Wolf v. City of Millbrae
| Decision Date | 23 August 2021 |
| Docket Number | 21-cv-00967-PJH |
| Parties | RICHARD WOLF, Plaintiff, v. CITY OF MILLBRAE, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Defendants' three motions to dismiss came on for hearing before this court on July 29, 2021. Plaintiff Richard Wolf appeared through his counsel, Andrew Campanelli and Samuele Riva. Defendant City of Millbrae (“City”) appeared through its counsel, Kurt Franklin. Defendant T-Mobile USA Inc. (“T-Mobile”) appeared through its counsel, Daniel Ridlon and Sunita Bali. Defendants Millbrae Heights Homeowners Association (“HOA”), Tony Deblauwe, Daniel Louie, Voltaire Warda, Yuri Regelman, and Alan Marshall (“individual defendants”)[1] all appeared through their counsel, Kristen Iversen. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.
In 2000, Wolf purchased a condominium unit located at Millbrae Heights, 320 Vallejo Drive, unit #41, Millbrae, CA 94030 (the “residence”). FAC ¶ 37. T-Mobile, a telecommunications provider, installed a cell site (the “cell site”) on the Millbrae Heights roof in 2010 pursuant to a lease negotiated with the HOA and a use permit granted by the City. FAC ¶ 37. Wolf approved the installation based on the information available at the time, which did not include the exact location of the cell site-six feet above his residence. FAC ¶¶ 37, 39.
Wolf alleges he suffers from “electromagnetic hypersensitivity” (“EHS”), which causes him to be physically and neurologically affected by radiofrequency (“RF”) emissions from cell phone equipment, resulting in a range of symptoms including insomnia, tiredness, fatigue, loss of energy, dizziness, difficulty concentrating, dry mouth, dry eyes, headaches, and weight gain. FAC ¶ 36. Wolf was diagnosed with EHS on September 1, 2020, and this EHS diagnosis is confirmed by his physician, Dr. Tiffany Baer. FAC Ex. A (Dkt. 28-1). Wolf alleges that his symptoms, caused by the cell site's RF emissions, have grown worse over the past 10 years as the cell site's power has been “amped up.” FAC ¶¶ 40-41.
Wolf reports that during the COVID-19 pandemic his “mental and physical wellbeing got severely worse” due to months of uninterrupted exposure to RF emissions. FAC ¶ 43. He moved out of the residence into temporary quarters on September 24, 2020, as a result of his severe symptoms. FAC ¶ 48. Wolf's physical and mental condition started to improve after he left the residence. FAC ¶ 51; Ex. D (Dkt. 28-4).
On July 30, 2020, plaintiff's hired electromagnetics expert, Monika Krajewska, evaluated the residence and found that “radiofrequency fields (RF) dramatically exceeded Building Biology precautionary levels in all rooms . . . 2, 500 higher than Building Biology Extreme Radiation levels were found in the living room and master bedroom, directly under the cell tower mounted on the rooftop above the unit.” FAC ¶ 44 (citing Ex. A [Dkt. 28-1] at 11).
A second electromagnetics evaluation, conducted by expert Stephanie Kerst, found the radiofrequency exposure data to exceed the Building Biology institute's precautionary guidelines by some 1300 times. FAC Ex. E (Dkt. 28-5) at 9.
The FCC sets maximum RF exposure standards, establishing limits on the amount of radiation that can be emitted from cell towers and other wireless transmitters. Plaintiff does not allege that the RF emissions at issue here exceed the FCC's limits.
On July 27, 2018, plaintiff's agent “informed the HOA of the dangers of T-Mobile's cell tower.” FAC ¶ 42. The HOA took no action. FAC ¶ 42.
On November 16, 2020, plaintiff's counsel sent a letter to counsel for the HOA requesting a reasonable accommodation for the HOA to have the cell site turned off. FAC Ex. B (Dkt. 28-2) at 2-7. This letter references additional correspondence between the parties, including a November 5 conversation and an email sent October 19. FAC Ex. B (Dkt. 28-2) at 2.
On November 20, 2020, plaintiff's counsel sent a letter to the President and CEO of T-Mobile requesting a reasonable accommodation for T-Mobile to remove and relocate the cell site. FAC Ex. B (Dkt. 28-2) at 8-9.
On December 24, 2020, plaintiff's counsel sent a letter to the Millbrae City Attorney requesting a reasonable accommodation based on his ongoing symptoms. FAC Ex. C (Dkt. 28-3). Specifically, counsel requests that the City “halt T-Mobile from operating its cell tower above the Residence until the City determines (1) whether Mr. Wolf is entitled to a reasonable accommodation under the ADA and FHAA and, if so, (2) what that reasonable accommodation should be.” Dkt. 28-3 at 4 (emphasis omitted).
The original complaint was filed February 8, 2021. Dkt. 1. Wolf filed the now-operative first amended complaint (“FAC”) on March 2, 2021. Dkt. 28. T-Mobile sought relief from this District's General Order 56 regarding special procedures for ADA actions, and this court granted the exemption on April 6, 2021. Dkt. 42. Defendants filed the three motions to dismiss now at issue on May 6, 2021.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).
While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations and quotations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. at 679. Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).
In the FAC, plaintiff advances the following claims against the City: (1) violation of the Americans with Disabilities Act (“ADA”), Title II; (3) violation of the Federal Fair Housing Act (“FHA”); (4) violation of California's Fair Employment and Housing Act (“FEHA”); (5) violation of plaintiff's fundamental rights to self-defense, safety, personal security, and bodily integrity - 42 U.S.C. § 1983; California Constitution, Art. I, § 1; and (6) declaratory judgment based on Fifth Amendment violations (as applied constitutional challenge) - 42 U.S.C. § 1983, in the alternative to counts one through four [takings]. Within the opposition to the City's motion, plaintiff voluntarily dismisses the claim for (5) violation of plaintiff's fundamental rights to self-defense, safety, personal security, and bodily integrity - 42 U.S.C. § 1983; California Constitution, Art. I, § 1. Dkt. 82 at 9 n.1.
“Title II of the ADA prohibits public entities from both discriminating against qualified individuals because of a disability and excluding such individuals from benefitting from or participating in a public program because of their disability.” Razon v. Cty. of Santa Clara, No. 17-CV-00869-LHK, 2018 WL 405010, at *9 (N.D. Cal. Jan. 12, 2018) (citing 42 U.S.C. § 12132). “To prove that a public program or service violated Title II of the ADA, [plaintiff] must show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th Cir. 2017). In short, Id. at 951 (internal citations omitted).
Importantly the ADA does not require an accommodation that an individual requests or prefers; instead, the ADA requires only a reasonable accommodation. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002); see also Townsend v. Quasim, 328 F.3d 511, 518 (9th Cir. 2003) . “Because the issue of reasonableness depends on the individual...
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