Patton v. Thomas et al, No. 3:2014cv01489 - Document 54 (S.D. Cal. 2016)

Court Description: ORDER denying 38 Motion for Summary Judgment. Signed by Judge Anthony J. Battaglia on 8/29/2016. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD PATTON, Case No.: 14cv1489 AJB (WVG) Plaintiff, 12 13 v. 14 ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT JALEH HANASSAB, an individual, FIRST LIGHT PROPERTY MANAGEMENT, INC., a California Corporation, Defendants. 15 16 17 (Doc. No. 38) 18 19 20 I. 21 The Fair Housing Act was enacted to “eradicate discriminatory practices within a INTRODUCTION 22 division of the United States economy.” Texas Dept. of Housing and Cmty. Affairs v. 23 Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2511 (2015). The Fair Housing Act 24 incorporates the ideology and practices of many California statutes, including the Fair 25 Employment and Housing Act as well as the Unruh Act. Cabrera v. Alvarez, 977 F. 26 Supp. 2d 969, 975 (N.D. Cal. 2013). Each statute provides broad protection against 27 arbitrary discrimination based on race, color, religion, sex, familial status, or national 28 origin. See 42 U.S.C. § 3604(b). 1 14cv1489 AJB (WVG) 1 Plaintiff Donald Patton (“Plaintiff”) asserts claims for housing discrimination 2 under the Fair Housing Act, Fair Employment and Housing Act, and the Unruh Act. 3 Defendants Jaleh Hanassab and First Light Property Management (referred to collectively 4 as “Defendants”) have moved for summary judgment or alternatively, for partial 5 summary judgment. (Doc. No. 15.) Plaintiff filed an opposition, (Doc. No. 43), and 6 Defendants filed a reply brief, (Doc. No. 44). For the reasons detailed below, Plaintiff’s 7 claims for housing discrimination survive summary judgment, as several disputed issues 8 of material fact remain. Accordingly, Defendants’ motion is DENIED. 9 II. BACKGROUND 10 Plaintiff Donald Patton is a Native American member of the Olgala Sioux tribe. 11 (Doc. No. 43-1 ¶ 1.) Plaintiff describes himself as having darker skin tone than that of 12 Caucasians and facial features characteristic of his ethnicity. (Id.) Plaintiff is also a 13 recovering alcoholic, and has not consumed alcohol or non-prescription drugs since 14 December 2005. (Id.) In 2004, Plaintiff was diagnosed with schizophrenia, 15 schizoaffective disorder. (Id. ¶ 2.) Plaintiff is a client of the Downtown Intensive Mobile 16 Psychosocial Assertive Community Treatment (“IMPACT”) program, which provides 17 case management services for homeless adults in the Downtown area of San Diego 18 County. (Id.) Specifically, the IMPACT program works with clients diagnosed with 19 serious mental illnesses, as well as individuals with co-occurring mental health and 20 substance disorders. (Id.) 21 In October 2007, Plaintiff applied for and was approved as a candidate for Section 22 8 housing, sponsored by the United States Department of Housing and Urban 23 Development (“HUD”), the San Diego IMPACT Program, and the San Diego Housing 24 Commission. (Doc. No. 15 ¶ 14.) Shortly thereafter, and with the assistance of the 25 IMPACT program, Plaintiff entered into a lease with Defendant Jaleh Hanassab 26 (“Hanassab”), to reside at 1440 Lincoln Avenue, Apartment 10 in San Diego (the 27 “Property”). (Doc. No. 43-3 at 92–100.) In connection with the rental agreement, Plaintiff 28 also signed a drug free agreement, (Doc. No. 43-3 at 101), complex rules, (Doc. No. 43-3 2 14cv1489 AJB (WVG) 1 at 102–106), and a crime free lease addendum, (Doc. No. 43-3 at 107). Additionally, 2 because Plaintiff was a member of the IMPACT program, an addendum was included 3 specific to Plaintiff’s receipt of Section 8 housing. (Doc. No. 43-3 at 96.) 4 As a member of the IMPACT Program, Plaintiff was only responsible for a small 5 portion of his monthly rent, with the rest paid by HUD, SDHC, and the IMPACT 6 Program. (Doc. No. 15 ¶ 14); (see also Doc. No. 43-3 at 119–121.) Plaintiff’s lease was 7 renewed on several instances, and a new addendum related to Plaintiff’s Section 8 8 housing voucher was executed in connection with each lease renewal. (See, e.g., Doc. No, 9 38-3 at 32–35); (Doc. No. 43-3 at 124–127.) 10 At the time Plaintiff entered into the original lease with Defendant Hanassab, the 11 Property was under the management of Noble & Noble Property Management. (See Doc. 12 No. 43-3 at 102.) On June 15, 2011, Plaintiff received notice that Defendant First Light 13 Property Management (“First Light”) would thereafter manage the Property. (Doc. No. 14 43-3 ¶ 8.) Two individuals, Lonnie and Darlene Thomas (referred to as “Mr. Thomas” 15 and “Mrs. Thomas” respectively) worked as independent contractors of First Light, and 16 performed maintenance and management duties on behalf of First Light beginning in 17 June 2011. (Doc. No. 43-3 at 83.) 18 For the first several years, Plaintiff resided at the Property without issue. Plaintiff 19 alleges, however, that he became the subject of discrimination in late 2011, by Mr. and 20 Mrs. Thomas. The alleged discrimination began in September 2011, when Mr. Thomas 21 inquired as to Plaintiff’s ethnicity. (Doc. No. 38-3 at 50–51; Doc. No 43-1 ¶ 8.) When 22 Plaintiff responded that he was Native American, Mr. Thomas stated, “I’d hate to see you 23 with your war paint on.” (Doc. No. 38-3 at 51.) 24 Plaintiff also asserts that in April 2012, Mr. Thomas approached Plaintiff and told 25 him through profanity to “move out.” (Doc. No. 43-1 at 4.) Then, in May 2012, Plaintiff 26 contends that Mr. Thomas told Plaintiff, “We don’t want your kind here.” (Doc. No. 38-3 27 at 63.) Shortly after, in July 2012, Plaintiff claims that Mr. Thomas “gestured to Plaintiff 28 with a limp wrist and in a mock, effeminate manner said, ‘Honey are you home?’” (Doc. 3 14cv1489 AJB (WVG) 1 No. 38-3 at 52–53.) Plaintiff asserts this statement was directed at Plaintiff’s sexuality. 2 (Id.) 3 Beginning in August 2012, Plaintiff alleges he was served with a series of 4 improper and unlawful notices to vacate. Plaintiff received the first such notice on August 5 23, 2012, from Mr. Thomas. (Doc. No. 43-3 at 122.) The notice did not state a reason for 6 its issuance, and Plaintiff was not informed why he received the notice. (Id.) Plaintiff also 7 alleges that throughout 2013, other tenants in the complex received improvements that 8 Plaintiff’s unit did not receive. 9 Nearly a year later, on September 11, 2013, Mr. Thomas served Plaintiff with 10 another 60-day notice to move out, which did not state a reason why the notice was 11 issued. (Doc. No. 43-3 at 130.) That same day, Mr. Thomas allegedly told Plaintiff, “And 12 this time they want you out!” (Doc. No. 38-3 at 65.) At the end of the 60-day period, Mrs. 13 Thomas allegedly demanded entrance into Plaintiff’s apartment to conduct a “walkout” 14 inspection. (Doc. No. 43-1 at 6.) When Plaintiff declined to let her in, Mrs. Thomas 15 forced her way into the unit, along with Mr. Thomas, who yelled for Plaintiff to open the 16 door. (Id.) Mr. and Mrs. Thomas then posted a 3-day notice to cure violation or move out 17 because Plaintiff refused to vacate the Property. (Doc. No. 43-3 at 132.) 18 In November 2013, Plaintiff received a 90-day notice of termination of tenancy, 19 stating that Ms. Hanassab was opting out of the Section 8 housing program. (Id. at 134.) 20 On December 12, 2013, however, Plaintiff’s yearly addendum with Ms. Hanassab and 21 SDHC was renewed. (Id. at 136–138.) Plaintiff remained at the Property and no further 22 action was taken until February of the following year. On February 26, 2014, Ms. 23 Hanassab filed an unlawful detainer action against Plaintiff. (Id. at 140.) In response, 24 Plaintiff subpoenaed other Section 8 tenants that resided at the Property, with the 25 intention of having them testify that they had not been asked to vacate the Property. (Doc. 26 No. 43-1 at 7.) On the date of trial, two other Section 8 tenants appeared to testify on 27 Plaintiff’s behalf. (Id.) Prior to the trial beginning, Defendants voluntarily dismissed the 28 proceeding. (Id.) 4 14cv1489 AJB (WVG) 1 2 Plaintiff initiated this action against Defendants on June 18, 2014, approximately four months after the unlawful detainer. 3 III. 4 Federal Rule of Civil Procedure 56 governs motions for summary judgment. LEGAL STANDARD 5 Summary judgment permits a court to enter judgment on factually unsupported claims. 6 Celotex Corp. v. Catrett, 477 U.S. 319, 327 (1986). Granting summary judgment is 7 proper if there is “no genuine dispute as to any material fact and the movant is entitled to 8 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when, under the 9 governing substantive law, it could affect the outcome of the case. Anderson v. Liberty 10 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine “if the 11 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 12 Id. “If under any reasonable construction of the evidence and any acceptable theory of 13 law, one would be entitled to prevail, the summary judgment against him cannot be 14 sustained.” Garter–Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 980 (9th Cir. 1980). 15 16 17 IV. DISCUSSION A. Evidentiary Objections In resolving a motion for summary judgment, a court may consider evidence as 18 long as it is “admissible at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). 19 Admissibility at trial “depends not on the evidence’s form, but on its content.” Block v. 20 City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. 317, 21 324). The party seeking admission of evidence “bears the burden of proof of 22 admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the 23 opposing party objects to the proposed evidence, the party seeking admission must direct 24 the district court to “authenticating documents, deposition testimony bearing on 25 attribution, hearsay exceptions and exemptions, or other evidentiary principles under 26 which the evidence in question could be deemed admissible. . . .” In re Oracle Corp. Sec. 27 Litig., 627 F.3d 376, 385–86 (9th Cir. 2010). 28 5 14cv1489 AJB (WVG) 1 In connection with his opposition, Plaintiff filed objections to the material cited in 2 Defendants’ motion for summary judgment. (Doc. No. 43-3.) In reply, Defendants urge 3 the Court to disregard Plaintiff’s objections pursuant to this Court’s Civil Case 4 Procedures. (Doc. No. 44 ¶ 1, n.1.) Defendants set forth their own set of evidentiary 5 objections to the material included in Plaintiff’s opposition within their reply. (Id. at 1–4.) 6 Upon review of the cited materials at issue, the Court finds many of the parties’ 7 objections unnecessary and or duplicative. For example, all but one of Plaintiff’s 8 objections are to portions of Defendants’ memorandum in support of summary judgment. 9 From its thorough review of the record, the Court can readily ascertain whether the cited 10 portions are supported by the record or relevant to the Court’s summary judgment 11 analysis. See Becker v. Wells Fargo Bank NA, Inc., No. 10–2799, 2014 WL 3891933, at 12 *2 (E.D. Cal. Aug. 7, 2014) (“Defendant’s evidentiary objections to [plaintiff’s] separate 13 statements of . . . disputed facts are not considered because such objections should be 14 directed at the evidence supporting those statements rather than the statements 15 themselves.”). 16 Thus, Plaintiff’s relevance and “no supporting evidence” objections are 17 unnecessary as the Court cannot rely on irrelevant facts in its summary judgment 18 analysis. See Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 19 2006). Both parties’ objections in this regard are overruled. To the extent the parties’ 20 dispute the existence of particular facts cited in the briefing, the Court need not resolve 21 such disputes in the context of this motion. Indeed, summary judgment is only 22 appropriate when no such disputes exist. 23 Objections challenging the authenticity of a document, however, are more 24 appropriate in the summary judgment context as a court may only consider admissible 25 evidence, and authentication is a condition precedent to admissibility. See Fed. R. Civ. P. 26 56; Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Both 27 parties dispute the authenticity of the Section 8 housing lease addendum signed as part of 28 Plaintiff’s initial and subsequent lease renewals. In its motion and reply, Defendants 6 14cv1489 AJB (WVG) 1 contend the addendum is comprised of only two pages and that as part of Plaintiff’s 2 participation in the Section 8 housing program, Plaintiff waived any right to notice 3 regarding the termination of his tenancy. (Doc. Nos. 38-1 at 8; 38-3 at 32–33, 34–35.) 4 Plaintiff contends the lease addendum is comprised of three pages, with the third page 5 including a provision voiding any waiver of notice regarding a termination of Plaintiff’s 6 tenancy. (Doc. No. 43 at 17); (see also Doc. No. 43-4.) Plaintiff and Defendants assert 7 their respective versions of the Section 8 leasing addendum are accurate and authenticate 8 each through a declaration of counsel. 9 Defendants’ contention regarding the authenticity of the two-page addendum does 10 not withstand comparison of the conflicting versions. Defendants suggest the housing 11 addendum provides as follows: 12 13 14 15 16 17 18 19 20 The Owner shall provide maintenance and services as follows: 1. The Owner shall maintain the dwelling unit, equipment, common areas and facilities provided for the use and benefit of the Family in compliance with applicable Housing Quality Standards. 4. Waiver of Legal Notice. Agreement by the Family that the Owner need not give any notices in connection with (I) a lawsuit against the Family for eviction, money damages, or other purpose, or (II) any other action affecting the Family’s rights under the Lease. (Doc. No. 38-3 at 34–35) (bold in original). Plaintiff’s version of the addendum reads in relevant part: 21 22 23 24 25 26 27 Lease Provisions. Notwithstanding anything to the contrary contained in the Lease, any provision, term, condition, covenant or agreement of the Lease which falls within the classifications below, shall be void and unenforceable against the Tenant. The prohibited provisions include the following: 1. Confession of Judgment. Consent by the Family to be sued, to admit guilt, or to accept with question any judgment favoring the Owner in a lawsuit brought in connection with the Lease. 28 7 14cv1489 AJB (WVG) 1 2. Seize or Hold Property for Rent or Other Charges. Authorization to the Owner to take property of the Family and/or hold it until the Family meets any obligation which the Owner has determined the Family has failed to perform. 3. Exculpatory Clause. Prior agreement by the Family not to hold the Owner or its agents legally responsible for acts done improperly or for failure to act when it was required to do so. 4. Waiver of Legal Notice. Agreement by the Family that the Owner need not give any notices in connection with (I) a lawsuit against the Family for eviction, money damages, or other purpose, or (II) any other action affecting the Family’s rights under the Lease. (Doc. No. 43-3 at 136–139) (bold in original). 2 3 4 5 6 7 8 9 10 11 12 Defendants’ version of the addendum include inconsistent numbering and the 13 subject matter of the first and fourth provisions are entirely unrelated. Additionally, 14 without the preceding section in the addendum proffered by Plaintiff, the waiver of legal 15 notice lacks context and is incomplete. It is only when the waiver provision is read in 16 conjunction with the preceding section that its meaning is clear. 17 The arguments advanced by Defendant in their reply brief regarding the 18 authenticity of the addendum are unpersuasive. Though the first and second page of the 19 addendum produced by Plaintiff are dated November 7, 2008 in the bottom left corner, 20 while the third page contains the date June 11, 2010, the same is true of the document 21 produced by Defendant. (Cf. Doc. No. 43-3 at 136–138 with Doc. No. 38-3 at 34–35.) 22 Moreover, as both parties produced the first and third pages of the addendum, the second 23 page is the only portion of the addendum at issue, and it bears the same date as the first 24 page. That the addendum produced by Defendants has an indication that it was faxed 25 bears little relevance to whether the addendum signed by Plaintiff was actually two or 26 three pages. 27 28 Lastly, the three-page addendum rendering any waiver of notice by Plaintiff void and unenforceable is consistent with Plaintiff’s declaration and federal housing 8 14cv1489 AJB (WVG) 1 protections. Plaintiff’s declaration states that the Section 8 leasing addendum contained 2 provisions consistent with the three-page addendum produced by Plaintiff. Similarly, 42 3 U.S.C. § 1437f(d)(1)(B)(i)–(v) provides that a tenant must be given written notice when a 4 tenancy is terminated that includes the reason(s) for the termination. Id. (stating any 5 termination of tenancy must be preceded by the owner’s provision of written notice to the 6 tenant specifying the grounds for such action). This consistency with federal housing 7 protections is highly persuasive. For these reasons, the Court sustains Plaintiff’s objection to the Section 8 housing 8 9 lease addendum proffered by Defendants. All of Plaintiff’s remaining objections are 10 overruled as moot. Defendants’ objections are similarly overruled. With the parties’ 11 evidentiary objections assessed, the Court now considers the evidence offered in support 12 of summary judgment. 13 B. 14 Plaintiff Has Made a Prima Facie Showing of Housing Discrimination Plaintiff asserts three claims for violation of the Fair Housing Act (“FHA”), 15 16 California’s Fair Employment and Housing Act (“FEHA”), and the Unruh Act on the 17 basis of the same allegations. (See Doc. No. 15.) The provisions of FEHA and the Unruh 18 Act require the same analysis as the FHA as these laws protect “substantially the same 19 rights as the FHA.” See Cabrera v. Alvarez, 977 F. Supp. 2d 969, 975 (N.D. Cal. 2013); 20 Walker v. City of Lakewood, 272 F.3d 1114, 1131 n.8 (9th Cir. 2001). Thus, the Court 21 will begin its analysis under the FHA.1 Pursuant to the FHA, 42 U.S.C. § 3604(b), a claim for discrimination “against any 22 23 person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the 24 provision of services in connection therewith, because of race, color, religion, sex, 25 26 27 28 See Walker v. City of Lakewood, 272 F.3d 1114, 1131, n.8 (9th Cir. 2001) (“Because we apply the same standards to FHA and FEHA claims, the McDonnell Douglas analysis applies to the FEHA claim as well.”) (internal citation omitted). 1 9 14cv1489 AJB (WVG) 1 familial status, or national origin” can be established through either disparate impact or 2 disparate treatment theory. Budnick v. Town of Carefree, 518 F.3d 1109 (9th Cir. 2008); 3 Gamble v. City of Escondido, 104 F.3d 300, 304–05 (9th Cir. 1997). In connection with 4 Defendants’ motion to dismiss, the Court concluded Plaintiff had not alleged a disparate 5 impact claim, and could pursue his FHA claim only under a disparate treatment theory. 6 (See Doc. No. 22 at 8) (noting Plaintiff had not alleged the application of any particular 7 policy or practice resulting in an adverse effect to Plaintiff). Accordingly, Plaintiff has 8 presented his claims of discrimination under a disparate treatment theory. 9 Disparate treatment claims are analyzed under the standards developed in 10 connection with Title VII of the Civil Rights Act of 1964. Mustafa v. Clark County Sch. 11 Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998); Gamble, 104 F.3d at 304–05. Courts 12 employ a three part burden-shifting framework as articulated in McDonnell Douglas 13 Corp. v. Green, 411 U.S. 792, 793 (1973). See Surrell v. Cal. Water Serv. Co., 518 F.3d 14 1097, 1105 (9th Cir. 2008). The three-part standard first requires a plaintiff to present a 15 prima facie case of disparate treatment. See Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th 16 Cir. 1999). If plaintiff establishes a prima facie case, the burden then shifts to defendants 17 to demonstrate a legitimate, non-discriminatory reason for their actions. Id. The burden 18 then reverts to plaintiff to show that defendants’ proffered reason is pretextual. Id. 19 A plaintiff is able to make a showing of disparate treatment simply by providing 20 evidence that a protected group has been subjected to explicitly differential or 21 discriminatory treatment. Cabrera v. Alvarez, 977 F. Supp. 2d 969, 976 (N.D. Cal. 2013). 22 Discriminatory intent or motive is a necessary element of any disparate treatment claim 23 under the FHA. See Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012); 24 Gamble, 104 F.3d at 305. A prima facie case of disparate treatment requires a plaintiff to 25 establish: (1) plaintiff’s rights are protected under the FHA; and (2) as a result of the 26 defendant’s discriminatory conduct, plaintiff has suffered a distinct and palpable injury. 27 Harris, 183 F.3d at 1051. Establishing a prima facie case provides the plaintiff a 28 presumption of discrimination. Id. When a plaintiff has provided direct and 10 14cv1489 AJB (WVG) 1 circumstantial evidence of discriminatory intent, she has established a prima facie case of 2 disparate treatment and may be able to survive a motion for summary judgment on that 3 evidence alone. Id.; Warren v. City of Carlsbad, 58 F.3d 439, 442 n.1 (9th Cir. 1995). 4 The FHA not only demands that tenants be able to secure an apartment on a 5 nondiscriminatory basis, but also “guarantees their right to equal treatment once they 6 have become residents of that housing.” Id. Eviction constitutes an adverse action under 7 the FHA. See Harris, 183 F.3d at 1050–52 (prima facie claim established for purpose of 8 summary judgment where tenants presented evidence of emotional distress due to feared 9 eviction notices for informal complaints about racial comments); see also Neudecker v. 10 Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003) (threats of eviction are adverse action 11 under FHA). 12 Considering the evidence offered in opposition to summary judgment, Plaintiff has 13 established a prima facie case of discrimination under the FHA based on Mr. Thomas’s 14 alleged discriminatory statements. In addition to the directly discriminatory statements 15 made by Mr. Thomas, Plaintiff has presented evidence that he was subjected to different 16 terms and conditions than other tenants in light of the notices to vacate and unlawful 17 detainer. See Hous. Rights Ctr. v. Sterling, 404 F. Supp. 2d 1179, 1192 (C.D. Cal. 2004) 18 (“[Plaintiff] has presented sufficient evidence to suggest he may have been subjected to 19 less favorable ‘terms, conditions or privileges’ with respect to the apartment or the 20 eviction proceedings brought against him than other tenants based on his race.”) Thus, 21 Plaintiff has presented sufficient evidence to establish a prima facie clam of 22 discrimination. 23 C. 24 25 Genuine Issues of Material Fact Remain 1. Housing Discrimination After a plaintiff has established a prima facie case, the burden then shifts to the 26 defendant to articulate some legitimate, nondiscriminatory reason for the action. See 27 McDonnell Douglas Corp., 411 U.S. at 802. To accomplish this, the defendant is only 28 required to set forth a legally sufficient explanation. Texas Dept. of Community Affairs v. 11 14cv1489 AJB (WVG) 1 Burdine, 450 U.S. 248, 255 (1981). Assuming the defendant can successfully rebut the 2 presumption of discrimination, the burden shifts back to the plaintiff to raise a genuine 3 factual question as to whether the proffered reason is pretextual. Id. at 255–56. A plaintiff 4 may succeed in persuading the court that she has been a victim of intentional 5 discrimination, “either directly by persuading the court that a discriminatory reason more 6 likely motivated the [defendant] or indirectly by showing that the [defendant’s] proffered 7 explanation is unworthy of credence.” Id. at 256. Notably, “[o]nce a prima facie case is 8 established . . . summary judgment for the defendant will ordinarily not be appropriate on 9 any ground relating to the merits because the crux of a [discrimination claim] is the 10 elusive factual question of intentional discrimination.” Lowe v. City of Monrovia, 775 11 F.2d 998, 1009 (9th Cir. 1985). 12 Defendants provide several explanations for the notices to cure and notices to 13 vacate issued to Plaintiff in an attempt to demonstrate there are legitimate, non- 14 discriminatory and non-pretextual reasons for each notice. First, Defendants contend that 15 Plaintiff breached his lease by failing to pay rent. (Doc. No. 38-1 at 8.) Defendants also 16 contend that Plaintiff breached his lease because other tenants complained about 17 Plaintiff’s behavior. (Id.) Next, Defendants contend that Ms. Hanassab was opting out of 18 the Section 8 program and implementing a renovation plan, which led to the attempted 19 termination of Plaintiff’s tenancy. (Id.) Finally, Defendants argue that Plaintiff’s 20 schizophrenia distorts his perception and leads to paranoia, which explain Plaintiff’s 21 belief that he is the subject of discrimination. (Id. at 13–14.) Assuming these explanations rebut the presumption of discrimination,2 Plaintiff 22 23 has raised general issues of material fact as to whether each explanation advanced by 24 Defendants is pretextual. For example, it is unclear whether the failure of the San Diego 25 Housing Commission to pay its portion of Plaintiff’s rent may be imputed to Plaintiff as a 26 27 2 28 Because the Court concludes genuine issues of material fact remain, the Court need not determine whether each offered explanation rebuts the presumption of discrimination. 12 14cv1489 AJB (WVG) 1 breach of his lease. (See Doc. No. 43-3 at 78–80) (showing monthly payments made by 2 and on behalf of Plaintiff); (Doc. No. 43-3 at 124) (listing amount of rent to be paid by 3 Plaintiff and the amount paid each month by SDHC). Similarly, Plaintiff has presented 4 evidence that his neighbors were the source of complaints, but that no action was taken 5 by Defendants. (See, e.g., Doc. No. 43-3 at 118) (complaint by Plaintiff regarding 6 neighboring tenants and failure of management to take action); (Doc. No. 43-3 at 109) 7 (letter from Plaintiff’s neighbor apologizing for conduct). The deposition testimony of 8 Rhoda Hu also suggests Plaintiff was subjected to different terms as Defendants’ typical 9 procedure for verifying complaints and issuance of notices to vacate were not followed 10 with respect to Plaintiff. (See Doc. No. 43-3 at 44–46) (discussing procedure for 11 investigating tenant complaints and general practices for issuing three-day notices to 12 cure). 13 Additionally, Defendants have not presented any evidence to confirm their 14 contention that Ms. Hanassab was in fact implementing a renovation plan that required 15 Plaintiff to move out of the space. To the contrary, there is little evidence in the record to 16 support the existence of Defendants’ renovation plan that required Plaintiff to vacate his 17 unit. (Cf. Doc. No. 43-3 at 24 with Doc. No. 43-3 at 182.) The same is true of 18 Defendants’ explanation regarding opting out of the Section 8 program. While Ms. 19 Hanassab may have intended to opt out of the program, there is no evidence that any 20 other Section 8 housing recipient at the Property was required to vacate. Instead, 21 Plaintiff’s lease and Section 8 housing addendum was renewed shortly thereafter, and 22 Plaintiff still resides at the Property with the assistance of Section 8 housing. (See Doc. 23 No. 43-3 at 184.) 24 Lastly, Plaintiff’s schizophrenia diagnosis does not entitle Defendant to summary 25 judgment. Although Defendants maintain the instances of discrimination did not occur, 26 Defendants argument only establishes a disputed issue of material fact as to the existence 27 of discriminatory conduct by Defendants and its agents, Mr. and Mrs. Thomas. 28 Defendants present no legal or factual basis for granting summary judgment based on 13 14cv1489 AJB (WVG) 1 Plaintiff’s mental diagnoses. To the extent Defendants’ arguments challenge Plaintiff’s 2 credibility, such determinations are not appropriate for resolution in the context of the 3 present motion. See Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985) 4 (“Issues of credibility, including questions of intent, should be left to the jury.”). 5 For these reasons, the Court finds that, even assuming Defendants proffered 6 explanations rebut the presumption of discrimination, genuine issues of material fact 7 remain. Thus, summary judgment as to Plaintiff’s FHA, FEHA, and Unruh ACT claims 8 is DENIED.3 9 2. Punitive Damages 10 Plaintiff seeks punitive damages in connection with his FHA, FEHA, and Unruh 11 Act claims. Defendants argue punitive damages are not appropriate because First Light 12 engaged in good faith efforts to comply with Title VII, and was not acting in reckless 13 disregard of federally protected rights. (Doc. No. 38-1 at 21.) Additionally, Defendants 14 contend Ms. Hanassab, as the owner of the Property, cannot be liable for punitive 15 damages because she did not authorize or ratify the acts of Mr. and Mrs. Thomas, she did 16 not employ Mr. Thomas, Mr. Thomas was not a managerial employee, and there were 17 written policies and training programs regarding anti-discrimination in place. (Id. at 22.) 18 Plaintiff contends that punitive damages are available under each of the applicable 19 statutes, and that Defendants have not provided any undisputed evidence demonstrating 20 Plaintiff is not entitled to punitive damages as a matter of law. All three of the statutes under which Plaintiff’s claims arise permit an award of 21 22 punitive damages in certain circumstances. See 42 U.S.C. § 3613(c)(1) (punitive damages 23 24 25 26 27 28 The Court denies Defendants’ motion for summary judgment as to the housing discrimination claims with one exception. Plaintiff has presented no evidence to suggest that he was subjected to discrimination because of his status as a recovering alcoholic. Accordingly, the Court GRANTS summary judgment only as to Plaintiff’s status as a recovering alcoholic. 3 14 14cv1489 AJB (WVG) 1 recoverable under FHAA); Commodore Home Systems, Inc. v. Superior Court, 32 Cal. 3d 2 211, 220 (1982) (punitive damages recoverable under FEHA); Botosan v. Fitzhugh, 13 F. 3 Supp. 2d 1047, 1052 (S.D. Cal. 1998) (punitive damages recoverable under the Unruh 4 Act). A plaintiff seeking punitive damages in a fair housing case must establish that the 5 defendants acted with “reckless or callous indifference” for the fair housing rights of 6 others. So. Cal. Hous. Rights Ctr. v. Krug, 564 F. Supp. 2d 1138, 1153 (C.D. Cal. 2007). 7 A finding of reckless indifference “ultimately focus[es] on the actor’s state of mind,” and 8 requires that the defendant “at least discriminate in the face of a perceived risk that its 9 actions will violate federal law to be liable in punitive damages.” Kolstad v. Am. Dental 10 Ass’n, 527 U.S. 526, 535 (1999). “[I]n general, intentional discrimination is enough to 11 establish punitive damages liability.” Inland Mediation Bd. v. City of Pomona, 158 F. 12 Supp. 2d 1120, 1159–60 (C.D. Cal. 2001). 13 Defendants have provided no facts to suggest that, as a matter of law, Plaintiff is 14 not entitled to punitive damages. Although the parties dispute whether Mr. Thomas was 15 an agent of First Light and Ms. Hanassab’s role, if any, in the allegedly discriminatory 16 conduct, Plaintiff has produced evidence to suggest the alleged discrimination was 17 intentional, and that Mr. Thomas was an agent of First Light and or Ms. Hanassab. 18 Moreover, as Plaintiff has presented sufficient evidence to withstand summary judgment 19 on its claims, it would be premature to foreclose Plaintiff’s opportunity to seek punitive 20 damages. See Ellorin v. Applied Finishing, Inc., 996 F. Supp. 2d 1070, 1095 (W.D. 21 Wash. 2014) (finding it premature to grant summary judgment as to punitive damages 22 claim for factual disputes remained regarding the defendant’s discriminatory conduct); 23 see also Blackfeet Tribe of Blackfeet Indian Reservation v. Blaze Const., Inc., 108 F. 24 Supp. 2d 1122, 1146 (D. Mont. 2000) (similarly denying summary judgment as to 25 punitive damages where underlying claim remained viable). Summary judgment as to 26 Plaintiff’s request for punitive damages is DENIED. 27 D. Plaintiff’s Claims Are Not Barred by the Statute of Limitations 28 15 14cv1489 AJB (WVG) 1 The Fair Housing Act provides that a plaintiff must file suit within two years after 2 “the occurrence or the termination of an alleged discriminatory housing practice.” 42 3 U.S.C. § 3613(a)(1)(A). However, where a plaintiff “challenges not just one incident of 4 conduct violative of the Act, but an unlawful practice that continues into the limitation 5 period, the complaint is timely when it is filed within [two years] of the last asserted 6 occurrence of that practice.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380–381 7 (1982). “Under the continuing violation doctrine, a plaintiff’s complaint will not be time- 8 barred if the defendant’s related wrongful acts continue into the statute of limitations time 9 frame. As a consequence, the statute of limitations only begins to run . . . upon the last act 10 in a series of related wrongful acts.” Silver State Fair Hous. Council, Inc. v. ERGS, Inc., 11 362 F. Supp. 2d 1218, 1221 (D. Nev. 2005). 12 Plaintiff filed suit in June 2014, and alleges that Defendants engaged in wrongful 13 conduct as early as 2011. Defendant contends Plaintiff’s claims are barred by the two- 14 year statute of limitations. (Doc. No. 38-1 at 21.) Defendants maintain “there may have 15 been one or two discrete, vague and innocuous comments” that occurred two years prior 16 to the date Plaintiff filed suit, and that the continuing violations doctrine does not apply. 17 (Id.) In opposition, Plaintiff argues the continuing violation doctrine applies because 18 Plaintiff alleges a series of discriminating acts that culminated with the unlawful detainer 19 action, which was filed only three months prior to this action. (Doc. No. 43 at 24.) 20 The position advanced by Defendants is unsupported by the record. Although some 21 of the alleged discriminatory conduct, namely the comment directed at Plaintiff’s 22 ethnicity, occurred more than two years before Plaintiff filed suit, the vast majority of the 23 alleged discriminatory acts occurred within the two-year limitations period. Specifically, 24 each of the allegedly wrongful notices to cure and notices to vacate fall within the 25 limitations period, as do several of the comments allegedly made by Mr. Thomas. Thus, 26 at best, only the comment by Mr. Thomas in the fall of 2011 regarding Plaintiff’s 27 ethnicity falls outside of the limitations period, which would not warrant summary 28 judgment as to all of Plaintiff’s claims. 16 14cv1489 AJB (WVG) 1 Additionally, in the context of the present motion, Plaintiff has raised a genuine 2 issue of material fact as to whether the continuing violation doctrine applies. For a claim 3 to survive summary judgment after failing to satisfy the limitations period requirement, a 4 plaintiff must raise a genuine issue of material fact concerning (1) the existence of a 5 continuing violation and (2) whether the violation continued into the limitations period. 6 See Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1016 (9th Cir. 2000). A 7 plaintiff can establish a continuing violation “by showing a series of related acts one or 8 more of which are within the limitations period—a serial violation. A serial violation is 9 established if the evidence indicates that the alleged acts of discrimination occurring prior 10 to the limitations period are sufficiently related to those occurring within the limitations 11 period.” Id. at 1015. At the summary judgment stage, as long as the conduct has the 12 capacity of being considered a violation, it becomes an issue for the finder of fact. 13 Morgan v. National Railroad Passenger Corp., 232 F.3d 1008 (9th Cir. 2000) (holding 14 that district court erred in granting partial summary judgment as to conduct occurring 15 during an eight year period prior to the limitations period); see also Anderson v. Reno, 16 190 F.3d 930 (9th Cir. 1999) (reversing district court’s grant of summary judgment in 17 favor of employer and holding that court erred in not considering events occurring during 18 a nine year period prior to the limitations period). 19 Here, although the first instances of discrimination are temporally distant, there 20 remains the potential for the violations to be considered related. This is sufficient to 21 defeat summary judgment. Douglas v. California Dept. of Youth Auth., 271 F.3d 812, 824 22 (9th Cir. 2001) (noting “the critical inquiry is whether in this case, [plaintiff] has 23 introduced facts, which if viewed in the light most favorable to him, raise material 24 questions about whether he was ‘exposed’ to [defendant’s] discriminatory policy during 25 the period of limitations.”); Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). Thus, 26 summary judgment based on the statute of limitations is inappropriate. 27 V. CONCLUSION 28 17 14cv1489 AJB (WVG) 1 2 For the reasons detailed above, Defendants’ motion for summary judgment is DENIED. 3 4 5 IT IS SO ORDERED. Dated: August 29, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 14cv1489 AJB (WVG)

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