Zimbelman v. S. Nev. Reg'l Hous. Auth., Case No. 2:13–cv–02143–APG–VCF.

• Decision Date: 02 June 2015
• Docket Number: Case No. 2:13–cv–02143–APG–VCF.
• Citation: 111 F.Supp.3d 1148
• Parties: Edward ZIMBELMAN, Plaintiff, v. SOUTHERN NEVADA REGIONAL HOUSING AUTHORITY, and, John Hill, in his official capacity, Defendants.
• Court: U.S. District Court — District of Nevada

111 F.Supp.3d 1148

Edward ZIMBELMAN, Plaintiff,

v.SOUTHERN NEVADA REGIONAL HOUSING AUTHORITY, and, John Hill, in his official capacity, Defendants.

Case No. 2:13–cv–02143–APG–VCF.

United States District Court, D. Nevada.

Signed June 2, 2015.

Ina Kristine Bergstrom, Teri Vela, Nevada Legal Services, Las Vegas, NV, for Plaintiff.

Amber L. White–Davidson, Theodore Parker III, Parker, Nelson & Associates, Chtd., Las Vegas, NV, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ANDREW P. GORDON, District Judge.

Plaintiff Edward Zimbelman applied for housing from defendants Southern Nevada Regional Housing Authority and John Hill (the "Housing Authority"). When he filled out the Housing Authority's application, Zimbelman noted he was a registered sex offender. Although the Housing Authority does not permit registered sex offenders into its housing program, it admitted Zimbelman.

After he had lived in his home for seven months, the Housing Authority sent Zimbelman a notice that he was being terminated from the housing program because he was a registered sex offender. Zimbelman filed this suit claiming the Housing Authority cannot terminate him.

He now moves for summary judgment, arguing the Housing Authority waived or is estopped from using the termination clause in his lease, and that the due process clause also prevents the Housing Authority from terminating him. The Housing Authority cross-moves for summary judgment, arguing Zimbelman cannot prove his claims.

The Housing Authority did not waive and is not estopped from terminating Zimbelman. And to the extent Zimbelman has a due process right to challenge the Housing Authority's decision, he cannot show it was wrong to terminate him. I thus deny Zimbelman's motion and grant summary judgment in favor of the Housing Authority.

I. BACKGROUND

The parties generally agree on the facts. Zimbelman applied for a home with the Housing Authority. He disclosed in his application that he was a registered sex offender. Apparently, the Housing Authority did not read his application carefully, if at all; instead, it relied on a preliminary background check to accept Zimbelman into the program.

Zimbelman's lease states that the Housing Authority "may terminate this lease agreement if ... [a] household member ... is found to have: a prior or current conviction for a sexual criminal offense that is subject to the Nevada Offender Registration Program."¹ The lease further states that "failure of [the Housing Authority] to insist upon the strict performance by the Tenant of the terms ... and conditions contained in this Lease ... shall not constitute ... a waiver or relinquishment" of the Housing Authority's rights.² The lease also states that a waiver of the Housing Authority's rights is not effective unless it is in writing and signed by the Housing Authority.³

Zimbelman signed the lease and moved into his home, where he lived for about seven months. Later, Zimbelman received a notice from the Housing Authority telling him that he was being evicted because he was a registered sex offender. He was understandably surprised; after all, he had explicitly disclosed in his application that he was a sex offender. But the Housing Authority apparently realized Zimbelman was a registered sex offender only after it received Zimbelman's records from the Las Vegas Metropolitan Police Department.

The Housing Authority gave Zimbelman an informal hearing on his termination. After termination was upheld, the Housing Authority gave Zimbelman a formal hearing. The Housing Authority provided Zimbelman with a written denial shortly after, explaining he was being terminated based on 24 C.F.R. pt. 966, the Housing Authority's policies, and PIH Notice 2012–28 (which is a policy document created by the department of Housing and Urban Development ("HUD")).⁴

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."⁵ For summary judgment purposes, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.⁶

If the moving party demonstrates the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."⁷ The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."⁸ It "must produce specific evidence, through affidavits or admissible discovery material, to show" a sufficient evidentiary basis on which a reasonable fact finder could find in its favor.⁹

A party must support or refute the assertion of a fact with admissible evidence.¹⁰ As the summary judgment procedure is the pretrial functional equivalent of a directed-verdict motion, it requires consideration of the same caliber of evidence that would be admitted at trial.¹¹ Thus, it is insufficient for a litigant to merely attach a document to a summary judgment motion or opposition without affirmatively demonstrating its authenticity.

III. DISCUSSION

The parties' motions for summary judgment address two disputes: (1) whether the lease allowed the Housing Authority to terminate Zimbelman and (2) whether the Housing Authority violated Zimbelman's due process rights by terminating him.

A. Whether the Housing Authority can terminate Zimbelman under the lease

The parties apparently agree that, under Section 3 of the lease, the Housing Authority could have initially terminated Zimbelman based on his registration status. Section 3 states the Housing Authority may terminate the lease if the tenant is a registered sex offender. But Zimbelman argues the Housing Authority either waived its rights to enforce this termination provision or is estopped from enforcing it.

i. Estoppel

Equitable estoppel consists of the following elements: (1) the party to be estopped must be apprised of the true facts, (2) that party must intend that his conduct shall be acted upon or must so act that the party asserting estoppel has the right to believe it was so intended, (3) the party asserting estoppel must be ignorant of the true state of the facts, and (4) the party asserting estoppel must have detrimentally relied on the other party's conduct.¹²

Zimbelman has failed to satisfy his initial burden to establish several of the estoppel elements. First, he provides no evidence or explanation about how he justifiably relied to his detriment on the Housing Authority's agreement to lease him his house. For instance, he has not proven that he lost another housing opportunity as a result of the Housing Authority's delay in seeking to evict him.

Next, he has not proven that he reasonably believed the Housing Authority intended not to enforce the termination provision. The Housing Authority specifically reserved its right to enforce the lease terms even if it did not enforce them at the outset. No lease term required the Housing Authority to enforce the termination provision at any specific time. Zimbelman points to no representations the Housing Authority made that could have reasonably led him to believe the Housing Authority gave up its right to terminate.

And Zimbelman provides no evidence he was ignorant of the fact that the Housing Authority might later terminate him because of his registration status. This is especially true because the terms of the lease put him on notice that his registration was a potential ground for termination and that the Housing Authority reserved the right to enforce the termination provision later.

Zimbelman primarily relies on Merrill v. DeMott for his estoppel argument.¹³ In Merrill, the Nevada Supreme Court held that a tenant was estopped from invalidating a lease. In finding estoppel, the Court pointed out that the landlord had detrimentally relied on the lease's existence: he took the property off the market and leased a parking lot for the tenant. Zimbelman has made no similar showing here. Merrill is also distinguishable in that it does not address whether a landlord is estopped from enforcing a termination provision because of a continuing breach.

I therefore find that Zimbelman has failed to prove the Housing Authority is estopped from enforcing the termination provision.

ii. Waiver

Zimbelman next argues the Housing Authority waived its right to enforce the termination provision by waiting seven months to enforce it. But Zimbelman's lease contained a non-waiver clause stating that the Housing Authority's failure to enforce:

the terms, covenants, obligations, agreements, and conditions contained in this Lease, or any of them, shall not constitute or be construed as a waiver or relinquishment of [the Housing Authority]'s right thereafter, at any time or in any manner, to enforce any such terms, covenants, obligations, agreements, or conditions.¹⁴

The lease also requires that any waiver be in writing and signed by the Housing Authority.¹⁵

Zimbelman argues the non-waiver clause should be unenforceable because the Housing Authority negligently failed to read Zimbelman's application and waited several months before evicting him. He cites to Consumers Distributing Company v. Hermann¹⁶ and Summa Corporation v. Richardson.¹⁷ These cases stand for the proposition that "parties may not sit on their rights forever" and that non-waiver clauses "retain their force and effect for only a reasonable amount of time."

In Consumers, the Nevada Supreme Court noted that non-waiver clauses are "generally enforceable." It went on to hold that a landlord's five-year delay in demanding a lease penalty was so unreasonable that the non-waiver clause in the lease should be ignored. Summa Corporation stands for a similar proposition that, in certain extreme cases of delay, a landlord might not be able to enforce a non-waiver provision to recover for...