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McGee v. Poverello House

United States District Court, E.D. California

October 30, 2019

JILL McGEE, et al., Plaintiffs,
POVERELLO HOUSE, et al., Defendants.




         Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

         Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.


         Plaintiffs Jill McGee, Lydia Carranza, Tracey Stroud, and Sharon Wade (collectively, “Plaintiffs”) raise claims under the Unruh Civil Rights Act (California Civil Code § 51), California Fair Employment and Housing Act, Federal Fair Employment and Housing Act, and claims for negligent infliction of emotional distress and the right to privacy.[1] Defendants Poverello House and Naomi's House (collectively, “Defendants”) filed a motion for partial judgment on the pleadings to dismiss the Unruh Civil Rights Act claim. ECF No. 35.

         The Court has determined the motion for partial judgment on the pleadings is suitable for decision based on the papers under Local Rule 230(g). For the reasons stated below, Defendants' motion is GRANTED with leave to amend.


         Defendant Poverello House “is an organization that provides meals, social services, and temporary shelter to people in the Fresno area.” ECF No. 1 ¶ 16. Defendant Naomi's House is a “24 bed overnight shelter for single, homeless women.” Id. ¶ 17. Plaintiffs believe Poverello House operates Naomi's House. Id. ¶ 16. Poverello House and Naomi's House are 501(c)(3) nonprofit corporations. See ECF No. 4-2 at 1. “The overwhelming majority of women who receive services from Defendant Poverello [House] and . . . Naomi's House are very vulnerable and in crisis.” Id. ¶ 19. Poverello House and Naomi's House provide a “gentle haven of healing for homeless women.” Id. ¶ 17. To carry out their “mission to provide shelter, services, and general support to the area's homeless population, Defendants receive federal funding including grants from the U.S. Department of Housing and Urban Development (‘HUD').” ECF No. 35-1 at 2-3 (citing ECF No. 1 ¶¶ 16-17). Programs receiving HUD funding must abide by rules set forth in the Code of Federal Regulations. See 24 C.F.R. §§ 5.105, 5.106; ECF No. 1 ¶ 24; ECF No. 35-1 at 8-10.

         Defendants set forth basic rules for women who stay overnight at Naomi's House. For example, the women must take nightly showers. ECF No. 1 ¶ 20. According to the complaint, women shower in groups during certain hours and “women [are] nude in the presence of other women.” Id. Women then “change into their cloth[e]s [sic] and/or bed attire.” Id.

         Plaintiffs were all homeless women who sought shelter at Naomi's House at various times from “June 2017 to the present.”[2] Id. ¶ 21. Plaintiffs allege that all Plaintiffs suffered substance abuse, mental health, psychological, physical, sexual abuse, and/or domestic violence issues. Id.

         In approximately July 2017, D.N. sought Defendants' shelter and support. ECF No. 35-1 at 3. According to the complaint, D.N. is a transgender individual.[3] ECF No. 1 ¶ 22. D.N. was born a male, but identifies as a female. Id. “D.N. was allowed to stay at [Defendants'] women's shelter pursuant to HUD's Equal Access Rule that requires any facility that receives HUD funding, such as Defendants['], to provide services to transgender clients based on their gender identi[t]y, i.e., Defendant Naomi House (a women's shelter) provided shelter to D.N. because D.N. identifies as female.” ECF No. 35-1 at 3 (citing ECF No. 1 ¶ 24; 24 C.F.R. § 5.106).

         Plaintiffs state that “D.N. was allowed to shower with Plaintiffs.” ECF No. 1 ¶ 22. “D.N. initially undressed and dressed in the open area, but at some point was not required to undress and dress in the open area. Rather, D.N. was allowed to wear [her] clothes into the shower stall to undress and dress.” Id. During shower times, Plaintiffs allege D.N. “would repeatedly make lewd and sexually inappropriate comments to some of the Plaintiffs. D.N. would stare and leer at Plaintiffs while naked and make sexually harassing comments about their bodies.” ECF No. 1 ¶ 22. The complaint is devoid of any specific examples of D.N.'s alleged repeat “lewd” and “sexually harassing comments about [Plaintiffs'] bodies.” See generally ECF No. 1.

         Plaintiffs further allege that “D.N. would make sexually inappropriate comments and engage in sexually harassing activities. These activities included, but are not limited to, showing some Plaintiffs pictures and/or videos of D.N. touching [herself] and masturbating. D.N. made sexual advances on some of the Plaintiffs.” Id. ¶ 23. Plaintiffs do not specify which Plaintiffs were subject to D.N.'s purported acts. See generally ECF No. 1.

         Plaintiffs allege they repeatedly complained verbally and in writing to Naomi's House's staff regarding D.N.'s conduct. Id. ¶ 24. “Plaintiffs were informed that they had to respect D.N.'s decision to identify as a woman, and that Defendant Naomi's House received HUD funding and therefore, there was nothing Defendant Naomi's House could do. If Plaintiffs refused to take showers with D.N., staff threatened them with expulsion from the House.” Id. Plaintiffs allege Defendants “refused to take appropriate disciplinary action against D.N. or make any reasonable accommodations to protect the rights and privacy of all parties.” Id.

         Defendants' motion for partial judgment on the pleadings only relates to Plaintiffs' Unruh Civil Rights Act claim. Plaintiffs allege they were “denied, discriminated and/or distinguished against and thereby deprived of full and equal accommodations, advantages, facilities, privileges and/or services in their housing on the basis of gender.” Id. ¶ 31. Plaintiffs assert that they were subject to “sexual harassment and/or sex discrimination on the basis of their gender, which was a substantial motivating reason for Defendants' conduct.” Id. ¶ 32. Plaintiffs allege “Defendants used fear and/or intimidation against Plaintiffs when they complained of wrongful conduct.” Id.


         Federal Rule of Civil Procedure 12(c) of the permits a party to seek judgment on the pleadings “after the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings “challenges the legal sufficiency of the opposing party's pleadings . . . .” Morgan v. County of Yolo, 436 F.Supp.2d 1152, 1154-55 (E.D. Cal. 2006), aff'd, 277 Fed.Appx. 734 (9th Cir. 2008). Therefore, a Rule 12(c) motion operates in a similar manner as a motion to dismiss under Rule 12(b)(6). See Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy”) (internal quotation marks and citation omitted); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (the legal standard of review governing Rule 12(c) and 12(b)(6) motions are “functionally identical”).

         “A judgment on the pleadings is a decision on the merits . . . .” 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir. 1990), cert. denied, 500 U.S. 917 (1991). “A district court will render a ‘judgment on the pleadings when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.'” Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526, 529 (9th Cir. 1997) (quoting George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996)); Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003) (“A motion for judgment on the pleadings should be granted where it appears the moving party is entitled to judgment as a matter of law”).

         “All allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party.” Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989); Schuett v. FedEx Corp., 119 F.Supp.3d 1155, 1159 (N.D. Cal. 2016) (“A judgment on the pleadings is appropriate when the pleaded facts, accepted as true and viewed in the light most favorable to the non-moving party, entitle the moving party to a judgment as a matter of law”). A motion for judgment on the pleadings will not be granted unless it appears “beyond doubt that the [non-moving party] can prove no set of facts in support of his claim which would entitle him to relief.” Enron Oil Trading & Transp. Co., 132 F.3d at 529 (quoting B.F. Goodrich v. Betkoski, 99 F.3d 505, 529 (2d Cir. 1996)); Morgan, 436 F.Supp.2d at 1155.

         When deciding a Rule 12(c) motion, courts may consider facts set forth in the pleadings as well as facts that are contained in materials of which the court may take judicial notice. See Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (citation omitted); see also Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (a Rule 12(c) motion “is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts”) (per curiam). Under Federal Rule of Civil Procedure 10(c), a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes and may be considered on a motion for judgment on the pleadings. See Qwest Commc'ns Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002) (“materials properly attached to a complaint as exhibits may be considered” on a motion for judgment on the pleadings).

         A court may grant leave to amend in response to a Rule 12(c) motion if the pleadings can be cured by further factual enhancement. See Sprint Telephony PCS, L.P. v. San Diego, 311 F.Supp.2d 898, 903 (S.D. Cal. 2004) (“Because the two motions are analyzed under the same standard, a court considering a motion for judgment on the pleadings may give leave to amend and ‘may dismiss causes of action rather than grant judgment.'”); accord Lonberg v. City of Riverside, 300 F.Supp.2d 942, 945 (C.D. Cal. 2004); see also Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (“We consistently have held that leave to amend should be granted unless the district court ‘determines that the pleading could not possibly be cured by the allegation of other facts.'”). If the court does grant the motion, the court, in its discretion, may grant the non-moving party leave to amend or enter a final judgment. See Lonberg, 300 F.Supp.2d at 945 (citations omitted) (“[A]lthough Rule 12(c) does not mention leave to amend, courts have discretion both to grant a Rule 12(c) motion with leave to amend and to simply grant dismissal of the action instead of entry of judgment.”).

         V. DISCUSSION

         A.“Business Establishmentsā€¯ Under the ...

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