United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT RE: DKT. NO. 50
J. DAVILA United States District Judge
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.
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.
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.
allege 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.
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.
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.
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.
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)).
The Court need not resolve Defendants' evidentiary
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.
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.
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.
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.
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
Factual disputes preclude summary judgment on Plaintiffs'
claims against Arturo.
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,
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