United States District Court, Northern District of California, San Jose Division
April 14, 2000
KULWANT EGAN, ET AL., PLAINTIFFS
GAETANA SCHMOCK, ET AL., DEFENDANTS.
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.
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
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:
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 their neighbors for such
discriminatory reasons in the peaceful enjoyment of their homes."
Id. Similarly, in Stirgus v. Benoit, 720 F. Supp. 119, 123 (N.D.
Ill. 1989), the district court found sufficient the plaintiffs
allegations that her home had been firebombed in order to scare
her out of the neighborhood.
This Court agrees with the reasoning set forth in Ohana and
Stirgus and therefore holds that a § 3617 claim may be based
upon discriminatory conduct*fn1 which is designed to drive the
individual out of his or her home. Plaintiffs, however, request
that the Court interpret § 3617 more broadly to cover any
discriminatory conduct which interferes with an individual's
enjoyment of his or her home. The Court concludes that Congress
did not intend that the FHA reach so far. If Plaintiffs'
construction were adopted, any dispute between neighbors of
different races or religions could result in a lawsuit in federal
court under the FHA. The few reported cases applying the FHA to
neighbor disputes involve violent or threatening conduct designed
to drive the victim out of his or her home; the Court is unaware
of any cases applying the FHA as broadly as is requested by
The Court concludes that the conduct alleged in the present
case is sufficient to come within § 3617 provided that the
intent of the conduct was to drive the Egans out of their home.
The Egans have not alleged such intent. Accordingly, the Court
will dismiss the FHA claim with leave to amend.
B. Section 1982
The Egans also assert that the Schmocks' behavior violated § 1982,
All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property.
42 U.S.C. § 1982. There is a surprising dearth of reported
decisions discussing application of § 1982 in the context of
neighborhood harassment as opposed to discrimination in the sale
or rental of property. However, some courts have held that
allegations of violent or intimidating acts motivated by a
discriminatory animus are sufficient to state a claim for
deprivation of the right to "hold" real property as guaranteed
under § 1982. See Byrd v. Brandenburg, 922 F. Supp. 60 (N.D.
Ohio 1996) (holding that allegations of racially motivated
firebombing were sufficient to state a claim under § 1982);
Stirgus, 720 F. Supp. at 121-22 (same). This Court agrees with
these decisions, and concludes that the analysis under § 1982
should be the same as the analysis under the FHA. Accordingly,
the Court will dismiss
the § 1982 claim with leave to amend so that Plaintiffs may
allege an intent to drive them out of their home.
C. California's Fair Employment And Housing Act
The FEHA provides, in relevant part, that:
It shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or
on account of that person having exercised or enjoyed, or on
account of that person having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or
protected by Section 12955 or 12955.1.
Cal. Govt. Code § 12955.7. This language mirrors the language
of the FHA, discussed above. The California courts have
recognized that the FEHA is intended to conform to the general
requirements of the FHA. See Brown v. Smith, 55 Cal.App.4th 767,
780 (1997). In the absence of any California authority to the
contrary, this Court will interpret § 12955.7 of the FEHA
consistently with § 3617 of the FHA. Accordingly, the Court
will dismiss the FEHA claim with leave to amend in order to
allege an intent to drive the Egans from their home.
D. California's Ralph Act
California's Ralph Act provides in relevant part that:
All persons within the jurisdiction of this state have the right
to be free from any violence, or intimidation by threat of
violence, committed against their persons or property because
of their race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age, disability,
or position in a labor dispute, or because another person
perceives them to have one or more of those characteristics. The
identification in this subdivision of particular bases of
discrimination is illustrative rather than restrictive. This
section does not apply to statements concerning positions in a
labor dispute which are made during otherwise lawful labor
Cal. Civ. Code § 51.7.
The Egans have not alleged violence or intimidation by threat
of violence. Accordingly, the Ralph Act claim will be dismissed
with leave to amend.
E. California's Bane Act
California's Bane Act provides in relevant part that:
Whenever a person or persons, whether or not acting under color
of law, interferes by threats, intimidation, or coercion, or
attempts to interfere by threats, intimidation, or coercion,
with the exercise or enjoyment by any individual or individuals
of rights secured by the Constitution or laws of the United
States, or of the rights secured by the Constitution or laws of
this state, the Attorney General, or any district attorney or
city attorney may bring a civil action for injunctive and other
appropriate equitable relief in the name of the people of the
State of California, in order to protect the peaceable exercise
or enjoyment of the right or rights secured.
Cal.Civ. Code § 52.1(a). The Bane Act further provides that
any person subjected to the above-described conduct may bring a
civil action on his or her own behalf Cal.Civ. Code § 52.1(b).
The Egans' claim appears to be based upon alleged deprivations
of rights secured by the statutes discussed above. Because the
Egans have not, as yet, alleged facts sufficient to make out
claims under these statutes, the Court will dismiss the Bane Act
claim with leave to amend.
F. Deprivation of The Right of Privacy
The Egans assert a claim for deprivation of the right of
privacy guaranteed under the California Constitution. A plaintiff
asserting such a claim must establish: (1) a legally protected
privacy interest; (2) a reasonable expectation of privacy
in the circumstances; and (3) conduct by the defendant constituting a
serious invasion of privacy. See Hill v. National Collegiate
Athletic Association, 7 Cal.4th 1, 39-40 (1994). The Egans'
allegations that Mrs. Schmock stalked them and filmed them in
their home are sufficient to satisfy these elements.
G. Claims Against Mr. Schmock
The Egans assert no conduct by Mr. Schmock. Accordingly, Mr.
Schmock requests that all claims against him be dismissed. The
Egans contend that Mrs. Schmock was acting as the agent of Mr.
Schmock and therefore that her conduct should be attributed to
him. While some cases have held that discriminatory conduct by an
agent may be attributed to the principal for purposes of
liability under fair housing laws, those cases involved
situations in which a property manager's conduct was attributed
to the property owner. See, e.g. Walker v. Crigler, 976 F.2d 900,
904 (4th Cir. 1992); Llanos v. Estate of Coehlo, 24 F. Supp.2d 1051,
1061 (E.D. Cal. 1998). The Court is unaware of any cases in
which acts such as those described by the Egans have been
attributed to another based upon an agency theory. Accordingly,
the Court will dismiss the complaint as to Mr. Schmock. The Court
will grant leave to amend in order to give the Egans an
opportunity to allege conduct by Mr. Schmock personally.*fn2
IT IS HEREBY ORDERED THAT
(1) with respect to the claims against Mrs. Schmock, the motion
to dismiss is GRANTED WITH LEAVE TO AMEND as to the claims
arising under the FHA, § 1982, the FEHA, the Ralph Act
and the Bane Act and is DENIED as to the claim for
deprivation of the right of privacy guaranteed under the
(2) with respect to the claims against Mr. Schmock, the motion
to dismiss further is
GRANTED WITH LEAVE TO AMEND as to all claims; and
(3) any amended complaint shall be filed and served within
thirty (30) days after receipt of this order.