Beliveau v. Caras

• Decision Date: 06 January 1995
• Docket Number: No. CV 94-5398 RAP (CTx).,CV 94-5398 RAP (CTx).
• Citation: 873 F. Supp. 1393
• Parties: Linda BELIVEAU, Plaintiff, v. Chris CARAS, James Rickell, and Does 1 through 25, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

873 F. Supp. 1393

Linda BELIVEAU, Plaintiff, v. Chris CARAS, James Rickell, and Does 1 through 25, inclusive, Defendants.

No. CV 94-5398 RAP (CTx).

United States District Court, C.D. California.

January 6, 1995.

Angela M. Brown, Bodkin, McCarthy, Sargent & Smith, Los Angeles, CA.

Sue Ann Howard, Baumberger & Howard, Lancaster, CA.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL DISMISSAL

PAEZ, District Judge.

On October 17, 1994, the Court heard defendants Chris Caras' and James Rickell's motion for partial dismissal of plaintiff's First Amended Complaint. After fully considering the moving, opposition, and reply papers, exhibits submitted in connection with the request to take judicial notice, authorities, and counsel's oral arguments, the Court denies the motion with respect to the First, Seventh, and Eighth Causes of Action, and grants the motion without leave to amend the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action.

I PROCEDURAL BACKGROUND

Plaintiff Linda Beliveau ("Beliveau") filed an action in Los Angeles Superior Court on February 24, 1994 against defendants Chris Caras, James Rickell, and Does 1 through 25 for sex discrimination in defendants' "operation of their apartment complex in violation of the California Fair Employment and Housing Act (Government Code §§ 12940 et seq)." She asserted causes of action for housing discrimination, negligent hiring, negligent supervision, sexual assault, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Defendants demurred to the complaint. On June 16, 1994, the Superior Court sustained the demurrer without leave to amend on the causes of action for housing discrimination, sexual assault (against Caras), intentional infliction of emotional distress (against Caras), and negligent infliction of emotional distress (against Caras). Leave to amend was granted with respect to the negligent hiring and negligent supervision causes of action.

On July 5, 1994, plaintiff filed a First Amended Complaint ("FAC") alleging the following causes of action: (1) discrimination in housing (42 U.S.C. § 3604 et seq.); (2) negligent hiring (unamended); (3) negligent supervision (unamended); (4) sexual battery (against Rickell) (5) intentional infliction of emotional distress (against Rickell); (6) negligent infliction of emotional distress (against all defendants and without court permission); (7) violation of the Ralph Civil Rights Act (Civ.C. § 51.7); (8) violation of the Unruh Act (Civ.C. § 51); (9) breach of the covenant of good faith and fair dealing; (10) breach of the covenant of quiet enjoyment (Civ.C. § 1927); and (11) intentional nuisance (Civ.C. § 3479). Pursuant to Federal Rule of Evidence 201, the Court hereby takes judicial notice of the pleadings and records in the Los Angeles Superior Court.

Defendants removed the case to federal court on August 9, 1994 based on the federal claim for discrimination in housing. Defendants Caras and Rickell moved to dismiss the First, Second, Third, and Sixth through Eleventh Causes of Action.

II RELEVANT FACTUAL BACKGROUND

The following facts, which the Court must accept as true for purposes of the instant motion, are alleged in the First Amended Complaint ("FAC").

Plaintiff rents an apartment in Redondo Beach. Defendant Chris Caras owns and operates the building; defendant James Rickell is the resident manager.

In about July/August 1993, Beliveau noticed that Rickell was staring at her while she was laying out by the apartment pool in her bathing suit. During that same time period, Rickell "began making off-color, flirtatious and unwelcome remarks to Beliveau." FAC, ¶ 10. Also during this time frame, Rickell "went to Plaintiff's apartment to repair a water leak in her shower, when he thereafter called her into the bathroom, proceeded to put his arm around her, told her she was an attractive woman, he would like to keep her company any time, and made a remark about her breasts, referring to them as `headlights.'" Id., ¶ 11, Beliveau pushed him away, and he "grabbed her breast, and, after being pushed away again, grabbed her buttock as she walked away from him." Id., ¶ 12.

III DISCUSSION

A. Standard on Motion to Dismiss

The purpose of a Rule 12(b)(6) motion is to test the "legal sufficiency of the claim or claims stated in the complaint." Schwarzer, Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial ("Fed.Civ.Proc."), § 9:187 (1994), citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); De La Cruz v. Tormey, 582 F.2d 45 (9th Cir.1978), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). The motion is disfavored; "dismissal is proper only in `extraordinary' cases." Fed. Civ.Proc., § 9:210, citing United States v. Redwood City, 640 F.2d 963 (9th Cir.1981).

In evaluating the motion, the Court looks only to the face of the complaint to determine whether there are defects. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); see also Fed.Civ.Proc., § 9:211. The complaint is construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980); Fed.Civ. Proc., § 9:213. In addition, "the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them." Fed.Civ.Proc., § 9:215 (emphasis in original), citing NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). In short, the "test is whether the facts, as alleged, support any valid claim entitling the plaintiff to relief," regardless of whether plaintiff erroneously used the wrong legal theory. Fed.Civ.Proc., § 9:227 (emphasis in original); Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir.1985).

B. Federal Housing Discrimination Claim

Title VIII or the Housing Rights Act of 1968, the Fair Housing Act, 42 U.S.C. §§ 3601-3619, prohibits, among other things, sexual discrimination in housing. 42 U.S.C. § 3604(b) provides in relevant part:

It shall be unlawful —

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

The application of sexual harassment doctrine to cases under Title VIII is relatively new. The first district court to find sexual harassment to constitute impermissible housing discrimination did so in Shellhammer v. Lewallen, Fair Hous. — Fair Lend. Rep. (P-H) ¶ 15,472 (W.D.Ohio Nov. 22, 1983). In that case, a landlord requested that plaintiff pose for nude photographs and engage in sexual intercourse with him. Plaintiff refused, and, as the Shellhammers alleged, this prompted the landlord to commence eviction proceedings on the pretext of their purported nonpayment of rent.

The court reviewed the arguments for and against allowing a housing discrimination claim to be based on sexual harassment. The court noted that, in the employment context, other courts had not found the absence of express authorization in the text or legislative history of Title VII to justify rejecting such claims. Moreover, both Title VII and Title VIII were "designed to eradicate the effects of bias and prejudice. Their purposes are, clearly, the same; only their field of operation differs." Indeed, as the Chief Judge of that district had explained, "The Fair Housing Act ... is to be construed generously to ensure the prompt and effective elimination of all traces of discrimination within the housing field." Id., p. 16,128, quoting United States v. City of Parma, 494 F.Supp. 1049, 1053 (N.D. Ohio 1980), aff'd, 661 F.2d 562 (6th Cir.1981). The district judge in Shellhammer concluded that, "in view of the policy of broad interpretation of the Fair Housing Act, the statute's remedial purposes, and the absence of any persuasive reason in support of the defendant's contentions that sexual harassment is not actionable under the Act," it was "entirely appropriate to incorporate this doctrine into the fair housing area." Id.

The judge then explained that in the housing area, "sexual harassment would consist of either creating an `offensive environment,' or conditioning tenancy or continued tenancy, upon sexual consideration." Id. The court found the latter form of sexual harassment to be present.

Since Shellhammer, additional courts have agreed that sexual harassment is an actionable form of housing discrimination. In New York ex rel. Abrams v. Merlino, 694 F.Supp. 1101 (S.D.N.Y.1988), the state and four individual female plaintiffs, two of whom were African-American, sued a real estate broker and three real estate salespersons for an alleged pattern and practice of race and sex discrimination in providing real estate brokerage services. Plaintiffs alleged that, among other things, defendant Merlino "subjected his female customers to unwanted physical touching and to suggestive sexual comments and propositions." 694 F.Supp. at 1102. Judge Goettel noted his reluctance at the motion to dismiss stage to find that a claim for sexual harassment could not be stated, and denied the motion to dismiss. Id. at 1104.

More recently, in Honce v. Vigil, 1 F.3d 1085 (10th Cir.1993), the Tenth Circuit recognized sexual harassment as a basis for a Fair Housing Act discrimination claim. The court noted that employment discrimination cases provided helpful guidance. 1 F.3d at 1088. The court explained:

Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be `sufficiently severe or pervasive' to alter the conditions of the housing arrangement ... It is not sufficient if the harassment is isolated or trivial.... `"Casual or isolated manifestations of a discriminatory environment ... may not raise a

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