United States District Court, N.D. California
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 106, 107
C. SPERO, CHIEF MAGISTRATE JUDGE
Leroy Moore, Dominika Bednarska, Perlita Payne, and Brett
Estes are or were residents of an apartment complex operated
by Defendant Equity Residential Management, L.L.C.
("Equity"). All Plaintiffs except for Payne are
disabled and require the use of an elevator to access their
apartments; Payne is married to and lives with Bednarska.
Following an extended elevator outage in November of 2015
that limited Plaintiffs' abilities to access or leave
their apartments, Plaintiffs brought this action under state,
local, and federal law. The parties have filed cross motions
for summary judgment, and the Court held a hearing on
November 1, 2019. For the reasons discussed below,
Equity's motion is GRANTED as to Plaintiffs' claims
under the Rehabilitation Act of 1973 and California's
Unruh Civil Rights Act (the "Unruh Act"), as well
as Plaintiffs' claims based on inaccessible doors other
than the elevator. The motions are otherwise DENIED, although
the Court narrows certain aspects of the remaining claims as
operates the Acton Courtyard apartment complex in Berkeley,
California. On November 13, 2015, the only elevator in the
building ceased to operate due to a failed circuit board.
ThyssenKrupp, the company with which Equity contracted to
maintain the elevator, told Equity that the circuit board was
obsolete and could not be replaced, and that the only option
was to send the circuit board to New Jersey for repairs.
Although Equity paid extra costs to expedite repairs, the
process of repairing the circuit board took many days, and
the first attempt at a repair was unsuccessful, requiring the
circuit board to be sent back to New Jersey for further work
before the elevator could be returned to service on November
27, 2015-fifteen days later, and after the Thanksgiving
advice to Equity that the circuit board was obsolete and
could not have been replaced turned out to be incorrect.
After the elevator returned to service, Equity investigated
the issue and determined that replacement circuit boards were
available for purchase. When the circuit board failed again
in 2018, Equity was able to obtain a replacement and return
the elevator to service within twenty-four hours. There is no
evidence, however, that Equity knew at the time of the 2015
outage that replacement circuit boards were available, or
that Equity's efforts to have the circuit board repaired
were deficient in way except for the choice to attempt to
repair rather than replace it.
were residents of the Acton Courtyard at the time of the 2015
outage. Plaintiff Estes, who is quadriplegic and was in his
apartment when the outage began, was unable to leave his
apartment for the duration of the outage. Plaintiff Moore,
who has cerebral palsy, was similarly confined to his
apartment for much of the outage, but needed to travel for
work twice during that period and thus was required to slowly
and painfully navigate the stairs on those occasions.
Plaintiff Bednarska, who primarily used an electric scooter
for mobility, was outside of her apartment when the outage
began and not able to return for the duration of the outage.
She and her wife, Plaintiff Payne, were forced to stay in
hotels until the elevator returned to service. Plaintiffs
brought this action asserting claims primarily based on the
2015 elevator outage.
case was initially assigned to the Honorable Maria-Elena
James, who resolved three motions to dismiss.
March 7, 2017, the Court granted in large part Equity's
motion to dismiss Plaintiffs' original complaint.
See Order Re: Mot. to Dismiss ("Mar. 2017
Order," dkt. 23). That order was based primarily on a lack
of factual allegations rather disputed issues of law, and the
Court granted Plaintiffs leave to amend. Id.
21, 2017, the Court granted in part a motion to dismiss
Plaintiffs' first amended complaint. See Order
Re: Mot. to Dismiss Am. Compl. ("June 2017 Order,"
dkt. 35). The Court dismissed Plaintiffs'
failure-to-accommodate claims under the Rehabilitation Act,
the Fair Housing Act ("FHA"), California's Fair
Employment and Housing Act ("FEHA"), and the
California Disabled Persons Act ("CDPA") with leave
to amend for failure to allege sufficiently that Plaintiffs
each requested specific accommodations that were denied, and
dismissed a failure-to-accommodate claim under the Unruh Act
with prejudice, because "this is not an available basis
for relief under the Unruh Act." Id. at 4-6.
Equity also argued that Plaintiffs' Unruh Act and CDPA
claims must be dismissed because those does not apply to
private residential complexes, citing Coronado v.
Cobblestone Village Community Rentals, 163 Cal.App.4th
831 (2008), but the Court rejected that reading of
Coronado, holding instead that the California
appellate court relied on provisions of other laws (like the
Americans with Disabilities Act ("ADA")) underlying
the Coronado plaintiffs' Unruh Act and CDPA
claims that only applied to public accommodations, not that
the Unruh Act or CDPA themselves contained such a
requirement. Id. at 8-11, 12. The Court dismissed
Plaintiffs' claims under the Berkeley Municipal Code for
failure to allege that the building contained more than ten
units, and for failure to include sufficient allegations of
untimely repair or failure to provide alternative housing.
Id. at 13-14. The Court declined to dismiss
Payne's claims for lack of standing, except for her claim
for damages under the CDPA, which the Court dismissed with
leave to amend if Payne elected to pursue injunctive relief
rather than damages under that statute, and her claim under
the Berkeley Municipal Code. Id. at 6-8, 14. The
Court also dismissed claims unrelated to elevator access.
Id. at 12.
December 4, 2017, the Court granted in part and denied in
part Equity's motion to dismiss Plaintiffs' operative
second amended complaint. See generally Order Re:
Mot. to Dismiss ("Dec. 2017 Order," dkt.
The Court held that Plaintiffs' allegations that they
requested reasonable accommodations under the Rehabilitation
Act, the FHA, FEHA, and the CDPA were sufficient, although
Plaintiffs' allegations of theories under the FHA other
than failure-to-accommodate were conclusory and subject to
dismissal. Id. at 7, 9. The Court also held that
Plaintiffs had sufficiently alleged a violation of the
Rehabilitation Act based on deliberate indifference to
Plaintiffs' known disabilities and need for elevator
access. Id. at 8-9. The Court declined to dismiss
Plaintiffs' Unruh Act, CDPA, and FEHA claims based on
California Building Code violations related to the elevator.
Id. at 9-10. The Court allowed the CDPA and FEHA
claims to proceed based also on a theory that Bednarska,
Moore, and then-plaintiff Annamarie Hara encountered
excessively heavy doors, but dismissed claims based on other
purported access barriers, and dismissed the Unruh Act claim
based on heavy doors for failure to allege willfulness.
Id. at 10-11. The Court declined to dismiss
Plaintiffs' claims for damages under Berkeley Municipal
Code sections 19.50.030 and 19.50.40(A)-(B) (and, with
respect to Bednarska, section 19.50.40(C)) but dismissed
Payne's Municipal Code claims for lack of standing and
dismissed all plaintiffs' claims for injunctive relief
under the Municipal Code. Id. at 11-13.
December 2017 order summarized the remaining claims as
follows, dismissing all other claims without further leave to
(1) All Plaintiffs have stated failure to accommodate claims
in connection with the November 2015 elevator outage, and to
that extent have stated claims under the Rehabilitation Act,
FHA, FEHA, and CDPA;
(2) All Plaintiffs have stated claims under the
Rehabilitation Act, FEHA, CDPA, and Unruh Act based on
(3) Bednarska, Moore and Hara also have stated claims under
FEHA and the CDPA based on encountering excessively heavy
(4) Bednarska, Moore, Estes and Hara have stated claims under
the Berkeley Municipal Code.
Id. at 13-14.
case was reassigned to the undersigned magistrate judge by
stipulation of the parties in February of 2018 after Judge
James retired from the Court. See dkts. 53-55.
Former plaintiff Annamarie Hara settled and dismissed her
claims against Equity in January of 2019. See dkts.
move for partial summary judgment on Moore, Bednarska, and
Estes's claims under the Berkeley Municipal Code,
Pis.' Mot. (dkt. 107) at 7-14, on Moore, Bednarska, and
Estes's claims under the CPDA based on building code
requirements, id. at 14-18, and, for the purpose of
Plaintiffs' Rehabilitation Act claim, on the issues of
whether Equity receives federal financial assistance and
whether Plaintiffs are "otherwise qualified" to
participate, id. at 18-23. Plaintiffs reserve all
issues of damages for trial.
purports to move for summary judgment on all of
Plaintiffs' claims, although its motion does not address
Plaintiffs' discrimination or accessibility (as opposed
to accommodation) theory under FEHA or the CDPA. Equity seeks
summary judgment on Plaintiffs' discrimination claims for
failure to meet the intent requirements of the Unruh Act and
the Rehabilitation Act, id. at 17-18, and separately
seeks summary judgment as to the Rehabilitation Act on the
basis that Equity does not receive federal financial
assistance, id. at 18-19. According to Equity,
Plaintiffs' reasonable accommodation claims under all of
the statutes at issue fail because Moore and Estes did not
request accommodations and because Bednarska and Payne's
requests either were granted or were not for reasonable
accommodations. Def's Mot. (dkt. 106) at 12-17. Equity
contends that it is entitled to judgment on Plaintiffs'
claim for excessively heavy doors because Plaintiffs' own
expert found that the doors met applicable standards for
force required to open them. Id. at 19-20. Finally,
Equity argues that its offer to provide, or actual provision
of, alternative housing during the outage entitles Equity to
judgment on Plaintiffs' claims under the Berkeley
judgment on a claim or defense is appropriate "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). In order to prevail,
a party moving for summary judgment must show the absence of
a genuine issue of material fact with respect to an essential
element of the non-moving party's claim, or to a defense
on which the non-moving party will bear the burden of
persuasion at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
the movant has made this showing, the burden then shifts to
the party opposing summary judgment to designate
'"specific facts showing there is a genuine issue
for trial.'" Id. (citation omitted);
see also Fed. R. Civ. P. 56(c)(1) ("A party
asserting that a fact... is genuinely disputed must support
the assertion by . . . citing to particular parts of
materials in the record . . . ."). "[T]he inquiry
involved in a ruling on a motion for summary judgment. . .
implicates the substantive evidentiary standard of proof that
would apply at the trial on the merits." Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The
non-moving party has the burden of identifying, with
reasonable particularity, the evidence that precludes summary
judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th
Cir. 1996). Thus, it is not the task of the court to scour
the record in search of a genuine issue of triable fact.
Id.; see Carmen v. S.F. Unified Sch. Dist, 237 F.3d
1026, 1031 (9th Cir. 2001); Fed.R.Civ.P. 56(c)(3).
need not present evidence to support or oppose a motion for
summary judgment in a form that would be admissible
at trial, but the contents of the parties'
evidence must be amenable to presentation in an admissible
form. See Fraser v. Goodale, 342 F.3d 1032, 1036-37
(9th Cir. 2003). Neither conclusory, speculative testimony in
affidavits nor arguments in moving papers are sufficient to
raise genuine issues of fact and defeat summary judgment.
Thornhill Publ'g Co., Inc. v. GTE Corp., 594
F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court
draws all reasonable factual inferences in favor of the
non-movant, Scott v. Harris, 550 U.S. 372, 378
(2007), but where a rational trier of fact could not find for
the non-moving party based on the record as a whole, there is
no "genuine issue for trial" and summary judgment
is appropriate. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986). The Court therefore
draws all reasonable inferences in favor of Equity for the
purpose of Plaintiffs' motion, and all reasonable
inferences in favor of Plaintiffs for the purpose of
Rehabilitation Act Requirements
plaintiff bringing a claim under section 504 of the
Rehabilitation Act "must show that (1) she is
handicapped within the meaning of the [Act]; (2) she is
otherwise qualified for the benefit or services sought; (3)
she was denied the benefit or services solely by reason of
her handicap; and (4) the program providing the benefit or
services receives federal financial assistance."
Lovellv. Chandler, 303 F.3d 1039, 1052 (9th Cir.
2002). A plaintiff seeking damages under this statute also
"must prove a mens rea of 'intentional
discrimination,' to prevail on a section 504 claim, but
that that standard may be met by showing 'deliberate
indifference,' and not only by showing
'discriminatory animus.'" MarkH. v.
Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008) (quoting
Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39
(9th Cir. 2001)).
elements specific to the Rehabilitation Act disputed in the
parties' present motions are whether Equity received
federal financial assistance for the apartment complex where
Plaintiffs lived and whether Equity displayed deliberate
indifference in failing to ensure elevator service. Each
party seeks summary judgment in its favor on the former
issue; only Equity seeks summary judgment on the latter.
Because Plaintiffs have not offered evidence from which a
reasonable jury could conclude that Equity received federal
financial assistance, the Court need not reach the question
of whether Plaintiffs could show deliberate indifference for
the purpose of this statute. The Court also does not reach
Plaintiffs' argument for summary judgment that they were
"otherwise qualified" for the service provided,
which Equity does not address in its opposition brief.
parties dispute whether or what sort of federal funding or
other federal incentives Equity has received with respect to
the apartment complex at issue. It is difficult to understand
why the parties were not able to resolve this issue
conclusively through discovery. Nevertheless, the record is
sufficient to grant Equity's motion as to this issue,
because Plaintiffs have not met their burden to show that
Equity receives federal financial assistance within the
meaning of the Rehabilitation Act.
argue that Equity receives federal assistance in the form of
Low Income Housing Tax Credits ("LIHTCs"). The
Department of Housing and Urban Development considers LIHTCs
to be financial assistance for the purpose of the
Rehabilitation Act, and at least one district court has so
held, without analysis. Hill v. HampsteadLester Morton
Court Partners, LP, No. CIV. CCB-12-539, 2013 WL
1314393, at *3 (D. Md. Mar. 28, 2013), vacated in part on
other grounds, 581 Fed.Appx. 178 (4th Cir. 2014);
Dep't of Housing & Urban Dev., FAQ ID 2645,
(Oct. 2015); but see West v. Palo Alto Hous. Corp.,
No. 17-cv-00238-LHK, 2019 WL 2549218, at *23 (N.D. Cal.
June 20, 2019) ("In the analogous Rehabilitation Act
context, courts have uniformly determined that tax credits do
not constitute financial assistance." (citing decisions
considering tax credits other than LIHTCs)), appeal
docketed, No. 19-16458 (9th Cir.).
also cite a decision from the Northern District of Oklahoma
as holding that LIHTCs constitute financial assistance under
the Rehabilitation Act, but that case in fact held that the
defendant did not receive LIHTCs, without addressing whether
receipt of LIHTCs would bring the defendant within the scope
of the Rehabilitation Act. See Shaw v. Cherokee Meadows,
LP, No. 17-CV-610-GKF-JFJ, 2018 WL 2770200, at *2 (N.D.
Okla. June 8, 2018) ("The Complaint includes no
allegations that Blackledge applied for or received Low
Income Housing Tax Credits. Thus, receipt of Low Income
Housing Tax Credits cannot provide the basis of
plaintiffs' Rehabilitation Act claim."). Like in
Shaw, the clearer issue here is not whether receipt
of LIHTCs bring an organization within the scope of the
Rehabilitation Act, but instead whether Plaintiffs have shown
that Equity received LIHTCs for the apartment complex at
rely on the deposition testimony of Nessa Sinclair, whom
Equity designated as its person most knowledgeable on the
subject. In the discussion of the LIHTC program, both
Plaintiffs' counsel and Sinclair conflated that program
with a tax-exempt bond financing program, and counsel
referenced a lease addendum stating that the premises
"(i) were financed with proceeds from the sale of
tax-exempt multifamily housing revenue bonds under Section
142 of the Internal Revenue Service (IRS) code
and/or (ii) is administered under the Low Income
Housing Tax Credit program under section 42 of the IRS
code." See Derby Decl. (dkt. 142) Ex. J
(Sinclair Dep.) at EQR.MOORE0000635 (Lease Addendum). The
relevant testimony was as follows:
Q. . . . Have you ever heard of the low-income housing tax
Q. Okay. What is that to your knowledge?
A. To my knowledge, that is - it's one of the - so, so
you know, I don't deal specifically with the affordable
housing component at my community, so I know that
that's one of the bond programs that we have at
- for Acton Courtyard, but I don't really know beyond
Q. Okay. But it's a bond program that Equity
participates in for Acton; is that correct?
Id. at 293:5-20 (emphasis added).
Q. Okay. And this is a lease for Brett Estes for - it appears
to be 2015 to 2016; is that correct?
Q. Okay. And if I direct your attention to the addendum at
635, which is the - entitled the "Affordability
Compliance Addendum Tax Exempt Bond/Tax Credit."
Q. So is this the addendum that refers to the fact that
Equity participates in the low-income housing tax credit
program for Acton?
Id. at 294:4-16.
Q. Okay. Is it possible that other than the resident
manager's unit [all of the units in the building]
participate in the low-income housing tax credit program?
THE WITNESS: No, I do not believe they do.
Q. Okay. And so would there be - I guess, as counsel implied,
the way to find out would be to look ...