JOSEPH C. SPERO, Chief Magistrate Judge.
Plaintiffs Leroy Moore, Dominika Bednarska, Perlita Payne, and Brett Estes are or were residents of an apartment complex operated by Defendant Equity Residential Management, L.L.C. ("Equity"). All Plaintiffs except for Payne are disabled and require the use of an elevator to access their apartments; Payne is married to and lives with Bednarska. Following an extended elevator outage in November of 2015 that limited Plaintiffs' abilities to access or leave their apartments, Plaintiffs brought this action under state, local, and federal law. The parties have filed cross motions for summary judgment, and the Court held a hearing on November 1, 2019. For the reasons discussed below, Equity's motion is GRANTED as to Plaintiffs' claims under the Rehabilitation Act of 1973 and California's Unruh Civil Rights Act (the "Unruh Act"), as well as Plaintiffs' claims based on inaccessible doors other than the elevator. The motions are otherwise DENIED, although the Court narrows certain aspects of the remaining claims as discussed below.
Equity operates the Acton Courtyard apartment complex in Berkeley, California. On November 13, 2015, the only elevator in the building ceased to operate due to a failed circuit board. ThyssenKrupp, the company with which Equity contracted to maintain the elevator, told Equity that the circuit board was obsolete and could not be replaced, and that the only option was to send the circuit board to New Jersey for repairs. Although Equity paid extra costs to expedite repairs, the process of repairing the circuit board took many days, and the first attempt at a repair was unsuccessful, requiring the circuit board to be sent back to New Jersey for further work before the elevator could be returned to service on November 27, 2015 — fifteen days later, and after the Thanksgiving holiday.
ThyssenKrupp's advice to Equity that the circuit board was obsolete and could not have been replaced turned out to be incorrect. After the elevator returned to service, Equity investigated the issue and determined that replacement circuit boards were available for purchase. When the circuit board failed again in 2018, Equity was able to obtain a replacement and return the elevator to service within twenty-four hours. There is no evidence, however, that Equity knew at the time of the 2015 outage that replacement circuit boards were available, or that Equity's efforts to have the circuit board repaired were deficient in way except for the choice to attempt to repair rather than replace it.
Plaintiffs were residents of the Acton Courtyard at the time of the 2015 outage. Plaintiff Estes, who is quadriplegic and was in his apartment when the outage began, was unable to leave his apartment for the duration of the outage. Plaintiff Moore, who has cerebral palsy, was similarly confined to his apartment for much of the outage, but needed to travel for work twice during that period and thus was required to slowly and painfully navigate the stairs on those occasions. Plaintiff Bednarska, who primarily used an electric scooter for mobility, was outside of her apartment when the outage began and not able to return for the duration of the outage. She and her wife, Plaintiff Payne, were forced to stay in hotels until the elevator returned to service. Plaintiffs brought this action asserting claims primarily based on the 2015 elevator outage.
This case was initially assigned to the Honorable Maria-Elena James, who resolved three motions to dismiss.
On March 7, 2017, the Court granted in large part Equity's motion to dismiss Plaintiffs' original complaint. See Order Re: Mot. to Dismiss ("Mar. 2017 Order," dkt. 23).
On June 21, 2017, the Court granted in part a motion to dismiss Plaintiffs' first amended complaint. See Order Re: Mot. to Dismiss Am. Compl. ("June 2017 Order," dkt. 35).
On December 4, 2017, the Court granted in part and denied in part Equity's motion to dismiss Plaintiffs' operative second amended complaint. See generally Order Re: Mot. to Dismiss ("Dec. 2017 Order," dkt. 44).
The December 2017 order summarized the remaining claims as follows, dismissing all other claims without further leave to amend:
Id. at 13-14.
The case was reassigned to the undersigned magistrate judge by stipulation of the parties in February of 2018 after Judge James retired from the Court. See dkts. 53-55. Former plaintiff Annamarie Hara settled and dismissed her claims against Equity in January of 2019. See dkts. 90, 91.
Plaintiffs move for partial summary judgment on Moore, Bednarska, and Estes's claims under the Berkeley Municipal Code, Pls.' Mot. (dkt. 107) at 7-14, on Moore, Bednarska, and Estes's claims under the CPDA based on building code requirements, id. at 14-18, and, for the purpose of Plaintiffs' Rehabilitation Act claim, on the issues of whether Equity receives federal financial assistance and whether Plaintiffs are "otherwise qualified" to participate, id. at 18-23. Plaintiffs reserve all issues of damages for trial.
Equity purports to move for summary judgment on all of Plaintiffs' claims, although its motion does not address Plaintiffs' discrimination or accessibility (as opposed to accommodation) theory under FEHA or the CDPA. Equity seeks summary judgment on Plaintiffs' discrimination claims for failure to meet the intent requirements of the Unruh Act and the Rehabilitation Act, id. at 17-18, and separately seeks summary judgment as to the Rehabilitation Act on the basis that Equity does not receive federal financial assistance, id. at 18-19. According to Equity, Plaintiffs' reasonable accommodation claims under all of the statutes at issue fail because Moore and Estes did not request accommodations and because Bednarska and Payne's requests either were granted or were not for reasonable accommodations. Def.'s Mot. (dkt. 106) at 12-17. Equity contends that it is entitled to judgment on Plaintiffs' claim for excessively heavy doors because Plaintiffs' own expert found that the doors met applicable standards for force required to open them. Id. at 19-20. Finally, Equity argues that its offer to provide, or actual provision of, alternative housing during the outage entitles Equity to judgment on Plaintiffs' claims under the Berkeley Municipal Code.
Summary judgment on a claim or defense is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate "`specific facts showing there is a genuine issue for trial.'" Id. (citation omitted); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record. . . ."). "[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3).
A party need not present evidence to support or oppose a motion for summary judgment in a form that would be admissible at trial, but the contents of the parties' evidence must be amenable to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not find for the non-moving party based on the record as a whole, there is no "genuine issue for trial" and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The Court therefore draws all reasonable inferences in favor of Equity for the purpose of Plaintiffs' motion, and all reasonable inferences in favor of Plaintiffs for the purpose of Equity's motion.
A plaintiff bringing a claim under section 504 of the Rehabilitation Act "must show that (1) she is handicapped within the meaning of the [Act]; (2) she is otherwise qualified for the benefit or services sought; (3) she was denied the benefit or services solely by reason of her handicap; and (4) the program providing the benefit or services receives federal financial assistance." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). A plaintiff seeking damages under this statute also "must prove a mens rea of `intentional discrimination,' to prevail on a section 504 claim, but that that standard may be met by showing `deliberate indifference,' and not only by showing `discriminatory animus.'" Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008) (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001)).
The elements specific to the Rehabilitation Act disputed in the parties' present motions are whether Equity received federal financial assistance for the apartment complex where Plaintiffs lived and whether Equity displayed deliberate indifference in failing to ensure elevator service. Each party seeks summary judgment in its favor on the former issue; only Equity seeks summary judgment on the latter. Because Plaintiffs have not offered evidence from which a reasonable jury could conclude that Equity received federal financial assistance, the Court need not reach the question of whether Plaintiffs could show deliberate indifference for the purpose of this statute. The Court also does not reach Plaintiffs' argument for summary judgment that they were "otherwise qualified" for the service provided, which Equity does not address in its opposition brief.
The parties dispute whether or what sort of federal funding or other federal incentives Equity has received with respect to the apartment complex at issue. It is difficult to understand why the parties were not able to resolve this issue conclusively through discovery. Nevertheless, the record is sufficient to grant Equity's motion as to this issue, because Plaintiffs have not met their burden to show that Equity receives federal financial assistance within the meaning of the Rehabilitation Act.
Plaintiffs argue that Equity receives federal assistance in the form of Low Income Housing Tax Credits ("LIHTCs"). The Department of Housing and Urban Development considers LIHTCs to be financial assistance for the purpose of the Rehabilitation Act, and at least one district court has so held, without analysis. Hill v. Hampstead Lester Morton Court Partners, LP, No. CIV. CCB-12-539, 2013 WL 1314393, at *3 (D. Md. Mar. 28, 2013), vacated in part on other grounds, 581 F. App'x 178 (4th Cir. 2014); Dep't of Housing & Urban Dev., FAQ ID 2645, https://www.hudexchange.info/faqs/2645/how-do-the-section-504-requirements-impact-a-development-which-is-not/ (Oct. 2015); but see West v. Palo Alto Hous. Corp., No. 17-cv-00238-LHK, 2019 WL 2549218, at *23 (N.D. Cal. June 20, 2019) ("In the analogous Rehabilitation Act context, courts have uniformly determined that tax credits do not constitute financial assistance." (citing decisions considering tax credits other than LIHTCs)), appeal docketed, No. 19-16458 (9th Cir.).
Plaintiffs also cite a decision from the Northern District of Oklahoma as holding that LIHTCs constitute financial assistance under the Rehabilitation Act, but that case in fact held that the defendant did not receive LIHTCs, without addressing whether receipt of LIHTCs would bring the defendant within the scope of the Rehabilitation Act. See Shaw v. Cherokee Meadows, LP, No. 17-CV-610-GKF-JFJ, 2018 WL 2770200, at *2 (N.D. Okla. June 8, 2018) ("The Complaint includes no allegations that Blackledge applied for or received Low Income Housing Tax Credits. Thus, receipt of Low Income Housing Tax Credits cannot provide the basis of plaintiffs' Rehabilitation Act claim."). Like in Shaw, the clearer issue here is not whether receipt of LIHTCs bring an organization within the scope of the Rehabilitation Act, but instead whether Plaintiffs have shown that Equity received LIHTCs for the apartment complex at issue.
Plaintiffs rely on the deposition testimony of Nessa Sinclair, whom Equity designated as its person most knowledgeable on the subject. In the discussion of the LIHTC program, both Plaintiffs' counsel and Sinclair conflated that program with a tax-exempt bond financing program, and counsel referenced a lease addendum stating that the premises "(i) were financed with proceeds from the sale of tax-exempt multifamily housing revenue bonds under Section 142 of the Internal Revenue Service (IRS) code and/or (ii) is administered under the Low Income Housing Tax Credit program under section 42 of the IRS code." See Derby Decl. (dkt. 142) Ex. J (Sinclair Dep.) at EQR.MOORE0000635 (Lease Addendum). The relevant testimony was as follows:
Id. at 293:5-20 (emphasis added).
Id. at 294:4-16.
Id. at 297:17-298:15.
The beginning of this line of questioning demonstrates at least some degree of confusion as to the topic at issue. Contrary to both Sinclair's answer and counsel's subsequent question, LIHTCs are not a bond program. See id. at 293:5-20; see also Winn Opp'n Decl. (dkt. 110-1) Ex. B (Sinclair Dep.) at 300:23-25 ("Q. Okay. How about the low-income housing tax credit/bond program; is there any way for you to know that it's not on this 142?"). The ambiguity created by that apparent misunderstanding is clarified by Sinclair's other testimony and her subsequent declaration. Sinclair testified earlier in her deposition that Equity "do[es] not accept any federal funding," and that in her role as general manager for properties including Acton Courtyard, she is aware of all sources of income and programs in which the property participates, none of which are federally funded. Winn Opp'n Decl. Ex. B (Sinclair Dep.) at 285:19-20, 286:23-287:5. In her declaration, Sinclair states that the lease addendum is included because the property participates in a tax-exempt bond financing program, not because it receives LIHTCs, and explains her deposition testimony as follows:
Sinclair Opp'n Decl. (dkt. 110-3) ¶¶ 8-9.
Plaintiffs offer no evidence other than Sinclair's deposition testimony suggesting that Equity receives LIHTCs for the property at issue. In light of the clear confusion at the deposition and Sinclair's unambiguous statement in her declaration that Equity benefits only from tax-exempt bonds, not LIHTCs, no reasonable jury could find on this record that Equity receives LIHTCs. Plaintiffs have not argued that the tax-exempt bond program is sufficient to bring Equity within the scope of the Rehabilitation Act. Plaintiffs have not met their burden to show that Equity receives federal financial assistance within the meaning of the Rehabilitation Act. Plaintiffs' motion is therefore DENIED as to that issue, and Equity's motion is GRANTED as to Plaintiffs' Rehabilitation Act claim.
In the order on the motion to dismiss Plaintiffs' second amended complaint, the Court allowed Plaintiffs to proceed on discrimination theories under the Unruh Act, the CDPA, and FEHA based on failure to provide elevator access as required by the California Building Code. Dec. 2017 Order at 9-10. Equity's present motion for summary judgment on Plaintiffs' discrimination claims addresses only the intent requirements of the Rehabilitation Act and the Unruh Act. Def.'s Mot. at 17-18. Because Equity has not presented any basis for summary judgment on Plaintiffs' CDPA or FEHA claims based on the California Building Code, those claims may proceed.
A plaintiff bringing a claim under the Unruh Act generally "must `plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.'" Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (quoting Munson v. Del Taco, Inc., 46 Cal.4th 661, 668 (2009)). "[A] plaintiff must therefore allege, and show, more than the disparate impact of a facially neutral policy." Id. In rejecting a disparate impact test under the Unruh Act, the California Supreme Court has held that the language of the statute and its treble damages provision "imply willful, affirmative misconduct on the part of those who violate the Act." Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 853 (2005) (quoting Harris v. Capital Growth Inv'rs XIV, 52 Cal.3d 1142, 1172 (1991)). The Ninth Circuit has held that this requirement of "`willful, affirmative misconduct'" prohibits use of a deliberate indifference standard. Greater L.A., 742 F.3d at 427 (quoting Koebke, 36 Cal. 4th at 853) (emphasis added in Greater L.A.).
Although the California Supreme Court recognizes an exception to the requirement of discriminatory intent where an Unruh Act claim is based on a purported violation of the ADA, Munson, 46 Cal. 4th at 664, Plaintiffs cannot rely on that exception here because their ADA claim was dismissed, see Mar. 2017 Order at 4-6, and Plaintiffs did not renew that claim in their operative second amended complaint, see generally 2d Am. Compl. (dkt. 36, "SAC").
Plaintiffs rely on cases holding that a discriminatory business practice short of total exclusion can suffice, Candelore v. Tinder, Inc., 19 Cal. App. 5th 1138, 1145-46 (2018), that evidence of disparate impact can in some cases be probative of intent, Koebke, 36 Cal. 4th at 854, and that operating "from a motive of rational self-interest" is not a defense under the statute, Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 740 n.9 (1982).
Id. at 17. Plaintiffs cite no case holding that a defendant's similar failure to act to maintain a service or provide accommodation can satisfy the Unruh Act's requirement of "`willful, affirmative misconduct.'" See Greater L.A., 742 F.3d at 427 (quoting Koebke, 36 Cal. 4th at 853). Equity's motion is GRANTED as to Plaintiffs' Unruh Act claims.
Plaintiffs bring their CDPA claim under section 54.1(b)(1) of the California Civil Code, which provides that "[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons." Cal. Civ. Code § 54.1(b)(1). Plaintiffs do not rely on section 54.1(a), which applies only to places of public accommodation. As Equity notes in its opposition brief, section 54.1(b) "does not require a person renting, leasing, or providing for compensation real property to modify his or her property in any way or provide a higher degree of care for an individual with a disability than for an individual who is not disabled." Cal. Civ. Code § 54.1(b)(4). Equity contends that Plaintiffs cannot prevail on this claim because section 54.1(a) does not apply to private residential areas (rather than public accommodations) and section 54.1(b) does not require modifications for or special treatment of individuals with disabilities. Def.'s Opp'n (dkt. 110) at 18-21. Plaintiffs argue that a violation of any other law governing building or access standards can support a claim under section 54.1(b), and that Equity violated the California Building Code by failing to maintain its elevator sufficiently.
In effect, Equity asks the Court to reconsider its previous holding regarding Plaintiffs' ability to bring a claim under the CDPA based on violations of California building standards. The Court considered that issue on Equity's second motion to dismiss, and addressed it as follows, first in the context of the Unruh Act,
June 2017 Order at 9-11 (second paragraph break added; footnotes omitted).
Id. at 12.
Plaintiffs argue that the prior decision is law of the case and should not be disturbed. Pls.' Reply at 5-6. But courts "have discretion to reopen a previously resolved question" under certain circumstances, including where "the first decision was clearly erroneous." Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993). Although the Court concludes that the reasoning of the previous order did not address all relevant considerations, the Court stands by the conclusion that a violation of generally-applicable provisions of the California Building Code can support a claim under section 54.1(b).
The prior analysis focused on the Unruh Act rather than the CDPA. The Unruh Act includes a provision similar to the section 54.1(b)(4)'s disclaimer of any requirement to modify property, but with a significant difference. Under the Unruh Act, no alteration is required "beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law." Cal. Civ. Code § 51(d). The CDPA includes no similar express acknowledgment of alterations otherwise required by law. See Cal. Civ. Code § 54.1(b)(4).
The section of Coronado on which this Court's prior order relied opened with a discussion of the law's application to public accommodations. See Coronado, 163 Cal. App. 4th at 844 ("Historically, sections 54 and 54.1 have been construed to mean that `all physically handicapped are entitled to the same right as the able-bodied to full and free use of public facilities and places,' requiring operators of such public facilities and accommodations to `open [their] doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.'" (emphasis added; citations omitted)). The Coronado court went on to discuss a court that interpreted those statutes as applied to public accommodations — or in other words, section 54.1(a) rather than section 54.1(b) — as not in themselves requiring modifications to buildings. See id. (discussing Marsh v. Edwards Theatres Circuit, Inc., 64 Cal.App.3d 881, 890-92 (1976)). As noted in Marsh, the provision of the CDPA providing for a private action for an injunction specifically authorizes such actions for violations of two statutes governing access standards; both of those laws only apply to public accommodations. See Marsh, 64 Cal. App. 3d at 891-92; Cal. Civ. Code § 55 (referencing Cal. Gov't Code § 4450 et seq.; Cal. Health & Safety Code § 19955 et seq.); see also People ex rel. Deukmejian v. CHE, Inc., 150 Cal.App.3d 123, 133 (1983) (stating that the laws referenced by section 55 were enacted to "give meaning to the public accommodation law prohibiting discrimination against the handicapped"). The Coronado decision went on to consider only whether those two statutes supported the plaintiff's claim, and held that they did not, because the statutes only applied to public accommodations and the barrier that the plaintiff encountered was in a private residential area. Coronado, 163 Cal. App. 4th at 845-47. Coronado did not address whether a violation of the California Building Code in a non-public area can support a claim under section 54.1(b). Accordingly, it is not obvious from that decision that Plaintiffs' theory of the case is viable.
The Court nevertheless concludes that section 54.1(b), by its own terms, supports Plaintiffs' claims. That statute provides that "[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations." Cal. Civ. Code § 54.1(b)(1). By the statute's plain language, access must not only be "equal," it must also be "full." Id. There is no question that a person with a disability precluding the use of stairs lacks the same "full" access to an upper-floor apartment as other members of the general public if no functional elevator is available.
Section 54.1(b)(4) sets significant limitations on the general rule. A building owner need not "modify his or her property in any way" to allow for such access. Cal Civ. Code § 54.1(b)(4). Accordingly, if a building does not have an elevator, section 54.1(b) would not require the owner to add one. But Plaintiffs do not ask for such a modification here: the building had an elevator, and they merely needed it to be maintained. A building owner also need not "provide a higher degree of care for an individual with a disability than for an individual who is not disabled." Id. Accordingly, if the owner was not required to maintain the elevator in a particular manner for non-disabled tenants, section 54.1(b) would not require them to provide heightened maintenance on behalf of disabled tenants. Here, however, Plaintiffs contend that Equity failed to meet generally applicable standards of the California Building Code. Equity would be bound by those standards regardless of whether the tenants at Acton Courtyard were disabled or non-disabled. Compliance with them therefore does not constitute "a higher degree of care for an individual with a disability," cf. id., and the exception of section 54.1(b)(4) does not apply. In the absence of that exception, the general standard of section 54.1(b)(1) requires Equity to provide disabled tenants with "full and equal access" to all housing accommodations, which it did not do when the elevator was out of service.
The provision of the Building Code on which Plaintiffs rely are section 1102A.2, which requires elevators to be maintained in compliance with accessibility standards, and section 1124A.1,
In light of evidence that ThyssenKrupp did not conduct monthly service calls as required under its contract with Equity, see Stabler Decl. (dkt. 109) ¶¶ 12-21, a jury could determine that Equity failed to conduct tests at "scheduled intervals" as required by ASME A17.1. A jury might also credit Plaintiffs' expert's opinion that Equity failed to comply with Cal-OSHA regulations, although Defendant's expert's opinion that the Cal-OSHA orders at issue were "routine in nature, and do not reflect any specific problems with the elevator or the door operator board," Greene Opp'n Decl. (dkt. 110-4) ¶ 16, is sufficient to deny Plaintiffs' motion for summary judgment based on the Cal-OSHA orders. Even assuming for the sake of argument that Equity's failure to conduct regular inspections is undisputed — Equity asserts that it is "hotly contested," but cites no evidence to the contrary, Def.'s Opp'n at 23 — Equity's expert states in his declaration that the November 2015 outage was not preventable through such inspections because the circuit board did not require regular maintenance, circuit board failures are unpredictable, the circuit board was only halfway through its expected useful life, and no function of the "Otis Service Tool" that Plaintiffs' expert faults ThyssenKrupp for not using could have predicted the circuit board failure. Greene Decl. (dkt. 106-4) ¶ 8; Greene Opp'n Decl. ¶¶ 8, 12, 18.
Although both parties vigorously dispute the opposing expert's conclusions, neither party has moved to exclude the opinions of the opposing expert under the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or any other evidentiary doctrine. Accordingly, although Plaintiffs' theory that Equity violated section 54.1(b) by failing to meet Building Code elevator maintenance standards is viable, Plaintiffs are not entitled to summary judgment on this claim because a jury could credit Equity's expert's conclusions either that Equity did not violate those standards or that any such violation was unrelated to the outage that limited Plaintiffs' access to or from their apartments. Plaintiffs' motion is DENIED as to this claim.
Equity seeks summary judgment on Plaintiffs Estes and Moore's claims for failure to provide a reasonable accommodation on the grounds that neither Moore nor Estes requested an accommodation. Def.'s Mot. (dkt. 106) at 13-14. In considering Equity's motions to dismiss, the Court previously held that Plaintiffs each must have affirmatively requested a reasonable accommodation in order to proceed on a claim for failure to provide such accommodations. See, e.g., Mar. 2017 Order at 7-8 (relying on federal enforcement agency guidance); June 2017 Order at 4-6. Because a reasonable jury could find that each plaintiff did so, the Court need not reconsider that holding and assumes for the purpose this order that an affirmative request is a necessary element of such a claim.
The Court notes, however, that Equity cites no binding Ninth Circuit or California appellate authority for such a rule in its briefs, relying instead on district court decisions or federal appellate decisions from other circuits. The Court further notes that neither the Judicial Council of California's model jury instruction for "Refusal to Make Reasonable Accommodation in Housing" (CACI 2548) nor the Ninth Circuit's statement of the elements of a failure-to-accommodate claim under the Fair Housing Amendments Act, see Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003), specifically require an affirmative request for accommodation. At least in the context of employment law, some courts have held that a defendant's duty to provide a reasonable accommodation arises from the defendant's knowledge that an accommodation is necessary, without need for an affirmative request by the plaintiff. See, e.g., Robinson v. HD Supply, Inc., No. 2:12-CV-00604-GEB, 2012 WL 5386293, at *6 (E.D. Cal. Nov. 1, 2012) (citing Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 950-51 (1997)). If this case proceeds to trial, the parties should be prepared to address in more detail whether Plaintiffs must prove that they affirmatively requested accommodation.
Equity also moves for summary judgment on Bednarska and Payne's reasonable accommodation claims on the grounds that their requests either were granted or were not requests for reasonable accommodations. The Court addresses each plaintiff's claims in turn below.
When asked at his deposition if he ever sought "any accommodation from Equity concerning the elevator," Estes responded, "No." Winn Decl. (dkt. 106-1) Ex. C (Estes Dep.) at 9:25-10:2. In his declaration, however, Estes states that, among other communications during the elevator outage, he told an Equity representative that he "wanted them to do everything in their power to repair the elevator immediately." Estes Decl. (dkt. 111-3) ¶ 2. He explains that discrepancy by stating that he "thought [defense counsel] was referring to the offer to move into a hotel," which he had declined because he did not think it would be practical to move all of his adaptive equipment to a hotel room. Id. ¶ 4.
Equity argues that the Court should disregard Estes's declaration because it contradicts his deposition testimony, citing Yeager v. Bowlin, 693 F.3d 1076, 1079-80 (9th Cir. 2012). Def.'s Reply (dkt. 113) at 1. In Yeager, the Ninth Circuit explained the "sham affidavit" rule as follows:
Yeager, 693 F.3d at 1080. The Ninth Circuit went on to caution that the "`non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.'" Id. at 1081 (quoting Van Asdale, 577 F.3d at 999). On the facts of that case, the Ninth Circuit held that the district court did not abuse its discretion in disregarding a plaintiff's affidavit where the court "could reasonably conclude that no juror would believe [his] weak explanation for his sudden ability to remember the answers to important questions about the critical issues of his lawsuit." Id.
The difference between Estes's deposition testimony here and his subsequent declaration is not minor, and goes to a key element of his claims for failure to accommodate. The Court nevertheless cannot say with confidence that no reasonable jury could credit Estes's explanation for the discrepancy. While Equity may offer Estes's deposition testimony for impeachment if it so chooses, the question of whether Estes requested that Equity "do everything in [its] power to repair the elevator immediately," Estes Decl. ¶ 2 is an issue of fact to be resolved by the jury at trial. The Court declines to grant Equity's motion on this basis.
Estes also testified at his deposition that he called the Equity office because he was upset that the elevator was not working and that no one had called him about it, and "wanted to know when it would be back working." McGuinness Decl. (dkt. 111-1) Ex. E (Estes Dep.) at 11:15-12:3. The Court need not reach the question of whether Estes expression of frustration with the outage and request for information could be construed as an implied request for accommodation.
Equity argues that Plaintiffs cannot proceed on a reasonable accommodation claim based on Equity's failure to repair the elevator more quickly because Equity was pursuing what it believed was the only option for repair, and there is no evidence that Equity had a policy of delaying elevator repairs. Def.'s Mot. at 15-16; Def.'s Reply at 5-6.
Defense counsel asked Moore at his deposition if he had "ever requested an accommodation from Equity," and Moore responded that he had only requested one accommodation, related to automatic withdrawal of rent from his bank account. Winn Decl. Ex. B (Moore Dep.) at 12:25-13:5. As there is no indication that the request for automatic withdrawal of rent was related to Moore's disability, it is not clear whether Moore understood defense counsel's question. Moore also testified that he called the Equity office three times during the outage and left voicemail messages to notify Equity that the elevator was out of service and request information. Id. at 23:16-25:15. According to Moore, no one responded to his first two calls, but after the third call, an Equity representative called back and offered him a hotel room. Id. Moore declined that offer because it would have been too difficult to move everything he would need to live and work at another location. Id. at 25:19-24. In his declaration, Moore states that in one of his voice messages and in his conversation with an Equity representative, he informed Equity that he needed the elevator repaired immediately. Moore Decl. (dkt. 111-5) ¶¶ 2-3.
As with Estes, the Court declines to hold that Moore's new statement in his declaration is a sham. Although Moore testified that he did not request an accommodation other than automatic rent withdrawal, and did not mention at his deposition that he told Equity he needed the elevator repaired immediately, he was not asked whether he requested an immediate repair. The Court declines to disregard Moore's declaration and thus declines to grant Equity's motion on this basis.
Moore also states in his declaration that he requested that, "in the future, management should tell us immediately when there are outages." Moore Decl. ¶ 3. Equity contends that requesting such notice is not a request for an accommodation because it already had a policy and practice of notifying residents of elevator issues. Def.'s Mot. at 16-17 (citing, e.g., Sinclair Decl. (dkt. 106-3) ¶ 11. There is evidence from which a reasonable jury could determine that Equity's policy of providing updates was not honored consistently — or in other words, that while such notice might have been Equity's policy, it was not a consistent practice. See, e.g., McGuinness Decl. Ex. E (Estes Dep.) at 12:1-6 (stating that Estes first learned of the November 2015 outage when his attendant, presumably not an Equity employee, told him that the elevator was not working). Moore also testified that he did not receive a call when the elevator went out of service in December of 2018, and only learned that it was out when he attempted to leave his apartment and saw a sign on the elevator. McGuinness Decl. Ex. D (Moore Dep.) at 44:3-10. A jury could determine from this evidence that Equity failed to act on the request to proactively notify tenants of elevator outages.
Bednarska and Payne contend that Equity failed to provide reasonable accommodations in that it did not immediately repair the elevator, did not provide acceptable substitute housing for much of the elevator outage, did not reimburse their costs for food while Bednarska could not access the apartment, and did not give them a rent credit. Equity seeks summary judgment that it granted Bednarska and Payne's request for a hotel, and that their remaining requests do not constitute reasonable accommodations.
Upon learning that the elevator was inoperable, Equity proactively contacted Bednarska and Payne by telephone and email to inform them of the outage and offer alternative housing at a hotel, which Bednarska and Payne accepted. Sinclair Decl. ¶¶ 17-19. When Bednarska and Payne arrived at the La Quinta hotel at Equity's direction, they found that the room reserved for them was not wheelchair accessible because the elevator at the hotel also was not working and the "plywood plank" that the hotel offered to place on the stairs would have been dangerous for Bednarska to attempt to use in her wheelchair. McGuinness Decl. Ex. B (Payne Dep.) at 24:3-11; id. Ex. C (Bednarska Dep.) at 23:1-18.
Plaintiffs cite no authority that a brief setback — like the La Quinta lacking accessibility before Bednarska and Payne found an acceptable room at the Holiday Inn Express later that day that Equity ultimately paid for — can support a claim for failure to provide a reasonable accommodation. Equity is also correct that Plaintiffs have not met their burden to show that any room more accessible than the one at the Berkeley Inn was available after Bednarska and Payne left the Holiday Inn Express. Nevertheless, Bednarska's testimony indicates that she and Payne would have been able to remain at the Holiday Inn Express if Equity had authorized a longer stay at the outset. McGuinness Decl. Ex. C (Bednarska Dep.) at 25:4-19. Whether it was reasonable for Equity to authorize only a short stay when Equity could not know with certainty when the elevator would return to service is a question for the jury. The Court declines to grant Equity's motion on the basis that it reasonably provided alternative accessible housing.
On November 20, 2015 — the midpoint of the fifteen-day period when the elevator was out of service — Bednarska and Payne's attorneys sent Equity a letter requesting the following accommodations: (1) immediately repairing the elevator; (2) revising policies to ensure that the elevator remained in service going forward and that Equity better communicated with residents regarding elevator issues; (3) reimbursing hotel and meal expenses; and (4) providing a rent a utilities credit for days that Bednarska was unable to access her apartment. Sinclair Decl. Ex. E.
As discussed above in the context of Estes's claim, a jury could find that Equity's failure to repair the elevator more quickly by obtaining a replacement circuit board supports a claim for failure to provide a reasonable accommodation. As further discussed above, a jury could also find that Bednarska and Payne's request for better communication was a request for a reasonable accommodation. There is evidence that Equity did not provide such communication, in that it did not inform them that the elevator had returned to service until the day after it was repaired, which they learned from a neighbor rather than from Equity. See McGuinness Decl. Ex. F at PLTF000034 (email from Bednarska to Equity employee Tyler Rego).
Equity argues that meal reimbursement and rent credits are not "reasonable accommodations" within the meaning of the statutes at issue, and contends that these categories of monetary compensation for harm cause by the outage are instead recoverable, if at all, as damages. Def.'s Mot. at 14-15. Although neither party has cited a case directly considering that issue, Plaintiffs have not explained how such reimbursement or credit could be considered "`reasonable accommodations in rules, policies, practices, or services . . . necessary to afford [them] equal opportunity to use and enjoy a dwelling." See Giebeler, 343 F.3d at 1145. Unlike providing a hotel room, which served as a direct substitute for the dwelling that Equity normally provided to Bednarska and Payne, the meal reimbursement and rent credits are not equivalent to any service that non-disabled tenants received, or anything that Bednarska and Payne would normally receive from Equity but could not access while the elevator was out of service. The Court agrees with Equity that such reimbursement might be compensable through damages, but was not a reasonable accommodation.
The Court previously declined to dismiss Bednarska and Moore's claims under FEHA and the CDPA based on a theory that doors (other than elevator doors) at Acton Courtyard were excessively heavy. Dec. 2017 Order at 13. Equity now asserts that Plaintiffs' expert Gary Waters measured the force required to open the doors and found that it complies with applicable rules. Def.'s Mot. at 19 (citing Winn Decl. Ex. A). The exhibit Equity cites is merely a cover letter for Plaintiffs' experts' reports and does not include the actual report on which Equity replies, see Winn Decl. Ex. A, but Plaintiffs acknowledge that the doors were compliant with that standard at the time of measurement, Pls.' Opp'n at 11. Plaintiffs nevertheless argue that their own interrogatory responses that they encountered "excessively heavy doors" are sufficient to create a genuine issue of fact as to whether the doors required more force to open when Plaintiffs encountered them than at the time of measurement. Id. at 12. As a starting point, a party's own interrogatory response is inadmissible hearsay. AT & T Corp. v. Dataway Inc., 577 F.Supp.2d 1099, 1109 (N.D. Cal. 2008). Setting that issue aside on the assumption that Plaintiffs could offer testimony consistent with their interrogatory responses, Plaintiffs admit that they did not themselves measure the force required to open the door, and offer no evidence either that they could tell from the force required that it exceeded the applicable standard, or that they tried opening the doors at the time they were measured and found them to require less force than when they previously encountered them.
The Court does not hold that subjective testimony alone regarding force required to open doors or similar barriers to access can never survive summary judgment. See Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013) ("It's commonly understood that lay witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely."). In this case, however, where precise measurements were taken by both parties, their results are undisputed, and there is no evidence that the force required to open the door changed between the time when Plaintiffs encountered the doors and the time they were measured, no reasonable jury could conclude that the force required exceeded the force measured and thus also exceeded the applicable standards. Equity's motion is GRANTED as to claims for excessively heavy doors.
Plaintiffs also argue that their claims should proceed because both parties' experts determined that certain doors swung more quickly than allowed by applicable rules. Equity objects to this theory as not disclosed in Plaintiffs' complaint. The allegations of the Second Amended Complaint pertaining to door accessibility read as follows:
SAC ¶¶ 13-14.
Nothing in Plaintiffs' complaint put Equity on notice that Plaintiffs believed the doors closed too quickly. The Ninth Circuit has addressed this precise issue, holding that "for purposes of Rule 8, a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011). The Court disregards Plaintiffs' arguments regarding the speed at which the doors closed.
Both parties seek summary judgment on Plaintiffs' claims under the following sections of the Berkeley Municipal Code:
Berkeley Municipal Code § 19.50.040 (paragraph break added for ease of reading).
Id. § 19.50.060.
The parties' dispute turns on whether Equity was unable to repair the elevator within twenty-four hours under section 19.50.040(B) and (C), and whether section 19.50.060 authorizes a civil action where a building operator failed to repair the elevator within twenty-four hours but provided alternative housing.
Starting with the latter argument, section 19.50.060 explicitly incorporates the standard of section 19.50.040 to define a building operator's duty to repair an elevator or provide alternative housing. Although a condition of "failure to timely repair an elevator or to provide alternative housing," standing alone, would only be satisfied where a defendant failed to either to repair or to provide alternative housing, the following clause of section 19.50.060(A) — "as required by Section 19.50.040" — directs the reader to that statute to understand the requirement at issue. Under section 19.50.040(B) and (C), the building operator has an absolute duty to repair within twenty-four hours, unless such repair is beyond the operator's control, in which case (and only then) the building operator has a duty to provide alternative housing. Accordingly, if a timely repair was within the building operator's control but not timely completed, the building operator has "fail[ed] to timely repair an elevator or to provide alternative housing, as required by Section 19.50.040," even if the building operator provides alternative housing. The Court rejects Equity's argument that providing alternative housing immunizes a building operator from a claim under this statute if the operator could have repaired the elevator within twenty-four hours but failed to do so, and DENIES Equity's motion for summary judgment on this claim, which rests solely on that argument. See Def.'s Mot. at 20-21.
Turning to whether Equity could have repaired the building within twenty-four hours, section 19.50.040(C) defines inability to do so as occurring if and only if three conditions are met: "the building operator [1] had previously made reasonable arrangements, judged by relevant industry standards, to provide for expeditious repair of the elevator in the event of a malfunction, [2] had regularly maintained the elevator and [3] had taken all other reasonable steps to repair the elevator at the earliest practicable time." Berkeley Municipal Code § 19.50.040(C). The statute does not specify which industry's standards apply to judge reasonableness, and the parties did not address that issue in their briefs.
Plaintiffs argue that Equity cannot meet that standard because it did not "regularly maintain[ ] the elevator" and, by not ordering a replacement circuit board, did not "take[ ] all other reasonable steps to repair the elevator at the earliest practicable time." Pls.' Mot. at 13. Both questions present issues of fact for the jury.
Section 19.50.040(C) calls for determining reasonableness based on "relevant industry standards," but does not clarify which industry's standards should apply. Berkeley Municipal Code § 19.50.040(C). Plaintiffs' expert Joseph Stabler states that "returning the elevator to service was unnecessarily delayed by" at least thirteen days as a result of the decision to repair rather than replace the circuit board, and offers an undisputed declaration that replacement circuit boards were available for overnight shipping in 2015. Stabler Decl. ¶¶ 27-28, 31. Equity's own expert Steve Green testified at his deposition that he would have counseled Equity to order a replacement circuit board for overnight shipping rather than attempt to repair the circuit board:
Derby Decl. Ex. H (Greene Dep.) at 41:13-42:21. Greene went on to testify that he would not support a decision to repair rather than replace the board even if it would save the building owner significant amounts of money. Id. at 44:10-17.
Greene states in his declaration that "Equity took reasonable steps (including paying for next-day shipping) to return the elevator to service as quickly as possible." Greene Decl. ¶ 10. The Municipal Code, however, does not merely require some reasonable steps; it requires an operator to take "all other reasonable steps," and Greene's declaration stops conspicuously short of saying that Equity did so. See Berkeley Municipal Code § 19.50.040(C). In light of both experts' opinions that an elevator operator faced with a defective circuit board should replace rather than repair the board, Plaintiffs would likely be entitled to judgment on this claim if the "industry standards" incorporated by the Berkeley Municipal Code were the standards of the elevator repair industry.
Although the statute provides little guidance as to its meaning, the Court concludes that the relevant industry is not the elevator repair industry, but instead the residential building management industry. The sections of the Municipal Code at issue relate to the duties of building operators. With no clear indication to the contrary, the Court holds as a matter of law that industry standards to be applied are the standards of the industry the statute regulates. Neither party has submitted evidence directly addressing how a reasonable building operator would respond to its elevator repair company informing the operator that the only elevator in a building with disabled tenants must remain out of service for an extended period of time. A jury might find that Equity acted reasonably in relying on ThyssenKrupp's expertise. Conversely, a jury might find that the drastic impact of the outage on Equity's disabled tenants should have prompted Equity to seek a second opinion as to whether there was any other option to return the elevator to service. Equity's ability to determine for itself after the outage that the part was in fact available might also suggest that Equity acted unreasonably in failing to conduct such an investigation at any point during the two weeks that the elevator was out of service. Both parties' motions as to this claim are DENIED.
For the reasons discussed above, Equity's motion is GRANTED as to Plaintiffs' claims under the Rehabilitation Act and the Unruh Act, as well as Plaintiffs' claims based on inaccessible doors other than the elevator. Plaintiffs' motion is DENIED. The remaining claims may proceed to trial as narrowed above.
