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United States District Court, S.D. California

October 17, 2005.


The opinion of the court was delivered by: JEFFREY MILLER, District Judge


Defendants Warner Springs Estate Homeowners Association (erroneously also identified as defendant Stoneridge Estates Homeowners Association), The Newport Pacific Management Company, Ron Houck, Geri Houck, Doug Tomlin, Jerry Bunnell, Jim March and Bob Roland move to dismiss Plaintiff's Fair Housing Act complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Defendants Gunther Seidl, Arlette Seidl, Dee March, Rita Gonzalez, Louis Gonzalez, Theresa Koch, Larry Strickland, and Mimi Strickland join in the motion to dismiss. Plaintiff opposes the motion. Pursuant to Local Rule 7.1(d)(1) the court finds this matter appropriate for decision without oral argument. For the reasons set forth below, the motion to dismiss for failure to state a claim is granted with 20 days leave to amend from the date of entry of this order. BACKGROUND

Plaintiff commenced this federal question action on January 25, 2005 alleging that Defendants violated her constitutional rights under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985. Plaintiff resides in an area known as Warner Springs Estates which is located in the town of Warner Springs, California. On January 27, 2004 Plaintiff alleges that defendant Jerry Bunnell, the head of the Architectural Control Committee ("ACC") of the Warner Springs Homeowners Association ("Homeowner's Association"), entered her property without permission and, when confronted by Plaintiff, he identified himself and "stated that he was the head of the ACC and damn well would go anywhere he wanted." (Compl. ¶ 13). He then shoved Plaintiff out of the way and began to come up the driveway. When Jerry Bunnell was notified that Plaintiff intended to call the police because he was trespassing, he "immediately left the scene." (Compl. ¶ 19).

  On or about August 18, 2004 Plaintiff alleges that she sought to attend a bible study class at the clubhouse of the association. Plaintiff alleges that various Defendants locked the bible study class out of the clubhouse and acted in a disruptive manner. (Compl. ¶¶ 55-57). On September 15, 2004 Plaintiff again tried to attend the bible study class but was allegedly prevented by individuals associated with the Homeowner's Association from attending the class. Plaintiff alleges that she and other residents of the community were "denied the right to assemble with the bible study group on several consecutive occasions while attempting to attend the study." (Compl. ¶ 67).

  The original complaint alleged a single federal claim for violation of her civil rights and state law claims for assault, battery, trespass, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. On May 17, 2005 the court dismissed the civil rights complaint with leave to amend on the ground that the Defendants were not state actors for purposes of the Civil Rights Act. On June 5, 2005 Plaintiff filed a First Amended Complaint ("FAC") alleging the same state law claims and a single claim arising under the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"). Plaintiff alleges that Defendants violated her FHA rights when she was denied access to the Association's clubhouse to attend the bible study class. (FAC ¶ 56). Plaintiff alleged that the clubhouse had been used for years as a meeting place for the bible study class. (FAC ¶ 57).

  On or about August 17, 2004 Plaintiff alleges that the Homeowners Association prohibited the use of the clubhouse for "religious or political activities." (FAC ¶ 53; Exh. A). On August 18, 2004 Plaintiff attempted to attend the bible study class at the clubhouse but was "locked out" by defendants Ron and Geri Houck. On September 15, 2004 Plaintiff was once again unable "to attend bible study" at the clubhouse. (FAC ¶ 58). Plaintiff alleges that various individuals, including defendants Gunther and Arlettte Seidl, Theresa Koch, Rita and Luis Gonzalez, and Doug Tomlin, played "blaring music, serv[ed] alcohol, and creat[ed] a menacing atmosphere of humiliation, intimidation, and harassment. All done with the corrupt motivation to disrupt or terminate the bible study." (FAC ¶ 60). When one member of the bible study class attempted to video record the "chaos," Plaintiff alleges that defendant Theresa Koch "violently attempted to tear the video camera from the hands of" the bible study member. (FAC ¶ 62). Plaintiff alleges that Defendants created an "oppressive atmosphere." (FAC ¶ 62). Among other things, Plaintiff alleges that one of the property manager defendants, Geri Houck, a "power hungry women, and the board, steered a felonious multiple convicted pedophile, to harass the plaintiff." (FAC ¶ 74).

  Plaintiff also alleges that the Homeowner's Association and its president, defendant Tomlin, "uses a de-facto goon squad (of violent individuals like Mr. Bunnell and others, if necessary) to abuse and intimidate its senior citizens into fearful compliance with the issuance of the boards dictatorial edicts which all to often violates the residents' housing rights, and results in systemic patterns of housing discrimination practices." (FAC ¶ 52). Plaintiff alleges that the use of the clubhouse constitutes a provision of services "in connection with the terms, conditions, or privileges or sale or rental of a dwelling at Warner Springs Estates." (FAC ¶ 55).

  Defendants now move to dismiss the FHA claim on the ground that it fails to state a claim under Rule 12(b)(6) and therefore the court lacks subject matter jurisdiction over the action. Plaintiff opposes the motion.


  Legal Standards

  Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should not dismiss a complaint "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle [the party] to relief." Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 496 U.S. 906 (1990). Courts must construe the complaint in the light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S. Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992).

  Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 at 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983.) "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

  The Motion to Dismiss

  Federal Courts are courts of limited jurisdiction. They can adjudicate only those cases which the Constitution and Congress authorize them to adjudicate: essentially those cases involving diversity of citizenship, federal question, or to which the Untied States is a party. See Kokkonen v. Guardian Life Ins. Co. Of America, 511 U.S. 375 (1994). Federal courts are presumptively without jurisdiction over civil actions and the burden of establishing the contrary rests on the party asserting jurisdiction. Id. at 377.

  Plaintiff seeks to establish federal question jurisdiction by alleging claims arising under the FHA. Plaintiff alleges that Defendants violated 42 U.S.C. § 3604(b), which states that "it shall be unlawful:

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."
To state a claim under § 3604(b), Plaintiff must allege that she was (1) discriminated against (2) in the terms, conditions, and privileges of sale or rental of a dwelling (3) because of religious related activities. "The Fair Housing Act contains no hint either in its language or its legislative history of a concern with anything but access to housing. . . . Behind the Act lay the widespread practice of refusing to sell or rent homes in desirable residential areas to members of minority groups. Since the focus was on their exclusion, the problem of how they were treated when they were included, that is, when they were allowed to own or rent homes in such areas, was not at the forefront of congressional thinking." Halprin v. Prairie Single Family Homes of Dearborn Park Association, 388 F.3d 327, 329 (7th Cir. 2004).

  Here, the court concludes that Plaintiff fails to state a claim under § 3604(b). Plaintiff fails to allege that the policy banning all use of the clubhouse for religious gatherings is in connection with the "sale or rental of a dwelling." 42 U.S.C. § 3604(b). Because the alleged conduct does not arise in connection with the sale or rental of a dwelling, Plaintiff fails to state a claim under § 3604(b). The court declines to interpret § 3604(b) expansively to encompass conduct beyond the clear scope of conduct prohibited by the statute. The plain meaning of the statute and its legislative history make clear that Congress was primarily concerned with conduct related to the purchase or rental of housing, or, as stated in Halprin, with "access" to housing. Id. The alleged wrongful conduct relates to banning all religious groups from meeting at the clubhouse and does not arise in relation to the purchase or rental of a dwelling.

  Plaintiff argues that the court should follow the lead of the Seventh Circuit in Halprin and find that the FAC states a claim under 42 U.S.C. § 3617. That provision states that it is "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. Since § 3617 only prohibits intimidating or threatening conduct that interferes with one or more of the other sections of the FHA, conduct which is unlawful under § 3604(b) is also unlawful under § 3617 where it involves intimidation or threatening behavior. However, otherwise lawful conduct under § 3604(b) is not made unlawful under § 3617 simply because there are allegations of the use or coercion, intimidation, or threats. Id. at 330.

  This does not necessarily doom Plaintiff's claim because, as noted by the Seventh Circuit, a regulation issued by the Department of Housing and Urban Development "cuts section 3617 loose from section 3604" to encompass interference with "enjoyment of a dwelling." Id. at 330. The difficulty with this argument is that the regulation does not reach conduct unrelated to the enjoyment of a dwelling. The regulation at issue, 24 C.F.R. § 100.400(c)(2), prohibits "threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion . . . of such persons." (Emphasis added). Based upon this regulation, the Seventh Circuit noted that "[i]nterference with `enjoyment of a dwelling,' forbidden by the regulation, is something that can take place after the dwelling has been acquired, though we know that section 3604 is not addressed to post-acquisition discrimination." Id.

  In Halprin, homeowners brought a FHA action against the homeowners' association and others, alleging that they were the victims of religious-based harassment. The complaint alleged that the president of the homeowner's association wrote "H-town property," short for "Hymie Town," on the walls of plaintiff's house. Defendants also allegedly vandalized the property by damaging trees and plants, cutting down strings of holiday lights, and by applying chemicals to plaintiffs' property. The association also destroyed board meeting minutes where the president of the association had threatened to make an example of plaintiffs. This entire campaign of harassment was allegedly caused by the Jewish religion of plaintiffs. In light of the extensive allegations the court concluded that defendants engaged in "a pattern of harassment, invidiously motivated, and, because backed by the homeowners' association to which the plaintiffs belong, a matter of the neighbors' ganging up on them." Id. at 330. The court was careful to explain that Congress did not want the FHA to serve as a vehicle "to convert every quarrel among neighbors in which a racial or religious slur is hurled into a federal case."

  Here, even assuming that the Ninth Circuit would adopt the reasoning of Halprin and extend the reach of the FHA to encompass interference with one's post-acquisition enjoyment of community owned property such as a clubhouse, Plaintiff fails to state a claim under the FHA. Plaintiff alleges that the Homeowner's Association banned all religious and political activities at the clubhouse. Such private non-governmental conduct appears to place all religious activities on the same footing (only in the sense that one religion is not favored over another) and does not violate the FHA. Similarly, the allegations that Plaintiff sought to attend the bible study class, that she was locked out of the bible study class on two separate occasions, and that various individuals interfered with her ability to attend bible study class fail to identify a substantial federal interest. Plaintiff does not allege a pattern of religious harassment, invidiously motivated, sufficient to state a claim. As noted in Halprin, Congress did not intend for the FHA to be a vehicle for converting what is essentially a dispute amongst neighbors into a federal case simply because there is some connection to religion. Id. While the court does not condone the Defendants' conduct as alleged in the FAC, it is not the role of this court to provide an expansive remedy under the FHA where the plain language of the statute and Congressional history did not intend such a result.

  Finally, the court notes that the parties raise additional arguments not addressed herein. Until Plaintiff alleges that the conduct falls within the scope of the FHA, the court need not address the remaining arguments. The court also grants Plaintiff's request for leave to amend. As leave to amend is to be freely given, the court grants Plaintiff 20 days leave to amend from the date of entry of this order. Plaintiff is cautioned that the failure to state a federal claim in a Second Amended Complaint may result in the dismissal of the complaint with prejudice.

  In sum, the motion to dismiss Plaintiff's FHA claim is granted with 20 days leave to amend from the date of entry of this order.



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