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Bischoff v. Brittain

United States District Court, E.D. California

October 10, 2014



KIMBERLY J. MUELLER, District Judge.

Plaintiffs Scott Bischoff and Leron Dempsey (collectively "plaintiffs") have moved for a preliminary injunction. (ECF No. 4.) Plaintiffs seek to enjoin the alleged discriminatory termination of their tenancies, provided plaintiffs continue to pay rent. (ECF No. 11 at 2.) The court held a hearing on September 26, 2014, at which Todd Espinosa appeared for plaintiffs and Richard Watts, Jr. appeared for defendants. As explained below, the court GRANTS plaintiffs' motion.


The claims in this case arise out of defendants' alleged discriminatory housing practices based on familial status and age in enforcing defendants' apartment complex policies. Specifically, "[p]laintiffs contend that [d]efendants are acting to terminate [p]laintiffs' tenancies because [p]laintiffs allowed their children to make reasonable use [sic] outdoor areas of the apartment complex." (ECF No. 4-2 at 1.) Mr. Bischoff has been a tenant of the Birchwood Gardens apartment complex ("the Complex") since August 2013. (Bischoff Decl. ¶ 2, ECF No. 4-13.) Mr. Bischoff lives with his three-year-old son. ( Id. ¶ 5.) Mr. Dempsey has been a tenant at the Complex since October 2013. (Dempsey Decl. ¶ 2, ECF No. 4-9.) Mr. Dempsey has a five-year-old son, an eight-year-old son, an eight-year-old step-daughter and a thirteen-year-old daughter, who regularly stay with him at his apartment on weekends. ( Id. ¶ 5.)

Defendant Sandra Brittain operates her own property management business under the name "Brittain Commercial, " through which she manages the Complex. (Brittain Decl. ¶¶ 2, 5, ECF No. 13; Espinosa Decl., Ex. C., ECF No. 4-7.) Defendant Keith Johnson is a Brittain Commercial employee and the on-site property manager of the Complex. (Johnson Decl. ¶ 2, ECF No. 13.) Defendant RZM Investments Enterprise, LLC ("RZM") is the owner of the Complex and is plaintiffs' landlord. (ECF No. 4-7 ¶¶ 6, 10.)

Plaintiffs allege defendants restrict children's access to the Complex's outdoor areas: the courtyard and the swimming pool area. (ECF No. 4-2 at 3.) Defendants accomplish these restrictions by "more strictly enforcing and threatening to enforce" the Complex rules and rental agreement provisions against families with children when children use the outdoor areas. ( Id. ) On the other hand, adults with no children "have not been subjected to this special, stricter treatment." ( Id. at 4.) Plaintiffs allege defendant Johnson "was the primary implementer of this special, stricter treatment directed towards children and tenant families with children." ( Id. ) For example, plaintiffs allege that Mr. Johnson has issued numerous verbal and written warnings to families with children when the children of those families used the outdoor areas of the Complex. ( Id. ) Those warnings involved "exaggerated statements that children had been noisy and had engaged in disruptive behavior when, in fact, those children had not been unreasonably noisy and had not been disruptive." ( Id. )

On June 30, 2014, Mr. Johnson issued warning notices to both plaintiffs, stating plaintiffs had violated the rental agreement and threatening to terminate plaintiffs' rental agreements. In his warning to Mr. Bischoff, Mr. Johnson noted that Mr. Bischoff had violated the rental agreement because his three-year-old son had "block[ed] access" to walkways and stairs and had been loud and boisterous. (ECF No. 4-13, Ex. A.) Similarly, in his warning to Mr. Dempsey, Mr. Johnson noted that Mr. Dempsey and his two young sons, ages five and eight, had occupied the "entire" swimming pool and the surrounding area. (ECF No. 4-9, Ex. A.) Shortly after those warnings, both plaintiffs talked with Mr. Johnson to resolve any misunderstandings amicably, but were unable to. ( See ECF No. 4-9 ¶¶ 11, 13; ECF No. 4-13 ¶¶ 11, 13.) During their conversation with Mr. Johnson about the warnings, plaintiffs told Mr. Johnson they had the right to use the Complex's outdoor areas and that they would continue to allow their children to use those areas. (ECF No. 4-9 ¶ 11; ECF No. 4-13 ¶ 11.) On July 29, 2014, Mr. Johnson posted a thirty-day termination notice on both plaintiffs' doors, with a termination date of August 31, 2014. (ECF No. 4-9, Ex. B; ECF No. 4-13, Ex. B.)

After exhausting their efforts to resolve their disputes without court intervention, plaintiffs filed a complaint on August 25, 2014, alleging three claims: (1) violation of 42 U.S.C. § 3604(b); (2) violation of 42 U.S.C. § 3617; and (3) violation of California Civil Code §§ 51 and 51.2. ( See generally Pls.' Compl. ("Compl.") at 10-11, ECF 1.) Two days later, plaintiffs filed a motion for a temporary restraining order and preliminary injunction. (ECF No. 4.) The parties agreed to a temporary restraining order on August 29, 2014, allowing plaintiffs to remain living at the Complex until the court decided the motion for preliminary injunction. (ECF No. 8.) At hearing on the preliminary injunction, while defendants suggested further stipulations might be possible they presented no stipulation.


"A preliminary injunction is an extraordinary remedy never awarded as of right[, ]" Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and "should not be granted unless the movant, by a clear showing, carries the burden of persuasion[, ]" Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original)). The purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment can be issued. U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). In determining whether to issue a preliminary injunction, the court applies the following factors: whether the moving party "[1] is likely to succeed on the merits, ... [2] is likely to suffer irreparable harm in the absence of preliminary relief, ... [3] the balance of equities tips in [the movants'] favor, and... [4] an injunction is in the public interest." Winter, 555 U.S. at 20.

The Ninth Circuit has "also articulated an alternate formulation of the Winter test." Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). That formulation is referred to as the "serious questions" or the "sliding scale" approach: "serious questions' going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ("the serious questions' approach survives Winter when applied as part of the four-element Winter test, " id. at 1132). "In other words, serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Under the "serious questions" approach to a preliminary injunction, "[t]he elements of the preliminary injunction test must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez, 680 F.3d at 1072. Irrespective of the approach to a preliminary injunction, a court must balance the competing alleged harms while considering the effects on the parties of the granting or withholding of the injunctive relief. Winter, 555 U.S. at 24. In exercising that discretion, a court must also consider the public consequences of the extraordinary remedy. Id.

In ruling on a preliminary injunction, the court may rely on declarations, affidavits, and exhibits, among other things. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009); see also Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) ("The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial."). Such evidence need not conform to the standards for a summary judgment motion. Bracco v. Lackner, 462 F.Supp. 436, 442 n.3 (N.D. Cal. 1978). "The urgency necessitating the prompt determination of the preliminary injunction; the purpose of a preliminary injunction, to preserve the status quo without adjudicating the merits; and the [c]ourt's discretion to issue or deny a preliminary injunction are all factors supporting the considerations of affidavits." Id. And "[t]he weight to be given such evidence is a matter for the [c]ourt's discretion, upon consideration of the competence, personal knowledge and credibility of the affiant." Id .; see also Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985) (in ruling on a motion for preliminary injunction, the "weight to be given each [affiant's] statement is in the discretion of the trial court").


A. Likelihood of Success on the Merits: Discrimination in Rental Housing Based on Familial Status, 42 U.S.C. § 3604(b)

Plaintiffs argue that defendants "restrict access of children to outdoor areas of the [Complex], especially the courtyard and swimming pool...." (ECF No. 4-2 at 3.) "These restrictions... were accomplished by specially and more strictly enforcing and threatening to enforce apartment complex rules and rental agreement provisions against children and families with children when children used outdoor areas of [the Complex.]" ( Id. ) "The purpose and effect of this special, stricter treatment has been to discourage families with children from allowing their children to make reasonable use of outdoor areas at [the Complex.]" (ECF No. 4-2 at 5.)

Defendants counter that the Complex's rules are enforced strictly and equally with respect to all tenants and it is only plaintiffs' opinion that they are treated differently. (ECF No. 12 at 9.)

Section 3604(b) of the Fair Housing Act ("FHA") makes it unlawful "[t]o discriminate against any person in terms, conditions, or privileges of... rental of a dwelling, or in the provision of services or facilities in connection therewith, because of... familial status...." 42 U.S.C. § 3604(b). "Limiting the use of privileges and facilities associated with a dwelling because of familial status is a violation of [§ 3604(b).]" Fair Hous. Cong. v. Weber, 993 F.Supp. 1286, 1292 (C.D. Cal. 1997) (citing 24 C.F.R. § 100.65). Familial status discrimination entails "discrimination against families with children." Id. at 1290. Under the FHA, "an aggrieved person" may bring suit to obtain relief in the form of "permanent or temporary injunction... or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate)." 42 U.S.C. § 3613(c)(1).

A plaintiff may bring a claim under § 3604(b) under either a disparate treatment or disparate impact theory. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008) (courts apply Title VII discrimination analysis in cases brought under the FHA). Plaintiffs here rely on the disparate treatment theory. (ECF 4-2 at 8 ("plaintiffs contend that defendants have violated the [FHA] through disparate treatment based on familial status in relation to housing facilities and common areas....").) Accordingly, this court's analysis is limited to disparate treatment. See Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp.2d 1161, 1166 (C.D. Cal. 2012) (where the plaintiffs argued under only a disparate treatment theory, the court "follow[ed] the briefing submitted by [the] [p]laintiffs and limit[ed] itself to a disparate treatment analysis. Also, because [p]laintiffs successfully ma[de] a showing under disparate treatment, there [was] no need to delve into a disparate impact analysis").

Cases relying on disparate treatment generally are analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff has the initial burden of establishing a prima facie case of housing discrimination. Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). The elements of a prima facie case under the McDonnell Douglas framework vary depending on the facts of each case. See id. Adapted to the instant case, the elements are: (1) plaintiffs' rights are protected under the FHA; and (2) plaintiffs have suffered an injury because of defendants' discriminatory acts. Id. Once a plaintiff establishes a prima facie case, a presumption of discrimination arises. Id. Then, the burden shifts to defendants "to articulate some legitimate, nondiscriminatory reason for the action." Id. "To ...

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