Opinion
6:20-cv-00562-MK
09-08-2022
DOUGLAS MYERS; and TERESA MYERS Plaintiffs, v. HIGHLANDS AT VISTA RIDGE HOMEOWNERS ASSOCIATION, INC.; KAY HENDERSON; DENNIS KINNEY; and ROGER STOCKSTAD, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiffs Douglas and Teresa Myers filed this lawsuit in April 2020 pursuant to the Fair Housing Act Amendments, 42 U.S.C. § 3601 et seq. (“FHA”), Or. Rev. Stat. (“ORS”) § 659.145, and Oregon state law against Defendants Highlands at Vista Ridge (the “Highlands”), Kay Henderson, Dennis Kinney, and Roger Stockstad (collectively “Defendants”). Compl., ECF No. 1. Pending before the Court is Defendants' motion for summary judgment, which Plaintiffs oppose. See Def.'s Mot. Summ. J., ECF No. 38 (“Defs.' Mot.”); Pls.' Resp. Opp'n Defs.' Mot. Summ. J., ECF No. 43(“Pls.' Opp'n”); see also Defs.' Reply, ECF No. 48. For the reasons that follow, the motion should be GRANTED in part and DENIED in part.
BACKGROUND
Plaintiffs are a married couple residing at the Highlands. Douglas Myers Decl. ¶ 3, ECF No. 44 (“D. Myers Decl.”). Defendants are a homeowner association (“HOA”) for residents 55 and older governed by Covenants, Conditions, and Restrictions and By-Laws (“CC&Rs”). Hill Decl., Ex. 1, ECF No. 39-1.
The Highlands has separate upper and lower Recreational Vehicle (“RV”) parking lots. The upper RV lot is located in the northwest part of the community and the lower RV lot is located in the southwest. D. Myers Decl. ¶ 11, ECF No. 44. Both lots are surrounded by a six-foot-high chain-link fence topped with three strands of barbed wire that are angled outwards. Id. ¶ 12. Most of the Highlands west boundary has a cattle fence. Id. ¶ 13 ECF No. 44. However, the cattle fence is not the official boundary between HOA and the neighboring properties. Id. ¶ 14.
Plaintiffs own lots 77 and 78 in the southwest area of the Highlands. Id. ¶ 4. Plaintiffs own a house on lot 78, where they lived for most of the relevant time. Id ¶ 6. Plaintiffs plan to build a house on lot 77 and then reside there. Id. ¶ 7. South of the upper RV lot is lot 79, immediately south of lot 79 is lot 78, immediately south of lot 78 is lot 77. Id. ¶ 11.
The Highlands has multiple CC&Rs and By-Laws that are relevant to the pending motion for summary judgment:
5.7. Fences on the Lots shall only be allowed in the back yard of homes in THE HIGHLANDS. No fence shall protrude past the front corner of any home in THE HIGHLANDS. No fence or hedge shall exceed a height of six (6) feet, and all hedge located within the applicable set-back areas from the front Lot line and side street lines shall not be in excess of three (3) feet in height. Vehicular traffic sight lines must be preserved within the applicable Lot set-backs.
5.21 Completion of Work. The Lot Owner shall complete the construction, reconstruction, refinishing or alteration of any improvement within four (4) months after commencing construction thereof ....
6.1.5 No noxious, offensive or unsightly conditions are permitted on any Lot, nor may anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. Each Owner shall maintain their Lot, grounds, landscaping and the like in a well-care for manner ....Hill Decl., Ex. 1 at 41, 44, 46, ECF No. 39-1.
3.13 Liability and Indemnification of Directors, Manager or managing Agent. The Directors shall not be liable to the Association or the owners of parcels or residential units for any mistake of judgment, negligence, or otherwise except for their own willful misconduct or bad faith ....
7.7. Abatement and Enjoying Violations. The violation of any rule or regulation adopted hereunder or the breach of any Bylaw contained herein or any provisions of the Declaration shall give the Board of Directors, acting on behalf of the Association the right, in addition to any other rights set forth in these Bylaws and the Declaration:
7.7.1 To enter the residential unit or upon the parcel in which or as to which such violation exists and to summarily abate and remove, at the expense of the defaulting owner, any structure, thing, or condition that may exist therein contrary to the intent and meaning of the provisions hereof, and the Board of Directors shall not thereby be deemed guilty of any manner of trespass.Hill Decl., Ex. 2 at 8, 15, ECF No. 39-2.
Teresa Myers is a person with disabilities. In early October 2016, several vehicle break ins occurred in the “upper RV lot.” D. Myers Decl. ¶ 15, ECF No. 44. At the time of the break ins, three sections of the fence were not covered with barbed wire. Id. ¶ 16. The western-most section of the fencing, however, was secured with barbed wire. Id. The perpetrators did not break-in on the side covered with barbed wire. Id. The HOA subsequently approved $1,400 to add barbed wire to the three sections of fencing at the “upper RV lot.” Id. ¶ 17.
During the investigation of the break-in by the Douglas County Sheriff's Department, an individual suspected of murder was seen near the western edge of the Highlands. Id. ¶ 18. The break in and report of the murder suspect exacerbated Teresa Myers anxiety, causing her to feel unsafe and insecure in her own home. Teresa Myers Decl. ¶ 9, ECF No. 45 (“T. Myers Decl.”). The break-in triggered Teresa Myers's anxiety due to the proximity to her home and the report of a suspected murderer. Id. ¶ 25.
On October 6, 2016, Douglas Myers sent an e-mail to members of the Highlands expressing concerns about the security of the community. Hill Decl., Ex. 3, ECF No. 39-3. He proposed a chain-link fence along the entire western boarder of the Highlands, “TOPPED WITH three barb[ed] wire strands.” Id. (capitalization in original). The email went on to explain that “the fence would be on common property (the 10' strip on the boundary) and would therefore need HOA approval but I doubt the HOA would be a financial participant except maybe if the fencing were extended from the RV lot north along the ‘vacant (common) space' to the corner of Bob and Ginger Casselton's lot.” Id. The email explained that if the neighbors did not participate, the Myers might erect a fence “only on the west side of our lots.” Id.
On October 13, Douglas Myers sent another email, adding the members of the HOA Board, with the exception of Kay Henderson, stating “that the Board approved” the creation of an “Ad Hoc (‘temporary') committee to attempt to find consensus on perimeter fencing in (a portion of) the First Addition” and received “indications of interest” from four members of the Highlands. Hill Decl., Ex. 4, ECF No. 39-1.
On October 28, Douglas Myers advised neighbors through an email of the Ad Hoc committees' mission:
The mission of the Committee is to explore enhancing property values and decreasing the prospects for mischief from outside the community by a cost shared perimeter security fencing initiative with interested Lot owners, possibly leveraging Association funding. I realize you are not at personal risk of a burglary that might occur at your house here. However the fencing may be viewed as a property value enhancer to prospective buyers/lessees of your property, as they would be exposed to similar risks as that of many nearby lots along this southwest boundary.Hill Decl., Ex. 10.
By late October, Douglas Myers had eight signatures, including his own, supporting “perimeter security fencing in the community beginning with the First Addition.” Hill Decl., Ex. 5.
By November 2016, Myers had obtained 13 additional signatures. Hill Decl., Ex. 6. On November 4, however, two individuals withdrew their names from the petition because they did “not agree with the fencing.” Hill Decl., Ex. 9. That same month, Douglas Myers submitted a Board Action Request (“BAR”) to the Highlands. Hill Decl., Ex. 8. The BAR requested a “perimeter security fencing project in/near First Addition for Association ownership ....” Id. It also asked for a financial commitment. Id.
The Board ultimately rejected the BAR, which prompted Douglas Myers to send the following email:
No sugar-coating this; it was a tough day yesterday. Some of that involved our perimeter security fencing initiative at the Board meeting. Not only was that Board request going down in flames, it also became clear that an alternative request that would have merely proposed HOA approval for owner-funded fencing with no HOA contribution would result in a HOA meltdown. The sort of it is that I regard all pledge makers as released from their pledges; the proposal is dead. I thank you for your honorable support. My
analysis is that reason cannot prevail. In retrospect, I consider that it was probably not ideal for me to advance this proposal. The apparently remaining angst from my historical involvement in community leadership probably doomed this from the beginning.Hill Decl., Ex. 10, ECF No. 39-1.
In January 2017, Douglas Myers submitted an amended BAR indicating he had received “[s]ome disparaging arguments . . . assert[ing] that security fencing diminishes property values.” Hill Decl., Ex. 11, ECF No. 39-1. The Amended BAR further noted that in “the last gathering, audience members spoke bluntly in opposition to this matter.” Id. at 2. The Amended BAR also discussed Teresa Myers' fear of walking in the dark to and from her home. Id. The Highlands confirmed receipt of the Amended BAR on January 10 and noted that it would be considered at the January 12 Board meeting. Hill Decl., ¶ 13; see also id. Ex. 12.
On January 25, counsel for the Highlands reviewed the CC&Rs and advised the Board in a written letter he saw no obligation for them to consider the Amended BAR and that Plaintiffs could “certainly” erect a fence along the back of their property if they desired to do so. Hill Decl., Ex. 13.
The Board shared the letter with Douglas Myers who responded by telling the Board the Amended BAR would be no cost to the association on February 1. Hill Decl., Ex. 14. The next day Highlands responded that it “agreed that [Plaintiffs] were free to build a fence on [their] property just like any other homeowner.” Hill Decl., Ex. 15. Douglas Myers responded several hours later that “building a fence on [Plaintiffs'] lot d[id] not work either for us or the Association for several reasons besides defying logic and reason” and indicated that he intended to file a lawsuit. Id. (“seems we'll get to do that thru [sic] third party [sic] representing [and] educating the attorneys on the issues and aspect of the matter with the money meter ticking”).
On March 7, Plaintiffs' counsel sent a letter to the Highlands. Hill Decl., Ex. 16, ECF No 39-3. The letter explained that Plaintiffs' “intent in [building a fence on the western border] is to prevent traffic of individuals and animals from outside of the development from traveling into the development.” Id. The letter also asked the Board to permit the fencing ad-hoc committee to meet prior to the Board's consideration of the Amended Bar. Id.
On March 9, the amended BAR was considered and rejected at the Board meeting, with four out of five board members opposing. Hill Decl., Ex. 17. On March 23, Plaintiffs' counsel wrote to the Board expressing Plaintiffs' discontent with the denial of the amended BAR and offered “to engage in alternative dispute resolution to resolve the issues.” Hill Decl., Ex. 18.
On the same day, Plaintiffs' counsel sent a second letter, demanding a fencing project as a reasonable accommodation “in accordance with the Federal Fair Housing Act, and (and specifically including the provisions of 42 U.S.C. §3604(f)(3)(B).... This request, now made under the reasonable accommodation provisions of the Federal Fair Housing is identical to the one previously proposed by my clients to the Association.” Decl. Ex. 19. On April 4, Teresa Myers' treating physician, Lawrence Ho, MD, wrote a letter in support of her request for a reasonable accommodation. Hill Decl., Ex. 20.
The Highlands' counsel responded 10 days later, writing that Plaintiffs were allowed to build “a six-foot fence along their property if [they felt] insecure, and moving the fence 10 to 15 feet to the west accomplishes nothing.” Hill Decl., Ex. 21. Defendants' counsel went on to explain that they “did not see where there [was] either a handicap or a failure to make reasonable accommodations, nor [did he] see that 42 USC § 3604 or the federal Fair Housing Act applies to this matter.” Id.
On May 3, Plaintiffs' representative from the Fair Housing Council wrote demanding the construction of a fence on the western border of the community. Hill Decl., Ex. 22, ECF No 393. The letter asserted that because Plaintiffs had offered to cover the costs of the fencing, it was a “reasonable modification.” Id.
On May 23, Highlands' counsel wrote Plaintiffs advising that Defendants understood that Plaintiffs were no longer residing on lot 78. Hill Decl., Ex 23. Defendants advised that if the move did not make Plaintiffs' request moot, Defendants requested more information about the nature of Teresa Myers' disability, specifics about the proposal for the fence, and how the fence would address the alleged disability. Id.
On June 22, Plaintiffs-now represented by their current counsel-agreed to share information on the condition that the Highlands agree in writing to maintain the information as confidential. Hill Decl., Ex. 24. The letter proposed construction of a 500-foot-long fence along the “true western border” of the community: “from the southwest corner of the upper recreational vehicle parking lot to the southwest corner of the community.” Id. Plaintiffs proposed that the fence match the fencing that already surrounded the RV parking lot-i.e., six feet high and consisting of chain-link fencing with three strands of barbed wire. Id. Finally, the letter separately alleged that a landscaper Plaintiffs hired to clear weeds was instructed by “HOA officials” not to clear anything past the cattle fence and, “[b]ased on this erroneous information, this person ceased working for the Myers.” Id.
On July 18, the Highlands advised Plaintiffs that it would not agree to a fence along the entire western boundary. Hill Decl., Ex. 25. However, the Highlands agreed to “other fashions” to address Plaintiffs “security concerns” including “[a] solid wood, six-foot-tall fence along the border of Lots 77 and 78,” or an “adequate home alarm system[.]” Id. The letter also advised Plaintiffs that they were “authorized to clear weeds on the common property; and at no time did any representative of the Homeowners Association discuss weed abatement with an employee of Mr. Myers.” Id.
Approximately eight months later, in April 2018, Plaintiffs completed an Architectural Review Committee Project Review Form (“ARC”) asking to “change color of shutters (4) to match white trim.” Hill Decl., Ex. 26. The request was approved on April 17. Id.
During an April 26 Board meeting, Plaintiffs' neighbors complained that the “Myers['] lot need[ed] to be finished and cleaned up.” Hill Decl., Ex. 27. On May 7, the ARC, through Ray Salyer, gave written notice to Plaintiffs that they must “mow the weeds/grass growing on [their] property Lot 77,” as well as “that rock pile be leveled to conform to the natural lay of [t]he land of Property Lot 77.” Hill Decl., Ex. 28.
In May 2018, Plaintiffs made their final request for fencing at the Annual Membership Meeting. D. Myers Decl. ¶ 34, ECF No. 44. As a motion to the membership, Douglas Myers requested that the HOA permit the building of fencing along the western boundary of the community, at Plaintiffs' own expense. Id. ¶ 36. The presiding officer at the meeting, however, stated the motion was inappropriate and refused to allow the membership to vote on it, effectively denying the request. Id. ¶ 37.
On June 30, the ARC sent notice to Plaintiffs that there was an easement between Lots 77 and 78 and requested the removal of signs. Hill Decl., Ex. 29, ECF No. 39-3.
On July 28, the Board's secretary wrote to Douglas Myers and advised that “before the treasurer can write you a [reimbursement] check for the weed abatement for the perimeter of the common area of lot 78, she needs a statement as to who actually did the work and when.” Hill Decl., Ex. 30, ECF No. 39-3.
Plaintiffs' counsel responding two days later, writing to address “the actions of two board members toward Mr. Myers[.]” Hill Decl., Ex. 31. Specifically, the letter alleged that on July 29, 2018, Roger Stockstad and Dennis Kinney-members of the Board-“accosted Mr. Myers about a couple of issues,” including rock piles on lot 77, “threatening” to come onto Mr. Myers' land to clear the rocks themselves. Id.
On August 3, Stockstad and Kinney wrote and signed a joint statement regarding the July 29 encounter:
On July 29th 2018 Dennis Kinney got a call from Margo Wilkins that two men were cutting down her trees and asked if he would look into it for her. As neighbors and board members Dennis and I (Roger Stockstad) went to see if we could help her. We did find out and know it to be true that the trees in question were in fact on the property of Doug and Theresa Meyers [sic].Hill Decl., Ex. 32. The joint statement also asserted that, it was their “right as board members, (CC&R 7.3.4 page 10) to conduct such examination and can not [sic] be deemed guilty of treepass [sic] on this or any other activities related thereto.” Id.
Five days later, the Highlands' responded to Plaintiffs, taking issue with the July 30 letter. Hill Decl., Ex. 33. Defendants asserted that Stockstad and Kinney had a prerogative to enforce the CC&Rs and By-Laws of the Highlands based on their status as board members. Id.
On August 22, Douglas Myers wrote to Ray Salyer and the ARC confirming “completion of work of the gabion basket filling project on our lot 77.” Hill Decl., Ex. 35. He also explained that any remaining rock on lot 77 “should be exhausted in the next few weeks.” Id.
On September 10, Douglas Myers responded to the July 28 letter regarding reimbursement for weed abatement. Hill Decl., Ex. 35. The letter claimed the “weed abatement work was done immediately before the requested reimbursement.” Id. at ¶ 1.
On April 6, 2020, Plaintiffs filed this lawsuit. Compl., ECF No. 1.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
I. Preliminary Issue
Before reaching the substantive merits of Defendants' motion, the Court must address one preliminary issue: the scope of the Court's prior discovery sanction regarding Plaintiffs' failure to produce medical treatment records.
In March 2021, Defendants filed a motion to compel discovery of medical records related to Teresa Myers disability. Mot. Compel, ECF No. 25. As relevant here, Interrogatory No. 5 asked Plaintiffs to “[l]ist and describe the factual basis for the allegation that you are ‘a person with disabilities under 42 U.S.C. §3602(h) and ORS 659A.104,' including but not limited to identifying the medical and/or mental condition which you claim is a disability.” Id. at 9. The Court granted Defendants' motion and ruled in relevant part as follows:
To the extent Interrogatory No. 5 required Plaintiffs to divulge otherwise confidential medical records, the parties moved for, and the Court had previously granted, a stipulated protective order the previous month. ECF Nos. 21, 23.
It appears Plaintiffs have provided some supplemental discovery subsequent to Defendants' filing of their motion to compel. Any outstanding discovery must be produced within 30 days of this order or Plaintiffs must show cause why they cannot produce the supplemental discovery within that timeframe. If Plaintiffs cannot provide good cause for not producing supplemental discovery within 30 days, Defendants may petition the Court for their costs and expenses.ECF No. 28; see also Mot. Compel, ECF No. 25 (explaining that “Plaintiffs ha[d] not provided any documents related to Mrs. Myers' alleged serious health condition, despite receiving requests for production” and noting that “Plaintiffs ha[d] also provided incomplete answers to [Defendants'] interrogatories, despite multiple requests”).
After Plaintiffs failed to produce the discovery responses as ordered by the Court, Defendants moved for sanctions for failing to comply with this Court's order. Mot. Sanctions, ECF No. 29. After reviewing the parties' submissions on the motion for sanctions, the Court imposed the following sanction:
Any evidence not produced by the Court's 5/19/2021 deadline will be excluded from Plaintiffs' case-in-chief for failure to comply with the Court's discovery order. See ECF No. 28; see also Fed.R.Civ.P. 37(b)(2)(A)(ii) (explaining that sanctions for failing to obey a discovery order may include “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence”). Further, the Court finds that Plaintiffs' failure to produce discovery as ordered was not substantially justified and will therefore award reasonable
attorney fees and costs associated with Defendants' motion to compel and motions for sanctions. See Fed.R.Civ.P. 37(b)(2)(C). Defendants have thirty (30) days from the entry of this Order to submit documentation in support of their requested fees and costs. Fact discovery in this case is closed.ECF No. 33 (formatting altered); see also Dec.16 Attorney Fee Order, ECF No. 37 (awarding $4,049.00 in attorney fees).
In Plaintiffs' response in opposition to Defendants' motion for summary judgment, Plaintiffs submitted a Declaration from Dr. Ho, which alleged as follows:
1. I am over 18 years of age, and I am competent to testify as to the following facts based on personal knowledge.
2. I am a medical doctor and a clinical associate professor with the University of Washington Division of Pulmonary, Critical Care and Sleep Medicine, working at the University of Washington Medical Center in Seattle, Washington. I received my medical degree from Northeast Ohio Medical University.
3. Teresa Myers is a patient at the University of Washington Medical Center who is under my care. Mrs. Myers regularly received treatment from me during the time she resided at The Highlands at Vistage Ridge.
4. I have treated Mrs. Myers for interstitial lung disease.
5. Mrs. Myers' lung disease limits her major life activities to a large degree. The impact of this impairment on her major life activities is, at a minimum, long term.
6. In my time treating Mrs. Myers' I have also learned that she has anxiety. Her anxiety also limits her major life activities to a large degree, and the impact of anxiety on her major life activities is, at a minimum, long term.
7. I understand that Mrs. Myers anxiety substantially limits her major life activities by making her feel unsafe and insecure, even in her own home. It also caused her to have heart palpitations and panic attacks.
8. During my course of treating Mrs. Myers, I prescribed her Prednisone for her lung disease. This was necessary treatment, and
it improved her lung function significantly.
9. I am aware, however, that anxiety is a side effect of Prednisone. I learned that, for Mrs. Myers, her anxiety became exacerbated after she started taking Prednisone. This also exacerbated the limitations her anxiety had on her major life activities.
10. In April of 2017 I wrote a letter for Mrs. Myers. The letter explained that, due to her disabilities, Mrs. Myers needed an accommodation to her living environment that would reduce her anxiety for her physical safety. Attached as Exhibit 1 to this Declaration is a true and correct copy of the letter I wrote for Mrs. Myers.
11. The desired accommodation of providing Mrs. Myers a safe and secure environment would have affirmatively enhanced her quality of life by ameliorating the effects of her disabilities.
12. Based upon my treatment of Mrs. Myers, my education, and my experience, if Mrs. Myers had been granted an accommodation to install security fencing, she would have been able to use and enjoy her home to the same extent as other people who do not have her disabilities.Ho Decl., ECF No. 48.
Defendants move to strike paragraphs 2-9 and 11-12 of the Ho Declaration because it is “nothing more than an attempt to circumvent the Court's exclusionary Order and the scope of that testimony is not permitted under the rules for non-retained expert testimony.” Defs.' Reply 2, ECF No. 48. Although expressly permitted to do so by local rule, Plaintiffs did not respond to Defendants' evidentiary objections. See LR 56-1(b) (“[i]f an evidentiary objection is raised by the moving party in its reply memorandum, the non-moving party may file a surreply memorandum [within] seven days”).
Defendants' argument is well taken. Allowing Plaintiffs the benefit of Dr. Ho's expert opinion without allowing Defendants to inspect the underlying medical records that Plaintiffs failed to produce in discovery would be an end run around this Court's sanction order. Paragraphs 2-9 and 11-12 of the Ho Declaration are therefore STRICKEN.
Defendants also move to strike portions of Plaintiffs' declarations as inadmissible because the statements are unsupported legal conclusions or inadmissible hearsay. Defs.' Reply 5. The Court declines to strike the evidence in question from the record. This Court is fully capable of independently resolving evidentiary conflicts in the record and questions of admissibility. See Daugherty v. Deschutes Cnty., No. 6:19-cv-00897-MK, 2021 WL 2784761, at *5 (D. Or. May 6, 2021), adopted, 2021 WL 2784267 (D. Or. July 2, 2021); see also Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) (“[O]bjections to evidence on the ground that [the evidence] is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.”); JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (noting that “at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony”). Accordingly, the Court is not bound by either party's characterization of the evidence and instead independently reviews the record and only considers evidence properly before it when determining whether summary judgment is appropriate. Defendants' evidentiary objections to Plaintiffs' declarations are OVERRULED.
II. Housing Discrimination Claims
The FHA prohibits discrimination in the provision of housing services because of a disability. 42 U.S.C. § 3604(f)(2). “Discrimination” includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Id. § (f)(3)(B). Oregon's fair housing statute is substantially similar to the federal law, and the two are interpreted identically. Hernandez v. Golf Course Ests. Home Owners Ass'n, 454 F.Supp.3d 1029, 1035 (D. Or. 2020). As discussed below, Defendants move for summary judgment on both of Plaintiffs' FHA reasonable accommodations and disparate treatment claims.
This F&R “uses the terms ‘disability' and ‘disabled,' except when referring to the FHAA's statutory language, which uses ‘handicap' and ‘handicapped.'” Giebeler v. M & B Assocs., 343 F.3d 1143, 1146 (9th Cir. 2003) (citing Helen D. v. DiDario, 46 F.3d 325, 330 n.8 (3d Cir. 1995) (“The change in nomenclature from ‘handicap' [in the Rehabilitation Act] to ‘disability' [in the Americans with Disabilities Act] reflects Congress' awareness that individuals with disabilities find the term ‘handicapped' objectionable.”) (bracketing in Helen)).
A. Reasonable Accommodation Claim
To establish a prima facie case of discrimination for failing to provide a reasonable accommodation, a plaintiff must show that: (1) they suffer from a disability as defined by the FHA; (2) defendants knew or reasonably should have known of the plaintiff's disability; (3) accommodation of the disability may be necessary to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation. Giebeler v. M& B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (citation and quotation marks omitted). “The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” United States v. Cal. Mobile Home Park Mgmt., Co., 107 F.3d 1374, 1380 (9th Cir. 1997). A Plaintiff bears the burden of proving that the requested accommodation is reasonable and necessary on its face. Giebeler, 343 F.3d at 1156. If a plaintiff meets their initial burden, the defendants may rebut the presumption of reasonableness and necessity by showing that the accommodation would cause undue hardship in the particular circumstances. Id.
Ninth Circuit case law identifies four elements in FHA claims, although some courts have listed five. This is because the reasonableness of the accommodation-a threshold inquiry-is incorporated into the analysis at different stages by different courts. Compare Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (listing four elements of a reasonable accommodation claim), and United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997) (same), with Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (listing five elements of a reasonable accommodation, including reasonableness of accommodation).
1. Threshold Issues
The Court must address two threshold issues before analyzing the merits of Plaintiffs' reasonable accommodation claim: (a) whether the statute of limitations bars Plaintiffs' claims in their entirety; and (b) whether Douglas Myers has standing to bring an FHA claim on behalf of Teresa Myers.
a) Statute of Limitations
Claims for reasonable accommodation under the FHA and OFHA must be brought within two years of the occurrence. 42 U.S.C. § 3613(a); ORS § 659A.840.
Defendant asserts that the statute of limitations bars Plaintiffs' reasonable accommodations claims. Defs.' Mot. 21-22. While several of the accommodation requests contained in the Complaint fall squarely outside the two-year window, Plaintiffs' May 2018 request was timely. Defendants contend that such a request-i.e., a motion at a board meeting of annual housing association membership meeting-cannot serve as a reasonable accommodation request under the FHA. Defs.' Reply 12-13; see also id. at 13 (“Reasonable accommodations, by law, are not to be ‘voted' on by members of the community but are required when the legal conditions are met.”). However, Defendants fail to direct the Court to any binding authority so holding and courts that have weighed in on a related issue have found that HOAs can in fact vote on accommodations. See, e.g., Hernandez, 454 F.Supp.3d at 1036 (“When board members grant or deny a requested accommodation, they know of the disability.”). As such, Defendants' statute of limitations argument fails.
The parties also dispute whether the “continuing violation doctrine” applies in this case. Because the Court concludes that Plaintiffs' May 2018 request was timely, it need not reach the issue.
b) Standing
Standing to bring a claim under the FHA is broad, constrained only by Article III of the United States Constitution. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982). A plaintiff need not be the victim of the complained discrimination; however, the plaintiff must have suffered some “distinct and palpable injury” from the discriminatory conduct. Id.; San Pedro Hotel Co. v. City of L.A., 159 F.3d 470, 475 (9th Cir.1998). Accordingly, a plaintiff-like Douglas Myers here-may assert a reasonable accommodation claim on behalf of a person with a disability, even though they have not alleged that they are disabled. See Budnick v. Town of Carefree, 518 F.3d 1109, 1119 (9th Cir. 2008) (evaluating whether the plaintiff, a non-disabled developer seeking to build a retirement community, suffered from a disability defined by the FHA, and looking at the characteristics of the potential residents of the retirement community, not the plaintiff).
Defendants assert that Douglas Myers does not have standing to bring a reasonable accommodation claim because he (1) has not suffered some “distinct and palpable injury”; and (2) cannot bring a claim on behalf of Teresa Myers because she is already a named Plaintiff in this lawsuit. Defs.' Mot. 25-26; see also Havens, 455 U.S. at 372 (explaining that to bring suit under the FHA a plaintiff need only “allege that as a result of the defendant's actions [they have] suffered ‘a distinct and palpable injury'”) (citation omitted).
Plaintiffs respond arguing that Douglas Myers has standing to sue based on the denial of Plaintiffs' reasonable accommodation theory because he “suffered from the discrimination that [Teresa] Myers experienced directly.” Pls.' Opp'n 29. The argument, however, fails because Plaintiffs did not articulate how Douglas Myers suffered a “distinct palpable injury” separate from Teresa Myers other than the conclusory assertion that he did. See, e.g., Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp.2d 1161, 1167 (C.D. Cal. 2012) (“Such injury may include humiliation, embarrassment, and emotional distress.”); U.S. v. Burke, 504 U.S. 229, 241 (1992) (explaining that “inconvenience” and “loss of enjoyment of life” may be sufficient injuries in the context of a discrimination claim to confer standing). As such, summary judgment as to Douglas Myers' reasonable accommodation claim is appropriate.
2. Whether Plaintiff Suffers from a Disability and Defendants' Knowledge
Defendants next assert that Plaintiffs' housing discrimination claim fails because they cannot establish that Teresa Myers is a person with disability as defined by the FHA. Defs.' Mot. 18-21. This is so, Defendants argue, because the record contains no medical records that would support Teresa Myers' claim that she is disabled. Id.
Under the relevant statutory provisions, a person is disabled if the individual has “(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment[.]” 42 U.S.C§ 3602(h)(1)-(3).
The only evidence in the record that Plaintiff suffers from a disability as defined by the FHA is an April 2017 letter from Dr. Ho. The letter provides in relevant part:
This letter is written with the request, and permission, of Ms. Teresa Myers, an established patient of mine at the University of Washington Medical Center. Ms. Myers has been prescribed a medication for a serious medical condition that, unfortunately, causes debilitating side effects. The medication induced side effects include exacerbation of anxiety often resulting in heart palpitations and panic attacks. Insomnia, another known side effect, diminishes nocturnal rest which intensifies the anxiety resulting in daytime debilitation. Because this impairment has a substantial impact on at least one major life activity, it is a consideration for Federal Fair Housing.
For Ms. Myers' health and well-being, I strongly support her request for reasonable accommodations from her neighborhood association that will aid in reducing anxiety related to her physical security on her property with such conservative measures as perimeter security fencing consistent with that present-elsewhere in her neighborhood. This benefit to her health and well-being will aid her in managing her disease.Ho Decl., Ex. 1, ECF No. 46-1.
Defendants assert that Dr. Ho's letter cannot establish that Mrs. Myers has a disability as defined by the FHA because the letters discuses that “Mrs. Myers' conditions were side effects from medication used to treat a ‘serious health condition.'” Defs.' Mot. 19 (emphasis in original). Defendants go on to highlight that Dr. Ho's letter “fails to state whether the side effects are expected to be permanent, temporary, or whether alternative medications were available.” Id. at 20.
Viewing the record in the light most favorable to Plaintiffs as this Court must at this juncture, a reasonable jury could conclude that Teresa Myers had physical or mental impairment that substantially limited one or more life activities based on Dr. Ho's letter. See Anderson, 477 U.S. at 248; Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1255 (D. Haw. 2003) (finding issues of fact precluded summary judgment where letters from treating physician to condominium association stating that the resident suffered from, among other things, depression, mental dysfunction impairing ability to work, and anxiety”), aff'd sub nom., 453 F.3d 1175 (9th Cir. 2006). The Court further finds that a reasonable jury could also conclude that Defendants had knowledge of Teresa Myers alleged disability based upon Douglas Myers explicit requests for an accommodation.
3. Necessity
To establish that an accommodation is necessary, the Ninth Circuit recently explained that a plaintiff:
must establish that, but for the accommodation, they likely will be denied an equal opportunity [i.e., equal to the opportunity afforded non-disabled persons] to enjoy the housing of their choice. Thus, the inquiry is a causal one that examines whether the requested accommodation . . . would redress injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive. The plaintiff's disability must cause the need for an accommodation in the rules, policies, practices, or services. In other words, absent an accommodation, the plaintiff's disability must cause the plaintiffs to lose an equal opportunity to use and enjoy a dwelling. Thus, there must be a “causal link” between the requested accommodation and the plaintiff's disability.Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1190-91 (9th Cir. 2021) (citations and quotation marks omitted; bracketing and ellipses in original). The terms “use and enjoy” and “equal opportunity” requirements should be interpreted broadly. See, e.g., Bentley v. Peace and Quiet Realty 2 LLC, 367 F.Supp.2d 341, 345 (E.D.N.Y. 2005) (“[T]he FHA must be given a ‘generous construction' in order to carry out ‘a policy that Congress considered to be of the highest priority.'”) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211-12 (1972)).
Defendants assert that “there is no evidence, other than Plaintiffs' self-serving testimony and statements, that the chain-link barbed wire fence was necessary for [Teresa] Myers to use and enjoy the subject dwelling.” Defs.' Mot. 23. Plaintiffs maintain that building a security fence along the western border of the Highlands was necessary “in order to relieve [Teresa Myers] of her debilitating anxiety.” Pls.' Opp'n 12-13; see also Teresa Myers Decl. ¶ 11 (noting that “installing security fencing along the western border would ease [Teresa Myers] anxiety” and that “fencing like what the Board had installed around the upper RV lot would address [her] issues”), ECF No. 45. In reply, Defendants assert that Plaintiffs' claims fail the necessity prong as a matter of law because “their request for an accommodation was not the conclusion of a treating provider or medical doctor.” Defs.' Reply 14, ECF No. 48.
In effectuating the generous construction of the FHA that Congress intended, the Court concludes that Plaintiffs have established a sufficient causal nexus between Teresa Myers anxiety and the request for additional fencing to survive summary judgment. The requested accommodation here-security fencing along the western border-would “redress injuries that otherwise would prevent [Teresa Myers] from receiving the same enjoyment from the property as a non-disabled person would receive.” Howard, 988 F.3d 1190. In other words, without the requested accommodation, Teresa Myers would lose an equal opportunity to use and enjoy her dwelling. Significantly, a plaintiff in an FHA case is not required to prove that the requested accommodation is the best or only way to solve a disability-related problem; the plain text of the statute requires a housing provider to make any reasonable accommodation that “may be necessary” to permit use and enjoyment of the home. 42 U.S.C. § 3604(f)(3)(B) (emphasis added).
As to Defendants' argument that a medical opinion is required to establish necessity, their briefing fails to direct the Court to authority holding as much. Moreover, Dr. Ho's letter supported “perimeter security fencing consistent with that present elsewhere in her neighborhood” to alleviate Teresa Myers' anxiety. Ho Decl., Ex. 1, ECF No. 46-1.
4. Reasonableness
An accommodation is reasonable under the FHA “when it imposes no fundamental alterations in the nature of the program or undue financial or administrative burdens.” Giebeler, 343 F.3d at 1157 (citations and quotation marks omitted). “A ‘fundamental alteration' is a modification that alters the essential nature of a provider's operations.” Joint Statement of the Department of Housing and Urban Development and the Department of Justice on Reasonable Accommodation at 8 (May 17, 2004).
Available at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint statement ra .pdf (last accessed August 8, 2022). The Joint Guidance, though not binding on this Court, is entitled to persuasive weight. See United States v. Mead Corp., 533 U.S. 218, 227 (2001) (“The well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may property resort for guidance.”) (citations, quotation marks, and alterations omitted).
“The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994). A plaintiff bears the initial burden to show that the requested accommodation “seems reasonable on its face.” Giebeler, 343 F.3d at 1156 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). “Once the plaintiff has made this showing, the burden shifts to the defendant to demonstrate that the accommodation would cause undue hardship in the particular circumstances.” Id. “If the plaintiff cannot make the initial showing that the requested accommodation is reasonable [the plaintiff] ‘nonetheless remains free to show that special circumstances warrant a finding that . . . the requested ‘accommodation' is ‘reasonable' on the particular facts.” Id. Whether an accommodation is reasonable is ordinarily a question of fact. See Fuller v. Frank, 916 F.2d 558, 562 n.6 (9th Cir. 1990).
Giebeler left “up in the air” whether this precise wording correctly states the allocation of the burden to establish “reasonableness” in cases under the FHA. See Giebeler, 343 F.3d at 1156 (9th Cir. 2003) (discussing differently-phrased tests from case law under the Rehabilitation Act and the Americans with Disabilities Act, and declining to decide whether the two tests are the same or slightly different). Giebeler does, however, clearly establish that the plaintiff in a fair housing case bears the initial burden to show both necessity and reasonableness, and that once that initial burden is met, the burden shifts to the defendant to rebut a plaintiff's reasonableness evidence. In any event, the difference between the two tests is immaterial in this case.
Defendants assert that Plaintiffs' request for a chain-link fence with barbed wire was unreasonable because it “would fundamentally alter the nature of the Highlands' physical aesthetics and be contrary to its main goal of maintaining the natural beauty of the land around it.” Defs.' Mot. 25. Defendants also contend that they offered to permit Plaintiffs to build a wooden fence on their property as an alternative. Id. Plaintiffs argue that modifications to the physical aesthetics of a community “is not a sufficient reason to deny a reasonable accommodation requests.” Pls.' Opp'n 16.
An issue of material fact exists as to whether Plaintiffs' request posed either an undue financial or an administrative burden and whether the fencing would alter the essential nature of Defendants' operations. Plaintiffs here sought to erect a fence to address Teresa Myers disability. Although somewhat ambiguous, the record contains evidence that at various times the fence would be primarily financed by private lot owners. Douglas Decl. ¶¶ 27, 29; but see Pl.'s Opp'n 17 (“Ultimately, the request was amended to request only as much funding as the HOA had allocated for the installation of the enhanced fence at the upper RV lot.”). At summary judgment, however, the Court must resolve genuine issues of material fact against the moving party. T.W. Elec., 809 F.2d at 630. The Court thus infers from this record that the financial burden here would be minimal.
Defendants have also failed to articulate with specificity what, if any, administrative burdens constructing a fence would impose. Finally, although Defendants assert that the proposed fencing would “fundamentally alter the nature of the Highlands' physical aesthetics,” the assertion ignores the fact that similar fencing already exists elsewhere in the HOA. Defs.' Mot. 25; Myers Decl. ¶¶ 11-12, ECF No. 44.
In sum, viewing the summary judgment record in the light most favorable to Plaintiffs, issues of material fact exist as to whether Teresa Myers had a physical or mental impairment that substantially limited one or more life activities and whether her request for an accommodation was necessary and reasonable. Summary judgment should be denied as to Plaintiffs' reasonable accommodation claim.
Plaintiffs' response also argues that summary judgment is inappropriate as to their reasonable modification theory. See Pls.' Opp'n 18-20. A careful review of Defendants' motion for summary judgment reveals that Defendants did not move for summary judgment on that theory of liability. For the reasons discussed above, summary judgment is not appropriate as to that claim as well.
B. Disparate Treatment Theory
The Court next turns to Plaintiffs' disparate treatment theory of liability. As a general matter, FHA claims are evaluated under the burden-shifting framework of the Title VII discrimination analysis and may be brought under theories of both disparate treatment and disparate impact. See The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009) (citations omitted). In other words, a plaintiff may rely on the familiar McDonnell Douglas burden-shifting framework. Sanghvi v. City of Claremont, 328 F.3d 532, 536 n.3 (9th Cir. 2003) (noting that McDonnell Douglas framework developed in the Title VII context extends to FHA and ADA claims).
In lieu of the McDonnell Douglas framework, a plaintiff “may ‘simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated' the defendant and that the defendant's actions adversely affected the plaintiff in some way.” See Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). A plaintiff taking this approach “need provide ‘very little such evidence . . . to raise a genuine issue of fact . . .; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a fact-finder.” Id. at 1159 (quoting Schnidrig v. Columbia Mach., Inc., 90 F.3d 1406, 1409 (9th Cir. 1996)). Here, however, Plaintiffs are proceeding under the McDonnell Douglas framework.
Under that burden-shifting framework, to establish a prima facie case of disparate treatment, a plaintiff must establish that: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for a housing-related term, condition, or privilege; (3) the plaintiff was denied the housing-related term, condition, or privilege despite being qualified; and (4) the housing-related term, condition, or privilege remained available to similarly situated individuals who were not members of the plaintiff's protected class. Gamble v. City Escondido, 104 F.3d 300, 305 (9th Cir. 1997). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate, nondiscriminatory reason for its actions. See McDonnell Douglas, 411 U.S. at 802-03; Gamble, 104 F.3d at 305. If the defendant meets that burden, then the burden shifts back to the plaintiff to show that the stated reason is pretextual. See McDonnell Douglas, 411 U.S. at 804; Gamble, 104 F.3d at 305.
Here, Plaintiffs have established the first two elements of a prima facie case. Teresa Myers has a disability and Douglas Myers is a person associated with her. D. Myers Decl. ¶¶ 3-4; T. Myers Decl. ¶ 3. Plaintiffs were also qualified for the same terms, conditions, and privileges of their dwelling as other residents without a disability.
As to the third element, Plaintiffs allege Defendants treated them differently with regard to the terms, conditions, and privileges of living in the Highlands community by (1) not being reimbursed for weed clearing when other residents were; (2) being interfered with in trying to clear weeds; (3) being threatened with action for the alleged unsightliness of their lot when other undeveloped lots and property appeared as bad or worse; (4) being threatened with action for the alleged unsightliness of their lot based on a neighbor's complaint, but then denied any assistance for their own complaint against their neighbor; and (5) being accosted by two Board members in response to a neighbor's complaint about tree trimming. D. Myers Decl. ¶¶ 48-69.
As to the fourth element, Plaintiffs fail to specifically identify similarly situated individuals at the Highlands who received the housing-related term, condition, or privilege that Plaintiffs did not. See Pl.'s Opp'n 23 (discussing first, second, third elements of the McDonnell Douglas framework but failing to address the fourth). On that ground alone, the Court could find that Plaintiffs have failed to establish a prima facie case. See Gamble, 104 F.3d at 305 (stating that a plaintiff must show that the defendant treated “a similarly situated party” differently to establish a prima facie case); cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (“Under Title VII, an individual suffers disparate treatment ‘when he or she is singled out and treated less favorably than others similarly situated on account of race.'”) (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)).
There is evidence in the record, however, sufficient to establish a prima facie case under the McDonnell Douglas framework for one of Defendants' alleged discriminatory actions: threatening Plaintiffs with action for the alleged unsightliness of their lot when other undeveloped lots and property appeared as bad or worse. See D. Myer Decl. ¶ 59 (“In response we pointed out that Lot 77 was an undeveloped lot, and that its condition was similar to, or better than, the condition of other undeveloped lots in the community, and the common property of the HOA, yet the owners of those lots were not receiving notice of non-compliance with the CC&Rs.”); see also id. ¶¶ 60-61, Exs. A, B (photographs of compared lots), ECF Nos. 44-1-2.
The Court declines to address further the additional discriminatory allegations given Plaintiffs' failure to supply the Court with specific arguments and an evidentiary basis for their assertions. See LR 56-1(a) (“A party's factual positions must be supported by citations, by page and line as appropriate, to the particular parts of materials in the record.”).
On May 7, 2018, the ARC gave written notice to Plaintiffs that their property was out of compliance. Hill Decl., Ex. 28, ECF No. 39-3 at 7. Specifically, the Notice advised Plaintiffs that the Highlands was requesting that Plaintiffs “mow the weeds/grass on [ ] Lot 77” and “also request[ing] that the rock piles be leveled to conform to the natural lay of [t]he land of [Lot] 77.” Id. The Notice also advised that the conditions of Property 77 were in violation of Article 6.1.5, that Article 9 gave the Board the authority to correct any landscaping problems, and that the Plaintiffs had thirty days to correct the issue once given notice. Id. Additionally, on July 29, 2018, Stockstad and Kinney approached Douglas Myers about the rock piles on lot 77, threatening to have them removed if Plaintiffs did not timely comply. See Hill Decl., Ex. 31, ECF No. 39-3.
Defendants argue that these actions had legitimate, nondiscriminatory justification: that Lot 77 was out of compliance. Defs.' Mot 28-30. The Court finds that this was a legitimate, nondiscriminatory justification. See McDonnell Douglas, 411 U.S. at 802-03; Gamble, 104 F.3d at 305. Therefore, the burden now shifts back to Plaintiffs to show that Defendants' reasons were mere pretext.
A plaintiff may demonstrate pretext either directly, by persuading the court that discrimination most likely motivated the defendant, or indirectly, by showing that the defendant's proffered explanation is unworthy of credence. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). An explanation is considered unworthy of credence if it is internally inconsistent or otherwise not believable. See Chuang v. Univ. of Cal. Davis, Bd. of Tr., 225 F.3d 1115, 1127 (9th Cir. 2000). Where a plaintiff “raises a genuine issue of material fact regarding the truth of the employer's proffered reasons” a disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting their prima facie case. Id.
However, bare assertions of “discriminatory motivation and intent . . . are inadequate, without substantial factual evidence, to raise an issue precluding summary judgment.” Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983); see also Reeves v. Sanderson Plumbing Prod.,Inc., 530 U.S. 133, 148 (2000) (explaining that a defendant “would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the [defendant's actions], or if the plaintiff created only a weak issue of fact as to whether the [defendant's] reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”).
Plaintiffs' argument that Defendants' actions were pretextual rests on their assertion that Defendants treated them differently than other individuals in that: (1) Lot 77 was subject to increased scrutiny as compared to other lots; (2) Defendants responded to the complaints of Plaintiffs' neighbor, but failed to respond to Plaintiffs' complaints regarding overgrown trees; and (3) Stockstad and Kinney's July 2018 encounter with Plaintiffs regarding Lot 77, but presumably did not approach other out-of-compliance lots. Pl.'s Opp'n 27-28. Plaintiffs assert that “Defendants have offered no explanation for this different treatment.” Id. at 28. In reply, Defendants do not directly address the assertion that Plaintiffs were treated differently, but do highlight that Plaintiffs failed “to address the large gap of time between the last denial of accommodation requests by the Highlands (April and July 2017) . . . and the first alleged disparate treatment in May 2018.” Defs.' Reply 17.
The Court acknowledges that the evidence of pretext here is minimal. However, the Court finds that Plaintiffs have provided sufficient evidence to raise a genuine dispute of fact as to Defendants' motivations for treating Plaintiffs differently than other similarly situated individuals within the Highlands. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (holding that “very little” evidence is required to defeat a defendant's summary judgment motion in discrimination cases); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (noting that courts should “zealously guard[ a plaintiff's] right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses”); Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985) (“Once a prima facie case is established either by the introduction of actual evidence or reliance on the McDonnell Douglas presumption, summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of [a discrimination] dispute is the elusive factual question of intentional discrimination[.]”), amended, 784 F.2d 1407 (9th Cir. 1986).
As such, summary judgment should be denied as to Plaintiffs' disparate treatment claim.
Plaintiffs' response also argues that summary judgment is inappropriate as to their retaliation theory. See Pls.' Opp'n 24-28. Defendants' motion for summary judgment did not move for summary judgment on that theory of liability. However, for the reasons discussed above, summary judgment would not be appropriate as to that claim.
III. State Law Claims
A. Negligence
Plaintiffs have withdrawn their negligence claim. Pls.' Opp'n 31.
B. Trespass
In Oregon, a trespass arises when an entry on the land of another disturbs the possessor's interest in the right to exclusive possession of the land. Martin v. Union Pac. R. Co., 256 Or. 563, 565 (1970). A trespass may occur if a person who legitimately entered the land refuses to quit the premises after the term of rightful occupancy has expired. Neppach v. Jordan, 15 Or. 308, 311 (1887). Oregon follows the view of the Restatement (Second) of Torts §§158, 165 (1965), that liability will be imposed for an unintentional intrusion only when it arises out of negligence or from an ultrahazardous activity. Hudson v. Peavey Oil Co., 279 Or. 3, 8 (1977).
Here, under § 7.7.1 of the Highlands' By-Laws, the Board of Directors cannot be liable for trespass when they enter upon a parcel or unit in connection with a condition that is a violation of the CC&Rs or By-Laws:
7.7 Abatement and Enjoining Violations. The violation of any rule or regulation adopted hereunder or the breach of any Bylaw contained herein or any provision of the Declaration shall give the Board of Directors, acting on behalf of the Association the right, in addition to any other rights set forth in these Bylaws and the Declaration:
7.7.1 To enter the residential unit or upon the parcel in which or as to which such violation exists and to summarily abate and remove, at the expense of the defaulting owner, any structure, thing, or condition that may exist therein contrary to the intent and meaning of the provisions hereof, and the Board of Directors shall not thereby be deemed guilty of any manner of trespass.Hill Decl., Ex. 2 (emphasis added).
Plaintiffs assert there are issues of fact as to Kinney and Stockstad's capacity when they entered Lot 77-i.e., they entered as “neighbors” as opposed to “board members.” Pls.' Opp'n 30 (citing Hill Decl., Ex. 32, ECF No. 39-3). The Court disagrees. A review of the Declaration relied on by Plaintiffs makes clear that Kinney and Stockstad's actions that day were taken as board members. Accordingly, the bylaws bar Plaintiffs' trespass claim.
As such, summary judgment should be granted as to Plaintiffs' state law claims.
RECOMMENDATION
For the reasons above, Defendants' motion for summary judgment (ECF No. 38) should be GRANTED in part and DENIED in part. Specifically, summary judgment should be DENIED as to Plaintiffs' FHA claims and GRANTED as to their state law claims.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).