Bischoff v. Brittain

• Decision Date: 15 September 2016
• Docket Number: No. 2:14-cv-01970-KJM-CKD,2:14-cv-01970-KJM-CKD
• Court: U.S. District Court — Eastern District of California
• Parties: SCOTT BISCHOFF, et al., Plaintiffs, v. SANDRA BRITTAIN, et al., Defendants.

SCOTT BISCHOFF, et al., Plaintiffs, v. SANDRA BRITTAIN, et al., Defendants.

No. 2:14-cv-01970-KJM-CKD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 15, 2016

ORDER

Plaintiffs Scott Bischoff, Leron Dempsey, and Project Sentinel, Inc. ("Project Sentinel") filed this action against defendants RZM Investments Enterprise, LLC ("RZM"), J.A. Brittain, Limited ("Brittain Commercial"), Keith Johnson, and Sandra Brittain, alleging that their housing practices discriminate based on familial status. Several motions are currently before the court. Defendants move for reconsideration of the court's April 29, 2016 order granting Project Sentinel's motion for partial summary judgment. Plaintiffs move for partial summary judgment on other claims and for an interim award of attorney's fees and costs. Each motion is opposed. The court held a hearing on August 19, 2016, at which Todd Espinosa appeared for plaintiffs, and Ryan Abernethy and Daniel Costa appeared for defendants. As explained below, the court DENIES defendants' motion for reconsideration, GRANTS IN PART and DENIES IN PART plaintiffs' motion for partial summary judgment, and DENIES without prejudice plaintiffs' motion for attorney's fees and costs.

I. BACKGROUND

A. Statutory Background

Plaintiffs bring claims under the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 et seq. The FHA is a "broad remedial statute" that courts "generously construe." City of Edmonds v. Wash. St. Bldg. Code Council, 18 F.3d 802, 804 (9th Cir. 1994). The FHA makes it unlawful "[t]o discriminate against any person in terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of . . . familial status . . . ." 42 U.S.C. § 3604(b). Familial status discrimination entails "discrimination against families with children." Fair Hous. Cong. v. Weber, 993 F. Supp. 1286, 1290 (C.D. Cal. 1997). A plaintiff may bring a claim under § 3604(b) under either a disparate treatment or disparate impact theory. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008) (courts apply Title VII discrimination analysis in cases brought under the FHA). Plaintiffs here rely on a disparate treatment theory.

The FHA also makes it unlawful

[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . familial status, . . . or an intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604(c).

The Unruh Act provides, in relevant part,

All persons within the jurisdiction of [California] are free and equal, and . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Cal. Civ. Code § 51(b). The prohibitions of the Unruh Act include "discriminating in the sale or rental of housing based upon age." Id. § 51.2(a).

B. Evidentiary Objections

The court overrules defendants' objections to plaintiffs' citation to the court's May 2, 2016 order, Defs.' Objection Nos. 1-4 & 6-9, ECF No. 116-5, because they are not in fact evidentiary objections. Moreover, plaintiffs' statement of undisputed facts and the cited portions of the court's prior order each cite to materials in the record that independently support the respective facts. See Statement of Undisputed Material Facts ("UMF") Nos. 9, 10, 12, 13, 20, 27, 28, 35, ECF Nos. 47-2 & 61-1. The court also overrules defendants' objection as to Keith Johnson's personal knowledge, Defs.' Objection No. 5. Johnson properly provided testimony based on his experience as a resident manager of the complex. See Johnson Dep. 113, Espinosa Decl. Supp. MSJ Ex. C, June 3, 2016, ECF No. 110-3 ("Espinosa Decl. II") ("Q. In your experience as a resident manager, what have been the bases of situations that have led to evictions of your tenants?").

C. Relevant Facts

The court has examined the record to determine whether the submitted facts are supported and whether there exists a genuine dispute as to material facts. The following facts are undisputed, unless otherwise noted.

1. Background

The Birchwood Gardens apartment complex ("Birchwood Gardens") is located at 1225 Bell Street, Sacramento, California. UMF No. 2. Defendant RZM owns Birchwood Gardens. UMF No. 1. Defendant Brittain Commercial manages Birchwood Gardens on RZM's behalf under a written property management agreement. UMF No. 4. Defendant Sandra Brittain is the Property Director of Brittain Commercial, and defendant Keith Johnson is the resident on-site manager for Birchwood Gardens. UMF No. 6. Brittain and Johnson are both employed by Brittain Commercial. UMF No. 7.

Plaintiffs Bischoff and Dempsey each rented apartments at Birchwood Gardens at the time this action was filed. UMF No. 19. Bischoff and Dempsey are single fathers of minor children. UMF No. 20. Project Sentinel is a non-profit fair housing organization whoseorganizational mission includes the promotion of equal opportunity in housing and the elimination of all forms of unlawful housing discrimination. UMF No. 26.

Birchwood Gardens comprises approximately thirty apartments that surround a common courtyard area with a fenced swimming pool. UMF No. 2; Brittain Decl. Opp'n SJ ¶¶ 5, 7, Oct. 28, 2015, ECF Nos. 61-3 & 108 ("Brittain Decl. I"). The complex has a parking lot with fifty parking spots that is located only a "few paces" away from the courtyard area. Brittain Decl. Opp'n SJ ¶ 14, July 8, 2016, ECF No. 116-2 ("Brittain Decl. II"). A large gate separates the parking lot from the street in front of the complex. Id. The gates are electronically operated and take about a minute to open and close when a vehicle passes through. Id. The gate is kept open continuously from 2:00 p.m. to 6:00 p.m. Monday through Friday whenever there is a vacancy in the complex. Id.; Miller Dep. 154-55, Abernethy Decl. Ex. B, ECF No. 116-8. Robert Miller, plaintiffs' expert in the field of property management, testified that leaving the gate open jeopardizes the safety of the children in the building. Miller Dep. 69; see id. at 223-25 ("Brittain has put . . . the children in a [sic] harm's way . . . . [T]hese children would not be in harm's way if you had done these things to make sure that the children were in a safe place.").

2. "Brief Recap of Notes" Document and Related Guidance

Brittain Commercial's resident on-site managers receive training, including "Resident Relations" training, at seminars provided by independent experts. Brittain Decl. I ¶¶ 11-13; see Espinosa Decl. Supp. MSJ Ex. B (Certificates of Completion), Oct. 2, 2015, ECF No. 47-4 ("Espinosa Decl. I"). Defendant Brittain prepared a document titled "Brief Recap of Notes from the following classes:" ("'Brief Recap of Notes' document") on Brittain Commercial letterhead that summarizes several training seminars and provides guidelines for resident managers to follow. Espinosa Decl. I Ex. D; Brittain Dep. 106, Feb. 8, 2016, Espinosa Decl. II Ex. A; Brittain Decl. I ¶¶ 10, 15. Under the heading "Resident Relations," the document states, in relevant part,

Handling unsupervised children:

1. If you have a young child not being supervised, walk the child home and speak with whoever is in charge.

2. Have your supervisor write a letter after you speak with the person in the apartment, which will alert whoever opens the mail, that you are worried over the child's safety—you are now showing safety concerns and are not attacking their parenting skills or being discriminatory.

3. If nothing changes and the child is once again outside unsupervised, notify your supervisor who will now contact social services and/or the police.

4. If nothing still changes, we will then consider eviction and note the reasoning on their notice.

Espinosa Decl. I Ex. D. The document was distributed to all resident on-site managers for their reference in or about 2014 or 2015. Brittain Dep. 106-08, Feb. 8, 2016; Brittain Decl. I ¶ 15; Johnson Dep. 100-01, 105. It also was distributed to everyone in Brittain Commercial's main office. Brittain Dep. 107, Feb. 8, 2016.

Defendant Brittain explained the policy behind the guidelines in her declaration in opposition to Project Sentinel's prior motion for partial summary judgment, on which plaintiffs rely here without objection:

It is our understanding and belief that young children require regular adult supervision . . . . In managing Birchwood Gardens, we believe that it is within the scope of our management role to encourage . . . parents and guardians to exercise such supervision for the safety of their young children and for the benefit of other residents. We believe that such supervision is necessary so that young children who are tenant residents of Birchwood Gardens will not be at risk of injuring themselves or other residents, or engaging in disruptive or destructive activities. In an effort to promote such supervision and discourage parent-guardian neglect, we developed internal suggested guidelines for managers to use in their discretion as circumstances might warrant.

Brittain Decl. I ¶ 9.

The primary goals of these guidelines are to protect the safety and well-being of young children in need of supervision, to encourage such young children's parents or guardians to provide that needed supervision, and to limit disturbances to other residents by such children. They also serve the concomitant business purpose of protecting against liability that might arise from injuries to such young children.

Id. ¶ 16.

Defendant Johnson testified that he has never been "instructed" to follow the four steps outlined in the "Brief Recap of Notes" document. Johnson Dep. 94-95. Throughout his deposition, Johnson objected to the characterization...