Sanders et al v. Edge Holdings et al, No. 3:2011cv01590 - Document 69 (S.D. Cal. 2013)
Court Description: ORDER denying plaintiffs' 53 Motion for Partial Summary Judgment. Within one week of the date this Order is entered, the parties should jointly contact Magistrate Judge Dembins chambers to reset pretrial dates and deadlines. Signed by Judge Larry Alan Burns on 12/28/12. (kaj)
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Sanders et al v. Edge Holdings et al Doc. 69 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANDERS, et al., CASE NO. 11-CV-1590-LAB-MDD Plaintiffs, 12 ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT vs. 13 14 EDGE HOLDINGS, et al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 This is a fair housing case. The Defendants are the owner and manager of the Sea Coast Apartments in the Ocean Beach neighborhood of San Diego. The Plaintiffs are the Sanders-Williams family. James and Jamia Sanders live at Sea Coast. Their daughter, Stephanie Sanders, and her husband, Jordan Williams, are regular visitors, along with their three minor children, C.C., C.W., and T.W. The essence of Plaintiffs’ complaint is that the onsite manager of Sea Coast, Doris Edmiston, repeatedly forbade the minor children from playing in common areas in a manner that discriminated against families with children. Now pending is Plaintiffs’ motion for partial summary judgment. I. 26 27 28 Legal Standard Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. // -1Dockets.Justia.com 1 56(c). It is Plaintiffs’ burden, as the moving party, to show there isn’t one. Celotex Corp. v. 2 Catrett, 477 U.S. 317, 323 (1986). 3 The Court considers the record as a whole and draws all reasonable inferences in the 4 light most favorable to the Defendants. Fairbank v. Wunderman Cato Johnson, 212 F.3d 5 528, 531 (9th Cir. 2000). It may not make credibility determinations or weigh conflicting 6 evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the Court 7 determines whether the record “presents a sufficient disagreement to require submission to 8 a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 9 251–52. Not all alleged factual disputes will serve to forestall summary judgment; they must 10 be both material and genuine. Id. at 247–49. “If conflicting inference may be drawn from 11 the facts, the case must go to the jury.” LaLonde v. County of Riverside, 204 F.3d 947, 959 12 (9th Cir. 2000) (citations omitted). 13 II. 14 15 Preliminary Disputes There are some preliminary disputes between the parties that the Court must address before turning to the core summary judgment question. 16 A. 17 Defendants first ask the Court to reject all of the evidence Plaintiffs have offered in 18 support of summary judgment because they failed to provide initial disclosures under Fed. 19 R. Civ. P. 26(a)(1). Typically, “[i]f a party fails to provide information or identify a witness as 20 required by Rule 26(a), the party is not allowed to use that information or witness to supply 21 evidence on a motion . . . unless the failure was substantially justified or is harmless.” Fed. 22 R. Civ. P. 37(c)(1). In evaluating justification and harmlessness, the Court considers “(1) 23 prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that 24 party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or 25 willfulness involved in not timely disclosing the evidence.” Lanard Toys, Ltd. v. Novelty, Inc., 26 375 Fed.Appx. 705, 713 (9th Cir. 2010). Defendants’ Objections to Evidence 27 It’s unclear whether Plaintiffs never provided initial disclosures, which is a big 28 problem, or simply provided them past the deadline set by the Court, which is a much -2- 1 smaller one. In their Objection to Evidence, Defendants initially suggest the former: “On 2 December 13, 2011, this Court ordered the parties to engage in an initial disclosure by 3 January 23, 2012. Defendants complied with that request, but Plaintiffs failed to ever serve 4 an initial disclosure in this case.” (Doc. No. 59 at 2.) But then Defendants take Plaintiffs to 5 task for failing to identify particular witnesses in their initial disclosures, which obviously 6 implies they provided some. (Id.) This objection is therefore OVERRULED. As the Court 7 reads the record, Plaintiffs got their initial disclosures to Defendants about 10 days after the 8 January 23, 2012 deadline set by the Court. There are no signs whatsoever that this 9 prejudiced the Defendants or harmed their ability to oppose Plaintiffs’ summary judgment 10 motion. 11 Defendants also ask the Court to disregard the deposition testimony of Stephanie 12 Olvera and Brandi Stepp because they weren’t identified as witnesses in Plaintiffs’ initial 13 disclosures. Here again, any omission appears to have been harmless. Ms. Olvera was 14 deposed on June 7, 2012, and Ms. Stepp was deposed on April 6, 2012. Defendants’ 15 counsel received notice of these depositions and was able to cross-examine both witnesses. 16 The objection is OVERRULED. 17 B. 18 In support of their opposition to summary judgment, Defendants submitted the 19 declarations of four present and past residents of Sea Coast: Ashley Kimble, Rubin Delgado, 20 Denise Duim, and Dori Hoadley. (See Doc. Nos. 57-5, 57-6, 57-7, 57-8.) Each stated that 21 they had children who were treated kindly by the Sea Coast management, and that they 22 never felt discriminated against by the onsite manager Doris Edmiston. Plaintiffs object that 23 these residents were never identified in Defendants’ initial Rule 26 disclosures or 24 interrogatory responses, that their statements are not relevant, and that they have not been 25 cross-examined. Plaintiffs’ Objections to Evidence 26 This objection is SUSTAINED. The Court sees that these witnesses were identified 27 in Defendants’ October 8, 2012 pretrial disclosures pursuant to Rule 26(a)(3), but apparently 28 not before then. The testimony of witnesses identified for the first time in pretrial disclosures -3- 1 may be excluded under Rule 37(c)(1), unless the late disclosure is either substantially 2 justified or harmless. See Murray v. Holiday Isle, LLC, 2009 WL 1211391 at *1 (S.D. Ala. 3 May 1, 2009). Here, however, it appears to be neither. Defendants filed a sur-reply which 4 doesn’t address Plaintiffs’ evidentiary objections at all, so the Court presumes they have 5 nothing or little to say in response. (Doc. No. 63.) It appears that Defendants simply got the 6 residents to sign favorable declarations to supplement their summary judgment motion, in 7 effect surprising Plaintiffs with witnesses they’d not heard of or had a chance to cross- 8 examine. There is no justification for that, and it is certainly harmful to Plaintiffs. 9 C. Liability of Defendants Edge Holdings and Dennis Pennell 10 Defendants argue that neither Edge nor Pennell can be held liable for the actions of 11 Pennell Property Management and Pennell Investment Properties, the manager of Sea 12 Coast. Presumably, it’s the Defendants’ position that only Pennell’s companies, and the 13 onsite manager, Doris Edmiston (who isn’t even named as a Defendant), can be liable for 14 discrimination: Plaintiffs fail to articulate any basis for holding Edge Holdings liable for the conduct of a third-party property management company. Plaintiffs reference vicarious liability, but do not cite to any case law establishing that a corporation can be vicariously liable for the conduct of a third-party based on a contractual relationship. Plaintiffs also fail to establish any liability against Dennis Pennell as an employee of Pennell Investment Properties, Inc. 15 16 17 18 19 (Doc. No. 57 at 8.) 20 Defendants’ argument here is somewhat insincere. Plaintiffs devote a section of their 21 summary judgment brief to the liability of property owners for housing discrimination, and 22 they cite a number of ostensibly relevant cases. One of those cases is Fair Housing 23 Congress v. Weber, 993 F.Supp. 1286, 1294 (C.D. Cal. 1997), in which the court recognized 24 that “the duty not to discriminate under the Fair Housing Act is nondelegable” and that “a 25 property owner is liable for the discriminatory acts of employees,” including property 26 managers. So, there is a basis for holding Edge Holdings liable for the alleged 27 discrimination of Edmiston. See also U.S. v. Habersham Prop., Inc., 319 F.Supp.2d 1366, 28 1375–76 (N.D. Ga. 2003) (holding property owner and management company liable for -4- 1 discriminatory conduct of onsite manager). The Court also has no difficulty extending the 2 principles of agency and vicarious liability to Pennell, the owner or manager of the 3 management company. See, e.g., Davis v. Mansards, 597 F.Supp. 334, 344 (D. Ind. 1984) 4 (holding general manager of management company liable for discriminatory conduct of 5 rental agents). 6 D. 7 Defendants criticize Plaintiffs for failing to indicate whether they are moving for Scope of Summary Judgment Motion 8 summary judgment against all, or only some, Defendants. Contrary to Defendants’ 9 arguments, this is not a basis for denying summary judgment outright. But it doesn’t matter; 10 it’s clear enough to the Court, and ought to be clear enough to Defendants, that Plaintiffs 11 seek summary judgment against all of them. 12 Likewise, Plaintiffs’ motion is clear that they seek summary judgment on their 13 California Fair Employment and Housing Act claim, but that there is no need to argue this 14 claim separately from their federal Fair Housing Act claim. (Doc. No. 53 at 12 n.64 (“In short, 15 if defendants’ actions violate the federal Fair Housing Act, then, by definition, they also 16 violate California’s FEHA.”).) So, Defendants are wrong to suggest that summary judgment 17 should be denied as to Plaintiffs’ FEHA claim simply because their brief doesn’t address it 18 specifically. 19 III. Discussion 20 Now the Court can turn to what is really the core question here (and what Defendants’ 21 opposition brief should be focused on). That question is whether there is a triable question 22 of material fact whether Sea Coast discriminated against Defendants because of their 23 familial status, culminating in the termination of their tenancy when the Plaintiffs alleged 24 discrimination. 25 The overarching problem with Plaintiffs’ motion is that it relies on an extremely one- 26 sided presentation of the evidence, consisting almost entirely of Plaintiffs’ own accounts of 27 how they were treated by the onsite manager Ms. Edmiston and what her management 28 practices were. In parts, the motion is even outright misleading. As an example, Plaintiffs -5- 1 claim that when they were served with a Notice to Terminate Tenancy they were “current on 2 their rent,” and they cite to Ms. Edmiston’s own deposition as proof. But here is the relevant 3 question and answer: Q: And before you served this 30 day notice to terminate the Sanders’ tenancy, were they behind on their rent? A: 4 I can’t remember that. 5 6 (Edmiston Dep. at 33:18–21.) Just because Ms. Edmiston couldn’t remember whether the 7 Plaintiffs were behind on their rent doesn’t mean they were, in fact, current on it. 8 Plaintiffs also cite a number of other fair housing cases in which summary judgment 9 was granted that are easily distinguishable from this one. In Weber, for example, at issue 10 were written “Pool and Building Rules,” the existence and force of which was not in dispute. 11 Weber, 993 F.Supp. at 1289. The same is true of Mathews v. Arrow Wood, 2009 WL 12 8659593 (C.D. Cal. Apr. 2, 2009). In that case, a house rule provided, in writing, that 13 “Children are absolutely not allowed to play outside their apartments at any time.” Id. at *2. 14 Summary judgment was appropriate because there was no disputing what the rule at issue 15 actually was. And in Blomgren v. Ogle, 850 F.Supp. 1427 (E.D. Wash. 1993), the landlord 16 distributed in writing a “no children” rule that the Court found on summary judgment violated 17 the Fair Housing Act. There is a plain difference between cases like the above, in which 18 plaintiffs could point to a clear, written rule that they believed was discriminatory, and a case 19 like this one, in which plaintiffs infer the existence of a discriminatory rule based on a 20 selective view of the Defendants’ conduct. 21 Having reviewed all of the evidence presented, the Court finds that there is a question 22 of material fact as to whether Edmiston discriminated against Plaintiffs because of their 23 familial status. Plaintiffs say Edmiston singled out the minor children and refused to let them 24 play in the common area or courtyard of Sea Coast. Defendants say Sea Coast tries to 25 maintain a quiet, noise-free environment and that Edmiston enforces this policy equally, as 26 best she can, to all residents and visitors. Plaintiffs argue, for example, that “[t]estimony of 27 witnesses has confirmed that, whereas, children were never allowed to make any noise or 28 be outside, adults are freely permitted to be outside to make noise.” (Doc. No. 53 at 8.) -6- 1 Defendants attach declaration testimony and exhibits from Edmiston to the absolute 2 contrary. The parties also have very different accounts of why the Sanders’ lease was 3 terminated. According to Plaintiffs, it was terminated in retaliation for their complaints about 4 Edmiston’s treatment of the children and their threat of a lawsuit; according to Defendants, 5 it was terminated for entirely different reasons: (1) their late payment of rent; (2) hoarding 6 problems; and (3) several noise complaints. 7 IV. Conclusion 8 Plaintiffs may well convince a jury that Defendants discriminated against them on 9 account of the minor children, and retaliated against them for complaining about that 10 discrimination. Taken as a whole, however, this case comes down to Plaintiffs’ version of 11 their own, Edmiston, and Pennell’s conduct versus the Defendants’ very different version of 12 their, Edmiston, and Pennell’s conduct. These factual issues must be resolved by a jury. 13 LaLonde, 204 F.3d at 959. 14 Plaintiffs’ motion for summary judgment is DENIED. Within one week of the date this 15 Order is entered, the parties should jointly contact Magistrate Judge Dembin’s chambers to 16 reset pretrial dates and deadlines. 17 18 19 IT IS SO ORDERED. DATED: December 28, 2012 20 21 HONORABLE LARRY ALAN BURNS United States District Judge 22 23 24 25 26 27 28 -7-
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