Manson v. Fresno Housing Authority

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 Christopher Manson, Monique Cipro, and No. 1:23-cv-00679-KES-SKO Bennett Reed, [12] Plaintiffs, 13 ORDER DENYING PLAINTIFFS’ MOTION v. FOR SUMMARY JUDGMENT [14] Fresno Housing Authority and Parc Grove Doc. 27 15 Commons III, L.P., 16 Defendants. [18] 19 Plaintiffs Christopher Manson, Monique Cipro, and Bennett Reed bring this action against 20 defendants Fresno Housing Authority and Parc Grove Commons III, L.P., alleging violations of 21 the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”); Section 504 of the Rehabilitation Act, [22] 29 U.S.C. § 794 (“Section 504”); the Fair Employment & Housing Act, Cal. Gov’t Code § 12900 23 et seq. (“FEHA”); Cal. Gov’t Code § 11135; the Unruh Civil Rights Act, Cal. Civ. Code § 51 et 24 seq. (“Unruh Act”); and the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. 25 (“DPA”). Doc. 1 (“Compl.”). Plaintiffs also bring a negligence claim against defendants. Id. 26 Plaintiffs move for summary judgment on all their claims except negligence. Doc. 27 27 (“MSJ”). Plaintiffs filed a separate statement of undisputed facts, Doc. 28, two declarations with 28 exhibits, Docs. 29-30, and two amendments to those declarations, Docs. 44-45, in support of their 1 motion. Defendants filed an opposition to the motion, attaching a declaration and exhibits. Doc. 2 36 (“Opp’n”). Defendants filed two notices of errata correcting errors to their filed exhibits. 3 Docs. 37, 46. Plaintiffs replied to the opposition, Doc. 39, filing a declaration in support of the 4 reply, Doc. 40. Defendants filed evidentiary objections to the evidence plaintiffs present in 5 support of the motion for summary judgment, Doc. 38, to which plaintiffs responded, Doc. 42. 6 Plaintiffs also filed evidentiary objections to the evidence defendants presented in opposition to 7 the motion for summary judgment. Doc. 41. 8 The Court held oral argument on this matter on February 10, 2025, and took the matter 9 under submission. Doc. 47. For the reasons stated below, plaintiffs’ motion for summary 10 judgment is denied. 11 I. FACTS1 12 Plaintiffs Manson and Cipro resided at the Renaissance at Parc Grove (“Renaissance”) 13 from May 2021 until early- to mid-2023. Doc. 41, Pls.’ Resp. to Defs.’ Separate Statement of 14 Undisputed Facts (“DSUF”) ¶ 7. Plaintiff Reed still resides at the Renaissance. DSUF ¶ 8. The 15 Renaissance was constructed for first occupancy in 2017 and is a supportive housing project and 16 complex of affordable housing units for homeless and disabled veterans. DSUF ¶¶ 1, 3. The 17 Renaissance is a two-story building with one elevator. DSUF ¶ 2. The property is owned by 18 defendant Parc Grove Commons III, LP, and is managed by defendant Fresno Housing Authority. 19 DSUF ¶ 5. The property is funded by both state and federal programs. DSUF ¶ 4. Thus, 20 defendants are housing providers subject to the FHA, section 504, FEHA, Cal. Gov’t Code 21 § 11135, the Unruh Act, and the DPA. DSUF ¶ 6. 22 Manson and Cipro lived together at the Renaissance in an apartment on the second floor. 23 See Doc. 46-1, Ex. 15A at 100:18-102:17; Doc. 36-5, Ex. 15B; Doc. 36-5, Ex. 15C. Reed lives 24 in an apartment on the first floor but often travels to the second floor to visit friends. Doc. 36-1, 25 Defs.’ Resp. to Pls.’ Separate Statement of Facts (“PSUF”) ¶ 35. Plaintiffs Manson and Reed [26] 1 The following facts are based on the evidence as viewed in the light most favorable to 27 defendants as the non-moving parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (holding that on a motion for summary judgment, “[t]he evidence of the nonmovant is to 28 be believed, and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.”). 1 have mobility disabilities and each use wheelchairs to ambulate. PSUF ¶¶ 11, 15. Plaintiff Cipro 2 states that multiple doctors have diagnosed her with a disability, that a judge determined she had a 3 disability in a social security proceeding, and that she sometimes uses a cane to walk. Doc. 30-29 4 at 21:4-25; 98:23-99:1. Cipro receives supplemental social security income due to her disability 5 and provided proof of that income to defendant Fresno Housing Authority. See Docs. 30-3, 40-1 6 at Exs. 2-5. However, on the application she filled out to live at the Renaissance, Cipro checked a 7 box to indicate that she does not have a disability. Doc. 37-2 at 5. Additionally, Reginald 8 Colbert, the property manager, testified that, when Cipro resided at the Renaissance, she often 9 walked her dog and took the stairs, and only took the elevator when she was with Manson. Doc 10 46-1 at 112:13-20. 11 The elevator at the Renaissance had at least 87 outages between 2021 and early- to mid12 2023, at least 68 of which resulted in temporary entrapment of a passenger.2 DSUF ¶¶ 15-17. 13 Plaintiffs’ expert, Steve Green, a “Q.E.I. Certified Elevator Inspector,” opined that the elevator 14 should have no more than 3-5 trouble calls and one entrapment per year.3 Doc. 29 (“Green 15 Decl.”) ¶¶ 1, 15. Plaintiffs testified that the frequent elevator outages and entrapments caused 16 plaintiffs to be trapped inside or outside of their apartments, to miss appointments and gatherings, 17 and to avoid the elevator altogether. Doc. 30-29 at 69:25-70:6; Doc. 30-30 at 66:25-67:25; Doc. 18 30-31 at 71:21-72:11. 19 Defendants did not have a written evacuation procedure in case of emergencies or a 20 written procedure detailing safety precautions when evacuating entrapped passengers from the 21 elevator.4 When an outage or an entrapment would occur, Colbert would reset the elevator by 22 turning its power off and turning it back on. Doc. 30-28 at 89:19-90:16. This process reset the [23] 2 Plaintiffs claim that the number of elevator outages and entrapments is higher. See MSJ 9. [24] 3 Defendants did not put forth expert testimony. See Doc. 34 (parties’ joint stipulation that [25] defendants withdrew their expert designation and will not use any expert testimony in this litigation). [26] 27 4 Defendants confirmed this fact at the motion hearing. However, as discussed below, plaintiffs do not provide any evidence that ties the lack of a written procedure to their claims. See infra 28 Section IV.C.i. 1 elevator’s computer. Green Decl. ¶ 9. If an entrapped person sounded the emergency alarm, 2 defendants’ elevator vendor, Schindler Elevator Corp. (“Schindler”), was notified, and Schindler 3 would call Colbert to let him know that they were sending out a technician. Green Decl., Doc. 4 29-3, Ex. C, at 91:12-16; 136:3-19. Typically, the technician would then call Colbert to “gauge 5 who was closer” to determine which of the two—the technician or Colbert—would release the 6 elevator. Green Decl., Doc. 29-3, Ex. C, at 136:3-19. If resetting the switch did not work, 7 sometimes the fire department would be called. Id. at 12:16-24. 8 Green opined that defendants should have scheduled preventative maintenance at least 9 monthly and that Schindler performed preventative maintenance on only 6 occasions in 2019, 10 10 in 2020, 5 in 2021, 8 in 2022 and 5 in 2023. Green Decl. ¶ 7; Green Decl., Doc. 44, Ex. B at 4311 155; see also Doc. 30 ¶ 28; Doc. 45. However, defendants’ contracts with Schindler anticipated 12 that Schindler would perform preventative maintenance on the elevator (Green Decl., Doc. 44, 13 Ex. B at 2-16; Doc. 36-3 at 27-28; Doc. 76) and defendants’ records contain numerous 14 “preventative maintenance” work reports on the elevator, bearing separate dates: 7 such work 15 reports in 2019, 10 in 2020, 10 in 2021, 13 in 2022, and 9 in 2023. Doc. 36-5 at 36-148; Green 16 Decl., Doc. 44, Ex. B at 43-155. Moreover, the Renaissance paid for monthly preventative 17 maintenance and Colbert testified that Schindler performed preventative maintenance monthly. 18 Doc. 46-1, Ex. 17, at 82:9-16. 19 Colbert frequently called Schindler, speaking with both technicians and the manager, and 20 asked what more could be done to permanently fix the elevator. Doc. 46-1 at 143:1-144:4. 21 Schindler told him that the issues with the elevator were caused by “transients” coming into the 22 elevator and “smoking” or “doing something” which was causing the elevator to malfunction. Id. 23 Defendants contacted an outside electrician once to look at the elevator at Schindler’s suggestion. 24 Doc. 30-28 106:7-25. Defendants also contacted an alternate vendor to assist with an entrapment 25 once when Schindler did not arrive quickly enough, and the fire department could not open the 26 elevator. Doc. 46-1, Ex. 22, at 82:20-83:20. Defendants did not otherwise attempt to hire another 27 vendor to service the elevator. Doc. 139:19-141:13. Schindler finally resolved the issue and 28 fixed the elevator in March 2023. DSUF ¶ 54; PSUF ¶ 74. 1 Though plaintiffs claim that defendants did not document entrapments that occurred 2 during working hours, Colbert testified that he did not “know of anyone being stuck in the 3 elevator during the daytime,” and that if an entrapment had occurred during business hours, he 4 would have created an incident report. Doc. 46-1, Ex. 10, at 148:5-20. Colbert explained that all 5 entrapments were logged, either by the fire department, Schindler invoices, or on Colbert’s 6 timecard.5 Id. at 148:22-149:1. 7 Separately, in August 2022, defendants installed an enclosed dog park at the Renaissance. 8 PSUF ¶ 75. The path to the dog park is constructed of partially compacted sand and grass. PSUF 9 ¶ 76. Plaintiffs claim the path to the dog park gets muddy when it rains, which renders the dog 10 park inaccessible to plaintiffs. MSJ 29; PSUF ¶ 77. Colbert denied that the path got muddy when 11 it rained and testified that, rather, the sand became more densely packed and harder. Doc. 46-1 at 12 62:16-63:1. The dog park is currently closed. Doc. 40-1, Ex. 6 at 66:25-67:24. 13 II. LEGAL STANDARD 14 Summary judgment is appropriate if “there is no genuine dispute as to any material fact 15 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is 16 “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Momox-Caselis 17 v. Donohue, 987 F.3d 835, 841 (9th Cir. 2021) (internal quotations omitted) (citing Anderson v. 18 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it “might affect the 19 outcome of the suit under the governing law.” Anderson, 477 U.S. at 841 . The parties must cite 20 “particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1). The Court then views the 21 record in the light most favorable to the nonmoving party and draws reasonable inferences in that 22 party’s favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 587–88 (1986). 23 The “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to 24 see whether there is a genuine need for trial.’” Id. at 587 (citations omitted). 25 “A party seeking summary judgment bears the initial burden of informing the court of the [26] 5 When Colbert responded to elevator entrapments outside of working hours, he listed the 27 entrapment on his timecard as the justification for clocking in after hours. See Doc. 30-28 at 122:5-8. Thus, his timecards contained records of those entrapments. Id.; see also Doc. 46-1, 28 Ex. 10, at 148:5-13. 1 basis for its motion and of identifying those portions of the pleadings and discovery responses 2 that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, 3 Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317 , 323 4 (1986)). If the moving party meets its initial burden, the burden shifts to the nonmoving party to 5 produce evidence supporting its claims or defenses and “establish that there is a genuine issue of 6 material fact.” Matsushita, 475 U.S. at 585 . The nonmoving party “must do more than simply 7 show that there is some metaphysical doubt as to the material facts.” Id. at 586 (citation omitted). 8 “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position” is 9 insufficient to survive summary judgment. Anderson, 477 U.S. at 252 . 10 In the endeavor to establish the existence of a factual dispute, the opposing party need not 11 establish a material issue of fact conclusively in its favor. T.W. Elec. Serv., Inc. v. Pac. Elec. 12 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). It is sufficient that “the claimed factual 13 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 14 trial.” Anderson, 477 U.S. at 252 (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 15 253, 289 (1968)). 16 “If the nonmoving party fails to produce enough evidence to create a genuine issue of 17 material fact, the moving party wins the motion for summary judgment. But if the nonmoving 18 party produces enough evidence to create a genuine issue of material fact, the nonmoving party 19 defeats the motion.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099 , 20 1103 (9th Cir. 2000) (citing Celotex, 477 U.S. at 322 ). 21 III. EVIDENTIARY OBJECTIONS 22 Both parties raise objections to the evidence cited in support of and in opposition to the 23 motion for summary judgment. See generally Docs. 38, 41. The objections are “garden variety 24 evidentiary objections” such as relevancy, hearsay, foundation, and speculation. See Torres v. 25 Los Angeles Sheriff’s Dept., Case No. CV 22-07450-MWF (MARx), 2024 WL 4720808 , at *5 26 (C.D. Cal. Aug. 14, 2024). 27 “[A]t the summary judgment stage, we do not focus on the admissibility of the evidence’s 28 form. We instead focus on the admissibility of its contents.” Sandoval v. Cnty. of San Diego, 985 1 F.3d 657, 666 (9th Cir. 2021). That is, though such objections could prove cognizable at trial, 2 only the admissibility of the relevant facts at trial, not the form of these facts as presented in the 3 motion, matters for purposes of a motion for summary judgment. See id. Where “the contents of 4 a document can be presented in a form that would be admissible at trial—for example, through 5 live testimony by the author of the document—the mere fact that the document itself might be 6 excludable hearsay provides no basis for refusing to consider it on summary judgment.” Id. 7 (citations omitted). 8 To the extent that the Court relies upon evidence to which a party objects in deciding the 9 motion for summary judgment, the objections are overruled. To the extent the Court does not, the 10 objections are denied as moot. 11 IV. ANALYSIS 12 A. Plaintiffs’ Reasonable Accommodation Claim Under the FHA, FEHA, the DPA, 13 and the Unruh Act 14 Plaintiffs move for summary judgment on their claim that defendants failed to reasonably 15 accommodate their mobility disabilities by failing to timely and sufficiently repair the 16 Renaissance’s elevator, in violation of the FHA, FEHA, the DPA, and the Unruh Act. The FHA 17 and FEHA have similar statutory language prohibiting discrimination in housing. The FHA’s 18 definition of prohibited discrimination includes “a refusal to make reasonable accommodations in 19 rules, policies, practices, or services, when such accommodations may be necessary to afford such 20 person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604 (f)(3)(B). FEHA’s 21 language is nearly identical. Cal. Gov’t Code § 12927(c)(1) (West 2020). 22 Under the FHA and FEHA, plaintiffs must establish that (1) they have disabilities as 23 defined by the relevant statute (that is, the FHA or FEHA); (2) defendants knew or reasonably 24 should have known of their disabilities; (3) accommodation may be (or is) necessary to afford 25 them an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such 26 accommodation. See, e.g., Giebeler v. M & B Associates, 343 F.3d 1143 (9th Cir. 2003) 27 (outlining elements in FHA claim); Auburn Woods I Homeowners Ass’n v. Fair Employment & 28 Housing Committee, 121 Cal. App. 4th 1578 (Cal. Ct. App. 2004) (outlining elements in FEHA 1 claim). 2 Defendants argue that there is a genuine dispute of material fact precluding summary 3 judgment as to whether plaintiff Cipro has a disability.6 Cipro testified in her deposition that she 4 has nerve damage and ruptured discs in her lower back and that she uses a cane when her “back . . 5 . is not good.” Doc. 30-29 at 21:4-7, 98:23-99:1. She further testified that she was diagnosed 6 with a disability by multiple doctors and that she was determined to have a disability by a judge 7 in a social security proceeding. Doc. 30-29 at 21:12-25. Cipro also points out that she had 8 provided defendant with documents indicating that she was receiving social security income due 9 to her disability. Reply 7 (citing Doc. 30-3; Doc. 40-1, Exs. 2-5). 10 In support of their assertion that whether Cipro has a disability is a disputed fact, 11 defendants point to an application and verification of homelessness that Cipro filled out and 12 submitted to apply to live at the Renaissance, in which she checked a box indicating that she did 13 not have a disability. Doc. 37-2 at 5. They also point to property manager Reginald Colbert’s 14 testimony that Cipro often walked her dog and took the stairs, and that she took the elevator only 15 when she was with Manson in his wheelchair. Doc 46-1 at 112:13-20. 16 Regardless of whether there is a dispute of fact that Cipro is disabled as defined by the 17 FHA and FEHA, defendants have shown that there is a genuine dispute of fact as to whether 18 defendants knew, or should have known, about Cipro’s mobility disability.7 While defendants 19 were in possession of income documentation indicating that plaintiff Cipro received SSI benefits 20 due to a disability, the specific nature of her disability was not necessarily apparent from the 21 documents. Moreover, Cipro indicated in her application to live at the Renaissance that she was [22] 23 6 Defendants do not dispute that plaintiffs Manson and Reed have disabilities. 24 7 There may not be a genuine dispute of material fact regarding whether plaintiff Cipro has a disability as defined by the statutes, given that she receives social security income benefits. See [25] Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 338 (E.D.N.Y. May 23, 2012) (“As a general matter, in most cases, individuals who meet the definition of disability for purposes of [26] receiving SSI or SSDI benefits also qualify as disabled under the federal disability statutes.”). 27 However, there is a genuine dispute as to whether defendants were aware of Cipro’s disability or the nature of that disability. [28] 1 not disabled, and the property manager testified that she frequently walked her dog and used the 2 stairs and that she used the elevator only when with Manson. A jury could credit the evidence 3 that defendants put forth and find that defendants did not know, nor should have known, of 4 Cipro’s mobility disability. Defendants have carried their burden of demonstrating that a genuine 5 dispute of fact exists as to whether defendants knew or should have known that Cipro suffered a 6 mobility disability, and the motion for summary judgment as to this claim under the FHA and 7 FEHA is denied.8 8 Plaintiffs do not assert that defendants actually denied their request for a reasonable 9 accommodation that defendants repair the elevator, but rather that defendants constructively 10 denied their request for a reasonable accommodation by unreasonably delaying in providing a 11 functioning elevator. MSJ 18-19; Reply 9-11. Defendants dispute that they refused to make any 12 requested reasonable accommodation regarding the functionality of the elevator. Opp’n 15-17. 13 “[A]lthough the Ninth Circuit has not spoken on [the issue of an unreasonable delay constituting a 14 constructive denial], district courts in this circuit have held that a plaintiff may show that the 15 defendant constructively denied a request for accommodation by causing an unreasonable delay 16 or bad faith delay in granting the request.” Hume v. Guardian Mgmt. LLC, Case No. 3:21-cv17 517-SI, 2022 WL 17834397 , at *4 (D. Or. Dec. 21, 2022). “The determination of whether a 18 request was constructively denied is fact-specific, and made on a case-by-case basis.” Elliott, [19] 2018 WL 2933467 , at *10. 20 Plaintiffs argue that twenty-one months passed between when defendants learned that the 21 elevator broke down, for the first time, in June 2021, trapping Manson outside for hours, to when 22 the elevator was fixed in March 2023, and that no reasonable jury could find almost two years to 23 be a reasonable delay for granting a reasonable accommodation request. MSJ 29; Doc. 30-29 at 24 30:16-25, 34:7-35:1, 36:23-37:12; Doc. 30-30 at 62:2-12. Plaintiffs assert that this delay was not 25 reasonable because defendants called Schindler only when there was a “cluster of entrapments” [26] 8 As addressed below, given that Cipro is not entitled to summary judgment on her reasonable 27 accommodation claim under the FHA and FEHA, she is also not entitled to summary judgment as to this claim under the DPA or the Unruh Act. [28] 1 and did not require Schindler to provide a permanent solution to the problem. MSJ 12; Doc. 302 28 at 139:19-140:19. 3 Plaintiffs further argue that the delay was not reasonable because defendants did not 4 contact an outside electrician, Doc. 30-28 at 106:7-25, or attempt to retain an alternative elevator 5 vendor when Schindler failed to correct the problem, Doc. 30-28 at 140:18-141:13. Specifically, 6 plaintiffs’ expert, Green, opined that the significant number of outages and entrapments could 7 have been avoided had defendants hired a different elevator maintenance contractor or hired 8 Thyssenkrupp, the company that designed, manufactured, and installed the elevator. Green Decl. 9 ¶¶ 19, 20. Green also opined that an elevator like the one at the Renaissance should have no more 10 than 3-5 trouble calls and one entrapment in one year. Green Decl. ¶ 15. Green opined that the 11 88 entrapments he tabulated between July 2021 and March 2023 was “extreme” and “far 12 exceed[ed] the industry standard.” Id. 13 However, the testimony on which plaintiffs rely for the assertion that defendants only 14 called Schindler when there was a cluster of entrapments does not fully support it. Rather, 15 Colbert testified that he would call Schindler when there was “an entrapment or a cluster of 16 entrapments,” and that when there was a cluster of entrapments, he would ask Schindler to 17 perform additional maintenance. Doc. 30-28 at 139:19-140:19 (emphasis added).Additionally, 18 Colbert testified that he spoke to technicians and the manager at Schindler on a regular basis and 19 asked them for a permanent solution to the problem, but Schindler indicated that nothing more 20 could be done. Doc. 46-1 at 143:1-144:4. Specifically, he testified that Schindler told him that 21 the elevator issues had to do with “transients” coming into the elevator and “smoking” or “doing 22 something,” causing the elevator to malfunction. Id. Colbert indicated that, based on his 23 conversations with Schindler, he did not think that something was wrong with the elevator itself 24 but rather “chalked [the malfunctions] up to that issue.” Id. Moreover, given Colbert’s testimony 25 regarding defendants’ efforts and communications with Schindler, a jury could conclude that not 26 contacting an outside electrician or alternate elevator vendor was reasonable under the 27 circumstances, and thus, could find the delay in the elevator being fixed to be reasonable. Thus, 28 defendants have demonstrated a genuine dispute of material fact as to this issue, and summary 1 judgment as to this element is not warranted. Summary judgment as to plaintiffs’ claims under 2 the FHA and FEHA for a failure to accommodate is therefore denied as to all plaintiffs. 3 The DPA provides that “[a] person renting, leasing, or otherwise providing real property 4 for compensation shall not refuse to make reasonable accommodations in rules, policies, 5 practices, or services, when those accommodations may be necessary to afford individuals with a 6 disability equal opportunity to use and enjoy the premises.” Cal. Civ. Code § 54.1 (b)(3)(B) (West 7 2017). Other courts in this circuit have found that the DPA language closely parallels that of the 8 FHA and FEHA, and therefore, held that the same four elements required for claims under the 9 FHA and FEHA can establish a refusal to provide reasonable accommodation claim under the 10 DPA. See, e.g., Gutierrez v. Gonzalez, Case No. 2:17–cv–01906–CAS(Ex), 2017 WL 1520419 , 11 at *5 (C.D. Cal. Apr. 26, 2017). Given plaintiffs have not established they are entitled to 12 summary judgment on their reasonable accommodation claim under the FHA and FEHA, they are 13 also not entitled to summary judgment as to this claim under DPA. See McClendon v. Bresler, 14 Case No. 2:20-cv-07758-RGK-GJS, 2021 WL 3017511 , at *5 n.4 (denying summary judgment as 15 to DPA claim given denial of summary judgment as to FEHA claim). 16 To prevail on a claim for disability discrimination under the Unruh Act, plaintiffs must 17 establish the following: “(1) [they] w[ere] denied the full and equal accommodations, advantages, 18 facilities, privileges, or services in a business establishment; (2) [their] disability[ies] w[ere] a 19 motivating factor for this denial; (3) defendants denied plaintiff[s] the full and equal 20 accommodations, advantages, facilities, privileges, or services; and (4) defendants wrongful 21 conduct caused plaintiff[s] to suffer injury, damage, loss or harm.” Hunter v. Chatman, Case No. 22 CV 18-5760-MWF (AGRx), 2018 WL 10076846 , at *6 (C.D. Cal. Nov. 20, 2018). Plaintiffs 23 must also “prove intentional discrimination or willful, affirmative misconduct on the part of those 24 who violate the Unruh Act.” Id. (citing Greater Los Angeles Agency on Deafness, Inc. (GLAAD) 25 v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014)) (cleaned up). Given that 26 plaintiffs have not established that they are entitled to summary judgment regarding whether 27 defendants denied them a reasonable accommodation, as discussed above, they are also not 28 entitled to summary judgment on whether any such denial constituted intentional discrimination 1 or willful, affirmative misconduct under the Unruh Act. 2 B. Plaintiffs’ Claims under Section 504 of the Rehabilitation Act and Section 11135 3 of the California Government Code 4 Section 504 of the Rehabilitation Act of 1973, as amended by 29 U.S.C. § 794 , provides 5 that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his 6 disability, be excluded from the participation in, be denied the benefits of, or be subjected to 7 discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 8 § 794. Similarly, section 11135 of the California Government Code provides that “[n]o person in 9 the State of California shall, on the basis of . . . disability . . . be unlawfully denied full and equal 10 access to the benefits of, or be unlawfully subjected to discrimination under, any program or 11 activity that is conducted, operated, or administered by the state or by any state agency, is funded 12 directly by the state, or receives any financial assistance from the state.” Cal. Gov’t Code 13 § 11135(a) (West 2017). 14 “[Section] 11135 is identical to the Rehabilitation Act except the entity must receive State 15 financial assistance rather than Federal financial assistance.” See D.K. ex rel. G.M. v. Solano 16 County Office of Educ., 667 F. Supp. 2d 1184, 1190-91 (E.D. Cal. Oct. 5, 2009). Thus, “[i]f a 17 public entity that receives state funding has violated [section 504 of the Rehabilitation Act], then 18 it has also violated [section] 11135.” Bassilios v. City of Torrance, 166 F. Supp. 3d 1061 , 1084 19 (C.D. Cal. 2015) (citations omitted). 20 “A plaintiff bringing a section 504 claim . . . must show that (1) he is an individual with a 21 disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the 22 program solely by reason of his disability; and (4) the program receives federal financial 23 assistance.” See, e.g., Fraihat v. U.S. Immigr. & Customs Enf’t, 16 F.4th 613, 650 (9th Cir. 2021) 24 (citing Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017) (internal quotations 25 omitted). Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). When a plaintiff 26 seeks damages, “[the] plaintiff[] must [also] prove a mens rea of intentional discrimination, to 27 prevail on a § 504 claim, but that standard may be met by showing deliberate indifference, and 28 not only by showing discriminatory animus.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (2008) 1 (citations and quotations omitted). Here, plaintiffs seek damages, so this additional requirement 2 applies.9 3 While the parties agree that several of the elements regarding this claim are not in dispute, 4 for the reasons noted above, plaintiffs have not carried their burden as to the third element, and 5 for at least this reason, summary judgment as to their section 504 claim is not warranted. 6 Specifically, there is a material dispute of fact regarding whether defendants denied plaintiffs the 7 benefits of housing at the Renaissance. 8 “A plaintiff may satisfy prong [three] by showing that the federally funded program 9 denied [him or her] services that [he or she] needed to enjoy meaningful access to the benefits of 10 [the program] and that were available as reasonable accommodations” or “by showing that the 11 program denied [him or her] meaningful access through another means, such as by violating a 12 regulation that implements section 504’s prohibitions.” A.G. v. Paradise Valley Unified Sch. 13 Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016). Plaintiffs confirmed at the motion hearing that 14 they do not contend that defendants denied plaintiffs access “through another means, such as by 15 violating a regulation that implements section 504’s prohibitions.” Id. Thus, the question is 16 whether defendants denied plaintiffs services that they needed to enjoy meaningful access to the 17 Renaissance that were available as reasonable accommodations. As noted above, it is a question 18 for the jury whether defendants unreasonably delayed in providing a fixed elevator and thereby 19 constructively denied plaintiffs a reasonable accommodation. 20 Thus, summary judgment as to plaintiffs’ Section 504 claim and plaintiffs’ Cal. Gov’t 21 Code section 11135 claim is denied. 22 C. Plaintiffs’ Claims that Defendants’ Failed to Comply with Structural Access [23] 9 Plaintiffs acknowledge this additional requirement in a single sentence in a footnote in their 24 motion but assert they need not prove intentional discrimination at this time for this Court to grant them summary judgment on their Section 504 claim, presumably indicating that they will attempt [25] to prove such intent when proving damages. MSJ 33 n.3. Defendants did not respond to this assertion in their opposition. It seems dubious that the Court could grant summary judgment on [26] plaintiffs’ section 504 claim without proof of intentional discrimination. See, e.g., Mark H., 513 27 F.3d at 938. However, as described herein, plaintiffs’ motion for summary judgment on this claim is denied for other reasons, and the Court need not address this issue. [28] 1 Standards, in violation of the DPA and the Unruh Act in Maintaining the 2 Elevator and Constructing the Dog Park 3 Plaintiff may also prevail under the DPA or the Unruh Act by proving that the defendants 4 violated an independent California accessibility requirement. See, e.g., Rodriguez v. Barrita, Inc., [5] 10 F. Supp. 3d 1062, 1074 (N.D. Cal. Jan. 3, 2014); see also Coronado v. Cobblestone Vill. 6 Comm. Rentals, L.P., 163 Cal. App. 4th 831, 851 (Cal. Ct. App. 2008). Title 24 of the California 7 Code of Regulations (the “California Building Code”) sets forth accessibility requirements for 8 public accommodations.10 Rodriguez, 10 F. Supp. 3d at 1074 . Thus, “[a] violation of Title 24 9 standards constitutes a violation of both the Unruh Act and the [DPA].” Id. (citation omitted). 10 However, “any such violation [must be related] to the [barrier] that limited plaintiffs’ access to or 11 from their apartments.” See Moore, 2019 WL 5697934 , at *12 (denying summary judgment on 12 DPA claim in part because jury could find that violation of accessibility standard was unrelated to 13 elevator outage that limited plaintiffs’ access to their apartment). Additionally, as noted, to 14 prevail on a claim for damages under the Unruh Act, plaintiffs must also “plead and prove 15 intentional discrimination in public accommodations in violation of the terms of the Act.” 16 Rodriguez, 10 F. Supp. 3d at 1074 (citation omitted). 17 i. Elevator 18 Plaintiffs allege that defendants failed to maintain the elevator in violation of sections 19 1106A.1, 1102A.2, and 1124A.124 of part 2 of title 24 of the California Code of Regulations, 20 thereby violating the DPA and the Unruh Act. MSJ 25; Cal. Code Regs. tit. 24, part 2, 21 §§ 1106A.1, 1102A.2, 1124A.1. Specifically, plaintiffs point to a portion of section 1106A.1 22 providing that “[t]he elevator in [an elevator multifamily dwelling] building must provide 23 accessibility to all dwelling units in the building” to support their contention that defendants’ 24 alleged failure to maintain the elevator is a violation of that section. Id. § 1106A.1. However, the 25 full text of section 1106A.1 provides context informing the interpretation of the provision. Id. [26] 10 “Public accommodations constructed or altered after July 1, 1970, are subject to California 27 Health & Safety Code and Government Code requirements for disabled access.” Rodriguez, 10F. Supp. 3d at 1074. It is undisputed that the Renaissance was constructed for first occupancy in 28 2017, see Doc. 36-1 ¶ 3, and therefore, the California Building Code applies to it. 1 The section deals with the design and construction of buildings, requiring that they are designed 2 and built to be accessible to people with disabilities. Id. In context, the section cannot 3 reasonably be read to create a requirement regarding maintenance of accessible features. Id. 4 Plaintiffs also contend that defendants violated sections 1102A.2 and 1124A.1. Id. 5 §§ 1102A.2, 1124A.1. Section 1102A.2 provides that “[c]overed multifamily dwellings shall be 6 maintained in compliance with the accessibility standards in effect at the time of construction.” 7 Id. § 1102A.2. Plaintiffs argue that defendants failed to maintain its elevators in compliance with 8 section 1102A.2 by violating section 1124A.1. Section 1124A.1 provides that “[e]levators 9 provided in covered multifamily buildings shall be accessible” and that “[e]levators required to be 10 accessible shall comply with this chapter, ASME A17.1 (Safety Code for Elevators and 11 Escalators), Title 8 of the California Code of Regulations, under ‘Elevator Safety Orders,’ and 12 any other applicable safety regulations of other administrative authorities having jurisdiction.”11 13 Id. § 1124A.1. Plaintiffs argue that defendants violated section 1124A.1 by violating the 14 following ASME Safety Standards: ASME A17.1 § 8.6.10.4; § 8.6.1.4.1(c); and ASME 17.1 15 § 8.6.1.2.1. 16 ASME A17.1 § 8.6.10.4 requires that “a written emergency evacuation procedure shall be 17 made and kept on the premises.” Green Decl., Doc. 29-6, Ex. E-2 at 2. Defendants 18 acknowledged at the hearing that they did not have a written emergency evacuation procedure. 19 However, it is unclear how lacking a written emergency evacuation procedure is related to 20 plaintiffs’ claims regarding the elevator not providing them adequate access to or from their 21 apartments.12 Thus, summary judgment is not warranted as to this claim based on a violation of 22 ASME A17.1 § 8.6.10.4. [23] 24 11 ASME is an acronym for the American Society of Mechanical Engineers. See generally About ASME, Am. Soc'y of Mech. Eng'rs, https://www.asme.org/about-asme (last visited Mar. 2, 2025). [25] ASME publishes safety codes and standards. Id. [26] 12 Plaintiffs’ expert opined that “[d]efendants’ failure to comply with the standards of ASME 27 A17.1, specifically [s]ection 8.6.1.2.1, likely contributed to the constant entrapments.” Green Decl. ¶ 23 (emphasis added). [28] 1 ASME A17.1 § 8.6.1.4.1(c) requires maintenance records to include the following: 2 “description of dates and call backs (trouble calls) or reports that are reported to elevator 3 personnel by any means, including corrective action taken.” Green Decl., Doc. 29-5, Ex. E-1 at 4 3. Plaintiffs claim that, in violation of this provision, defendants did not document elevator 5 outages if no one was entrapped, and that defendants did not document entrapments that took 6 place during working hours. MSJ 10 (citing Doc. 28 ¶ 24). As to plaintiffs’ first claim, the cited 7 evidence does not address outages in which no one was entrapped. As for the second claim, 8 Colbert testified that if an entrapment happened during office hours, he would have created an 9 incident report. Doc. 46-1, Ex. 10, at 148:5-149:1. The cited evidence merely states that Colbert 10 would not record an entrapment that happened during normal working hours on his employee 11 timecard, as he did with entrapments that occurred after normal working hours.13 Doc. 30-28 at 12 122:16-19 (emphasis added). 13 Plaintiffs also argue that defendants violated this provision because Colbert would reset 14 the elevator when it malfunctioned, thereby erasing the elevator’s internal record of what had 15 gone wrong. MSJ 26; Doc. 30-28 at 89:19-90:16; Green Decl. ¶ 9. Though Green opined in his 16 declaration that defendants violated this section because “Colbert was resetting the elevator and 17 not recording all of [the malfunctions] or completing corrective action,” plaintiffs have not 18 carried their burden of production regarding their allegation that defendants did not record all 19 outages and there is a material dispute of fact as to whether defendants documented all 20 entrapments. Additionally, plaintiffs provide no basis for this Court to conclude that erasing the 21 elevator’s internal record alone would violate § 8.6.1.4.1(c)’s requirement that defendants keep 22 maintenance records with a “description of dates and call backs (trouble calls) or reports that are 23 reported to elevator personnel by any means, including corrective action taken.” For these 24 reasons, summary judgment regarding whether defendants violated A17.1 § 8.6.1.4.1(c) is not 25 warranted. [26] 13 Colbert explained elsewhere in his testimony that when he inputs his time outside of his normal 27 working hours, he must list a justification for clocking in to work outside of working hours, and thus, when he would respond to an elevator entrapment after hours, he would therefore list the 28 entrapment as the reason. See Doc. 30-28 at 122:5-8. 1 Finally, ASME 17.1 § 8.6.1.2.1 requires a “maintenance control program” that includes 2 “examinations, maintenance, and tests of equipment at scheduled intervals.” Green Decl., Doc. 3 29-5, Ex. E-1 at 2. Plaintiffs assert that defendants did not ensure regular inspections or 4 maintenance with Schindler, in violation of this provision. MSJ 26; Green Decl., Doc. 44, Ex. B, 5 at 2-16. Pages 2 through 16 of Exhibit B to the Green declaration is a contract between the 6 Renaissance and Schindler, dated “approved” March 15, 2019, which contemplates “preventative 7 maintenance” performed “in accordance with a maintenance schedule specific to [the 8 Renaissance’s] equipment” but does not indicate what that schedule would be. Green Decl., Doc. 9 44, Ex. B, at 2-16. Plaintiffs’ expert opined that defendants should have ensured a minimum of 10 monthly preventative visits but, based on his review of “[t]he Schindler records” (Doc. 36-5 at 11 36-148; Green Decl., Doc. 44, Ex. B at 43-155), believed that only 6 preventative visits occurred 12 in 2019, 10 in 2020, 5 in 2021, 8 in 2022 and 5 in 2023. Green Decl. ¶ 7. Plaintiffs note that 13 many of these visits happened within in the same month. Reply 16 (indicating specific dates). 14 In response to plaintiffs’ assertion that defendants did not have maintenance at scheduled 15 intervals, defendants cite to a contract between the parties dated February 1, 2020, which states 16 that preventative maintenance “shall be provided on the dates and times determined by the 17 [Renaissance].” Doc 36-3 at 27-28. Appendix 2 to the February 1, 2020 contract appears to 18 show that maintenance was scheduled to be performed monthly. Doc. 36-3 at 76. Colbert also 19 testified that the Renaissance pays for monthly preventative maintenance and Schindler performs 20 preventative maintenance monthly. Doc. 46-1, Ex. 17, at 82:9-16. Defendants also dispute the 21 accuracy of the number of preventative visits plaintiffs assert occurred; indeed, a review of the 22 Schindler records reveals 7 work reports marked “preventative maintenance” bearing separates 23 dates in 2019, 10 in 2020, 10 in 2021, 13 in 2022, and 9 in 2023. Doc. 36-5 at 36-148; Green 24 Decl., Doc. 44, Ex. B at 43-155. Thus, there are genuine disputes of material fact regarding 25 whether defendants violated ASME 17.1 § 8.6.1.2.1’s requirement that the elevator be maintained 26 at “scheduled intervals,” and plaintiffs are not entitled to summary judgment on this claim. 27 Moreover, there is a material dispute of fact as to whether any alleged violation of ASME 28 17.1 § 8.6.1.2.1 is sufficiently related to the accessibility difficulties plaintiffs faced. Though 1 Green opined that “[d]efendants’ failure to comply with . . . [s]ection 8.6.1.2.1, likely contributed 2 to the constant entrapments,” Green Decl. ¶ 23, Colbert testified that Schindler told him that the 3 elevator issues had to do with “transients” coming into the elevator and “smoking” or “doing 4 something” to cause the elevator to malfunction, indicating to him that there was not an issue with 5 the elevator that could be fixed, by Schindler or by anyone. Doc. 46-1 at 143:1-144:4. Moreover, 6 given the number of preventative maintenance visits that did occur without permanent correction 7 of the elevator issues (see Doc. 36-5 at 36-148; Green Decl., Doc. 44, Ex. B at 43-155), a 8 reasonable jury could find that the reason for the accessibility issues with the elevator that 9 plaintiffs faced were not related to defendants’ alleged failure to schedule more preventative 10 maintenance visits. Thus, for this additional reason, summary judgment on this claim is not 11 warranted. 12 Given that plaintiffs are not entitled to summary judgment as to any alleged violation of 13 any ASME standard, they are not entitled to summary judgment on their DPA or Unruh Act 14 claims for violation of the California Building Code. 15 ii. Dog Park14 16 Similarly, plaintiffs argue that defendants failed to construct its dog park in violation of 17 sections 1127A.1 and 1110A.1 of part 2 of title 24 of the California Code of Regulations, thereby 18 violating the DPA and the Unruh Act. Cal. Code Regs., tit. 24, part 2, §§ 1127A.1, 1110A.1. 19 Section 1127A.1 provides that “common use areas and facilities in covered multifamily housing 20 developments shall be accessible to persons with disabilities. Common use facilities include, but 21 are not limited to, lobbies, toilet and bathing facilities, laundry facilities, community rooms, 22 clubhouses, health and fitness facilities, game rooms and portions of common use tenant storage. 23 All entrances, doors, fixtures and controls shall be on an accessible route.” Id. § 1127A.1. 24 Section 1110A.1 provides that “[e]xterior accessible routes shall be provided as follows: . . . [a]t 25 14 In their reply, plaintiffs assert that “Plaintiff Reed still resides at the Property and hence still has standing to bring this claim,” and that this claim is not moot given that the park could be [26] reopened. Reply 18. Though defendants stated at the hearing that the dog park has been 27 permanently removed, mooting this claim, defendants have not produced evidence supporting this assertion. [28] 1 | least one accessible route shall connect accessible buildings, facilities, elements and spaces that 2 | are on the same site;” “[a]t least one accessible route shall connect accessible building or facility 3 | entrances with all accessible spaces, elements and covered multifamily dwelling units;” and “[a]n 4 | accessible route shall connect at least one accessible entrance of each covered multifamily 5 | dwelling unit with exterior spaces and facilities that serve the dwelling unit.” Jd. § 1110A.1. 6 | “Walking [and floor and ground] surfaces [on accessible routes] shall be stable, firm and slip 7 | resistant.” Jd. §§ 1110A.3, 1113A.1. 8 There are genuine disputes of material fact as to the condition of the path and whether 9 | defendants violated these provisions of the California Building Code, and thereby violated the 10 | DPA or the Unruh Act. For example, plaintiffs assert that the path to the dog park is made of 11 || compacted sand and grass and that “defendants concede that when it rains the path gets muddy.” 12 | Reply 18 (citing PSUF □ 77).° However, Colbert testified that he would not say that the path 13 || gets muddy when it rains but rather that it becomes more densely packed and harder. Doc. 46-1 14 | at 62:16-63:1. Summary judgment as to this claim is also not warranted. 15 V. CONCLUSION 16 For the reasons set forth above, plaintiffs’ motion for summary judgment is DENIED. [18] 19 | IT IS SO ORDERED. _ 20 Dated: _ March 21, 2025 4A . UNITED STATES DISTRICT JUDGE [24] 25 | 15 psuF {| 77 purports to cite to Colbert’s testimony for the proposition that defendants concede 26 | the path gets muddy when it rains. However, plaintiffs have not included in the record any such portion of Colbert’s testimony. At the hearing, plaintiffs alleged instead that defendants made 27 | this concession in response to an unspecified request for admission. Plaintiffs do not cite to any such response in their pleadings and they have failed to meet their burden of establishing there is 28 | no genuine dispute of material fact.