1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 RODNEY GREEN, SR., 10 Plaintiff, No. C 18-04888 WHA 11 v. 12 MERCY HOUSING, INC., a Nebraska ORDER RE SUMMARY corporation; MERCY HOUSING JUDGMENT 13 MANAGEMENT GROUP, INC., a Nebraska corporation d/b/a East Leland Court; MERCY 14 HOUSING CALIFORNIA XXXVIII, a California limited partnership; and DOES 1- 15 10, inclusive, 16 Defendants. / 17 18 INTRODUCTION 19 In this disability-discrimination action, defendants move for summary judgment. For 20 the reasons below, the motion is GRANTED. 21 STATEMENT 22 The essence of this case is that the landlord evicted plaintiff for failure to pay rent, not 23 on account of his race. Plaintiff has also failed to show the landlord neglected to accommodate 24 his disability. Beginning in December 2016, plaintiff Rodney Green, Sr., an African American 25 man, rented a unit at East Leland Court Apartments owned and operated by defendants Mercy 26 Housing, Inc., Mercy Housing Management Group, Inc., and Mercy Housing California 27 XXXVIII. Plaintiff depended on a walking cane for mobility and also needed an in-home care 28 giver (Compl. ¶¶ 6–11). 1 When plaintiff entered into his lease agreement, defendants told him he would receive 2 accessible parking. When he moved in, however, defendants had already leased the parking 3 spaces closest to plaintiff’s unit to a daycare center while he received a space a further from his 4 unit. The building property manager also accused plaintiff’s son — who visited plaintiff to 5 provide in-home health care — of engaging in criminal activity and living in plaintiff’s unit in 6 violation of plaintiff’s rental agreement (id. ¶¶ 11–14). 7 Following these incidents, defendants served plaintiff with a sixty-day notice to 8 terminate his tenancy. Defendants agreed to rescind the notice on the condition that plaintiff 9 not allow his son to come to the apartment. Plaintiff agreed to those terms. Plaintiff later filed 10 a complaint with the California Department of Fair Housing in December 2017 (id. ¶ 14). 11 Beginning June 2018, plaintiff failed to pay rent on time, and in October 2018, the Contra Costa 12 Superior Court entered judgment in favor of Mercy Housing and against the Greens, ordering 13 the Greens to return possession of the premises to Mercy Housing (Dkt. No. 76, Ex. E). 14 Plaintiff filed the complaint in the instant action in August 2018. The complaint 15 currently asserts claims under: (1) California’s Disabled Person’s Act; (2) California’s Unruh 16 Civil Rights Act; (3) the Fair Housing Act; (4) California’s Fair Employment and Housing Act; 17 (5) harassment and retaliation under California Government Code § 12955; (6) unlawful 18 interference under California Government Code § 12955.7; and (7) unfair competition under the 19 California Business & Professions Code § 17200 (Dkt. No. 1, 39). 20 Following various discovery disputes in which the Court ultimately appointed a special 21 master to oversee depositions, defendants filed the instant motion for summary judgment as to 22 all of plaintiff’s claims. This order follows full briefing and oral argument. 23 ANALYSIS 24 Under Rule 56(a), a movant is entitled to summary judgment if “there is no genuine 25 dispute as to any material fact.” A fact is material when it affects the outcome of the case. 26 Anderson v. Liberty Lobby, Inc.,

(1986). Although the moving party bears 27 “the initial burden of production and the ultimate burden of persuasion” on summary judgment, 28 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc.,

(9th Cir. 1 2000), once it has discharged that burden, the nonmovant must “go beyond the pleadings 2 and . . . designate specific facts showing there is a genuine issue for trial.” Celotex Corp. v. 3 Catrett,

, 323–24 (1986) (internal citation and quotation marks omitted). The 4 nonmoving party’s evidence must be sufficient such that the record, taken as a whole, could 5 support a rational trier of fact in finding for the nonmoving party on that issue. Matsushita 6 Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). If conflicting inferences may 7 be drawn from the facts, the case must go to the jury.” LaLonde v. Cnty. Of Riverside,

(9th Cir. 2000). 9 1. REASONABLE ACCOMMODATION. 10 The Fair Housing Act, the California Disabled Persons Act, the California Unruh Civil 11 Rights Act, and the California Fair Employment and Housing Act all prohibit discrimination 12 against those with disabilities by failing to provide them with reasonable or equal 13 accommodations. Such discrimination occurs if plaintiff (1) suffers from a disability, (2) 14 defendant knew or reasonably should have known of plaintiff’s disability; (3) accommodation 15 of the disability may be necessary to afford plaintiff an equal opportunity to use and enjoy his 16 dwelling; and (4) defendant refused to make such accommodation. McGary v. City of Portland, 17

(9th Cir. 2004). 18 Plaintiff alleges defendants refused to make three reasonable accommodations: (1) a 19 parking space near his unit and outside the gate; (2) a walkway clear of overhanging trees; and 20 (3) in-home care. There is no factual dispute that plaintiff meets the first three elements. 21 Rather, the question is whether plaintiff requested these accommodations and defendants 22 refused to make them. 23 A. Parking Space. 24 Plaintiffs first allege that defendants discriminated against him by failing to providing 25 him with certain parking spaces. Plaintiff moved into East Leland Court Apartments in 26 December 2016. At that point, he was provided assigned access to at least two non-disabled 27 parking spaces (spaces 141 and 31) and unassigned access to two handicapped parking spaces. 28 These spaces were all behind a gate and plaintiff needed to exit through that gate to reach his apartment unit. Plaintiff then requested a space closer to his unit and was given one (space 136), although defendants indicate plaintiff had been assigned this space from the start. This 3 || space was behind the gate as well. There were, however, other parking spaces closer to his unit that were outside the gate, and plaintiff thus began to park there instead. These spaces belonged to the First Baptist Head Start daycare program, not defendants, and that program ultimately 6|| towed plaintiffs car after he continued parking there. An image of the parking layout is below. 7 8 Plaintiff's Unit Handicap Spaces Space #141 — a Gate / & 9 2 ¥ 04 fa se <a □□ Sat Sa eat | QMemar ATor i □ DWE Slot RE \ eee ne ES = as □□ i Se ee 7S es le Peay SO = eee 2 AGAR SE Ae. ae ais NG SRR (EO ES BAA Se] «SG 12 .\ =e rae / Aa © eee) □□□ | ae Yas a C48 hi Lo of Ses ell x & co See eee, Smee 13 ~\ ROSA [en hy) eee Pe tess O be ey eT eed tees posi Sst tt □□ □ 3 os eee □□□ SAG sth [ety eto: |) ees has acral Le 1s) a a Eee tet [He : i} is 5 14 | (US OB. eee ee seth te ES ait | om od be Ae SSN Se A 8 SSL Eee ——— ; lieegesy 15 i ma SA Bag ae arated a ea <5) □ □□□ Z | SO ieee ees 16 i . Ser a ee 3 (seas! 17 . = Space #31 ead Start Parking Space #136 18 : 19 20 Regardless of whether plaintiff requested an accommodation for a closer parking space 21] to his unit or not, there is no genuine dispute as to any material fact defendants did not refuse to 22 || make a reasonable accommodation for him. Plaintiff at most, requested access to a parking 23 || space close to his unit outside the gate. He had access to space 141, one of the closest to the 24 || gate as well as two handicapped spaces, the two spaces closest to the gate. The only closer 25 || spaces to his unit were those that belonged to the First Baptist Head Start daycare, and that 26 || defendants could not provide to plaintiff. Failing to provide plaintiff a parking space 27 || somewhere outside the gate and even closer to the apartment unit as he desired was thus was not 28 || a failure to provide a reasonable accommodation.

1 B. Overhanging Trees. 2 Plaintiff alleges that defendants discriminated against him by failing to clear walkways 3 from overhanging trees. There is no evidence in the record that plaintiff made a request to 4 defendants to do so. Thus, the fact that defendants did not clear the walkways was not a failure 5 to provide a reasonable accommodation. 6 C. In-Home Care. 7 Plaintiff alleges that by banning Elijah Green, plaintiff’s son and in-home caregiver 8 from the property, defendants failed to provide plaintiff a reasonable accommodation. 9 In December 2017, defendants served plaintiff with a 60-day notice to terminate 10 tenancy. The notice stated, among other things, that plaintiff violated the lease because “Elijah 11 B. Green has continued to live in [the] unit” even though he “is an authorized guest” (Dkt. No. 12 72-5, Ex. JJ). Contrary to defendants’ assertions, there is no general dispute of material fact 13 that plaintiff made at least one request following the notice for a reasonable accommodation in 14 regards to Elijah. Specifically, a letter dated December 19, 2017, from plaintiff’s attorney at the 15 time to defendants stated, “As a reasonable accommodation Mr. Green requests that you rescind 16 the 60 day notice. . . Mr. Green would even be willing to consider asking his son Elijah to stay 17 away from the property completely for some set period of time in order to preserve his 18 tenancy.” The letter also stated that Elijah, “primarily visits Mr. Green to help his disabled 19 father with daily living requirements” (id., Ex. KK). Although plaintiff may not have followed 20 defendants’ protocol for formally requesting a reasonable accommodation or live-in attendant, it 21 does not change the fact that a request for a reasonable accommodation was made. 22 Following this request, however, plaintiff entered into an agreement to continue tenancy 23 in March 2018, which rescinded the 60-day notice as requested and also provided that he would 24 “not allow Elijah B. Green in the property” (id., Ex. NN). Banning Elijah thus was not a refusal 25 of the request for a reasonable accommodation, but rather an agreement reached by the parties. 26 Importantly, the agreement did not ban all in-home caregivers, only Elijah. 27 28 1 Defendants’ motion for summary judgment under the FHA, the California Disabled 2 Persons Act, the California Unruh Civil Rights Act, and FEHA on the ground of failure to 3 provide a reasonable accommodation is GRANTED. 4 2. RACE AND COLOR DISCRIMINATION. 5 The FHA, FEHA, and the Unruh Act all prohibit discrimination against an individual on 6 the basis of their race or color. Under the FHA, a plaintiff can establish discrimination by 7 showing “that (1) she is a member of a protected class; (2) she was qualified to receive certain 8 terms, conditions, or privileges of rental; (3) she was denied those terms, conditions, or 9 privileges; and (4) defendant bestowed the terms, conditions, or privileges to a similarly 10 situated party during the time period relatively near when the denial to the plaintiff.” 11 McDonnell-Douglas Corp. v. Green,

(1973). Plaintiff may also “produce direct or 12 circumstantial evidence demonstrating that a discriminatory reason more likely than not 13 motivated” defendant’s adverse actions. McGinest v. GTE Serv. Corp.,

, 1122 14 (9th Cir. 2004). 15 After the plaintiff has established the prima facie case, the burden the shifts to defendant 16 to articulate some legitimate, nondiscriminatory reason for the action. Assuming the defendant 17 can successfully rebut the presumption of discrimination, the burden shifts back to the plaintiff 18 to raise a genuine factual question as to whether the proffered reason is pretextual. 19 McDonnell-Douglas Corp., 411 U.S. at 802–03. FEHA tracks the FHA. See Pac. Shores 20 Props., LLC v. City of Newport Beach,

, 1156 n.14 (9th Cir. 2013). 21 A plaintiff seeking to establish a claim under the Unruh Act must demonstrate 22 intentional discrimination in public accommodations in violation of the terms of the Act. 23 Harris v. Capital Growth Investors XIV,

(1991), superseded by statute in part, 24 as recognized in Munson v. Del Taco, Inc.,

, 664–65 (2009). In other words, if 25 plaintiff cannot meet his burden under the FHA, he cannot meet his burden under the Unruh 26 Act’s stricter standard. 27 Here, the following are the statements that plaintiff alleges Evelyn Singh, property 28 manager, made (Green Decl. Ex. B): 1 1. “You people are the hardest people to deal with, black people, nigger.” 2 2. “Most black people are more problems for the complex.” 3 3. “Elijah was in the parking lot selling drugs and he is a gangster drug dealer.” 4 Setting aside the evidentiary objections, these alleged statements are despicable and 5 racist, and can work towards establishing a prima facie case of discrimination if plaintiff can 6 also demonstrate that defendants’ actions adversely affected him. Sanghvi v. City of Claremont, 7

, 536 n.3 (9th Cir. 2003). 8 Plaintiff contends that defendants enforced rent payment rules in a disparate manner. 9 Specifically, African-American residents were required to pay their rent on time while others 10 were not. As a general matter, being told to pay rent on time is not sufficient to demonstrate 11 discrimination. Unequal enforcement of this rule, however, may be. The problem is that the 12 only evidence of such disparate treatment is a statement from plaintiff stating that he “recall[ed] 13 speaking to other tenants who were not African American, and they regularly paid their rent 14 late. Ms. Evelyn Singh, or someone on her behalf, would leave a note in these tenants’ mailbox 15 that would say ‘If you are late with your payment don’t forget to add $25 fee to your payment’” 16 (Green Decl. ¶ 10). This statement contains multiple layers of hearsay and is thus insufficient 17 to establish plaintiff’s prima facie case. 18 Between January 2017 and June 2018, save for one instance, plaintiff paid his rent 19 within the grace period allowed by the lease. In the one instance he failed to pay within the 20 grace period, defendants allowed plaintiff additional time so he could secure funding from 21 Shelter Inc., a non-profit organization, for his payment (Dkt. No. 72-5, Ex. PP). It wasn’t until 22 plaintiff failed to pay multiple months of rent beginning in June 2018 that he was ultimately 23 evicted. 24 Plaintiff then contends that defendants also enforced unfair parking rules. In particular, 25 he states that he recalled “seeing and speaking to a Mexican-American tenant at Defendants’ 26 complex” who owned three cars and “was allowed to park in any parking space, and never had 27 the cars towed or received any warnings” (Green Decl. ¶ 11). He made a similar statement in 28 an intake interview with the Department of Fair Employment & Housing (DFEH) (Dkt. No. 77- 1 1, 17–24). Again, these statements contain at least one layer of hearsay and are thus insufficient 2 to establish plaintiff’s prima facie case. 3 Plaintiff’s other allegations of disparate treatment are that defendants served a 60-day 4 notice and ultimately evicted him due to his race and color. There is no dispute such a notice 5 was served or that plaintiff was ultimately evicted. The notice is thus sufficient to establish a 6 prima facie case. In offering a nondiscriminatory explanation, defendants’ 60-day notice itself 7 stated that the reason for the notice was that plaintiff violated multiple provisions in his lease 8 agreement and other housing rules. In particular, the notice stated that plaintiff’s son Elijah 9 Green, an authorized guest, parked in unauthorized spaces on the property multiple times, 10 appeared to engage in a drug transaction on the property, smoked marijuana and cigarettes on 11 the property, that he continued to live in the unit even though he was just an authorized guest, 12 and was involved in an incident on the property in which the Antioch Police Department were 13 called in (Dkt. No. 72-5, Ex. JJ). The lease and building rules provided, among other things, 14 that a resident’s guest would not engage in criminal activity nor park in unauthorized spaces. 15 Plaintiff has, nonetheless, not provided admissible evidence that the reasons for the notice were 16 pretextual. The record is clear that the vehicles of plaintiff (or his guests) got parked in 17 unauthorized spaces, and that Elijah (or his friends) smoked on the property, and that incidents 18 involving Elijah and the police occurred on the property. 19 In offering a nondiscriminiatory explanation as to plaintiff’s eviction, defendants 20 provide evidence that plaintiff did not pay rent at all for the months of June and July 2018, and 21 that following a stipulation for future judgment which allowed plaintiff a further opportunity to 22 pay rent, he again failed to pay his rent for September, which ultimately resulted in his eviction. 23 Plaintiff has not provided admissible evidence that reasons for the eviction could be pretextual. 24 He failed to pay his rent as required by his lease agreement and was thus evicted. 25 Because there is no general dispute of material fact that defendants’ allegedly 26 discriminatory treatment of plaintiff was not pretextual, defendants’ motion for summary 27 judgment as to plaintiff’s claims of discrimination on the basis of race or color under the FHA 28 and FEHA is GRANTED. Furthermore, because of the Unruh Act’s stricter standards for 1 discrimination, defendants’ motion for summary judgment as to plaintiff’s claims of 2 discrimination on the basis of race or color under the Unruh Act are also GRANTED. 3 3. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING COMPLAINT. 4 Section 3617 of the FHA provides, that “It shall be unlawful to coerce, intimidate, 5 threaten, or interfere with any person in the exercise or enjoyment of, or on account of his 6 having exercised or enjoyed . . . any right granted or protected” by the FHA. FEHA contains 7 similar provisions.

, 12955.7. To establish retaliation under these 8 laws, plaintiff must demonstrate (1) he engaged in protected activity; (2) defendants 9 subjected him to an adverse action; and (3) a causal link between the protected activity and the 10 adverse action. Walker v. City of Lakewood,

(9th Cir. 2001) (citations 11 omitted). 12 Here, plaintiff alleges in his fifth, sixth, and seventh claims of action that he engaged in 13 a protected activity — i.e., filing a complaint with the DFEH — and that an adverse action 14 occurred as a result — namely, that the property manager confronted him about the complaint, 15 “stopped communicating with Plaintiff and ignoring all his needs,” and ultimately evicted him 16 (Compl. ¶ 14). 17 The needs and requests that plaintiff alleges defendants ignored as a result of his DFEH 18 complaint include his request for a parking space closer to his unit and outside the gate as well 19 as his need for Elijah to be his in-home caregiver. As stated above, defendants accommodated 20 plaintiff’s request for a parking space to the extent possible and any further failure to address 21 the request was not an adverse action. 22 As to Elijah, defendants served the 60-day notice (which stated Elijah violated various 23 provisions of the lease agreement) on December 4, 2017. Plaintiff’s counsel at the time then 24 sent a letter on December 19 to defendants proposing that Elijah stay away from the property 25 (Dkt. No. 72-5, Ex. KK). Plaintiff did not submit his pre-complaint inquiry with DFEH until 26 December 26. His intake interview with DFEH did not occur until March 20 (Dkt. No. 77-1, 27 16–24). Accordingly, the record is clear that plaintiff’s filing of a complaint with the DFEH 28 had nothing to do with defendants serving the 60-day notice on him or banning Elijah. 1 The only other possible claim of retaliation is plaintiff’s eviction. There is, however, no 2 causal link between plaintiff’s filing of the complaint and his eviction. Plaintiff filed his pre- 3 complaint inquiry with the DFEH in December 2017. Defendants did not initiate eviction 4 proceedings until July 2018 after plaintiff had failed to timely pay his rent for June and July. 5 After the proceedings began, the parties entered a stipulation to allow plaintiff another 6 opportunity to pay. It wasn’t until plaintiff again failed to pay his rent and the state court 7 entered judgment granting defendants possession of the unit and rent that plaintiff was 8 ultimately evicted (Dkt. No. 76-1, Ex. A, C, E). Although the eviction proceedings took place 9 after plaintiff filed his complaint with the DFEH, there is no genuine dispute of material fact 10 that the complaint is not what caused the eviction proceedings. The timeline and documents 11 provided by the parties indicate plaintiff was evicted due to his failure to pay rent; there is no 12 evidence that suggests or even references the DFEH complaint in connection with the eviction. 13 Accordingly, defendants’ motion for summary judgment as to plaintiff’s fifth, sixth, and 14 seventh claims of action are GRANTED. 15 4. SECTION 17200. 16 Under California’s Unfair Competition Law, “unfair competition shall mean and 17 include any unlawful, unfair, or fraudulent business act or practice.”

17200. This law establishes three varieties of unfair competition — acts or practices which are 19 unlawful, or unfair, or fraudulent. Cel Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone 20 Co.,

(1999). Section 17200 “‘borrows’ violations of other laws and treats 21 these violations, when committed pursuant to business activity, as unlawful practices 22 independently actionable under section 17200 et seq. and subject to the distinct remedies 23 provided thereunder.” Farmers Ins. Exch. v. Superior Court,

(1992). 24 Because summary judgment has been granted for defendants on all other claims that plaintiff’s 25 section 17200 claim is reliant on, defendants’ motion for summary judgment as to plaintiff’s 26 section 17200 claim is also GRANTED. 27 28 1 5. REQUEST FOR CONTINUANCE AND EVIDENTIARY OBJECTIONS. 2 Plaintiff has requested a continuance on the underlying motion so that he can (1) depose Evelyn Singh; (2) retain an expert on handwriting; and (3) request defendants to produce 4}| originals of plaintiff's lease application. Counsel for both sides have exhibited highly 5 || contentious and unprofessional behavior in the discovery herein. Fact discovery for this case 6|| opened nearly a year ago and everyone has known of Evelyn Singh all along. She has even been present at all of plaintiff’s other depositions. This is a lame stall. Importantly, the record 8 || is sufficient to make the current summary judgment determination. The request is thus DENIED. 9 Both parties have also made numerous evidentiary objections. To the extent these 10 || statements or documents were not addressed in the order, the undersigned did not consider them 11 || in this motion and the objections to them are DENIED AS MOOT. In light of the ruling on the 12 || summary judgment motion, plaintiffs discovery motion is also DENIED AS MOOT. 3 13 CONCLUSION 14 For all of the above-stated reasons, defendants’ motion for summary judgment as to all 5 15 | of plaintiff’s claims is GRANTED. Judgment will be entered separately in favor of defendants and against plaintiff.

18 IT IS SO ORDERED. 19 20 || Dated: January 2, 2020. / rs Pee 21 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28

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