526 F.3d 456 (9th Cir. 2008), 05-35647, Garcia v. Brockway

Docket Nº:05-35647, 06-15042
Citation:526 F.3d 456
Party Name:Noll GARCIA, Plaintiff-Appellant, State Farm Fire and Casualty Company, Intervenor-Appellee, v. Dennis BROCKWAY; Robert Stewart; Stewart Miles & Associates, Defendants-Appellees, and J.J. Zavoshy; Y.W. Zavoshy; H & H Properties; Zavoshy Rev. Inter Vivos Trust, Defendants. Tamara Thompson; Disabled Rights Action Committee, (a Utah non-profit corpora
Case Date:May 13, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 456

526 F.3d 456 (9th Cir. 2008)

Noll GARCIA, Plaintiff-Appellant,

State Farm Fire and Casualty Company, Intervenor-Appellee,

v.

Dennis BROCKWAY; Robert Stewart; Stewart Miles & Associates, Defendants-Appellees,

and

J.J. Zavoshy; Y.W. Zavoshy; H & H Properties; Zavoshy Rev. Inter Vivos Trust, Defendants.

Tamara Thompson; Disabled Rights Action Committee, (a Utah non-profit corporation), Plaintiffs-Appellants,

v.

Gohres Construction Co., a Nevada corporation; Marc Gohres, Defendants,

and

Michael E. Turk, Defendant-Appellee.

Nos. 05-35647, 06-15042

United States Court of Appeals, Ninth Circuit.

May 13, 2008

Argued and Submitted March 25, 2008.

Page 457

[Copyrighted Material Omitted]

Page 458

Ken Nagy, Keeton and Tait, Lewiston, ID; Maria E. Andrade, Huntley Park, Boise, ID, for plaintiff-appellant Noll Garcia.

Phillip S. Oberrecht and Candy W. Dale, Hall, Farley, Oberrecht & Blanton, P.A., Boise, ID, for defendant-appellee Dennis Brockway.

Kirtlan G. Naylor and Carlton R. Ericson, Naylor & Hales, P.C., Boise, ID, for defendants-appellees Robert Stewart and Stewart Miles & Associates.

Richard Armknecht, III, Armknecht & Cowdell, P.C., Lindon, UT, for plaintiffs-appellants Tamara Thompson and Disabled Rights Action Committee.

Joshua H. Reisman, Stanley W. Parry and William P. Curran, Curran & Parry, Las Vegas, NV, for defendant-appellee Michael E. Turk.

Stephen M. Dane, Michael Allen and John P. Relman, Relman & Dane PLLC, Washington, D.C.; Susan Ann Silverstein and Julie Nepveu, AARP Foundation Litigation, Washington, D.C.; Joan Sylvester Wise, AARP, Washington, D.C., for amici curiae AARP, et al., in support of the appellants.

Thomas H. Keeling and Lee Roy Pierce, Jr., Freeman D'Aiuto Pierce Gurev Keeling & Wolf, PLC, Stockton, CA, for amici curiae California Building Industry Association, et al., in support of the appellees.

Jed W. Manwaring, Evans Keane LLP, Boise, ID, for amicus curiae Idaho Association of Realtors, in support of the appellees.

Christopher B. Hanback, Rafe Petersen and Elizabeth Phelps, Holland & Knight LLP, Washington, D.C.; Robert A. Bleicher, Holland & Knight LLP, San Francisco, California, for amici curiae National Multi Housing Council, et al., in support of the appellees.

Michael Evans, DePaul University College of Law; Christopher Brancart and Elizabeth Brancart, Brancart & Brancart, Pescadero, California, for amici curiae Silver State Fair Housing Council, Inc., et al., in support of the appellants.

Appeal from the United States District Court for the District of Idaho; Mikel H. Williams, Magistrate Judge, Presiding.

Page 459

D.C. Nos. CV-03-00193-MHW, CV-05-00156-ECR.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CARLOS T. BEA and N. RANDY SMITH, Circuit Judges.

ORDER

The three-judge panel decision, Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007), is adopted as the opinion of the en banc court. The opinion is amended as follows:

Page 1095, Column 1, Lines 22"24 Replace ‹Defendant Michael Turk is the most recent owner.› with ‹ Defendant Michael Turk is an officer of Rancho del Norte Villas, Inc., and of Gohres Construction.›
Page 1097, Column 2, Line 19 Delete footnote 4
Page 1098, Column 1, Line 10 Replace ‹this› with ‹last.›
Page 1101, Column 1, Line 5 After ‹period expired.› insert a new footnote stating: ‹Nothing we say precludes the application of equitable tolling if the requirements of the doctrine are met. For example, equitable tolling may be appropriate if the builder prevented testers or problem tenants from visiting the property after the issuance of a certificate of occupancy, or if a medical condition prevented a plaintiff from filing suit for some time after testing the property, see Brockamp v. United States, 67 F.3d 260, 263 (9th Cir.1995), rev'd on other grounds, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997).›
KOZINSKI, Chief Judge: We consider when the statute of limitations begins to run in a design -and -construction claim under the Fair Housing Act (FHA). Facts In these consolidated cases, plaintiffs appeal the district court's determination that their FHA design -and -construction claim was time-barred by the two-year statute of limitations. The fact patterns in these cases (at summary judgment) differ in several significant respects: Garcia v. Brockway, No. 05-35647: In 1993, Dennis Brockway built the South Pond Apartments in Boise, Idaho, and sold the last unit in 1994. In 1998, the Idaho Fair Housing Council filed an administrative complaint with the U.S. Department of Housing and Urban Development (HUD), and in 2001 Brockway entered into a conciliation agreement with HUD and the Idaho Fair Housing Council that resolved the complaint and provided a fund to pay for accessibility modifications to any unit for any resident with a disability. In 2001, plaintiff Noll Garcia rented a unit at South Pond and resided there until 2003. Because of a disability Garcia uses a wheelchair for mobility. While at South Pond, his apartment did not comply with the design -and -construction requirements of the FHA. It lacked curb cuts from the parking lot to the sidewalk, it didn't have a ramp to the front entrance door and the doorways were too narrow to allow clear passage of a wheelchair. Garcia's requests that management make accessibility improvements were ignored, as was his request that management build a ramp to his door or that he be relocated to a more accessible unit. Within two years of leasing the apartment, Garcia sued the original builder and architect (Brockway and Robert Stewart, respectively), and the current owners and management (the Zavoshy defendants). The district court granted summary Page 460 judgment in favor of Brockway and Stewart because Garcia's design -and -construction claim was not filed within the limitations period. The court denied the Zavoshy defendants' summary judgment on the accommodations and interference claims, and they subsequently settled. Garcia appeals the summary judgment in favor of Brockway and Stewart. Thompson v. Gohres Construction Co., No. 06-15042: In 1997, Gohres Construction built the Villas at Rancho del Norte in North Las Vegas, Nevada. Shortly thereafter, the Villas were issued a final certificate of occupancy, and the property was sold through foreclosure in 2001. Defendant Michael Turk is an officer of Rancho del Norte Villas, Inc., and of Gohres Construction. In 1997, the Disabled Rights Action Committee (DRAC) filed a complaint with HUD, and HUD terminated the complaint in 2001 because the complainants, as "testers," lacked standing. We subsequently held that testers have standing to sue under the FHA. See Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1104 (9th Cir. 2004). In 2004, plaintiff Tamara Thompson, a member of DRAC, "tested" the Villas and found discriminatory conditions --including an inaccessible building entrance, no curb cuts for the handicapped parking spaces and inadequate access to the pool. Within a year of Thompson's inspection, plaintiffs Thompson and DRAC sued Turk, Marc Gohres and Gohres Construction, asserting an FHA design -and -construction claim. The district court granted defendants' motion to dismiss because the claim was time -barred. We granted plaintiffs' motion to voluntarily dismiss the appeal as to Gohres and Gohres Construction. Plaintiffs thus only appeal the district court's order with respect to Turk. Analysis The FHA prohibits the design and construction of multifamily dwellings that do not have certain listed accessibility features. 42 U.S.C. § 3604(f)(3)(C). The statute provides three enforcement mechanisms. First, an administrative complaint may be initiated with HUD, see id. §§ 3610-3612, and remedies include actual damages to the aggrieved person, civil penalties and injunctive relief. See 24 C.F.R. § 180.670(b)(3). An aggrieved person--i.e., any person who "claims to have been injured by a discriminatory housing practice," 42 U.S.C. § 3602(i)(1) --must file the complaint "not later than one year after an alleged discriminatory housing practice has occurred or terminated." Id. § 3610(a)(1)(A)(i). HUD may also file a complaint sua sponte; it's unclear whether HUD is subject to the same limitations period. See id. Second, the Attorney General may bring a civil action if a defendant has "engaged in a pattern or practice of resistance" to FHA rights, or if a "group of persons has been denied any [FHA] rights . . . and such denial raises an issue of general public importance." Id. § 3614(a). The FHA does not provide a statute of limitations for these actions, and other courts have held that such actions seeking equitable relief are not subject to any time limit. See, e.g., United States v. Inc. Vill. of Island Park, 791 F.Supp. 354, 364-68 (E.D.N.Y. 1992); United States v. City of Parma, 494 F.Supp. 1049, 1094 n.63 (N.D. Ohio 1980). Actions seeking damages are subject to the general three-year statute of limitations, see 28 U.S.C. § 2415(b), and those for civil penalties must be "commenced within five years from the date when the claim first accrued." Id. § 2462. The third enforcement mechanism --the one at issue here --is a private civil action. The FHA provides that "[a]n Page 461 aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the...

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