United States District Court, N.D. California
[Copyrighted Material Omitted]
For Lorena Cabrera, Uriel Cabrera, by and through his guardian ad litem Lorena Cabrera, Dionisio Cabrera, by and through his guardian ad litem Lorena Cabrera, Plaintiffs: Jia Min Cheng, Madeline Sargent Howard, Robert P. Capistrano, LEAD ATTORNEYS, Bay Area Legal Aid, San Francisco, CA.
For Henry Alvarez, III, Executive Director of the San Francisco Housing Authority, Philip Tam, San Francisco Housing Authority, Defendants: Kevin K. Cholakian, LEAD ATTORNEY, Cholakian and Associates, South San Francisco, CA.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND
SUSAN ILLSTON, United States District Judge.
Currently before the Court is defendants' motion to dismiss plaintiffs' complaint, which is scheduled to be heard on March 29, 2013. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing. Having considered the papers submitted, and for the reasons discussed below, defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART.
Plaintiff Lorena Cabrera, a native Spanish speaker with limited English proficiency, and her two sons, six-year-old Uriel Cabrera and two-year-old Dionisio Cabrera, were tenants of the Robert Pitts Development (" Pitts Development" ), a low-income housing project located at 1151 Scott Street, San Francisco, California, from August 2010 to September 2012. Compl. ¶ ¶ 6-8, 28, 28-29, 33-35; see also Pl.'s Opp'n (Dkt. 29), at 2. Pitts Development is owned and operated by the San Francisco Housing Authority (the " SFHA" ), a public corporation funded in part by the federal government and created pursuant to the California Health & Safety Code § § 34240 et seq. Id. at ¶ ¶ 10, 28. The SFHA serves to provide habitable,
safe, and sanitary housing for low income San Francisco residents. Id. Defendant Henry Alvarez III is the Executive Director of the SFHA, and defendant Philip Tam is an employee of the SFHA and the property manager of Pitts Development. Id. at ¶ ¶ 10, 11.
Plaintiffs allege that despite their numerous requests to the SFHA to provide language translation services, they have been rebuffed each time. Id. at ¶ 30. As a result, all major written communications, as well as plaintiffs' lease for their rental unit, have been provided to plaintiffs in English only, and neither Pitts Development nor the SFHA have provided translation services. Id.
Due to the unaddressed language barrier, plaintiffs allege that they have been unable to effectively convey to Pitts Development management and to the SFHA a laundry list of serious habitability problems with their rental unit and therefore have been unable to get most of the problems resolved. Id. at ¶ ¶ 40-41. Plaintiffs assert that while living in the rental unit they were the victims of " rodent, bedbug and cockroach infestation, mold, leaky faucets, a leaking toilet, raw sewage backup in the sinks, toilets and outside the unit, broken plaster, tiles and nails protruding from the stairs, and a defective shower." Id. at ¶ 36. Even in the rare circumstances where plaintiffs were able to convey a problem to Pitts Development management, including directly to Mr. Tam, their complaints were disregarded and the problems remained unremedied. Id. at ¶ ¶ 40, 42. On one occasion when plaintiffs informed Mr. Tam of a problem, Mr. Tam dismissed the issue and stated that " [Ms. Cabrera] should learn English now that she is in America." Id. Moreover, plaintiffs assert that Uriel and Dionisio Cabrera both suffer from asthma, which substantially impairs their ability to breathe, and that the failure to provide language translation services as well as the unremedied living conditions exacerbated their asthma symptoms, causing Dionisio Cabrera at one point to be hospitalized. Id. at ¶ ¶ 31-32, 43.
In April 2011, Ms. Cabrera filed a Fair Housing complaint with the United States Department of Housing and Urban Development (" HUD" ), alleging that the SFHA had discriminated against her and her family because of their race and national origin. Id. at ¶ 44, Ex. B. In the course of the HUD investigation into Ms. Cabrera's allegations, Mr. Tam stated to a HUD investigator that Ms. Cabrera did not have a right to live in an SFHA property " because she is an undocumented immigrant" S a fact that plaintiffs assert is untrue. Id. at ¶ 45.
In July 2011, Ms. Cabrera filed a claim with the SFHA, citing the failure to provide language translation services and the uninhabitable and unremedied living conditions in her rental unit. Id. at ¶ ¶ 45, 48, 50, Ex. C. The SFHA held a hearing in August 2011, but failed to provide Ms. Cabrera with a Spanish translator, and failed to remedy most of the concerns Ms. Cabrera had raised. Id. at ¶ 51.
On September 19, 2012, plaintiffs filed this action, asserting eight claims against defendants for providing substandard and uninhabitable housing, and for failing to take measures to enable plaintiffs to communicate with Pitts Development management
and the SFHA regarding their living conditions. Plaintiffs assert a claim under section (b) of Title VIII of the Civil Rights Act of 1968 (the " Fair Housing Act" or " FHA" ) for discriminating against Ms. Cabrera on the basis of national origin, by not providing language translation services; and against Uriel and Dionisio Cabrera on the basis of a disability - asthma - for not remedying the living conditions even after becoming aware of the fact that the conditions worsen Uriel and Dionisio Cabrera's asthma symptoms (First Claim). Plaintiffs also assert claims premised purely on discrimination on the basis of national origin under section 601 of Title VI of the Civil Rights Act of 1964 (Second Claim); section 12955 of the California Fair Employment and Housing Act (" FEHA" ) (Fifth Claim); and section 51 of the Unruh Civil Rights Act (Sixth Claim). Plaintiffs Dionisio and Uriel Cabrera assert claims purely on the basis of disability discrimination under section 794(a) of the Rehabilitation Act of 1973 (Third Claim), and section 12132 of Title II of the Americans with Disabilities Act (" ADA" ) (Fourth Claim).
Plaintiffs also assert state law claims under California Civil Code section 1941.1 premised on California's implied warranty of habitability (Seventh and Eighth claims).
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This " facial plausibility" standard requires the plaintiff to allege facts that add up to " more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While courts do not require " heightened fact pleading of specifics," a plaintiff must allege facts sufficient to " raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555.
In deciding whether a plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true " allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has " repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 ...