ORDER DENYING MOTION FOR SUMMARY JUDGMENT Docket #21

JAMES LARSON, Magistrate Judge

Introduction

The motion of Defendant Consolidated Real Estate Management, Inc. for summary judgment came on for hearing before this Court on November 5, 2003. Attorney for Plaintiff Leota Hurd was D. Scott Chang. Attorney for Defendant was Steven Ruth. The Court considered the written pleadings and the oral argument of counsel and hereby denies the motion. All parties have consented to the jurisdiction of this Court as required by 28 U.S.C. § 636(c)

Factual Background

Plaintiff Leota Hurd is a 72 year old woman with multiple disabilities, including mobility impairments, respiratory problems, arthritis and high blood pressure. She has difficulty walking without a walker and sometimes uses a wheelchair. (Decl. Of Leota Hurd at 1). She moved into her apartment on the third floor of the Royal Oaks Apartments in October 1999. At that time the building elevator was working. Otherwise she must climb two flights of stairs to reach her apartment. In July 2001, when new owners took over the Royal Oaks Apartments, the elevator was locked and she was not given a key. Between July 2001 and January 2002 on three or four different occasions she asked Jack Rose, the resident manager, to repair the elevator. She asked him in person while she was using her walker. Mr. Rose told her a part had been ordered and the elevator would be repaired. The elevator was not repaired until after this lawsuit was filed.

From July 2001 to January 2002, Ms. Hurd also witnessed her care giver write notes on her behalf asking that the elevator be repaired. The notes stated that she had a disability, she needed an elevator to reach her apartment safely, and that she requested the Royal Oaks Apartments to repair the elevator. Her attendant forwarded the notes with her monthly rent checks. She never received a response to her written requests that the elevator be repaired. Also, since July 2001 she has seen homeless persons and drug dealers at Royal Oaks Apartments. She has heard of problems with assaults, burglaries, and prostitution on the premises. She believes that Royal Oaks Apartments has not provided her with adequate security.

On December 9, 2003, she filed her complaint alleging violation of fair housing and disabled access laws. She seeks injunctive, declaratory and monetary relief against defendants — the owners and managers of the Royal Oaks Apartments.

Defendant Consolidated Real Estate Management, Inc., which manages the apartments moves for summary judgement on Plaintiff's claims for relief under the Federal Fair Housing Act, the California Fair Employment and Housing Act ("FEHA"), the Unruh Civil Rights Act, disabled access, common law nuisance and California Business and Professions Code § 17200.

Legal Analysis

Consolidated moves for summary judgement on the following grounds:

1) As to Claim One, Violation of 42 U.S.C. § 3601, the Federal Fair Housing Act, Plaintiff presents no evidence that Consolidated intentionally discriminated against her. Nor did Consolidated's conduct give rise to a discriminatory effect. Consolidated relies on Martin v. Constance, 843 F. Supp. 1321 (E.D. Mo. 1994)

Plaintiff rejects the contention that she must prove that Consolidated intentionally discriminated in order to prevail on a claim for violation of the reasonable accommodation provision of the Fair Housing Act. She relies on Fowler v. Borough of Westville, 97 F. Supp.2d 602, 613 (D.N.J. 2000); Trovato v. City of Manchester, 992 F. Supp. 493, 497 (D.N.H. 1997); Dunlap v. Association of Bay Area Governments, 996 F. Supp. 962, 966 (N.D.Cal. 1998). She contends that she has several theories available to her and that a claim for discrimination based on a failure reasonably to accommodate is distinct from a claim of discrimination based on disparate impact. Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003).

Plaintiff distinguishes Martin v. Constance as follows:

A plaintiff can show a violation of section 3604(f) by one of two methods. The first method is showing discriminatory intent on the part of the Defendants . . . Although the Court concludes that plaintiffs have proved a violation of the FHA by showing discriminatory intent, the Court will consider whether plaintiffs have also succeeded on the merits by proving discriminatory effect. Under this method of establishing a violation of section 3604, plaintiffs "need prove no more than that the conduct of Defendants actually or predictably resulted in . . . discrimination; in other words, that it has a discriminatory effect. . . . Effect, and not motivation, is the touchstone."

This Court concludes that Plaintiff may prove discrimination by Consolidated without proving intent, if she can prove a discriminatory effect from this Defendant's acts or failure to act. Either theory presents an issue of fact to be decided by the jury, and accordingly summary judgment is denied as to Claim One, for violation of the Fair Housing Act.

2) As to Claim Two, Violation of the California Fair Employment and Housing Act ("FEHA"), Consolidated is not the proper Defendant. Defendant's also contends that:

3) As an employee, Consolidated cannot be personally liable for housing discrimination under FEHA, based on management decisions made in the course of employment. Defendant relies on Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55.

In Janken, the court ruled that a supervisor could be held personally liable for a discriminatory employment action, if it was within the supervisor's authority and was in fact discriminatory. This Court interprets Janken to mean that Consolidated could be liable for discrimination under FEHA, if it discriminated against Plaintiff while acting within its authority.

Consolidated moves for summary judgment on Claim Two on the additional ground that:

4) There is no evidence that Consolidated intentionally discriminated against Plaintiff, so her FEHA claim must fail. Defendant relies on Gov. Code § 12955.8(a). This statute allows two kinds of proof of discrimination: by discriminatory intent or discriminatory effect

Proof of an intentional violation of this article includes, but is not limited to, an act or failure to act that is otherwise covered by this part, that demonstrates an intent to discriminate in any manner in violation of this part. A person intends to discriminate if race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, or ancestry is a motivating factor in committing a discriminatory housing practice even though other factors may have also motivated the practice. An intent to discriminate may be established by direct or circumstantial evidence.

(b) Proof of a violation causing a discriminatory effect is shown if an act or failure to act that is otherwise covered by this part, and that has the effect, regardless of intent, of unlawfully discriminating on the basis of race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, or ancestry. A business establishment whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of this part if the business establishment can establish that the action or inaction is necessary to the operation of the business and effectively carries out the significant business need it is alleged to serve. In cases that do not involve a business establishment, the person whose action or inaction has an unintended discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of this part if the person can establish that the action or inaction is necessary to achieve an important purpose sufficiently compelling to override the discriminatory effect and effectively carries out the purpose it is alleged to serve.

CA GOVT § 12955.8

As with Claim One, Plaintiff has two options: she can show either discriminatory intent or discriminatory effect and either to prevail.

This Court finds that there are issues of fact as to whether Consolidated intentionally discriminated or, even if it didn't, whether any action or inaction by this Defendant had a discriminatory effect on Plaintiff. There would also be issues of fact whether the action or inaction was necessary to achieve an important purpose. Therefore, summary judgement is denied as to Claim Two, for violation of FEHA.

(5) Consolidated moves for summary judgment on Plaintiff's Claim Three, for relief under California Civil Code § 51, et seq., (Unruh Civil Rights Act), on grounds that there is no evidence that Consolidated intentionally discriminated against Plaintiff. Consolidated relies on Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1174-1175.

Plaintiff counters that the Unruh Act does not require a showing of intent to prove a violation of its disability provisions. She relies on Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp.2d 1134 (N.D.Cal. 1998) (holding that the Unruh Act incorporates liability standards of ADA, which prohibits more than intentional discrimination; for instance discrimination resulting from "inaction, thoughtlessness or equal treatment when particular accommodations are necessary.") Id., citing Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996); Boemio v. Love's Restaurant, 954 F. Supp. 204, 208 n. 4 (S.D.Cal. 1997).

Plaintiff distinguishes Harris, upon which Consolidated relies, because Ham's involved claims of sex discrimination, not disability discrimination, and was decided before the Unruh Act was amended to include disability as a protected class and incorporate the provisions of the ADA.

This Court agrees that the Ham's case is inapposite and adopts the reasoning in Presta in which Judge Henderson ruled that a plaintiff bringing a disability discrimination action under California's Unruh Civil Rights Act need not prove discriminatory intent. Presta Id. at 1135 (holding that Unruh Act "adopts the full expanse of the ADA" and therefore the same standard of liability applies, and plaintiff need not prove discriminatory intent).

Accordingly, summary judgment on Claim Three, for violation of the Unruh Civil Rights Act, must be denied.

6) Defendant moves for summary judgment on Plaintiff's Claim Four, for relief under California Civil Code § 54.1, on grounds that Consolidated never refused Plaintiff access to an elevator. Defendant relies on its allegation that it had no knowledge of Plaintiff's disability.

Plaintiff contends that Consolidated had imputed knowledge of Plaintiff's disability through its agent, the resident manager. She relies on Meyer v. Holley, 537 U.S. 280, 123 S.Ct. 824, 829 (2003).

Meyer relieves owners and shareholders of corporate defendants from liability for acts of their employee or agent, but not the corporations themselves. Id. at 827. Plaintiff argues that Consolidated, the corporation, had implied knowledge of her disability through its employee, the resident manager of the Royal Oaks Apartments.

This Court finds that summary judgment should be denied on Plaintiff's claim under California Civil Code § 54.1, for denial of access, because there are issues of fact as to the extent of the agency relationship between Consolidated and the resident manager.

5) Consolidated moves for summary judgment on Claim Five, for relief under Calif. Bus. Prof. Code § 17200. Defendant contends that it is an improper defendant, had no knowledge either of Plaintiff's disability or of her request for an elevator, and had no authority to install or repair the elevator.

Plaintiff contends that a property manager may be liable for failure to make reasonable accommodations. She relies on Wilstein v. San Tropai Condominium Master Assoc., 1999 U.S. Dist. Lexis 7031, *22 (N.D. Ill. 1999) (property manager who ignored requests of condominium complex resident for accessible parking space independently liable for violation of reasonable accommodation provision of Fair Housing Act, despite claim by property manager and building manager that they were merely agents of the homeowner's association).

Plaintiff also contends that Consolidated is an agent of the property owner and may also be liable as such for failure to reasonably accommodate Plaintiff's disability by repairing the elevator. City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1096 (7th Cir. 1992), cert denied, 508 U.S. 972 (1993) (Real estate agents liable individually for engaging in racial steering); Dillon v. AFBIC Development Corp., 597 F.2d 556 (5th Cir. 1979) (builder's agent liable for discrimination under Fair Housing Act for following builder's instructions not to sell to plaintiffs because of their race); Jeanty v. McKey Poague, Inc., 496 F.2d 1119, 1120 (7th Cir. 1974) (Rental management company liable for Fair Housing violations).

Plaintiff notes cases in which actions against property managers under the Fair Housing Act have been allowed to proceed. See, e.g. Hamad v Woodcrest Condominium Assoc., 328 F.3d 224, 228 (6th Cir. 2003); Walker v. Crigler, 976 F.2d 900, 902 (4th Cir. 1992). Plaintiff contends that acts of unfair competition include violations of fair housing laws. People v. McKale (1979) 25 Cal.3d 626, 637.

In Wilstein the Seventh Circuit expressly held that an owner may be liable for a manager's actions. Defendant's motion is denied as to this claim.

6) Consolidated moves for summary judgment on Plaintiff's Claim Six, negligent supervision, on the basis that there is no evidence that Consolidated had knowledge that any of its employees would act improperly without supervision. Consolidated relies on Juarez v. Boy Scouts of America, (2000) 81 Cal.App.4th 377, 395; Federico. v. Superior Court (1997) 59 Cal.App.4th 1207; Noble v. Sears, Roebuck Co. (1973) 33 Cal.App.3d 654, 664.

Plaintiff contends that whether or not Consolidated was negligent is a question of fact to be decided by a jury. Plaintiff has not had an opportunity to take depositions or follow up on her written discovery. See Rule 56(7) Declaration. Specifically, Plaintiff has not been able to discover what training the resident managers at the Royal Oaks Apartments received, what experience the resident managers have in property management, and what level of supervision was provided the resident managers of the apartments during the relevant time period. Id.

This Court agrees that there are triable issues of fact which require discovery which Plaintiff has not yet obtained, and, therefore, Consolidated's motion for summary judgment on Claim Six is denied.

7) Consolidated moves for summary judgment on Plaintiff's Claim Seven, under California Civil Code § 3479 and common law nuisance, on grounds that there is no evidence that Consolidated had authority to accommodate Plaintiff, because it was never the owner of the Royal Oaks Apartments. Defendant relies on Jarchow v. Transamerica Title Insurance Co. (1975) 48 Cal.App.3d 917, 949.

Plaintiff contends that summary judgment on this issue would be premature and that agents of a landlord may be liable for nuisance. Plaintiff relies on Stoiber v. Honeychuck, (1980) 101 Cal.App.3d 903, 919 (finding that "the statutory definition of nuisance appears to be broad enough to encompass almost any conceivable interference with the enjoyment or use of land.")

Plaintiff observes that Consolidated offers evidence that it did not have authority to repair the security gates, but does not state that it did not have responsibility for maintaining security. Plaintiff has not had an opportunity to discover whether Consolidated had responsibility to ensure security at Royal Oaks Apartments and if so, what means it employed to ensure residents' security without repairing the security gates. See Rule 56(f) Declaration.

This Court finds that there are material issues of fact in dispute which include Consolidated's responsibility for security and its ability to provide security, and that therefore summary judgment on the nuisance claim must be denied.

Conclusion

For all the above reasons, the Court hereby denies Consolidated's motion for summary judgment on the following claims:

• Claim One, for relief under 42 U.S.C. § 3601, the Federal Fair Housing Act;

• Claim Two, for relief for violation of the California Fair Employment and Housing Act ("FEHA");

• Claim Three, for relief under California Civil Code § 51, et seq. (Unruh Civil Rights Act)

• Claim Four, for relief under California Civil Code § 54.1 (disabled access to housing);

• Claim Five, for relief under California Business Professions Code § 17200;

• Claim Six, for relief for negligent supervision;

• Claim Seven, for relief under Civil Code § 3479 and common law nuisance.

IT IS SO ORDERED.