ORDER ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT
LAWRENCE J. O'NEILL, District Judge.
Before the Court are the parties' motions for summary judgment. Having carefully considered the parties' submissions and the record, and for all the reasons set forth below, the Court (1) GRANTS Plaintiff's motion for partial summary judgment and (2) GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment.
A. Factual Background
This case concerns allegations of sexual harassment and discrimination at Arrowhead Mobile Home Park ("Arrowhead") in Ridgecrest, California.
1. The First Incident
In the late morning of March 27, 2012, Ms. Salisbury walked her dogs by Mr. Crimi's mobile home en route to her mailbox. Mr. Crimi and his wife were the new on-site managers at Arrowhead. As Ms. Salisbury passed-by, Mr. Crimi called Ms. Salisbury's name to say hello. After shaking hands, Mr. Crimi indicated that he would like to talk with Ms. Salisbury, just the two of them. Ms. Salisbury thought nothing of the request and responded, "Well, you know where I live." She then proceeded to walk to her mailbox.
An hour later, Mr. Crimi knocked on Ms. Salisbury's door. Ms. Salisbury invited Mr. Crimi to have a seat in her backyard. Once in the backyard, Mr. Crimi pulled up a chair close to the back steps. Mr. Crimi then grabbed Ms. Salisbury's hand and told her that he had "urges." Ms. Salisbury stood up and pulled her hand back. Mr. Crimi, in turn, stood up and asked Ms. Salisbury if he could hold her in his arms. Ms. Salisbury pointed to Mr. Crimi's wedding ring and said, "This isn't going to happen." As Ms. Salisbury attempted to back away, Mr. Crimi cornered her against the side of her mobile home and repeatedly said that he had "urges."
The barking of Ms. Salisbury's dog momentarily diverted Mr. Crimi's attention, at which point Ms. Salisbury snuck around Mr. Crimi and went to her front gate so that she would be in public view. Mr. Crimi followed her and repeated that he had "urges." Mr. Crimi also said, "If you will just let me in the back door." Ms. Salisbury responded, "No, this is not going to happen" and "You are persistent, but this is not going to happen."
Mr. Crimi eventually left. Ms. Salisbury went inside her home, locked the doors, and checked the windows. She then called two friends and told them what had just happened.
2. The Second Incident
Two days later, on March 29, 2012, Ms. Salisbury again walked her dogs to her mailbox. She believed that Mr. Crimi "got the message" that she was not interested in him because he did not bother her the day before. As Ms. Salisbury talked to her neighbor by the mailboxes, Mr. Crimi drove up to the mailboxes, looked at them, and then left.
A few hours later, Ms. Salisbury was sitting in the dining room table of her mobile home and was talking to her friend on the phone. When her dogs began barking loudly, Ms. Salisbury looked up and found Mr. Crimi standing in her kitchen. She asked what Mr. Crimi wanted. Mr. Crimi replied, "I came by your house earlier, your truck was in the driveway but I didn't hear your dogs. So I went to you back door, I turned the knob and it wasn't locked." Mr. Crimi claimed that he did not actually go in her mobile home. Ms. Salisbury reiterated, "This not going to happen," and tried to back away from Mr. Crimi. Mr. Crimi, in turn, kept advancing until Ms. Salisbury was pinned against the kitchen counter. Mr. Crimi was "right up against" Ms. Salisbury, but he did not
Mr. Crimi's attention was diverted by the barking of Ms. Salisbury's dog, at which point Ms. Salisbury slipped out the back door. Instead of leaving altogether, Mr. Crimi went outside and sat in one of Ms. Salisbury's chairs in front of the mobile home. Hoping that he would leave, Ms. Salisbury sat in another chair and said, "This is not going to happen. I have to live here. You have to work here. It's not going to happen." Mr. Crimi repeated that he had "urges." He then asked Ms. Salisbury if she was going to tell his wife. After Mr. Crimi eventually left, Ms. Salisbury called her friend back, upset and crying.
When Ms. Salisbury went to her bedroom later that day, she noticed that one of her brassieres was not where she had left it. Instead of lying in a heap on her dresser, it was laid out. Ms. Salisbury suspected that Mr. Crimi had, in fact, entered her mobile home.
3. Legal Action
On March 31, 2012, Ms. Salisbury went to the police department and filed a complaint against Mr. Crimi. She also filed a civil harassment petition against him. On April 4, 2012, the Kern County Superior Court conducted a hearing on the matter and issued a three-year restraining order against Mr. Crimi. Despite the restraining order, Ms. Salisbury remains afraid that Mr. Crimi continues to watch her and may harass her.
B. Procedural History
Ms. Salisbury initiated this action on July 5, 2012. She asserts six claims in her complaint: (1) discriminatory housing practices in violation of the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.; (2) unlawful housing practices in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov.Code §§ 12927, 12955 et seq.; (3) discrimination in violation of California's Unruh Civil Rights Act, Cal. Civ.Code §§ 51-52; (4) negligence; (5) breach of the covenant of quiet use and enjoyment; and (6) unlawful entry. As relief, Ms. Salisbury seeks damages, injunctive relief, and declaratory relief.
On August 5, 2013, the parties filed the pending motions for summary judgment. Defendants filed their opposition on August 28, 2013, and Ms. Salisbury filed her opposition on August 30, 2013. The parties filed replies on September 6, 2013.
II. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, disclosure materials, discovery, and any affidavits provided establish 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). A material fact is one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable trier of fact could return a verdict in favor of the nonmoving party." Id.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation
If the movant satisfies its initial burden, the nonmoving party must go beyond the allegations in its pleadings to "show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) (emphasis in the original). "[B]ald assertions or a mere scintilla of evidence" will not suffice in this respect. Id. at 929. See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.") (citation omitted). "Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
In resolving a summary judgment motion, "the court does not make credibility determinations or weigh conflicting evidence." Soremekun, 509 F.3d at 984. That remains the province of the jury or fact finder. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Instead, "[t]he evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. Inferences, however, are not drawn out of the air; the nonmoving party must produce a factual predicate from which the inference may reasonably be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898 (9th Cir.1987).
III. EVIDENTIARY MATTERS
A. Judicial Notice
Ms. Salisbury requests the Court take judicial notice of six facts/documents: (1) the fact that California Code of Civil Procedure section 527.6 authorizes the issuance of temporary and permanent civil harassment restraining orders; (2) the fact that Ms. Salisbury filed a request for such a restraining order against Mr. Crimi on April 4, 2012; (3) the fact that Mr. Crimi filed a response to the request for a civil harassment restraining order on April 11, 2012; (4) the fact that a hearing was conducted on the issue in the Kern County Superior Court on April 18, 2012; (5) the fact that the Kern County Superior Court issued a three-year restraining order against Mr. Crimi on April 18, 2012; and (6) the state court docket, along with the documents filed in connection with this matter. (Doc. 74.)
The Court GRANTS Ms. Salisbury's request. Under Federal Rule of Evidence 201, the court may take judicial notice of "a fact that is not subject to reasonable dispute because it can be accurately and readily determined from
B. Ms. Salisbury's Declaration
Defendants move to strike Ms. Salisbury's declaration because the assertions expressed therein (i.e., the extent of Ms. Salisbury's emotional distress) were not disclosed to Defendants in discovery. (See Docs. 96-6 & 99 ¶¶ 2-4.) It is not necessary for the Court to rule on this matter at this time. The Court is able to resolve the pending motions for summary judgment without touching upon the extent of Ms. Salisbury's emotional distress. Therefore, the Court DENIES Defendants' motion to strike Ms. Salisbury's declaration, without prejudice.
C. Missing Deposition Excerpts
Defendants object to several facts because the cited deposition pages were missing. (Doc. 99 ¶ 5.) Ms. Salisbury has since corrected that error by filing the relevant deposition testimony. (See Doc. 106 ¶¶ 2-4.) Because there is no indication that Defendants were prejudiced by Ms. Salisbury's error, this objection is OVERRULED.
A. Plaintiff's Motion for Partial Summary Judgment
Ms. Salisbury invokes the doctrine of collateral estoppel and argues that Mr. Crimi should be barred from relitigating (1) whether Mr. Crimi engaged in a course of conduct that seriously annoyed, alarmed, or harassed Ms. Salisbury; (2) whether the course of conduct would have caused a reasonable person to suffer substantial emotional distress; and (3) whether Ms. Crimi's conduct did, in fact, cause Ms. Salisbury to suffer substantial emotional distress. Ms. Salisbury maintains that all of these issues were decided in the affirmative when, after a hearing, the Kern County Superior Court issued a three-year restraining order against Mr. Crimi.
The doctrine of collateral estoppel, or issue preclusion, "prevents relitigation of issues actually litigated and necessarily decided, after a full and fair opportunity for litigation, in a prior proceeding." Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir.1995) (citation omitted). Collateral estoppel "has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).
To determine the preclusive effect of a state court judgment in a federal action, a federal court must look to, and apply, the preclusion law of that state, here California. See McInnes v. California,
Here, there can be no dispute that the last two requirements — finality and sameness of parties — are met. The restraining order at issue here was the product of a full hearing on April 4, 2012, wherein Ms. Salisbury and Mr. Crimi were represented by counsel. Ms. Salisbury largely testified to the same facts as she here in this case, and Mr. Crimi generally denied Ms. Salisbury's allegations, as he does in this case. The Kern County Superior Court evaluated this testimony, along with the testimony of other witnesses, and concluded that a three-year restraining order should be issued against Mr. Crimi. That decision has not been appealed and is therefore final.
More difficult is determining what issues were actually and necessarily decided by the Kern County Superior Court and how those issues translate to this case. In granting Ms. Salisbury a three-year restraining order, the Kern County Superior Court made no factual findings other than to note that there was "overwhelming" evidence that Mr. Crimi was present at Ms. Salisbury's home on March 29, 2012. (Doc. 101-1 at 33:13-15.) Therefore, beyond this one factual finding, the only issues that can be said to have been actually and necessarily decided by the Kern County Superior Court are those issues that the court had to resolve, statutorily, in order to grant Ms. Salisbury a restraining order pursuant to California Code of Civil Procedure section 527.6.
Under section 527.6, a court may grant a petition for a three-year restraining order if it finds by "clear and convincing evidence" that unlawful harassment exists. Cal.Code Civ. Proc. § 527.6(i); see also Grant v. Clampitt, 56 Cal.App.4th 586, 591, 65 Cal.Rptr.2d 727 (Ct.App.1997). For the specific purpose of section 527.6, harassment is defined as:
Cal.Code Civ. Proc. § 527.6(b)(3). It follows, then, from the Kern County Superior Court's decision to grant Ms. Salisbury's petition for a three-year restraining order that the court must have found clear and convincing evidence that (1) Mr. Crimi engaged in a "course of conduct" that seriously annoyed, alarmed or harassed Ms.
These are the same three issues that Ms. Salisbury seeks preclusion on now. Accordingly, Ms. Salisbury's motion for partial summary judgment is GRANTED. Mr. Crimi may not relitigate these specific issues to the extent that they necessarily arise in the context of this case.
B. Defendants' Motion for Summary Judgment
The FHA prohibits discrimination based on sex in the sale or rental of housing. See 42 U.S.C. § 3604. Federal courts have recognized that sexual harassment is a form of sex discrimination that is prohibited by, and actionable under, the FHA. Accord Quigley v. Winter, 598 F.3d 938, 946 (8th Cir.2010); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Honce v. Vigil, 1 F.3d 1085, 1089-90 (10th Cir.1993); Shellhammer v. Lewallen, 770 F.2d 167 (6th Cir.1985); Beliveau v. Caras, 873 F.Supp. 1393, 1396-97 (C.D.Cal.1995). Specifically, where the sexual harassment creates a "hostile housing environment" or constitutes "quid pro quo sexual harassment," it is actionable under the FHA. United States v. Hurt, 676 F.3d 649, 654 (8th Cir.2012) (quoting Quigley, 598 F.3d at 946-47). See Honce, 1 F.3d at 1089-90.
The issue presented here on summary judgment is whether there is evidence from which a fact finder could reasonably conclude that Mr. Crimi's conduct created a hostile housing environment.
To determine what constitutes severe or pervasive sexual harassment under the FHA, federal courts look to cases interpreting what constitutes severe or pervasive sexual harassment in the context of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. See DiCenso, 96 F.3d at 1008; see also Gamble v. City of Escondido, 104 F.3d 300,
Consistent with this, it is well-established that "isolated and innocuous incidents do not support a finding of sexual harassment." DiCenso, 96 F.3d at 1008. For example, in DiCenso a landlord went to the plaintiff's apartment door to collect rent. Id. at 1006. While standing at the door, the landlord began to caress the plaintiff's arm and back. Id. The landlord also said words to the effect that if the plaintiff could not pay the rent, she could take care of it in other ways. Id. The plaintiff responded by slamming the door in the landlord's face. Id. The landlord, in turn, called the plaintiff names such as "bitch" and "whore," and then left. Id. Under these circumstances, the Seventh Circuit concluded that there was insufficient evidence to support a hostile environment claim. The Seventh Circuit stressed that the alleged harassing conduct involved only a single incident, and that incident, while unpleasant, was not particularly egregious; it involved no touching of intimate body parts and there was no threat of physical harm. See id. at 1008-09.
Similarly, in Honce, the Tenth Circuit held that the plaintiff could not prevail on her claim for sexual harassment. The circumstances in Honce were as follows:
1 F.3d at 1087. The Tenth Circuit stressed that the behavior did not include sexual remarks, physical touching, or threats of violence. Id. at 1090. The Tenth Circuit concluded that, at most, the defendant asked the plaintiff out to three social occasions, all of which occurred prior to the plaintiff occupying the premises, and none of which were sexual in nature. Id.
First, although Mr. Crimi's conduct did not involve violence or overt physical force, there was still a degree of physical intimidation and apprehension present. During both incidents, Ms. Salisbury made it clear to Mr. Crimi that she was not interested, in any way, in his sexual advances and tried to back away from him. Nevertheless, not only did Mr. Crimi persist with his sexual advances verbally, he also advanced toward Ms. Salisbury physically. Specifically, during the March 27, 2012 incident, Mr. Crimi cornered Ms. Salisbury against the wall of her mobile home, and during the March 29, 2012 incident, Mr. Crimi trapped Ms. Salisbury against her kitchen counter. Thus, while Mr. Crimi did not overtly threaten Ms. Salisbury with physical force or touch any of Ms. Salisbury's intimate body parts, his physical conduct was not innocuous.
Second, and perhaps most importantly, the second major incident of harassment on March 29, 2012, took place in Ms. Salisbury's own home. Courts have recognized that harassment in one's own home is particularly egregious and is a factor that must be considered in determining the seriousness of the alleged harassment. See Quigley, 598 F.3d at 947 ("We emphasize that Winter subjected Quigley to these unwanted interactions in her own home, a place where Quigley was entitled to feel safe and secure and not flee, which makes Winter's conduct even more egregious.") (emphasis added). As one district court in this circuit noted:
Beliveau, 873 F.Supp. at 1397 n. 1. (quoting Comment, "Home is No Haven: An Analysis of Sexual Harassment in Housing," 1987 Wis. L.Rev. 1061, 1073 (Dec. 1987)).
The fact that the harassment took place in Ms. Salisbury's home is even more egregious when viewed in light of the fact that Ms. Salisbury lives alone and Mr. Crimi trespassed into her home uninvited and completely unexpectedly. While an intruder would cause someone legitimate concern regardless of his or her gender, a reasonable woman would likely find the combination of circumstances faced by Ms. Salisbury to be especially serious and troubling. See Ellison v. Brady, 924 F.2d 872, 878-79 (9th Cir.1991) (when assessing the severity of the harassment faced by a female plaintiff, the facts must be viewed from the perspective of a reasonable woman). As the Ninth Circuit acknowledged, women are particularly cognizant of the
Id. at 879.
Finally, while this fact does not distinguish this case from DiCenso or Honce, it is nonetheless worth noting that Mr. Crimi is not any ordinary resident at Arrowhead; he is the community's on-site manager. Generally speaking, sexual harassment by someone in a position of authority is more likely to be emotionally and psychologically threatening. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1056 (9th Cir. 2007) (recognizing in the context of a hostile work environment that sexual harassment by one's boss is more coercive than sexual harassment by a co-worker). That proposition applies with equal force here. Presumably, as the on-site manager, Mr. Crimi is first in-line to respond to any issue that might interfere with Ms. Salisbury's use and enjoyment of her residence, such as a rent dispute or a request for repairs. Mr. Crimi's ability to influence Ms. Salisbury's well-being thus adds yet another degree of severity to Mr. Crimi's conduct. This reality exists even if Mr. Crimi did not engage in any quid pro quo sexual harassment.
In sum, when viewed in its entirety, there is sufficient evidence in the record for a fact finder to conclude that Mr. Crimi's harassing conduct was sufficiently severe or pervasive as to create a hostile housing environment in violation of the FHA.
2. FEHA, Unruh Civil Rights Act, and Negligence
Defendants move for summary judgment on Ms. Salisbury's claims under the FEHA, under California Civil Code section 51.9,
As for Ms. Salisbury's negligence claims, it is conceivable that a landlord may breach his duty of care to his tenants by failing to take reasonable steps to protect his tenants from severe or pervasive sexual harassment. See generally Cal. Civ. Code § 1714(a); Portillo v. Aiassa, 27 Cal.App.4th 1128, 1133-34, 32 Cal.Rptr.2d 755 (Ct.App.1994) (landlords have a duty to ensure the security of their tenants). Defendants do not try to argue otherwise or address this matter in any meaningful way. Accordingly, Defendants are not entitled to summary judgment on Ms. Salisbury's negligence claims.
3. Breach of the Covenant of Quiet Use and Enjoyment
Defendants contend that they are entitled to summary judgment on Ms. Salisbury's claim for breach of the covenant of quiet use and enjoyment because Ms. Salisbury still resides at Arrowhead. Defendants insist that where a tenant has not vacated the premises, there can be no claim for breach of the covenant of quiet use and enjoyment.
There is some authority supporting Defendants' position. See Petroleum Collections Inc. v. Swords, 48 Cal.App.3d 841, 847, 122 Cal.Rptr. 114 (Ct.App.1975) ("[T]he covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction."); Clark v. Spiegel, 22 Cal.App.3d 74, 80, 99 Cal.Rptr. 86 (Ct. App.1971) ("There can be no eviction, actual or constructive, if the lessee continues in the possession of the premises."). However, more recent California cases have criticized this position and have held that a tenant need not vacate the premises before suing for breach of the covenant of quiet enjoyment. The leading case for this position is Guntert v. City of Stockton, 55 Cal.App.3d 131, 126 Cal.Rptr. 690 (Ct.App. 1976). In Guntert, the court concluded that instead of vacating the premises, a tenant may respond to a breach of the covenant of quiet enjoyment by standing on the lease, remaining in possession of the property, and suing for contract damages:
Id. at 140, 126 Cal.Rptr. 690 (internal citations omitted). Guntert has recently been followed by several California courts of appeal. See Ginsberg v. Gamson, 205 Cal.App.4th 873, 897, 141 Cal.Rptr.3d 62 (Ct. App.2012) ("Thus, breach of the implied covenant of quiet enjoyment can be understood as a title encompassing claims for
Following Guntert here, the fact that Ms. Salisbury has not vacated her home at Arrowhead is not necessarily fatal to her claim for breach of the covenant of quiet use and enjoyment. Accordingly, Defendants are not entitled to summary judgment on this claim.
4. Unlawful Entry
Defendants note that Ms. Salisbury cites two statutes in connection with her claim for unlawful entry: California Civil Code section 1940.2 and California Civil Code section 1954. Defendants argue that Ms. Salisbury lacks evidence to support a claim under either statute.
a. Section 1940.2
Section 1940.2(a) makes it unlawful for a landlord to engage in certain conduct, such as theft, extortion, or the use of force, "for the purpose of influencing a tenant to vacate a dwelling." Cal. Civ. Code § 1940.2(a). Here, there is no evidence demonstrating that Mr. Crimi engaged in conduct for the purpose of influencing Ms. Salisbury to vacate her home at Arrowhead. Nor does Ms. Salisbury even attempt to argue that such was the case. (See Doc. 93 at 21-22.) Defendants, therefore, are entitled to summary judgment on Ms. Salisbury's unlawful entry claim to the extent that the claim is predicated on a violation of California Civil Code section 1940.2.
b. Section 1954
Section 1954 limits the circumstances under which a landlord may enter a dwelling unit. One of the few circumstances listed in the section is "in case of emergency." Cal. Civ.Code § 1954(a)(1). Defendants attempt to seize upon this exception by arguing that an emergency prompted Mr. Crimi to enter Ms. Salisbury's home uninvited on March 29, 2012. Specifically, Defendants maintain that Mr. Crimi entered Ms. Salisbury's mobile home only after he had dropped by earlier in the day and noticed some "unusual" circumstances, namely: (1) Ms. Salisbury and her dogs were gone; (2) Ms. Salisbury's truck was still in the driveway; and (3) the backdoor was unlocked. (Doc. 73 at 12.)
Defendants' construction of the evidence is unconvincing. Putting aside that there was, in fact, no emergency, a fact finder could conclude that it was not reasonable for Mr. Crimi to believe that an emergency existed. The "unusual" circumstances that Mr. Crimi allegedly observed suggest that Ms. Salisbury was out walking her dogs, not that some sort of emergency was afoot. And even if there could be any doubt, there was nothing a simple knock could not resolve. Defendants are not entitled to summary judgment on Ms. Salisbury's unlawful entry claim to the extent that the claim is predicated on a violation of California Civil Code section 1954.
V. CONCLUSION AND ORDER
In accordance with the above, the Court:
IT IS SO ORDERED.