Opinion
3:21-cv-454-JR
08-07-2023
JANA SMITH, Plaintiff, v. MARK DOWNEY, CHARLES OLSEN. ARIELL HARTWELL, MARK SIMON and SHERMAN SMITH, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff, Jana Smith, brings this action seeking relief for the defendants' “discriminatory hostile housing environment, conspiracy to interfere with civil rights, conversion, retaliation, ouster, false imprisonment, trespass, failure to maintain, unlawful and deceptive trade practices and other common law claims arising out of plaintiff's lease of [a Portland, Oregon] premises.” (ECF 26) at ¶ 8. Before the Court is pro se defendant Mark Downey's motion to dismiss. For the reasons stated below, the motion should be denied.
ALLEGATIONS
Plaintiff alleges she sublet a room from May 15, 2018, to April 12, 2020, at a premises located at 3814 Hassalo Street, Portland, Oregon. First Amended Complaint (ECF 26) at ¶ 1. Plaintiff alleges: defendant Mark Downey owns the premises and was plaintiff's landlord; defendant Olsen was also plaintiff's landlord in that he leased from and managed the premises for Downey by subletting rooms; defendant Arielle Hartwell, also plaintiff's landlord who sublet and comanaged the premises from October 2019 until April 2020; defendant Smith is plaintiff's ex-husband who conspired with defendants to convert plaintiff's personal possessions from the premises; and defendant Simon is plaintiff's former business partner and sublessor who conspired with defendants to trespass onto plaintiff's chattels. Id. at ¶¶ 2-6.
Plaintiff asserts she rented a small room and placed a storage shed in the yard of the premises. Id. at ¶ 9. Based on Olsen's assurances that the other individuals living in the house were stable and “enthusiastically” approved her residency, plaintiff alleges she moved in and constructed a storage shed at considerable expense. Id. at ¶¶ 11-12. However, plaintiff asserts after a few months the “stable” residents left and were replaced with “substance-addicted drifters.” Id. at ¶¶ 14-15.
Plaintiff alleges after suffering malfunctioning facilities, theft, unsanitary conditions, damage to her property, violent behavior, and “encouraged” harassment, defendant Downey gave her notice to “vacate” the premises in October 2018. Id. at ¶¶ 16-31. Plaintiff asserts she continued to suffer harassment, and vandalism to, and theft of, her property. Id. at ¶ 32-42.
Plaintiff alleges in October 2019, defendant Hartwell arrived as the new house manager and told plaintiff “the sole reason she was there was to get plaintiff out.” Id. at ¶ 43.
Plaintiff alleges the attempts to get her to vacate the premises, including the use of violence, continued. Moreover, plaintiff observed defendant Hartwell oust others and take possession of their belongings. Id. at ¶¶ 45-46, 47-49, 51-55, 57-61. Plaintiff asserts defendants Downey, Hartwell, and Simon attempted to steal her cars. Id. at ¶ 50.
Plaintiff alleges defendants Simon or Downey hired a private investigator to investigate her as a tenant. Id. at ¶ 56.
Plaintiff asserts that in April 2020, defendants Hartwell, Olsen, and Smith broke into her shed and converted plaintiff's “most valued possessions from the vandalized storage shed.” Id. at ¶ 62.
Plaintiff alleges the following claims against defendant Downey: (1) violation of the Fair Housing Act; (2) conspiracy to interfere with her civil rights; (3) failure to maintain the premises in violation of State law; (4) retaliation; (5) unlawful ouster; (6) abuse of access; (7) trespass to chattels; (8) conversion; (9) false imprisonment; (10) “unlawful tow”; (11) abuse of process; (12) unlawful and deceptive trade practices; (13) violation of Portland Renter additional protections; (14) intentional infliction of emotional distress; and (15) negligent infliction of emotional distress.
DISCUSSION
In his motion, defendant Downey asserts plaintiff lacks credibility while vouching for his own credibility and suggests plaintiff's complaint is an effort to manipulate the judicial system to extract money from homeowners. However, credibility determinations are inappropriate on a motion to dismiss. E.g., SunPower Corp. Sys. v. SunLink Corp., 2009 WL 10702548, at *7 (N.D. Cal. July 31, 2009). Indeed, on a motion to dismiss for failure to state a claim, the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985). Moreover, courts may not consider material outside the complaint when ruling on a motion to dismiss unless submitted as part of the complaint, identified in the complaint, or involve materials which are judicially noticeable. Little v. Gore, 148 F.Supp.3d 936, 943 (S.D. Cal. 2015). To the extent defendant seeks dismissal based on plaintiff's ostensible failure to allege credible facts in support of her claims, the motion should be denied.
Defendant does submit some State Court decisions which may be capable of judicial notice but does not address issues raised in the complaint before this Court with the possible exception of a landlord tenant proceeding in Multnomah County. However, plaintiff provides the Court with a copy of a decision reversing the result which was in favor of defendant Downey.
Defendant also asserts he has not heard anything regarding this case since Fall 2021 and requests dismissal “[d]ue to the extended length of time and the ill-intentioned bad faith basis of the action.” Motion to Dismiss (ECF 75) at p. 2. However, the Court notes that the address provided to the Court by defendant Downey routinely results in mail from the Court being returned as undeliverable. In addition, while defendant lists that same address on his motion, he asserts he “is the former owner of the property.” Motion (ECF 75) at p. 1. Plaintiff's counsel asserts he has now discovered the current address for defendant and has personally served him at this new address. The Court reminds defendant that every unrepresented party has a continuing responsibility to notify the Clerk's Office whenever his or her mailing address, telephone number, and/or business e-mail address changes. L.R. 83-10(a). In addition, every party must file a change of address in pleading form and serve it on all parties. L.R. 83-10(b). Thus, the purported failure to serve pleadings on defendants provides no basis for dismissal.
The Court also notes that denial is appropriate for the reasons stated by plaintiff regarding timeliness of the motion and the failure to confer as required by Local Rule.
CONCLUSION
Defendant Downey's motion to dismiss (ECF 75) should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.