EGAN v. SCHMOCK

The opinion of the court was delivered by: Jeremy Fogel, District Judge.

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.

I. BACKGROUND

Plaintiffs are Kulwant Egan, his wife Tara Egan, and their minor son Sachit Egan ("the Egans"). They allege that their neighbors, Mr. and Mrs. Schmock, have been harassing and intimidating them for more than nine years because of their national origin, which is East Indian. The complaint sets forth a number of acts by Mrs. Schmock, including: calling the Egans "dirty Indians" and telling them to go back where they came from; wrapping a towel around her head turban-style and putting a dot of lipstick on her forehead to mock Mrs. Egan's traditional style of dress; calling Sachit Egan a "monkey" and throwing a banana over the fence onto the Egans' property; giving the "finger" to the Egans and their guests; photographing and videotaping the Egans and their guests; throwing water and yard clippings on the cars of the Egans' guests; and following the Egans on her bicycle. The complaint does not allege any such conduct on the part of Mr. Schmock.

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.

II. LEGAL STANDARD

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 facts).

III. DISCUSSION

A. Fair Housing Act

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:

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 ...