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Morgan v. Fairway Nine II Condominium Association, Inc.

United States District Court, D. Idaho

February 11, 2015

BERNARD L. MORGAN and MARILYN L. MORGAN, husband and wife, Plaintiff,
FAIRWAY NINE II CONDOMINIUM ASSOCIATION, INC., an Idaho corporation; PIONEER WEST PROPERTY MANAGEMENT LLC, an Idaho limited liability company; JOHN HAASE, an individual; STEVE MORELAND, an individual; HARVEY HEINRICHS, an individual; KAREN PEDERSON, an individual; PHIL SYRDAL, an individual; and ANNE JACOBI, an individual Defendants.








RONALD E. BUSH, Magistrate Judge.

Now pending before the Court are the following seven motions: (1) Defendants' Motion for Summary Judgment (Docket No. 54); (2) Plaintiffs' Motion to Strike Affidavits of Jack Haase, Daniel Feldman, Thomas Grohmann, Howard Banchik, Ken Downie, Eileen Juddell, and Dave Town (Docket No. 56); (3) Plaintiffs' Motion for Partial Summary Judgment (Docket No. 58); (4) Plaintiffs' Motion to Dismiss and/or Motion to Strike Defendants' Counterclaim (Docket No. 60); (5) Defendants' Motion to Amend Answer to Include Verified Counterclaim (Docket No. 68); (6) Plaintiffs' Second Motion to Strike (Docket No. 73); and (7) Defendants' Motion to Strike the Affidavit of Marilyn Morgan (Docket No. 75).

After careful consideration of the record and oral argument of counsel, the Court is fully advised and enters the following Report and Recommendation and Memorandum Decision and Order:


Plaintiffs Bernard and Marilyn Morgan are long-time owners of a condominium residence in Sun Valley, Idaho. They allege to suffer from disabilities requiring that their home have cool, filtered air in a climate-controlled environment, and because of such disabilities, they installed an outside, refrigerated air conditioning unit on August 21, 2013 to regulate the temperature within their condominium residence. Doing so, however, violated the covenants, conditions, and restrictions ("CCRs") of the condominium development, which required that "[n]o... installation of air conditioning or other machines shall be installed on the exterior of the building or be allowed to protrude through the walls, the windows, or the roof of the building, unless the prior written approval of the Board of Directors [of the homeowners' association ("HOA")] is secured."

According to Plaintiffs, they had no choice but to install the air conditioning unit because Defendants refused to consider their repeated requests to address their medical issues and needs. Defendants disagree, and argue the Plaintiffs' alleged disabilities, even if accepted to exist, did not require the installation of an air conditioning unit of the sort selected by Plaintiffs. In any event, due to the air conditioning unit's installation, Defendants assessed (or at least threatened to assess) fines against Plaintiffs for violating the CCRs and, later, recorded a lien upon their condominium.

This ongoing contretemps ultimately led to the filing of Plaintiffs' Amended Verified Complaint, which asserts six claims - three claims premised upon provisions of the federal Fair Housing Act ("FHA"), alongside a claim for negligence, a claim for breach of the covenant of good faith and fair dealing, and a claim for negligent and/or intentional infliction of emotional distress. Defendants seek to have the case dismissed through their Motion for Summary Judgment, which contains arguments that Plaintiffs have no claim under the FHA and, by extension, no support as a matter of law for their related state law claims. Specifically, Defendants contend (1) that Plaintiffs have never been denied an FHA required "accommodation" involving cool, filtered air; (2) that the as-installed air conditioning unit (outside refrigerated) is not "necessary" to provide the requested accommodation, and relatedly that the HOA-approved air conditioning systems (water-cooled and inside room-based) are reasonable options for providing the allegedly necessary accommodation; and (4) that Plaintiffs cannot prove they actually suffer from a "handicap" entitling them to an accommodation as to such concerns in any event.[1]

In opposition, and in support of their own Motion for Partial Summary Judgment, Plaintiffs reject in toto Defendants' arguments, responding (1) that they are handicapped and that Defendants were aware of this fact; (2) that their request for an accommodation was reasonable and necessary to allow an equal opportunity to use and enjoy their home; and (3) that Defendants refused their requested accommodation in violation of the FHA.


A. The Cross-Motions for Summary Judgment

1. The Standard

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence in a light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that there is no material factual dispute, and the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. See Celotex, 477 U.S. at 324. Material facts which would preclude summary judgment are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The relevant substantive law will determine which facts are material for purposes of summary judgment. See id.

Where, as here, both parties move for summary judgment, the summary judgment standard does not change, and the court must evaluate each party's motion on the merits. See, e.g., Farm Bureau Ins. Co. of Idaho v. Kinsey, 234 P.3d 739, 742 (Idaho 2010) (citation omitted); see also Nolan v. Heald College, 551 F.3d 1148, 1154 (9th Cir. 2009) (applying traditional summary judgment standards to cross-motions for summary judgment in ERISA benefits denial case). Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing there is no genuine issue of material fact by demonstrating an "absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party establishes an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hosp. Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial. See Celotex, 477 U.S. at 323.

Where the moving party instead bears the burden of proof on an issue at trial, "it must, in order to discharge its burden of showing that no genuine issue of material fact remains, make a prima facie showing in support of its position on that issue. That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Once it has done so, the non-moving party must set forth specific facts controverting the moving party's prima facie case." Sabatino v. Liberty Life Assur. Co. of Boston, 286 F.Supp.2d 1222, 1229 (N.D. Cal. 2003) (citing UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994)).

2. The Fair Housing Act and Plaintiffs' Claims Against Defendants

Section 3604 of the FHA deals with discrimination in the sale or rental of housing, and section 3604(f) deals with discrimination against people with handicaps in particular. In pertinent part, "discrimination" includes:

a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.... [or] a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling....

42 U.S.C. § 3604(f)(3)(A) & (B). Therefore, the FHA "imposes an affirmative duty upon landlords reasonably to accommodate the needs of handicapped persons, " as to both physical accommodations and administrative policies/rules governing a dwelling and its environs. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994).

With this statutory backdrop in mind, to make out a discrimination claim under the FHA for failure to reasonably accommodate, Plaintiffs must demonstrate that (1) they suffer from a handicap as defined by the FHA; (2) Defendants knew or reasonably should have known of the Plaintiffs' handicap; (3) an accommodation of the handicap may be necessary to afford Plaintiffs an equal opportunity to use and enjoy their dwelling; (4) the accommodation is reasonable; and (5) Defendants refused to make the requested accommodation. See Hayden Lake Recreational Water and Sewer Dist. v. Haydenview Cottage, LLC, 835 F.Supp.2d 965, 981 (D. Idaho 2011) (citing DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); also compare Defs.' Mem. in Supp. of MSJ, p. 4 (Docket No. 54, Att. 1), with Pls.' Mem. in Supp. of Mot. for PSJ, p. 4 (Docket No. 58, Att. 1). Through their respective Motions for Summary Judgment, Plaintiffs and Defendants argue that each of these elements are (or are not, as the case may be) met as a matter of the law.

a. Evidence Exists that Plaintiffs Could Be Handicapped Under the FHA

The FHA defines "handicap" as "a physical or mental impairment which substantially limits one or more of such person's major life activities, a record of having such an impairment, or being regarded as having such an impairment." 42 U.S.C. § 3602(h)(1-3). The Code of Federal Regulations further defines those terms used to define handicap:

• The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.
• Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
• Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
• Is regarded as having an impairment means: (1) [h]as a physical or mental impairment that does not substantially limit one or more major life activities but that is treated by another person as constituting such a limitation; (2) [h]as a physical or mental impairment that substantially limits one or more major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments defined in paragraph (a) of this definition but is treated by another person as having such an impairment.

24 C.F.R. § 100.201(a)(2), (b), (c) & (d)(1-3) (emphasis in original).

Within their Amended Complaint, Plaintiffs allege that they "suffer medical issues which have caused disabilities... mak[ing] it necessary that they have cool, filtered air in a climate-controlled environment, i.e., air conditioning in their condominium...." Am. Verified Compl., ¶¶ 16 & 17 (Docket No. 40). Defendants neither argue nor offer any evidence that Plaintiffs are absolutely not handicapped under the FHA; rather, they claim that Plaintiffs are simply unable to prove that they suffer from a qualifying handicap. See Defs.' Mem. in Supp. of MSJ, p. 12 (Docket No. 54, Att. 1). If the only foundation upon which this Court was to determine whether Plaintiffs were handicapped under the FHA was the allegations contained in Plaintiffs' Amended Complaint, the undersigned would tend to agree with Defendants. However, other evidence in the record exists to support such a claim for purposes of summary judgment consideration. Specifically, Plaintiff Bernard Morgan has heart disease and an associated mycobacterium fortuitum endocarditis infection. Plaintiff Marilyn Morgan has a history of breast cancer and a recent uterine cancer diagnosis. Plaintiffs' medical records suggest as much, with their medical providers recommending a climate-controlled environment as result. For example:

• In undated correspondence from Fernando Merino, M.D., to, inter alia, Brian Weiford, M.D., Dr. Merino stated: "I finally have the information that I needed to initiate treatment on Mr. Bernard Morgan (MR#919088). The final result of the AFB culture is Mycobacterium fortuitum."
• On August 26, 2013, Brian Weiford, M.D., stated: "Mr. Bernard Morgan has been a patient of Mid-American Cardiology for five years. We have been his personal heart physicians since knowing of his disability with serious Heart Disease. His basic needs are for cool and filtered air. It is important that he have access to a controlled environment."
• On September 11, 2013, Rita Hyde, MD, stated: "I am the primary care physician for [Marilyn L. Morgan]. She has suffered from cough and shortness of breath. I have advised her to reside and sleep in an air conditioned environment to assist in relieving her symptoms."
• On September 20, 2013, Julie A. Moore, M.D., stated: "Marilyn Morgan is requesting that she be allowed to have cool and filtered air for her basic comfort. We strongly agree that this patient needs to have these conditions met due to the fact that she has health concerns. She has a history of breast cancer and was most recently diagnosed with uterine cancer, and therefore, to optimize her health, we recommend that she have cool and filtered air."

Medical Records (Docket No. 54, Att. 16).[2], [3]

Mrs. Morgan's own testimony about the limiting effects of her condition is in accord with Plaintiffs' doctors' recommendations, e.g. : "As a result of these medical impairments [(breast cancer and uterine cancer)], I have been significantly restricted in performing the major life activities of sleeping, walking, and other day to day activities, including caring for my husband." Morgan Aff., ¶ 4 (Docket No. 58, Att. 4). Though Mrs. Morgan may not be qualified to testify about specific medical diagnoses, she is permitted to testify to things she knows based on her personal experiences, such as her symptoms and the way her disability impacts her life. See, e.g., Southern California Hous. Rights Ctr. v. Los Feliz Towers Homeowners Ass'n, 426 F.Supp.2d 1061, 1070 (C.D. Cal. 2005) (declarant has personal knowledge of her own symptoms).[4]

The state of the medical record now before this Court, coupled with Mrs. Morgan's subjective complaints of disabling pain and corresponding limitations, arguably identifies a handicap recognized by the FHA. The fact that Plaintiffs' medical providers may not have a definitive opinion regarding whether Plaintiffs are actually handicapped (as that term is used in the FHA) is not fatal to their claim; it is one of many considerations that the jury will have to consider in determining whether Plaintiffs can establish their FHA-related claims. See, e.g., Head v. Glacier Northwest Inc., 413 F.3d 1053, 1059 (9th Cir. 2005) (in analogous ADA context, plaintiff not required to provide comparative or medical evidence to establish genuine issue of material fact regarding impairment of major life activity at summary judgment stage; rather, plaintiff's testimony may suffice to establish genuine issue of material fact); Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1255 (D. Hawaii 2003) (letters from providers, even if insufficient to establish handicap within meaning of FHA, create genuine issue of material fact as to claimant's condition).[5] In short, sufficient evidence exists to at least create a jury question as to whether Plaintiffs are handicapped under the FHA.

b. Substantial Evidence Supports Plaintiffs' Argument that Defendants Knew of Plaintiffs' Alleged Handicap

Defendants dispute whether Plaintiffs are handicapped under the FHA, but even so, there is no dispute that Defendants knew or should have known of Plaintiffs' claimed handicaps. Consider the parties' correspondence leading up to (and following) Plaintiffs' installation of the at-issue air conditioning unit:

• In July 2013, Plaintiff Bernard Morgan made a verbal request to the HOA Board of Directors ("Board") to allow installation of a refrigerated air conditioning unit to accommodate his and Plaintiff Marilyn Morgan's claimed handicaps. See Bowen Aff., ¶ 2 (Docket No. 58, Att. 3).
• On August 19, 2013, Mr. Morgan wrote to the Board: "We are now moving ahead to complete this installation. Five of our thirteen grandchildren have the disabilities of Asthma, Allergies, and Multiple Sclerosis. We must have a controlled environment of cool, dry air which is imperative for proper breathing. This air filled with smoke from the fires is a catastrophe. This XC17 will be perfect for all these conditions. Our grandchildren will now be safe!!!.... Now, any interference with our installation will be considered an attack on our grandchildren's disabilities, and the appropriate Government Agencies will be contacted." Who among you will cast the first stone at our disabled grandchildren? (Docket No. 58, Att. 4) (emphasis in original).
• On August 20, 2013, Mr. Morgan wrote a letter to the Board, stating: "This is to inform you of our various family diseases and the action necessary to protect our health in accordance with our disabilities.... Five of our thirteen grandchildren have disabilities of Asthma, Allergies, and the deadly Multiple Sclerosis (M.S.).... Personally, I have a serious heart condition with details that are not necessary to include.... We must have a controlled environment of cool, dry air which is imperative for proper breathing.... The smoke-filled air from the fires has been a catastrophe.... Air cooled air conditioning is our living solution.... We will be installing the most quiet and efficient central air cooled air conditioner money can buy.... We sincerely appreciate your understanding of our health needs.... We thank you for helping our grandchildren and me to be safe. Please understand our medical action, and make sure that no Director will interfere with our installation as it would be considered as an attack on our grandchildren's and my disabilities. The Americans with Disabilities Act and other appropriate Government Agencies would be contacted, and we sincerely do not want that to happen." 8/20/13 Ltr. (Docket No. 54, Att. 16).[6]
• On August 21, 2013, Plaintiffs wrote a letter to Defendant Anne Jacobi, stating: "The Federal Fair Housing Act and the American Disabilities Act requires accommodating Americans who are afflicted with disabilities. You have now been advised of our situation and expect all threats, fines, legal fees, and the like to be withdrawn or we will involve all appropriate Federal Government Agencies and give notice of your refusal of accommodating the disabled." 8/21/13 Ltr. (Docket No. 54, Att. 16).
• On August 22, 2013, Plaintiffs wrote a letter to Defendant John Haase, stating: "We are requesting that the Fairway Nine II Board grant a special accommodation of air-cooled air conditioning for our unit #4408. This accommodation is requested due to the needs of our families' disabilities, including Multiple Sclerosis, Severe Asthma, and Heart Disease to name just a few. Unless we hear from you in the affirmative by August 27, 2013, by noon, we will be forced to file a complaint with HUD under the Fair Housing Act. Thanks." 8/22/13 Ltr. (Docket No. 54, Att. 16).
• On September 8, 2013, Plaintiffs wrote a letter to the Board, stating: "We are in receipt on September 6, 2013 of the Board's decision to once again refuse our request for a special accommodation of air-cooled air conditioning despite the overwhelming need due to our disabilities. Prior requests for air-cooled air conditioning both oral and written, have been refused with no viable alternatives presented by the Board to mitigate our suffering. It is apparent the Board has little or no compassion for those who suffer medically and certainly has not read the Articles of Incorporation, Article VI, Paragraph A(2).... The Management Body shall actively foster, promote, and advance the interest of owners of condominium units within the condominium project.'" 9/8/13 Ltr. (Docket No. 58, Att. 4).

Therefore, assuming for these purposes on summary judgment that Plaintiffs do suffer from handicaps in the first instance ( see supra ), these communications considered most favorably in favor of the Plaintiffs raise a genuine issue of material fact as to whether the Defendants knew or should have known of this element of Plaintiffs' FHA claim.

c. Even if Cool, Filtered Air in a Climate-Controlled Environment is a Necessary Accommodation, there is No Evidence that the As-Installed, Outside Refrigerated Air ...

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