Opinion
CASE NO. EDCV-07-1316-SGL (?x).
April 2, 2009
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
This case concerns rules put in place at an apartment complex restricting children's ability to play outside at the complex. At the center of these rules is the apartment manager at the complex. The picture painted by the parties' papers depict him either as an insufferable tyrant who berated and harassed children and their parents for playing outside (even while supervised by an adult), or as a misunderstood hero who loved children, allowed them to play outside, and only voiced concerns when they were unattended by an adult. This latter explanation attributes the manager's actions to his deep-felt concern for the safety of the children owing to a tragic accident that took place in the complex's parking lot.
Regardless of what motivated the apartment manager, there is no dispute that the house rules that were issued, on their face, treat children (and, thus, families with children) differently than adults with respect to access to the outdoor areas of the complex. The Court finds that the asserted business rationale for placing such restrictions is either over-broad, not the least restrictive alternative to achieving said ends absent imposition of such restrictions, or both. Thus, for the reasons set forth below, the Court GRANTS plaintiffs' motion for summary judgment that said restrictions amounted to a violation of both the federal Fair Housing Act ("FHA") and California's Fair Employment and Housing Act ("FEHA"); that said restrictions constituted an unfair business practice under California Business Code section 17200; and that the company managing the complex was negligent in failing to supervise or train the apartment manager in question from promulgating and enforcing such unlawful rules.
In their motion, plaintiffs also noted that they sought summary judgment on their Unruh Act claim set forth in their complaint. (Notice of Mot. at 2 ("plaintiffs seek summary judgment . . . as to . . . the third cause of action for violation of the Unruh Civil Rights Act")). Other than this bare mention in the notice to their motion, nowhere in the motion or the reply did plaintiffs once proffer any argument as to why they are entitled to judgment on that claim (as opposed to their FHA, FEHA, negligence, and unfair business practices claims), much less proffer evidence and argument directed toward establishing that judgment on that claim is in order. It is the moving party's burden to establish that summary judgment is required for each claim for which judgment is sought. The failure to proffer facts and arguments demonstrating that to be the case can hardly be said to meet this burden. Accordingly, to the extent plaintiffs' motion seeks summary judgment on the Unruh Act claim, the Court DENIES said request for failure to meet their burden of proof.
I. FACTS
Defendant Arrow Wood LLC owns the Arrow Wood Apartments in Fontana, California, a two-story apartment complex with eighty-two units that is enclosed by a security fence and a gate; the complex has a pool, a parking lot, and common areas, some of which contain grass. Adalberto Villatoro, a resident manager with over fifteen years of experience, has been the manager at the Arrow Wood Apartments since 2002. Thomas Botz, an attorney and the principal of Arrow Wood LLC, is Mr. Villatoro's direct supervisor. Mr. Botz has acknowledged that Mr. Villatoro has never had any training in fair housing laws. Mr. Botz also confirmed that Mr. Villatoro was not provided with any written guidelines to explain what his duties are at the apartment complex, nor has Mr. Botz provided any training to Mr. Villatoro in that regard. During his deposition, Mr. Botz further admitted that he was "unaware" whether a fair housing notice is posted on the apartment premises even though he (Mr. Botz) regularly visits the complex. Despite the lack of any training and guidance, Mr. Botz directed Mr. Villatoro to enforce the house rules at the apartment complex.Some time in 2005 or 2006, or possibly later, Mr. Villatoro drafted and sent out a written notice to all the tenants at the apartment complex. The notice opened by informing the tenants that, henceforward, "all Parking Rules and Regulations of this property will be strictly enforced," and then went on to identify some of those pre-existing rules, such as obtaining parking permit stickers, the limit on the number of cars allowed for each unit, and the requirement to fill out a tenant census form. The notice then noted that "in addition" there were "other issues that must be addressed and resolved immediately." Specifically, the notice set forth a litany of new house rules, the most notable of which for purposes of this case was the following:
Child care and supervision are required at all times. Minor children must be accompanied by an adult while on the grounds, including the pool, picnic area or any other common way. Children are absolutely not allowed to play outside their apartments at any time . Due to the problems due to unsupervised children, these child-related rules will be strictly enforced, and families whose children are playing in the common areas or are without adult supervision will be promptly asked to leave.
(Pls' Notice of Lodging, Ex. 1 (emphasis in original)).
Mr. Villatoro later justified this new rule on the grounds that it was done to protect children after a three-year old girl was struck and killed by a car driven by her father in the apartment complex's parking lot sometime in 2005 or 2006. (Pls' Supp'l Notice Lodging, Ex. 12 at 28 ("Q. And why did you write that? A. Because I don't want any more accidents happen in the building. I did this for safet[ty] . . . children") (Depo. Villatoro); see also Pls' Supp'l Notice Lodging, Ex. 20 at 34-35 (describing nature of accident) (Depo. Ms. Mathews)).
Furthermore, Mr. Villatoro in his deposition sought to place some nuance on what, on its face, appears to be a hard and fast rule prohibiting children from being "allowed to play outside at any time." Indeed, the house rule in question does note the necessity for adult supervision of children and provides that it would be enforced such that "families whose children are playing in the common areas or are without adult supervision will be promptly asked to leave." Seizing upon the second half of the quoted sentence, defense counsel argues that the prohibition only sought to capture the presence of unsupervised children in the common areas, discounting what appears in the first half of the sentence (as well as the sentence preceding it) as an awkward bit of phrasing that admittedly needed "tweaking." Towards that end, Mr. Villatoro in his deposition sought to soften the language in the notice by explaining that the rule "referred to children [] six and under" (no where mentioned in the rule), but then at other times in his deposition claims that the rule applied to children under fourteen (again, nowhere mentioned in the rule) "who were running around without supervision" (not clearly manifest given the first half of the quoted sentence or the declaratory sentence preceding it). (Pls' Supp'l Notice Lodging, Ex. 12 at 22; Def's Opp. Ex. A at 23).
In addition to this refinement in the rule, defendant also attempts to soften the depiction of Mr. Villatoro's zeal in enforcing the rule in plaintiffs' papers, alleging that "children under the age of fourteen . . . who are playing on the grassy common area without supervision are only told that they need supervision if Mr. Villatoro sees that they are doing something wrong." (Opp. at 3). Defendant then proceeds to dispute the fact that the children had the rules applied to them at all, stating that Mr. Villatoro was so lax in his enforcement of the rule (thereby undercutting the safety concern that he says underpins the issuance of the rules in the first instance) that children "were allowed to play outside both supervised and unsupervised." (Opp. at 3). Plaintiffs counter such evidence with instances in which the rules were indeed applied to them even when they were supervising their children.
Understandably, Mr. Villatoro's interactions with tenants with children is the source of controversy in this case. Whether such interactions preceded or followed the issuance of the above-quoted house rule does not detract from the undisputed fact that said interactions did occur, even by Mr. Villatoro's own admission. The nature of those interactions and the tenants involved is recited below.
A. The Families Involved
Plaintiffs Michael Mathews and Donna Mathews, and their minor daughter Mariah, lived at the Arrow Wood Apartments until mid-2007. Plaintiffs John Cuevas and Linda Cuevas lived at the Arrow Wood Apartments with their four minor children (Karyssa, Priscilla, Johnny, and Carlos) and with the children's grandmother, Maria Rios, until mid-2007. Plaintiff Necole McCain currently lives at the Arrow Wood Apartments with her three daughters (Desarae, Necole, and Taylor) and has done so since 1999.
1. Cuevas family
On multiple occasions (estimated to be close to 20 by Mr. Cuevas), the Cuevas children have been ordered to stop playing and to go back inside their units by Mr. Villatoro, even if their parents were supervising them at the time. There is much back and forth as to the substance of these confrontations (what exactly was said, in what tone of voice, to whom, etc.,), but the general point remains that Mr. Villatoro warned the Cuevas family that they would be evicted if they allowed their kids to play outside, explaining that "the rules are the rules." (Pls' Supp'l Notice Lodging, Ex. 13 at 26 (Depo Johnny Cuevas)).
These interactions between Mr. Villatoro and the Cuevas family became so heated that Mr. Cuevas called the police to the apartment complex on 5 or 6 separate occasions. On one such occasion, the police informed Mr. Villatoro that he had to let the Cuevas' children play outside. Mr. Villatoro ignored the officer's statement and, instead, served a 60-day notice to terminate tenancy upon the Cuevas family in the officers' presence. Later Mr. Villatoro confirmed that the 60-day notice to terminate tenancy had been delivered due to the fact that the Cuevases had allowed their children to play in the common area. The Cuevases decided to move out of the apartment complex in mid-2007 shortly after receiving the latest in a string of 60-day notices to terminate tenancy given to them by Mr. Villatoro.
Mr. Villatoro also served 60-day notices of termination of tenancy as a means to force tenants into complying with said house rules, a tactic which Mr. Botz was aware of and did nothing to stop or reprimand Mr. Villatoro for doing. Mr. Botz later admitted he was aware that Mr. Villatoro had sent out such warning notices and that he did not reprimand Mr. Villatoro for doing so.
2. Mathews family
Like the Cuevas family, the Mathews were ordered on many occasions to have their daughter stop playing outside and to go back inside their apartment unit, even if the daughter was being supervised. For instance, on several occasions the 12-year old daughter was outside jumping rope or playing with a soft rubbery ball with her father when she was ordered to stop playing and go back inside. Indeed, Mr. Villatoro admitted that he issued the Mathews a 60-day notice of termination of tenancy on one occasion for letting their daughter play outside even though he knew the father was supervising the child at the time. (Pls' Notice Lodging, Ex. 6 at 45 ("Q. So you gave Exhibit Number 5 [the notice to terminate] to the Mathews because Mr. Mathews and Mariah Mathews[, his daughter] were in the grassy area playing with a soccer ball; is that correct? A. That's correct.") (Depo. Villatoro)).
When Mr. Villatoro served yet another 60-day notice of termination of tenancy in July, 2007, because the Mathews had again let their daughter play outside, the family moved out. (Pls' Notice Lodging, Ex. 6 at 90).
3. McCain family
Necole McCain was told on numerous occasions that her children could not play outside. Again this was true whether or not she was supervising her children at the time. Mr. Villatoro's pursuit in enforcing these house rules was so extensive that she stopped letting them go outside altogether. In fact, her children have "scarcely" been outside at the apartment complex in the last several years.
4. Other tenants (Ms. Carr)
One tenant who is not a party to this suit, Ms. Carr, also testified that she saw lots of other children (including those of the named families in this case) playing outside at the apartment complex unsupervised without being forced to go back inside by Mr. Villatoro. (Pls' Supp'l Notice of Lodging, Ex. 11 at 40 ("I didn't see any — Any of the other kids' parents outside. They [the parents] were always inside. But they [the kids] were running around on the other side of the parking lot with their own group")). Ms. Carr's testimony on this point, however, also seems to stem from the fact that the children playing outside at the apartment complex unsupervised was done in spite of Mr. Villatoro's vigilence in seeking to thwart such activity, rather than with his knowledge, acquiescence, or permission. As Ms. Carr remarked when shown a copy of the house rule written by Mr. Villatoro: "He didn't want any kids outside. He always said, `No kids outside.' It wasn't kids can be outside when we [the parents] were outside, he just said no kids outside. He didn't want nobody playing outside." (Pls' Supp'l Notice Lodging, Ex. 11 at 37).
In short, the implication from her characterization of Mr. Villatoro's mindset on the issue would suggest that the reason she was able to see children playing outside unsupervised was only because Mr. Villatoro had not seen them playing outside. And, indeed, in their own depositions, the named plaintiffs admitted that Mr. Villatoro tended to be uneven in to whom he applied the rules. (Pls' Supp'l Notice Lodging, Ex. 13 at 16 (Depo. Johnny Cuevas) Ex. 18 at 15 (Depo. Necole McCain)). Even defense counsel acknowledged during oral argument that the fact that Ms. Carr saw children playing outside unattended spoke more to Mr. Villatoro's ability to enforce the rule rather than the purpose or intent of the rules to bar such activity in the first place.
Regardless, on October 16, 2007, plaintiffs filed the instant lawsuit against defendant, which was subsequently amended to allege claims for violations of FHA, FEHA, and other state law claims (namely, ones for violation of California's Unruh Act, unfair business practices, and negligence) piggybacking off those asserted fair housing violations.
Notably, it is admitted by Mr. Botz that the house rules that lie at the center of the instant lawsuit have continued to be enforced by Mr. Villatoro in the manner set forth above after this lawsuit was filed without any attempt to dissuade him from doing so.
Thereafter, plaintiffs' filed the instant motion for summary judgment, which turns on whether plaintiffs have established a FHA violation as both sides appear to agree explicitly (at least in their papers) or by their silence (their being no discussion whatsoever on plaintiffs' Unruh claim in either parties papers other than the fact that plaintiffs are seeking summary judgment on that claim as well) that resolution of that question would resolve all the other claims in the case.
II. ANALYSIS
A. Fair Housing Act
The FHA bars discriminating against families. See 42 U.S.C. § 3604(b) (making 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 therewith, because of . . . familial status"). Moreover, the FHA makes it unlawful to "make, print, or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . familial status, . . . or an intention to make any such preference, limitation, or discrimination." 42 U.S.C. § 3604(c). Disparate treatment of children would, by implication, necessarily amount to one directed at families. See Fair Housing Congress v. Weber, 993 F.Supp. 1286, 1290 (C.D. Cal. 1997) (noting that FHA's prohibition of discrimination on the basis of familial status extends to "discrimination against families with children").
Given that California's FEHA statute largely tracts the prohibitions contained in the federal FHA statute, the Court will confine its discussion to the substance of plaintiffs' FHA claim.See Keith v. Volpe, 858 F.2d 467, 485 (9th Cir. 1988) (proving race discrimination for purposes of FHA also established violation of FEHA); see also Moua v. City of Chico, 324 F.Supp.2d 1132, 1141 (E.D. Cal. 2004) ("The provisions of FEHA involved in this case protect substantially the same rights as the FHA provisions at issue and are subject to the same analysis"). If defendant's house rule violates FHA, then it would also violate FEHA.
For the purpose of this motion, plaintiffs are willing to give defendant the benefit of the doubt that the house rule promulgated by Mr. Villatoro does not constitute a blanket ban on all children playing outside (the verbiage in the rule to the contrary notwithstanding), but as one (when the rule is read in its entirety, as charitably interpreted by defendant) barring children from playing unsupervised anywhere outside at the complex. (Pls' Mot. Summ. J. at 4 ("When read together, it appears that children are allowed to play outside if supervised")).
From this starting point, plaintiffs then argue that the house rules, so construed, that were enforced at the apartment complex were discriminatory as they were directed solely at children and treated them different than other persons at the complex. In this regard the apartment complex "limits the use of privileges, services or facilities" at the complex, that is, the common areas, pool, picnic area, etc., "because of familial status." 24 C.F.R. § 100.65(b)(4). The Court agrees.
To establish a prima facie violation of section 3604(b), a plaintiff must show that there were facially discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households. See United States v. Plaza Mobile Estates, 273 F.Supp.2d 1084, 1091 (C.D. Cal. 2003); Weber, 993 F.Supp. at 1292; see also United States v. Badgett, 976 F.2d 1177-78 (8th Cir. 1992) (McDonnell-Douglas burden shifting approach is to be applied to FHA cases). Thus, a violation is established if it is shown that there is a discriminatory impact or treatment of children.
Once a plaintiff has established a prima facie case, a presumption of discrimination arises that can only be rebutted by defendant articulating a non-discriminatory explanation for the restriction that "establish[es] that their rules constitute a compelling business necessity and that they have used the least restrictive means to achieve that end." Plaza Mobile, 273 F.Supp.2d at 1091 (quoting Weber, 993 F.Supp. at 1292); see also Fair Housing Council v. Ayres, 855 F.Supp. 315, 318-19 (C.D. Cal. 1994).
Insofar as section 3604(c) is concerned, "[t]he standard for determining whether a given statement violates [that section] is whether the statement suggests a preference to the ordinary reader or listener." Weber, 993 F.Supp. at 1290. No discriminatory intent is required to be proven. Id.
The rules in question in this case are discriminatory on their face in that they only apply to children's access to outdoor areas at the apartment complex; similar restrictions are not placed on adults access or use of the same areas. Plaintiffs cite to a litany of cases in which such outdoor use restrictions applied to children has been found as facially discriminatory for purposes of section 3604(b), see Plaza Mobile, 273 F.Supp.2d at 1091 (finding supervision based restrictions on "all" children "walking around the park" as being "facially discriminatory" for purposes of section 3604(b)), and as being understood as such by an ordinary reader or listener for purposes of section 3604(c).See Weber, 993 F.Supp. at 1292 (finding a rule that "children will not be allowed to play or run around inside the building area" was facially discriminatory for purposes of section 3604(c)).
Defendant does not attempt to refute the fact that the house rules in question are facially discriminatory, are understood as such, and that plaintiffs thus have established a prima facie case of discrimination. (Def's Opp. at 5 ("Plaintiffs contend that they have made a sufficient showing that the Arrow Wood Apartments treat children, and thus families with children, differently and less favorably than adults-only households. . . . Notwithstanding their contention, defendant has sufficient evidence to demonstrate that there is a legitimate justification for the Arrow Wood Apartment rules and further there is evidence that all of the children who are plaintiffs in the instant action played outside of their apartments with and without adult supervision") (emphasis added)).
Instead, defendant offers two responses: (1) That despite the facially discriminatory nature of the house rules in question, in fact, plaintiffs' children were allowed to play in the outdoor areas of the apartment complex "with and without adult supervision," and (2) there was a legitimate business justification for the rules owing to concerns over children safety after the parking lot incident in which a three-year old was hit and killed by a car driven by her father. (Opp. at 5). Neither argument withstands scrutiny.
As to evidence on the first point, defendant references the deposition testimony of Ms. Carr noted earlier where she stated that she saw children playing outside at the apartment complex without any adult supervision without being forced to go back inside by Mr. Villatoro. However, not only did Ms. Carr also testify that Mr. Villatoro was bent on keeping children inside the apartment, but in any event this evidence does not prove the converse, namely, that all children (plaintiffs' children included) were allowed to play outside with or without supervision and that the house rules were not enforced as written. Instead, this evidence simply proves that Mr. Villatoro was not as effective in enforcing the house rules in all instances in which they could have been enforced. That children were able to escape his watchful eye does not prove that the rule was not enforced or that Mr. Villatoro was not seeking to enforce said rules. Indeed, undisputed evidence in the record points out that quite the opposite is true: Mr. Villatoro himself admitted in his own deposition testimony that he issued notices of termination tenancy to various families at the apartment complex, notably to the Mathews and Cuevas families in this case, precisely because he saw children playing outside (even when those children were accompanied by or under the supervision of their parents or adults). (Pls' Supp'l Noitce Lodging, Ex. 12 at 37 (stating that he gave a 60-day notice of termination of tenancy to the Mathews family because their "daughter was playing ball") (Depo. Villatoro)). Elsewhere in his deposition testimony, Mr. Villatoro stated that "sometimes" he would not enforce the rules when he saw children playing outside unsupervised in the grassy areas at the complex, necessarily implying, of course, that sometimes he would. (Def's Opp. Ex. A at 31-32 ("Q. Within the last month, have you seen children running around the grassy common areas of the complex who are under 14 years old without supervision? A. Sometimes I don't say anything, just pass by. Q. But sometimes do you tell those kids who are playing in the grassy areas that they have to have supervision? A. Sometimes no.")).
Far from suggesting that the rules were never enforced, Mr. Villatoro's deposition testimony clearly establishes that he either was not as efficient in detecting all instances in which the rules were infracted, or that his enforcement of the rules was unevenly applied. Again, plaintiffs have never suggested that their children never made it outside to play, just that Mr. Villatoro did on occasion enforce the rule against them from doing so.
This leaves the business justification for the house rule — that the rule was put in place out of concern for the safety of the children at the apartment complex arising from the accident in the apartment's parking lot. As explained by defendant, fast cars driven in the apartment parking lot make it a "very dangerous" place, especially for children as, again, demonstrated by the accident. The purported rationale for the rule also offers up its own refutation — its broad breadth demonstrates that it could not and was not the least restrictive means for achieving the ends offered to justify the rule.
If concern for children was the reason for the rule because of the parking lot incident, then the question arises why the rule was applied to all children playing on any outdoor area of the complex. Clearly the rule was not limited to children playing in the parking lot. Instead of being drawn to narrowly apply to those parts of the complex that were the object of concern, the rule was over-broad both in its language (absolute prohbition) as well as in the manner in which it was enforced by Mr. Villatoro (applied to any and all activities occurring at any and all places located on the apartment complex). To justify the restriction on these grounds, there must a tighter fit between the areas and activities covered by the rule and the rationale for the rule in the first instance. Cf. United States v. M. Westland Co., CV-93-4141, Fair Housing-Fair Lending ¶ 15,941 (HUD ALJ 1994) (upholding rules requiring adult supervision of very young children during specified activities (swimming, riding bikes), but finding unlawful blanket rules requiring adult supervision of all children for use of large areas of the complex). Barring all children from playing outside unsupervised, no matter what the activity, strikes the Court as being as poorly tailored as the disapproved ban on unsupervised swimming which included a 17-year-old lifeguard in Westland, or the disapproved ban on all children's play, even a quiet, safe game of checkers in Weber. Banning a round of little girls playing soccer or a game of tag in the grassy common area or near the picnic tables of the complex simply does not serve to vindicate the rationale for the rule of protecting children from "fast cars" in a parking lot.
As the court in Plaza Mobile commented when confronted with a health and safety justification for a rule barring all children from playing in the mobile complex's common areas: "Although the health and safety of the children and other residents of the park are legitimate concerns, these absolute prohibitions are not the least restrictive means to achieve such ends. Certainly, prohibiting all `children' from playing in common areas while allowing `adults' to do so cannot be justified." 273 F.Supp.2d at 1092. This Court agrees. Given that the source for the safety concern was confined to the complex's parking lot, the rule could have certainly been more narrowly tailored to be limited to just that area of the complex. Instead, the rule applied to all areas of the apartment complex even those not immediately adjacent to the parking lot.
This leads to another defect with the asserted rationale for the rule — there were less restrictive means for achieving the goal sought other than the restrictions contained in the rule. Placement of additional or more effective speed bumps and other traffic calming devices throughout the apartment parking lot complex and more effective enforcement of traffic safety laws both could have achieved the same end without the need for the discriminatory rule. Indeed, the concerns proffered are not necessarily linked to age, as racing cars in a parking pose as much of a safety problem for adults, particularly the aged or infirm, as they do for children.
Moreover, given the unrebutted evidence (indeed the admission by Mr. Villatoro) that the apartment manager applied these house rules to children who were under the supervision of their parents or other adults at the time they were outside, there existed as yet another leasser restrictive means to achieving said ends — the requirement of adult supervision for small children.
Aside from the fact that the house rules were applied to areas of the complex other than the one giving rise to the concerns prompting their issuance, there is yet another problem with the asserted justification — it is so all-encompassing as to threaten to justify any restriction placed on children wherever and whatever they may be doing or be. As the court noted in Plaza Mobile, "[c]ertainly, prohibiting all children from walking around the park without adult supervision is overly broad regardless of the concern." Id. Concerns that children will get hurt while playing outside, be it nicks, scratches, bumps or bruises, have been concerns dogging parents since the dawn of time. Were such ever-present, generalized concerns deemed sufficient in and of themselves to justify outdoor use restrictions to an apartment complex, there would be little place left that such a rule would not be considered valid. In short, the mantra of child safety cannot and is not sufficient to justify a restriction absent some showing that the particular concern captured by this rationale has a concrete connection to the particular area and activity sought to be restricted. For the reasons set forth above, such a nexus between the rationale and the scope of the rule is not established in this case.
Finding that the house rules at the Arrow Wood Apartments indeed did constitute a violation of the FHA, plaintiffs are entitled to summary judgment on that claim as well as the mirror FEHA claim and the claim attendant to both, namely, the unfair business practices act claim (the business practice in question being promulgating rules that violate the FHA and FEHA).
B. Negligence
Insofar as the negligence claim is concerned, plaintiff argues that defendant was under a duty to supervise and train its apartment manager to not violate the standards set forth in FHA and FEHA, a legal proposition some courts have adopted. See Ihama v. Bayer Corp., 2005 WL 3096089 (N.D. Cal. Nov. 14, 2005); see also Punla v. Terminal Maintenance Co., 2006 WL 708653 *6 n. 3 (N.D. Cal. March 16, 2006) (noting that it is possible to impose a common law duty to supervise arising under the standards set forth in FEHA). Plaintiffs have then submitted unrebutted evidence that defendant (through Mr. Botz) did not train or supervise Mr. Villatoro in meeting and adhearing to the standards set forth in FHA and FEHA. To all of this defendant have not proffered any argument or submitted any evidence; indeed, defendant failed to even address the arguments in plaintiffs' motion for summary judgment concerning the negligence claim. (See Mot. Summ. J. at 15-16). Accordingly, the Court finds that plaintiffs are entitled to summary judgment on the negligence claim as well.
Accordingly, plaintiffs motion fo summary judgment is GRANTED IN PART and DENIED IN PART. Plaintiffs are GRANTED summary judgment as to liability on their FHA, FEHA, unfair business practices, and negligence claim, and are DENIED summary judgment on their Unruh Act claim.