Birdwell v. Avalonbay Cmtys.

Full title: SARAH BIRDWELL, Plaintiff, v. AVALONBAY COMMUNITIES, INC., Defendant.

Court: United States District Court, Northern District of California

Date published: Jul 29, 2024

21-cv-00864-JST (N.D. Cal. Jul. 29, 2024)

Opinion

21-cv-00864-JST

07-29-2024

SARAH BIRDWELL, Plaintiff, v. AVALONBAY COMMUNITIES, INC., Defendant.

JON S. TIGAR, UNITED STATES DISTRICT JUDGE

ORDER GRANTING IN PART AND DENYING IN PART CROSS MOTIONS FOR SUMMARY JUDGMENT

Re: ECF Nos. 85, 89

JON S. TIGAR, UNITED STATES DISTRICT JUDGE

Before the Court are the parties' cross motions for summary judgment. The Court will grant each motion in part and deny it in part.

I. BACKGROUND

A. Factual Background

Plaintiff Sarah Birdwell has a disability that causes her to have limited use of her extremities. Perry Depo., ECF No. 88-2 at 21:23-22:2, 22:10-19. As a result of this condition, she uses a wheelchair for mobility and requires assistance from in-home caregivers. Id. Her disability is “obvious.” Id. at 22:10-11.

Defendant AvalonBay Communities, Inc. is a publicly traded real estate investment trust whose purpose is to “develop, redevelop, acquire, own and operate multifamily apartment communities[.]” ECF No. 88-10 at 4; see ECF Nos. 90-1 at 56:1; 90-2. AvalonBay owns or holds an ownership interest in approximately 275 apartment communities containing 82,411 apartment homes. ECF No. 88-10 at 4.

AvalonBay developed, owns, and manages the Avalon Walnut Creek complex where Birdwell has resided since 2010. See Birdwell Depo., ECF No. 90-6 at 83:17-19. Avalon Walnut Creek is a combined residential and commercial complex that was constructed in two phases, termed Phase I and Phase II. ECF No. 87 ¶ 7.

Avalon Walnut Creek received bond financing from Contra Costa County for the construction of its Phase I facilities. ECF No. 88-14 at 3. The bond covenants require AvalonBay to provide 20% of the Phase I apartment units at an affordable, below market rate (“BMR”) rent, with the maximum rent for each size unit set annually by the County according to the area median income level. ECF No. 90-4 at 1. Accordingly, part of AvalonBay's business includes renting apartments at lower than market value rents pursuant to this BMR program. Bass Depo., ECF No. 88-3 at 39:24-11.

1. Rental Unit Accommodation Request

In 2010, Birdwell was notified that she was eligible to receive a unit at Avalon Walnut Creek through the BMR program. Birdwell Depo., ECF No. 90-6 at 59:10-23. Property manager Matthew McVicker showed Birdwell a one-bedroom unit. Birdwell Depo., ECF No. 88-7 at 61:8- 62:13. Birdwell testified that during the tour, it became clear that she could not maneuver her wheelchair freely in the unit, particularly in the kitchen and in the bathroom, which was too small for her wheelchair to turn around. Birdwell Depo., ECF No. 90-6 at 64:12-21, 65:2-18. She told McVicker that she could not use the unit and asked him to call when he had an accessible unit. Birdwell Depo., ECF No. 90-6 at 75:6-9. She testified that McVicker told her that instead, he would assign her a larger, two-bedroom BMR unit as an accommodation of her disability. Birdwell Depo., ECF No. 88-7 at 79:25-80:10; see also Preston Depo., ECF No. 88-6 at 27:11- 28:1, Ex. 30-31.

McVicker and Birdwell did not discuss the rental price for either a one- or two-bedroom unit at that time. Birdwell Depo., ECF No. 90-6 at 80:11-81:1, 108:2-13. Because McVicker offered the two-bedroom unit as a reasonable accommodation for her disability, however, Birdwell believed that she would pay the one-bedroom BMR rate. Birdwell Depo., ECF 88-7 at 79:25- 80:22; Birdwell Depo., ECF No. 90-6 at 80:23-81:9, 108:5-13; see also Preston Depo., ECF No. 88-6 at 21:14-22:4; Perry Depo., ECF No. 88-2 at 21:23-22:2. The schedule of BMR rental rates was not available for Birdwell's reference at the time she accepted the apartment. See Birdwell Depo., ECF No. 90-6 at 108:14-109:22; Preston Depo., ECF No. 88-6 at Ex. 30-31. AvalonBay usually pays the cost of reasonable accommodations that it grants. Perry Depo., ECF No. 88-2 at 15:5-9.

AvalonBay normally does not provide tenants with written confirmation of accommodation requests or decisions on those requests, and Birdwell did not receive any written confirmation of her accommodation. Preston Depo., ECF No. 90-7 at 25:24-26:25. McVicker also failed to document the accommodation in internal records. Preston Depo., ECF No. 88-6 at 26:7-13; Perry Depo., ECF No. 90-8 at 37:3-12. AvalonBay's corporate designees testified that this oversight was not surprising because McVicker generally did not keep accurate records. Preston Depo., ECF No. 88-6 at 27:1-10; see also Perry Depo., ECF No. 90-8 at 37:9-12. Finally, Birdwell's lease did not indicate either that she had received an accommodation or that she was to pay less than the two-bedroom BMR rent. Birdwell Depo., ECF No. 90-6 at 108:23-109:5.

For the next several years, Birdwell resided in the two-bedroom unit believing that she was paying the one-bedroom below-market rate. Birdwell Depo., ECF No. 88-7 at 79:25-80:22. Throughout her tenancy at Avalon Walnut Creek, Birdwell has always timely paid her rent. Birdwell Depo., ECF No. 90-6 at 105:23-24.

In 2016, AvalonBay discovered inconsistencies in the records kept by its previous management and audited the BMR Program. Perry Depo., ECF No. 90-8 at 26:17-21, 27:16-19; ECF No. 88-13 at 4. AvalonBay realized that Birdwell was a single person living alone in a two-bedroom BMR apartment. Perry Depo., ECF No. 90-8 at 27:1-5. This arrangement violated AvalonBay's occupancy policy, which sets a minimum occupancy of two persons for two-bedroom BMR units. See ECF No. 90-4 at 4; Brannan Depo., ECF No. 90-5 at 15:17-25. As a one-person household, Birdwell only qualified for a studio or one-bedroom BMR unit. Brannan Depo., ECF No. 90-5 at 18:13-22.

AvalonBay served Birdwell with a notice requiring her to correct the violation of its occupancy policy or move out within sixty days. Perry Depo., ECF No. 88-2 at 27:16-28:19; Birdwell Depo., ECF No. 88-7 at 101:20-102:12. In response, Birdwell explained that in 2010, McVicker had granted her a reasonable accommodation allowing her to lease the two-bedroom unit due to her need for an accessible unit. Perry Depo., ECF No. 88-2 at 29:14-18; Birdwell Depo., ECF No. 88-7 at 103:19-25.

AvalonBay had no record of the accommodation and asked Birdwell to submit a written accommodation request and a letter from one of her in-home health aides. Perry Depo., ECF No. 88-2 at 29:19-30:15, Ex. 24; Birdwell Depo., ECF No. 88-7 at 103:19-104:10. AvalonBay advised Birdwell to base the request on her need for an overnight aide. Birdwell Depo., ECF No. 88-7 at 103:19-104:10. Birdwell did so, also mentioning the need for an accessible bathroom that had prompted her original accommodation. Birdwell Depo., ECF No. 88-7 at 104:11-12.

AvalonBay recorded that Birdwell's accommodation request was granted. Perry Depo., ECF No. 88-2 at 30:7-15, Ex. 24; see also Preston Depo., ECF No. 88-6 at 13:15-14:7. Birdwell was permitted to continue living in the two-bedroom unit. See Preston Depo., ECF No. 88-6 at 13:25-14:7.

AvalonBay's reasonable accommodation form, completed by its legal department, contains options to mark a request as an accommodation, for which AvalonBay (the “community”) bears the cost, or a modification, for which the tenant bears the cost. Smith Depo., ECF No. 88-5 at 47:10-48:15. The form approving Birdwell's request indicates that Birdwell's accommodation request was granted as “community to bear cost,” not “tenant to bear cost,” and estimates that the cost of the accommodation will be “$0.00.” Perry Depo., ECF No. 88-2 at Ex. 24; see also Perry Depo., ECF No. 90-8 at 30:16-31:2. Nonetheless, AvalonBay continued to charge Birdwell the rate for a two-bedroom BMR apartment, even though it had determined to grant her accommodation request at no cost to her. AvalonBay does not know if it informed Birdwell that it would not pay the cost of the rent differential when it notified her that it had granted the request. Perry Depo., ECF No. 88-2 at 34:13-23. AvalonBay documented Birdwell's accommodation request as “an [exception] to our affordable housing occupancy standard [] allow[ing] her to live alone in a two-bedroom apartment.” Perry Depo., ECF No. 90-8 at 30:7-13.

In 2018, a conversation with a neighbor about their respective rent rates prompted Birdwell to request a copy of the BMR rent schedule from AvalonBay. Birdwell Depo., ECF No. 88-7 at 110:1-24; Preston Depo., ECF No. 90-7 at 15:14-24; see Preston Depo., ECF No. 88-6 at Ex. 31. Birdwell learned that AvalonBay had been charging her more than the regular BMR one-bedroom rate. Birdwell Depo., ECF No. 88-7 at 110:14-24; Preston Depo., ECF No. 88-6 at 21:14-22:10, Exs. 30-31. AvalonBay confirmed that it was charging Birdwell the two-bedroom below-market rate. Preston at 22:5-10, 25:17-23; see also ECF No. 84 ¶ 12. Birdwell asserted that she should be charged the one-bedroom below-market rate because, if not for her disability accommodation, she would occupy a one-bedroom unit. Preston Depo., ECF No. 88-6 at 21:14-22:10, Exs. 30-31; see Id. at Ex. 30 (“My reasonable accommodation, that was given by [McVicker] upon move-in, was to be charged a one bedroom rate while occupying a two bedroom apartment. . . . If I did not have a disability I would not need a two bedroom unit, hence the reasonable accommodation request.”).

AvalonBay confirmed that Birdwell lived in the two-bedroom unit as a reasonable accommodation but maintained that “AvalonBay doesn't have to pay for the accommodation.” Preston Depo., ECF No. 88-6 at 30:6-13. AvalonBay offered Birdwell the option of staying in her two-bedroom unit at the two-bedroom rate or being placed on a waitlist for a one-bedroom BMR unit with “a larger bathroom that was more accessible to [Birdwell's] wheelchair.” Preston Depo., ECF No. 88-6 at 30:2-23. Birdwell remained in her two-bedroom apartment. See Birdwell Depo., ECF No. 90-6 at 83:17-20.

In 2020, through counsel, Birdwell sent a letter to AvalonBay asserting that charging her for the cost of her reasonable accommodation violated her civil rights under federal and state law. ECF No. 88-12. AvalonBay then processed Birdwell's request for the correction of her rental rate as a request for a new disability accommodation and denied the request. ECF No. 88-11; ECF No. 90-9. AvalonBay also responded to Birdwell's letter, maintaining its position that it was correctly charging Birdwell the full cost of a two-bedroom BMR unit. ECF No. 88-13. In this correspondence, AvalonBay asserted that “forgoing the increased value of a two-bedroom unit indefinitely is an unreasonable request as it poses an undue financial and administrative burden and changes the nature of their business.” ECF No. 88-13 at 5; Bass Depo., ECF 88-3 at Ex. 39. AvalonBay stated that it had not charged Birdwell for a disability-related accommodation. Bass Depo., ECF No. 88-3 at Ex. 38.

After filing this lawsuit, Birdwell took the deposition of C.J. Bass, AvalonBay's corporate representative. ECF No. 88-3. Bass testified that he “wasn't sure” whether AvalonBay now contended that granting Birdwell a two-bedroom apartment at a one-bedroom rate would constitute an undue financial or administrative burden, id. at 34:10-22; did not know why AvalonBay had previously taken that position, id. at 34:23-35:4; did not know how it would change the nature of AvalonBay's business to bear the difference in cost between the two units, id. at 35:5-8; and could not recall why AvalonBay had stated in 2020 that the accommodation cost Birdwell nothing, id. at 37:4-22.

During the litigation, AvalonBay stipulated that paying the difference in rent between a one- and two-bedroom unit would not cause it undue financial burden:¹

1 In 2022, AvalonBay's net income after taxes was approximately $1.36 billion. ECF No. 88-15 at 11.

Defendant does not dispute it has sufficient net worth to pay for Plaintiff's reasonable accommodations claimed in this action. Defendant does not raise any difficulty to pay claim in defense of Plaintiffs claims in this action. Defendant also stipulates that paying the cost of the accommodations at issue would not be difficult in any way or that the monetary amount of the cost of the accommodation in itself causes an undue financial burden.

ECF No. 88-14.

Birdwell continues to occupy the two-bedroom unit and pay the two-bedroom below-market rate monthly. See Birdwell Depo., ECF No. 90-6 at 14:20-24, 105:23-24. The difference between the cost of a one-bedroom BMR unit and the two-bedroom rate that AvalonBay charged Birdwell between 2010 and July 2023 totals $17,615.67. See Brannan Depo., ECF No. 88-4 at 19:16-22:6, Ex 34. As of July 2023, the monthly cost difference between the unit rates was $156. See Id. at Ex. 34.

2.Request for Accommodation During Power Outage

During October 2019, wildfires in Northern California led to intermittent power outages that affected Avalon Walnut Creek. Birdwell Depo., ECF No. 90-6 at 119:7-21; Perry Depo., ECF No. 90-8 at 37:17-38:3. Birdwell alleges that “she was trapped in her unit for three straight days” because the elevators in her building were inoperative during these blackouts. ECF No. 81 ¶ 17. Birdwell contacted AvalonBay to request assistance exiting her apartment while the elevator was out of service. Birdwell Depo., ECF No. 90-6 at 119:7-21 (“I wanted them to see if we could come up with a way that I could exit and enter the building during this outage.”). After power was restored and after consulting the fire department, AvalonBay informed Birdwell that she should call the fire department for assistance if she needed to leave her apartment during a power outage in the future. Perry Depo., 90-8 at 40:1-41:21. Birdwell alleges that because she “could not envision calling the fire department twice a day for assistance,” she “remain[ed] in her apartment until the power returned.” ECF No. 81 ¶ 20.

3.Accessibility

Birdwell also raises claims concerning the accessibility of certain public areas within Avalon Walnut Creek. Avalon Walnut Creek Phase I opened for first occupancy in 2010 and included an apartment building, a parking garage, retail spaces, and the leasing office. ECF No. 87 ¶ 7. Phase II opened in 2020 and consisted of additional amenities available to all tenants, such as a second swimming pool and pool restrooms. See ECF No. 87 ¶ 7. AvalonBay relied on the California Building Code (“CBC”) 2001 accessibility standard in constructing Phase I and the CBC 2016 Standard in constructing Phase II. Fernandez Depo., ECF No. 88-1 at 24:20-23, 32:12-20.

AvalonBay has stipulated that the following areas of Avalon Walnut Creek are “public accommodations within the meaning of that term as used in ADA and California [Disabled Persons Act]”:

• Retail parking in each garage

• Retail areas

• Path of travel from retail parking to retail areas

• Leasing office

• Leasing office restroom

• Lobby in front of leasing office

• Leasing office parking

• Path of travel from leasing office areas and lobby to parking for leasing office and to the public right of way.

In addition, the Pool Lounge at Phase II - l000 Harvey and Community Lounge at Phase II - l000 Harvey are available for rent by the public upon arrangement with Avalon Walnut Creek. The path of travel from retail parking or the public right of way to each of these lounges would be part of the area open to the public when the lounges are rented to the public.

ECF No. 88-14 at 3.

Carlos Fernandez, AvalonBay's designated representative, testified that AvalonBay does not know which standards were applied to ensure ADA and FHAA compliance. Fernandez Depo., ECF No. 88-1 at 33:9-16. The construction at Avalon Walnut Creek was also governed by two consent decrees, into which AvalonBay entered as a result of other accessibility lawsuits, that mandate compliance with the ADA and FHAA. Id. at Ex. 9 App. 2, Ex 10.

Birdwell retained Paul Bishop, an architect and California Certified Access Specialist, to inspect the Avalon Walnut Creek facilities. ECF No. 87 ¶¶ 1-4. Bishop reviewed the facilities' compliance with three sets of standards: the ADA Accessibility Standards (ADAAS) for areas open to the public; the 2006 International Building Code and ICC/ANSI A117.1-2003, a safe harbor for residential construction in compliance with the FHAA; and CBC Title 24 for both public accommodation areas and residential facilities. Bishop relied on CBC 2001 for Phase I and CBC 2016 for Phase II. Id. ¶¶ 15-16.

In the stipulated public accommodations areas, all of which are located at Phase I, Bishop identified fourteen architectural elements that did not comply with ADA standards. Id. ¶ 13. Bishop also identified forty-one elements that were noncompliant with the FHAA, id. ¶ 23, and thirty-three elements noncompliant with the CBC, id. ¶ 17.

Birdwell testified that she has used the swimming pool and the pool restroom, Birdwell Depo., ECF No. 90-6 at 129:6-10 and 134:12-20, that she is able to cross the threshold at the lobby entry door, id. at 137:6-10, and that she has used the leasing office itself, id. at 137:11-18, 143:3-6, and the leasing office restroom, id. at 138:5-25.

B. Procedural Background

Because the history of this action is detailed in the Court's September 27, 2023 order granting in part and denying in part AvalonBay's motion to dismiss, ECF No. 80, the Court describes only subsequent developments here.

Birdwell filed her third amended complaint (“TAC”) on October 18, 2023. ECF No. 81. The TAC alleges violations of the Federal Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3601; Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12955; and Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51(b), for failure to bear the cost of her reasonable accommodation; and violations of Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181; and the Unruh Act §§ 51(b) and 51(f) for failing to remove physical barriers to accessibility within the complex. Id. AvalonBay filed its answer to the TAC on November 1, 2023. ECF No. 83.

On February 28, 2024, Birdwell moved for summary judgment on her claims alleging that (1) AvalonBay unlawfully charged her the cost of a disability accommodation; and (2) the facilities were designed and constructed with various physical barriers to access. ECF Nos. 85, 86. AvalonBay filed a response to Birdwell's motion as well as a cross-motion for summary judgment on all claims in the TAC on March 20, 2024. ECF No. 89. Birdwell filed her opposition to AvalonBay's motion and reply in support of her own motion on April 5, 2024. ECF No. 91. AvalonBay filed a reply in support of its motion on April 12, 2024. ECF No. 94.

On April 26, 2024, the National Apartment Association moved for leave to file a brief as amicus curiae. ECF No. 99. The Court granted leave on May 6, 2024. ECF No. 104.

II. JURISDICTION

The Court has jurisdiction over Birdwell's claims under 28 U.S.C. §§ 1331 and 1367(a).

III. LEGAL STANDARD

Summary judgment is proper when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record, including depositions, documents, . . . affidavits or declarations, stipulations (including those made for purposes of the motion only), . . . or other materials.” Fed.R.Civ.P. 56(c)(1)-(c)(1)(A). A party also may show that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B).

A dispute is genuine only if there is sufficient evidence for a reasonable trier of fact to resolve the issue in the nonmovant's favor, and a fact is material only if it might affect the outcome of the case. Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)). “In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). When cross-motions for summary judgment are filed, each motion is evaluated separately under this standard. See Comcast of Sacramento I, LLC v. Sacramento Metro. Cable Television Comm'n, 923 F.3d 1163, 1168 (9th Cir. 2019).

IV.DISCUSSION

A. Failure to Accommodate

Birdwell's claim that AvalonBay failed to provide a reasonable accommodation for her disability is common to her FHAA, FEHA, and Unruh Act § 51(b) claims. Accordingly, the Court sets forth the facts and contentions common to all claims before applying the law to the respective claims as appropriate.

1. Two-Bedroom Apartment Accommodation Request

As a threshold matter, the Court must determine the nature of Birdwell's accommodation request. Did Birdwell request a two-bedroom apartment as an accommodation, as Birdwell contends, or did she request a rent reduction, as AvalonBay argues?

Birdwell was offered in 2010, and again requested in 2016, a two-bedroom unit as an accommodation for her disability, given her need for a wheelchair-accessible unit and space for her overnight aide. See, e.g., ECF No. 86 at 9-10. Although AvalonBay permitted to Birdwell to occupy the two-bedroom unit, Birdwell alleges that AvalonBay has effectively denied her accommodation request by requiring her to pay the difference in rental cost throughout her tenancy. See, e.g., ECF No. 81 at ¶ 13 (“‘Granting' an accommodation but expecting the tenant to pay for it is actually a denial of the accommodation.”). She argues that the law requires the landlord to bear the cost of an accommodation unless the landlord shows that the cost presents an undue financial burden, which AvalonBay has not done. See, e.g., ECF No. 86 at 18-19.

AvalonBay agrees that the two-bedroom unit is a reasonable accommodation and that it can provide it. See, e.g., ECF No. 89 at 12 (“Prior to her move-in, she requested and received a reasonable accommodation in the form of an exception to the property's BMR occupancy policy, allowing her to live in a two-bedroom unit as a single person.”); Preston Depo., ECF No. 88-6 at 18 (“The program allows one occupant per room at the minimum, however because you have an approved reasonable accommodation you have received approval to qualify for a two bedroom home as one occupant.”). It argues, however, that it satisfied its obligations under the disability laws by granting Birdwell's request for a two-bedroom apartment and waiving its minimum occupancy requirement. ECF No. 89 at 13. AvalonBay views Birdwell's assertion that it should have absorbed the cost of the rent increase resulting from the granted accommodation as a new, independent accommodation request for a “rent discount.” See, e.g., ECF No. 89 at 14. It argues that this separate accommodation is unnecessary and unreasonable for several reasons. ECF No. 89 at 10-20.

The Court agrees with Birdwell that the accommodation she requested was the ability to rent a two-bedroom apartment and that the question before the Court is whether AvalonBay should bear the cost of that accommodation-in other words, that this case is about a single accommodation request. The Court rejects AvalonBay's argument that Birdwell's request for two-bedroom apartment was one request, and her request that she pay rent at the one-bedroom rate was a separate or different request.

The parties' course of dealing supports this conclusion. After Birdwell learned in 2018 that she had been paying the two-bedroom rent rate, she immediately asserted that AvalonBay should have been charging her at the rate of the apartment she would have occupied but for her disability. See, e.g., Preston Depo., ECF No. 88-6 at Ex. 30-31 (email messages in which Birdwell states that she “was completely unaware that [she had] been paying the wrong rental rate this entire time” and requests AvalonBay “rectify” the rate to remove the surcharge). At that time, AvalonBay did not treat Birdwell's request that AvalonBay correct her rental rate as a new accommodation request. See id.; see also Birdwell Depo., ECF No. 90-6 at 105:12-22. Rather, AvalonBay responded that although it was required to the grant the two-bedroom unit accommodation, it would not pay for it. Preston Depo., ECF No. 88-6 at 30:6-13 (“Q: And Avalon's position on that is while they are obligated-and I'm just going to quote you-‘While we are obligated to accommodate your need for a two-bedroom unit-more specifically, for a unit that accommodates your needs with respect to the size of the bathroom-AvalonBay doesn't have to pay for the accommodation.' Is that right? A: That's right.”). Only in 2020, after Birdwell's counsel raised the issue again, did AvalonBay characterize the request as a new, independent request for a “rent discount,” which it denied on the ground that it was not necessary for Birdwell's disability and was unreasonable. See ECF Nos. 88-11; 90-9.

That Birdwell requested only one accommodation, and not two, is also supported by every in-circuit reported case the Court has located, all of which consider the cost of an accommodation as part and parcel of an accommodation request, and not as an additional or separate request. See, e.g., United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994) (Mobile Home I) (considering as one accommodation tenant's request that home health aide be allowed to use parking space without paying parking fee); Rodriguez v. Morgan, No. CV 09-8939-GW CWX, 2012 WL 253867, at *7 (C.D. Cal. Jan. 26, 2012) (considering as one accommodation tenant's request to terminate lease early and waiver of the termination fee); Holland v. Related Cos., Inc., No. C 15-03220 JSW, 2015 WL 4498776, at *3 (N.D. Cal. July 23, 2015) (considering as one accommodation the requirement that defendant move plaintiffs “to an upper apartment in their building, free of construction noise, for the duration of their lease at their current rental rate”); Skochko v. Mercy Hous., Inc., No. 20-CV-08659-JSC, 2022 WL 3357836, at *9 (N.D. Cal. Aug. 15, 2022) (considering as one accommodation the provision of a hospital bed and the cost to rent that bed). As the Ninth Circuit expressed in Mobile Home I, “We find the effort to distinguish accommodations that have a financial cost from other accommodations unconvincing.” 29 F.3d at 1416.

Beyond the Ninth Circuit, Bentley v. Peace and Quiet Realty 2 LLC, 367 F.Supp.2d 341 (E.D.N.Y. 2005), is particularly on point. In that case, a tenant living on the fourth floor of a rent-stabilized apartment could no longer walk up the stairs due to a disability. As an accommodation, she requested to move to a vacant first-floor apartment for the same amount of rent. She filed suit after the landlord refused to provide a first-floor apartment at her original rent rate. The landlord moved to dismiss on the basis that it had complied with the FHAA by offering her the first-floor apartment at the maximum legal rent. Id. at 346-47. The district court held that: (1) the tenant's request to “swap” apartments was within scope of accommodations contemplated by FHAA; (2) the fact that the request included no rent increase did not remove it from the scope of the FHAA; and (3) the requested accommodation was not automatically rendered unreasonable under the FHAA by fact that it included no rent increase. See Id. at 346-49. The court emphasized that “it is the housing provider, and not the disabled individual who is potentially required to assume the costs of a proposed accommodation.” Id. at 347.

Like the plaintiff in Bentley, Birdwell “seeks an accommodation for her disability without being forced to assume additional rental expenses. This is exactly the type of accommodation that falls with the purview of the FHAA.” Id. Having determined the proper way to characterize Birdwell's request for accommodation, the Court now turns to Birdwell's specific statutory claims.

a. FHAA

The Fair Housing Amendments Act (“FHAA”) makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of any person associated with that person.” 42 U.S.C. § 3604(f)(2)(A). Failure-to-accommodate claims arise from Section 3604(f)(3) of the FHAA, which prohibits the “refusal to make reasonable accommodations in rules, policies, or services, when such accommodations may be necessary to afford such persons equal opportunity to use and enjoy a dwelling . . . .” 42 U.S.C. § 3604(f)(3)(B). Under this subsection, “landlords must pay for reasonable accommodations . . . .” C.R. v. PLB Mgmt. LLC, No. 221CV03275ODWJEMX, 2023 WL 2167368, at *4 (C.D. Cal. Feb. 22, 2023) (quoting Fagundes v. Charter Builders, Inc., No. C07-1111, 2008 WL 268977, at *5 (N.D. Cal. Jan. 29, 2008) (internal quotation marks omitted)); see also Mobile Home I, 29 F.3d at 1417 (“[I]t is notable that, in contrast to § 3604(f)(3)(A), the reasonable accommodations requirement described in § 3604(f)(3)(B) does not specify that the handicapped resident should bear any financial burden imposed.” “[A] failure-to-accommodate plaintiff must show: 1) the existence of a covered handicap; 2) the defendant's knowledge or constructive knowledge of that handicap; 3) that an accommodation ‘may be necessary'; 4) that the accommodation is reasonable; and 5) that the defendant refused to make the necessary and reasonable accommodation upon request.” Salisbury v. City of Santa Monica, 998 F.3d 852, 857- 58 (9th Cir. 2021), cert. denied, 142 S.Ct. 771 (2022).

Here, the undisputed evidence shows that the first three elements are satisfied: (1) Birdwell is a person who lives with a covered disability, e.g., Perry Depo., ECF No. 88-2 at 22:10-19; (2) Defendants have knowledge of that disability, id.; and (3) a two-bedroom unit “may be necessary” for Birdwell in light of her disability, see, e.g., Preston Depo., ECF No. 88-6 at 13:15-14:7, 22:24-23:8. The Court therefore examines the remaining two factors to determine whether either party has established that it is entitled to summary judgment as a matter of law.

i. Whether the Accommodation is Reasonable

“[A]n accommodation is reasonable under the FHAA ‘when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens.'” Giebeler v. M & B Assocs., 343 F.3d 1143, 1157 (9th Cir. 2003). “[T]he history of the FHAA clearly establishes that Congress anticipated that landlords would have to shoulder certain costs involved, so long as they are not unduly burdensome.” Mobile Home I, 29 F.3d at 1416; see also Smith v. Powdrill, No. CV 12-06388 DDP RZX, 2013 WL 5786586, at*7 (C.D. Cal. Oct. 28, 2013) (“Here, Defendants argue that they denied the accommodation in part because of ‘potential extra costs' . . . However, the facts here do not indicate that such costs would be unduly burdensome.”).

AvalonBay argues that placing Birdwell in a larger apartment at the cost of a smaller one is not a reasonable accommodation because “(1) the rent reduction is not necessary to ameliorate any symptoms of Plaintiff's disability; (2) the rent reduction would be an undue financial burden to AvalonBay; and (3) the rent reduction would result in a fundamental alteration in the nature of AvalonBay's business.” ECF No. 89 at 9.

As an initial matter, AvalonBay's arguments all depend on the premise that Plaintiff's request for accommodation is only a request that she pay lower rent. As set forth above, that contention misapprehends the relevant question. AvalonBay does not dispute that a two-bedroom apartment may be necessary for Birdwell or that there is a causal link between her disability and the need for a two-bedroom apartment. See, e.g., Perry Depo., ECF No. 90-8 at 30:7-31:2 (describing AvalonBay's documented approval of Birdwell's request for a two-bedroom apartment); see also Bentley, 367 F.Supp.2d at 347 (holding that plaintiff's request for a first-floor apartment at no added cost to her was directly related to her inability to use stairs).²

2 AvalonBay also argues that Birdwell should pay the two-bedroom rate because she can afford it. ECF No. 89 at 14, 22. This argument gets the relevant inquiry backwards. The FHAA assigns the cost of a reasonable accommodation to the landlord by default; only if that cost is an undue burden to the landlord may the tenant be required to bear the cost. See, e.g., Mobile Home I, 29 F.3d at 1417-18; Giebeler, 343 F.3d at 1152; Fagundes, 2008 WL 268977, at *5. A plaintiff's ability to pay for the requested accommodation does not relieve the landlord from its duty either to bear the cost or make a showing of undue burden. Cf. McGary v. City of Portland, 386 F.3d 1259, 1264, 1267-68 (9th Cir. 2004) (rejecting the City's argument that it did not have to accommodate a plaintiff's financial inability to clear debris from yard by explaining that the plaintiff “did not allege that he was unable to hire someone to clean up his yard”; rather, he sought a deadline extension, which the City should have provided unless it was unreasonable); Sw. Fair Hous. Council v. WG Scottsdale LLC, No. CV-19-00180-TUC-RM, 2021 WL 857372, at *4, 13 (D. Ariz. Mar. 8, 2021) (failure-to-accommodate case where a housing provider refused to pay for a sign-language interpreter at the request of a deaf tenant, and the fact that the tenant ultimately hired his own interpreter did not undermine his claim).

Moreover, with regard to AvalonBay's first point, the Court finds that Birdwell is not required to show that an accommodation is “necessary to ameliorate any symptoms of Plaintiff's disability.” That language is taken from Ling v. City of Los Angeles California, No. 2:11-CV-07774-SVW-E, 2012 WL 12844757, at *5 (C.D. Cal. Nov. 14, 2012), which states that “the proposed accommodation must directly ameliorate a disability's effects” based on an out-of-circuit opinion from 1997. To the extent Ling requires more than the “causal link” described in Giebeler, 343 F.3d at 1155, it imposes a requirement on FHAA plaintiffs found nowhere in the statute or Ninth Circuit caselaw, and the Court declines to follow it.

As for AvalonBay's argument that charging a lower rent would be an undue financial burden, this case does not present that issue: AvalonBay has already agreed that it would not be a financial burden, undue or otherwise. AvalonBay stipulated that it “does not raise any difficulty to pay claim in defense of Plaintiffs' claims in this action,” that “paying the cost of the accommodations at issue would not be difficult in any way,” and that “the monetary amount of the cost of the accommodation in itself [does not] cause[] an undue financial burden.” ECF No. 88-14 at 3 (emphasis added). Thus, the defense of undue burden is not available in this case. There are cases in which landlords have been required to allow disabled tenants to occupy a more expensive unit at a cheaper unit's rent, in which courts have had to examine whether the reduction in the landlord's income was unduly burdensome. See Holland, 2015 WL 4498776, at *3(finding that “the increased financial burden on Defendants for letting Plaintiffs stay in the new apartment through the end of their lease in December” at the defendants' sole cost “would be negligible.”). This is not one of those cases, however, because AvalonBay stipulated that issue away.

AvalonBay also argues that renting Birdwell a two-bedroom BMR unit at the cost of a one-bedroom BMR unit would fundamentally alter the nature of its business. “Under the FHAA, as under the [Rehabilitation Act] and the ADA, only reasonable accommodations that do not cause undue hardship or mandate fundamental changes in a program are required.” Giebeler , 343 F.3d at 1154. Fundamental alteration is thus an affirmative defense to a failure-to-accommodate claim. Tamara v. El Camino Hosp., 964 F.Supp.2d 1077, 1083 (N.D. Cal. 2013) (citing Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004)).³

3 The parties largely rely on ADA fundamental alteration caselaw when discussing whether Birdwell's disability accommodation fundamentally alters AvalonBay's business. See Giebeler, 343 F.3d at 1149, 1158 (explaining that the Ninth Circuit generally applies ADA, Rehabilitation Act, and FHAA caselaw interchangeably when examining FHAA reasonable accommodation claims).

The fundamental-alteration inquiry is highly fact-specific and must be conducted on a case-by-case basis. See, e.g., Lentini, 370 F.3d at 845 (quoting Martin v. PGA Tour, Inc., 204 F.3d 994, 1001 (9th Cir. 2000), aff'd, 532 U.S. 661 (2001)); Crowder v. Kitagawa, 81 F.3d 1480, 1485-86 (9th Cir. 1996). The question is not whether the accommodation “generally would fundamentally alter” the relevant program; it is whether accommodating the plaintiff in that particular case would do so. Martin, 204 F.3d at 1001; accord Id. (“The evidence must ‘focus [ ] on the specifics of the plaintiff's or defendant's circumstances and not on the general nature of the accommodation.'” (quoting Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir. 1997) (alteration in Martin)).

Further, not all alterations are fundamental alterations. “[W]here a rule is peripheral to the nature of defendants' activities, ‘it may be waived in individual cases without working a fundamental alteration.'” Giebeler, 343 F.3d at 1157 (quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001). “The mere fact that [defendant] has defined” something to be part of its program “cannot preclude inquiry” into whether the contemplated accommodation would alter its essential nature. Martin, 204 F.3d at 1001; see also, e.g., Tamara, 964 F.Supp.2d at 1084 (explaining that the record showed that the requested accommodation “might affect the ward, but not that it will fundamentally alter its nature”); United States v. Asare, No. 15CIV3556ATOTW, 2018 WL 2465378 (S.D.N.Y. June 1, 2018) (observing that the requested accommodation “would be an alteration to the procedure” but would not interfere with “[t]he very nature of the protocol” (internal quotation marks omitted)).

AvalonBay contends that waiving the cost increase for Birdwell's two-bedroom apartment would alter the essential nature of its “for-profit business model,” which it defines as “(1) generate income by receiving rental payments, and (2) set the affordable BMR rent permitted by the BMR program.” ECF No. 89 at 23. It also argues that, in general, “limiting a housing provider's ability to charge a usual and customary rent” to accommodate a disability would “eliminate the most fundamental aspect” of the landlord-tenant relationship. Id. at 24.

Birdwell mounts two main arguments in opposition. First, she contends that AvalonBay conflates the essential nature of its business-the collection of rent for premises-with “its business-related goal” of maximizing its profit. ECF No. 91 at 12. She then reasons that housing providers' ability to make a profit is always subject to applicable housing law, and as such, expenses from making reasonable accommodations are “a cost of doing business” in this sector. ECF No. 91 at 12. She analogizes the cost of Birdwell's requested accommodation to costs such as waiving pet fees for service animals or installing and maintaining smoke detectors, which, although they reduce a housing provider's overall profit, do not fundamentally alter the business of renting housing for profit. Id.

AvalonBay has not shown how providing Birdwell with her requested accommodation and absorbing the cost would fundamentally alter the nature of its business. AvalonBay argues that accommodating Birdwell would contravene its nature as a for-profit business, but the record establishes that receiving approximately $150 less in rent per month due to the accommodation would not interfere with AvalonBay's ability to turn a profit. See, e.g., ECF No. 88-14. In fact, it has provided no evidence, or even argument, that its business as to any other tenant would be affected at all.

More is required for AvalonBay to meet its burden. In Galvan v. Walt Disney Parks & Resorts, U.S., Inc., for example, the plaintiff alleged that he suffered from anxiety and requested that the defendant implement a “pass conferring priority disability access to those with anxiety” for all the rides at its Disneyland theme park. 425 F.Supp.3d 1234, 1241 (C.D. Cal. 2019). The Court found that because up to thirty percent of the population suffers from anxiety, providing priority passes to anyone in that group would increase the number of such passes tenfold “to an unsustainable level,” congest the FastPass lines, and hinder Park Operations. Id. at 1241-42. The Galvan court concluded that these changes would constitute a fundamental alteration of defendant's business. Id. at 1242.

AvalonBay offers no evidence that its operations would change at all, much less to a significant extent. Instead, this case more closely resembles Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004). Plaintiff in that case was quadriplegic and required both a wheelchair and an aide to attend movie theaters. Id. at 1078. He sued defendant American Multi-Cinema (“AMC”), seeking an injunction requiring AMC theaters to ensure that companion seats were available next to seats for disabled persons, including by taking steps to remove from a companion seat any person who was not the companion of a wheelchair-bound patron and who refused to vacate that seat when asked. Id. at 1083. The court found that plaintiff's requested modification “[did] not fundamentally alter the nature of the services provided by the Theater.” Id. at 1084 (citation and emphasis omitted). It reasoned that:

All aspects of the Theater and its policies survive the requested relief intact, save one: AMC must now ensure that companion seats are available to the companions of wheelchair-bound patrons until ten minutes prior to showtime, even if a person not accompanying a wheelchair-bound patron refuses to move. This change will have a negligible effect-if any-on the nature of the service provided by the Theater: screening films. While the individual who is made to move seats will experience the film in a different manner (i.e., from a different location in the Theater), this shift is modest and does not rise to the level of a “fundamental alteration” of the Theater itself.

Id. (citation omitted). So here, Birdwell's requested accommodation will not alter the nature of AvalonBay's business: renting apartments and administering the BMR program. ECF No. 91 at 12 (citing ECF No. 89 at 23); Bass Depo., ECF No. 88-3 at 39:24-11.

AvalonBay also argues that the right to charge the maximum rent is an aspect of the tenant-landlord relationship that is beyond the reach of the FHAA. ECF No. 89 at 24-25. AvalonBay asks the Court to conclude that any accommodation that reduces the amount of rent that Birdwell pays is per se unreasonable. See, e.g., id. at 24 (“Lowering Plaintiff's rent would fundamentally alter AvalonBay's business of renting apartments at values it is legally permitted to charge and is not a ‘reasonable' accommodation required by fair housing laws.”); id. at 25 (“[R]equiring AvalonBay to discount Plaintiff's rent when rents are the core revenue for its business constitutes an impermissible financial burden, regardless of the amount of the lost revenue.”) (emphasis in original).⁴

4 AvalonBay's arguments are also infused with the sentiment that it would be unfair for Birdwell to pay the one-bedroom rate when nondisabled tenants in the same size unit pay the two-bedroom rate. See, e.g., ECF No. 89 at 24-25. The Ninth Circuit has made clear that in some cases, “an accommodation may indeed result in a preference for disabled individuals over otherwise similarly situated nondisabled individuals.” Giebeler, 343 F.3d at 1150; cf. Bentley, 367 F.Supp.2d at 348 (“[T]he mere fact that [the plaintiff] seeks a preference not afforded to nonhandicapped individuals does not preclude this court from proceeding to an inquiry into the reasonableness of [her] request. The defendants are not mandated under state [] law to charge [her] the maximum legal rent.”). Moreover, as a single person, Birdwell necessarily would live in a one-bedroom unit if not for her disability. There is no evidence that any nondisabled single person occupies a two-bedroom at full price such that Birdwell would receive a comparative advantage by paying the one-bedroom rate.

AvalonBay chiefly relies on Klossner v. IADU Table Mound MHP, LLC, 65 F.4th 349 (8th Cir. 2023), in which the Eighth Circuit concluded that the FHAA did not require a landlord that normally did not accept Section 8 housing vouchers to make an exception for a tenant with a disability. The court held that the requested accommodation was outside the scope of the FHAA because it targeted “downstream economic effects” of a disability rather than more closely related obstacles. Klossner, 65 F.4th at 354. In so holding, the Klossner court rejected the Ninth Circuit's interpretation of the governing Supreme Court caselaw, opting to follow Second and Sixth Circuit decisions that the Ninth Circuit previously had examined and rejected. Klossner, 65 F.4th at 353- 55; see Giebler, 343 F.3d at 1153-55. Although the Klossner court referenced the concept of fundamental alteration in passing, it did not analyze whether vouchers-or other accommodations that affect rental rates-constitute a fundamental alteration. See Klossner, 65 F.4th at 354-55. Its analysis rested on the conclusion that economic hardship is not a disability-related obstacle for which the FHAA contemplates reasonable accommodations. Because Birdwell does not seek a reduction in rent as a disability accommodation or argue that she faces economic hardship due to her disability, Klossner is inapposite.

Moreover, to the extent that Klossner bears on the broader issue of accommodations that create financial costs for landlords, it conflicts with the caselaw that binds this Court. In the Ninth Circuit, the fact that an accommodation has a financial cost does not render it per se unreasonable or otherwise place it outside the scope of the FHAA. Mobile Home I, 29 F.3d at 1416 (stating that “[w]e find the effort to distinguish accommodations that have a financial cost from other accommodations unconvincing” based on the text and history of the FHAA, which “clearly establishes that Congress anticipated that landlords would have to shoulder certain costs involved, so long as they are not unduly burdensome”). For this reason, “[a]ccommodations need not be free of all possible cost to the landlord”; rather, only unreasonable costs are proscribed. Giebeler, 343 F.3d at 1152. The Ninth Circuit explicitly declined to follow the “slippery-slope reasoning” that the Eighth Circuit adopted in Klossner because it determined that existing reasonableness requirements account for concerns about excessive or burdensome accommodations. Giebeler, 343 F.3d at 1153-55 (examining and rejecting the reasoning in Salute v. Stratford Greens Garden Apts., 136 F.3d 293 (2d Cir. 1998); Hemisphere Bldg. Co. v. Village of Richton Park, 171 F.3d 437 (7th Cir. 1999)); cf. Klossner, 65 F.4th at 353-55 (adopting the reasoning in those cases).

Neither Mobile Home I nor Giebeler carves out an exception for accommodations that affect rent as opposed to other costs.⁵ Indeed, at least one other court in this district has ordered a landlord to cover a rent difference incurred because of a reasonable accommodation. See, e.g., Holland, 2015 WL 4498776, at *2-3; see also Bentley, 367 F.Supp.2d at 346-49 (holding that the tenant's request to move to a costlier accessible apartment at her original rental rate was within the scope of the FHAA and not per se unreasonable). But see Blitz v. BLDG Mgmt. Co., Inc., No. 20-CV-5462 (RA), 2023 WL 6162295, at *8-9 (S.D.N.Y. Sept. 21, 2023) (relying on Salute, 136 F.3d at 296-301, to hold that tenant's request to pay original rent rate when moving to a new apartment for disability-related reasons was not contemplated by FHAA). AvalonBay overestimates the importance of the fact that Birdwell's accommodation affects her rental rate rather than some other fee. This fixation lacks any basis in the governing caselaw. Accordingly, AvalonBay has failed to establish that it is exempt from providing Birdwell's requested accommodation at its sole cost.

5 Giebeler contains dicta emphasizing that the plaintiff's requested accommodation in that case would not reduce the amount he paid in rent and observing that a mandatory lower rent for disabled individuals would likely be found unreasonable. See Giebeler, 343 F.3d at 1154, 1159. This Court finds the dicta unpersuasive. See also Smith v. City of Oakland, 612 F.Supp.3d 951, 967 (N.D. Cal. 2020) (noting that the Giebeler court made these “observation[s] briefly, non-definitively, and in dicta, with little context”). For one thing, Giebeler is in tension with earlier Ninth Circuit authority holding that landlords may be required to accept reduced compensation when providing a disability accommodation. Mobile Home I, 29 F.3d at 1416 (considering as one accommodation tenant's request that home health aide be allowed to use parking space without paying parking fee). That being so in one case, it is hard to see how requiring such a reduction in a different case would be per se unreasonable. Indeed, subsequent district court cases have determined on the merits that requiring a lower rent as part of an accommodation is not unreasonable. E.g., Holland, 2015 WL 4498776, at *3; Bentley, 367 F.Supp.2d 341 at 347. Finally, the Court considers that Defendant has stipulated that paying the difference in rent between a one- and two-bedroom unit would not cause it undue financial burden. On those facts, Giebeler's dicta have even less force. See Holland, 2015 WL 4498776, at *3 (finding that “the increased financial burden on Defendants for letting Plaintiffs stay in the new apartment through the end of their lease in December, as opposed to staying until the construction ends in September, would be negligible”).

ii. Refusal to Accommodate

Refusal to make the necessary accommodation is an “essential element of the FHA claim.” Dubois v. Assoc. of Apt. Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).⁶Birdwell asserts that AvalonBay's refusal to bear the cost of her accommodation amounts to a failure to accommodate because the law requires a landlord to bear the cost of an accommodation unless it shows an undue burden. See, e.g., ECF No. 81 at ¶ 13 (“‘Granting' an accommodation but expecting the tenant to pay for it is actually a denial of the accommodation.”). AvalonBay concedes that it has refused to provide her requested accommodation without additional charge. See ECF No. 89 at 20 (acknowledging “AvalonBay's refusal to reduce the rent for her [two-bedroom] apartment”). Birdwell therefore has established this element of her claim.

6 “The FHAA extended the Fair Housing Act's protection against discrimination in the sale or rental of housing to those with disabilities. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6(a), 102 Stat. 1619 (1988).” Budnick v. Town of Carefree, 518 F.3d 1109, 1114 n.5 (9th Cir. 2008).

Because Birdwell has established all five elements of her FHAA claim, she is entitled to summary judgment on that claim. AvalonBay's motion on this claim is denied.

b. FEHA

Courts in the Ninth Circuit “apply the same standards to FHA and FEHA claims.” Walker v. City of Lakewood, 272 F.3d 1114, 1131 n.8 (9th Cir. 2001); see also Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 n.14 (9th Cir. 2013) (“We do not separately discuss the Plaintiffs' state law fair housing claims from this point on because we ‘apply the same standards to FHA and FEHA claims.'” (citation omitted)).

It is therefore unnecessary for the Court to analyze Plaintiff's FEHA claim separately.⁷Birdwell has established that she is entitled to summary judgment under FEHA. The Court grants her motion and denies AvalonBay's motion with respect to this claim.

7 The Court notes, however, that FEHA regulations expressly prohibit “charg[ing] a fee or requir[ing] an additional deposit or financial contribution as a condition of receiving, processing, or granting a reasonable accommodation or modification . . . .” 2 Cal. Code Regs. § 12180(a).

c. Unruh Act 51(b)

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their . . . disability, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). Section 51(b) “encompass[es] a claim for intentional discrimination in the form of a failure to provide reasonable accommodation to a person with a disability.” Glasby v. Mercy Hous., Inc., No. 17-CV-02153-DMR, 2017 WL 4808634, at *5-*6 (N.D. Cal. Oct. 25, 2017); accord, e.g., Hunter v. Chatman, No. CV185760MWFAGRX, 2018 WL 10076846, at *9-*10 (C.D. Cal. Nov. 20, 2018).

An Unruh Act plaintiff must show that: “(1) [she] was denied the full and equal accommodations, advantages, facilities, privileges, or services in a business establishment; (2) [the plaintiff's] disability was a motivating factor for this denial; (3) defendants denied plaintiff the full and equal accommodations, advantages, facilities, privileges, or services; and (4) defendants' wrongful conduct caused plaintiff to suffer injury, damage, loss or harm.” Glasby, 2017 WL 4808634, at *3.

“By its terms, the Unruh Act ‘does not extend to practices and policies that apply equally to all persons.'” Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (quoting Turner v. Ass'n of Am. Med. Colls., 167 Cal.App.4th 1401, 1408 (2008)) (citing Cal. Civ. Code § 51(c)). “Thus, to establish a violation of the Unruh Act independent of a claim under the Americans with Disabilities Act (“ADA”), [Birdwell] must ‘plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.'” Id. (quoting Munson v. Del Taco, Inc., 46 Cal.4th 661, 668 (2009)). The California Supreme Court has clarified that the Unruh Act contemplates “willful, affirmative misconduct on the part of those who violate the Act” and that a plaintiff must therefore allege, and show, more than the disparate impact of a facially neutral policy. Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 853 (2005) (internal quotation marks omitted).

Plaintiff argues that the undisputed records shows that “Defendant acted with intent under Unruh to willfully, affirmatively impose a surcharge on Ms. Birdwell by charging her the two-bedroom rate instead of the one-bedroom rate she qualified for,” and that “Birdwell asked to have the fee waived in 2018 and 2020 but Defendant refused to withdraw it.” ECF No. 86 at 21 (citation omitted).

AvalonBay argues that its policy of charging the two-bedroom rate for a two-bedroom apartment is facially neutral, and that as a result, Birdwell's allegations about a disparate effect on her are insufficient to show Unruh intent. ECF No. 94 at n.5.⁸ Although this position makes logical sense, “[s]everal courts in this circuit have recognized that section 51(b) can encompass a claim for intentional discrimination in the form of a failure to provide reasonable accommodation to a person with a disability.” Lu v. Vivente 1, Inc., No. 23-CV-02799-BLF, 2023 WL 3958359 (N.D. Cal. June 12, 2023) (quoting Glasby, 2017 WL 4808634, at *6 (internal quotation marks omitted) (alteration in original)). Some of these courts have equated the refusal to provide a reasonable accommodation with the willful, affirmative misconduct required under Section 51(b) even when defendants were applying a facially neutral policy. See, e.g., Skochko v. Mercy Hous., Inc., No. 20-CV-08659-JSC, 2022 WL 3357836, at *12-13 (N.D. Cal. Aug. 15, 2022) (denying defendant's motion for summary judgment where defendant failed to provide tenant with a hospital bed as a reasonable accommodation); Gutierrez v. Gonzalez, No. 217CV01906CASEX, 2017 WL 1520419, at *6 (C.D. Cal. Apr. 26, 2017) (denying motion to dismiss where defendant applying a no-pets policy issued tenant a notice to quit after he requested to keep a service animal as a reasonable accommodation); Hunter, 2018 WL 10076846, at *9-10 (denying motion to dismiss where tenants with mobility disabilities alleged that defendants intentionally refused to maintain operable elevators and make contingency plans for elevator outages); Heinemann v. Copperhill Apts., No. 07-0018 FCDDAD, 2007 WL 4249842, at *4 (E.D. Cal. Nov. 30, 2007) (denying motion to dismiss where defendant refused to relocate parking spots to accommodate tenant who informed them that the current location was problematic due to his disability). But see Martinez v. Cot'n Wash, Inc., 81 Cal.App. 5th 1026, 1036-38 (2022), review denied (Nov. 9, 2022) (holding that a plaintiff who complained of accessibility barriers on a website had not shown that the website owner intentionally discriminated because the “failure to address this disparate effect [] cannot establish [defendant's] intent to discriminate” (emphasis in original)).

8 The Court considers this argument in its discretion although AvalonBay raised it only its reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).

Moreover, a jury would also be entitled to conclude that it was AvalonBay's policy not to pay for certain reasonable accommodations (e.g., accommodations requiring it to adjust rental rates) based on the record evidence. See, e.g., ECF No. 88-13; Preston Depo., ECF No. 88-6 at 30:6-13. Such a policy would also support a finding of intentional discrimination.

On this record, neither AvalonBay or Birdwell is entitled to summary judgment as a matter of law. The Court accordingly denies both parties' motions for summary judgment on Birdwell's Unruh Act § 51(b) claim for failure to accommodate.

2. Request for Accommodation During Power Outages

Birdwell requested assistance leaving her apartment during rolling power outages in 2019. AvalonBay argues that it was responsive to Birdwell's request and informed her that the fire department would need to assist her with exiting and entering the building while the elevators were inoperable. ECF No. 89 at 31-32. Birdwell concedes that she “has not produced facts to support her request for reasonable accommodation when the elevator went out” and that summary judgment for AvalonBay is appropriate on this claim. ECF No. 91 at 25. The Court agrees and accordingly grants summary judgment in favor of AvalonBay on the claim for failure to accommodate Birdwell with respect to exiting the building during power outages.

B. Accessibility Issues

1. ADA and Unruh 51(f)

“Title III of the ADA prohibits discrimination against individuals on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. 42 U.S.C. § 12182(a). To state a Title III claim, a plaintiff must show that (1) she is disabled within the meaning of the ADA; that (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) that the plaintiff was denied equal access to the defendant because of his or her disability. Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). A violation of the Department of Justice's ADA accessibility standards satisfies the third element. Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011).

“A violation of the right of any individual under the [ADA] . . . shall also constitute a violation of” the Unruh Act.” Cal. Civ. Code § 51(f); Munson, 46 Cal.4th at 668.

Birdwell seeks summary judgment for fourteen ADA violations identified in Bishop's report. ECF No. 86 at 26. AvalonBay argues that Birdwell lacks standing under the ADA, that the pool lounge and community lounge are not places of public accommodation, and that genuine issues of material fact exists with respect to whether the violations identified at the stipulated areas of public accommodation are nonetheless “usable” by persons with disabilities. ECF No. 89 at 29-30. The Court examines each argument in turn.

a. ADA Standing

Standing to bring a Title III claim under the ADA requires a plaintiff to have “actual knowledge of an access barrier or ADA violation,” but the plaintiff “need not personally encounter the barrier or physically visit the place of public accommodation.” Langer v. Kiser, 57 F.4th 1085, 1094 (9th Cir. 2023) (citing C.R. Educ. & Enf't Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017)). “An ADA plaintiff has standing to sue for all barriers” related to her own disability, “even ones that surface later during discovery.” Id. (citing Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008); Chapman, 631 F.3d at 950-53). Because Title III contemplates only injunctive relief, however, a plaintiff must also “establish a sufficient future injury by alleging that they are either currently deterred from visiting the place of public accommodation because of a barrier, or that they were previously deterred and that they intend to return to the place of public accommodation, where they are likely to reencounter the barrier. Id. (citing Chapman, 631 F.3d at 944).

The Court previously held that Birdwell has standing to pursue her ADA Title III claim in its order resolving AvalonBay's motion to dismiss the TAC. ECF No. 80 at 13 (concluding that Birdwell need not specify “how and when” she intended to use the inaccessible aspects of the facilities; rather, she has standing because her “complaint states that ‘[s]he has encountered most of these barriers,' and ‘has been deterred from using' those that she has not encountered”). AvalonBay reasserts its standing argument in its reply brief but raises nothing to alter the Court's prior conclusion regarding Birdwell's ADA standing. Birdwell has demonstrated actual knowledge of barriers at the facility that she has either encountered or is deterred from using, as well as a sufficient likelihood of future injury because she remains a resident at the complex.

AvalonBay's argument that Birdwell has accessed certain features such as the lobby door, which Bishop's report notes requires excessive force to open, or the leasing office's restrooms, which contain several noncompliant elements, does not undermine standing. See ECF No. 94 at 7; see also ECF 81 ¶ 29 (alleging pain and embarrassment while using elements that are noncompliant). Usability is not sufficient under the ADA, which purposes to ensure “full and equal enjoyment” of public accommodations. 42 U.S.C. § 12182(a); see Smith v. City of Oakland, 612 F.Supp.3d 951, 966 (N.D. Cal. 2020) (citing Baughman v. Walt Disney World Co., 685 F.3d 1121 (9th Cir. 2012)).

b. Areas Available for Rent

Four of the ADA-noncompliant elements identified in the Bishop report are located at the pool lounge or community lounge, see ECF No. 87 at Ex. B (items 18-21), which AvalonBay has stipulated are available for rent by the public, ECF No. 88-14 at 3. AvalonBay argues that the availability of the pool lounge and community lounge for rent does not make them public accommodations and that these areas “cannot be included in any assessment of ADA compliance of Avalon Walnut Creek.” ECF No. 89 at 29-30. It asserts that only the categories enumerated in the Title III statute qualify as places of public accommodation but cites no other authority. See ECF No. 89 at 29.

Birdwell does not dispute that facilities must fall under an enumerated category in order to qualify as public accommodations. See ECF No. 91 at 16. She nonetheless argues that the lounges are public accommodations because they are “open to the public” and “affect commerce,” 42 U.S.C. § 12181(7), and that they fall within the categories of “places of public gathering,” “places of entertainment,” or “places of recreation,” id. § 12181(7)(C)-(D), (I), (L). Neither party cites any authority on this point.

The Court is therefore left with the plain words of the statute. 42 U.S.C. § 12181(7). The ADA authorizes the Attorney General to issue implementing regulations. 42 U.S.C. § 12186(b). Pursuant to that authority, the Department of Justice has defined the term “place of public accommodation” to include any “facility operated by a private entity whose operations affect commerce and fall within at least one of” the twelve categories listed in Section 12181(7). 28 C.F.R. § 36.104 (capitalization and emphasis omitted). The term “facility,” in turn, is defined as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” Id. (emphasis added).

42 U.S.C. § 12181(7)(D) provides that a place of public accommodation includes “an auditorium, convention center, lecture hall, or other place of public gathering.” AvalonBay rents its pool lounge and community lounge as places for the public to gather. The Court finds as a matter of law that the pool lounge and community lounge are places of public accommodation.⁹

9 In light of this conclusion, the Court need not consider the remaining subsections of the public accommodation statute as they pertain to these areas.

Accordingly, the Court grants Birdwell's motion and denies AvalonBay's cross-motion with respect to the claims that items 18-21 violate the ADA and Unruh Act § 51(f).

c. Usability

The remaining ten elements identified as ADA-noncompliant, ECF No. 87 at Ex. B (items 8-9, 22-25, and 32-35) are located in stipulated areas of public accommodation, see ECF No. 88-14 at 3. AvalonBay argues that “the usability” of these features “is subject to genuine disputes of material fact.” Birdwell contends that noncompliance with the ADA accessibility standards is sufficient to establish a violation. ECF No. 91 at 16-17.

“Because the ADAAG establishes the technical standards required for ‘full and equal enjoyment,' if a barrier violating these standards relates to a plaintiff's disability, it will impair the plaintiff's full and equal access, which constitutes ‘discrimination' under the ADA.” Chapman, 631 F.3d at 947; see also Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see also Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1086 (D. Haw. 2000) (“The DOJ considers any element in [an existing] facility that does not meet or exceed [ADAAG Standards] to be a barrier to access.” (alteration in original) (internal citation and quotation omitted)).

AvalonBay does not dispute that the identified barriers violate the AADAS. These noncompliant items concern a lack of accessible parking spaces and signage indicating accessible parking spaces (items 8-9); high door threshold heights and heavy doors requiring excessive opening force (items 22-24); service counter heights (item 25); and the height and spacing of elements in a restroom such as mirrors and grab bars (items 32-35). These barriers are clearly related to Birdwell's disability: she uses a wheelchair, Perry Depo., ECF No. 88-2 at 22:10-19, owns and drives an accessible vehicle, ECF No. 88-13 at 3, and she has weakness in and limited use of her arms and hands, Perry Depo., ECF No. 88-2 at 22:10-19.

Accordingly, Birdwell has established her ADA and Unruh § 51(f) claims with respect to the ten barriers identified in the stipulated public accommodation areas of the Phase I facility. The Court grants Birdwell's motion for summary judgment and denies AvalonBay's cross-motion with respect to these claims. See ECF No. 87 at Ex. B (items 8-9, 22-25, 32-35).

2. FHAA

Birdwell argues that she is entitled to summary judgment on her claim that AvalonBay designed and constructed Avalon Walnut Creek in violation of the FHAA, 42 U.S.C. § 3604(f)(3)(C), with respect to eight noncompliant elements at Phase II¹⁰ identified in the Bishop report, see ECF No. 87 at Ex. B (items 10-11, 19-20, 27-30). AvalonBay responds that it, not Birdwell, is entitled to summary judgment.

10 Bishop also determined that elements of Phase I construction constituted FHAA violations, but the Court previously concluded that Phase I claims were time-barred under the FHAA's two-year statute of limitations. ECF No. 80 at 12 (citing Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008)). Birdwell “is not trying to revive” those claims. ECF No. 91 at 11.

Discrimination under the FHAA includes, “in connection with the design and construction of covered multifamily dwellings . . . a failure to design and construct” such dwellings in accordance with the accessibility and adaptability design features outlined in the statute. 42 U.S.C. § 3604(f)(3). “The general requirements include making public use and common use areas ‘readily accessible and usable by handicapped persons,' making doorways wide enough to accommodate wheelchairs, as well as enumerated ‘features of adaptive design' including an accessible route into and through the dwelling, switches and other controls in accessible locations, reinforcement in bathroom walls to allow later installation of grab bars, and usable kitchens and bathrooms so that a wheelchair can maneuver about the space.” Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F.Supp.2d 700, 713 (D. Md. 1999) (quoting 42 U.S.C. § 3604(f)(3)(C)(iii)).

Birdwell asserts that AvalonBay was required to select one of ten possible disability construction standards approved by the FHAA regulations and construct its facilities in conformity with that standard. ECF No. 86 at 29 (citing 24 C.F.R. § 100.205). Compliance with any of the approved standards constitutes a “safe harbor” under the FHAA. 24 C.F.R. § 100.205. Birdwell cites unrebutted evidence that AvalonBay chose to apply the ICC/ANSI A117.1-2003, which was its “default standard.” ECF No. 86 at 29; see ECF No. 87 ¶¶ 21-22, Ex. D (describing the evidence that formed the basis of Bishop's opinion that AvalonBay applied this standard). Accordingly, Bishop applied that standard in his inspection and identified eight deficient elements at Phase II.

AvalonBay does not dispute that the relevant Phase II elements do not comply with IBC/ANSI A117.1-2003. See ECF No. 30-31. Even so, it disputes Birdwell's assertion that any element not in compliance with the IBC/ANSI A117.1-2003 represents a “per se violation” of the FHAA. Id. at 30. It argues that the Court must interpret the requirements of the FHAA to determine whether discrimination has occurred in a particular case, even where a facility falls short of an approved safe-harbor standard. Id. at 30-31. Relying on United States v. Mid-America Apartment Communities, Inc., 247 F.Supp.3d 30, 37 (D.D.C. 2017), AvalonBay asserts that either evidence that the facility complies with “any other safe harbor” or evidence “of the actual ability of handicapped individuals to effectively use the design element” may be considered to establish that the FHAA's requirements are satisfied.

The problem with AvalonBay's argument is that it provides no evidence that the facility satisfies any of the acceptable design standards. Instead, AvalonBay asserts without citation that Birdwell has not presented evidence that she has been “unable to use” or “has desired to use” the Phase II elements at issue, which include the Phase II swimming pool, pool deck, lounge, and women's restroom at the pool. See ECF No. 87 at Ex. B (describing noncompliant aspects of items 10-11, 19-20, 27-30). As previously noted, however, usability is not the standard under the ADA, which purposes to ensure “full and equal enjoyment” of public accommodations. 42 U.S.C. § 12182(a).¹¹

11 Even if the Court accepts AvalonBay's arguments that Birdwell's ability to “effectively use” a noncompliant element would be relevant, along with its arguments that the Court should disregard Birdwell's unsworn declaration in support of her motion for summary judgment, see ECF No. 94 at 8 n.8 (citing ECF No. 92), AvalonBay has pointed to no such evidence. The record does not indicate that Birdwell would be able to “effectively use” the Phase II pool or surrounding facilities. Here, as in the ADA context, “a person with a disability need not engage in the ‘futile gesture' of trying to access a noncompliant place to create an injury . . . .” Langer, 57 F.4th at 1092 (citation omitted).

AvalonBay fails to meaningfully dispute Birdwell's assertions that the IBC/ANSI A117.1- 2003 standard was applied to Avalon Walnut Creek or that elements at Phase II fail to comply with that standard. The Court grants summary judgment to Birdwell and denies AvalonBay's cross-motion on this claim.

3. FEHA

Discrimination under FEHA includes “a failure to design and construct a covered multifamily dwelling in a manner that allows access to and use by disabled persons by providing, at a minimum, [certain specified features of accessible design].” Cal. Gov. Code § 12955.1. AvalonBay was required to implement features of accessible design into its construction. See Id. § 12955.1.1(a)(1).

a. Statute of Limitations

AvalonBay argues that Birdwell's Phase I FEHA are time-barred under FEHA's two-year statute of limitations. See Id. § 12989.1. Birdwell asks the Court to find that this statute of limitations does not bar her claims by declining to apply Garcia, 526 F.3d at 462, in which the Ninth Circuit held that the conclusion of construction triggers FHAA's analogous statute of limitations.

Birdwell has not identified any cases calling into question Garcia's application beyond the principle that FEHA is intended to apply broadly and the unpersuasive argument that the construction deficiencies are ongoing violations. ECF No. 91 at 22-25; see Sunset Drive Corp. v. City of Redlands, No. CV 02-9109 PA (RCX), 2008 WL 11423918 (C.D. Cal. Dec. 2, 2008), aff'd, 370 Fed.Appx. 811 (9th Cir. 2010) (“It is important, however, not to ‘confuse a continuing violation with the continuing effects of a past violation. . . . a continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.'” (quoting Garcia, 526 F.3d at 462) (additional internal quotation marks and citation omitted). Because FHAA and FEHA “protect substantially the same rights” and “are subject to the same analysis,” FEHA's two-year statute of limitations bars Birdwell's claims pertaining to Phase I. See Cabrera v. Alvarez, 977 F.Supp.2d 969, 975 (N.D. Cal. 2013) (collecting cases); see also ECF No. 80 at 12, 14-15 (determining that Birdwell's Phase I FEHA accessibility claims were time-barred at the motion to dismiss stage). Birdwell's motion for summary judgment is denied, and AvalonBay's motion for summary judgment is granted as to the FEHA claims regarding items 1-7, 12-18, 26, 31, and 36- 41 in the Bishop report.

b. Analysis of Phase II Elements

AvalonBay applied CBC 2016 to Phase II of Walnut Creek. Fernandez Depo., ECF No. 88-1 at 18:18-24. Bishop identified eight CBC violations in Phase II. See ECF No. 87 at Ex. B (items 10-12, 19-21, 27-28). Birdwell argues that each of these CBC violations is a FEHA violation. ECF No. 86 at 27.

The FEHA provides that:

(d) In investigating discrimination complaints, the department shall apply the building standards contained in the California Building Standards Code to determine whether a covered multifamily dwelling is designed and constructed for access to and use by disabled persons in accordance with this section.

(e) The building standard requirements for persons with disabilities imposed by this section shall meet or exceed the requirements under the federal Fair Housing Amendments Act of 1988 (P.L. 100-430) and its implementing regulations (24 C.F.R. 100.1 et seq.) and the existing state law building standards contained in the California Building Standards Code.

Cal. Gov't Code § 12955.1(d)-(e).

Birdwell observes that the CBC is the relevant accessibility standard for FEHA but that it appears “no court has defined the elements of a FEHA claim for failure to design and construct an accessible multifamily dwelling.” She suggests that the elements should mirror those of an ADA public accommodation claim. ECF No. 86 at 26-27. Because the statute specifies that “the building standard requirements imposed by this section shall meet or exceed . . . state law building standards contained in the [CBC],” the Court reads the statute to indicate that a violation of the CBC accessibility standard constitutes a FEHA violation. Cal. Gov't Code § 12955.1(e) (emphasis added).

AvalonBay offers no argument on this point. Indeed, AvalonBay does not address the Phase II FEHA claims in its motion for summary judgment at all. See ECF No. 89 at 28 (arguing that FEHA claims regarding Phase I are time-barred). In reply, it argues that Birdwell lacks standing to assert her FEHA Phase II claims. ECF No. 94 at 9. As discussed above, the Court is not persuaded that Birdwell lacks standing to assert accessibility violations pertaining to Phase II.

As a result, the Court finds that Birdwell has established that she is entitled to summary judgment on her FEHA claims for the eight violations in Phase II. See ECF No. 87 at Ex. B (items 10-12, 19-21, 27-28). The Court grants Birdwell's motion and denies AvalonBay's motion on this score.

4. Unruh 51(b)

a. Statute of Limitations

Birdwell argues that “Unruh allows [her] to address the violations that are time-barred under FHAA or FEHA” because, unlike the FHAA or FEHA, the Unruh Act contains no specific statute of limitations. ECF No. 91 at 11-12. Defendant counters that Unruh is not intended to “require physical accessibility beyond that ‘otherwise required by other provisions of law,' so the limitations periods of the FHA and FEHA would apply equally to accessibility claims under Unruh.” ECF No. 89 at 28 (quoting Cal. Civ. Code § 51(d)).

Because the Unruh Act “does not contain an express statute of limitations . . . courts must determine which statute of limitations is appropriate.” Adams v. Cmty. Hous. P'ship, No. 23-CV-06073-WHO, 2024 WL 1643682 (N.D. Cal. Apr. 15, 2024) (citing Kramer v. Regents of Univ. of Cal., 81 F.Supp.2d 972, 976-77 (N.D. Cal. Jun. 1, 1999)).

To determine the applicable statute of limitations, courts in this circuit determine whether the underlying claim is statutory or derived from the common law. If it is statutory, then California's three-year limitations period for statutory claims applies. If it is derived from common law, then California's two-year limitations period for personal injury claims applies.

Id. (citing Hernandez v. Sutter W. Cap., No. C 09-03658 CRB, 2010 WL 3385046, at *2 (N.D. Cal. Aug. 26, 2010)).

Because a claim for violation of the Unruh Act's protections against discrimination is not derived from common law, “[a] three-year statute of limitations applies.” Id. Only the claims concerning Phase II elements occurred within the statutory period. The Court therefore grants AvalonBay's motion for summary judgment on the Unruh claims concerning the Phase I elements and denies Birdwell's motion with respect to those claims.

The Court next examines Unruh Act liability as to the Phase II claims.

b. Analysis of Phase II Elements

Bishop applied the contemporaneous provisions of the CBC Title 24 during his inspection of the facility, as well as the ICC/ANSI A117.1-2003 standard. ECF No. 87 ¶¶ 15-17. His report indicates that he identified eight CBC Title 24 violations at Phase II. See ECF No. 87 at Ex. B (items 10-12, 19-21, 27-28). Six elements, all but two of which overlap with the CBC violations, failed to comply with the ICC/ANSI A117.1-2003. Id. (items 11, 19-21, 27-30).

The Unruh Act provides that “[a]ll persons . . . are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The purpose of the Unruh Act “is to compel a recognition of the equality of citizens in the right to the peculiar service offered” by the entities covered by the Act. Lemmons v. Ace Hardware Corp., No. 12-CV-03936-JST, 2014 WL 3107842 (N.D. Cal. July 3, 2014) (quoting Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 737 (1982) (citation omitted)).

To establish a construction-related accessibility claim under the Unruh Act, Plaintiff “must ‘plead and prove intentional discrimination . . . .'”; Greater L.A. Agency on Deafness, Inc., 742 F.3d at 425 (quoting Munson, 46 Cal.4th at 690); see also Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 853 (2005) (explaining that the language of Civil Code Section 51 “impl[ies] willful, affirmative misconduct on the part of those who violate” the Unruh Act).

Birdwell grounds her argument in ACCO Engineered Sys., Inc. v. Contractors' State License Bd., 30 Cal.App. 5th 80, 92 (2018), in which the court considered the term “willful” in a state licensing law and concluded that the law required neither specific intent nor bad faith to establish that a violation was willful. She analogizes that “the failure of a sophisticated, publicly traded [real estate investment trust] to follow the accessibility construction standards, while admittedly knowing its construction obligations toward people with disabilities” could only be characterized as “willful misconduct.” ECF No. 86 at 30. Birdwell argues that “constructing a building is an inherently willful act” and that “[p]erforming an act in violation of the codes is sufficient to establish intent under Unruh for a construction standard violation.” ECF No. 86 at 29-30.

While this argument is not without superficial appeal, the fact remains that no court has concluded that violation of a building standard, standing alone, satisfies the Unruh Act's intent requirement as a matter of law. The Court denies both parties' motions for summary judgment with respect to Birdwell's Unruh Act § 51(b) claim for accessibility barriers.

CONCLUSION

For the foregoing reasons, the Court grants Birdwell's motion for summary judgment and denies AvalonBay's cross-motion with respect to her (1) FHAA, and FEHA claims for failure to accommodate due to AvalonBay's charging her the cost of her reasonable accommodation; (2) her ADA and Unruh Act § 51(f) accessibility claims concerning items 8-9, 18-21, 22-25, and 32-35 on the Bishop report; and (3) her FHAA and FEHA accessibility claims concerning Phase II items on the Bishop report.

The Court grants AvalonBay's cross-motion for summary judgment and denies Birdwell's motion with respect to her (1) FHAA, FEHA, and Unruh Act § 51(b) claims for failure to accommodate during the elevator outage in 2019; (2) FHAA accessibility claims for Phase I items on the Bishop Report; (3) FEHA claims for Phase I items on the Bishop report; and (4) Unruh Act § 51(b) claims for Phase I items on the Bishop report.

The Court denies in part both parties' motions for summary judgment with respect to Birdwell's Unruh Act § 51(b) failure to accommodate and accessibility claims. Summary judgment is also denied as to damages. The question of damages for the failure to accommodate claims will proceed to trial.

AvalonBay and its agents, officers, employees, and all persons acting in concert with it are hereby enjoined from charging Birdwell more than the one-bedroom BMR rate for her monthly rent while she resides in a two-bedroom unit as a reasonable accommodation of her disability. Further, AvalonBay shall remove the physical barriers to access indicated in the above order and maintain accessible features.

The parties shall meet and confer regarding a schedule for the implementation of the above-described modifications and shall include a section on that topic in their August 16, 2024 pretrial statement. The Court will resolve any disputes at the pretrial conference.

IT IS SO ORDERED.