Walker v. City of Lakewood
| Decision Date | 31 August 2001 |
| Docket Number | No. 00-55060,COUNTER-CLAIMANT-APPELLANT,DEFENDANT-APPELLEE,00-55060 |
| Citation | 263 F.3d 1005 |
| Parties | (9th Cir. 2001) NELSON WALKER, PLAINTIFF, And FAIR HOUSING FOUNDATION OF LONG BEACH,, v. CITY OF LAKEWOOD, A CALIFORNIA MUNICIPALITY, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barrett S. Litt, Litt & Marquez, Los Angeles, California, for the counter-claimant-appellant.
Kristin A. Pelletier and Richard R. Terzian, Bannan, Green, Frank, & Terzian, Los Angeles, California, for the defendant-appellee.
Krista Macnevin Jee, Law Office of Richard D. Jones, Fullerton, California, for the amici curiae.
Appeal from the United States District Court for the Central District of California Dickran Tevrizian, District Judge, Presiding D.C. No. CV-93-04531-DT (ANx)
Before: John T. Noonan, Barry G. Silverman, and Richard A. Paez, Circuit Judges.
This case presents the question of when an independent fair housing services provider engaged in advocacy efforts may sue the city with whom it contracts for retaliating against the provider in response to that advocacy. We hold that, as a general matter, retaliation against independent providers can be actionable under the federal Fair Housing Act, 42 U.S.C. §§ 3617, and the California Fair Employment and Housing Act, Cal. Gov't Code §§ 12955.7, and that, in this case, the Fair Housing Foundation of Long Beach's claims should have survived summary judgment. We remand those retaliation claims to the district court for further proceedings. However, we also hold that, under the circumstances in this case, the Fair Housing Foundation cannot state a claim under 42 U.S.C.§§ 1983 for retaliation against First Amendment activities.
Pursuant to its contract with the City of Lakewood ("City"), the Fair Housing Foundation of Long Beach ("FHF") operated a fair housing counseling program for the City. On September 2, 1992, a group of tenants and former tenants of the Park Apartments complex in Lakewood (the "Park Tenants" or "Park Plaintiffs") contacted the FHF, alleging that the Park Apartments management company was engaged in racial discrimination and harassment. After being presented with their various options, the Park Tenants requested referral to a private attorney. The FHF contacted the law firm of Traber, Voorhees & Olgun within a matter of days after first meeting with the Park Tenants. On July 29, 1993, the FHF advised the City that the residents of the Park Apartments were going to file a lawsuit against the owners and managers of the complex and that a press conference was going to be held at the FHF's offices on the following day. The FHF provided the City with a copy of the press release and a outlining the history of the anticipated litigation. The press release included the following statement by the FHF Executive Director, Barbara (Mowery) Shull, about the alleged discrimination at the Park Apartments:
This case illustrates why it is critical for apartment owners and managers to receive training in how to provide fair housing. While many of these families had lived for years in this complex without problem, it only took one ignorant and biased manager a few months to uproot and displace at least eight or nine such families and to send the message to yet another generation of young African-Americans that they are still not welcome in middle class cities like Lakewood.
The City contends that this statement accused it of racism.
The Park Tenants filed suit on July 30, 1993. Claiming unlawful eviction, harassment, and other discrimination based on race and familial status, the plaintiffs alleged violations of the federal Fair Housing Act ("FHA"), 42 U.S.C. §§§§ 3601 -3619, 3631; the California Fair Employment and Housing Act ("FEHA"), Gov't Code §§§§ 12955 12956.1; the Unruh Civil Rights Act, Cal. Civil Code §§ 51, 52(a); and the California Business and Professions Code §§ 17200; as well as negligent hiring, training, and/or supervision, and intentional infliction of emotional distress. The underlying action was resolved by a consent decree approved by then-District Judge Wardlaw on April 2, 1997.
In the meantime, on August 4, 1993, Scott Barker, Vice President of the Park Apartments' management company and a named defendant in the Park lawsuit, sent a letter to City officials complaining about the lawsuit and the FHF's investigation and aiding of the Tenants. Barker asked the City officials to "[p]lease review the policies of the Foundation and ask them to truly investigate claims prior to making statements in the newspaper." The top of the letter had a handwritten note saying, "We will be responding to this request!--Jack G." Jack Gonsalves is Assistant Director of Community Development for the City. On August 17, 1993, Charles K. Ebner, the City's Director of Community Development, sent a letter to the FHF requesting a meeting to discuss"possible contract violations." Ebner wrote the FHF a second letter, on September 23, 1993:
We believe FHF exercised poor judgment concerning the press release and conference in The Park apartments case . . . . The handling of The Park apartments case, and in particular the press conference, leaves us with serious concerns for the future . . . . Quite frankly we are looking for some assurance on the part of FHF that a similar scenario will not occur in the future and that you will have more regard for the community of Lakewood.
The FHF replied with a letter dated September 26, 1993, in which it informed the City that it was considering joining the Park Tenants suit as a plaintiff and that it was common practice for fair housing organizations to participate in press conferences, and expressed concern because the City's Housing Specialist, Michelle (Mitchell) Ramirez, had told Barbara Shull that the FHF would not be paid until it apologized. In a November 4, 1993, letter Ebner disputed the nature of the conversation between Ramirez and Shull:
Ms. [Ramirez], in fact, simply informed Ms.[Shull] that the City was waiting for a response from the FHF before releasing payment for those months. The City's interest is in resolving any problems with the FHF and receiving some assurance on the part of FHF that a similar scenario will not occur in the future and that you will have more regard for the community of Lakewood.
The November letter included the back payments that the City owed the FHF.
Then-District Judge Tashima denied the FHF's request to join the underlying action as a co-plaintiff, but granted the Park Tenants' request to join the City and the Los Angeles County Sheriff's Department as defendants.
Although the City had renewed the FHF's contract from 1990 to 1993 without requiring the FHF to submit a new bid each year, the City sent out requests for proposals to various fair housing organizations to replace the FHF. The City did not ask the FHF for a bid. Only the Fair Housing Council of San Bernardino and the FHF, which submitted a bid despite not receiving a request, submitted proposals. The FHF alleges it was excluded from consideration, and the San Bernardino organization was chosen to receive the 1994-95 contract.
The City filed a third-party complaint against the FHF and Shull for breach of contract and indemnity. In response, the FHF filed this counterclaim against the City, alleging interference and retaliation, in violation of the FHA, the FEHA, and the First Amendment. Judge Tashima dismissed the complaint against Shull and the breach of contract claim against the FHF. On May 17, 1999, District Judge Tevrizian granted summary judgment for the FHF on the City's indemnity claim and for the City on the FHF's state and federal fair housing claims. The district court held that the FHF did not have standing to sue under the FHA because the contract between the parties governed the FHF's legal obligations and contemplated termination of the relationship. The district court also held that the FHF did not have standing under the FEHA because that statute does not extend protection to independent contractors. On October 18, 1999, the district court also granted summary judgment for the City on the FHF's First Amendment retaliation claim. The district court held that, because of its confidential and policymaking position, the FHF was not entitled to First Amendment protection. The FHF now appeals. We have jurisdiction under 28 U.S.C. §§ 1291. We affirm the summary judgment on the§§ 1983 claim, but reverse the summary judgment on the FHA and FEHA retaliation claims.
Standing is a question of law reviewed de novo. Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1149 (9th Cir. 2000); San Pedro Hotel, Inc. v. City of Los Angeles, 159 F.3d 470, 474-74 (9th Cir. 1998).
A grant of summary judgment is also reviewed de novo. Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000). We apply the same standard as the trial court under Federal Rule of Civil Procedure 56(c). We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The Fair Housing Act makes it"unlawful to coerce, intimidate, threaten, or interfere with any person .. . on account of his having aided or encouraged any other person in the exercise or enjoyment of[ ] any right granted or protected by" the Act. 42 U.S.C. §§ 3617. The FHF alleges that the City violated §§ 3617, as well as the analogous state law, the FEHA, Cal. Gov't Code §§ 12955.7, by retaliating against the organization for its...
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