J & N REALTY, INC.

Scott Landesman v. The Keys Condominium Owners Assn.  

NOT FOR CITATION - United States District Court
 For the Northern District of California 

BACKGROUND  

This is a case alleging violations of the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"); the Unruh Act, California Civil Code § 51; and the California Fair Employment and Housing Act, California Government Code § 12927, et seq. ("FEHA").  

Plaintiffs are Scott Landesman and his son Keith Landesman (a minor); Jennifer de Roque and her son Matthew de Roque (a minor); and David Ragland and Kathleen Ragland, a married couple. Plaintiffs reside at The Keys, a condominium complex located in Walnut Creek, California.  

The Keys consists of 792 residential units, plus common areas. The common areas include three swimming pools (the "main" pool and two smaller "auxiliary" pools); a clubhouse, with an exercise gym, racquetball courts, sauna and steam room, billiards room, television room, and reading room; and certain other facilities located outdoors (tennis courts, basketball court, volleyball court, horseshoe pit, putting green). No supervision is provided in either the pool areas or the gym.  

The owners of the condominium units comprise the membership of defendant The Keys Condominium Owners Association ("The Keys Association") and elect the Board of The Keys Association, which adopts, amends, and repeals rules and regulations related to, among other things, the use of the common areas and facilities. 

Plaintiffs allege that The Keys Association has discriminated against families with children by placing restrictions on the use of the main swimming pool by children under 18; by prohibiting children under 15 from the clubhouse, the billiard room, and the gym and related facilities (racquetball courts, sauna, steam room, showers) unless under the supervision of an adult; and by prohibiting children under 16 from using the gym equipment. Plaintiffs seek injunctive relief, compensatory and punitive damages, disgorgement of association dues paid by families with children who have been denied access to all facilities at The Keys, and attorney's fees.  

Plaintiffs now seek a preliminary injunction under the FHA, prohibiting The Keys Association from enforcing the above-described rules.  

DISCUSSION  

A. Legal Standard 

To obtain a preliminary injunction, plaintiffs must demonstrate (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiffs if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiffs, and (4) advancement of the public interest (in certain cases). Alternatively, the court can grant injunctive relief if the plaintiffs demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in [their] favor. Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004).  

These two alternatives represent extremes of a single continuum, rather than two separate tests. Id. As a result, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party. Id. The court is also encouraged to consider separately whether an injunction serves the public interest. Sammartano v. First Judicial District Court, 303 F.3d 959, 974 (9th Cir. 2002)(citations omitted). Because a preliminary injunction is an extraordinary remedy, courts require the movant to carry its burden of persuasion by a "clear showing." Mazurek v.Armstrong, 520 U.S. 968, 972 (1997).  

B. Plaintiffs' Motion for Preliminary Injunction 

   1. The Fair Housing Act.  

Congress enacted the FHA as Title VIII of the Civil Rights Act of 1968. Fair Housing Council of Orange County, Inc. v. Ayres, 855 F.Supp. 315, 316 (C.D. Cal. 1994). In its current iteration, the FHA makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b). The provision making it unlawful to discriminate on the basis of "familial status" discrimination that is, discrimination against parents and other custodians living with children under the age of 18 was added when Congress amended the FHA in 1988. Fair Housing Act Amendments of 1988, Pub. L. No. 100-430, 102 Stat. 1620. 

The regulations implementing the FHA provide that it is unlawful to "limit" the use of "privileges, services, or facilities associated with a dwelling because . . . of familial status . . . "24 C.F.R. § 100.65(b)(4). "Familial status" is defined as "one or more individuals" under the age of 18 being domiciled with a parent or another person having legal custody of those individuals, or with the designee of such parent of person having legal custody, with the written permission of such parent or other person. 42 U.S.C. § 3602(k). 

The FHA provides that "an aggrieved person" may bring suit to obtain "appropriate relief" with respect to any housing practice alleged to violate the FHA. 42 U.S.C. 4§ 3613(a)(1)(A). The relief that the aggrieved person may request includes damages and, "asthe court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other such order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate)." Id. § 3613(c)(1). 

FHA discrimination claims are analyzed in the same manner as Title VII employment discrimination claims. Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). A plaintiff can establish a FHA discrimination claim under either a theory of disparate treatment or a theory of disparate impact. Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). Disparate treatment claims are generally analyzed using a shifting burdens test adapted from McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).1 

Under this method, the plaintiffs must first establish a prima facie case of housing discrimination. Harris, 183 F.3d at 1051. The elements of a prima facie case vary depending on the facts of the particular case. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 250 (9th Cir.1997). Adapted to the facts of the present case, this standard requires that plaintiffs show that they are aggrieved parties (members of the protected class or individuals who claim to have suffered an injury because of the alleged discrimination), and that, based on their familial status, they were denied access to use of facilities or common areas available to other residents of the complex. 

If the plaintiffs are able to establish a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. Harris, 183 F.3dat 1051. To accomplish this, the defendant need only set forth a legally sufficient explanation. Id. If the defendant asserts a legitimate reason, the plaintiffs must then show that the defendant's articulated reason is pretextual. Id. The plaintiffs may succeed in persuading the court that they have been the victims of unlawful discrimination either directly, by persuading the court that a discriminatory reason more likely than not motivated the defendant, or indirectly by showing that the defendant's proffered explanation is unworthy of credence. Id. (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981)).  

   2. Plaintiffs' Motion  

Plaintiffs contend that the rules limiting children's access to the common facilities at The Keys violate the Fair Housing Act, and argue that the court should issue an order enjoining The Keys Association from continuing this discrimination against families. Plaintiffs contend that the rules are discriminatory on their face; that a familial status claim does not require a showing of discriminatory intent; and that where injunctive relief is expressly authorized by statute (as in the FHA), proof that the defendant violated the statute is sufficient to support an injunction remedying those violations.  

The Keys Association argues that the motion should be denied because plaintiffs have not shown that the access rules are clearly unreasonable or that plaintiffs clearly will suffer irreparable harm before trial.2 The Keys Association also notes the basic function of a preliminary injunction is to preserve the status quo pending a determination on the merits. Pratt v. Rowland, 65 F.3d 802, 805 (9th Cir. 1995). The Association asserts that plaintiffs have failed to meet their burden of showing that The Keys' rules regarding the use of the pool and the clubhouse are unreasonable.  

In a letter dated September 15, 2004, which The Keys Association submitted as a "surreply" after the parties had engaged in an attempt to mediate their dispute, The Keys Association proposed certain modifications to the challenged rules. Principally, The Keys Association has indicated its willingness to allow children to enter the area adjacent to the main pool and to use amenities such as the picnic tables (though not to actually use the main pool, except at the permitted times), and that it is also willing to increase by three hours the period of time on Sundays that children are permitted to use the main pool. The Keys Association has agreed further to add signs at the auxiliary pools indicating the location of the restrooms, and to provide amenities at the auxiliary pools that are equivalent to those available at the main pool. The Keys Association is also willing to allow children to use the tennis and basketball courts, and to allow children age 8 and above to accompany their parents into the gym area (though not to use the exercise equipment, unless they are over the age of 14). 

The court finds that the motion must be GRANTED in part and DENIED in part. Plaintiffs' challenge in this case is directed toward three sets of rules promulgated by The Keys Association. The first set precludes use of the main swimming pool and the fenced area immediately adjacent to the main swimming pool by children under 18 during most of the summer.3 The Keys Association's articulated reason for these rules is that adult residents of The Keys enjoy using the main pool for lap swimming and "lap walking" or "water-walking," and that they prefer the relative tranquility of a swimming pool not filled with active and noisy children.  

The court finds that the motion must be GRANTED with regard to the pool-use restrictions. The court is not unsympathetic to the concerns of the adult residents who want to be able to enjoy the pool in peace, but finds that plaintiffs have nonetheless established a prima facie case of discrimination and that The Keys Association has not articulated a legitimate justification for excluding children from the main pool. Accordingly, the court finds that plaintiffs have established a likelihood of success on the merits as to the swimming pool restrictions.  

The rule limiting children's access to the main pool during the summer months is based solely on the fact that the children are persons under the age of 18. The result of the rule is that the children and their families are treated differently and less favorably than households comprised of adults only. See Llanos v. Estate of Anthony Coehlo, 24 F.Supp. 2d 1052, 1060(E.D. Cal. 1998). The FHA prohibits discrimination on the basis of any of several listed characteristics, one of which is familial status. The changes proposed to the pool-access rules by The Keys Association in its letter to the court dated September 15, 2004, do not eliminate the discriminatory treatment of families with children.  

If this were a case of a homeowners association allowing everyone to use the main pool at all available hours in the summer, with the exception of women, or persons born in Iraq or China, or members of the Episcopal Church, such restrictions would be equally unlawful as the restrictions on access by children. The statute does not distinguish among any of the protected characteristics, in the sense of indicating that some are more worthy of protection than others. Thus, there is no exception to the scope of protection, such that discriminatory treatment based on familial status would be acceptable under the FHA if there is a showing that adult residents of a housing complex do not like sharing a swimming pool with children. Any problems The Keys Association believes are caused by noise or activity of certain children should be taken up with the parents or guardians of those children.  

The Keys Association's articulated justifications are not sufficiently reasonable. The desire for peace and quiet while a worthy goal is not a valid justification for denying access to common facilities on the basis of familial status.4 Moreover, even if it were, that reasoning should apply year-round, not just during the summer months when the age restrictions are in place. Yet The Keys Association seeks to restrict children from the main pool only during the warmer months of the year when childless adult residents want the exclusive use of the main pool and the surrounding area. 

The Keys Association also asserts that plaintiffs' motion should be denied because plaintiffs have not made a showing of irreparable harm. Plaintiffs contend, however, that when a defendant has violated a civil rights statute, the court will presume that the plaintiff has suffered irreparable injury from the fact of the defendant's violation (citing Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001)). The Keys Association responds that the injunction at issue in Silver Sage was a permanent, not a preliminary injunction, and that at the preliminary injunction stage, any such presumption maybe rebutted by evidence that any injury that may occur is not irreparable. The Keys Association may be correct in this assertion, but the argument is without significance, as The Keys Association has not presented any evidence that the harm allegedly suffered by the plaintiffs is not irreparable.  

Plaintiffs also argue that once they have established a likelihood of success under the FHA, they need not make a showing of irreparable harm because the FHA specifically authorizes an aggrieved party to seek injunctive relief (citing Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (7th Cir. 1984), cited in Inland Mediation Bd. v. City of Pomona,158 F.Supp. 2d 1120, 1162 (C.D. Cal. 2001)). The Keys Association briefly discusses Gresham, but in the context of whether a showing of violation of a civil rights statute creates a presumption of irreparable injury, not in the context of whether the court need consider irreparable injury if the statute specifically allows for injunctive relief.  

It appears that plaintiffs are correct on this point. The Ninth Circuit has ruled that "[t]he standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent violation of a federal statute which specifically provides for injunctive relief." Burlington Northern R. Co. v. Dep't of Revenue, 934 F.2d 1064, 1074 (9th Cir. 1991) (citing Trailer Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9th Cir. 1983)).  

The second set of rules prohibits children under 15 from entering the clubhouse (which includes the billiards room, racquetball court, and possibly the sauna, steam room, and showers) unless accompanied by an adult. The Keys Association's articulated explanation is that these rules were implemented as a response to acts of damage and vandalism, and that the incidents of damage and vandalism subsided after the rules went into effect. In addition, with regard to the limits on use of the sauna, steam room, and showers, The Keys claims that this rule reasonably protects the safety of children under 15 who could be injured by use of the sauna or steam room if an adult is not present.  

The motion is DENIED as to this set of rules. The Keys Association has articulated a legitimate basis for requiring that children be accompanied by an adult when in the clubhouse area, and plaintiffs have not provided any evidence that this articulated reason is pretextual. Plaintiffs appear to concede that the safety concerns justify precluding unaccompanied children from entering the steam room and the sauna, and from using "some of the exercise equipment." With regard to the general rule requiring children to be accompanied by an adult whenever they are in the clubhouse, they simply assert that it is based on "the unfounded assumption" that children are destructive. This is not sufficient to show pretext.  

The third set of rules prohibits children under 16 from entering the gym unless accompanied by an adult, and also prohibits children under 16 from using the gym equipment at any time.5 The Keys Association contends that these rules are necessary because children under 16 could be injured by the gym equipment.  

The motion is DENIED as to this set of rules. The Keys Association has articulated a legitimate basis for prohibiting children under 16 from using the gym equipment, and plaintiffs have not provided any evidence that this articulated reason is pretextual. Moreover, plaintiffs have not established irreparable harm or even that the balance of hardships tips in their favor.  

As a final comment, the court wishes to reiterate that this case is not based on a failed contract or other argument between business entities, in which the fact-finder must decide whether money should flow from one pocket to another. Rather, it involves a dispute among people who live in the same complex of housing units and who are neighbors. As the court indicated at the hearing, a voluntary mediation of the dispute will go farther to resolving all the issues, with fewer bad feelings among the residents of The Keys, than will a lawsuit in this court plus whatever relief the court might order.  

Although the parties have engaged in at least one mediation session to date, and have plainly made some progress in resolving their difficulties, the court would encourage the parties to work further with a mediator who can assist them in developing a policy and a set of rules that is not discriminatory but that still, to the extent possible, is responsive to the concerns of the homeowners and all the residents. In the long run, this will be less costly, both in terms of attorneys' fees and in terms of relationships among neighbors.  

CONCLUSION  

In accordance with the foregoing, the court hereby GRANTS plaintiffs' motion for preliminary injunction in part and DENIES it in part. IT IS SO ORDERED. 

Dated: October 19, 2004 

/s/ PHYLLIS J. HAMILTON United States District Judge 

NOTES 

1. Where direct evidence is used to show that a housing decision was made in violation of the FHA, the burden-shifting analysis is inapposite. Gilligan v. Jamco Dev. Corp., 108 F.3d246, 250 (9th Cir. 1997). 

2. The Keys Association does not dispute that plaintiffs have established a prima facie case of discrimination.  

3. "Summer" in this context seems to refer to the period June 1 through the third Monday of October, which is the period during which the north and south pools are heated. During this summer period, children under 18 may use the main pool only at the following times: 1) when the other two pools the north and south pools are closed; 2) throughout the Memorial Day holiday, the Fourth of July holiday, and the Labor Day holiday; 3) every Sunday between 4:00 p.m. and 11:00 p.m. when The Keys holds a "family barbecue" at the main pool; and 4) whenever The Keys holds a "family event" at the main pool about three times each summer. At any other time during the summer, children are allowed to use the north and south pools only, and are not even permitted to enter the area immediately adjacent to the main pool. 

4. This is not to say that The Keys Association cannot impose other reasonable, age-neutral restrictions on the use of one or more of the pools, such as setting aside certain hours for lap-swimming or lap-walking, or such as imposing restrictions on making noise (no screaming or loud playing of radios or CD players) or running or roughhousing in the pool area. In addition, if the perceived problem is the fear that the main pool area will be taken over by one or two young residents plus their non-resident friends, The Keys could require residents with more than a certain number of guests to use one of the auxiliary pools. Moreover, The Keys Association is well within its rights to require that children under the age of 14 be accompanied by an adult when using any one of the three pools. 

5. The printed rules regarding use of the gym are unclear. The rules state that children 14 and younger are not permitted in the clubhouse unless accompanied by an adult. The racquetball court and the billiards room are in the clubhouse. The gym is also apparently in the clubhouse. However, separate rules for the gym state that children under 16 (that is, children 15 and younger) must be accompanied by an adult if they are in the gym, and also states that children under 16 may not use the gym equipment. (Defendants' September 15, 2004, letter, on the other hand, speaks of maintaining "the rules restricting use of the gym equipment to children age 15 and above.") It isn't clear whether the sauna, steam room, and showers are considered part of "the gym" or "the clubhouse." The parties refer to these as "first-floor facilities" related to the gym.