ORDER AND FINDINGS AND RECOMMENDATIONS
This case came before the court on August 28, 2009, for hearing of defendant Sacramento Housing and Redevelopment Agency's motion to dismiss or for more definite statement pursuant to Fed. R. Civ. P. 12. Plaintiff, proceeding pro se, appeared on her own behalf. Wendy M. Motooka, Esq. appeared on behalf of the moving defendant.*fn1 At the conclusion of the hearing, the motion to dismiss was taken under submission.
Upon consideration of all written materials filed in connection with the motion to dismiss, the arguments at the hearing, and the entire file, the undersigned recommends that the motion be granted.
On April 22, 2009, plaintiff filed a pleading titled "Civil and Disability Discrimination Complaint Under TMPA of 2001" in Sacramento County Superior Court. (Notice of Removal, Ex. A.) Plaintiff alleges that she and her family were exposed to toxic mold for a lengthy period of time because of the negligence and discrimination of the defendants, who failed to protect plaintiff and her family from contamination and indoor air pollution. (Id., Ex. A. at 1-2.) The caption of the complaint identifies defendants as "Luella Hudson, Building Code Enforcement & Housing Agency Department." (Id., Ex. A at 1.) The first-named defendant is or was plaintiff's landlord. The two entity defendants are described more fully within the complaint as the City Building Code Enforcement Department and the Sacramento Housing and Redevelopment Agency. (Id., Ex. A at 1, 52.)
On April 24, 2009, the state court granted plaintiff's application for leave to proceed in forma pauperis. (Def'ts' Notice of Errata, Order on Appl. for Waiver of Court Fees & Costs.) Sheriff's deputies filed returns of service of summons for defendant Hudson and defendant "Building Code Enforcement & Housing Agency Department." (Notice of Removal, Exs. B & C.) Defendant Luella Hudson filed an answer to plaintiff's complaint on June 5, 2009. (Def'ts' Notice of Errata, Def't Hudson's Answer to Compl.)
On June 10, 2009, defendants SHRA and Luella Hudson removed plaintiff's case to federal court based on plaintiff's allegation of claims under the Americans With Disabilities Act, 42 U.S.C. §§ 12191, et seq. and the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. On June 17, 2009, defendant SHRA filed its motion to dismiss or for more definite statement, along with a request for judicial notice of a 2005 report to the California Legislature regarding implementation of the California Toxic Mold Protection Act of 2001. Plaintiff filed an improper motion to strike defendant SHRA's motion along with numerous voluminous documents in opposition to defendant's motion.
The court's records reveal that plaintiff previously filed an action against defendant Luella Hudson in this court.*fn2 See Vang v. Hudson, case No. CIV S-09-0223 FCD GGH PS (E.D. Cal.). Plaintiff's 70-page complaint filed January 26, 2009, was presented as an appeal to the district court from 2008 eviction proceedings brought against plaintiff. On April 15, 2009, the complaint in that previous case was dismissed with leave to amend. Plaintiff then filed an 88-page amended complaint titled "Civil & Disability Discrimination Complaint & Punitive Damages Litigation De Novo." Magistrate Judge Gregory G. Hollows found that plaintiff appeared to allege housing discrimination, wrongful eviction, exposure to toxic mold, discrimination based on disability, and retaliation under the ADA, the FHA, and the California Toxic Mold Protection Act of 2001, together with state claims. In her amended complaint in that action plaintiff sought millions of dollars in punitive damages. Judge Hollows determined that plaintiff failed to state a claim under Title II of the ADA because she had not sued a public entity and failed to state a claim under the FHA because she did not allege that defendants refused to rent housing to her for discriminatory reasons. Judge Hollows recommended that the action be dismissed with prejudice for lack of federal subject matter jurisdiction and that the court decline to exercise jurisdiction over plaintiff's state law claims. Vang v. Hudson, F. Supp. 2d , , No. CIV-S-09-0223 FCD GGH PS, 2009 WL 3247003, at *2-3 (E.D. Cal. Oct. 7, 2009). The findings and recommendations were adopted and judgment was entered against plaintiff on November 17, 2009. No appeal was taken.
PLAINTIFF'S CLAIMS IN THE PRESENT CASE
In this case plaintiff claims that she and her family were exposed to toxic mold for 17 years and then she was subjected to a vicious eviction. (Notice of Removal (Doc. No. 2), Ex. A, Compl. at 1-2.) Plaintiff alleges that defendant Hudson was aware of the habitability problem and failed to have repairs done for several years. (Id., Compl. at 5.) Plaintiff alleges that defendant City Building Code Enforcement Department concealed from her the existence of toxic mold, failed to protect plaintiff and her family, failed to order repairs, and failed to stop the eviction. (Id., Compl. at 10, 38-51.) Plaintiff alleges that defendant SHRA failed to provide her with subsidized housing, in violation of her rights, and thereby forced her and her family to continue living in the place where they were exposed to toxic mold. (Id., Compl. at 52-55.) Plaintiff seeks large sums of damages.
LEGAL STANDARDS APPLICABLE TO DEFENDANT'S MOTION TO DISMISS
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Defendant SHRA addresses plaintiff's claims that SHRA violated the Americans With Disabilities Act (ADA), the Fair Housing Act (FHA), and the California Toxic Mold Protection Act of 2001 (CTMPA). Defendant summarizes plaintiff's chief allegations as these: plaintiff has a disability, applied for Section 8 assistance, did not receive a voucher, was told in 2006 that she was disqualified from receiving Section 8 assistance, continued to live in the moldy residence, and was exposed to toxic mold in her residence. Defendant seeks dismissal of all of plaintiff's claims against SHRA pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff did not rent the allegedly ...