Ismael Jimenez et al v. David Y Tsai et al, No. 5:2016cv04434 - Document 62 (N.D. Cal. 2017)

Court Description: ORDER Granting in Part and Denying in Part 40 Defendants' Motion to Dismiss. Any amended complaint shall be filed no later than 7/7/2017. Signed by Judge Edward J. Davila on 6/5/2017. (ejdlc3S, COURT STAFF) (Filed on 6/5/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 ISMAEL JIMENEZ, et al., 8 Case No. 5:16-cv-04434-EJD Plaintiffs, 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. 10 DAVID Y TSAI, et al., 11 Re: Dkt. No. 40 United States District Court Northern District of California Defendants. 12 Plaintiffs1 are four low-income Latino families residing at Las Animas Apartments in 13 14 Gilroy, California. Plaintiffs bring this action, on behalf of themselves and their minor children, 15 against the property owner, David Tsai, and property managers, Undine Tsai and Shang Shen 16 (collectively, “Defendants”), for damages arising from the poor living conditions present at the 17 Las Animas Apartments. Plaintiffs allege that Defendants continued failure to properly maintain 18 or make necessary repairs to the property violates the Federal and California Fair Housing Act 19 (“FHA”), and gives rise to related state law claims. Presently before the court is Defendants’ 20 Motion to Dismiss Claims I-VIII of Plaintiffs’ First Amended Complaint (“FAC”) pursuant to 21 Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Dkt. No. 40 (“MTD”). The court has subject matter jurisdiction over Plaintiffs’ Federal FHA discrimination 22 23 claims in this action pursuant to 28 U.S.C. § 1331, and maintains supplemental jurisdiction over 24 25 26 27 28 1 Plaintiffs include individuals Ismael Jimenez, Yolanda Jimenez, Angeles Jimenez, Antonio Jimenez, Carmentina Herrera, Luis Alvarez, Ebaristo Alavez, Josefa Jimenez, Jesucita Ortiz, and Rodolfo Robles, as well as Project Sentinel, a California non-profit corporation, that joins in bringing this action on behalf of itself and the general public. 1 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Based on a careful review of the parties’ 2 briefing, as well as the arguments of counsel at the hearing held on April 20, 2017, Defendants’ 3 Motion will be GRANTED IN PART and DENIED IN PART for the reasons explained below. 4 5 I. BACKGROUND Plaintiffs are self-described “low income Latino residents” of Las Animas Apartments. 6 The Las Animas Apartments are comprised of two complexes in Gilroy, California: a 32-unit 7 building located at 611 E. 7th Street, as well as a 20-unit building located at 590 Stoney Court, 8 (collectively “the Gilroy Complexes”). 9 Ismael Jimenez, Yolanda Jimenez, Antonio Jimenez, Angeles Jimenez, and Angeles’ two minor children – “N.J.” (age 14) and “S.J.” (age 8) – (collectively “the Jimenez Family”) are 11 United States District Court Northern District of California 10 residents of the Gilroy Complex at 590 Stoney Court. FAC ¶ 8. The Jimenez Family has lived at 12 this location since November 2008. Id. The members of the Jimenez Family identify as Latino 13 and are of Mexican descent. Id. 14 Carmentina Herrera, her adult son Luis Alvarez, and her three minor children – “B.A.” 15 (age 16), “S.A.” (age 15), and “A.A.” (age 12) – (collectively “the Herrera Family”) are all 16 residents of the Gilroy Complex at 590 Stoney Court and have lived there since February 2015. 17 Id. ¶ 9. The members of the Herrera Family identify as Latino and are of Mexican descent. Id. 18 Ebaristo Alavez, Josefa Jimenez, and their five minor children – “G.A.” (age 17), “J.A.” 19 (age 14), “D.A.” (age 12), “C.A.” (age 8), and “A.A.” (age 6) – (collectively, “the Alavez- 20 Jimenez Family”) are all residents at 590 Stoney Court and have lived there since November 2008. 21 Id. ¶ 10. The members of the Alavez-Jimenez Family identify as Latino and are of Mexican 22 descent. Id. 23 Jesucita Ortiz, Rodolfo Robles, and their five minor children – E.R.” (age 14), “E.R.” (age 24 12), “J.D.R.” (age 10), “L.R.” (age 7), and “A.R.” (age 6) – are residents at 611 E. 7th Street in 25 Gilroy, California. They have lived there since October 2009. Ms. Ortiz and Mr. Robles identify 26 as Latino and are of Mexican descent. 27 28 2 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 Project Sentinel is a non-profit California corporation with its principal place of business 2 located at 1490 El Camino Real, in Santa Clara, California. Compl. FAC ¶ 12 “Project Sentinel’s 3 mission is to develop and promote fairness and equality of housing for all persons and to advocate 4 peaceful resolution of disputes for community welfare and harmony and one of its specific goals is 5 the elimination of all forms of illegal housing discrimination.” Id. In pursuit of this mission, 6 Project Sentinel engages in activities including “(1) investigating allegations of discrimination; (2) 7 conducting tests of housing facilities to determine whether equal opportunity in housing is 8 provided; (3) taking such steps as it deems necessary to assure such equal opportunity and to 9 counteract and eliminate discriminatory housing practices; and, (4) providing outreach and 10 United States District Court Northern District of California 11 education to the community regarding fair housing.” Id. The Gilroy Complexes are owned by Defendant David Tsai, who currently resides in Santa 12 Clara County, California . FAC ¶ 13. Defendant Undine Tsai owns residential rental properties 13 located at 10160 and 10162 Park Circle West in Cupertino, California (the “Cupertino 14 Properties”). Plaintiffs assert that Undine Tsai also actively participates in management of each of 15 the Gilroy Complexes and the properties in Cupertino. FAC ¶ 14. Plaintiffs contend, on 16 information and belief, that Defendant Shang Shen is the property manager at the Gilroy 17 Complexes. 18 Plaintiffs allege that residents at the Gilroy Complexes have long endured unsanitary and 19 unsafe living conditions, including, inter alia, infestations of rats, mice, roaches, and bedbugs; 20 serious sewage back-ups and plumbing leaks; lack of operating heaters; pervasive mold, especially 21 in bathrooms; dangerous electrical problems, unsecured locks on the doors, inadequate lighting, 22 and loose railings and rotting second floor walkways. FAC ¶¶ 2, 34, 42, 51, 55, 66, 73, 80. That 23 despite knowing of these persistent unhealthy and unsafe conditions, Defendant owner David Tsai 24 and Defendant property managers Undine Tsai and Shang Shen largely ignored Plaintiffs’ 25 numerous requests for repairs and complaints regarding the habitability of their apartment units. 26 FAC ¶¶ 2, 35, 42-44, 51-52, 55-60, 66-68. 27 28 3 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 Plaintiffs further allege that the poor conditions of the Gilroy Complexes stand in stark 2 contrast to the conditions of the Cupertino Property owned by Defendant Undine Tsai. Based on a 3 survey conducted by Project Sentinel, Plaintiffs allege that “the majority of responsive households 4 at the Cupertino property stated that there were no maintenance issues in their units” and indicated 5 that “they were satisfied with the time it took for repairs to be made.” FAC ¶ 76. Plaintiffs 6 represent that the Cupertino Property is made up East Asian, Indian, and White residents, and has 7 no known Latino households. FAC ¶ 77. 8 With respect to the Jimenez Family specifically, Plaintiffs allege that on April 27, 2016, representatives from the Law Foundation of Silicon Valley visited the Jimenez Family’s unit. 10 FAC ¶ 46. On June 7, 2016, Defendants served the Jimenez Family with a 60-Day Notice of 11 United States District Court Northern District of California 9 termination of tenancy. Id. And one day later, on June 8, 2016, Plaintiffs allege that Defendant 12 Undine Tsai came to the Jimenez Family’s apartment unit and asked “whether any lawyers had 13 come to ask them about the conditions of their unit.” Id. On July 13, 2016, an attorney with the 14 Law Foundation of Silicon Valley sent a letter on behalf of the Jimenez Family to Defendant 15 David Tsai seeking rescission of the 60-Day Notice as retaliatory. FAC ¶ 47. On July 19, 2016, 16 counsel for Defendants responded, asserting that the notice to terminate tenancy was not 17 retaliatory and “providing alternative reasons to terminate tenancy not included in the 60-Day ‘no- 18 cause’ notice.” Id. 19 Plaintiffs filed the original complaint in this case (Dkt. No. 1) on August 5, 2016. FAC 20 ¶ 48. Eleven days later on August 16, 2016, Defendant David Tsai filed an unlawful detainer 21 action against the Jimenez Family. FAC ¶ 49. 22 Apart from the concerns regarding the conditions of the property, Plaintiffs also contend 23 that Defendants regularly intimidated children at the Gilroy Complexes in an effort to prevent 24 them from playing outside and in the common areas. Plaintiffs allege that Shang Shen, the on-site 25 property manager, yelled at their children on numerous occasions for playing outside, ordered 26 Plaintiffs to remove a basketball hoop in their own yard, took balls and toys away from the 27 28 4 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 children, and even nailed shut Ms. Ortiz and Mr. Robles’ fence to prevent the children from 2 having access to the common area. FAC ¶¶ 3, 30-31, 41, 62-64. Plaintiffs contend that 3 Defendants’ actions, behaviors, and practices have created such a hostile environment that when 4 children see Shang Shen, they retreat indoors out of fear. Id. ¶ 3. According to Plaintiffs, this has 5 resulted in families with children being “unable to fully enjoy the place where they live.” Id. 6 II. LEGAL STANDARD 7 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient 8 specificity to “give the defendant fair notice of what the… claim is and the grounds upon which it 9 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although particular detail is not generally necessary, the factual allegations “must be enough to raise a right to relief above the 11 United States District Court Northern District of California 10 speculative level” such that the claim “is plausible on its face.” Id. at 556-57. A complaint which 12 falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief 13 can be granted. Fed. R. Civ. P. 12(b)(6). Dismissal of a claim under Rule 12(b)(6) may be based 14 on a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 15 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988); see 16 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 17 At the motion to dismiss stage, the court must read and construe the complaint in the light 18 most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th 19 Cir. 1996). The court must accept as true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 20 556 U.S. 662, 664 (2009). However, “courts are not bound to accept as true a legal conclusion 21 couched as a factual allegation.” Twombly, 550 U.S. at 555. “In all cases, evaluating a 22 complaint’s plausibility is a context-specific endeavor that requires courts to draw on ... judicial 23 experience and common sense.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) 24 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 25 26 27 28 When deciding whether to grant a motion to dismiss, the court generally “may not consider any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 5 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 1542, 1555 n. 19 (9th Cir. 1990). However, the court may consider material submitted as part of 2 the complaint or relied upon in the complaint, and may also consider material subject to judicial 3 notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). In the event that a 4 motion to dismiss is granted, “leave to amend should be granted ‘unless the court determines that 5 the allegation of other facts consistent with the challenged pleading could not possibly cure the 6 deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting 7 Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 8 III. 9 10 DISCUSSION A. Undine Tsai is a Proper Party to this Action As an initial matter, Defendants argue that Undine Tsai is not a proper party to this action United States District Court Northern District of California 11 because she has no ownership interest in the Gilroy Complexes at issue. See MTD at 6. In 12 support of this position, Defendants request that the court take judicial notice of three Grant Deeds 13 filed at the Santa Clara Recorder’s Office regarding the properties. See Dkt. No. 41 (“RJN”). The 14 deeds show that on October 27, 2006, David Tsai transferred his legal interest in the Cupertino 15 property to his wife, Undine Tsai, and on the same day, Undine Tsai transferred her legal interest 16 in both Gilroy properties to her husband, David Tsai. Id. at Exs. A-C. Accordingly, Defendants 17 move to dismiss all claims against Undine Tsai as a matter of law. 18 Notwithstanding this evidence, the court finds that Plaintiffs sufficiently allege potential 19 liability as to Undine Tsai that is independent of any legal interest in the Gilroy Complexes. 20 Plaintiffs allege that Undine Tsai was a property manager for the Gilroy Complexes and “actively 21 participate[d] in management of” each of the Gilroy and Cupertino properties. FAC ¶¶ 2, 14, 16 22 109. In her capacity as property manager, Plaintiffs contend that Undine Tsai knew of unsanitary 23 and unsafe conditions at the Gilroy Complexes - including a lack of adequate heating, “sewage 24 backups, dangerous electrical problems, and infestations of rats, roaches and bedbugs” - and 25 “ignored Plaintiffs’ numerous requests to repair these significant problems.” FAC ¶ 2. Plaintiffs 26 further alleged that it was Undine Tsai who had contacted the Jimenez family in person at their 27 28 6 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 home and questioned them regarding “whether any lawyers had come to ask them about the 2 conditions of their unit.” FAC ¶ 46. Notably, this is one of the specific actions Plaintiffs plead as 3 the basis for their retaliation claim. See id. ¶¶ 46, 119, 123, 127. These allegations relate 4 specifically to claims against Undine Tsai, regardless of her ownership interest in the Gilroy 5 Complexes. See Hurd v. Ramona Land Co., 2003 WL 23281593, at *4 (N.D. Cal. Nov. 12, 2003) 6 (holding that an apartment manager could be individually liable to tenant for housing 7 discrimination if it discriminated against the tenant while acting within its authority). 8 It is also possible – as Plaintiffs argue – that as the property manager for the Gilroy 9 Complexes, Undine Tsai could be held vicariously liable for the alleged discriminatory actions of Defendant Shang Shen, if Shang Shen was acting as an agent or employee of Undine and David 11 United States District Court Northern District of California 10 Tsai when he took any such actions. See United States v. Youritan Const. Co., 370 F. Supp. 643, 12 649 (N.D. Cal. 1973), aff’d in part, remanded in part, 509 F.2d 623 (9th Cir. 1975) (explaining 13 that the “discriminatory conduct of an apartment manager or rental agent is, as a general rule, 14 attributable to the owner and property manager of the apartment complex,” and holding that a 15 manager may be liable for the discrimination of its agent where the manager’s lack of supervision 16 or failure to establish appropriate policies and standards results in discrimination). 17 Accepting these factual allegations as true for the purposes of the instant Motion, Plaintiffs 18 have adequately advanced legal theories under which Undine Tsai could be directly liable for her 19 personal conduct in managing the properties, and/or vicariously liable for the conduct of her 20 agents or employees. Accordingly, Undine Tsai is a proper defendant to the claims asserted in this 21 action. Defendants’ Motion to Dismiss all claims against Undine Tsai as an improper party is 22 therefore DENIED. To the extent that Defendants’ Reply brief challenges the sufficiency of the 23 factual allegations in stating a legal claim – i.e. that Plaintiffs “fail to assert facts…that [Undine 24 Tsai’s] failure to repair was based on discrimination” – such challenges will be addressed with 25 Defendants’ other 12(b)(6) arguments. See Dkt. 54 (“Reply”) at 3. 26 27 28 7 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 B. Discrimination Claims 2 Plaintiffs’ first four causes of action assert claims for violations of the federal Fair Housing 3 Act (“FHA”) and California’s Fair Employment and Housing Act (“FEHA”). Plaintiffs allege that 4 Defendants discriminated against them in the terms, conditions, privileges, and services provided 5 at the Gilroy Complexes by failing to maintain adequate, sanitary, and safe living conditions, and 6 by prohibiting children from playing outside and otherwise enjoying the facilities on the property. 7 FAC ¶¶ 94, 97, 100, 104. Plaintiff alleges that such discrimination occurred on the basis of 8 familial status, race, and national origin. Id. 9 The Fair Housing Act (FHA) makes it “unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental, or in the provision of services or facilities in 11 United States District Court Northern District of California 10 connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 12 U.S.C. § 3604(b). The Secretary of Housing and Urban Development (“HUD”) - the agency 13 tasked with implementing FHA - further provides that discrimination “in the provision of services 14 or facilities” includes “failing or delaying maintenance or repairs” of a rental dwellings, or 15 “limiting the use or privileges, services, or facilities associated with a dwelling,” on account of 16 “race, color, religion, sex, handicap, familial status, or national origin.” 24 C.F.R. § 100.65(a)(1), 17 (4); see The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th 18 Cir. 2009). Thus, the FHA not only requires that individuals be given the opportunity to secure 19 housing in a non-discriminatory manner, but also “guarantees their right to equal treatment once 20 they have become residents of that housing.” Hous. Rights Ctr. v. Sterling, 404 F. Supp. 2d 1179, 21 1192 (C.D. Cal. 2004); Patton v. Hanassab, 2016 WL 4507022, at *6 (S.D. Cal. Aug. 29, 2016). 22 “A plaintiff can establish a FHA discrimination claim under a theory of disparate treatment 23 or disparate impact.” Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). Disparate treatment 24 discrimination claims brought under the FHA are subject to the burden shifting framework set 25 forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a 26 plaintiff must first make a prima facie case of discrimination. If the plaintiff succeeds, the burden 27 28 8 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 shifts to the defendant to articulate a legitimate reason for the discriminatory conduct. McDonnell 2 Douglas, 411 U.S. at 802. If the defendant articulates such a reason, the burden again shifts back 3 to the plaintiff to show that the reason offered by the defendant was merely a pretext for 4 discrimination. Id. To state a prima facie case for discrimination under § 3604(b), a plaintiff must 5 demonstrate: (1) that they are a member of a protected class; (2) that they suffered adverse 6 treatment in regards to housing; and (3) the protected class was in part a motivating factor for the 7 adverse treatment. Harris, 183 F.3d at 1051. “Establishing the prima facie case affords the 8 plaintiff a presumption of discrimination.” Id. The provisions of FEHA at issue in this case protect substantially the same rights as the 9 relevant FHA provisions and are subject to the same analysis. 2 Walker v. City of Lakewood, 272 11 United States District Court Northern District of California 10 F.3d 1114, 1131 n. 8 (9th Cir. 2001) (“Because we apply the same standards to FHA and FEHA 12 claims, [citation], the McDonnell Douglas analysis applies to the FEHA claim as well.”); Cabrera 13 v. Alvarez, 977 F. Supp. 2d 969, 975 (N.D. Cal. 2013); see also Guz v. Bechtel Nat’l, Inc., 24 14 Cal.4th 317, 354 (2000) (noting that because state and federal discrimination laws are similar, 15 California courts look to pertinent federal precedent in applying California statutes). Accordingly, 16 these claims will be addressed together. See Inland Mediation Bd. v. City of Pomona, 158 F. 17 Supp. 2d 1120, 1150 (C.D. Cal. 2001) (“[T]o the extent that the provisions of FEHA address the 18 same rights as the provisions of the FHA, and to the extent that the Court has found that Plaintiffs 19 have raised triable issues of fact as to their FHA claims, Plaintiffs have also raised triable issues of 20 fact with respect to the corresponding FEHA claims.”). 21 i. Defendants argue that Plaintiffs fail to state a claim for discrimination on the basis of race 22 23 Race and National Origin or national origin because they allege no facts connecting Defendants’ purported failure to provide 24 25 26 27 28 2 Government Code Section 12955 states that it is unlawful for “the owner of any housing accommodation to discriminate against or harass any person because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.” Patton v. Hanassab, No. 14CV1489 AJB WVG, 2015 WL 589460, at *4 (S.D. Cal. Feb. 12, 2015); 9 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 necessary repairs and maintenance with Plaintiffs’ race or national origin. MTD at 8. 2 The court disagrees. At this stage, Plaintiffs have plead facts giving rise to a facially 3 plausible claim that Plaintiffs’ race or national origin was a motivating factor in Defendants’ 4 conduct. Plaintiffs allege that “[a]ll or almost all of the residents of the Gilroy Complexes identify 5 as Latino,” and the majority of the residents are of Mexican descent. FAC ¶ 33. Plaintiffs allege 6 that the Gilroy Complexes are rife with dangerous, unsanitary, and uninhabitable conditions, 7 including infestations of rats, mice, roaches, and bedbugs, sewage back-ups and plumbing leaks, 8 lack of operating heaters, pervasive mold, and rotting walkways. FAC ¶¶ 34, 42, 51, 55, 66, 73, 9 80. Plaintiffs assert that residents “regularly make repair requests and complaints about their respective units’ habitability problems” to Defendants, but Defendants “largely ignore” complaints 11 United States District Court Northern District of California 10 and repair requests at the Gilroy Complexes. FAC ¶¶ 35, 42-44, 51-52, 55-60, 66-68. In contrast, 12 based on a survey Project Sentinel conducted in connection with this case, Plaintiffs allege that 13 “the majority of responsive households at the Cupertino property stated that there were no 14 maintenance issues in their units” and indicated that “they were satisfied with the time it took for 15 repairs to be made.” FAC ¶ 76. Plaintiffs represent that the Cupertino Property is made up East 16 Asian, Indian, and White residents, and has no known Latino households. FAC ¶ 77. Plaintiffs 17 contend that “the only apparent reason for the difference in maintenance of the properties appears 18 to be the national origin and race of the tenants at the two properties.” Opp. at 9-10. Defendants encourage the court to disregard the comparison Plaintiffs draw between the 19 20 Gilroy Complexes and the Cupertino apartments because the properties have different ownership. 21 Id. at 7-8. Specifically, Defendants argue that “David Tsai, the owner of the Gilroy Complexes 22 has no ownership in the Cupertino apartment complexes, and therefore, these Cupertino properties 23 have no bearing on or relation to the action at hand.” Id. However, this argument is significantly 24 less persuasive given that David Tsai and Undine Tsai appear to be a married couple,3 both of 25 26 27 28 3 See RJN, Exs. A-C, Dkt. No. 41 (showing that David and Undine Tsai transferred their respective legal interests in the specified properties to one another through “intra-spousal transfers”); see also Opp. at 5 (referring to the intra-spousal property transfers between David and 10 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 whom participate in the management of the relevant complexes – a point Defendants neglect to 2 address when arguing that the apartments are “unassociated” and should be ignored by the court. 3 See id. at 7-8; RJN, Exs. A-C; FAC ¶¶ 2, 13-14, 16, 75, 109.4 4 Construing the allegations in the light most favorable to Plaintiffs, the court finds that 5 Plaintiffs have plead facts sufficient to state a claim for discrimination on the basis of race and 6 national origin under FEHA and the FHA. Accordingly, Defendants’ Motion to Dismiss is 7 DENIED as to claims Two and Four. 8 9 ii. Family Status Plaintiffs also allege that Defendants discriminated against them on the basis of family status by prohibiting kids at the Gilroy Complexes from playing outside on the property, enforcing 11 United States District Court Northern District of California 10 rules arbitrarily against kids, and creating such a hostile environment towards kids that it precludes 12 families with children from having equal use and enjoyment of the property. FAC ¶¶ 3, 94, 100. 13 Defendants argue that Plaintiffs have not made a prima facie case of discrimination 14 because they failed to show that they were subjected to “facially discriminatory rules which treat 15 children, and thus, families with children, differently and less favorably than adults-only 16 households.” MTD at 10. They argue that Plaintiffs have not identified a written policy or a 17 “hard and fast rule” entirely barring children from playing outside. Id. at 10-11. Rather, 18 Defendants assert that the instances where Defendant Shang Shen has stopped children from 19 engaging in certain activities, or the posted sign prohibiting skateboarding, bicycle riding, roller- 20 skating, rollerblading, and ball playing are “limited restrictions [that] do not rise to the level 21 necessary to support a claim under discrimination based on familial status.” Id. at 11. They 22 maintain that these are “not blanket restriction[s] stopping children from all play in common 23 24 25 26 27 28 Undine Tsai as having been made to “his wife” and “her husband”). 4 At the hearing on the instant Motion, counsel for both parties offered various additional facts that they each contend had come to light during discovery. While the court is not inclined to consider facts not alleged in either of the parties pleadings or raised in the briefings for the purposes of this Motion, the court notes that the parties acknowledged that David Tsai’s is presently in poor health, and that this may also be a relevant consideration when evaluating Undine Tsai’s managerial involvement with the properties. 11 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 areas,” but instead are “reasonable restrictions as to what activities the children cannot engage in 2 to protect the children’s health and well-being and that of other tenants of the complex.” Id. 3 Finally, Defendants argue that even if Plaintiffs had sufficiently alleged that the policy limited 4 children’s activities, such limitations on activities in the common area are narrowly tailored and 5 are based on a legitimate business necessity as allowed for by California law. 6 To the extent that Plaintiffs’ claim is based on a policy at the Gilroy Complexes, the court 7 agrees that Plaintiffs fail to make a prima facie case of discrimination. Plaintiffs allege that 8 Defendants discriminated on the basis of family status by arbitrarily enforcing facially neutral 9 policies in such a way as to only harm families with children. However, unlike the cases cited by Plaintiffs, where an express policy limiting or prohibiting children from engaging in certain 11 United States District Court Northern District of California 10 activities was identified and challenged by the plaintiff-families, here, Plaintiffs do not identify a 12 facially discriminatory policy; they allege instances where Defendant Shang Shen prevented their 13 children from playing in a particular place or manner. Plaintiffs have not alleged that Defendants 14 “prohibited” all children from using the common areas, nor have they offered any examples 15 illustrating how any purported policy impacted children differently than adults. 16 However, Plaintiffs have alleged facts on which a jury could find that Defendants created a 17 hostile environment for children and/or families with children. As of October 2016, the HUD’s 18 Code of Federal Regulations expressly states that discriminatory conduct under the FHA may 19 include hostile environment harassment. 24 C.F.R. § 100.600. The regulation provides, 20 21 22 23 24 Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housingrelated services or facilities, or of the residential real-estate transaction. 25 24 C.F.R. § 100.600(a)(2). Whether a hostile environment exists “depends upon the totality of the 26 circumstance,” and should consider factors such as “the nature of the conduct, the context in 27 28 12 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 which the incident(s) occurred, the severity, scope, frequency, duration, and location of the 2 conduct, and the relationships of the persons involved.” Id. § 100.600(a)(2)(i)(A). “Whether 3 unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is 4 evaluated from the perspective of a reasonable person in the aggrieved person’s position.” Id. 5 § 100.600(a)(2)(i)(C). 6 Here, Plaintiffs allege facts that, if true, suggest Defendants’ actions went beyond minimal restrictions and instead were oppressive and hostile to children and families with children. 8 Specifically, Plaintiffs allege that on August 2, 2016, Defendant Shang Shen yelled at their 9 children for playing hide and seek outside, and told them to leave the common area and return to 10 their own yard. FAC. ¶ 64. When the children went to their own backyard space, Plaintiffs allege 11 United States District Court Northern District of California 7 that Shang Shen yelled at them again and told them that they should be playing inside. Plaintiffs 12 contend that Shang Shen regularly engages in this kind of behavior, forcefully telling Plaintiffs’ 13 children not to play outside and not to make noise. FAC ¶¶ 31, 41. Plaintiffs also allege that they 14 were ordered to remove a basketball hoop in their own yard to prevent children from playing 15 outside, and have witnessed Shang Shen taking balls and toys away from the children. FAC ¶¶ 16 30-31, 63. Plaintiffs further allege that Defendant Shang Shen even went as far as to nail shut Ms. 17 Ortiz and Mr. Robles’ fence to prevent their children from accessing the common areas. FAC. 18 ¶ 62. Based on these persistent behaviors, among others, Plaintiffs assert that their children are 19 afraid of Defendant Shang Shen, that they “usually retreat indoors with their toys when they see 20 him approach,” and that “[s]ome children completely avoid playing outdoors at the Gilroy 21 Complexes in order to avoid Mr. Shen.” FAC ¶ 31. Drawing all reasonable inferences in 22 Plaintiffs’ favor, and based on the totality of the circumstances, Plaintiffs have alleged that 23 Defendants perpetrated “unwelcome conduct” of sufficient severity to interfere with Plaintiffs’ use 24 or enjoyment of their property, or “the provision or enjoyment of services or facilities in 25 connection therewith.” See 24 C.F.R. § 100.600(a)(2). Plaintiffs have therefore stated a claim for 26 discrimination on the basis of family status under the theory of “hostile environment harassment.” 27 28 13 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 Accordingly, Defendants’ Motion to Dismiss claims one and three for discrimination on 2 the basis of family status is GRANTED to the extent the claims are based on an allegedly 3 discriminatory policy, and DENIED to the extent the claims are based on Defendants’ creation of 4 a hostile environment. Dismissal is granted WITH LEAVE TO AMEND. 5 C. 6 California’s Unruh Civil Rights Act affords broad protection against discrimination, Unruh Civil Rights Act (Cal. Civ. Code § 51) providing that all persons, regardless of sex, race, color, religion, ancestry, national origin, 8 disability, or medical condition, are entitled to “full and equal accommodations, advantages, 9 facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. 10 Civ. Code § 51. The Act prohibits landlords from discriminating against potential or existing 11 United States District Court Northern District of California 7 tenants on the basis of national origin, and has been interpreted to similarly preclude such 12 discrimination against children and families with children. Id. § 51(b); §51.2; Marina Point, Ltd. 13 v. Wolfson, 30 Cal. 3d 721, 731, 736 (1982) (explaining that “the provisions of the Unruh Act, in 14 light of its broad application to ‘all business establishments’, have been held to apply with full 15 force to the business of renting housing accommodations.”); Swann v. Burkett, 209 Cal. App. 2d 16 685 (1962) (holding that owners who rented out a private triplex unit for gain were subject to the 17 Unruh Act, even though they employed no persons to assist them in the rental or maintenance of 18 the property and maintained no office). 19 Defendants move to dismiss Plaintiffs’ Unruh Act claim on the same basis as they move to 20 dismiss Plaintiffs’ discrimination claims. See MTD at 12 (“Because Plaintiffs failed to allege 21 sufficient facts to support a claim for discrimination under the FHA or the FEHA, Plaintiffs have 22 failed to plead sufficient facts to support a claim under the Unruh Act (i.e. if Plaintiffs cannot 23 establish discrimination by Defendants against Tenant Plaintiff in the operation of the property, a 24 business establishment, they will be unable to maintain an action under the Unruh Act)”). 25 Defendants offer no independent challenge to this cause of action. Accordingly, because the court 26 found that Plaintiffs had adequately stated a claim for discrimination under the FHA and FEHA, 27 28 14 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 the court similarly concludes that Plaintiffs have adequately alleged violations of the Unruh Act as 2 well. Defendants’ Motion to Dismiss Plaintiffs’ Fifth Cause of Action is therefore DENIED. 3 D. 4 Plaintiffs’ Sixth, Seventh, and Eighth causes of action assert that Defendants violated Retaliation Claims section 3617 of the FHA, section 12955.7 of FEHA, and California Civil Code section 1942.5 by 6 retaliating against the Jimenez Family for (1) making complaints about the substandard condition 7 of the property, meeting with legal representatives from the Law Foundation of Silicon Valley 8 regarding their housing rights, and attempting to exercise such rights in connection with their 9 tenancy at the Gilroy Complexes. See FAC ¶¶ 35, 37, 39, 43, 47, 48, 52, 56-57, 67, 72-73, 119, 10 127-128. In the interest of clarity, it is worth emphasizing that only the Jimenez Family asserts 11 United States District Court Northern District of California 5 retaliation claims against Defendants. 12 The FHA provides that it “shall be unlawful to coerce, intimidate, threaten, or interfere 13 with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, 14 any right granted or protected by [42 U.S.C. § 3604].” 42 U.S.C. § 3617. The McDonnell 15 Douglas burden-shifting analysis also applies to FHA retaliation claims. Walker, 272 F.3dat 16 1128; see McDonnell Douglas, 411 U.S. at 802. “To establish a prima facie case of retaliation, a 17 plaintiff must show that (1) he engaged in a protected activity; (2) the defendant subjected him to 18 an adverse action; and (3) a causal link exists between the protected activity and the adverse 19 action.” Id. (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994). As 20 with a discrimination claim, if the plaintiff succeeds in making a prima facie case, the burden 21 shifts to the defendant to articulate a legitimate reason for the alleged retaliatory conduct. 22 McDonnell Douglas, 411 U.S. at 802. “If the defendant articulates such a reason, the plaintiff 23 bears the ultimate burden of demonstrating that the reason was merely a pretext for a 24 discriminatory motive.” Walker, 272 F.3d at 1128. FEHA, the analogous state law to the FHA, 25 affords like protections against retaliation and is subject to the same analysis. Id.; Cal. Gov’t Code 26 § 12955.7. Similarly, California Civil Code 1942.5 prohibits landlords from retaliating against 27 28 15 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 tenants because the tenant exercised his or her rights or brought a complaint “as to tenantability of 2 a dwelling.” Cal. Civ. Code § 1942.5(a). Section 1942.5 specifically identifies evicting a tenant, 3 increasing rent, and decreasing any services as potentially retaliatory actions, and generally 4 precludes a landlord from taking such actions within 180 days of a tenant’s protected activity.5 Id. Here, Defendants argue that the timeline of events in this case fail to establish that any 5 6 allegedly retaliatory action taken by Defendants was made in response to any action by Plaintiffs, 7 and Plaintiffs therefore fail to demonstrate a causal link between the protected activity and the 8 adverse action. However, the isolated examples Defendants offer in support of this argument are 9 unpersuasive in light of all the factual allegations actually asserted in this case. The Jimenez Family’s retaliation claims are primarily based on Defendants’ termination of 10 United States District Court Northern District of California 11 their tenancy and subsequent unlawful detainer action against them. In relevant part, Plaintiffs 12 allege that on April 27, 2016, legal representatives from the Law Foundation of Silicon Valley 13 visited the premises to investigate the conditions on the property. FAC ¶ 46. Forty-one days later, 14 on June 7, 2016, Defendants served a 60-day notice of termination of tenancy served on the 15 Jimenez Family.6 Id. And one day after that, on June 8, 2016, Undine Tsai came to the Jimenez 16 Family’s apartment and inquired as to whether any lawyers had come to ask them about the 17 conditions of their unit. Id. The Jimenez Family alleges that Defendants terminated their tenancy 18 5 19 20 21 22 23 24 25 26 27 28 Section 1942.5(e) identifies a limited exception to Section (a)’s bar on certain actions within the 180 day time frame, providing: Notwithstanding subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (c), if the notice of termination, rent increase, or other act, and any pleading or statement of issues in an arbitration, if any, states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (c). If the statement is controverted, the lessor shall establish its truth at the trial or other hearing. 6 Also in April 2016, the Jimenez Family alleges that they complained for the second time about a leak in the bathroom ceiling that caused so much water to collect on the bathroom floor that Ms. Jimenez slipped and fell. Both the leak and Ms. Jimenez’ injuries were reported to the Defendants after each incident. FAC ¶ 44. 16 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 in retaliation for their numerous complaints regarding the poor condition of the property and their 2 consultation with the Law Foundation regarding the same. With the help of an attorney from the 3 Law Foundation, on July 13, 2016 the Jimenez Family sent a letter to Defendants seeking 4 rescission of the 60-day notice on the basis that it was retaliatory. Id. ¶ 47. On July 19, 2016, 5 Defendants responded in writing that the termination was not retaliatory, and listed alternative 6 reasons for the termination that were not included in the original “no-cause” notice. Id. 7 Defendants argue that prior to visiting the Jimenez Family on June 8, 2016, Undine Tsai 8 “clearly had no idea that Plaintiffs had been meeting with lawyers from the Law Foundation,” and 9 therefore the 60-day notice of termination could not be retaliation for these meetings. MTD at 14; see Reply at 10. Defendants contend that Undine Tsai’s purported lack of prior knowledge is 11 United States District Court Northern District of California 10 evidenced by the fact that the notice of termination of tenancy was served before Undine Tsai met 12 with the Jimenez Family. See Reply at 10. However, as the Jimenez Family suggests, an equally 13 plausible explanation is that the very reason Undine Tsai specifically asked whether they had 14 spoken with lawyers about the condition of the property is because she knew or suspected such 15 conversations had taken place. Drawing all reasonable inferences in favor of Plaintiffs at this 16 stage, the court finds that the FAC alleges a causal connection between the Jimenez Family’s 17 protected activity (consulting with legal counsel about their housing rights) and Defendants’ 18 adverse action (terminating their tenancy). Plaintiffs have therefore stated a prima facie case of 19 retaliation. 20 Defendants then seek to rely on the July 19 letter, wherein their counsel provided 21 alternative explanations for terminating the Jimenez Family’s tenancy, in an effort to show that 22 there were legitimate, non-retaliatory reasons for their action. See Reply at 10. However, other 23 than representing that the letter identifies alternative reasons for their action, Defendants offer no 24 further details of what those reasons are, or what the reasons are based on. Id.; see also MTD at 25 15 (referencing July 19 letter and stating “[t]here are many lawful reasons for which a family may 26 be evicted, and evidently this reason was provided to Plaintiffs.”). Indeed, merely asserting that 27 28 17 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 they had “alternative bases” for their action that “had nothing to do with retaliation” is wholly 2 inadequate. 3 In the FAC, Plaintiffs allege that Defendants further retaliated against them in response to 4 their filing of this lawsuit. This action was filed on August 5, 2016, and Defendants’ counsel was 5 sent a copy of the original complaint (Dk. No. 1). FAC ¶ 48. Nevertheless, Plaintiffs allege that 6 on August 16, 2016, only 11 days after Defendants were provided with a copy of the original 7 complaint, Defendant David Tsai filed an unlawful detainer action against the Jimenez Family. 8 FAC ¶ 49. Defendants argue that this was not retaliatory, as eviction proceedings were the natural 9 progression of the process Defendants initiated on June 7, 2016 when they first served the Jimenez Family with the 60-day notice of termination. The court agrees that Defendants’ initiation of an 11 United States District Court Northern District of California 10 unlawful detainer action does not establish an independent basis for a retaliation claim under the 12 facts currently in the record. Rather, whether proceeding with the eviction of the Jimenez Family 13 was retaliatory depends on whether terminating their tenancy was retaliatory. Because the court 14 finds that Plaintiffs adequately plead retaliation as to the termination of tenancy, Plaintiffs’ 15 allegations regarding the unlawful detainer action similarly thrive as part of the overall factual 16 basis for the retaliation claims asserted. 17 Based on the foregoing, the court concludes that, based on the facts alleged, a jury could 18 find that Defendants retaliated against the Jimenez Family in violation of the FHA, FEHA, and 19 Civil Code section 1942.5. Defendants’ Motion to Dismiss is therefore DENIED as to claims six, 20 seven, and eight. 21 E. 22 Project Sentinel is named as a plaintiff in this case in connection with the First, Second, Project Sentinel Lacks Article III Standing 23 Third, and Fourth causes of action. Defendants argue that Project Sentinel’s lacks standing under 24 Article III because it has not suffered an injury-in-fact. The court agrees. 25 26 27 28 In Havens Realty Corporation v. Coleman, the Supreme Court set forth that a fair housing organization establishes standing when it suffers “a concrete and demonstrable injury with a 18 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 consequent drain on the organization’s resources.” Havens, 455 U.S. at 370. The Ninth Circuit 2 has held that damages to a fair housing organization may be sufficient to satisfy the injury in fact 3 requirement and thus confer organizational standing where it can demonstrate: “(1) frustration of 4 its organizational mission; and (2) diversion of its resources to combat the particular housing 5 discrimination in question.” Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 6 2004) (citing and reaffirming its decision in Fair Housing of Marin v. Combs, 285 F.3d 899, 905 7 (9th Cir. 2002)). “Frustration of mission” damages are the costs that a fair housing organization 8 will be required to expend in order to rectify or counterbalance the negative impact of a 9 defendant’s discriminatory actions on the organization’s non-economic interests – for example, its interest in ensuring fair and equal treatment of tenants. Southern California Housing Rights 11 United States District Court Northern District of California 10 Center v. Krug, 564 F. Supp. 2d 1138, 1152 (C.D. Cal. 2007); Havens, 455 U.S. at 379 n. 20. 12 “Diversion of resources” damages are cognizable where an organization is forced to divert time 13 and resource away from its regular – or “core” – programs in order to undertake the particular 14 case. See Fair Hous. of Marin v. Combs, No. C 97-1247 MJJ, 2000 WL 365029, at *3 (N.D. Cal. 15 Mar. 29, 2000), aff’d, 285 F.3d 899 (9th Cir. 2002) 16 Here, Plaintiffs contend that Project Sentinel satisfies the injury in fact requirements as 17 outlined by the Ninth Circuit in Pacific Properties and Combs. First, Plaintiffs allege that Project 18 Sentinel’s mission is to “develop and promote fairness and equality of housing for all persons” and 19 to eliminate “all forms of illegal discrimination. FAC ¶ 12. Because Project Sentinel “plans to 20 expend future costs to conduct further education and outreach to the Latino community in order to 21 counteract Defendants’ discriminatory and predatory behavior,” Plaintiffs argue that the 22 organization is entitled to “frustration of mission” damages. Opp. at 18-19. 23 Absent more, these allegations fail to plead a cognizable harm to Project Sentinel’s 24 mission. Plaintiffs fail to explain how Defendants’ conduct toward the tenant-Plaintiffs in this case 25 – even if “discriminatory and predatory,” as Plaintiffs allege – actually frustrates Project Sentinel’s 26 broader organizational purpose. To constitute an injury under this theory, a defendant’s conduct 27 28 19 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 must do more than offend the priorities and principles of the organization; it must result in an 2 actual impediment to the organization’s real-world efforts on behalf of such principles. See 3 Havens, 455 U.S. at 378-79 (finding organization had suffered injury in fact where the defendant’s 4 practices “perceptibly impaired” the organization’s ability to provide counseling and referral 5 services, explaining that “[s]uch concrete and demonstrable injury to the organization's activities – 6 with the consequent drain on the organization’s resources – constitutes far more than simply a 7 setback to the organization’s abstract social interests.”); Walker, 272 F.3d at 1124 (finding fair 8 housing service provider had standing based on allegations that city had injured its ability to carry 9 out its purposes by retaliating against it in response to its advocacy efforts, delaying payments due, attempting to interfere with provider’s investigation of fair housing complaints, and filing 11 United States District Court Northern District of California 10 allegedly frivolous third party claim against provider); Project Sentinel v. Evergreen Ridge 12 Apartments, 40 F. Supp. 2d 1136, 1139 (N.D. Cal. 1999) (rejecting standing where complaint 13 alleged “nothing more than a setback to the organization’s abstract social interest in gaining 14 compliance with fair housing laws,” explaining that the plaintiff had failed to assert that the 15 organization “provide[d] any service or [] engaged in any other enterprise independent of th[e] 16 action that might be frustrated by defendants’ allegedly unlawful conduct”). Plaintiffs have not 17 alleged any such impediment to Project Sentinel’s work here. 18 Plaintiffs similarly fall short in demonstrating that Project Sentinel’s efforts in this action 19 resulted in a significant diversion of resources. Plaintiffs assert that “in order to monitor the 20 violations and educate the public regarding the discrimination at issue, [Project Sentinel] had to 21 divert its scarce resources from other efforts to provide outreach and education to the community.” 22 Opp. at 19; FAC ¶ 78. Specifically, Plaintiffs highlight that Project Sentinel directed a door-to- 23 door survey of tenants at the Gilroy Complexes regarding housing conditions and treatment by the 24 landlord (FAC ¶ 71) and “conducted a presentation in Gilroy to Latino residents to inform them of 25 their fair housing rights and [] to educate them on national origin and familial status 26 discrimination” (FAC ¶ 78). Opp. at 19-20. 27 28 20 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS However, Plaintiffs fail to explain how any of the aforementioned efforts extended beyond 1 the normal, day-to-day work regularly undertaken by Project Sentinel. Moreover, Plaintiffs have 3 offered no concrete details regarding the “significant resources” that it claims have been and will 4 continue to be diverted as a result of Defendants’ practices. Unlike in Fair Housing of Marin v. 5 Combs, where the plaintiff-organization (FHOM) explained how the prevalence and numerous 6 complaints regarding the defendant’s behavior “caused it to divert time and resources from its 7 planned education and counseling programs to embark on a prolonged investigation of the extent 8 and nature of discrimination,” Project Sentinel offers no such explanation here. See 2000 WL 9 365029, at *3. And, while FHOM identified the specific costs and monetary values for the 10 resources it claimed had been diverted, Project Sentinel has offered no details regarding the 11 United States District Court Northern District of California 2 resources that were allegedly diverted as a result of its efforts in this case. See id. Indeed, there is 12 nothing in Plaintiffs’ FAC or briefing to suggest that Project Sentinel’s work in connection with 13 this action went above or beyond its typical work efforts in the community. As the district court 14 aptly summarized in Project Sentinel v. Evergreen Ridge Apartments, “Plaintiff cannot 15 manufacture standing by first claiming a general interest in lawful conduct and then alleging that 16 the costs incurred in identifying and litigating instances of unlawful conduct constitute injury in 17 fact.” Project Sentinel v. Evergreen Ridge Apartments, 40 F. Supp. 2d 1136, 1139 (N.D. Cal. 18 1999). In light of these deficiencies, Project Sentinel has failed to establish an injury in fact and 19 20 thus lacks Article III standing. Accordingly, Defendants’ Motion to Dismiss is GRANTED with 21 respect to Project Sentinel only as to the First, Second, Third, and Fourth causes of action. These 22 claims are dismissed WITH LEAVE TO AMEND. 23 IV. 24 25 26 27 28 ORDER Based on the foregoing, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows: 1. The Motion is to Dismiss all claims against Defendant Undine Tsai as an improper 21 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 1 party is DENIED. 2 2. 3 4 5 6 The Motion to Dismiss Project Sentinel for lack of Article III standing in connection with the First, Second, Third, and Fourth causes of action is GRANTED. 3. The Motion is DENIED as to the Second and Fourth causes of action asserting discrimination on the basis of race and national origin in violation of the FHA and FEHA. 4. As to the First and Third causes of action asserting discrimination on the basis of 7 family status in violation of the FHA and FEHA, the Motion is GRANTED to the extent the 8 claims are based on an allegedly discriminatory policy, and DENIED to the extent the claims are 9 based on Defendants’ creation of a hostile environment. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 5. The Motion is DENIED as to the Fifth cause of action asserting violation of California Unruh Civil Rights Act, Cal. Civ. Code § 51. 6. The Motion is DENIED as to the Sixth, Seventh, and Eighth causes of action asserting retaliation in violation of the FHA, FEHA, and California Civil Code section 1942.5. 7. All claims subject to dismissal are dismissed WITH LEAVE TO AMEND. And amended complaint shall be filed no later than July 7, 2017. IT IS SO ORDERED. Dated: June 5, 2017 ______________________________________ EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 26 27 28 22 Case No.: 5:16-cv-04434-EJD ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

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