1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SARAH BIRDWELL, Case No. 21-cv-00864-JST

8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART DEFENDANT’S

MOTION TO DISMISS

10 AVALONBAY COMMUNITIES, INC., Re: ECF No. 44 Defendant. 11

12 13 Before the Court is Defendant AvalonBay Communities, Inc.’s (“AvalonBay”) motion to 14 dismiss. ECF No. 44. The Court will grant the motion in part and deny it in part. 15 I. BACKGROUND1 16 A. Factual Background 17 Plaintiff Sarah Birdwell “lives with a medical condition that causes her to be very weak in 18 her extremities.” ECF No. 43 ¶ 4. She “uses a power wheelchair for ambulation and has limited 19 use of her arms and hands.” Id. Further, Birdwell is unable to “walk, lift, pull, or perform 20 activities of daily living in the same manner and with the same function as other people.” Id. 21 Because of this condition, Birdwell needs a home health aide for at least 15 hours per day. Id. 22 Avalon Walnut Creek is an apartment complex in Walnut Creek, California, which was 23 developed and is owned and managed by AvalonBay. Id. ¶¶ 5–6. Avalon was developed between 24 2006 and 2009. Id. ¶ 19. 25 In 2010, Birdwell applied and was accepted for tenancy in one of the “below-market rental 26 units” at Avalon. Prior to moving into her unit, Birdwell requested the following 27 1 accommodations: “(a) a wheelchair accessible unit and (b) a two-bedroom unit to accommodate 2 her disability-related need for an overnight health aide.” Id. ¶ 9. Avalon’s property manager 3 stated that “he did not think the property had any wheelchair accessible units, but he could give 4 her a two-bedroom unit at the one-bedroom rate.” Id. 5 AvalonBay “either failed to construct, or failed to maintain, the required accessible 6 elements” at Avalon, including in Birdwell’s unit. Id. ¶ 21. There “has [been] an ongoing practice 7 and policy not to maintain accessible features throughout the facilities.” Id. ¶ 23. Specifically, in 8 Birdwell’s unit (1) “[t]he entry door is excessively heavy for her and closes too quickly on her 9 wheelchair”; (2) “[t]he kitchen lacks an accessible work surface”; (3) “[o]ne bathroom lacks the 10 required maneuvering clearance on the inside to allow sufficient space to open the door”; (4) 11 “[t]he other bathroom does not provide sufficient strike-side clearance to open the door on the pull 12 side.” Id. ¶ 21. Additionally, the following “code violations impede . . . Birdwell’s access to 13 common areas and tenant amenities”: (1) there are only half of the required number of accessible 14 resident parking spaces in the Sunne Lane garage; (2) there are no accessible hybrid or electric 15 vehicle parking spots in the Sunne Lane garage; (3) there is no “accessibility signage” in the 16 Sunne Lane garage; (4) neither of the swimming pools has a functioning wheelchair lift; (5) one of 17 the swimming pool decks has a two inch “change of level built into” it; (6) the barbeque grills are 18 inaccessible; (7) there is “insufficient strike side clearance, excessively high thresholds, doors too 19 heavy and/or closing too quickly, [and] bottom rail [that is] not tapered” in the “corridors, 20 swimming pools, lounge areas and restrooms”; (8) there are “improperly installed truncated domes 21 and a ramp where the handrail extension does not extend far enough past the end of the ramp” in 22 the “common area paths of travel”; (9) the restrooms in the common areas “lack sufficient turning 23 radius, elements such as grab bars, toilet paper[,] and sanitary napkin dispensers[,]” properly 24 installed door handles, and insulated hot water pipes; (10) the “swimming pool shower . . . does 25 not allow leg space, the folding seat is too far from the wall[,] and the shower arm is out of reach 26 range”; (11) in the common areas, “wayfinding signage for accessible routes is missing, wrongly 27 positioned or confusing”; (12) the “[c]ard readers installed for security at common area doors and 1 “relock too quickly, before she can maneuver through the door.” Id. ¶ 22. 2 In 2016, AvalonBay threatened to evict Birdwell if she did not move into a one-bedroom 3 unit because “she was violating its housing policies” by “living in a two-bedroom unit as the only 4 person on the lease.” Id. ¶ 11. Birdwell reminded AvalonBay that she required a two-bedroom 5 unit as a reasonable accommodation. Id. AvalonBay required Birdwell to submit a new 6 reasonable accommodation request, along with a note from her home health aide. Id. 7 In 2018, Birdwell discovered that AvalonBay was charging her rent at the two-bedroom 8 unit rate, rather than the one-bedroom unit rate. Id. ¶ 12. Birdwell requested that AvalonBay 9 reduce her rent to the one-bedroom rate because she needed the two-bedroom unit as a reasonable 10 accommodation. Id. In September 2018, AvalonBay denied the request, but it agreed that 11 Birdwell needed a two-bedroom unit as a reasonable accommodation. Id. ¶ 13. 12 During the summer of 2019, Pacific Gas and Electric (“PG&E”) commenced rotating 13 power outages, also known as “rolling blackouts,” in Walnut Creek because of the wildfires 14 throughout Northern California. Id. ¶ 16. The elevators in the Avalon were out of service during 15 these outages. Id. Birdwell “made reasonable accommodation requests for assistance getting out 16 of her apartment during [these] power outages” because she used a wheelchair and lived on the 17 second floor. Id. ¶ 17. AvalonBay denied the request and “did not engage in any interactive 18 process.” Id. AvalonBay stated that if Birdwell needed assistance, she should call the fire 19 department. Id. Because she “could not envision calling the fire department twice a day for 20 assistance,” Birdwell “remain[ed] in her apartment until the power returned.” Id. ¶ 18. 21 Birdwell retained counsel who sent AvalonBay a demand letter on her behalf on June 25, 22 2020 that informed AvalonBay that charging Birdwell the two-bedroom unit rate violated federal 23 and state law. Id. ¶ 15. Birdwell and AvalonBay engaged in pre-litigation negotiations between 24 June and October 2020, during which AvalonBay stated that it would continue to charge Birdwell 25 the two-bedroom unit rent. Id. 26 B. Procedural History 27 Birdwell filed this action against AvalonBay on February 3, 2021. ECF No. 1. AvalonBay 1 amended complaint, ECF No. 28, which AvalonBay answered on June 3, 2022, ECF No. 29. On 2 December 15, 2022, Birdwell filed a motion for leave to file a SAC, ECF No. 37, which 3 AvalonBay did not oppose, ECF No. 41. The Court granted the motion for leave to file a SAC on 4 January 25, 2023, ECF No. 42, and Birdwell filed the SAC on February 1, 2023, ECF No. 43. The 5 SAC brings claims for (1) violations of the Fair Housing Amendments Act (“FHAA”); (2) 6 violations of the Americans with Disabilities Act (“ADA”); (3) violations of California’s Fair 7 Employment and Housing Act (“FEHA”); and (4) violations of California Unruh Civil Rights Act 8 (“Unruh Act”). Id. ¶¶ 28–63. 9 AvalonBay now moves to dismiss the SAC. ECF No. 44. Birdwell opposes the motion, 10 ECF No. 45, and AvalonBay filed a reply, ECF No. 46. 11 II. JURISDICTION 12 The Court has jurisdiction over Birdwell’s federal claims under 28 U.S.C. §§ 1331 and has 13 supplemental jurisdiction over Birdwell’s state law claims under 28 U.S.C. § 1367(a). 14 III. LEGAL STANDARD 15 “Dismissal under [Federal Rule of Civil Procedure] 12(b)(6) is appropriate only where the 16 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 17 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint must 18 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 19 Fed. R. Civ. P. 8(a)(2). Facts pleaded by a plaintiff “must be enough to raise a right to relief 20 above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a 21 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 23 Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Id. In determining whether a plaintiff has met this plausibility standard, the 26 Court must “accept all factual allegations in the complaint as true and construe the pleadings in the 27 light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 1 Additionally, “[a]fter the pleadings are closed—but early enough not to delay trial—a 2 party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Because a Rule 12(c) 3 motion is ‘functionally identical’ to a Rule 12(b)(6) motion, ‘the same standard of review applies 4 to motions brought under either rule.’” Gregg v. Hawaii, 870 F.3d 883, 887 (9th Cir. 2017) 5 (quoting Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011)). 6 Accordingly, a motion for judgment on the pleadings is properly granted when, ‘taking all the 7 allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.’” 8 Id. (quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998)). “Rule 12(c) does not 9 mention leave to amend; however, courts generally have discretion in granting 12(c) motions with 10 leave to amend, particularly in cases where the motion is based on a pleading technicality.” In re 11 Dynamic Random Access Memory (Dram) Antitrust Litig., 516 F. Supp. 2d 1072, 1084 (N.D. Cal. 12 2007). “There is a strong policy in favor of allowing amendment, unless amendment would be 13 futile, results from bad faith or undue delay, or will unfairly prejudice the opposing party.” Id. 14 IV. DISCUSSION 15 A. Timeliness of the Motion 16 The parties dispute whether AvalonBay’s motion to dismiss, given that AvalonBay 17 answered Birdwell’s complaint and first amended complaint. ECF Nos. 44 at 11 & n.2, 45 at 11– 18 15, 46 at 7–8. 19 “A Rule 12(b)(6) motion must be made before the responsive pleading.” MacDonald v. 20 Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006) (emphasis in original) (quoting Elvig 21 v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004)); see also Fed. R. Civ. P. 12(b) 22 (“A motion asserting any of these defenses must be made before pleading if a responsive pleading 23 is allowed.”). While “[t]he Ninth Circuit has not squarely addressed the issue of whether 24 amending or consolidating a complaint allows an opposing party a second opportunity to file a 25 12(b)(6) motion, after the objection has initially been waived,” Townsend Farms v. Goknur Gida 26 Madderleri Enerji Imalat Ithalat Ihracat Ticaret Ve Sanayi A.S., No. SACV 15-0837-DOC 27 (JCGx), 2016 WL 10570248, at *5 (C.D. Cal. Aug. 17, 2016), district courts “have determined 1 previously waived,” id. at *6 (collecting cases). Accordingly, when a defendant has answered the 2 previous complaint, the “defendant may bring a Rule 12(b) motion objecting to an amended 3 complaint only to the extent the challenges asserted in that motion are based on the new matter in 4 the amended complaint.” Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2020 WL 4923974, at 5 *2 (N.D. Cal. Aug. 21, 2020). 6 Here, AvalonBay moves to dismiss both new claims in the SAC—Birdwell’s ADA claim 7 and Unruh Act claim based on violations of the ADA—and claims that appeared in the previous 8 complaints—Birdwell’s FHAA claim, FEHA claim, and other theories of recovery under the 9 Unruh Act. AvalonBay’s motion to dismiss is only proper with respect to Birdwell’s ADA claim 10 and Unruh Act claim that is based on violations of the ADA. 11 However, in the Ninth Circuit, “if a motion to dismiss for failure to state a claim is made 12 after the answer is filed, the court can treat the motion as one for judgment on the pleadings” 13 under Rule 12(c) of the Federal Rules of Civil Procedure. Aldabe v. Aldabe, 616 F.2d 1089, 1093 14 (9th Cir. 1980); see also MacDonald, 457 F.3d at 1081 (“Defendants filed their motion to dismiss 15 after filing their answer. Thus, the motion should have been treated as a motion for judgment on 16 the pleadings, pursuant to Rule 12(c) or 12(h)(2).” (emphasis in original) (quoting Elvig v. Calvin 17 Presbyterian Church, 375 F.3d 951, 954 (9th Cir.2004)). Courts convert untimely motions to 18 dismiss into motions for judgment on the pleadings “where doing so will not delay trial.” Jaeger 19 v. Howmedica Osteonics Corp., No. 15-cv-00164-HSG, 2016 WL 520985, at *5 (N.D. Cal. Feb. 20 10, 2016) (converting a motion to dismiss into a motion for judgment on the pleadings); see also 21 Ulloa v. Securitas Sec. Servs. USA, Inc., No. 23-cv-01752-DMR, 2023 WL 5538276, at *2 (N.D. 22 Cal. Aug. 28, 2023) (same). Because “[m]otions for judgment on the pleadings are reviewed 23 under an identical legal standard as motions to dismiss for failure to state a claim upon which 24 relief can be granted, . . . there is no risk of prejudice to either party.” Jaeger, 2016 WL 520985, 25 at *5. Additionally, “[t]he case for [converting a motion to dismiss to one for judgment on the 26 pleadings] is further strengthened where . . . the answers included the defense of failure to state a 27 claim.” Aldabe, 616 F.2d at 1093. 1 scheduled until May 20, 2024. ECF No. 75. Consequently, the Court will also consider 2 AvalonBay’s arguments to dismiss Birdwell’s FHAA, FEHA, and non-ADA-based Unruh Act 3 claims to pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 4 B. FHAA Claims 5 AvalonBay argues that the FHAA claim should be dismissed because (1) Birdwell’s 6 requested accommodations were unreasonable, and therefore, she has failed to a state a claim; and 7 (2) certain of Birdwell’s theories of recovery are barred by the statute of limitations. ECF No. 44 8 at 12–16. The Court addresses each argument in turn. 9 1. Failure to State a Claim 10 The FHAA “prohibits discrimination in the form of ‘a refusal to make reasonable 11 accommodations in rules, policies, practices, or services, when such accommodations may be 12 necessary to afford such person equal opportunity to use and enjoy a dwelling.’” Howard v. HMK 13 Holdings, LLC, 988 F.3d 1185, 1189 (9th Cir. 2021) (quoting 42 U.S.C. § 3604(f)(3)(B)). “[A] 14 failure-to-accommodate plaintiff must show: 1) the existence of a covered handicap; 2) the 15 defendant's knowledge or constructive knowledge of that handicap; 3) that an accommodation 16 ‘may be necessary’; 4) that the accommodation is reasonable; and 5) that the defendant refused to 17 make the necessary and reasonable accommodation upon request.” Salisbury v. City of Santa 18 Monica, 998 F.3d 852, 857–58 (9th Cir. 2021), cert. denied, 142 S. Ct. 771 (2022). AvalonBay 19 argues that Birdwell fails to satisfy the third and fourth elements, i.e.., the allegations do not 20 establish that the accommodations were necessary to afford her an equal opportunity to use and 21 enjoy her unit or that the accommodations were reasonable. 22 First, AvalonBay argues that Birdwell’s request to be charged rent at the one-bedroom unit 23 rate is not “necessary to afford [her] her equal opportunity to use and enjoy” her unit because “she 24 has resided in the building for 12 years without this accommodation, more than four of which have 25 transpired since she contends she first raised the complaint about the rent with AvalonBay.” ECF 26 No. 44 at 12. It also argues that the accommodation is not reasonable because the FHAA “does 27 not impose a rent subsidization requirement on landlords.” Id. Birdwell counters that her request 1 violation of” the FHAA. ECF No. 45 at 20. Birdwell also contends that “[t]he motion to dismiss 2 raises a dispute of fact about whether the accommodation is ‘necessary’ for [her] and whether 3 requiring it to pay the cost of the accommodation is reasonable, i.e., an undue burden.” Id. at 21. 4 Second, AvalonBay argues that Birdwell’s claim based on the failure to grant an 5 accommodation in response to PG&E’s rotating power outages fails because she does not allege 6 “what she proposed as accommodations”; instead, she merely alleges that “she ‘made reasonable 7 accommodation requests.’” ECF No. 44 at 14. Birdwell responds that “the reasonable 8 accommodation request made is plain on the face of the Complaint: ‘assistance getting out of her 9 apartment.’” ECF No. 45 at 24. 10 To prove that an accommodation is necessary, “[p]laintiffs must show that, but for the 11 accommodation, they likely will be denied an equal opportunity to enjoy the housing of their 12 choice.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003) (quoting Smith & Lee 13 Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996)). “Put another way, ‘[w]ithout a 14 causal link between defendants’ policy and the plaintiff’s injury, there can be no obligation on the 15 part of defendants to make a reasonable accommodation.’” Id. (quoting United States v. Cal. 16 Mobile Home Park Mgmt. Co. (“Mobile Home Park II”), 107 F.3d 1374, 1381 (9th Cir. 1997)). 17 “In addition to causation, equal opportunity is a key component of the necessity analysis; an 18 accommodation must be possibly necessary to afford the plaintiff equal opportunity to use and 19 enjoy a dwelling.” Id. 20 “[A]n accommodation is reasonable under the FHAA ‘when it imposes no fundamental 21 alteration in the nature of the program or undue financial or administrative burdens.’” Id. at 1157 22 (quoting Howard v. City of Beaver Creek, 276 F.3d 802, 806 (6th Cir. 2002)). “This inquiry 23 examines whether the accommodation ‘is both efficacious and proportional to the costs to 24 implement it.’” Hernandez v. Golf Course Ests. Home Owners Ass’n, 454 F. Supp. 3d 1029, 25 1037–38 (D. Or. 2020) (quoting Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 26 F.3d 1277, 1289 (11th Cir. 2014)). “It is enough for the plaintiff to suggest the existence of a 27 plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” 1 FHAA clearly establishes that Congress anticipated that landlords would have to shoulder certain 2 costs involved, so long as they are not unduly burdensome.” United States v. Cal. Mobile Home 3 Park Mgmt. Co. (“Mobile Home Park I”), 29 F.3d 1413, 1416 (9th Cir. 1994). “The reasonable 4 accommodation inquiry is highly fact-specific, requiring case-by-case determination.” Mobile 5 Home Park II, 107 F.3d at 1380. 6 Here, Birdwell has sufficiently pleaded facts that plausibly allege that her request for a 7 two-bedroom unit was necessary and reasonable. It is undisputed that AvalonBay permitted 8 Birdwell to live in a two-bedroom unit because it was necessary to accommodate her need to have 9 an overnight home health aide, see ECF No. 43 ¶¶ 9–11, and that she was and continues to be 10 charged rent based on the two-bedroom rate, see id. ¶¶ 12, 15. Hence, by requiring that Birdwell 11 pay rent based on the two-bedroom unit rate, AvalonBay is imposing a fee “with unequal impact, 12 imposed in return for permission to engage in conduct that, under the FHAA, a landlord is 13 required to permit,” Mobile Home Park I, 29 F.3d at 1417. The Court is not persuaded that 14 requiring the waiver of the additional fee for an extra bedroom “would extend a preference to 15 handicapped residents, as opposed to affording them equal opportunity.” Id. at 418. Waiving the 16 extra rent for a two-bedroom unit is similar to the fee at issue in Mobile Home I because “it seems 17 likely that few other residents would have a ‘guest’ requiring an [extra bedroom] every day,” 18 making it “much less probable that waiver of [the additional rent] would give [Birdwell] an 19 advantage over other residents.” Id. at 418 n.4. Therefore, Birdwell sufficiently pleads that her 20 accommodation request was necessary and reasonable. The Court denies AvalonBay’s motion to 21 dismiss on this ground. 22 However, Birdwell has not alleged sufficient facts to support that her request for assistance 23 exiting her apartment during the PG&E rotating power outages was reasonable. Birdwell alleges 24 only that she requested the accommodation of assistance exiting out of her apartment during the 25 power outages. Birdwell fails to allege how AvalonBay could reasonably have accommodated 26 this request. Without these facts, the Court is unable to analyze whether the accommodation is in 27 fact reasonable. The Court therefore grants AvalonBay’s motion to dismiss on this claim. 1 leave to amend. Harris v. Cnty. of Orange, 682 F.3d 1126, 1135 (9th Cir. 2012) (“Dismissal 2 without leave to amend is appropriate only when the Court is satisfied that an amendment could 3 not cure the deficiency.”). 4 2. Statute of Limitations 5 AvalonBay argues that Birdwell’s theories of recovery based on the design and 6 construction of Avalon and AvalonBay’s denial of her request to be charged rent at the one- 7 bedroom rate are time barred. ECF No. 44 at 15–16. Birdwell counters that her allegations 8 regarding the design and construction of Avalon are not time barred because she alleged that 9 AvalonBay “maintained a pattern and practice of denying [Birdwell] full and equal access to her 10 dwellings[.]” ECF No. 45 at 26. And that because AvalonBay “expressly denied” her request to 11 be charged rent at the one-bedroom unit rate “in 2010, 2016[,] and 2020 and has asserted its 12 intention to continue denying the request,” she has established “a pattern and practice of 13 discrimination that constitutes a continuing violation.” Id. at 26–27. 14 Under the FHAA, a plaintiff “may commence a civil action in an appropriate United States 15 district court or State court not later than 2 years after the occurrence or the termination of an 16 alleged discriminatory housing practice[.]” 42 U.S.C. § 3613(a)(1)(A). “In other words, an 17 aggrieved person must bring the lawsuit within two years of either ‘the occurrence . . . of an 18 alleged discriminatory housing practice’ or ‘the termination of an alleged discriminatory housing 19 practice.’” Garcia v. Brockway, 526 F.3d 456, 461 (9th Cir. 2008). 20 But pursuant to the continuing violation doctrine, “where a plaintiff, pursuant to the Fair 21 Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful 22 practice that continues into the limitations period, the complaint is timely when it is filed within 23 180 days of the last asserted occurrence of that practice.” Havens Realty Corp. v. Coleman, 455 24 U.S. 363, 380–81 (1982); see also 42 U.S.C. § 3613(a)(1)(A) (codifying the continuing violation 25 doctrine). Accordingly, a plaintiff’s claims are timely when the alleged claim is “based not solely 26 on isolated incidents . . . , but a continuing violation manifested in a number of incidents— 27 including at least one . . . that is asserted to have occurred within the 180-day period[.]” Havens 1 continual unlawful acts, not by continual ill effects from an original violation.’” Garcia, 526 F.3d 2 at 462 (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). Additionally, “[a] plaintiff 3 must show that a pattern or practice of discrimination creates an ongoing violation” “to sue for all 4 discriminatory acts that occurred . . . outside the limitations period.” The Comm. Concerning 5 Cmty. Improvement v. City of Modesto, 583 F.3d 690, 701 (9th Cir. 2009). “However, discrete 6 discriminatory acts will not create a pattern of discrimination without more; pattern-or-practice 7 claims cannot be based on ‘sporadic discriminatory acts’ but rather must be based on 8 ‘discriminatory conduct that is widespread.’” Id. (quoting Cherosky v. Henderson, 330 F.3d 1243, 9 1247 (9th Cir.2003)). 10 Here, Birdwell’s allegations do not demonstrate that AvalonBay engaged in “widespread” 11 discriminatory conduct. See id. First, Birdwell alleges that AvalonBay denied her initial 12 reasonable accommodation request because it has been charging her rent at the two-bedroom unit 13 rate since she moved into the building in 2010, and that AvalonBay denied additional requests to 14 be charged at the one-bedroom unit rate in 2018 and 2020. Birdwell must allege more than three 15 denials of the same request accommodation to establish a widespread discriminatory practice or 16 pattern of AvalonBay denying reasonable accommodations requests. Without sufficient 17 allegations to establish a pattern or practice, Birdwell can proceed only on the denials of her 18 request to be charged rent at the one-bedroom rate that occurred within the statute of limitations 19 period. 20 Second, Birdwell’s allegations regarding her inability to access her dwelling are all based 21 on barriers that appear to have been in existence since she moved into the Avalon in 2010. 22 Birdwell does allege that AvalonBay has “an ongoing practice and policy not to maintain 23 accessible features throughout the facilities,” but this conclusory allegation is insufficient to 24 demonstrate that AvalonBay has engaged in a pattern or practice of widespread discriminatory 25 conduct in its construction and design of buildings during the statute of limitations period. 26 Instead, Birdwell must allege facts that demonstrate that AvalonBay’s “failure to comply with the 27 federal disability laws is a direct result-not of individualized decisions pertaining to a particular 1 guidelines and procedures that fail to ensure the requisite access to” Birdwell. Californians for 2 Disability Rts., Inc. v. California Dep’t of Transp., No. C 06-5125 SBA, 2009 WL 2982840, at *2 3 (N.D. Cal. Sept. 14, 2009). Thus, currently, Birdwell pleads only that AvalonBay engaged in the 4 discriminatory practice of failing to design and construct the Avalon in compliance with the 5 FHAA, and therefore, “[t]he statute of limitations [was] . . . triggered at the conclusion of the 6 design-and-construction phase, which occurs on the date the last certificate of occupancy is 7 issued.” Garcia, 526 F.3d at 462. Birdwell alleges that this occurred between 2006 and 2009, 8 which is well outside of the two-year statute of limitations. 9 Accordingly, the Court grants AvalonBay’s motion to dismiss with respect to Birdwell’s 10 allegations regarding the inaccessibility of Avalon, as well as AvalonBay’s denials of Birdwell’s 11 requests to be charged rent at the one-bedroom unit rate that occurred outside of the statute of 12 limitations period. The Court denies AvalonBay’s motion with respect to Birdwell’s allegations 13 regarding denials of her requests to be charged rate at the one-bedroom unit rate that occurred 14 within the statute of limitations. Additionally, the Court grants Birdwell leave to amend because it 15 cannot say that amendment of the complaint would be futile. Harris, 682 F.3d at 1135 16 (“Dismissal without leave to amend is appropriate only when the Court is satisfied that an 17 amendment could not cure the deficiency.”). 18 C. ADA Claim 19 AvalonBay argues that Birdwell’s ADA claim fails because (1) she lacks standing and (2) 20 she has not alleged that violations exist in areas that are made available to the general public for 21 rental or use. ECF No. 44 at 17–18. The Court now addresses each argument. 22 1. Standing 23 AvalonBay argues that Birdwell does not have standing to bring her ADA claim because 24 she “does not explain how and when she intended to utilize any of the public use area facilities[.]” 25 AvalonBay misunderstands what is required to plead standing under the ADA. A plaintiff may 26 establish standing under the ADA by showing that they have “actual knowledge” of a barrier at a 27 place of public accommodation which deters them from returning. C.R. Educ. & Enf’t Ctr. v. 1 encounter” such barriers. Id. Therefore, how and when Birdwell intended to use the public areas 2 within the Avalon is irrelevant to whether she has standing. Birdwell’s complaint states that 3 “[s]he has encountered most of these barriers,” and “has been deterred from using” those that she 4 has not encountered. ECF No. l43 ¶ 23. She thus has standing to seek relief for those barriers. 5 The Court denies AvalonBay’s motion to dismiss on this ground. 6 2. Public Accommodation 7 AvalonBay argues that Birdwell has not sufficiently alleged that the violations of the ADA 8 are in areas that are “made available to the general public for rental or use.” ECF No. 44 at 17 9 (citation omitted). Birdwell counters that the “‘leasing office,’ ‘garage[,]’ and ‘paths of travel to 10 and through the property’ identify specific areas of the facilities that [AvalonBay], being the 11 owner of the property, can easily identify as areas open to the general public,” and she “used the 12 umbrella term ‘common area’ to capture violations under both the ADA in places open to the 13 public and the FHA/FEHA and Unruh violations in the tenant only areas.” ECF No. 45 at 17. 14 “Under federal law, apartments and condominiums do not, generally speaking, constitute 15 public accommodations within the meaning of the ADA.” Trostenetsky v. Keys Condo. Owners 16 Ass’n, No. 17-cv-04167-RS, 2018 WL 2234599, at *2 (N.D. Cal. May 16, 2018). However, areas 17 within an apartment or condominium complex may be covered by the ADA “[i]f made available to 18 the general public for rental or use[.]” Id.; see also Sawyer v. Pac. Beach House, LLC, No. 21-cv- 19 05140-DMR, 2022 WL 1136797, at *4 (N.D. Cal. Apr. 18, 2022). 20 Here, Birdwell generally alleges that the Avalon “includes areas that are open to the 21 general public, e.g., the leasing office, paths of travel to and through the property, and parts of the 22 garages.” ECF No. 43 ¶ 40 (emphasis omitted). A “leasing office . . . is a place of public 23 accommodation subject to the ADA.” Johnson v. Beahm, No. 2:11-cv-0294-MCE-JFM, 2011 WL 24 5508893, at *3 (E.D. Cal. Nov. 8, 2011) (citing ADA Title III Technical Assistance Manual, 25 which states that a “rental office [in a residential apartment complex] is a place of public 26 accommodation”). However, because Avalon’s paths of travel to and through the property, parts 27 of the garages, and other common areas “appear to be part of the residential condominium 1 use of anyone other than residents and their guests.” Trostenetsky, 2017 WL 11715361, at *3. 2 Thus, Birdwell has alleged that she was denied access to a public accommodation only with 3 respect to the leasing office. The Court therefore grants AvalonBay’s motion to dismiss with 4 respect to barriers other than those in the leasing office, but it will grant leave to amend because it 5 appears “that the pleading could . . . be cured by the allegation of other facts.” OSU Student All. v. 6 Ray, 699 F.3d 1053, 1079 (9th Cir. 2012) cert. denied, 134 S. Ct. 70 (2013) (quoting Lopez v. 7 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)). Any amended pleading shall identify 8 which common areas are part of her ADA claim and which common areas are part of her FHAA 9 claim. Additionally, “[Birdwell] should note that ‘public’ portions of apartment complexes that 10 are not commercial spaces are not necessarily places of public accommodation.” Moore v. Equity 11 Residential Mgmt., L.L.C., No. 16-cv-07204-MEJ, 2017 WL 897391, at *3 (N.D. Cal. Mar. 7, 12 2017) (collecting cases). 13 D. State Law Claims 14 AvalonBay argues that the Court should dismiss Birdwell’s state law claims “[t]o the 15 extent that the state law claims rely on legal standards coextensive with the federal claims[.]”2 16 ECF No. 44 at 19. Birdwell does not dispute that her state law claims rely on the same legal 17 standards as her federal claims. See ECF No. 45. Accordingly, the Court also dismisses 18 Birdwell’s state law claims that rely upon the same legal standards as the parts of the Unruh Act 19 and ADA claims that the Court has dismissed. See Cabrera v. Alvarez, 977 F. Supp. 2d 969, 975 20

21 2 AvalonBay also asks the Court to “decline jurisdiction over the Unruh Act claim” pursuant to Arroyo v. Rosas, 19 F.4th 1202, 1209–16 (9th Cir. 2021). Id. However, Birdwell’s ADA and 22 Unruh Act claims “form part of the ‘same case or controversy’ for purposes of § 1367(a)” because they both “derive from a common nucleus of operative fact and are such that a plaintiff would 23 ordinarily be expected to try them in one judicial proceeding.” Arroyo, 19 F.4th at 1209 (quoting Trs. of the Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., 24 Inc., 333 F.3d 923, 925 (9th Cir. 2003)). While a district court “may decline to exercise supplemental jurisdiction over a claim” when one of four exceptions applies,” AvalonBay 25 provides no explanation as to why any of the exceptions apply. 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if[] (1) the claim raises a 26 novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all 27 claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other 1 (N.D. Cal. 2013) (collecting cases) (“The provisions of FEHA and the Unruh Act involved in this 2 || case protect substantially the same rights as the FHA [and ADA] provisions at issue and are 3 subject to the same analysis.”) As with Birdwell’s ADA and Unruh Act claims, the Court grants 4 leave to amend. OSU Student All., 699 F.3d at 1079 (quoting Lopez, 203 F.3d at 1130). 5 CONCLUSION 6 For the foregoing reasons, the Court grants in part and denies in part AvalonBay’s motion. 7 Birdwell has not sufficiently alleged that her request for the accommodation of assistance exiting 8 || her apartment was reasonable, or that AvalonBay engaged in a pattern or practice of 9 discriminatory conduct. Additionally, Birdwell has not sufficiently alleged that areas within the 10 || Avalon other than the leasing office are public accommodations. Birdwell’s FHAA and ADA 11 claims that are based on these allegations are dismissed with leave to amend. To the extent that 12 || Birdwell’s state law claims are predicated on the dismissed FHAA and ADA claims, Birdwell’s 5 13 state law claims are also dismissed with leave to amend. 14 Leave to amend is granted solely to cure the deficiencies identified in this order. Any 3 15 amended complaint shall be filed within 21 days. a 16 IT IS SO ORDERED. 3 17 Dated: September 27, 2023 .

JON S. TIGA

19 United States District Judge 20 21 22 23 24 25 26 27 28