United States District Court, S.D. California
October 17, 2005.
SUSAN HERAVER, Plaintiff,
WARNER SPRINGS ESTATE HOMEOWNERS ASSOCIATION, et al., Defendants.
The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND
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.
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
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
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.
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
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.
IT IS SO ORDERED.
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