1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MICHAEL WILKERSON, No. 2:19-cv-02381 WBS CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 FUJINAKA PROPERTIES, LP; FUJINAKA CASTLE, LP; and 16 MONOLITH PROPERTIES, INC., 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Michael Wilkerson filed this action against 21 defendants Fujinaka Properties, LP, Fujinaka Castle, LP, and 22 Monolith Properties, Inc., alleging several federal- and state- 23 law claims for discrimination stemming from defendants’ failure 24 to install a handicap lift by the pool in defendants’ property. 25 Before the court is defendants’ motion to dismiss. (Mot. (Docket 26 No. 9).) 27 I. Relevant Allegations 28 Defendants Fujinaka Properties, LP, and Fujinaka 1 Castle, LP co-own Castle Village Mobile Home Park (“Castle 2 Village”), a mobile home park located in Ione, California. 3 (First Am. Compl. (“FAC”) ¶¶ 6, 7 (Docket No. 8).) Defendant 4 Monolith Properties, Inc., manages Castle Village. (Id. ¶ 8.) 5 In May of 1993, Amador County Health Department granted 6 Castle Village a permit to operate a swimming pool. (Id. ¶ 9.) 7 The pool specifications listed various safety elements that would 8 be included with the installation of the pool, including a 9 “handicap lift.” (Id. ¶ 10.) This lift, however, was never 10 installed. (Id.) 11 In September 2014, plaintiff suffered a stroke that 12 paralyzed the entire left side of his body. (Id. ¶ 11.) In 13 March 2015, plaintiff moved into a mobile home in Castle Village 14 because the home “was accessible for him.” (Id. ¶ 12.) The home 15 had a ramp and could accommodate his wheelchair. (Id.) 16 Plaintiff, however, struggled to get into the pool. 17 (Id. ¶ 13.) He tried twice before realizing it was “too hard and 18 dangerous a task.” (Id.) In 2016, plaintiff told management 19 that he was unable to access the pool because of his disability 20 and asked that they install a lift. (Id. ¶ 14.) The park 21 “simply said ‘no.’” (Id.) Plaintiff made two additional 22 requests to install a list, but defendants denied both. (Id.) 23 No owner or agent of Castle Village discussed or inquired into 24 possible alternative accommodations that would ensure plaintiff 25 could access the pool. (Id. ¶ 15.) In 2017, plaintiff’s left 26 leg was amputated, making it impossible for plaintiff to enter 27 the pool without accommodation. (Id. ¶ 16.) 28 In March 2019, Castle Village renovated the pool and 1 installed non-skid tiles on the step, rebuilt the steps to code, 2 and installed an ADA handrail. (Id. ¶ 19.) Castle Village did 3 not install a pool lift. (Id.) After the pool renovation, 4 defendants held an open forum with the residents to air any 5 grievances the residents had. (Id. ¶ 20.) Plaintiff asked that 6 the park do something to make the pool accessible to people with 7 mobility disabilities, such as installing a lift. (Id.) The 8 owners responded that they would not install a lift because they 9 were not obligated to do so. (Id.) 10 Plaintiff filed suit alleging the following three 11 claims: (1) violation of the Federal Fair Housing Act, 42 U.S.C. 12 § 3601 et seq.; (2) violation of the Fair Employment and Housing 13 Act, Cal. Gov’t Code § 12955 et seq.; and (3) violation of the 14 Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. Defendants 15 move to dismiss the complaint for failure to state a claim. 16 II. Legal Standard 17 On a Rule 12(b)(6) motion, the inquiry before the court 18 is whether, accepting the allegations in the complaint as true 19 and drawing all reasonable inferences in the plaintiff’s favor, 20 the plaintiff has stated a claim to relief that is plausible on 21 its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The 22 plausibility standard is not akin to a ‘probability requirement,’ 23 but it asks for more than a sheer possibility that a defendant 24 has acted unlawfully.” Id. “A claim has facial plausibility 25 when the plaintiff pleads factual content that allows the court 26 to draw the reasonable inference that the defendant is liable for 27 the misconduct alleged.” Id. 28 III. Discussion 1 A. Federal Fair Housing Act Claim (Count 1) 2 The Fair Housing Act (FHA) makes it unlawful for a 3 housing provider “[t]o discriminate against any person in the 4 terms, conditions, or privileges of sale or rental of a dwelling, 5 or in the provision of services or facilities in connection with 6 such dwelling, because of a handicap of that person.” 42 U.S.C. 7 § 3604(f)(2)(A). Section 3604(3) defines discrimination as “(A) 8 a refusal to permit, at the expense of the handicapped person, 9 reasonable modifications of existing premises occupied or to be 10 occupied by such person if such modifications may be necessary to 11 afford such person full enjoyment of the premises”; “(B) a 12 refusal to make reasonable accommodations in rules, policies, 13 practices, or services, when such accommodations may be necessary 14 to afford such person equal opportunity to use and enjoy a 15 dwelling”; or “(C) in connection with the design and construction 16 of covered multifamily dwellings . . . a failure to design and 17 construct those dwellings” to the FHA’s specifications. 42 18 U.S.C.A. § 3604(3). Plaintiff proceeds only under § 3604(3)(B) 19 and alleges that defendants discriminated against him because, in 20 refusing to provide a pool lift, defendants “refus[ed] to make 21 reasonable accommodations in rules, policies, practices, or 22 services.” (FAC ¶ 25.) 23 To state a claim of disability discrimination under the 24 FHA, the plaintiff must allege: “(1) that the plaintiff or his 25 associate is handicapped within the meaning of 42 U.S.C. § 26 3602(h); (2) that the defendant knew or should reasonably be 27 expected to know of the handicap; (3) that accommodation of the 28 handicap may be necessary to afford the handicapped person an 1 equal opportunity to use and enjoy the dwelling; (4) that the 2 accommodation is reasonable; and (5) that defendant refused to 3 make the requested accommodation.” Dubois v. Ass’n of Apt. 4 Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006). 5 Plaintiff sufficiently pleads a claim under the FHA. 6 Plaintiff alleges that he is handicapped (FAC ¶ 26), that 7 defendants knew of the handicap because plaintiff informed 8 defendants that plaintiff’s disability prevented him from 9 accessing the pool (id. ¶ 14), that plaintiff cannot enjoy the 10 pool without accommodation (id. ¶¶ 14, 20), that the 11 accommodation is reasonable (id. ¶ 14), that plaintiff requested 12 a pool lift (id. ¶¶ 14, 20), and that defendants refused to make 13 the requested accommodation (id.). 14 Defendants argue that plaintiff’s request for a pool 15 lift constitutes a “modification” and not an “accommodation” 16 under the statute because it modifies the physical property. 17 (Mot. at 3-6.) However, defendants cite no authority to 18 substantiate this distinction or, if this distinction does exist, 19 to persuade the court that the distinction compels the court to 20 dismiss this claim at this stage. In the Americans with 21 Disabilities Act context, for example, the Ninth Circuit uses the 22 terms “reasonable modification” and “reasonable accommodation” 23 “interchangeably.” Wong v. Regents of Univ. of California, 192 24 F.3d 807, 816 n.26 (9th Cir. 1999).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MICHAEL WILKERSON, No. 2:19-cv-02381 WBS CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 FUJINAKA PROPERTIES, LP; FUJINAKA CASTLE, LP; and 16 MONOLITH PROPERTIES, INC., 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Michael Wilkerson filed this action against 21 defendants Fujinaka Properties, LP, Fujinaka Castle, LP, and 22 Monolith Properties, Inc., alleging several federal- and state- 23 law claims for discrimination stemming from defendants’ failure 24 to install a handicap lift by the pool in defendants’ property. 25 Before the court is defendants’ motion to dismiss. (Mot. (Docket 26 No. 9).) 27 I. Relevant Allegations 28 Defendants Fujinaka Properties, LP, and Fujinaka 1 Castle, LP co-own Castle Village Mobile Home Park (“Castle 2 Village”), a mobile home park located in Ione, California. 3 (First Am. Compl. (“FAC”) ¶¶ 6, 7 (Docket No. 8).) Defendant 4 Monolith Properties, Inc., manages Castle Village. (Id. ¶ 8.) 5 In May of 1993, Amador County Health Department granted 6 Castle Village a permit to operate a swimming pool. (Id. ¶ 9.) 7 The pool specifications listed various safety elements that would 8 be included with the installation of the pool, including a 9 “handicap lift.” (Id. ¶ 10.) This lift, however, was never 10 installed. (Id.) 11 In September 2014, plaintiff suffered a stroke that 12 paralyzed the entire left side of his body. (Id. ¶ 11.) In 13 March 2015, plaintiff moved into a mobile home in Castle Village 14 because the home “was accessible for him.” (Id. ¶ 12.) The home 15 had a ramp and could accommodate his wheelchair. (Id.) 16 Plaintiff, however, struggled to get into the pool. 17 (Id. ¶ 13.) He tried twice before realizing it was “too hard and 18 dangerous a task.” (Id.) In 2016, plaintiff told management 19 that he was unable to access the pool because of his disability 20 and asked that they install a lift. (Id. ¶ 14.) The park 21 “simply said ‘no.’” (Id.) Plaintiff made two additional 22 requests to install a list, but defendants denied both. (Id.) 23 No owner or agent of Castle Village discussed or inquired into 24 possible alternative accommodations that would ensure plaintiff 25 could access the pool. (Id. ¶ 15.) In 2017, plaintiff’s left 26 leg was amputated, making it impossible for plaintiff to enter 27 the pool without accommodation. (Id. ¶ 16.) 28 In March 2019, Castle Village renovated the pool and 1 installed non-skid tiles on the step, rebuilt the steps to code, 2 and installed an ADA handrail. (Id. ¶ 19.) Castle Village did 3 not install a pool lift. (Id.) After the pool renovation, 4 defendants held an open forum with the residents to air any 5 grievances the residents had. (Id. ¶ 20.) Plaintiff asked that 6 the park do something to make the pool accessible to people with 7 mobility disabilities, such as installing a lift. (Id.) The 8 owners responded that they would not install a lift because they 9 were not obligated to do so. (Id.) 10 Plaintiff filed suit alleging the following three 11 claims: (1) violation of the Federal Fair Housing Act, 42 U.S.C. 12 § 3601 et seq.; (2) violation of the Fair Employment and Housing 13 Act, Cal. Gov’t Code § 12955 et seq.; and (3) violation of the 14 Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. Defendants 15 move to dismiss the complaint for failure to state a claim. 16 II. Legal Standard 17 On a Rule 12(b)(6) motion, the inquiry before the court 18 is whether, accepting the allegations in the complaint as true 19 and drawing all reasonable inferences in the plaintiff’s favor, 20 the plaintiff has stated a claim to relief that is plausible on 21 its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The 22 plausibility standard is not akin to a ‘probability requirement,’ 23 but it asks for more than a sheer possibility that a defendant 24 has acted unlawfully.” Id. “A claim has facial plausibility 25 when the plaintiff pleads factual content that allows the court 26 to draw the reasonable inference that the defendant is liable for 27 the misconduct alleged.” Id. 28 III. Discussion 1 A. Federal Fair Housing Act Claim (Count 1) 2 The Fair Housing Act (FHA) makes it unlawful for a 3 housing provider “[t]o discriminate against any person in the 4 terms, conditions, or privileges of sale or rental of a dwelling, 5 or in the provision of services or facilities in connection with 6 such dwelling, because of a handicap of that person.” 42 U.S.C. 7 § 3604(f)(2)(A). Section 3604(3) defines discrimination as “(A) 8 a refusal to permit, at the expense of the handicapped person, 9 reasonable modifications of existing premises occupied or to be 10 occupied by such person if such modifications may be necessary to 11 afford such person full enjoyment of the premises”; “(B) a 12 refusal to make reasonable accommodations in rules, policies, 13 practices, or services, when such accommodations may be necessary 14 to afford such person equal opportunity to use and enjoy a 15 dwelling”; or “(C) in connection with the design and construction 16 of covered multifamily dwellings . . . a failure to design and 17 construct those dwellings” to the FHA’s specifications. 42 18 U.S.C.A. § 3604(3). Plaintiff proceeds only under § 3604(3)(B) 19 and alleges that defendants discriminated against him because, in 20 refusing to provide a pool lift, defendants “refus[ed] to make 21 reasonable accommodations in rules, policies, practices, or 22 services.” (FAC ¶ 25.) 23 To state a claim of disability discrimination under the 24 FHA, the plaintiff must allege: “(1) that the plaintiff or his 25 associate is handicapped within the meaning of 42 U.S.C. § 26 3602(h); (2) that the defendant knew or should reasonably be 27 expected to know of the handicap; (3) that accommodation of the 28 handicap may be necessary to afford the handicapped person an 1 equal opportunity to use and enjoy the dwelling; (4) that the 2 accommodation is reasonable; and (5) that defendant refused to 3 make the requested accommodation.” Dubois v. Ass’n of Apt. 4 Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006). 5 Plaintiff sufficiently pleads a claim under the FHA. 6 Plaintiff alleges that he is handicapped (FAC ¶ 26), that 7 defendants knew of the handicap because plaintiff informed 8 defendants that plaintiff’s disability prevented him from 9 accessing the pool (id. ¶ 14), that plaintiff cannot enjoy the 10 pool without accommodation (id. ¶¶ 14, 20), that the 11 accommodation is reasonable (id. ¶ 14), that plaintiff requested 12 a pool lift (id. ¶¶ 14, 20), and that defendants refused to make 13 the requested accommodation (id.). 14 Defendants argue that plaintiff’s request for a pool 15 lift constitutes a “modification” and not an “accommodation” 16 under the statute because it modifies the physical property. 17 (Mot. at 3-6.) However, defendants cite no authority to 18 substantiate this distinction or, if this distinction does exist, 19 to persuade the court that the distinction compels the court to 20 dismiss this claim at this stage. In the Americans with 21 Disabilities Act context, for example, the Ninth Circuit uses the 22 terms “reasonable modification” and “reasonable accommodation” 23 “interchangeably.” Wong v. Regents of Univ. of California, 192 24 F.3d 807, 816 n.26 (9th Cir. 1999). Further, to the extent that 25 a distinction does exist, whether a pool lift is a modification 26 appears to be a question of fact because pool lifts do not 27 necessarily involve physical changes to the premises. (See, 28 e.g., Opp’n at 5 (listing examples of pool lifts) (Docket No. 1 13).) At this stage, the court cannot conclusively determine 2 that a pool lift is not an accommodation as a matter of law or 3 that a refusal to provide a pool lift cannot sustain a claim for 4 discrimination under the FHA as a matter of law. Accordingly, 5 the court will not dismiss this claim.1 6 1 Plaintiff also alleges, under his FHA claim, that 7 defendants failed to engage in an interactive process. (FAC ¶ 28.) Defendants do not appear to contest that plaintiff 8 sufficiently alleges such a failure. There is a split among the courts, however, as to whether the FHA imposes upon landlords an 9 obligation to engage in an interactive process. Compare 10 Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (“If a landlord is skeptical of a tenant’s alleged 11 disability or the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or 12 open a dialogue.”), with Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1047 (6th Cir. 2001) (“[W]hile some courts have 13 imposed an obligation on employers and employees to engage in an 14 interactive process, there is no such language in the Fair Housing Act . . . that would impose such a duty on landlords and 15 tenants.”). FEHA, by contrast, explicitly requires an interactive process. See Cal. Gov’t Code § 12940(n). Because 16 plaintiff has sufficiently stated a claim for discrimination under the FHA, the court need not determine at this point whether 17 a failure to engage in an interactive process gives rise to an 18 independent claim for disability discrimination under the FHA. Instead, the court agrees with other district courts in the Ninth 19 Circuit and finds that defendants’ failure to engage can be relevant to whether they failed to reasonably accommodate 20 plaintiff. See, e.g., Rodriguez v. Morgan, No. CV 09-8939-GW CWX, 2012 WL 253867, at *8 (C.D. Cal. Jan. 26, 2012) (“[T]his 21 Court would not find that the interactive process is a separate 22 requirement under the FHAA. . . . However, a landlord's nonfeasance in that regard can be considered in determining 23 whether he or she failed to reasonably accommodate the tenant's disability/handicap.”); Elliott v. QF Circa 37, LLC, No. 16-CV- 24 0288-BAS-AGS, 2018 WL 2933467, at *12 (S.D. Cal. June 12, 2018) (“The Court believes that even if the FHA imposes no affirmative 25 obligation, evidence of a housing provider engaging in an interactive process with a tenant is relevant to the refusal 26 inquiry.”); see also Smith v. Powdrill, No. CV 12-06388 DDP RZX, 27 2013 WL 5786586, at *7 (C.D. Cal. Oct. 28, 2013) (“If Defendants felt that the accommodation imposed unreasonable costs, they were 28 required to engage in an ‘interactive process’ with Plaintiff to 1 B. Fair Employment and Housing Act Claim (Count 2) 2 “The provisions of FEHA . . . protect substantially the 3 same rights as the FHA provisions at issue and are subject to the 4 same analysis.” Cabrera v. Alvarez, 977 F. Supp. 2d 969, 975 5 (N.D. Cal. 2013) (citing Walker v. City of Lakewood, 272 F.3d 6 1114, 1131 n.8 (9th Cir. 2001)). The Ninth Circuit therefore 7 “appl[ies] the same standards to FHA and FEHA claims.” Pac. 8 Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 9 1156 n.16 (9th Cir. 2013) (citing Walker, 272 F.3d at 1131 n.8 10 (9th Cir. 2001)). Accordingly, because the complaint 11 sufficiently alleges a claim for discrimination under the FHA, it 12 also sufficiently alleges one under FEHA. The court therefore 13 will not dismiss this claim. 14 C. Unruh Civil Rights Act Claim (Count 3) 15 Plaintiff alleges a violation of Section 51(b) of the 16 Unruh Act.2 (FAC ¶ 46.) Defendants argue that the Unruh Act 17 bars claims that, like the present claim, “require any 18 construction, alteration, repair, structural or otherwise, or 19 modification of any sort.” Cal Civ. Code § 51(d). Plaintiff in 20 turn argues that Section 51(d) does not bar his claim because 21 defendants’ failure to install a lift is in violation of the 22 California Code of Regulations. The court agrees with plaintiff. 23 Section 51(d) reads as follows:
24 Nothing in this section shall be construed to require any construction, alteration, repair, 25
explore alternatives.”) 26
27 2 Plaintiff does not claim a violation of the Americans with Disabilities Act (ADA) as incorporated into the Unruh Act, 28 Cal. Civ. Code § 51(f). (FAC ¶ 46.) 1 structural or otherwise, or modification of any sort whatsoever, beyond that construction, 2 alteration, repair, or modification that is otherwise required by other provisions of law, to 3 any new or existing establishment, facility, building, improvement, or any other structure, 4 nor shall anything in this section be construed to augment, restrict, or alter in any way the 5 authority of the State Architect to require construction, alteration, repair, or 6 modifications that the State Architect otherwise possesses pursuant to other laws. 7 Cal. Civ. Code § 51(d) (emphasis added). The other “provision[] 8 of law” which requires defendants to install a lift is California 9 Code of Regulations § 1044, which applies to “Mobile Home Parks 10 and Installations,” and requires that “[a]ll construction . . . 11 be performed in accordance with approved plans and 12 specifications.” That provision also prohibits changes, 13 modifications or alterations “without the express prior approval, 14 when possible, of the person or entity which provided the 15 original approvals, and the enforcement agency.” Cal. Code Regs. 16 § 1044. According to plaintiff, defendants’ failure to install a 17 pool lift when the approved pool plans included one is in 18 violation of that provision. 19 Defendants contend that the complaint lacks factual 20 support for the allegations that support this claim. 21 Specifically, defendants argue that plaintiff cannot support 22 allegations that defendants submitted construction plans, that 23 defendants owned Castle Village when the construction plans were 24 approved, and that the construction plans were never properly 25 altered, among others. (Reply at 8 (Docket No. 16).) 26 Defendants’ arguments challenge the veracity of the complaint, 27 not its sufficiency. Further, defendants do not request judicial 28 1 notice of any construction plans or documents to establish that plaintiff’s allegations are factually incorrect. At this stage, 3 | plaintiff alleges with sufficient particularity that defendants 4 submitted construction plans that included a pool lift and that, 5 as a result, the California Code of Regulations is “[an]other 6 | provision of law” that requires construction of a pool lift. See 7 Cal. Civ. Code § 51(d). Accordingly, Section 51(d) does not bar 8 plaintiff’s Unruh Act claim. Cf. Moore v. Equity Residential 97 Mgmt., L.L.C., No. 16-CV-07204-MEJ, 2017 WL 2670257, at *6 (N.D. 10 Cal. June 21, 2017) (denying motion to dismiss plaintiffs’ Unruh 11 | Act claim “premised on specific violations of the Building Code 12 pertaining to elevator access and egress from the Property”). 13 In their reply, defendants argue, for the first time, 14 that even if Section 51(d) does not bar plaintiff’s claim, 15 | plaintiff fails to adequately plead discriminatory intent. 16 (Reply at 9.) Because courts “need not consider arguments raised 17 for the first time in a reply brief,” Zamani v. Carnes, 491 F.3d 18 990, 997 (9th Cir. 2007), the court will disregard this argument. 19 IT IS THEREFORE ORDERED that defendants’ motion to 20 dismiss (Docket No. 9) be, and the same hereby is, DENIED. 21 | Dated: April 1, 2020 Jed ie ak. 2 / 22 WILLIAM B. SHUBB 33 UNITED STATES DISTRICT JUDGE 24 25 26 27 28