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MITCHELL v. YU SUNG

February 4, 1993

HOWARD MITCHELL, Plaintiff,
v.
LOUIS YU SUNG, CHIA LEE, FANG LING, and BEN GROH, Defendants.



The opinion of the court was delivered by: D. LOWELL JENSEN

 On December 9, 1992, the Court heard defendants' motion to dismiss plaintiff's third and fifth causes of action and defendants Chia Lee and Fang Ling's motion to quash plaintiff's complaint. Christopher Brancart of Brancart & Brancart appeared for plaintiff. Jeremy Sugerman of Morton & Lacy appeared for defendants. Having considered the papers submitted, the arguments of counsel, and the applicable law, the Court GRANTS defendants' motion to dismiss plaintiff's third and fifth causes of action and GRANTS defendants' motion to quash.

 I. BACKGROUND

 Plaintiff Howard Mitchell, a black housing tester, brings this action on behalf of himself and as a representative of the general public pursuant to California Business and Professions Code section 17204. Plaintiff alleges that defendants discriminated against him on the basis of his race. Plaintiff avers that defendants Louis Yu Sung, Chia Lee, and Fang Ling own and operate a residential hotel located at 815 O'Farrell Street in San Francisco, California ("rental premises"). Defendant Ben Groh was the on-site manager of the rental premises.

 Plaintiff claims that defendants have engaged in a practice of racial discrimination against residents and prospective residents of the rental premises. Beginning in August 1990, on a referral from the San Francisco Human Rights Commission, Operation Sentinel, a nonprofit fair housing organization, investigated the rental practices of defendants. Mitchell alleges the following facts.

 Plaintiff claims that on August 8, 1990 he posed as a prospective tenant. Defendant Ben Groh, who is not black, informed plaintiff that no vacant apartment was available. Plaintiff further avers that Groh said an apartment would be available at the end of August, but that it had already been promised to another.

 Later that same day, on August 8, Dick Richards, a white housing tester, posed as a prospective tenant at the rental premises. Groh allegedly showed Richards an apartment and told him that another apartment would be available in one week and another one month thereafter.

 Mitchell also argues that, on January 30, 1991, Stan Davis, another black housing tester, posed as a prospective tenant at the rental premises. Groh allegedly reported that a studio apartment would be available in two weeks and another available in one week. Davis was shown one of the apartments.

 On January 31, 1991, James Webster, a white housing tester, also posed as a prospective tenant at the rental premises. Groh allegedly informed Webster that three units would be available the following day and possibly a fourth unit would be available contingent on a person calling him that afternoon.

 On March 5, 1992, Jack Farmer, a black housing tester, posed as a prospective tenant at the same premises. Groh is reported to have informed Farmer that three units would be available for rent in a week, but that he would prefer not to show the apartments at the time because they were unclean. Farmer was given an application and told to return the following week.

 On March 5, 1992, three hours after Farmer met with Groh, Eliot Canick, a white housing tester, posed as a prospective tenant. Canick too met with Groh, who showed him a one-bedroom unit. Groh allegedly told Canick that he could have the apartment if his application was approved.

 On July 22, 1992, plaintiff Howard Mitchell filed this action against defendants Louis Yu Sung, Chia Lee, Fang Ling, and Ben Groh seeking monetary, declaratory, and injunctive relief. Plaintiff claims that defendants have caused him to suffer severe personal injury and hardship. Plaintiff states that he has suffered severe emotional distress and mental anguish as a result of defendants' actions and omissions.

 Plaintiff has alleged the following claims: (1) Violation of 42 U.S.C. § 3604 et seq. (Fair Housing Act of 1968); (2) negligence; (3) violation of California Civil Code § 51 et seq. (Unruh Act); (4) violation of California Business and Professions Code § 17200; and (5) violation of 42 U.S.C. § 1982.

 Defendants Lee and Ling now move the Court to dismiss them from the action pursuant to Rule 12(b)(5) on the grounds that plaintiff's service of process was insufficient.

 All defendants move the Court to dismiss the fifth and third causes of action pursuant to Rule 12(b)(6) on the grounds that these claims are barred by the statute of limitations.

 All defendants also move the Court to dismiss the fifth cause of action pursuant to Rule 12(b)(1) on the additional grounds that the Court lacks subject ...


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