22-23. The Court does 18 not reach the question to decide the motion, but addresses it for the benefit of the parties in the 19 event Plaintiff amends her complaint. 20 There is persuasive authority that, at least in some cases, evicting a tenant with a valid 21 domestic violence defense could constitute discrimination on the basis of sex in violation of 22 Section 3604. Opp. 3. See Kristen M. Ross, Note, Eviction, Discrimination, and Domestic 23 Violence: Unfair Housing Practices Against Domestic Violence Survivors, 18 Hastings Women’s 24 L.J. 249, 264 (2007) (noting that HUD took such a position in United States and Alvera v. C.B.M. 25 Group, Inc., No. 01-857-PA (D. Or. filed June 8, 2001)); see also Bouley v. Young-Sabourin, 394 26 F. Supp. 2d 675, 678 (D. Vt. 2005) (holding that, if proven, plaintiff’s claims -- that her lease was 27 terminated because she was a victim of domestic violence, and because she refused to listen to a 28 landlord’s attempt to talk to her about religion -- “could constitute unlawful discrimination under 6 1 the Fair Housing Act”). 2 This Court agrees with the holding in Bouley that the eviction of a tenant because she is a 3 victim of domestic violence might constitute unlawful discrimination under the Fair Housing Act. 4 Id. 5 B. Second, Third and Fourth Causes of Action 6 Defendants argue, and Plaintiff does not dispute, that these “causes of action” only recite 7 regulations interpreting the scope of the FHA, and do not provide any separate rights of action 8 distinct from Plaintiff’s first cause of action. Moreover, the regulatory provisions do not even appear to apply to the facts alleged in the 9 complaint. The second “cause of action” invokes 24 C.F.R. § 100.60(b)(5),5 which prohibits 11 United States District Court Northern District of California 10 landlords from evicting tenants for discriminatory reasons, but Plaintiff is not a tenant and 12 Defendants are not landlords. In the third “cause of action,” Plaintiff invokes 24 C.F.R. 13 § 100.70(d)(1), which prohibits “[d]ischarging or taking other adverse action against an employee, 14 broker or agent because he or she refused to participate in a discriminatory housing practice.” But 15 the title of this provision is “Other prohibited sale and rental conduct,” and the provision Plaintiff 16 cites is specifically limited to “conduct relating to the provision of housing or of services and 17 facilities in connection therewith that otherwise makes unavailable or denies dwellings to 18 persons.” 24 C.F.R. § 100.70(b). Plaintiff cites no authority for the proposition that this language 19 extends to actions by a law firm and lawyers who provide legal services to landlords. The fourth “cause of action” at least interprets a provision applicable to Plaintiff’s first 20 21 cause of action, 24 C.F.R. § 100.40(c)(3). But the cited provision applies only to those who make 22 an “effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to 23 any residential real estate-related transaction.” Id. For the same reasons discussed supra, Plaintiff 24 cannot plausibly claim to have been making efforts to assist a person seeking access to housing. Plaintiff makes no argument in her opposition that would salvage these three causes of 25 26 action. 27 28 5 The Complaint actually says “100.60(5).” ¶ 55. 7 1 C. State-Law Causes of Action 2 “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance 3 of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, 4 fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state- 5 law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7 (1988). Since Plaintiff has 6 failed to state a viable federal claim, and the only federal jurisdiction asserted is federal question 7 jurisdiction, the Court will decline to exercise supplemental jurisdiction over the fifth and sixth 8 causes of action at this time. However, if Plaintiff amends her complaint, the Court urges her to evaluate the arguments 10 Defendants made in their motion to dismiss and make whatever amendments she thinks necessary 11 United States District Court Northern District of California 9 in light of those arguments. 12 D. Individual Defendants 13 Defendants also argue that Plaintiffs’ allegations “cannot support a cause of action against 14 the individual supervisors, Kimball and Singh.” Motion 16:6-7. Most of these arguments deal 15 with Plaintiff’s state-law claims, although Defendants argue the same principle applies to her FHA 16 claims as well. Motion 16:24-17:2. The only authority they cite for this proposition, however, 17 does not deal with the FHA at all. See Miklosy v. Regents of Univ. of California, 44 Cal. 4th 876, 18 900 (2008). Defendants have failed to meet their burden of demonstrating that Plaintiff may not 19 bring an FHA action against Defendants Kimball and Singh. 20 E. Leave to Amend 21 Plaintiff has leave to file an amended complaint that re-asserts her FHA claim, if she can 22 state additional facts not alleged in the current complaint which demonstrate that she “aided or 23 encouraged . . . [an] other person” in exercising or enjoying that other person’s right to be free 24 from discrimination in housing. 25 The Court will not grant Plaintiff leave to re-allege her second through fourth causes of 26 action, since they fail as a matter of law to invoke any right of action. She may allege violations 27 of the regulatory provisions as predicates for her FHA cause of action, but only if she can amend 28 the complaint to allege additional facts that overcome the deficiencies discussed at III-B, supra. 8 With any amended complaint, Plaintiff must, in a separate document, describe the 1 2 amendments she has made to overcome the deficiencies addressed in this order. 3 IV. 4 CONCLUSION Defendant’s motion to dismiss the complaint is GRANTED IN PART and DENIED IN 5 PART. Plaintiff’s first cause of action is DISMISSED WTHOUT PREJUDICE, her second 6 through fourth causes of action are DISMISSED WITH PREJUDICE, and the Court does not 7 exercise jurisdiction over Plaintiffs’ fifth and sixth causes of action. 8 Plaintiff is ORDERED to file any amended complaint within twenty-one days of the date 9 of this order. Failure to file an amended complaint by that date, or to otherwise comply with the 10 United States District Court Northern District of California 11 12 13 14 terms of this order, will result in dismissal with prejudice. IT IS SO ORDERED. Dated: November 26, 2013 ______________________________________ JON S. TIGAR United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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