Russell Elliott & Nelly Elliott v. San Diego Housing Commission, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUSSELL ELLIOTT & NELLY Case No.: 25-cv-002454-JO-BJW ELLIOTT, 12

Plaintiffs, 13 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS [DKT. 20] 14 SAN DIEGO HOUSING COMMISSION, 15 et al. 16 Defendants. 17 18 19 20 On February 19, 2026, the Court held oral argument on Defendants’ motion to 21 dismiss Plaintiffs’ complaint. For the reasons stated below and at oral argument, the Court 22 grants Defendants’ motion to dismiss. 23 1. In their complaint, Plaintiffs assert ten claims: (1) violation of the Fair Housing Act 24 (“FHA”), 42 U.S.C. § 3601, et seq.; (2) violation of Title II of the Americans with 25 Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.; (3) violation of Section 504 26 of the Rehabilitation Act, 29 U.S.C. § 794; (4) violation of California’s Fair 27 Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12955; (5) retaliation 28 in violation of the FHA, 42 U.S.C. § 3617; (6) deprivation of rights under 42 U.S.C. 1 § 1983; (7) intentional infliction of emotional distress; (8) declaratory and injunctive 2 relief; (9) economic loss due to tortious interference with pending litigation; and 3 (10) conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985. Dkt. 4 1 (“Compl.”) ¶¶ 67–131. 5 2. Based on Plaintiffs’ pleadings and the clarification they provided at oral argument, 6 Plaintiffs appear to base these claims on the following three actions: (1) Defendant 7 Faye Stauber deleted the supporting documentation for their HUD-VASH 8 application on November 8, 2023, id. ¶¶ 4, 38–39, 95–100; (2) Defendant Pamela 9 Gomes1 refused to submit their HUD-VASH application on March 20, 2024 because 10 their family’s ethnicity was listed as “other” on the application and Mrs. Elliott’s 11 maiden name was listed on one of their children’s birth certificates, id. at 27:19–24, 12 ¶ 92; and (3) Defendants Loretta Timis and the San Diego Housing Commission 13 (“SDHC”)2 denied them access to SDHC’s homeownership program, which allows 14 HUD-VASH voucher holders to use their vouchers for homeownership, rather than 15 renting, id. at 28:14–29:7. 16 3. To the extent that Plaintiffs allege failure to accommodate claims under the FHA, 17 ADA, and Rehabilitation Act based on Defendants denying them access to the 18 homeownership program, they fail to do so for the following reasons: 19 a. Plaintiffs have not adequately pled that Mr. Elliott has a disability as defined 20 by these statutes. The FHA, ADA, and Rehabilitation Act define a disability 21 as a physical or mental impairment that substantially limits one or more of a 22 person’s major life activities. See 42 U.S.C. § 3602(h) (FHA); 42 U.S.C. § 23

24 25 1 At the hearing, Plaintiffs clarified that they also seek to bring this claim against Defendant Timis. Plaintiffs further clarified that these Defendants refused to submit the application because of Plaintiffs’ 26 familial status and in retaliation for them complaining about Defendant Stauber and suing SDHC-affiliated private property companies. If Plaintiffs wish to do so, they may include these allegations against Gomes 27 and Timis in their First Amended Complaint. 2 At the hearing, Plaintiffs clarified that they also seek to bring this claim against Defendant Gomes. 28 1 12102 (ADA); 29 U.S.C. § 705(20) (Rehabilitation Act). Here, Plaintiffs 2 allege that Mr. Elliott is disabled, see Compl. ¶ 1, but do not say what his 3 physical or mental impairments are or how they impact his major life 4 activities. Thus, Plaintiffs have not adequately pled this element of their 5 failure to accommodate claims. 6 b. Plaintiffs also have not adequately pled that the requested accommodation— 7 allowing Mr. Elliott to use his HUD-VASH voucher for homeownership 8 rather than renting—was necessary to accommodate Mr. Elliott’s disability, 9 as opposed to merely a preference. Payan v. Los Angeles Cmty. Coll. Dist., 10 11 F.4th 729, 737–38 (9th Cir. 2021) (under Title II of the ADA and § 504 of 11 the Rehabilitation Act, a plaintiff must allege that they were denied the 12 benefits of a public entity’s services, programs, or activities because of their 13 disability); Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1190 (9th Cir. 14 2021) (under the FHA, an accommodation is “necessary” if “but for the 15 accommodation” the plaintiff “likely will be denied an equal opportunity . . . 16 to enjoy the housing of their choice”). Here, Plaintiffs fail to specify why 17 allowing Mr. Elliott to use his HUD-VASH voucher for homeownership is 18 necessary to provide him the same access to housing that he would have if he 19 were not disabled. A blanket assertion of disability, without more, is 20 insufficient to adequately plead that Mr. Elliott requires this accommodation 21 to access housing services. 22 4. To the extent that Plaintiffs allege intentional disability discrimination claims (i.e., 23 disparate treatment claims) under the FHA, ADA, Rehabilitation Act, and FEHA, 24 those claims fail because Plaintiffs have not plausibly alleged that Defendants 25 intentionally discriminated against them based on Mr. Elliott’s disability. Ohio 26 House, LLC v. City of Costa Mesa, 135 F.4th 645, 661 (9th Cir. 2025) (under the 27 FHA and FEHA, to prevail on disparate treatment claim, a “plaintiff must establish 28 that the defendant had a discriminatory intent or motive”) (emphasis in original) 1 (internal quotation omitted); Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 2 504 (9th Cir. 2016) (noting that to survive a motion to dismiss an FHA claim, a 3 plaintiff must plead facts that plausibly show that the defendant’s actions were 4 motivated by discrimination); Pac. Shores Props., LLC v. City of Newport Beach, 5 730 F.3d 1142, 1157 (9th Cir. 2013) (“The standards regarding disparate treatment 6 claims under the ADA are typically identical [to the FHA], and courts accordingly 7 interpret them in tandem.”) (internal citation and quotation marks omitted). 8 a. Regarding Plaintiffs’ claim that they were denied access to the 9 homeownership program, Plaintiffs fail to allege facts showing that 10 Defendants Timis and SDHC were motivated by discrimination when they did 11 not approve Plaintiffs for the program. Although Plaintiffs allege that seven 12 unnamed individuals were approved for the program while they were not, 13 Compl. ¶¶ 73–74, they do not say whether those individuals were disabled. 14 Nor do they plead facts showing that, aside from not being disabled, these 15 individuals were in a similar situation as Plaintiffs—for instance, that they too 16 had applied after the program was placed on hold. Id. at 29:4–8 (alleging that 17 Timis denied their request to access the homeownership program because the 18 program was on hold). The facts as currently pled do not allow the Court to 19 draw a reasonable inference that Plaintiffs were treated less favorably than 20 similarly situated non-disabled individuals. See Pac. Shores Props., 730 F.3d 21 1142, 115 (a plaintiff may show intentional discrimination by alleging facts 22 to show that they were treated worse than a similarly situated individual); 23 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain 24 sufficient fact[s] . . . [to] allow[] the court to draw the reasonable inference 25 that the defendant is liable for the misconduct alleged . . . Threadbare recitals 26 of the elements of a cause of action, supported by mere conclusory statements, 27 do not suffice”). Plaintiffs offer no other facts showing that Defendants 28 denied Plaintiffs access to the homeownership program because of Mr. 1 Elliott’s disability. Plaintiffs therefore fail to adequately plead a disparate 2 treatment claim based on being denied access to the homeownership program. 3 b. Despite their statements during the February 19, 2026 hearing, Plaintiffs’ 4 complaint does not allege that Defendants Stauber and Gomes were motivated 5 by disability discrimination when (1) Stauber deleted their HUD-VASH 6 application supporting documents, and (2) Gomes refused to submit their 7 HUD-VASH application. Nor do Plaintiffs plead any facts in support of these 8 allegations. Instead, Plaintiffs appear to allege that Defendants took these 9 actions in retaliation for Plaintiffs’ complaints about the administration of the 10 HUD-VASH program and their lawsuit against SDHC-affiliated property 11 companies. See Compl. ¶¶ 73–74, 80, 92. Therefore, Plaintiffs have not 12 plausibly pled a disparate treatment claim based on either of these actions. 13 5. To the extent Plaintiffs allege that Defendant Gomes intentionally discriminated 14 against them in violation of FEHA on other grounds, such as their ethnicity or marital 15 status, see id. at 27:19–24, ¶ 92, these claims also fail because Plaintiffs have not 16 pled sufficient facts to support the inference that Gomes was motivated by 17 discriminatory animus. See Cal. Gov’t Code § 12955(a) (prohibiting, among other 18 things, discrimination based on familial status, ethnicity, source of income, or 19 marital status); Ohio House, 135 F.4th at 661 (for a FEHA intentional discrimination 20 claim, a “plaintiff must establish that the defendant had a discriminatory intent or 21 motive”) (emphasis in original) (internal quotation omitted). Plaintiffs allege that 22 Gomes refused to submit their application because the family’s ethnicity was listed 23 as “other” on the application and because Mrs. Elliott’s maiden name was listed on 24 one of their children’s birth certificates. See Compl. at 27:19–24. Without more, 25 these bare facts are insufficient to plausibly plead that Gomes was motivated by 26 discriminatory animus against their ethnicity or their status as a married couple in 27 refusing to submit their application. Iqbal, 556 U.S. at 678 (alleging facts that “are 28 merely consistent with a defendant’s liability,” is insufficient to survive a motion to 1 dismiss because Rule 12(b)(6) requires “more than a sheer possibility that a 2 defendant has acted unlawfully”) (internal quotation omitted). 3 6. Because Plaintiffs have not plausibly pled failure to accommodate or disparate 4 treatment claims under the FHA, ADA, Rehabilitation Act, or FEHA, the Court 5 dismisses these claims (Claims 1–4) with leave to amend. 6 7. To the extent that Plaintiffs allege retaliation under § 3617 of the FHA (i.e., an “FHA 7 interference” claim) based on Timis and SDHC denying them access to the 8 homeownership program and Stauber deleting their supporting documents for their 9 HUD-VASH application, these claims fail because Plaintiffs have not plausibly 10 alleged a causal link between these actions and Plaintiffs’ exercise of their rights 11 under the FHA. See Compl. ¶¶ 4, 38–39, 95–101; Ohio House, 135 F.4th at 670 (to 12 plead an FHA interference claim, a plaintiff must allege that (1) they were engaged 13 in activity protected under the FHA; (2) they suffered an adverse action that affected 14 their exercise or enjoyment of rights under the FHA; and (3) there was a causal link 15 between the two). With respect to Plaintiffs’ allegation that Timis and SDHC denied 16 them access to the homeownership program because of their lawsuit against the 17 SDHC-affiliated private property companies, see Compl. ¶¶ 95–100, they have not 18 pled that Timis and SDHC even knew about the lawsuit, much less alleged facts 19 showing that Timis and SDHC were motivated by a desire to discourage or punish 20 Plaintiffs for the lawsuit. Without these facts, Plaintiffs have not plausibly alleged 21 that their lawsuit caused Timis and SDHC to deny them access to the 22 homeownership program.3 Similarly, with respect to Stauber’s alleged retaliation, 23 because Plaintiffs have not pled that Stauber knew about Mr. Elliott’s complaint to 24 the VA hotline when she deleted their documents, they have not plausibly pled that 25 26 27 3 At the hearing, Plaintiffs also clarified that Defendants Gomes and Timis refused to submit their application because they complained about Stauber. Plaintiffs may include this allegation in their First 28 1 she deleted their documents because of that complaint. Nor have they adequately 2 pled that their lawsuit against the private property companies caused Stauber to 3 delete their application documents. Because Plaintiffs allege that Stauber deleted 4 the documents in November 2023, before their lawsuit was filed in April 2024, the 5 lawsuit could not have caused her to take this action.4 Accordingly, the Court 6 dismisses Plaintiffs’ FHA interference claim (Claim 5) with leave to amend. 7 8. Plaintiffs’ claim that Defendant Stauber intentionally inflicted emotional distress by 8 deleting the personal documents Plaintiffs submitted in support of their HUD-VASH 9 application fails because they have not plausibly alleged that Stauber’s action 10 constitutes extreme and outrageous conduct. See id. ¶¶ 4, 108–12; Hughes v. Pair, 11 46 Cal.4th 1035, 1050 (2009) (to plead an intentional infliction of emotional distress 12 claim, a plaintiff must allege (1) extreme and outrageous conduct by the defendant 13 with the intention of causing, or reckless disregard for the probability of causing, 14 emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the 15 defendant’s extreme and outrageous conduct was the actual and proximate cause of 16 the severe emotional distress). While intentionally deleting identification documents 17 and requiring Plaintiffs to reobtain and resubmit them to apply for housing may be 18 burdensome and harmful, see Compl. ¶¶ 37–41, it is not the kind of “extreme and 19 outrageous conduct” that this cause of action is designed to address. See Crouch v. 20 Trinity Christian Ctr. of Santa Ana, Inc., 39 Cal. App. 5th 995, 1007 (2019) (“A 21 defendant’s conduct is considered to be outrageous if it is so extreme as to exceed 22 all bounds of that usually tolerated in a civilized community.”) (internal quotations 23 omitted). Therefore, the Court dismisses their intentional infliction of emotional 24 distress claim (Claim 7) with leave to amend. 25

26 4 The Court sua sponte takes judicial notice of the date that Plaintiffs’ lawsuit against these private 27 companies was filed as a matter of public record not subject to reasonable dispute. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.7 (9th Cir. 2006) (courts “may take judicial notice of court 28 1 9. Plaintiffs’ §§ 1983 and 1985 claims fail because they have not plausibly alleged an 2 underlying violation of federal or constitutional law. See Compl. ¶¶ 102–07, 127– 3 31; Naffe v. Frey, 789 F.3d 1030, 1035–36 (9th Cir. 2015) (to state a § 1983 claim, 4 a plaintiff must (1) allege the violation of a right secured by the Constitution and 5 laws of the United States; and (2) show that the alleged deprivation was committed 6 by a person acting under color of state law); Thornton v. City of St. Helens, 425 F.3d 7 1158, 1168 (9th Cir. 2005) (the “absence of a section 1983 deprivation of rights 8 precludes a section 1985 conspiracy claim predicated on the same allegations”). 9 Plaintiffs base their §§ 1983 and 1985 claims on the alleged violations of the FHA, 10 ADA, and Rehabilitation Act discussed above. Compl. ¶¶ 105, 127–129.5 Because 11 those claims fail, so do their §§ 1983 and 1985 claims based on the same conduct. 12 Therefore, the Court dismisses their §§ 1983 and 1985 claims (Claims 6 and 10) with 13 leave to amend. 14 10. Plaintiffs’ claims for declaratory and injunctive relief appear to be coextensive with 15 their underlying FHA, ADA, Rehabilitation Act, and FEHA claims. See Compl. 16 ¶¶ 113–17. Because Plaintiffs have not plausibly alleged those underlying claims, 17 their declaratory and injunctive relief claims also fail. The Court therefore dismisses 18 this claim (Claim 8) with leave to amend. 19 11. Plaintiffs’ claim for economic loss due to interference with pending litigation fails 20 because this is not a valid cause of action under California law. See id. ¶¶ 118–26, 21

22 5 At the hearing, Plaintiffs asserted that their §§ 1983 and 1985 claims were also based on a violation 23 of their First Amendment right to criticize the government. Because this theory was not pled in the complaint, the Court does not consider it, but Plaintiffs may raise it in their First Amended Complaint. 24 The Court also notes that not all statutory violations are actionable under §§ 1983 and 1985. See Vinson 25 v. Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002) (quoting Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir.1995) (noting that alleged violations of federal law may not be pursued under § 1983 where “(1) 26 the statute does not create an enforceable right, privilege, or immunity, or (2) Congress has foreclosed citizen enforcement in the enactment itself, either explicitly, or implicitly by imbuing it with its own 27 comprehensive remedial scheme,” and holding that plaintiffs may not “vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act” under § 1983). 28 1 Temple Cmty. Hosp. v. Superior Ct., 20 Cal. 4th 464, 475-76 (1999) (refusing to 2 permit these claims because a litigant’s expectancy in the outcome of litigation is 3 “peculiarly uncertain,” and thus the potential loss or impairment of a hoped-for civil 4 verdict is too speculative to qualify as a “prospective economic advantage’). 5 Because alleging additional facts would not overcome this legal bar, amendment 6 would be futile. Chappel v. Lab. Corp. of America, 232 F.3d 719, 725—26 (9th Cir. 7 2000) (court may deny leave to amend where amendment would be futile). 8 Therefore, the Court dismisses this claim (Claim 9) with prejudice. 9 12. To the extent Plaintiffs bring any other claims, the Court dismisses them under Fed. 10 R. Civ. P. 8 because it is unable to decipher them. 11 13. Plaintiffs are granted leave to file a First Amended Complaint by May 11, 2026. 12 Plaintiffs’ First Amended Complaint must be complete by itself without reference 13 to prior pleadings; any defendants not named and claims not re-alleged in the First 14 Amended Complaint will be considered waived. See S.D. Cal. Civ. L. R. 15.1; Hal 15 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) 16 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 17 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend may 18 be considered waived if not repled in the amended pleading). Failure to file an 19 amended complaint may result in dismissal of the case. 20 21 |} IS SO ORDERED. 22 Dated: April 10, 2026 Qe 23 24 Honorable Jinsook Ohta” 95 United States District Judge 26 27 28