1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYDNEY SKOCHKO, Case No. 20-cv-08659-JSC

8 Plaintiff,

ORDER RE: MOTIONS FOR

9 v. SUMMARY JUDGMENT

10 MERCY HOUSING, INC., et al., Re: Dkt. Nos. 66, 67, 68 Defendants. 11

12 13 Plaintiff sues three Defendants for failure to reasonably accommodate her disabilities. The 14 lawsuit arises out of Defendants’ failure to provide her with a hospital bed when she was required 15 to temporarily relocate from her apartment because of repairs to the building’s wheelchair- 16 accessible lift. Before the Court are Defendant Mercy Housing, Inc.’s motion for summary 17 judgment; Plaintiff’s motion for partial summary judgment; and all Defendants’ motion for 18 summary judgment or, in the alternative, partial summary judgment. (Dkt. Nos. 66, 67, 68.) 19 Having carefully considered the parties’ briefing, and having had the benefit of oral argument on 20 August 11, 2022, the Court GRANTS Defendant Mercy Housing, Inc.’s motion for summary 21 judgment; GRANTS Plaintiff’s motion for partial summary judgment (with respect to the 22 remaining two Defendants); and DENIES Defendants’ motion for summary judgment. 23 FACTUAL BACKGROUND 24 Plaintiff lives at the Hamilton Apartments in Oakland, California. (Dkt. No. 68-1 at 53.) 1 25 The Hamilton has seven floors, with 92 apartments across floors two through seven. (Dkt. No. 68- 26 2 at 6 ¶ 25.) Plaintiff has physical disabilities that make it very painful for her to move or walk. 27 1 (Dkt. No. 67-1 at 15.) She needs a hospital bed to sleep or rest, because she can only comfortably 2 lie down when the bottom of the bed is up and the top is down. (Id.) If Plaintiff cannot lie down 3 in that position, she has excruciating pain and cannot sleep. (Id. at 15–18.) Plaintiff has had the 4 same hospital bed for the 15 years she has lived in her apartment. (Id. at 14, 19; Dkt. No. 68-1 at 5 71, 346–47.) 6 A. June 2019 Relocation 7 Seven stairs lead from the outside sidewalk into the Hamilton lobby. (Dkt. No. 68-2 at 6 ¶ 8 25.) There is also a wheelchair-accessible lift. (Id.) In June 2019, the lift was removed and 9 replaced over a period of 8 weeks. (Id. at 8 ¶ 37.) Defendant Mercy Housing California’s 10 Relocation Coordinators Nakema Dogan and Tia Ramirez2 were responsible for relocating 11 residents during the project; ultimately, 10 residents were relocated. (Dkt. No. 67-1 at 44, 94; Dkt. 12 No. 68-1 at 223–24, 228–29, 232–35; Dkt. No. 68-2 at 8 ¶¶ 38–39; Dkt. No. 68-3 at 2 ¶ 1.) In 13 March 2019, there was a community meeting to tell residents about the project and explain that 14 they could be relocated if they wished. (Dkt. No. 68-1 at 230–31, 237; Dkt. No. 68-2 at 9 ¶ 40.) 15 On March 18, Ms. Dogan sent Plaintiff a notice about the project and potential relocation, and 16 they met in person soon after. (Dkt. No. 68-1 at 97, 236; Dkt. No. 68-2 at 9 ¶¶ 41, 44.) 17 There is conflicting evidence as to what was said in conversation between March and June 18 2019, but written communications show the following. Around May 29, 2019, Plaintiff submitted 19 a form titled “Request for Reasonable Accommodation/Reasonable Modification” on Mercy 20 Housing letterhead. (Dkt. No. 67-1 at 7–8.)3

21 Please describe the situation you are encountering that causes you to request accommodation or modification: 22 23 2 The briefs and record spell these employees’ names as both Nakema Dogan and Nakeema 24 Dogan, and Tia Ramirez and Tia Rameriz. The Court uses the former of each, following Ms. 25 Dogan’s declaration. (Dkt. No. 68-3 at 2.) 3 Defendants’ objections to this document are overruled. Defendants rely on it in their opposition 26 to Plaintiff’s summary judgment motion. (Dkt. No. 73 at 12–13; Dkt. No. 73-2 at 47.) See Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) (on 27 summary judgment the trial court must consider all evidence in the record, regardless of who 1. Must sleep in special position due to stenosis of spinal nerves and 1 metasizes [sic] of cancer to sacrum.

2 Please describe the accommodation or modification you are requesting: 3 1. Requesting disabled room (ADA4 compliant) room while on 4 relocation during re-construction of lift. 2. Transport of medical bed to relocation destination (hotel) and 5 transported back home to [Apt.] 710. 6 (Id. at 7.) A property manager completed a part of the form titled “use when disability is known 7 or obvious and no 3rd-party verification is necessary.” (Id. at 8.) The property manager wrote 8 that Plaintiff had “limited mobility,” described her current status as “severe limited,” noted that 9 there was “prior accommodation in tenant file,” and recommended the request be “grant[ed] based 10 on obvious need for accommodation.” (Id.) On May 30, a property manager forwarded Plaintiff’s 11 request to Ms. Dogan, Ms. Ramirez, and others. (Dkt. No. 68-2 at 50.)5 12 On June 8, Plaintiff emailed Ms. Dogan, Ms. Ramirez, and others referencing “months” of 13 verbal requests, and some written requests, for “a disabled room and a hospital bed.” (Dkt. No. 14 67-1 at 114.)6 15 On June 17, Plaintiff’s counsel emailed Defendants’ counsel:

16 I understand that Mercy does not dispute that a hospital bed is a necessary accommodation for [Plaintiff] out of her home. I 17 understand that [Ms. Ramirez] and the relocation people have not been successful in getting a hotel’s consent to have a hospital bed 18 moved in for [Plaintiff].

19 I urged you to escalate the issue to hotel management, who must as a matter of law grant this reasonable accommodation. For your 20 information, [Plaintiff] spoke on the phone with a manager at the Extended Stay Oakland Airport who said he did not think having a 21 hospital bed would be a problem. If [Plaintiff] were to be located there or any similar remote location, Mercy would need to pay for 22 Uber/Lyft/taxis but I think that’s a problem easily solved, once the bed issue is resolved. 23 It also occurred to me that the hotels may be objecting to bringing 24 someone’s personal bed into the hotel for (misplaced) hygiene reasons and so would respond better if Mercy were renting a hospital 25 bed to be delivered directly to the hotel from a vendor. 26

27 4 ADA refers to the Americans with Disabilities Act. 1 (Id. at 117.) Defendants’ counsel replied on June 19:

2 Mercy contracted with Extended Stay America for ADA-compliant rooms during the lift replacement. [Plaintiff’s] room there has been 3 pre-paid and remains available to her. While we are sympathetic to [Plaintiff’s] situation, I did not, as your e-mail suggests, ever say or 4 imply during our Monday telephone call that “Mercy does not dispute that a hospital bed is a necessary accommodation for [Plaintiff] out of 5 her home.”

6 On June 4, 2019, Mercy received [Plaintiff’s] Reasonable Accommodation Request to take her personal hospital bed with her to 7 the relocation facility. Although not part of Mercy’s obligation to provide accessible housing to [Plaintiff], Mercy’s Relocation Team 8 has contacted numerous ADA-compliant hotels and extended stay facilities in an attempt to find one that would permit [Plaintiff] to 9 bring her personal hospital bed. Unfortunately, despite these efforts, Mercy has been unable to locate a hotel or an extended stay facility 10 that would agree to allow [Plaintiff] to bring in her personal hospital bed. Your suggestion that Mercy or its attorneys threaten these 11 businesses with lawsuits unless they allow your client to bring in her personal hospital bed is administratively unreasonable. Mercy does 12 not—and cannot reasonably be expected to—control the business practices of third parties. 13 14 (Id. at 119.) Defendants’ counsel offered three options. First, Plaintiff could stay at home during 15 the lift repair and Defendants would provide an “on-call runner” for errands like groceries and 16 prescriptions. (Id. at 120.) Second, Plaintiff could relocate to the Extended Stay America 17 (“ESA”) Oakland-Emeryville to an ADA-compliant room without a hospital bed:

18 It remains unclear what functionality/aspect(s) of the hospital bed [Plaintiff] relies upon for pain relief and to what degree medical 19 support cushions and/or other products, devices, equipment can be used on the Extended Stay America bed to provide similar 20 functionality. To the extent such products are useful to [Plaintiff], if she chooses to relocate to the Extended Stay facility, Mercy is open 21 to reimbursing [her] for reasonable purchases to help make the bed provided more like her hospital bed. 22 23 (Id.) Third, Plaintiff could relocate to a hotel with a non-ADA-compliant room and “bring a 24 hospital bed”; she “would need to relocate after 29 days to avoid establishing tenancy and will be 25 responsible for making the arrangements to move her bed into and out of the hotel.” (Id.) 26 Plaintiff’s counsel responded that “at least temporarily,” Plaintiff wished to relocate to the ESA 27 Oakland-Emeryville. (Dkt. No. 68-2 at 60–61.) 1 emailed Defendants’ counsel about “two outstanding issues”:

2 1. Defendant has not offered any reasonable alternatives to [Plaintiff’s] reasonable accommodation request for a hospital bed in 3 her hotel room while the wheelchair lift is out of service. Defendant has made vague suggestions, but nothing with sufficient detail to 4 enable [Plaintiff] to make an informed decision.

5 2. Defendant moved [Plaintiff] to a hotel room that is not accessible to her. Far in advance of yesterday, [Plaintiff] presented both Tia (or 6 her assistant) and Hamilton’s property manager with a written list of the accessible features she needs in a hotel room, written by her 7 doctor. She was not provided with those features. Thus, in addition to the pain she suffers from having no adjustable bed, she has no way 8 to bathe because she can’t step into the bathtub she was assigned. (there are other access barriers but these are the most pressing.) 9 10 (Dkt. No. 72-7 at 2–3.) 11 Plaintiff stayed for 66 days at ESA Oakland-Emeryville without a hospital bed, (Dkt. No. 12 67-1 at 108), and had excruciating pain, (id. at 26–28). 13 B. November 2019 Relocation 14 In November 2019, Defendants made repairs to the wheelchair-accessible lift in the 15 Hamilton lobby. (Dkt. No. 68-2 at 12 ¶ 65.) Defendants chose ESA Oakland-Emeryville to 16 relocate residents and reserved an ADA-compliant room for Plaintiff. (Id. at 13 ¶¶ 67–68.) 17 Xochitl Escobedo was the Relocation Coordinator. (Dkt. No. 67-1 at 71; Dkt. No. 68-2 at 14 ¶ 18 77.) 19 Plaintiff relocated to ESA Oakland-Emeryville on November 5, 2019, but was not given an 20 ADA-compliant room. (Dkt. No. 68-2 at 14 ¶¶ 75–76.) That same day Plaintiff’s counsel emailed 21 Ms. Escobedo:

22 Prior to being relocated, [Plaintiff] requested that because of her disabilities, she be placed in an ADA accessible hotel room with 23 access to a hospital bed to remain safe while she was away from her unit. Despite this request, she has been placed in a non‐ADA 24 accessible room . . . . She also was not permitted to bring her hospital bed. 25 As an accommodation, please relocate [Plaintiff] forthwith to a hotel 26 with an accessible room. Time is essential and we trust that this relocation can take place no later than tomorrow morning. Further, 27 upon relocation, we intend to request a reasonable accommodation of and have a hospital bed delivered to [Plaintiff] at the hotel when the 1 request is granted. 2 (Id. at 67.) Ms. Escobedo emailed Ms. Ramirez and reported that she had called Plaintiff, who 3 said she would wait until an ADA-compliant room opened up at ESA Oakland-Emeryville rather 4 than moving to another hotel. (Id.; see id. at 14 ¶ 77.) 5 On November 6, Defendants’ counsel emailed Plaintiff’s counsel offering that Plaintiff 6 could relocate that same day to an ADA-compliant room at the La Quinta by Wyndham near the 7 Oakland Airport, if she preferred not to wait for an ADA-compliant room at ESA Oakland- 8 Emeryville. (Id. at 71.) They continued:

9 Your request that Mercy be prepared to have Ms. Skochko’s hospital bed transferred to a hotel as a reasonable accommodation is simply 10 not feasible. Other residents who use hospital beds at the Hamilton have moved to the Extended Stay facility without their beds, 11 understanding that this is a temporary situation. We expect all relocated residents will be able to return to the Hamilton in 3 days. 12 13 (Id.) 14 On November 10, Plaintiff’s counsel emailed Defendants’ counsel:

15 Since last we communicated, Ms. Skochko has been relocated to two different hotels. Despite asking for an assurance that the third 16 relocation would be to a hotel with a wheel-in shower, and sending a photo of one to Hamilton’s relocation coordinator, she arrived and no 17 such room was available. Nor was there any note on her reservation that this room had been requested. Further, no early check in had 18 been arranged, so she had to wait in the lobby for nearly three hours. She was finally permitted access to her room only to see that it had an 19 inaccessible shower.

20 I spoke to the hotel today and thankfully, they were able to move her to an accessible room with a wheel-in shower. In addition, they stated 21 that it would be no problem for Ms. Skochko to bring in her medical bed as an accommodation of her disability. They stated only that they 22 cannot help with moving it and that it must be removed upon check out or would incur the daily guest rate. 23 Ms. Skochko has been patient throughout this process. But Mercy has 24 been on notice that she was in need of a hospital bed to accommodate her disability for a significant period of time. . . . At this point we are 25 asking for a formal reasonable accommodation for Mercy to rent such a medical bed immediately and have it delivered to Ms. Skochko’s 26 room at the Extended Stay in Alameda. 27 (Id. at 69.) 1 Veterans Day but that they would consider the request “that Mercy Housing rent a hospital bed for 2 Ms. Skochko at the Extended Stay in Alameda.” (Id. at 73.)

3 In the interim, Ms. Skochko can arrange for a rental bed to be brought to the Extended Stay in Alameda at her own expense, but I cannot 4 represent that Mercy will be able to reimburse her for that cost unless and until her request has been evaluated by the 504/[Reasonable 5 Accommodation Request] coordinator. 6 (Id.) The next day, Defendants’ counsel offered to have Plaintiff reimbursed “up to $1,500 for the 7 rental or purchase of medical devices” while at ESA. (Id.) Plaintiff’s counsel responded that 8 Plaintiff could not afford to pay for any part of an accommodation due to her low income. (Dkt. 9 No. 67-1 at 129.) 10 Plaintiff spent a total of 15 days at ESA Oakland-Emeryville and ESA Alameda, (id. at 11 98), without a hospital bed, (Dkt. No. 68-1 at 154). 12 C. March 2021 Relocation 13 There was a planned elevator outage at the Hamilton between March 29 and 30, 2021. (Id. 14 at 151.) On March 25, Plaintiff’s counsel requested as a reasonable accommodation that Plaintiff 15 be relocated to an ADA-compliant hotel room with a hospital bed, “either rented or transported 16 from her apartment.” (Id. at 133–35.) Defendants reserved an ADA-compliant room at ESA 17 Oakland-Emeryville but “reasserted [their] understanding that [ESA] did not permit guests to 18 bring in outside beds.” (Id. at 151.) On March 28, Plaintiff checked into the hotel. (See id. at 19 140.) The same day, Plaintiff’s counsel forwarded an email from ESA Oakland-Emeryville 20 confirming that it would allow a hospital bed. (Id. at 137–40.) Defendants rented a hospital bed 21 from Allstar Medical Supply, which was delivered to Plaintiff at ESA Oakland-Emeryville on 22 March 29. (Id. at 142, 152.) 23 * * * 24 Plaintiff sues Mercy Housing, Inc. (“Mercy Housing”), Mercy Housing California (“Mercy 25 California”), and Mercy Housing Management Group, Inc. (“Mercy Management Group”), 26 bringing claims under the federal Fair Housing Act (“FHA”), California’s Fair Employment and 27 Housing Act (“FEHA”), California’s Disabled Persons Act (“DPA”), and California’s Unruh Act. 1 claims. (Dkt. No. 67.) 2 Defendant Mercy Housing moves for summary judgment on the grounds that it is not the 3 owner or manager of Plaintiff’s home and is an improper defendant. (Dkt. No. 66.) All 4 Defendants move for summary judgment or, in the alternative, partial summary judgment on the 5 grounds that they provided reasonable accommodations in response to Plaintiff’s requests for the 6 June and November 2019 relocations, albeit not Plaintiff’s requested accommodation of a hospital 7 bed. (Dkt. No. 68.) Mercy Housing joins that motion to the extent its own motion is denied. (Id. 8 at 5 n.1.) 9 DISCUSSION 10 I. MERCY HOUSING’S SUMMARY JUDGMENT MOTION 11 For purposes of summary judgment, Mercy California and Mercy Management Group do 12 not dispute that they operate the Hamilton and thus may be liable for a failure to accommodate 13 Plaintiff’s disabilities. The evidence is insufficient to support a finding that Mercy Housing also 14 operates the Hamilton and thus may be liable. The undisputed evidence establishes that Mercy 15 Housing is a separate corporate entity from the other two Defendants and “has no involvement in, 16 and no control over day-to-day operations” at the Hamilton. (Dkt. No. 66-2 at ¶¶ 4, 8; Dkt. No. 17 66-1 at 14–17.) 18 The sole owner of the building is 2101 Telegraph Avenue Associates, LP. (Dkt. No. 66-2 19 ¶ 5.) The uncontroverted evidence is that the owner contracts with Mercy Management Group to 20 manage the building; Plaintiff has not identified evidence that Mercy Housing is part of that 21 contract or has its own contract to manage the building. (Id. ¶¶ 5, 7; Dkt. No. 68-2 at 6 ¶¶ 26–27.) 22 At best, the record supports a finding that Mercy Housing has a controlling interest in the separate 23 corporate entities of Mercy Management Group, Mercy California, and 2101 Telegraph. (Dkt. No. 24 70-1 at 14–15, 22.) Plaintiff does not cite any case, and the Court is aware of none, that suggests a 25 separate corporate entity’s controlling ownership in an entity that owns or operates a facility 26 makes the separate corporate entity liable for its subsidiary’s failure to accommodate. See Ranza 27 v. Nike, Inc., 793 F.3d 1059, 1070 (9th Cir. 2015) (“As a general principle, corporate separateness 1 ownership of the subsidiary.”). Plaintiff’s reliance on Mercy Housing’s description of Mercy 2 California as a “regional division” of Mercy Housing is misplaced. This unexplained description, 3 without more, is insufficient to create a genuine dispute as to Mercy Housing’s separate corporate 4 existence from Mercy California. 5 Accordingly, Mercy Housing’s motion for summary judgment is GRANTED.7 The rest of 6 the Court’s analysis pertains only to Defendants Mercy Management Group and Mercy California. 7 II. PLAINTIFF’S SUMMARY JUDGMENT MOTION 8 Plaintiff’s FHA, FEHA, and DPA claims assert that Defendants failed to reasonably 9 accommodate her disabilities.8 (Dkt. No. 1 ¶¶ 42–57, 66–74.) The parties agree that failure to 10 accommodate claims under the three statutes have substantially similar elements.9 See Pac. 11 Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 n.14 (9th Cir. 2013); Smith v. 12 Powdrill, No. CV 12–06388 DDP (RZx), 2013 WL 5786586, at *10–11 (C.D. Cal. Oct. 28, 2013). 13 The FHA, FEHA, and DPA prohibit discrimination in housing on the basis of disability, 14 which includes “a refusal to make reasonable accommodations in rules, policies, practices, or 15 services, when such accommodations may be necessary to afford such person equal opportunity to 16 use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B); see Cal. Civ. Code § 54.1(b)(3)(B); Cal. 17 Gov’t Code §§ 12927(c)(1), 12955(a). To prevail on these claims, a plaintiff must establish that 18 (1) she has a disability as defined by the statute; (2) defendants knew or reasonably should have 19 known of her disability; (3) accommodation may be necessary to afford her an equal opportunity 20 to use and enjoy the dwelling; and (4) defendants refused to make such accommodation. Giebeler 21 v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (FHA); Auburn Woods I Homeowners 22 Ass’n v. Fair Emp’t & Hous. Comm’n, 18 Cal. Rptr. 3d 669, 679 (Cal. Ct. App. 2004) (FEHA); 23 7 Defendant Mercy Housing’s objections to Plaintiff’s evidence are DENIED as moot. 24 8 The complaint alleges Defendants also failed to engage in the interactive process and 25 discriminated in the provision of services and amenities. (Dkt. No. 1 ¶¶ 46, 55.) Plaintiff’s briefing and oral argument clarify that her theory under the FHA is failure to accommodate. (Dkt. 26 No. 71 at 9.) As such, Defendants’ arguments about discriminatory intent or animus are irrelevant. (Dkt. No. 68 at 18–20.) Unlike a disparate treatment claim, a failure to accommodate 27 claim has no intent requirement. See Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 1 Smith, 2013 WL 5786586, at *10 (DPA). Implicit in the latter element is that the particular 2 accommodation was requested. See Elliott v. QF Circa 37, LLC, No. 16-cv-0288-BAS-AGS, 3 2018 WL 2933467, at *7 (S.D. Cal. June 12, 2018) (“An actual request by the plaintiff is thus a 4 necessary element of a prima facie reasonable accommodation under the FHA.”). 5 Finally, the requested accommodation must be reasonable. See Dubois v. Ass’n of 6 Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); Giebeler, 343 F.3d at 7 1148 (“[O]nly ‘reasonable’ accommodations are required by the [FHA].”). “[A]n accommodation 8 is reasonable under the [FHA] when it imposes no fundamental alteration in the nature of the 9 program or undue financial or administrative burdens.” Giebeler, 343 F.3d at 1157 (cleaned up). 10 “[T]he history of the [FHA] clearly establishes that Congress anticipated that landlords would 11 have to shoulder certain costs involved, so long as they are not unduly burdensome.” United 12 States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994). “The reasonable 13 accommodation inquiry is highly fact-specific, requiring case-by-case determination.” Id. at 1418. 14 The plaintiff has the burden “of demonstrating that the particular accommodation [she] 15 requests . . . is reasonable on its face, i.e., ordinarily or in the run of cases.” Giebeler, 343 F.3d at 16 1157 (cleaned up). The Ninth Circuit has also formulated the burden as one of evidentiary 17 production: the plaintiff bears the initial burden of producing evidence that a reasonable 18 accommodation is possible. Id. (citing Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)); 19 see also Castellano v. Access Premier Realty, Inc., 181 F. Supp. 3d 798, 807 (E.D. Cal. 2016) 20 (noting that Giebeler did not definitively adopt the burden of proof framework of either Vinson or 21 US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). If the plaintiff meets her burden, then the 22 defendant has the burden “of demonstrating that in the particular circumstances of this case the 23 requested accommodation would cause it to suffer undue hardship” or of rebutting the plaintiff’s 24 showing “that the requested accommodation was in fact reasonable.”10 Giebeler, 343 F.3d at 25 1158. 26

27 10 The Court need not address Plaintiff’s argument that Defendants have a higher burden under 1 As the party that bears the ultimate burden at trial, to prevail on her summary judgment 2 motion Plaintiff “must affirmatively demonstrate that no reasonable trier of fact would find other 3 than for her, such that every element of her claims must be resolved in her favor as a matter of law 4 based on undisputed evidence.” Terraza v. Safeway Inc., No. 16-CV-03994-JST, 2019 WL 5 12872959, at *3 (N.D. Cal. Mar. 27, 2019) (cleaned up). 6 A. Uncontested Elements 7 Plaintiff has established as a matter of undisputed fact that she (1) had a disability (2) 8 known to Defendants and that (4) no hospital bed of any kind was provided as an accommodation. 9 See Giebeler, 343 F.3d at 1147. Every reasonable trier of fact would be compelled to find those 10 three elements met. (See Dkt. No. 67-1 at 8, 11, 15–18; see Dkt. No. 68 at 8 n.2.) Indeed, 11 Defendants do not contend otherwise. 12 B. Necessary Accommodation Element 13 Plaintiff has also established as an undisputed fact that a hospital bed may have been 14 necessary to afford her an equal opportunity to use and enjoy the dwelling. See Giebeler, 343 15 F.3d at 1147. At the time Plaintiff made her request for a hospital bed, Defendants’ property 16 manager completed the part of the form that applies when “the disability is known or clear or 17 obvious and the connection to the request is also obvious.” (Dkt. No. 67-1 at 8, 38–39.) The 18 property manager concluded that Plaintiff had an “obvious need” for the hospital bed. (Id. at 8.) 19 Further, Plaintiff testified to her disabilities and why she required a hospital bed, (id. at 15–16, 20 18), that her physician prescribed her the hospital bed beginning in 2006, (id. at 19, 22), and that 21 without the hospital bed she suffered excruciating pain, (id. at 26–28). 22 Defendants do not offer any evidence that suggests Plaintiff does not suffer severe pain 23 when sleeping without a hospital bed. Instead, they contend there is a genuine dispute as to 24 whether the hospital bed was needed because the day after the June 19, 2019 relocation, Ms. 25 Dogan called Plaintiff “to see how she was settling in and to ask if she needed anything else from 26 me. Ms. Skochko told me that she was ‘fine,’ and I took her at her word.” (Dkt. No. 68-3 ¶¶ 16– 27 17.) Plaintiff’s response of “fine” to a generic question of how she was settling in does not 1 Dogan did not ask if Plaintiff suffered pain without the hospital bed, or even if she was alright 2 staying at the hotel without a hospital bed. Further, that very same day Plaintiff’s counsel 3 reiterated to Defendants’ counsel that Plaintiff needed a hospital bed. (Dkt. No. 72-7 at 2–3.) 4 Defendants also argue that because Plaintiff chose to relocate without the hospital bed, and 5 thereafter did not inquire of the hotel or Defendants whether she could get a hospital bed, there is a 6 genuine dispute whether she needed a hospital bed. Again, not so. Defendants do not identify any 7 evidence which reasonably disputes that Plaintiff suffered pain and had difficulty sleeping without 8 a hospital bed. Further, that she chose to relocate does not support an inference that she did not 9 need a hospital bed. As Plaintiff’s counsel wrote to Defendants’ counsel the day following the 10 relocation:

11 Yesterday afternoon Ms. Skochko was informed that the lift was going out of service at 9:00 a.m. today. She was required to choose 12 on just a few hours’ notice whether to stay in her unit with no ready access to the outside, or to move to a hotel with no hospital bed. 13 Based on the limited information given, she chose not to be trapped in her apartment. She moved to the hotel room chosen for her by 14 Mercy. 15 (Id. at 2.) No reasonable trier of fact could find that Plaintiff did not need a hospital bed merely 16 because having been put to the Hobson’s choice of being stuck in her apartment while the lift was 17 down for months or moving to a hotel room without a hospital bed, she chose to move. 18 Finally, Defendants also claim that after June 20, 2019, neither Plaintiff nor her attorneys 19 communicated with Defendants or the hotel regarding her hospital bed request and that this 20 somehow supports an inference that she did not need a hospital bed. Again, not so. Defendants 21 cite no case that requires a person with disabilities to continuously request an accommodation 22 once it is denied. Drawing all reasonable inferences in Defendants’ favor, Plaintiff requested a 23 hospital bed at least five times through June 20, 2019. (Dkt. No. 68-3 ¶¶ 7–9 (March); Dkt. No. 24 67-1 at 7–8 (May 29), 114 (June 8), 117 (June 17); Dkt. No. 72-7 at 2–3 (June 20).) 25 C. Requested Accommodation and Reasonableness Elements 26 1. June 2019 Relocation 27 a. Requested Accommodation 1 relocate her personal hospital bed with her. (Dkt. No. 68-3 ¶¶ 9–12.) 2 The record also compels the finding that Plaintiff, through counsel, requested the 3 alternative of a rented hospital bed on June 17, 2019 at the latest. (Dkt. No. 67-1 at 117 (“[T]he 4 hotels may be objecting to bringing someone’s personal bed . . . so would respond better if Mercy 5 were renting a hospital bed to be delivered directly to the hotel from a vendor.”).)11 Defendants 6 offer no evidence that creates a genuine dispute as to this June 17, 2019 email request. 7 Accordingly, every reasonable trier of fact would be compelled to find that Plaintiff 8 requested the accommodations of her personal hospital bed as of May 29 (21 days before the 9 66-day relocation) and a rented hospital bed as of June 17, 2019 (two days before). 10 b. Plaintiff’s Reasonableness Burden 11 To satisfy her burden on the reasonableness element, Plaintiff must present evidence 12 showing that the requested accommodation was reasonable and possible and/or establish that it 13 was reasonable on its face, ordinarily or in the run of cases. See Giebeler, 343 F.3d at 1157. For 14 purposes of her motion for partial summary judgment, Plaintiff focuses on her request for a rented 15 hospital bed. (Dkt. No. 76.) 16 Plaintiff has offered evidence sufficient to compel the finding by every reasonable trier of 17 fact that the June 17, 2019 request for a rented hospital bed was reasonable on its face, ordinarily 18 or in the run of cases. ESA does not have a policy prohibiting guests from having hospital beds in 19 their rooms and indeed grants requests for a hospital bed. (Dkt. No. 67-1 at 84–85, 88–89, 92–93.) 20 And in November 2019, Defendants offered to reimburse Plaintiff for having a rented hospital bed 21 in her temporary ESA location. (Dkt. No. 68-2 at 73.) Further, to accommodate Plaintiff, 22 Defendants rented a hospital bed in March 2021 with a one-day turnaround, at a cost of $450 (for 23 an unclear length of time); it was placed in an ESA hotel room. (Dkt. No. 67-1 at 137–40, 142, 24

25 11 Plaintiff’s earlier email to Defendants could support an inference that she requested a rented 26 hospital bed on June 8, 2019: “If the hotel did not[]have a hospital bed I asked that you negotiate with the[]hotel and then move mine to the hotel.” (Id. at 114; see Dkt. No. 72-3 at 18 27 (Defendants’ corporate representative testifying the email “seems to allude to being fine with not 1 152.) Therefore, Plaintiff has met her burden to show a rented hospital bed is reasonable 2 “ordinarily or in the run of cases.” Giebeler, 343 F.3d at 1157 (cleaned up); see id. at 1158 3 (noting that other instances of implementing the accommodation, whether as a disability 4 accommodation or not, are evidence of reasonableness); see, e.g., Kuhn ex rel. Kuhn v. McNary 5 Estates Homeowners Ass’n, Inc., 228 F. Supp. 3d 1142, 1151 (D. Or. 2017) (concluding that 6 plaintiffs, who requested to park an RV in their driveway, met their initial burden with evidence 7 that RV would be within property line and driveway was on dead-end street with little traffic). 8 The same evidence satisfies Plaintiff’s burden of offering evidence that the requested 9 accommodation was reasonable and possible. Giebeler, 343 F.3d at 1157; see also Montano v. 10 Bonnie Brae Convalescent Hosp., Inc., 79 F. Supp. 3d 1120, 1127 (C.D. Cal. 2015) (reasoning that 11 defendant’s having made some of the requested accommodations was evidence that the requested 12 accommodations were reasonable and possible). Defendants’ argument that there is a disputed 13 issue as to whether the requested accommodation was possible misstates Plaintiff’s burden. As 14 explained above, Giebeler requires Plaintiff to produce evidence of reasonableness and possibility 15 to satisfy her burden—it does not require that she prove it as a matter of undisputed fact. 16 Finally, Defendants’ insistence that the undisputed fact that in March 2021 they provided 17 Plaintiff with the requested accommodation of a rented hospital bed is irrelevant is incorrect. 18 Evidence that 10 months after Plaintiff requested a rented hospital bed as an accommodation 19 Defendants provided her with that very accommodation is evidence that the requested 20 accommodation was possible. See Wong v. Regents of Univ. of Cal., 192 F.3d 807, 820 (9th Cir. 21 1999) (holding that evidence that the defendant had made the requested accommodation in the past 22 is persuasive evidence of reasonableness). ESA’s testimony that it regularly grants such requests 23 is also evidence that the rented hospital bed request was possible. Thus, Plaintiff has satisfied her 24 prima facie burden on reasonableness. See Giebeler, 343 F.3d at 1157. 25 c. Defendants’ Burden 26 As Plaintiff has satisfied her burden on the “reasonable accommodation” element, the 27 burden moves to Defendants to show that there is at least a genuine dispute as to whether 1 Defendants insist that a reasonable trier of fact could find that Plaintiff’s request was not 2 reasonable, or posed an undue hardship, because Defendants could not find a hotel with an ADA- 3 compliant room that would also allow a rented bed. (Dkt. No. 73 at 21.) There is nothing in the 4 record, however, that supports an inference that Defendants inquired of ESA or any potential 5 location as to whether it would allow a rented hospital bed. Defendants’ corporate representative 6 Ms. Weber testified that she did not know when Ms. Ramirez and Ms. Dogan called ESA 7 Oakland-Emeryville to ask whether it would allow Plaintiff’s personal hospital bed and she did 8 not know if they asked whether it would allow a rented bed instead. (Dkt. No. 67-1 at 49; Dkt. 9 No. 74 at 11.) Ms. Dogan does not attest that she ever asked about a rented hospital bed. (Dkt. 10 No. 68-3.) Nor have they offered any evidence that a hospital bed would have been difficult to 11 rent, would have needed a lot of turn-around time, or would have been unreasonably expensive. 12 (See Dkt. No. 74 at 11–12 (did not know whether Defendants looked into cost or vendors of rental 13 hospital beds).) The record is undisputed that Defendants did not ask about the possibility of a 14 rented hospital bed for the June 2019 relocation despite Plaintiff’s counsel expressly emailing 15 Defendants’ counsel handling the accommodation request: “It also occurred to me that the hotels 16 may be objecting to bringing someone’s personal bed into the hotel for (misplaced) hygiene 17 reasons and so would respond better if Mercy were renting a hospital bed to be delivered directly 18 to the hotel from a vendor.” (Dkt. No. 67-1 at 117 (emphasis added).) Defendants do not argue, 19 let alone offer evidence, that they did not receive this accommodation request. 20 Defendants instead argue that as of June 17, they understood that ESA Oakland-Emeryville 21 would not allow furniture to be moved around within or removed from its hotel rooms. (Dkt. No. 22 73-3 at 53 (Ms. Ramirez’s May 31 email: “We may have to place her in a temp convalescent 23 environment to meet her accommodation or rent an apartment. The hotel can not remove the 24 furniture at this location we have already secured.”).) They argue a reasonable trier of fact could 25 infer that Defendants reasonably believed ESA Oakland-Emeryville would not allow a rented bed 26 and asking would have been futile, making a rented bed unreasonable under the circumstances. 27 This inference is not reasonable for two reasons. 1 allow furniture to be moved around. The email from Ms. Ramirez is inadmissible double hearsay. 2 (Dkt. No. 76 at 5 (arguing that Defendants’ entire defense “is based upon irremediable hearsay”).) 3 It is being offered by an out-of-court declarant (Ms. Ramirez) about the statement of another out- 4 of-court declarant (an unknown ESA employee) for the truth: that ESA Oakland-Emeryville would 5 not allow its furniture to be moved out. See Fed. R. Evid. 801(c). That Defendants’ corporate 6 representative read the email does not make it non-hearsay. (Dkt. No. 68-2 at 10 ¶¶ 49–50.) 7 Thus, the ESA corporate representative’s testimony that it does allow furniture to be moved, (Dkt. 8 No. 67-1 at 84–85, 88–89), is undisputed. 9 Second, even if the email was admissible as substantive evidence, it does not support a 10 finding that complying with Plaintiff’s request for a rented hospital bed was unreasonable or an 11 undue burden. In the email Ms. Ramirez reports that “[t]he hotel can not remove the furniture at 12 this location we have already secured.” (Dkt. No. 73-3 at 53 (emphasis added).) Instead, the trier 13 of fact would be compelled to find that Defendants have not established unreasonableness or 14 undue hardship because there is no evidence they contacted any other relocation options to ask if 15 they would allow a rented hospital bed. (See Dkt. No. 67-1 at 50 (did not know which other ESAs 16 they contacted or when); Dkt. No. 72-3 at 9–10 (did not know whether anyone spoke to Plaintiff 17 about option of convalescent home, or why option of leasing apartment did not work out), 12–13 18 (did not know which other hotels they contacted or when); see also Dkt. No. 68-3 ¶¶ 9–11, 14 19 (Ms. Dogan attesting to contacting other ESAs, other hotels, apartments, and a convalescent 20 facility only about a personal hospital bed).) To the contrary, there is evidence that they rejected 21 Plaintiff’s request two days later on June 19 and, in doing so, only made reference to hotels 22 refusing to allow her to bring her personal hospital bed. (Dkt. No. 67-1 at 119–20.) 23 Defendants also argue that they have met their burden by establishing that they offered 24 alternative accommodations. (See Dkt. No. 67-1 at 119–20 (June 19: Defendants offered three 25 options); Dkt. No. 68-2 at 60–61 (June 19: Plaintiff chose to go to ESA Oakland-Emeryville); Dkt. 26 No. 72-7 at 2–3 (June 20: Plaintiff’s counsel wrote to Defendants’ counsel that the alternatives 27 were not reasonable).) However, Defendants do not cite any legal authority for the proposition 1 would cause undue hardship or (2) rebuts a showing that the requested accommodation is 2 reasonable. See Giebeler, 343 F.3d at 1158. 3 Defendants cite to Elliott, which granted summary judgment to the defendants because the 4 requested accommodation—moving to a two-bedroom unit—was not possible. 2018 WL 5 2933467, at *12. As explained above, Defendants here have not identified evidence from which a 6 reasonable trier of fact could conclude that a rented hospital bed was not possible given that there 7 is no evidence they ever inquired of any potential location about a rented hospital bed. The rest of 8 the Elliott analysis is not relevant because the court concluded that the requests at issue either were 9 not requests for disability accommodations, were not necessary to afford the plaintiff equal use of 10 the dwelling, or were not refused. Id. at *6–14. Johnson is similarly unpersuasive as the court 11 granted summary judgment to the defendant because either the requested accommodation was 12 never refused or there was no nexus between the requested accommodation and the plaintiff’s 13 disabilities. 2022 WL 981295, at *8–9. In sum, every reasonable trier of fact would be compelled 14 to find that Defendants have not identified evidence sufficient to create a genuine dispute that 15 Plaintiff’s June 17 request for a rented hospital bed would have caused undue hardship or was 16 unreasonable under the circumstances. See Giebeler, 343 F.3d at 1158. 17 2. November 2019 Relocation 18 a. Requested Accommodation 19 The record compels a finding by every reasonable trier of fact that Plaintiff, through her 20 attorney, requested a rented hospital bed as of November 5, 2019 at the latest (the first day of the 21 15-day relocation). (Dkt. No. 68-2 at 67 (Plaintiff’s counsel emailing Defendants’ relocation 22 specialist Ms. Escobedo: “This request requires that Mercy Housing be prepared to order and have 23 a hospital bed delivered to Ms. Skochko at the hotel . . . .”).) The request was reiterated on 24 November 10, 2019: “At this point we are asking for a formal reasonable accommodation for 25 Mercy to rent such a medical bed immediately and have it delivered to Ms. Skochko’s room at the 26 Extended Stay in Alameda.” (Dkt. No. 73-3 at 427.) While there is evidence of an earlier request 27 for a personal hospital bed, for purposes of summary judgment Plaintiff’s motion is based upon b. Plaintiff’s Reasonableness Burden 1 Plaintiff has satisfied her burden of showing that her November 5, 2019 requested 2 accommodation was reasonable. The request was reasonable on its face and she has offered 3 evidence that it was possible for the same reasons as her June 2019 request. See supra at 13–14. 4 Defendants thus bear the burden of showing that the requested accommodation would pose an 5 undue hardship or of rebutting Plaintiff’s evidence of the reasonableness of the requested 6 accommodation. See Giebeler, 343 F.3d at 1157. 7 c. Defendants’ Burden 8 Defendants have not identified evidence sufficient to create a genuine dispute that 9 Plaintiff’s request for a rented hospital bed was unreasonable under the circumstances or would 10 pose an undue hardship. See Giebeler, 343 F.3d at 1158 (concluding that the defendant failed to 11 carry burden even though it “identified some administrative burdens and expenses that could result 12 from” the requested accommodation). Even drawing the inference that Plaintiff did not request a 13 rented hospital bed until November 5, (see Dkt. No. 68-2 at 67, 146, 149–50), Plaintiff’s 14 relocation continued for the following 15 days. 15 Further, as with the June 2019 relocation, there is no admissible evidence that Defendants 16 ever contacted any location, including the one it had contracted to relocate Plaintiff, regarding the 17 possibility of a rented bed. The day following Plaintiff’s November 5 request for a rented hospital 18 bed, Defendants’ counsel emailed Plaintiff’s counsel that it was “simply not feasible” for Plaintiff 19 to bring her personal hospital bed. (Dkt. No. 68-2 at 71.) The email did not acknowledge the 20 request for a rented hospital bed nor explain why transporting her personal hospital bed was not 21 feasible. (Id.) Only after Plaintiff’s counsel emailed Defendants’ counsel on November 10 that 22 the hotel would, in fact, accept a rented hospital bed did Defendants communicate that they would 23 “consider” the request for a rented bed and that Plaintiff could arrange her own rental, but they 24 could not guarantee she would be reimbursed. (Id. at 73.) On November 12, Defendants offered 25 to reimburse Plaintiff up to $1,500; Plaintiff’s counsel responded that Plaintiff could not afford to 26 pay anything out of pocket. (Id.; Dkt. No. 67-1 at 129.) 27 As with their alternatives to Plaintiff’s June 2019 request, Defendants’ proposed 1 alternatives to her November 2019 request do not meet their burden to either (1) show that the 2 requested accommodation would cause undue hardship or (2) rebut Plaintiff’s showing that the 3 requested accommodation is reasonable. See Giebeler, 343 F.3d at 1158. At oral argument, 4 Defendants insisted that given the Veterans Day holiday they did not have time to respond. But 5 that argument does not explain why they ignored Plaintiff’s November 5, 2019 request for a rented 6 hospital bed; nor why it would have been an undue burden for Defendants to arrange and pay for 7 the bed in the first instance, even if it did not occur until a week into Plaintiff’s 15-day stay. 8 In sum, every reasonable trier of fact would be compelled to find that Defendants have not 9 identified evidence sufficient to support a finding that Plaintiff’s November 5 request for a rented 10 hospital bed would have caused undue hardship or was unreasonable under the circumstances. See 11 Giebeler, 343 F.3d at 1158. 12 * * * 13 On this record, there is no genuine dispute that Plaintiff (1) has a disability as defined by 14 the statute; (2) defendants knew of her disability; (3) accommodation of her disability may be 15 necessary to afford her an equal opportunity to use and enjoy the dwelling; and (4) defendants 16 refused to make such accommodation. Further, there is no genuine dispute that Plaintiff requested 17 a rented hospital bed by June 17, 2019, two days before her 66-day relocation, and by November 18 5, 2019, the first day of her 15-day relocation. Every reasonable trier of fact would be compelled 19 to find that the requests were reasonable on their face. Finally, there is insufficient evidence from 20 which a reasonable trier of fact could find that the request would cause undue hardship for 21 Defendants or would be unreasonable under the particular circumstances. 22 Accordingly, Plaintiff is entitled to summary judgment on her failure to accommodate 23 claims under the FHA, FEHA, and DPA; her motion for partial summary judgment is GRANTED. 24 See Dubois, 453 F.3d at 1179; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita 25 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1968). 26 III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 27 A. FHA, FEHA, AND DPA 1 accommodate her requests in June 2019 and November 2019 as a matter of law, Defendants’ 2 motion for summary judgment on those claims is DENIED. 3 B. UNRUH ACT 4 Plaintiff asserts that Defendants’ failure to accommodate her disabilities was intentional 5 discrimination in violation of the Unruh Act, California Civil Code § 51(b). (Dkt. No. 1 ¶¶ 58– 6 65.) Defendants move for summary judgment on this claim. 7 To prevail on a Section 51(b) claim, a plaintiff must establish that: “(1) [she] was denied 8 the full and equal accommodations, advantages, facilities, privileges, or services in a business 9 establishment; (2) [her] disability was a motivating factor for this denial; (3) defendants denied 10 plaintiff the full and equal accommodations, advantages, facilities, privileges, or services; [] (4) 11 defendants’ wrongful conduct caused plaintiff to suffer injury, damage, loss or harm,” and (5) 12 “intentional discrimination,” that is, “willful, affirmative misconduct.” Greater L.A. Agency on 13 Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (cleaned up); 14 Glasby v. Mercy Hous., Inc., No. 17-cv-02153-DMR, 2017 WL 4808634, at *3 (N.D. Cal. Oct. 25, 15 2017) (cleaned up); see Munson v. Del Taco, 208 P.3d 623, 627 (Cal. 2009). “[N]umerous courts 16 in this circuit have held that restricting or prohibiting a tenant’s access to facilities and services in 17 an apartment complex violates the Unruh Act.” Glasby, 2017 WL 4808634, at *4. Moreover, 18 courts have held that Section 51(b) “can encompass a claim for intentional discrimination in the 19 form of a failure to provide reasonable accommodation to a person with a disability.” Id. at *6. 20 For example, in Wilkins-Jones v. County of Alameda, 859 F. Supp. 2d 1039, 1051–53 21 (N.D. Cal. 2012), the district court held that the plaintiff had failed to state a Section 51(b) claim. 22 She alleged that the defendants “specifically noted certain of her disabilities,” “yet failed to 23 accommodate her.” Id. at 1052.

24 However, she also alleges that Defendants provided certain limited (and she alleges, inadequate) accommodations; for example, an extra 25 blanket and extra mattress. . . . That Defendants provided some, but not all, accommodations to Plaintiff tends to negate an inference that 26 Defendants’ conduct was purposefully discriminatory. Moreover, Plaintiff has not clearly alleged that she directly asked [Defendants] 27 for any particular accommodation which was refused or that her alleges that Defendants did not fully and timely comply with, e.g., her 1 requests for medication (some were provided), and that County employees (not [Defendants’] employees) refused her requests for a 2 wheelchair based on the inadequate assessments performed by Defendants. These are insufficient to reasonably infer discriminatory 3 intent on the part of [Defendants]. 4 Id. at 1052–53 (citations omitted); cf. Earll v. eBay, Inc., No. 5:11–cv–00262–JF (HRL), 2011 WL 5 3955485, at *4 (N.D. Cal. Sept. 7, 2011) (“That Earll did not succeed in verifying her identity 6 through these alternative means does not reasonably imply that eBay was unwilling or unable to 7 remedy the situation. . . . eBay’s actions do not necessarily amount to an intentional denial of 8 access to a public accommodation.”). 9 Here, drawing all inferences in Plaintiff’s favor, a reasonable jury could conclude that 10 Defendants’ conduct amounted to intentional discrimination. There is no genuine dispute that: 11 Plaintiff’s disabilities were obvious and known to Defendants; for the June 2019 relocation, 12 Plaintiff directly asked Defendants for her personal hospital bed and for a rented hospital bed, 13 which were refused; Defendants’ property manager recommended the personal hospital bed 14 request be granted; for the November 2019 relocation—after the June 2019 experience—Plaintiff 15 directly asked Defendants for a rented hospital bed, which was refused; Defendants kept no 16 written records of their contacts with ESA Oakland-Emeryville or other relocation options; and 17 Plaintiff spent a total of 81 days without a hospital bed, in pain. Additionally, although there are 18 genuine disputes, there is sufficient evidence from which a reasonable jury could find that: 19 Plaintiff made her requests repeatedly as the relocations neared; Defendants did not ask ESA 20 Oakland-Emeryville or any other relocation facilities whether they would allow a rented hospital 21 bed; and Defendants did not look into the cost or vendors of rented hospital beds. On this record, 22 drawing all inferences in Plaintiff’s favor, a reasonable jury could find willful, affirmative 23 misconduct under the Unruh Act. See Greater L.A. Agency on Deafness, 742 F.3d at 425. 24 Accordingly, Defendants’ motion for summary judgment is DENIED as to Plaintiff’s 25 Unruh Act claim.

26 C. PUNITIVE DAMAGES 27 Plaintiff’s FHA and FEHA claims allege Defendants “knowing[ly] and intentional[ly] 1 (id. at 16). Defendants move for summary judgment on the issue of punitive damages. 2 Under the FHA, punitive damages may be awarded “when a defendant’s conduct is shown 3 to be motivated by evil motive or intent, or if it involves reckless or callous indifference to the 4 federally protected rights of others.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 5 2002). The focus is on the defendant’s state of mind, and punitive damages may be warranted if 6 the defendant knew it was violating the law or perceived a risk that its conduct would violate the 7 law. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535–39 (1999); Holland v. Related Cos., 8 Inc., No. 15-cv-03220-JSW, 2017 WL 3086104, at *5–6 (N.D. Cal. July 20, 2017) (applying 9 Kolstad to FHA claim on summary judgment). Thus, “in general, intentional discrimination is 10 enough to establish punitive damages liability”; however, there are a few exceptions for situations 11 in which the defendant “is aware of the specific discriminatory conduct at issue, but nonetheless 12 reasonably believes that the conduct is lawful.” Passantino v. Johnson & Johnson Consumer 13 Prods., Inc., 212 F.3d 493, 515 (9th Cir. 2000). 14 Here, a reasonable jury could conclude that Defendants’ conduct amounted to reckless or 15 callous indifference. As explained above, a reasonable jury could conclude that Defendants’ 16 conduct amounted to intentional discrimination. Drawing all inferences in Plaintiff’s favor, there 17 is also sufficient evidence to conclude that Defendants did not reasonably believe their conduct 18 was lawful. See id. If the jury infers that Defendants did not ask ESA Oakland-Emeryville or any 19 other relocation facilities whether they would allow a rented hospital bed and never investigated 20 the cost or vendors of rented hospital beds, then the jury could also infer that any belief on 21 Defendants’ part that their conduct was lawful was unreasonable. See Holland, 2017 WL 22 3086104, at *9 (“The Court cannot weigh the evidence or make credibility determinations . . . . 23 Plaintiffs have put forth sufficient evidence from a which a reasonable jury could conclude that 24 Defendants, at the very least, acted in the face of a perceived risk that their actions would violate 25 federal law.” (cleaned up)). Indeed, given the ESA corporate representative’s testimony, and 26 Defendants’ inability to identify any persons, dates, or for the most part even hotels they allegedly 27 queried about bringing a personal hospital bed, a reasonable trier of fact might find that 1 judgment is DENIED as to Plaintiff’s prayer for punitive damages under the FHA. 2 Under FEHA, punitive damages may be awarded if the defendant’s conduct is malicious, 3 oppressive, or fraudulent, proven by clear and convincing evidence. Cal. Civ. Code § 3294(a). 4 Plaintiff asserts oppressive conduct, (see Dkt. No. 71 at 29), meaning “despicable conduct that 5 subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Cal. 6 Civ. Code § 3294(c)(2). Despicable means “circumstances that are base, vile, or contemptible.” 7 Holland, 2017 WL 3086104, at *9 (cleaned up) (citing Coll. Hosp. Inc. v. Superior Court, 882 8 P.2d 894, 907 (Cal. 1994)). 9 Here, for similar reasons, a reasonable jury could find that Defendants’ conduct was 10 oppressive. There is sufficient evidence in the record to support a finding that Defendants 11 consciously disregarded Plaintiff’s right to reasonable accommodation and that she suffered unjust 12 hardship as a result. 13 Accordingly, Defendants’ motion for summary judgment is DENIED as to Plaintiff’s 14 prayer for punitive damages under FEHA. 15 CONCLUSION 16 Defendant Mercy Housing, Inc.’s motion for summary judgment is GRANTED. (Dkt. No. 17 66.) 18 Plaintiff’s motion for partial summary judgment regarding her FHA, FEHA, and DPA 19 claims is GRANTED as to Defendants Mercy Housing Management Group, Inc. and Mercy 20 Housing California, but DENIED as to Defendant Mercy Housing, Inc. (Dkt. No. 67.) To the 21 extent Plaintiff pleaded any other theory under the FHA, FEHA, or DPA, (see Dkt. No. 1 ¶¶ 42– 22 57, 66–74), she has withdrawn it in her briefing and argument. 23 Defendants’ motion for summary judgment is DENIED. (Dkt. No. 68.) 24 At the summary judgment hearing the parties expressed a willingness to engage in further 25 settlement discussions. Magistrate Judge Westmore is not available in advance of the November 26 trial date; accordingly, the Court is exploring other options. The parties, too, are encouraged to 27 meet and confer on further settlement proceedings. 1 IT IS SO ORDERED. 2 || Dated: August 15, 2022 3 4 ne

JACQUELINE SCOTT CORLE

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