The opinion of the court was delivered by: Jeremy Fogel, District Judge.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION TO DISMISS [Docket No. 12]
On April 10, 2000, the Court heard oral argument regarding
Defendants' motion to dismiss. The motion will be granted in part
and denied in part for the reasons set forth below.
The Egans filed the present action in this Court on October 15,
1999, asserting two federal statutory claims, one under the Fair
Housing Act ("FHA"), 42 U.S.C. § 3601 et seq. and one under
42 U.S.C. § 1982 ("§ 1982"). The Egans also assert state
law claims for violation of the Fair Employment and Housing Act
("the FEHA"), California Government Code § 12900 et seq.,
violation of the Ralph Act, California Civil Code § 51.7,
violation of the Bane Act, California Civil Code § 52.1,
negligence, invasion of privacy and nuisance. With respect to the
claims asserted against Mrs. Schmock, Defendants move to dismiss
the two federal law claims and several of the state law claims.
Defendants move to dismiss all claims asserted against Mr.
Schmock. Plaintiffs oppose the motion.
For purposes of a motion to dismiss, the plaintiffs allegations
are taken as true, and the Court must construe the complaint in
the light most favorable to the plaintiff. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969); Argabright v. United States,
35 F.3d 472, 474 (9th Cir. 1994). Leave to amend must be granted
unless it is clear that the complaint's deficiencies cannot be
cured by amendment. See Lucas v. Department of Corrections,
66 F.3d 245, 248 (9th Cir. 1995). However, where amendment would be
futile, dismissal may be ordered with prejudice. See Albrecht v.
Lund, 845 F.2d 193, 195-96 (9th Cir. 1988); Beezley v. Fremont
Indemnity Co., 804 F.2d 530, 531 (9th Cir. 1986); see also Dumas
v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996) (holding that dismissal
without leave to amend was appropriate where the plaintiff had
filed four complaints and yet continued to allege insufficient
In general, the FHA "prohibits discrimination on enumerated
bases in the sale or rental of public or private housing." Covey
v. Hollydale Mobilehome Estates, 116 F.3d 830, 832 (9th Cir.
1991) as amended on denial of rehearing, 125 F.3d 1281 (9th Cir.
1997). The Egans assert that the Schmocks' behavior violated
§ 3617 of the FHA, which provides:
It shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or
on account of his having exercised or enjoyed, or on account of
his having aided or encouraged any other person in the exercise
or enjoyment of, any right granted or protected by section 3603,
3604, 3605, or 3606 of this title.
42 U.S.C. § 3617. Sections 3603, 3604, 3605 and 3606 protect
individuals' rights to be free from discrimination in connection
with the sale or rental or real property.
The Schmocks contend that the Egans have failed to state a
claim under § 3617 because the alleged conduct is unrelated
to the Egans' exercise of a right guaranteed by §§ 3603-3606,
that is, a right to be free from discrimination in the sale or
rental of real property. The Egans contend that they are not
required to allege a connection between the Schmocks' conduct and
the sale or rental of real property, and that they can state a
claim under § 3617 based solely upon the Schmocks'
interference with the Egans' enjoyment of their home.
There does not appear to be any controlling authority on this
point. In fact, the Court has found little case law discussing
application of § 3617 when the allegedly discriminatory
conduct is not directly related to the sale or rental of real
property. However, a few courts have applied § 3617 to
violent or threatening conduct designed to drive individuals out
of their homes. For example, in Ohana v. 180 Prospect Place
Realty Corp., 996 F. Supp. 238 (E.D.N.Y. 1998), the plaintiffs
were Jewish individuals who had moved into an apartment in
Brooklyn. They alleged that two neighbors engaged in harassing
and intimidating conduct, including stalking the plaintiffs,
expressing unhappiness that "whites" had moved in, yelling loudly
that "the motherf — ker Jews" had to go, pounding on apartment
walls while yelling "Jews move," and threatening to kill the
plaintiffs. Id. at 239. The district court found these
allegations sufficient to state a claim under § 3617, holding
that the FHA "not only protects individuals from discrimination
in the acquisition of their residences because of race, color,
religion, sex, familial status, or national origin, but also
protects them from interference by ...