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Moore v. Equity Residential Management, LLC

United States District Court, N.D. California

November 3, 2019

LEROY MOORE, et al., Plaintiffs,




         Plaintiffs 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 discussed below.[1]


         A. Factual Background

         Equity 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 holiday.

         ThyssenKrupp's 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.

         Plaintiffs 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.

         B. Procedural History

         This case was initially assigned to the Honorable Maria-Elena James, who resolved three motions to dismiss.

         On 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).[2] 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.

         On June 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).[3] 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.

         On 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. 44).[4] 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.

         The December 2017 order summarized the remaining claims as follows, dismissing all other claims without further leave to amend:

(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 elevator outages;
(3) Bednarska, Moore and Hara also have stated claims under FEHA and the CDPA based on encountering excessively heavy doors; and,
(4) Bednarska, Moore, Estes and Hara have stated claims under the Berkeley Municipal Code.

Id. at 13-14.

         The 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. 90, 91.

         C. Present Motions

         Plaintiffs 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.

         Equity 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 Municipal Code.

         III. ANALYSIS

         A. Legal Standard

         Summary 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).

         Once 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).

         A party 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 Equity's motion.

         B. Rehabilitation Act Requirements

         A 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)).

         The 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.

         The 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.

         Plaintiffs 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.).

         Plaintiffs 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 issue.

         Plaintiffs 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 credit program?
A. Yes.
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 that.
Q. Okay. But it's a bond program that Equity participates in for Acton; is that correct?
A. 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?
A. Yes.
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."
A. Uh-hm.
Q. So is this the addendum that refers to the fact that Equity participates in the low-income housing tax credit program for Acton?
A. Yes.

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 ...

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