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Mariano v. Villa

United States District Court, N.D. California, San Jose Division

June 20, 2017

CIRINA JUSTO MARIANO, et al., Plaintiffs,
ENRIQUE VALENCIA VILLA, et al., Defendants.


          EDWARD J. DAVILA United States District Judge

         Plaintiff Cirina Justo Mariano alleges that her landlord, Defendant Enrique Villa, sexually assaulted her two minor children, Plaintiffs A.C.G. and A.D.G, and discriminated against them on the basis of gender and national origin. Plaintiffs allege that Enrique and his son, Arturo Villa, created a hostile living environment and retaliated against Plaintiffs for reporting the crime to the police. Plaintiffs allege that the property owner, Rigoberto Villa, is vicariously liable for Enrique's and Arturo's wrongdoing.

         Plaintiffs now move for partial summary judgment on their claims against Rigoberto and Arturo. Plaintiffs' motion will be DENIED because there are factual disputes regarding Arturo's actions and the agency relationship between Rigoberto, Enrique, and Arturo.

         I. BACKGROUND

         Rigoberto has owned a four-unit apartment building in San Jose, California, since 2000. Pls.' Reply Separate Statement of Undisputed Material Facts (“Separate Statement”) 2, Dkt. No. 56-1. He testified that he has never lived there. Dkt. No. 53-1 at 43. Mariano moved into one of the apartments in 2009. Separate Statement 3-4. Mariano's minor children, A.C.G. and A.D.G., moved in with her in 2013. Id. at 4. Rigoberto's brother Enrique worked as the building's property manager and lived in one of the apartments. Id. at 2-3.

         Plaintiffs allege[1] that on October 18, 2015, A.C.G. and A.D.G. were cleaning Enrique's apartment when he kissed and hugged both of them, touched both of them on the buttocks, and put his hand on A.C.G.'s vagina. Id. at 5. Enrique asked A.C.G “how much she wanted for her virginity” and asked both of them for their virginity in exchange for an apartment. Id. at 6. The girls fled and told their family what happened. Id. at 7. The family immediately confronted Enrique, who called them “wetbacks” and said: “I asked her how much she wanted for her virginity.” Id. The family called the police, and Enrique was arrested that day and charged with false imprisonment and lewd acts with a child. Id. at 8. At some later date, A.C.G. saw Enrique looking at her while sitting in his car outside of her school. Id. at 9.

         Around November 1, 2015, Enrique asked his son Arturo to take over as property manager. Id. at 3. Arturo agreed and Rigoberto approved. Id. On November 11, Arturo served on Plaintiffs a three-day notice to cure or quit. Id. at 9. On that same day, Arturo also served a 60-day notice to terminate tenancy. Id. at 10. As discussed below, the parties disagree about Arturo's motives and the extent to which Enrique directed Arturo to serve the notices. Id. at 9-10. Arturo managed the property until July 2016. Id. at 3.

         On November 20, A.C.G. obtained a civil harassment temporary restraining order against Enrique. Id. at 11. Plaintiffs moved to a new residence in February 2016. Id. A five-year restraining order issued on March 8, 2016. Id. at 12. On June 16, the Santa Clara County Superior Court held a preliminary criminal hearing, at which A.C.G. and A.D.G. testified. Id. At an unspecified time, Enrique fled the country and has not appeared in this action. Id. at 13.

         Plaintiffs now move for summary judgment against Rigoberto and Arturo on their claims for (1) violation of the federal Fair Housing Amendments Act (“FHA”), 42 U.S.C. §§ 3604, 3617 (claim one, Compl. ¶¶ 56-59); (2) violation of the California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12955 (claim two, Compl. ¶¶ 60-63), (3) violation of the California Unruh Civil Rights Act, Cal. Civ. Code § 51 (claim three, Compl. ¶¶ 64-70), and (4) breach of the covenant of quiet use and enjoyment (claim seven, Compl. ¶¶ 90-95). Pls.' Mot. for Partial Summ. J. (“MSJ”), Dkt. No. 50.


         “Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Samuels v. Holland American Line- USA Inc., 656 F.3d 948, 952 (9th Cir. 2011) (citing Fed.R.Civ.P. 56(a)). The Court “must draw all reasonable inferences in favor of the nonmoving party.” Id. “The central issue is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.' ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).


         A. The Court need not resolve Defendants' evidentiary challenges.

         Defendants object to Plaintiffs' evidence in support of their allegations that Enrique sexually assaulted A.C.G. and A.D.G. and later retaliated against Plaintiffs for calling the police. Defs.' Opp'n to Pls.' Mot. for Partial Summ. J. (“Opp'n”) 7-10, Dkt. No. 55.

         First, Plaintiffs offer transcripts from the depositions of A.C.G. and A.D.G. in this case. Warren Decl. Exs. D, E, Dkt. No. 53. Defendants argue that the transcripts are inadmissible because Plaintiffs have not declared that their contents are true. Opp'n 8.

         Second, Plaintiffs' summary judgment motion includes a declaration from Mariano (Dkt. No. 52), to which Defendants object because it is “self-serving” and “conclusory, ” and because Mariano has no personal knowledge about what happened between Enrique and the minor Plaintiffs. Opp'n 8.

         Third, Plaintiffs request judicial notice of several documents, including transcripts of the minor Plaintiffs' testimony from earlier criminal proceedings, copies of the restraining orders against Enrique, and police reports documenting the incident and Enrique's arrest. Dkt. No. 52. Defendants argue that judicial notice of these materials is inappropriate because their factual contents are in dispute. Opp'n 8-10.

         For the purposes of this motion, the Court need not decide whether this evidence is admissible. As explained below, even if the evidence were admitted, factual disputes preclude summary judgment.

         B. Factual disputes preclude summary judgment on Plaintiffs' claims against Arturo.

         Plaintiffs allege that Arturo served retaliatory eviction notices in violation of the FHA, the FEHA, and the covenant of quiet use and enjoyment. MSJ 12-17. To establish a claim for retaliation under the FHA, a plaintiff must show that (1) she engaged in a protected activity, (2) the defendant subjected her to an adverse action, and (3) a causal link exists between the protected activity and the adverse action. Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001). A retaliation claim “may be based upon discriminatory conduct which is designed to drive the individual out of his or her home.” Egan v. Schmock, 93 F.Supp.2d 1090, 1093 (N.D. Cal. 2000). The FEHA provides analogous protections. See Pack v. Fort Washington II, 689 F.Supp.2d 1237, 1248 (E.D. Cal. 2009) (“California courts rely on federal housing discrimination law to interpret analogous provisions of FEHA. . . . Therefore, violations of The Fair Housing Act will also constitute violations of the parallel provisions of FEHA.” (citation omitted)). In addition, a breach of the covenant of quiet use and enjoyment occurs when a landlord's act or omission “substantially interfere[s] with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy.” Andrews v. Mobile Aire Estates, 125 Cal.App.4th 578, 589 (2005).

         On November 11, Arturo served on Plaintiffs a three-day notice to cure or quit. Separate Statement 9. On the same day, Arturo also served a 60-day notice to terminate tenancy. Id. Plaintiffs argue that Arturo served these notices in “retaliat[ion] against Plaintiffs for exercising their right to be free from sexual harassment.” MSJ 13. To show that he acted in retaliation, ...

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