Williams v. Camden Old Creek

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SHALIECIA WILLIAMS, an Individual, Case No.: 3:19-cv-00691-AJB-AHG S.W., a minor by and through her [12] Guardian Ad Litem, SHALIECIA ORDER GRANTING DEFENDANT’S 13 WILLIAMS, an Individual, MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED 14 Plaintiffs, COMPLAINT 15 v. 16 CAMDEN USA, INC. a Delaware Corporation; CAMDEN OLD CREEK, a [17] Business Form Unknown; and DOES 118 10, 19 Defendants. [20] 21 In this action plaintiffs Shaliecia Williams, individually and as Guardian Ad Litem 22 for S.W., a minor (collectively “Plaintiffs”), allege racial discrimination by Defendant 23 Camden USA, Inc. (“Defendant”). Defendant filed a motion to dismiss Plaintiffs’ First 24 Amended Complaint (“FAC”) for failure to state a claim as to all claims. (Doc. No. 10.) 25 Plaintiffs opposed, (Doc. No. 13), and Defendant replied, (Doc. No. 14). For the reasons 26 stated below, the Court GRANTS Defendant’s motion with leave to amend. 27 / / / 28 / / / 1 I. BACKGROUND 2 Plaintiff Shaliecia Williams (“Williams”)1, an African-American woman, and her 3 minor daughter, S.W. (“S.W.”), are tenants in the Camden Old Creek apartment complex 4 located at 1935 Northstar Way, San Marcos, California 92078 (“Property”). (Doc. No. 8 5 ¶¶ 1, 4, 13.) The Property is owned by Camden USA, Inc., which Plaintiffs allege has 6 employed Camden Old Creek to manage the Property since December 2002.2 (Id. ¶¶ 5–6.) 7 Plaintiffs moved into the Property in February of 2014 and lived there with no issues until 8 mid-2018. (Id. ¶¶ 10, 11.) In or around January 2018, Defendant employed Anna Rzepka 9 (“Rzepka”) as the resident manager of the Property. (Id. ¶ 12.) Rzepka has since remained 10 resident manager. (Id.) Plaintiffs allege Rzepka is Latin, and possibly Caucasian. (Id. ¶ 13.) 11 A. Factual Background 12 Plaintiffs allege nine separate instances as the factual basis for their claims. Plaintiffs 13 allege that Defendant has a policy which allows residents to use a printer in the office if 14 necessary. (Id.) In July 2018, Williams went into the office at the Property to use the printer 15 and Rzepka asked Williams in a “quizzical, and inappropriate” tone whether Williams lived 16 at the Property. (Id.) 17 On August 4, 2018, which was the last day rent was due, Williams paid her rent 18 online. (Id. ¶ 14.) The following day, Williams realized she had been charged for three 19 months of rent. (Id.) Realizing there was an error, Williams called Rzepka to resolve the 20 problem. (Id.) Plaintiffs allege Rzepka spoke to Williams in a condescending tone when 21 Williams inquired as to an overcharge of rent. (Id.) Plaintiffs allege Rzepka asked 22 Williams, “How do you say your name?” (Id.) After Williams told Rzepka her name, 23 Rzepka asked Williams in an odd way, “What kind of name is that?” (Id.) Williams [25] 26 1 The FAC consistently refers to a single plaintiff, despite there being multiple plaintiffs in this case. (See generally Doc. No. 8.) It is clear from the FAC that the singular plaintiff referred to is Williams, 27 not S.W. 2 In the motion to dismiss, Defendant contends that Plaintiffs erroneously named Camden USA, Inc. as [28] 1 “responded in a friendly tone, ‘A black name.’” (Id.) During this conversation, Plaintiffs 2 allege Rzepka informed Williams that she went through Williams’ payment history as a 3 resident, and then lectured Williams “in a condescending manner” about waiting until the 4 last day to pay her rent. (Id.) Williams responded by questioning Rzepka for checking her 5 rental history. (Id.) 6 Plaintiffs allege Defendant failed to contact Williams before towing her second 7 vehicle, despite it having the required sticker authorizing Williams to park the vehicle at 8 the Property. (Id. ¶¶ 15, 16.) Plaintiffs allege Rzepka told Williams she towed the vehicle 9 because “‘[i]t sat there for days. This is not the ghetto. It had cobwebs on the car.’” (Id. ¶ 10 16.) Williams refused to pay the towing charge. (Id.) Williams reported the incident to 11 Defendant’s District Coordinator, Leyna Trinh (“Trinh”), who ultimately agreed to pay the 12 towing charge. (Id.) 13 Plaintiffs allege that for several weeks Rzepka “would stare intently” and in an 14 intimidating manner at 14-year-old S.W. whenever she would go to the pool with her 15 friends. (Id. ¶ 17.) 16 Plaintiffs allege Rzepka deceived Williams to conduct an improper inspection of her 17 unit. (Id. ¶ 18–20.) On August 29, 2018, Rzepka emailed Williams indicating that she 18 wanted to do an inspection of Williams’ unit. (Id. ¶ 18.) Plaintiffs allege the letter 19 referenced California law and referred to a move-out inspection. (Id.) Williams responded 20 to the email requesting the inspection be postponed until she moved out as the letter 21 referred to a move-out inspection and Plaintiffs were not yet moving out. (Id.) Williams 22 also spoke to someone in the office named Stacy who informed Williams that they had 23 received her email and that it would not be a problem. (Id.) 24 On September 19, 2018, Rzepka emailed Williams about an annual fire alarm test. 25 (Id. ¶ 19.) The email indicated that inspection would occur, and that they were going to 26 walk through the unit to make sure they could hear the fire alarm throughout the unit. (Id.) 27 The email indicated that the inspection would occur on September 27, 2018. (Id.) Despite 28 Williams’ request, Defendant refused to accommodate Williams to allow her to be present 1 for the inspection. (Id.) Additionally, Plaintiffs allege the 2018 fire alarm inspection had 2 already occurred in March 2018. (Id.) When Williams returned home the day of the 3 inspection, she realized that all the drawers and cabinets were open and had been clearly 4 looked at. (Id.) After questioning Rzepka about the inspection, Williams learned Defendant 5 conducted a move-out inspection, not a fire alarm inspection. (Id.) 6 On September 27, 2018, upon learning of the deception, Williams reported Rzepka’s 7 deception regarding the inspection to Trinh. (Id. ¶ 20.) Williams informed Trinh she did 8 not feel comfortable with Rzepka there, and that Rzepka was harassing Plaintiffs. (Id.) 9 Williams informed Trinh that Rzepka had harassed Plaintiffs in apparent retaliation for 10 complaining about the car towing incident, that she feared for her and S.W.’s safety, and 11 that Rzepka made her feel “subhuman.” (Id.) 12 On September 29, 2018, Trinh called Williams to discuss the incidents raised in the 13 September 27, 2018 email. (Id.) During that conversation, Williams told Trinh she would 14 like Rzepka removed as resident manager because of Rzepka’s harassment and 15 mistreatment of Plaintiffs. (Id.) Trinh told Williams she would speak with her team and get 16 back to her. (Id.) 17 On October 1, 2018, Trinh emailed Williams and offered her the opportunity “‘to 18 move out without any lease break penalties or turnover charges.’” (Id. ¶ 21.). Plaintiffs 19 allege the email was silent as to any discussions or actions Trinh had taken against Rzepka. 20 (Id.) 21 The following day, on October 2, 2018, Trinh sent another email to Williams 22 informing her that Rzepka would remain the community manager at the complex. (Id. ¶ 23 22.) Trinh again reiterated that Williams was free to move out and break her lease, but that 24 she would be required to decide within three days. (Id.) Williams and Trinh exchanged two 25 more emails on October 22, 2018. (Id.) After that, Williams had no contact with Rzepka, 26 nor any other of Defendant’s employees. (Id. ¶ 25.) 27 On December 5, 2018, Williams received a letter from Defendant’s attorney 28 indicating that management reported an “altercation” with Williams, stating that she 1 “cursed at and scared management team members at the complex.” (Id. ¶ 26.) Plaintiffs 2 contend these claims were “patently false.” (Id.) Williams responded to the email, also 3 sending a carbon copy to Trinh, and indicated that the claims were false. (Id.) Williams 4 reported the history of harassment she and S.W. had suffered by Rzepka. (Id.) The only 5 response alleged occurred the same day and was an automatic email from Trinh indicating 6 that she was out of the office. (Id.) 7 On December 10, 2018, Williams’ toilet leaked in the middle of the night and water 8 seeped through the walls and into the unit below Williams. (Id. ¶ 27.) Defendant called 9 Williams the next morning to notify her of the issue and repairmen were sent that day to 10 fix the issue. (Id.) 11 On December 15, 2018, repairmen were again sent to fix the issue. (Id.) The repairs 12 were done over a two-day period. (Id.) At some point during the repairs, one of the workers 13 said to Williams: “‘Don’t say anything, but your manager was talking very negatively 14 about you. She doesn’t like you. She told us that you are black, and you’ll go off on her. 15 She told us to watch-out.’” (Id.) 16 On January 15, 2019, Plaintiffs’ toilet began to leak again. (Id. ¶ 28.) Williams 17 reported the problem at around 9:00 p.m., and two maintenance men immediately came 18 and fixed the issue. (Id.) Most of the work was completed in twenty minutes, however, the 19 men needed a vacuum to complete their work. (Id.) As such, one of the men went to get a 20 vacuum while the other, Carlos, waited at the apartment with Williams. (Id.) After waiting 21 for some time, Plaintiffs allege “Carlos blurted a statement out-of-the-blue, ‘I’m sorry that 22 Camden Old Creek is not up to your standards.’” (Id.) The comment made Williams 23 uncomfortable, however, she did not say anything. (Id.). Finally, Williams informed Carlos 24 that she wanted to postpone the remainder of the work so she could go to sleep. (Id.) Carlos 25 refused to leave, stating that they needed to wait. (Id.) Williams called Rzepka, who 26 instructed Carlos to leave. (Id.) 27 For the next several months, Williams had no contact with Defendant, or any of its 28 employees. (Id. ¶ 29.) 1 Lastly, on April 9, 2019, Defendant sent a 60-day notice to terminate Plaintiffs’ 2 tenancy. (Id. ¶ 30.) The notice was accompanied by a letter from an attorney indicating that 3 Williams would be evicted if she did not comply with the Notice of Termination. (Id.) 4 Williams contacted Trinh via email and requested a reason for termination. (Id.) Trinh 5 responded explaining that it was up to the team’s discretion about whether to renew a lease. 6 (Id.) Williams again responded stating that she was disturbed as she had not done anything 7 wrong that would justify terminating her lease, outlined the wrongs she had previously 8 suffered, and stated that harassment was forcing her to move. (Id.) Trinh again responded 9 indicating that she did not believe Williams had done anything wrong, but rather, she 10 believed it was best since Williams did not seem satisfied with her residency. (Id.) 11 B. Procedural History 12 On April 16, 2019, Plaintiffs filed their initial complaint with the Court. (Doc. No. 13 1.) On May 5, 2019, Plaintiffs filed their FAC “as a matter of course,” pursuant to Fed. R. 14 Civ. P. 15(a)(1)(A). (Doc. No. 8.) The FAC alleges five causes of action including: (1) Fair 15 Housing Act (“FHA”), (2) California Fair Employment and Housing Act (“FEHA”); (3) 16 California Unruh Civil Rights Act (“Unruh Act”); (4) Unfair Business Practices; and (5) 17 Negligence. (See Doc. No. 8.) The Court has federal question jurisdiction under 28 U.S.C. 18 § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367 . 19 Defendant moves to dismiss the entire FAC under Federal Rule of Civil Procedure 20 12(b)(6) and contends that because Plaintiffs have failed to establish a claim upon which 21 relief can be granted as to the FHA claim, the Court should decline to exercise supplemental 22 jurisdiction as to the state law claims. 23 II. LEGAL STANDARD 24 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the complaint’s sufficiency. 25 See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). A complaint 26 may be dismissed as a matter of law either for lack of a cognizable legal theory or for 27 insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 28 F.2d 530 , 534 (9th Cir. 1984). In ruling on a Rule 12(b)(6) motion, the court must assume 1 the truth of all factual allegations and “construe them in the light most favorable to [the 2 nonmoving party].” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). “While a 3 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 4 allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 5 requires more than labels and conclusions, and a formulaic recitation of the elements of a 6 cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555–56 (2007) 7 (internal quotation marks and citation omitted). Instead, the allegations in the complaint 8 “must be enough to raise a right to relief above the speculative level.” Id. at 555 . To survive 9 a motion to dismiss, plaintiffs must have “nudged their claims across the line from 10 conceivable to plausible.” Id. at 570 . 11 A claim has “facial plausibility when the plaintiff pleads factual content that allows 12 the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556 ). 14 “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it 15 stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, [16] 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 ). A court need not accept “legal 17 conclusions” as true. Iqbal, 556 U.S. at 678 . It is not proper for a court to assume that “the 18 [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated 19 the ... laws in ways that have not been alleged[,]” regardless of the deference shown to 20 plaintiff’s allegations. Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of 21 Carpenters, 459 U.S. 519, 526 (1983). 22 III. DISCUSSION 23 A. FHA, FEHA, and Unruh Act Claims 24 Defendant moves to dismiss Plaintiffs’ first three causes of action in the FAC 25 arguing that Plaintiffs failed to allege any direct evidence of discriminatory intent, or 26 indirect evidence of discrimination. 27 The FHA was enacted to “eradicate discriminatory practices within a division of the 28 United States economy.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 1 Inc., 135 S. Ct. 2507 , 2511 (2015). The FHA incorporates the ideology and practices of 2 many California statutes, including the FEHA as well as the Unruh Act. Cabrera v. 3 Alvarez, 977 F. Supp. 2d 969, 975 (N.D. Cal. 2013). Each statute provides broad protection 4 against arbitrary discrimination based on race, color, religion, sex, familial status, or 5 national origin. See 42 U.S.C. § 3604 (b). The provisions of the FEHA3 and the Unruh Act4 6 at issue “protect substantially the same rights as the FHA, and are subject to the same 7 analysis.” See Cabrera, 977 F. Supp. 2d at 975 ; Walker v. City of Lakewood, 272 F.3d 8 1114, 1131 n.8 (9th Cir. 2011). Thus, the Court will begin its analysis under the FHA. See 9 Walker, 272 F.3d at 1131 n.8 (“Because we apply the same standards to FHA and FEHA 10 claims, the McDonnell Douglas analysis applies to the FEHA claim as well.”) (internal 11 citation omitted). 12 Pursuant to the FHA, 42 U.S.C. § 3604 (b), a claim for discrimination “against any 13 person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the 14 provision of services in connection therewith, because of race, color, religion, sex, familial 15 status, or national origin” can be established through either disparate impact or disparate 16 treatment theory. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008); 17 Gamble v. City of Escondido, 104 F.3d 300 , 304–05 (9th Cir. 1997). 18 a. Pleading standard required for FHA claims 19 With respect to pleadings in discrimination cases, the Supreme Court has ruled that 20 the survival of a complaint in a discrimination case does not rest on whether it contains [22] 23 3 California Government Code Section 12955(a) states that it is unlawful for “the owner of any housing accommodation to discriminate against or harass any person because of race, color, religion, sex, [24] gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, 25 familial status, source of income, disability, or genetic information of that person.” 4 The Unruh Civil Rights Act, as codified in California Civil Code Section 51(b), states: “All persons 26 within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual 27 orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of every kind [28] 1 specific facts establishing a prima facie case of discrimination. Swierkiewicz v. Sorema 2 N.A., 534 U.S. 506, 510 (2002) (“The prima facie case under McDonnell Douglas . . . is an 3 evidentiary standard, not a pleading requirement.”). Thus, the ordinary rules for assessing 4 the sufficiency of a complaint apply. Id. at 511 (“[U]nder a notice pleading system, it is not 5 appropriate to require a plaintiff to plead facts establishing a prima facie case [of 6 discrimination]”). As such, the Court must follow Federal Rule of Civil Procedure 8 to 7 determine whether Plaintiffs sufficiently alleged Defendant intentionally discriminated 8 against Plaintiffs because of their race. 9 Rule 8(a)(2) states that a pleading must contain “a short and plain statement of the 10 claim showing that the pleader is entitled to relief.” The Court in Twombly ruled that “the 11 pleading standard Rule 8 announces does not require detailed factual allegations, but it 12 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 550 13 U.S. at 555 (internal quotation marks and citation omitted). While brevity is required, it is 14 not enough to simply allege that a wrong has been committed and demand relief. The 15 underlying requirement is that a pleading give “fair notice” of the claim being asserted and 16 that “grounds upon which it rests.” Id. 17 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 18 accepted as true, to state a claim to relief that is plausible on its face.” Id. at 570 (internal 19 quotation marks and citations omitted). A claim has facial plausibility when the plaintiff 20 pleads factual content that allows the court to draw the reasonable inference that the 21 defendant is liable for the misconduct alleged. Id. at 556. 22 b. S.W.’s FHA, FEHA, and Unruh Act Claims 23 The FAC alleges that Williams is African-American, but is silent as to S.W.’s race. 24 (See generally Doc. No. 8.) Here, the Court cannot assume S.W.’s race and thus, cannot 25 assume that S.W. is a member of a protected class under the FHA. See Associated Gen. 26 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983) 27 (“AGC”) (“It is not . . . proper to assume that [the plaintiff] can prove facts that it has not 28 alleged”). Without facts to support S.W.’s race, the Court cannot draw a reasonable 1 inference that Defendant discriminated against S.W. as a result of her race. As such, S.W.’s 2 FHA, FEHA, and Unruh Act claims must be dismissed.5 3 c. Williams’ FHA, FEHA, and Unruh Act Claims 4 Defendant’s motion tends to confuse the disparate impact and disparate treatment 5 theories. Defendant first contends “Plaintiffs does [sic] not appear to be making a disparate 6 impact case, rather Plaintiffs’ allegations tend to sound in a disparate treatment theory; 7 however, Plaintiffs’ pled allegations do not amount to disparate treatment.” (Doc. No. 10 8 at 6.) Defendant continues by arguing that “Plaintiffs’ allegations suggest that Defendant’s 9 enforcing of facially neutral policies amount to discrimination against her.” (Id.) Plaintiffs 10 did not specifically allege in the FAC under which theory of discrimination they intend to 11 proceed. (See generally Doc. No. 8.) However, at the pleading stage, they are not required 12 to do so. See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (“Notice pleading requires 13 the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or 14 legal theories.”). The Court finds that Plaintiffs’ allegations seem to be based in both 15 theories, and therefore, finds a discussion of both theories to be appropriate and necessary. 16 i. Disparate Impact 17 The Court first addresses the disparate impact theory allegation. Disparate impact 18 occurs when a plaintiff “show[s] at least that the defendant’s actions had a discriminatory 19 effect.” Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th 20 Cir. 2009) (internal quotation marks and citations omitted). The disparate impact theory 21 “involve[s] practices that are facially neutral in their treatment of different groups but that 22 in fact fall more harshly on one group than another and cannot be justified by . . . necessity.” 23 Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 , 335 n.15 (1977). Further, 24 the disparate impact theory protects people from “practices that are fair in form, but 25 discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). [28] 1 Here, only one of the instances alleged in the FAC involves a situation in which 2 Defendant enforced a facially neutral policy. The instance occurred when Williams went 3 into the office at the Property to use the printer. (Doc. No. 8 ¶ 13.) Plaintiffs allege 4 Defendant has a policy which allows residents to use a printer if needed. (Id.) When 5 Williams sought to do so, Rzepka asked Williams in a “quizzical, and inappropriate” tone 6 whether Williams lived at the Property. (Id.) This instance is more closely aligned with a 7 disparate impact theory, as it involves the enforcement of a facially neutral policy (the 8 requirement that a person be a resident in order to use a printer in the office). Defendant 9 argues that this incident “does not sound in discrimination [because] Defendant was 10 enforcing a neutral policy by inquiring as to Williams’ resident status, as tenancy was a 11 prerequisite for printer use.” (Doc. No. 10 at 6.) The Court agrees. It is not plausible to 12 infer that Defendant’s enforcement of its printing policy has a racially discriminatory 13 effect. 14 ii. Disparate Treatment 15 Disparate treatment occurs when “a protected group has been subjected to explicitly 16 differential or discriminatory treatment.” Cabrera, 977 F. Supp. 2d at 976 . The FAC 17 alleges that “Defendants . . . have engaged in a pattern or practice of discrimination against 18 plaintiffs because of race, . . . in the operation of the Subject Property.” (Doc. No. 8 ¶ 8.) 19 The Court finds this statement to be conclusory, and thus, need not accept it as true. See 20 Iqbal, 556 U.S. at 678 (finding that a court need not accept “legal conclusions” as true). 21 However, the allegation reasonably suggests that Plaintiffs’ claim appears to be based on 22 a disparate treatment theory, as it alleges intentional discrimination because of Plaintiffs’ 23 race. 24 Disparate treatment claims are analyzed under the standards developed in connection 25 with Title VII of the Civil Rights Act of 1964. Mustafa v. Clark County Sch. Dist., 157 26 F.3d 1169 , 1180 n.11 (9th Cir. 1998); Gamble, 104 F.3d at 304–05 (finding that courts 27 employ a three-part burden-shifting framework as articulated in McDonnell Douglas). A 28 plaintiff may succeed in persuading the court that she has been a victim of intentional 1 discrimination, “directly by persuading the court that a discriminatory reason more likely 2 motivated the [defendant].” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 , 256 3 (1981). “Proof of discriminatory motive is crucial to a disparate treatment claim.” Gamble, [4] 104 F.3d at 305 (internal quotation marks and citations omitted). “An individual suffers 5 disparate treatment when he or she is singled out and treated less favorably than others 6 similarly situated on account of race.” Jauregui v. City of Glendale, 852 F.2d 1128 , 1134 7 (9th Cir. 2012) (internal quotation marks and citations omitted). Direct or circumstantial 8 evidence may be used to show intentional discrimination. Harris v. Itzhaki, 183 F.3d 1043 , 9 1052 (9th Cir. 1999). 10 At this stage, in order to proceed under a disparate treatment theory, the FAC must 11 plausibly allege that Defendant acted with discriminatory motive. Despite its inclusion of 12 detailed facts, there are no facts in the FAC which would allow this Court to infer that 13 Defendant intentionally discriminated against Plaintiffs because of their race. Plaintiffs do 14 not allege that they were treated any differently than any other resident, let alone a resident 15 of another race. (See generally Doc. No. 8.) 16 There are only three specific incidents described in the FAC in which race was either 17 directly or indirectly addressed. The first incident occurred when during a conversation 18 between Rzepka and Williams, “Rzepka asked Williams in an odd way, ‘What kind of 19 name is that?’” (Doc. No. 8 ¶ 14.) Williams “responded in a friendly tone, ‘A black name.’” 20 (Id.) While the Rzepka’s question may have been distasteful, distasteful comments do not 21 necessarily rise to the level of direct evidence of discrimination. See Hadeed v. Abraham, [22] 265 F. Supp. 2d 614, 622 (E.D. Va. 2003), aff’d, 103 Fed. Appx. 706 (4th Cir. 2004) 23 (holding that defendant’s reference to the plaintiffs as “the girls” in gender-based FHA case 24 “may be distasteful, but it does not rise to the level [of direct evidence] of discrimination”). 25 The first incident addressed here is not direct evidence of discriminatory intent. 26 The second incident occurred when Rzepka stated “[t]his is not the ghetto” when 27 explaining why Williams’ car was towed. (Id. ¶ 16.) The Eighth Circuit has held that a 28 defendant’s statement is not direct evidence of defendants’ illegal intent unless it shows “a 1 specific link between the alleged discriminatory animus and the challenged decision.” 2 Gallagher v. Magner, 619 F.3d 823 , 831–32 (8th Cir. 2010) (direct evidence does not 3 include “stray remarks . . ., statements by nondecisionmakers, or statements by 4 decisionmakers unrelated to the decisional process itself”). If this Court were to follow the 5 standard outlined by the Eighth Circuit, Rzepka’s statement that “This is not the ghetto” 6 might be considered direct evidence of discriminatory, as it could reasonably be inferred 7 that the statement was made by a decisionmaker in relation to the decisional process of 8 whether to tow the vehicle. Rzepka was the manager of the Property and made the comment 9 to Williams when explaining why the car was towed. In their opposition, Plaintiffs argue 10 that “[a] reasonable jury could readily ascribe the use of the word ‘ghetto’ to an African11 American as racial in nature.” (Doc. No. 13 at 5.) However, the FAC does not allege this 12 contention. See AGC, 459 U.S. at 526 (“It is not . . . proper to assume that [the plaintiff] 13 can prove facts that it has not alleged”); see also Swartz v. KPMG LLP, 476 F.3d 756 , 763 14 (9th Cir. 2007) (“In ruling on a 12(b)(6) motion, a court may generally consider only 15 allegations contained in the pleadings.”). 16 The third occurred when one of the repairmen said to Williams: “‘Don’t say 17 anything, but your manager was talking very negatively about you. She doesn’t like you. 18 She told us that you are black, and you’ll go off on her. She told us to watch-out.’” (Doc. 19 No. 8 ¶ 27.) The third instance is the most persuasive fact that might lead to a showing of 20 racially motivated intent by Defendant; however, standing alone, this comment is 21 insufficient for the Court to infer that the actions taken by Defendant were racially 22 motivated. 23 These three instances alone, coupled with Plaintiffs’ failure to allege they were 24 treated differently than others similarly situated, do not support an inference of 25 discrimination disparate treatment theory above the speculative level as required by Rule 26 8. See Twombly, 550 U.S. at 555 . 27 Plaintiffs next contend that Defendant discriminated against Plaintiffs by conducting 28 an irregular inspection of Plaintiffs’ home on September 27, 2018. (Doc. No. 13 at 5–6.) 1 Plaintiffs allege Defendant deceived Plaintiffs as to the purpose of the inspection. (Doc. 2 No. 8 ¶¶ 18–20.) Plaintiffs contend this instance was “apparent retaliation” for Williams’ 3 complaining about her car being towed. (Doc. No. 13 at 6.) Thus, this allegation should be 4 analyzed under a disparate treatment theory as it is based on the premise that Rzepka acted 5 intentionally. Plaintiffs’ allegation that the instance was “apparent retaliation” is too bare 6 and conclusory to be “entitled the assumption of truth.” See Iqbal, 556 U.S. at 678–79, 681. 7 Upon learning of the inspection, Williams emailed Trinh and informed her that she did not 8 feel safe with Rzepka there and felt that Rzepka was harassing them. (Doc. No. 8 ¶ 20.) On 9 October 1, 2018, Trinh responded to Plaintiff via email, and offered to allow Plaintiffs to 10 move out without any penalties or turnover charges. (Doc. No. 8 ¶ 21.) In their opposition, 11 Plaintiffs argue “[t]his ‘offer’ to move out was the culmination of Ms. Rzepka’s shaded 12 racial attitudes, and retaliatory conduct related thereto.” (Doc. No. 13 at 6.) However, this 13 contention is unsupported by the allegations made in the FAC. Defendant notes that the 14 FAC shows that Williams was generally combative and aggressive with Rzepka. (See Doc. 15 No. 8 ¶¶ 14, 19, 20.) The Court agrees. Even if a plaintiff alleges facts consistent with 16 illegal behavior, if there is an “obvious” and legal alternative for the conduct, the facts 17 alleged by plaintiff will not “plausibly establish” the improper purpose. See Iqbal, 556 U.S. 18 at 682 (holding that an allegation that plaintiff’s arrest was the result of unlawful 19 discrimination against Muslim men was not “plausible” in view of more likely explanation 20 for arrest). 21 Here, it is plausible that Defendant’s October 1, 2018 offer to allow Plaintiffs to 22 move out without a penalty was as a result of Plaintiffs’ discontent with the Property’s 23 management, fear for their safety, and feeling that they were being harassed by Rzepka. 24 Thus, it is not plausible, based on the face of Plaintiffs’ complaint, that the inspection or 25 Defendant’s subsequent offer to allow Plaintiffs to move out was a violation of the FHA. 26 See Swartz, 476 F.3d at 763 (“In ruling on a 12(b)(6) motion, a court may generally 27 consider only allegations contained in the pleadings.”). Additionally, there are no 28 allegations to support that this behavior was selectively conducted against anyone else, 1 regardless of race. Thus, it is not plausible that this incident was a result of disparate 2 treatment. 3 Lastly, on April 9, 2019, after several months of no contact, Defendant sent Williams 4 a 60-day notice to terminate Plaintiffs’ tenancy, indicating that Williams would be evicted 5 if she did not comply with the Notice of Termination. (Doc. No. 8 ¶ 30.) When asked the 6 reason for the Notice of Termination, Trinh refused to provide a reason and stated that “it 7 was up to the team’s discretion” about whether to renew a lease. (Id.) Williams responded 8 that she did not do anything wrong and believed that harassment was forcing her to move. 9 (Id.) Trinh responded that she did not believe Williams had done anything wrong, but 10 believed it was best as Williams did not seem satisfied with her residency. (Id.) Plaintiffs 11 contend “[a] reasonable jury could readily find that a landlord evicting a tenant who always 12 paid her rent on time, and who admittedly had done nothing wrong, was being removed 13 due to Ms. Rzepka’s dislike of her, which dislike was clearly tinged with racial attitudes.” 14 (Doc. No. 13 at 8.) Even viewed in a light most favorable to Plaintiffs, it is implausible that 15 the Notice of Termination was a based on discriminatory intent. 16 A complete reading of the FAC shows that over the course of Plaintiffs’ tenancy, the 17 relationship between Plaintiffs and Defendant significantly deteriorated. (See generally 18 Doc. No. 8.) Plaintiffs’ own admissions undermine their claim of discriminatory intent. 19 The FAC alleges several instances in which Williams acted with hostility towards Rzepka, 20 Trinh, and various other employees. (Id.) As discussed above, allegations of wrongdoing 21 will be deemed “implausible” if there are “obvious alternative explanation[s]” for the facts 22 alleged indicating lawful conduct, not the unlawful conduct urged by the plaintiff. Iqbal, 23 556 U.S. at 682. Here, the deterioration of the relationship between Plaintiffs and 24 Defendant is an obvious, alternative, and legal explanation for the termination of Plaintiffs’ 25 tenancy. Thus, the Court must find that Plaintiffs’ FHA cause of action, as well as their 26 FEHA and Unruh Act claims, fail under a disparate treatment theory. Accordingly, the 27 Court GRANTS Defendant’s motion to dismiss as to the FHA, FEHA, and Unruh Act 28 claims. 1 B. Supplemental Jurisdiction Over UCL and Negligence Claims 2 In addition to the claims discussed above, Plaintiffs claim Defendant violated the 3 California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et. seq. (“UCL”) by 4 engaging in unfair business practices. (Doc. No. 8 ¶ 43.) Additionally, Plaintiffs claim 5 Defendant were negligent in operating the Property free from unlawful discrimination. (Id. 6 ¶ 45.) 7 The Court acquired original subject matter jurisdiction over this action because 8 Plaintiffs alleged a federal claim of an FHA violation. See 28 U.S.C. § 1331 . The Court 9 “has supplemental jurisdiction over all other claims that are so related to claims in the 10 action within . . . original jurisdiction that they form part of the same case or controversy 11 under Article III of the United States Constitution.” 28 U.S.C. §1367 (a). “A state law claim 12 is part of the same case or controversy when it shares a ‘common nucleus of operative fact’ 13 with the federal claims and the state and federal claims would normally be tried together.” 14 Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004). Defendant does not contend 15 that the state law claims do not form part of the same case or controversy, as all claims are 16 based on the same facts. Therefore, the Court has supplemental jurisdiction over the state 17 law claims. 18 Defendant moves the Court to exercise its discretion under §1367(c) to decline to 19 exercise supplemental jurisdiction. “The district courts may decline to exercise 20 supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has 21 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §1367 (c). As 22 discussed above, Plaintiffs’ federal FHA is dismissed. As such, the claim under which the 23 Court had original jurisdiction is dismissed. Thus, the Court has discretion to decline to 24 exercise supplemental jurisdiction over Plaintiffs’ state law claims. Here, the Court finds 25 it appropriate to dismiss Plaintiffs’ state law claims, without prejudice, as a result of 26 dismissal of the FHA claim. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1998) 27 (“when the federal-law claims have dropped out of the lawsuit in its early stages and only 28 state-law claims remain, the federal court should decline the exercise of jurisdiction by 1 dismissing the case without prejudice”); see also United Mine Workers of America v. 2 || Gibbs, 383 U.S. 715, 726 (1966) (“if the federal claims are dismissed before trial, even 3 though no insubstantial in a jurisdictional sense, the state claims should be dismissed as 4 || well.”). Thus, the Court GRANTS Defendant’s motion to dismiss Plaintiffs’ UCL and 5 ||negligence claims. 6 C. Leave to Amend 7 The Court next considers whether to grant leave to amend. “The court should freely 8 || give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Court has 9 || “broad discretion in deciding whether to grant leave to amend and whether to dismiss an 10 action with or without prejudice.” WPP Lux. Gamma Three Sarl v. Spot Runner, Inc., 655 11 || F.3d 1039, 1058 (9th Cir. 2011), overruled in part, Lorenzo v. SEC, 139 S. Ct. 1094 , 1100 12 ||(2019). “[C]ourts are only required to grant leave to amend if a complaint can possibly be 13 || saved.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th. Cir. 2000) (internal quotation marks and 14 citations omitted). With sufficient pleadings, the Court finds it is possible for Plaintiffs to 15 |/allege that Defendant discriminated against them on the basis of race. Thus, the Court 16 || GRANTS Plaintiffs leave to amend. 17 il. CONCLUSION 18 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss 19 || WITH LEAVE TO AMEND. Plaintiffs must file an amended complaint by thirty (30) 20 || days from the date of this Order. [21] 22 IT IS SO ORDERED. [23] 24 Dated: February 26, 2020 © 25 Hon. Anthony J. attaglia 26 United States District Judge