272 F.3d 1114 (9th Cir. 2001), 00-55060, Walker v. City of Lakewood

Docket Nº:00-55060
Citation:272 F.3d 1114
Case Date:August 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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272 F.3d 1114 (9th Cir. 2001)






No. 00-55060

United States Court of Appeals, Ninth Circuit

August 31, 2001

        Argued and Submitted July 10, 2001

        Amended November 1, 2001

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        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: Noonan, Silverman, and Paez, Circuit Judges.


        PAEZ, Circuit Judge:


        The panel has voted unanimously to deny Defendant and Appellee City of Lakewood's petition for rehearing. Judges Silverman and Paez have voted to deny the petition for rehearing en banc, and Judge Noonan so recommends.

        The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R. App. P. 35(b).

        The petition for rehearing and rehearing en banc is DENIED.

        The opinion filed August 31, 2001, is hereby AMENDED as follows:

        1. Footnote 4 on page 12030 of the slip opinion is deleted.

        2. The two sentences on page 12033 of the slip opinion,

                 "The City supervised the organization more closely than it had before, by sending city officials to monthly meetings; asked the FHF to "curtail the amount of exposure" it gave discrimination complaints; and contacted other cities to complain about the FHF. Additionally, the City filed suit against the FHF for breach of contract, which required time and money to defend.", are deleted and replaced with the following two new sentences:

                 "The City supervised the organization more closely than it had before, by sending city officials to monthly meetings, and also asked the FHF to 'curtail the amount of exposure' it gave discrimination complaints. Additionally, the City contacted other cities to complain about the FHF and also filed suit against the FHF for breach of contract, which required time and money to defend.5"

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        3. The following footnote number 5 is added at the end of the second new sentence: "5 The City's right to engage in these types of activities may be protected under the Noerr-Pennington doctrine, named after the two Supreme Court cases, Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 5 L.Ed. 2d 464, 81 S.Ct. 523 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657, 14 L.Ed. 2d 626, 85 S.Ct. 1585 (1965). The Noerr-Pennington doctrine was originally developed to protect companies who lobbied the government or who sought redress from the courts from liability under the Sherman Act. See, e.g., Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc. 508 U.S. 49, 56, 123 L.Ed. 2d 611, 113 S.Ct. 1920 (1993) ('Those who petition government for redress are generally immune from anti-trust liability.'). This doctrine has been extended beyond its original context, and may be invoked in at least some limited cases by governmental entities, Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1094 (9th Cir. 2000) (holding that city may invoke Noerr-Pennington defense to protect lobbying of county government)".

        "But even if we were to apply Manistee to the City's alleged conduct in this case, the City's third-party suit against the FHF would not be protected activity under the Noerr-Pennington doctrine if it was 'objectively baseless.' Prof'l Real Estate Investors, 508 U.S. at 60. In addition, the City's communications with other cities regarding FHF must constitute 'petitioning' within the meaning of Manistee. Manistee, 227 F.3d at 1093-94. It is not clear from this record whether these standards are met and, therefore, whether the City ought to be able to claim a Noerr-Pennington defense with regard to these two types of conduct. Because there are genuine issues of fact regarding the City's alleged retaliatory conduct, we leave these issues for the district court to resolve on remand. With regard to the other allegedly retaliatory conduct, the doctrine does not apply and the City has no Noerr-Pennington defense."


        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. &#167 3617, and the California Fair Employment and Housing Act, Cal. Gov't Code &#167 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. &#167 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

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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 "case narrative," 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. &#167 &#167 3601 -3619, 3631; the California Fair Employment and Housing Act ("FEHA"), Gov't Code &#167 &#167 12955 12956.1; the Unruh Civil Rights Act, Cal. Civil Code &#167 51, 52(a); and the California Business and Professions Code &#167 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...

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