McGee v. Poverello House ( 2021 )

Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 1 of 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JILL MCGEE, et al., No. 1:18-cv-00768-NONE-SAB 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT 14 POVERELLO HOUSE, et al., (Doc. Nos. 55, 56, 57, 58) 15 Defendants. 16 17 Plaintiffs Jill McGee, Lydia Carranza, Tracey Stroud, and Sharon Wade filed this lawsuit 18 in the Fresno County Superior Court against defendants Poverello House and Naomi’s House, 19 and the case was subsequently removed to this federal court. (Doc. No. 1.)1 Plaintiffs were, at 20 least at the time their complaint was filed, homeless women who sought shelter at defendants’ 21 facilities. Their complaint alleges that defendants violated plaintiffs’ rights when a transgender 22 person was permitted to use the same facilities as plaintiffs. Plaintiffs assert claims for: 23 (1) negligent infliction of emotional distress (“NIED”) and negligence per se; (2) violation of the 24 Fair Employment and Housing Act, California Government Code § 12955 et seq. (“FEHA”); 25 (3) intrusion into private affairs; (4) and violation of the Federal Fair Housing Act (“FHA”), 26 ///// 27 1 Nine plaintiffs originally filed this action. Four plaintiffs remain after five plaintiffs were 28 voluntarily dismissed from the action. (Doc. Nos. 24, 44.) 1 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 2 of 46 1 42 U.S.C. § 3601 et seq. (Doc No. 1 at 10–14.)2 Currently pending before the court are 2 defendants’ motions for summary judgment as to all remaining plaintiffs and claims. (Doc. Nos. 3 55–58.)3 For the reasons explained below, the court will grant defendants’ motions in their 4 entirety. 5 FACTUAL BACKGROUND 6 Defendants moved for summary judgment as to all plaintiffs, accompanied by a separate 7 statement of undisputed facts for each plaintiff. In opposing summary judgment, each plaintiff 8 filed her own statement of undisputed facts. The factual background section below is drawn from 9 all of these sets of statements of undisputed facts. (See Doc. Nos. 63-1 (Defendants’ Statement of 10 Facts and Plaintiff Carranza’s Responses, “DSF-Carranza”), 64-1 (Defendants’ Statement of 11 Facts and Plaintiff McGee’s Responses, “DSF-McGee”), 65-1 (Defendants’ Statement of Facts 12 and Plaintiff Stroud’s Responses, “DSF-Stroud”), 66-1 (Defendants’ Statement of Facts and 13 Plaintiff Wade’s Responses, “DSF-Wade”), 70-2 (Plaintiff Carranza’s Statement of Facts and 14 Defendants Responses, “PSF-Carranza”), 71-2 (Plaintiff McGee’s Statement of Facts and 15 Defendants Responses, “PSF-McGee”), 72-2 (Plaintiff Stroud’s Statement of Facts and 16 Defendants Responses, “PSF-Stroud”), 73-2 (Plaintiff Wade’s Statement of Facts and Defendants 17 Responses, “PSF-Wade”).) For the sake of brevity and unless otherwise indicated, the court will 18 only cite to one statement where appropriate. In providing the factual background below, the 19 20 2 Defendants’ previous motion for judgment in their favor with respect to plaintiffs’ civil rights claims brought under California’s Unruh Civil Rights Act, California Civil Code § 51 et seq., was 21 granted with a 21-day deadline for plaintiffs to file an amended complaint. (See Doc. No. 46.) 22 Plaintiffs did not amend their complaint. Additionally, the court previously granted the parties’ joint stipulation to dismiss plaintiffs’ unfair competition claim brought under California Business 23 & Professions Code § 17200 et seq. (Doc. No. 45.) 24 3 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s overwhelming caseload has been well publicized and the long-standing lack of judicial resources 25 in this district long-ago reached crisis proportion. That situation, which has continued unabated 26 for over eighteen months now, has left the undersigned presiding over 1300 civil cases and criminal matters involving 735 defendants at last count. Unfortunately, that situation sometimes 27 results in the court not being able to issue orders in submitted civil matters within an acceptable period of time. This situation is frustrating to the court, which fully realizes how incredibly 28 frustrating it is to the parties and their counsel. 2 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 3 of 46 1 court is mindful that the evidence before the court on summary judgment must be viewed in a 2 light most favorable to the non-moving party, plaintiffs, for purposes of resolving the pending 3 motions. 4 A. Defendants Poverello House and Naomi’s House 5 Poverello House is a nonprofit “that serves the homeless, addicted, and those in need by 6 offering daily meal services to men, women, and children, emergency food bags, access to 7 medical and dental care, substance abuse rehabilitation, temporary shelter, and social services for 8 those seeking and hoping to end their homelessness.” (DSF-Carranza at ¶ 1.) The organization 9 “provides its services through various programs on its ‘campus’ consisting of multiple buildings 10 spanning several acres, and which is open to anyone who entered its campus during daytime 11 hours.” (Id. at ¶ 2.) One program offered by Poverello House is Naomi’s House, “a 24 bed 12 overnight shelter for single, homeless women.” (Id. at ¶ 3.)4 Naomi’s House is a “‘Safe Haven’ 13 shelter, meaning it served hard-to-reach homeless persons with severe mental illness who are 14 typically unable or too unwell to participate in other housing or supportive services.” (Id. at ¶ 4.) 15 Naomi’s House is a women-only, first-come, first-serve facility for new clients, “and most 16 nights there is a lottery to stay.” (Id. at ¶ 5.) “If a woman received a bed for the night at Naomi’s 17 House shelter, she participates in an intake process, which includes verification of homeless and 18 an overview of Naomi’s House rules.” (Id. at ¶ 6.) 19 “All first time clients and any repeat-clients returning to the shelter after a gap of time 20 must acknowledge, in writing, that they ‘understand and agree with’ Naomi’s House’s rules, and 21 that ‘breaking’ the rules ‘may result in denial of services.’” (Id. at ¶ 7.) First, clients may bring 22 certain personal belongings to Naomi’s House, however, “cell phones are not permitted” inside. 23 (Id. at ¶ 8.) Second, “violence, misconduct, including yelling, profanity, and/or disrespecting 24 others is not permitted.” (Id. at ¶ 9.) Third, “clients are required to shower daily if they wish to 25 stay at Naomi’s House.” (Id. at ¶ 10.) “Defendants’ showers are not private, but rather a locker 26 27 4 The court acknowledges that plaintiffs object to the term “women” as being ambiguous. While this objection is made to numerous statements of fact that are otherwise undisputed, the court will 28 not note this objection again in this order. 3 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 4 of 46 1 room style building consisting of an open changing area and seven individual shower stalls.” (Id. 2 at ¶ 11.) Clients using showers at Naomi’s House “enter the shower room in groups of seven, 3 undress, shower, and change into their night clothes.” (Id. at ¶ 12.) “Once the women were done, 4 the next group of seven enter.” (Id.) “This continues until all of the clients have showered and 5 changed for the night.” (Id.) “In addition to the main shower room, there is a bathroom at 6 Naomi’s House that contains two single-stall showers, enclosed by standard frosted glass doors, 7 and that are typically reserved for clients with disabilities or, on a case by case basis, clients with 8 other personal issues.” (DSF-Stroud at ¶ 13.)5 9 “If a client received a bed, she is allowed to return to Naomi’s House the next evening 10 only if she signs into the House by 4:30 P.M. on weekdays, or by 12:45 P.M. or 5:45 P.M. on 11 weekends and holidays.” (DSF-Carranza at ¶ 13.) Clients are not required to pay for defendants’ 12 services and they “are free to accept or reject those services at any time.” (Id. at ¶¶ 14–15.) 13 Clients may stay at Naomi’s House for an unlimited number of days, “but if the returning client 14 fails to sign-in at the required time [noted above,] her spot at Naomi’s House will be given to 15 another individual in need.” (Id. at ¶ 34.) “Clients staying at Naomi’s House for consecutive 16 nights are not guaranteed the same bed or even the same room.” (Id. at ¶ 35.) “Clients cannot 17 leave any possessions at Naomi’s House, or keep the sheets on her bed, or claim or personalize 18 her assigned space in any way.” (Id. at ¶ 36.) Plaintiffs partially dispute this fact because, 19 according to plaintiffs, clients were allowed to leave personal items at Naomi’s House “at their 20 own risk.” (Id.) “Clients are required to check out of Naomi’s House at 8:00 A.M., and are not 21 allowed to access a bed or attempt to secure a bed again until [the] check-in” times noted above. 22 (Id. at ¶ 37.) 23 During all times relevant to this lawsuit, defendants “received federal funding including 24 grants from the U.S. Department of Housing and Urban Development (“HUD”).” (Id. at ¶ 16.) 25 “In accepting money from HUD,” defendants must “receive training per HUD rules and annually 26 27 5 This undisputed material fact concerns plaintiff Stroud. “Plaintiff Stroud was in a wheelchair” and she “primarily showered in the handicapped shower in Naomi’s House, as opposed to the 28 larger shower room.” (DSF-Stroud at ¶ 22.) 4 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 5 of 46 1 acknowledge that they would follow all of HUD’s guidelines and regulations[.]” (Id. at ¶ 17.) 2 One of these guidelines includes “HUD’s Equal Access Rule pertaining to the placement of and 3 sleeping and bathing accommodations of transgender clients according to the client’s personal 4 gender identification.” (Id.) 5 B. The Alleged Sexual Harassment 6 “From approximately June 2017 to April 2018, ‘D.N.,’ a homeless transgender individual 7 who was born a male, but identifies as a female, sought . . . shelter and support” from defendants. 8 (Id. at ¶ 18.) Plaintiffs partially dispute this fact by contending that D.N. is not transgender. (Id.) 9 “Naomi’s House allowed D.N. to stay at the shelter and provided all services to her, including use 10 of the shower facilities, in accordance with D.N.’s personal gender identity.” (Id. at ¶ 19.) 11 Again, plaintiffs partially dispute this fact by contending that D.N. is not transgender. (Id.) D.N. 12 and plaintiffs used defendants’ services during the same time period. Plaintiff Carranza used the 13 services “off and on from June 2017 to October 2018.” (Id. at ¶ 20.) Plaintiff McGee used the 14 services “off and on from March 2017 to November 2018.” (DSF-McGee at ¶ 20.) Plaintiff 15 Wade used the services “from July 2017 to October 2018.” (DSF-Wade at ¶ 20.) Plaintiff Stroud 16 used the services “off and on from March 23, 2017 to July 20, 2017.” (DSF-Stroud at ¶ 21.) 17 Clients at Naomi’s House were supervised by staff “at all times while showering, and staff 18 were always present in the shower area.” (DSF-Carranza at ¶ 21.) During plaintiffs’ and D.N.’s 19 stay at Naomi’s House, defendants “had (and still have) policies and procedures in place wherein 20 clients could make verbal or written complaints to staff,” and each plaintiff “availed herself of 21 that process.” (Id. at ¶ 22; DSF-McGee at ¶ 22; DSF-Wade at ¶ 22; DSF-Stroud at ¶ 24.) During 22 the plaintiffs’ and D.N.’s stay, defendants “had (and still have) policies and procedures in place to 23 respond to and investigate client complaints.” (DSF-Carranza at ¶ 23.) “If a client complains 24 about sexual harassment, staff is instructed to document everything that the client reports and 25 inform management.” (Id. at ¶ 24.) Plaintiffs partially dispute this fact because, according to 26 them, the entire staff has not “indicated they received training regarding sexual harassment.” (Id.) 27 ///// 28 ///// 5 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 6 of 46 1 1. Plaintiff Carranza 2 Plaintiff Carranza submitted a verbal complaint to defendants, dated December 6, 2017, 3 stating that “she ‘had a problem with D.N. showering with [her] at the Poverello shower room’ 4 because it makes her ‘uncomfortable[.]’” (Id. at ¶ 25.)6 Defendants discussed the complaint with 5 plaintiff Carranza and “explained that D.N. must be treated as a woman because she identifies as 6 a woman,” however, defendants concluded that plaintiff Carranza’s “subjective discomfort 7 around D.N. was not a punishable offense under Naomi’s House rules.” (Id.) Plaintiff Carranza 8 then submitted another verbal complaint, dated January 14, 2017, after she “yelled at D.N. in the 9 bathroom and told staff ‘HE is crowding[.]’” (Id. at ¶ 26.) After reminding plaintiff Carranza not 10 to call D.N. a “he” and instructing her to speak with staff instead of “yelling at others” in the 11 future, defendants again concluded that plaintiff Carranza’s subjective discomfort provided an 12 insufficient basis to punish D.N. (Id.) Plaintiff Carranza alleges she made other, undocumented, 13 complaints to defendants but admitted they “listened to all of her complaints and responded . . . 14 by being ‘sympathetic’ and trying to accommodate her request to have [her] and D.N. placed in 15 different shower groups.” (Id. at ¶ 27.) Plaintiff believes that defendants’ response was 16 insufficient because they “did not take appropriate corrective action to prevent the sexual 17 harassment by D.N.” (Id.) 18 Plaintiff Carranza “suffered no economic or physical damages as a result of the alleged 19 events giving rise to this lawsuit.” (Id. at ¶ 29.) Prior to using defendants’ services, plaintiff “had 20 a history of significant life stressors, including homelessness, depression, anxiety, family issues, 21 6 22 Plaintiffs object to this statement, and others, as being compound. In making these objections, plaintiffs do not provide any further explanation. (See, e.g., DSF-Carranza at ¶ 26 (“Plaintiff 23 objects on the grounds that it is compound.”).) The court will not endeavor to do plaintiffs’ job for them. Moreover, plaintiffs are challenging the form of the facts (i.e., compound)—not 24 whether the content of each fact (e.g., plaintiff Carranza’s verbal complaint made on December 6, 2017) would be admissible at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) 25 (“At the summary judgment stage, we do not focus on the admissibility of the evidence’s form. 26 We instead focus on the admissibility of its contents.”). Therefore, the court will overrule plaintiffs’ objections made on the grounds that certain statement are compound. See, e.g., Galvan 27 v. City of La Habra, No. SACV 12–2103 JGB (RNBx), 2014 WL 1370747, at *3 (C.D. Cal. Apr. 8, 2014) (Form objections generally, and compound objections specifically, “are challenges to the 28 characterization of the evidence and are improper on a motion for summary judgment.”). 6 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 7 of 46 1 her husband being incarcerated, ill, and living away from her in a care home, and she spent time 2 in jail for driving under the influence.” (Id. at ¶ 30.) Plaintiff Carranza’s medical records note 3 her “frustration with her roommates” and other clients at Naomi’s House in addition to her stress 4 related to homelessness, but her medical records “do not differentiate between those alleged 5 stressors and [her] other life stressors.” (Id. at ¶ 31.) At her deposition, plaintiff Carranza 6 admitted that she does not remember why she started seeing a therapist as “[t]here [were] a lot 7 things going on” at that time in her life. (Id. at ¶ 32.) 8 D.N. never made any “sexual advances towards” plaintiff Carranza. (Id. at ¶ 38.) “At no 9 time did D.N. ever touch” plaintiff Carranza “in a manner she considered offensive or harassing.” 10 (Id. at ¶ 39.) “Plaintiff never saw D.N. touch anyone.” (Id. at ¶ 40.) Further, plaintiff “knew 11 showering was a requirement to stay at the shelter.” (Id. at ¶ 41.) When she answered the special 12 interrogatories in this case, plaintiff stated “it [was] unknown” what, if any, statutes, ordinances, 13 or regulations defendants violated. (Id. at ¶ 33.) 14 2. Plaintiff McGee 15 Plaintiff McGee submitted a written complaint to defendants on June 18, 2017 claiming 16 that “(1) D.N. said she had [a] ‘sexting session’ in the House ‘10 days ago’ and had 69 orgasms; 17 (2) D.N. said she is a lesbian, but wants to ‘suck a man dry’; (3) D.N. showed [plaintiff McGee] 18 pictures of women in ‘sexually posed’ positions on her phone while at Naomi’s House; and that 19 (4) [plaintiff McGee] ‘will not shower while [D.N.] is in the showers,’ but listed no reason why 20 other than she ‘feel[s] as if it is a game to [D.N.] and [plaintiff McGee’s] boundaries mean 21 nothing.” (DSF-McGee at ¶ 25.) Although defendants assert they could not verify the claims 22 “because of their age[,]” defendants talked to D.N. and plaintiff McGee, attempted to keep the 23 two separated, and prevented “them from having to shower at the same times.” (Id.) Plaintiff 24 McGee submitted another complaint on December 16, 2017 stating that it was “not fair” for D.N. 25 to shower with other women at Naomi’s House. (Id. at ¶ 26.) Thereafter, defendants allowed 26 plaintiff McGee “to shower away from D.N. in another building, in shower reserved for clients 27 with disabilities.” (Id.) On March 29, 2018, a staff member at Naomi’s House reported that 28 “‘[D.N.] was just sitting waiting for her turn’ to shower when” plaintiff McGee “said that she will 7 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 8 of 46 1 not even be in the same room with [D.N.] during showers[.]” (Id. at ¶ 27.) As a result, staff at 2 Naomi’s House permitted plaintiff McGee “to shower away from D.N. in a building typically 3 reserved for disabled clients.” (Id.) 4 Plaintiff McGee submitted a third complaint, dated March 31, 2018, “stating that she did 5 ‘not feel comfortable showering’ with D.N. ‘after all the inappropriate sexual comments made by 6 D.N. to [plaintiff] and others,’ and that ‘it makes [plaintiff] rush through because [she] do[esn’t] 7 want to be undressed and have [D.N.] walk in[.]’” (Id. at ¶ 28.) Defendants “ultimately 8 determined the complaint lacked specificity as to the date and details of D.N.’s alleged behavior,” 9 and once again found that plaintiff’s subjective discomfort was an insufficient basis upon which 10 to find a violation of Naomi House’s rules. (Id.) On April 4, 2018, a staff member’s reported that 11 plaintiff refused to take a shower on one occasion, saying that “I’m not showering with him in 12 there,” that she would wait until “it” came out of the shower, complaining that it was not “fair” 13 for “it” to be allowed in the shower with other women, and became confrontational with D.N. by 14 “calling her ‘it’ and telling her ‘you’re a pervert.’” (Id. at ¶ 29.) Plaintiff McGee submitted a 15 fourth report on April 5, 2018 in which she: “(1) made allegations about how D.N. was allegedly 16 treating another client named ‘L’; (2) claims ‘many women have walked out of Naomi’s because 17 of their fear of having a man in the house’; and (3) claimed ‘a couple of months ago, [D.N.] told 18 [plaintiff McGee] that [plaintiff’s] breasts get a lot [sic] bigger when [she] is stressed out and they 19 get smaller when [she] is not[.]’” (Id. at ¶ 30.) In response, defendants “had discussions at the 20 staff level and with D.N.” (Id.) Around April 5, 2018, a client named “L” complained about 21 D.N.’s behavior, defendants verified the claims, “and determined that D.N. would not be able to 22 access services and expelled D.N. from Naomi’s House for the night.” (Id. at ¶ 31.) 23 Plaintiff McGee “suffered no economic or physical damages as a result of the alleged 24 events giving rise to this lawsuit.” (Id. at ¶ 32.) Before using defendants’ services, plaintiff “had 25 a history of significant life stressors, including homelessness, physical, sexual, and psychological 26 abuse, depression, anxiety, involuntar[y] detention pursuant to [California] Welfare & Institutions 27 § 5150 hold, two suicide attempts, alcohol abuse, illegal drug use, and violation of various laws.” 28 (Id. at ¶ 33.) Plaintiff’s medical records “do not differentiate between” her stressors related to the 8 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 9 of 46 1 allegations underlying this lawsuit and her “other life stressors.” (Id. at ¶ 34.) In her deposition 2 testimony in this case, plaintiff McGee admitted to being “overly stressed” about “issues other 3 than D.N. during her time” using defendants’ services. (Id. at ¶ 35.) 4 “At no time did D.N. ever touch” plaintiff McGee “in a manner she considered offensive 5 or harassing.” (Id. at ¶ 41.) “Plaintiff never saw D.N. touch anyone.” (Id. at ¶ 42.) “Plaintiff 6 admits she knew showering was a requirement to stay at the shelter.” (Id. at ¶ 43.) In answering 7 a special interrogatory in this case, plaintiff stated “it [was] unknown” what, if any, statutes, 8 ordinances, or regulations defendant violated. (Id. at ¶ 33.) 9 3. Plaintiff Stroud 10 Plaintiff Stroud used a wheelchair “and primarily showered in the handicapped shower in 11 Naomi’s House, as opposed to the larger shower room.” (DSF-Stroud at ¶ 22.) On June 7, 2017, 12 plaintiff submitted a verbal complaint to defendants stating that “[D.N.] commented on her body 13 and how they can be together when they leave” Naomi’s House. (Id. at ¶ 27.) Thereafter, 14 defendants facilitated a meeting between plaintiff Stroud and D.N., told plaintiff to let them know 15 if any other issues arose with D.N., attempted to keep plaintiff and D.N. separated, and made 16 plaintiff and D.N. shower at different times for the remainder of the time the two were at Naomi’s 17 House together. (Id.) On June 16, 2017, plaintiff submitted another complaint to defendants, 18 stating that D.N. “‘made a comment of [sexual] behavior’ and showed her a picture of D.N. with 19 her ‘private tucked’ and in ‘a blue bra[.]’” (Id. at ¶ 28.) Defendants spoke with D.N., telling her 20 to “stop saying words” making others uncomfortable, but they ultimately concluded that plaintiff 21 Stroud’s complaint “lacked specificity as to the date and details of D.N.’s alleged behavior, and 22 whether any of the alleged incidents even occurred at” the shelter. (Id.) Plaintiff made no further 23 complaints to defendants “about D.N. after June 16, 2017.” (Id. at ¶ 29.) 24 Plaintiff Stroud “suffered no economic or physical damages as a result of the alleged 25 events giving rise to this lawsuit.” (Id. at ¶ 30.) Before using defendants’ services, plaintiff “had 26 a history of significant life stressors, including . . . physical, sexual, and psychological abuse, 27 illegal drug use, child custody issues, and violation of various laws.” (Id. at ¶ 31.) The office at 28 which plaintiff alleges she received counseling for emotional injuries attributed to defendant, “has 9 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 10 of 46 1 no record” of her ever being a patient. (Id. at ¶ 32.) Last, plaintiff admits “she is not taking any 2 medication as a result of any health conditions” allegedly attributed to defendants. (Id. at ¶ 33.) 3 “At no time did D.N. ever touch” plaintiff Stroud “in a manner she considered offensive 4 or harassing.” (Id. at ¶ 39.) “Plaintiff never saw D.N. touch anyone.” (Id. at ¶ 40.) Plaintiff 5 disputes this fact because it “misstates the evidence” but provides no citation to such evidence in 6 support of her contention. (Id.) During her deposition, cited by defendants, plaintiff Stroud was 7 asked whether D.N. ever touched her to which she responded “no.” (Doc. Nos. 57-4 (Declaration 8 of Cynthia Lawrence for Plaintiff Stroud) at ¶ 8, Ex. U; 57-10 at 64 (Deposition of Plaintiff 9 Stroud).) The follow up question inquired if plaintiff Stroud ever saw D.N. touch “anybody else” 10 to which she responded: “As far as I ever observed, no.” (Id.) Therefore, there is no genuine 11 issue as to whether plaintiff Stroud saw D.N. touch anyone at Naomi’s House—she did not. 12 Furthermore, plaintiff Stroud “admits she knew showering was a requirement to stay at 13 the shelter.” (Id. at ¶ 41.) When she answered the special interrogatories in this case, plaintiff 14 stated “it [was] unknown” what, if any, statutes, ordinances, or regulations defendant violated. 15 (Id. at ¶ 34.) 16 4. Plaintiff Wade 17 Defendants contend that at her deposition, plaintiff Wade admitted “that she never 18 complained” about D.N. to defendants. (DSF-Wade at ¶ 25.) Plaintiff Wade, however, disputes 19 this. Although she “never personally complained[,]” plaintiff contends that she “let other women 20 complain about D.N.” because she “did not want to end up on the street.” (Id.) According to 21 her, “staff made it clear that no corrective action would be taken against D.N., and that Naomi’s 22 House was not a hotel, and if clients did not like it, they could leave.” (Id.) 23 Plaintiff Wade “suffered no economic or physical damages as a result of the alleged events giving 24 rise to this lawsuit.” (Id. at ¶ 26.) Before using defendants’ services, plaintiff “had a long history 25 of significant life stressors, including physical, sexual, and psychological abuse, depression, 26 anxiety, illegal drug use, and violation of various laws.” (Id. at ¶ 27.) Although her medical 27 records mention plaintiff’s stress related to her living conditions and homelessness, the 28 ///// 10 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 11 of 46 1 records “do not differentiate between those alleged stressors and” plaintiff Stroud’s “other life 2 stressors.” (Id. at ¶ 28.) 3 “At no time did D.N. ever touch” plaintiff Wade “in a manner she considered offensive or 4 harassing.” (Id. at ¶ 34.) “Plaintiff admits she knew showering was a requirement to stay at the 5 shelter.” (Id. at ¶ 35.) In answering a special interrogatory in this case, plaintiff stated “it [was] 6 unknown” what, if any, statutes, ordinances, or regulations defendant violated. (Id. at ¶ 29.) 7 5. Other Clients of Naomi’s House (But Not Plaintiffs) 8 Plaintiffs have submitted evidence on summary judgment of complaints and incidents 9 involving D.N. and other clients of Naomi’s House, none of whom are named plaintiffs in this 10 litigation. 11 On September 27, 2017, D.N. told another client that they were “twins.” (PSF-Carranza 12 at ¶ 32.) After telling D.N. that their pajamas did not match, D.N. pulled down the side of her 13 pajamas and told the client that their underwear matched. (Id.) On October 8, 2017, a client 14 complained “that D.N. was showering with the other women.” (Id. at ¶ 33.) On March 27, 2018, 15 “a client complained that D.N. was harassing a number of ladies at the house” in an unspecified 16 manner and said that complaining to Naomi’s House would not accomplish anything “because 17 staff would not do anything about it.” (Id. at ¶ 34.) That same day, another client complained 18 “that D.N. was saying they were best friends and that [D.N.] loves her.” (Id. at ¶ 35.) 19 A few days later, on March 30, 2018, D.N. made a complaint about another client who 20 made sexually suggestive comments. (Id. at ¶ 36.) In addition to threatening to obtain a 21 restraining order, D.N. told staff to “tell [the other client] I am straight, I am not going Lesbo for 22 anyone out there ever.” (Id.) Several days after that incident, on April 2, 2018, staff “made a file 23 note” that, in addition to making “inappropriate sexual gestures and comments toward other 24 clients,” D.N. came into the shelter with an erection after speaking to another client, “who [D.N.] 25 had developed an infatuation for[.]” (Id. at ¶ 37.) The next day, staff discussed with D.N. 26 concerns regarding her inappropriate behavior. (Id.) On April 4, 2018, a client reported that D.N. 27 was following her everywhere and was spreading her legs “while wearing very revealing shorts.” 28 (Id. at ¶ 39.) 11 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 12 of 46 1 On April 5, 2018, a young client made a similar complaint as well. (Id. at ¶ 40.) The 2 young client complained that D.N. was “gravitating more toward her” since the young client’s 3 mother was no longer staying at Naomi’s House. (Id. at ¶ 41.) More specifically, the young 4 client reported that D.N. would peer into her room, D.N. exposed her genitals while the two were 5 at a Walmart store, and D.N. had showed the young client a YouTube video in which D.N. “was 6 shaving [her] legs and rubbing [her]self.” (Id.) D.N. was expelled from Naomi’s House for that 7 night, and thereafter “threatened to harm herself and an ambulance was called.” (Id. at ¶ 42.) 8 The next day, on April 6, 2018, D.N. returned to the shelter and a client complained that 9 she did not want to shower with D.N. (Id. at ¶ 43.) On April 10, 2018, “a client complained that 10 D.N. was following her around and sitting next to her.” (Id. at ¶ 44.) That same client then 11 “recommended that staff needs to watch how D.N. is acting and changing clothes in the shower.” 12 (Id. at ¶ 45.) The following day, on April 11, 2018, “a client complained that D.N. was looking at 13 her between holes in the bathroom stall.” (Id. at ¶ 46.) The client “complained that D.N. was 14 looking at her through cracks while she was using the restroom” and “[t]he client yelled that D.N. 15 was a pervert.” (Id. at ¶ 47.) The client “was visibly upset and tearing up.” (Id. at ¶ 48.) “Other 16 clients reportedly witnessed the incident.” (Id.) The day after, on April 12, 2018, a client— 17 which defendants claim is the same client complaining of similar conduct the day before— 18 reported to Naomi’s House that “D.N. was looking at her through small opening in the stall door 19 while the client was using the toilet” and “[t]he client indicated that she did not even wipe herself 20 to get up from the toilet.” (Id. at ¶ 49.) “The client said that she felt violated by D.N. and that 21 D.N. needed to be told to set boundaries.” (Id.) 22 Defendants object to every fact set forth in this subsection. (See, e.g., PSF-Carranza at 23 ¶¶ 32–49.) Filing formal objections, defendants argue that all of the evidence cited to support this 24 subsection is irrelevant because it concerns allegations made by other clients of Naomi’s House— 25 not any of plaintiffs—and also because the evidence is improper character evidence as to D.N. 26 (See Doc. Nos. 70-3, 71-3, 72-3, 73-3.) Defendants’ argument in this regard is at least slightly 27 misguided. If “a plaintiff becomes aware of harassing conduct directed at other persons, outside 28 her presence, that conduct may form part of a hostile environment claim and must be considered.” 12 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 13 of 46 1 Christian v. Umpqua Bank, 984 F.3d 801, 811 (9th Cir. 2020). Thus, allegations made by other 2 persons can be material to a plaintiff’s hostile environment claim. But here, there is no evidence 3 suggesting that any plaintiff “bec[ame] aware” of the allegations summarized in this subsection 4 during their respective stays at Naomi’s House—with one exception.7 See id. In support of the 5 allegations contained in this subsection, the only citation to evidence before the court on summary 6 judgment provided by plaintiffs is to the actual complaints made by other clients or defendants’ 7 staff notes. (See PSF-Carranza at ¶¶ 32–49; Doc. No. 63-3 (Declaration of Peter N. Kapetan, 8 “Kapetan Decl.”) at ¶¶ 12–29.) Plaintiffs do not cite to evidence indicating that they personally 9 knew of these complaints during their stay at Naomi’s House. For example, plaintiffs do not cite 10 their deposition testimony indicating they had such knowledge. In short, there is no evidence 11 before the court allowing it to infer that plaintiffs became aware of these complaints during the 12 relevant time period. Therefore, the court will overrule defendants’ objections as to improper 13 character evidence because such evidence, could, in theory, be admissible, but agrees with 14 defendants that the complaints are not material to consideration of plaintiffs’ claims as a matter of 15 law. With one exception, the court will not consider any of the evidence contained in this 16 subsection in ruling on the pending motions. See supra note 7. 17 C. Request for Judicial Notice 18 Defendants ask the court to judicially notice six documents filed in this action, (Doc. No. 19 56-3), including: (1) the complaint filed by plaintiffs on April 24, 2018; (2) defendants answer to 20 the complaint filed on June 12, 2018; (3) this court’s order dated May 8, 2019 directing the Clerk 21 of the Court to terminate two original plaintiffs from the action, (Doc. No. 23); (4) this court’s 22 order dated October 3, 2019 directing the Clerk of the Co terminate three original plaintiffs from 23 this action, (Doc. No. 42); (5) this court’s order dated October 4, 2019 approving of a joint 24 stipulation of the parties to dismiss one of plaintiffs’ original claims, (Doc. No. 43); and (6) this 25 7 26 The court will consider one allegation involving a client who is not a plaintiff in this action. Plaintiff McGee became aware of an incident involving D.N. and a client named “L” and 27 subsequently filed a complaint with Naomi’s House on the basis of that alleged incident. That complaint concerns the allegations summarized in this subsection that occurred on April 5, 2018. 28 Thus, the April 5th incident is relevant to plaintiff McGee’s sexual harassment claim only. 13 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 14 of 46 1 court’s order dated October 30, 20198 granting defendants’ motion for judgment on the pleadings 2 and dismissing one of plaintiffs’ original claims with leave to amend, (Doc. No. 46.) The Federal 3 Rules of Evidence provide that a “court may judicially notice a fact that is not subject to 4 reasonable dispute because it: (1) is generally known within the trial court’s territorial 5 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot 6 be reasonably be questioned.” Fed. R. Evid. 201. Generally, the court “takes judicial notice of its 7 own docket as a matter of course.” See Ranero v. Cnty. of San Bernardino, No. CV 16-02655 8 CBM, 2018 WL 8058373, at *3 (C.D. Cal. Mar. 12, 2018). “Accordingly, although the request 9 for judicial notice was unnecessary . . . ,” defendants’ request is granted because it satisfies the 10 elements of Rule 201. See id. 11 LEGAL STANDARD 12 Summary judgment is appropriate when the moving party “shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of 15 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 16 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 17 party may accomplish this by “citing to particular parts of materials in the record, including 18 depositions, documents, electronically stored information, affidavits or declarations, stipulations 19 (including those made for purposes of the motion only), admissions, interrogatory answers, or 20 other materials” or by showing that such materials “do not establish the absence or presence of a 21 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 22 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). If the moving party meets its initial responsibility, the 23 burden then shifts to the opposing party to establish that a genuine issue as to any material fact 24 actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 25 (1986). In attempting to establish the existence of this factual dispute, the opposing party may 26 8 Although defendants cite to the docket entry for their own moving papers as the document they 27 seek to be judicially noticed, it appears from the title and date used to identify the document in question that defendants actually seek that judicial notice be taken of the court’s decision. (See 28 Doc. No. 56-3 at 2.) 14 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 15 of 46 1 not rely upon the allegations or denials of its pleadings but is required to tender evidence of 2 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 3 contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; 4 Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider 5 admissible evidence in ruling on a motion for summary judgment.”). The opposing party must 6 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 7 suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. 8 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 9 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 10 nonmoving party, see Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 13 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 14 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 15 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 16 Matsushita, 475 U.S. at 587 (citations omitted). 17 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 18 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 19 party.” Walls v. Cent. Contra Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is 20 the opposing party’s obligation to produce a factual predicate from which the inference may be 21 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 22 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a 23 motion for summary judgment. Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 745 (9th 24 Cir. 2010). Finally, to demonstrate a genuine issue, the opposing party “must do more than 25 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 26 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 27 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 28 ///// 15 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 16 of 46 1 ANALYSIS 2 Defendants move for summary judgment in their favor on all claims as to all remaining 3 plaintiffs. Below, the court will discuss the arguments in the order that they appear in defendants’ 4 motions. 5 A. Defendants Obligations Under Federal Law 6 Homeless shelters receiving federal funding from HUD must comply with certain rules 7 and regulations. See 24 C.F.R § 5.100 et seq. The parties do not dispute that Naomi’s House is 8 subject to these rules and regulations. (DSF-Carranza at ¶¶ 16–17.) As a result, Naomi’s House 9 must provide “[e]qual access to . . . programs, shelters, other buildings and facilities, benefits, 10 services, and accommodations . . . to an individual in accordance with the individual’s gender 11 identity[.]” 24 C.F.R. § 5.106(b)(1). Furthermore, shelters with “shared sleeping quarters” and 12 “shared bathing facilities”—which includes Naomi’s House—must place and accommodate an 13 individual “in accordance with the individual’s gender identity.” 24 C.F.R. § 5.106(c)(1). Under 14 these rules and regulations, “gender identity” means 15 the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person’s 16 perceived gender identity. Perceived gender identity means the gender with which a person is perceived to identify based on that 17 person’s appearance, behavior, expression, other gender related characteristics, or sex assigned to the individual at birth or 18 identified in documents. 19 24 C.F.R § 5.100. Individuals may not be “subjected to intrusive questioning or asked to provide 20 anatomical information or documentary, physical, or medical evidence of the individual’s gender 21 identity.” 24 C.F.R. § 5.106(b)(3). At the same time, organizations such as Naomi’s House 22 “must take nondiscriminatory steps that may be necessary and appropriate to address privacy 23 concerns raised by residents or occupants and, as needed, update its admissions, occupancy, and 24 operating policies and procedures in accordance with” the preceding subsection regarding 25 providing equal access in accordance with one’s gender identity. 24 C.F.R. § 5.106(c)(2). 26 Defendants argue that this “entire lawsuit is specious because it seeks to penalize” them 27 for complying with the above regulations “and treating D.N. with the fairness and dignity these 28 laws guarantee for her.” (Doc. No. 56-1 at 17.) Put another way, defendants argue that the law 16 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 17 of 46 1 required them to allow D.N. to stay at Naomi’s house. (Id. at 16.) Although it is not entirely 2 clear, defendants appear to be suggesting they are entitled to summary judgment as to all of the 3 claims in this case on this ground. Accordingly, the court will briefly address this argument 4 below. 5 Plaintiffs contend that a genuine and material disputed issue of fact exists as to whether 6 D.N. was in fact transgender and therefore whether the actions taken by defendants in this case 7 indeed were required by regulation. (Doc. No. 64 at 7.) In support of this contention, plaintiffs 8 submit the deposition transcript of a transgender woman, “Michelle,” who stayed at Naomi’s 9 House while D.N. was present. (Kapetan Decl. at ¶ 4, Ex. 2.) At her deposition in this case, 10 Michelle testified “that she did not believe D.N. was a transgender” individual. (PSF-Carranza at 11 ¶ 26 (“Undisputed only to the extent that the witness does not believe D.N. is a transgender 12 woman”).)9 Plaintiffs also submit deposition testimony from two employees of Naomi’s House, 13 (Kapetan Decl. at ¶¶ 5–6, Exs. 3–4), who “testified that D.N. does not identify as a transgender 14 female, but rather he identifies as a female,” (PSF-Carranza at ¶ 27 (objecting as irrelevant)). 15 Nonetheless, the court concludes that there is not a genuine issue of material fact as to 16 whether D.N. was transgender at the time the events giving rise to this litigation occurred. This 17 conclusion is dictated because it is “the gender with which [D.N.] identifies” that is relevant, not 18 her “perceived gender identity” based on what others think about her “appearance, behavior, . . . 19 [or] other gender related characteristics[.] 24 C.F.R § 5.100. Plaintiffs statement that D.N. is not 20 a “transgender female” and rather, simply “identifies as a female” is confusing, (see PSF- 21 Carranza at ¶ 27), but in any event, misses the mark entirely given the definition of “gender 22 identity” under federal law, see 24 C.F.R § 5.100 (“the gender with which a person identifies”). 23 9 Defendants object to the court’s consideration of the Michelle deposition on grounds that her 24 testimony is irrelevant, lacks foundation, is improper opinion and/or expert testimony, and is inadmissible character evidence as to D.N. (Doc. No. 70-3 at 2–6.) The court overrules 25 defendants’ objections, some of which are redundant of the summary judgment standard. See, 26 e.g., Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (“A court can award summary judgment only when there is no genuine dispute of material fact. It cannot 27 rely on irrelevant facts, and thus relevance objections are redundant.”). Michelle’s opinion as to whether she believed D.N. was transgender, or not, is irrelevant under federal law for reasons 28 explained in this order. 17 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 18 of 46 1 There is no evidence before the court on summary judgment indicating that D.N., herself, 2 identified with any gender other than being a woman. And defendants accommodated D.N. “in 3 accordance with [that] gender identity.” See 24 C.F.R. § 5.106(c)(1). 4 However, the court concludes that there is a genuine issue of material fact as to whether 5 Naomi’s House took “nondiscriminatory steps that” were “necessary and appropriate to address 6 privacy concerns raised by residents” of the shelter. See 24 C.F.R. § 5.106(c)(2). While 7 defendants have put forward credible evidence indicating that they took the complaints filed 8 against D.N. seriously, plaintiffs obviously disagree as to whether the corrective actions taken by 9 Naomi’s House were sufficient under the circumstances. Construing the evidence in a light most 10 favorable to plaintiffs, a jury could reasonably infer from the evidence before the court on 11 summary judgment that Naomi’s House could have taken additional steps to address the privacy 12 concerns raised by its clients regarding D.N.’s behavior. For this reason, the court rejects the 13 proposition that defendants are entitled to summary judgment as to all of the claims in this case 14 simply because the actions taken were to comply with obligations imposed under federal law. 15 Among other things, defendants have not supplied the court with any case law that suggests 16 actions taken to comply with federal regulations are per se immunized from the kinds of claims 17 advanced by plaintiffs in this lawsuit. Even if such authority existed, the disputes of material fact 18 identified above preclude the court from finding on summary judgment that the defendants’ 19 actions were undertaken in compliance with applicable federal regulations. Accordingly, the 20 court will turn to analyze the merits of each of plaintiffs’ claims below. 21 B. Negligent Infliction of Emotional Distress 22 Under California law, NIED is not an independent tort but is a type of negligence to which 23 the traditional elements—duty, breach, causation, and damages—apply. Marlene F. v. Affiliated 24 Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989); see Burgess v. Superior Ct., 2 Cal. 4th 25 1064, 1072–73 (1992). Here, the court’s analysis will begin and end with the first element, 26 whether defendants owed plaintiffs any duty under California law. 27 Deciding whether a legal duty exists “is a legal issue that is particularly amenable to 28 resolution on summary judgment.” Vournas v. Fidelity Nat. Title Ins. Co., 73 Cal. App. 4th 668, 18 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 19 of 46 1 672 (1999). Every person has a duty to use ordinary care to prevent others from being injured as 2 a result of their own conduct. Cal. Civ. Code § 1714. However, “social policy must at some 3 point intervene to delimit liability” and “policy considerations may dictate that a cause of action 4 should not be sanctioned no matter how foreseeable the risk.” Parsons v. Crown Disposal Co., 5 15 Cal. 4th 456, 476 (1997). There is generally no “duty to avoid negligently causing emotional 6 distress to another.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993). 7 “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the 8 plaintiff is an object, recovery is available only if the emotional distress arises out of the 9 defendant’s breach of some other legal duty and the emotional distress is proximately caused by 10 that breach of duty.” Id. (“Even then, with rare exceptions, a breach of the duty must threaten 11 physical injury . . .”). A legal “duty may be imposed by law, be assumed by the defendant, or 12 exist by virtue of a special relationship.” Id. Plaintiffs argue that defendants had a duty protect 13 them from D.N.’s alleged sexual harassment. (See Doc. No. 64 at 13; see also Compl. at ¶¶ 26– 14 28.) Plaintiffs’ theory of NIED is not that defendants directly caused the emotional harm, but that 15 defendants failed to act affirmatively to prevent a third party from inflicting emotional harm on 16 plaintiffs. However, “there is generally no duty to protect others from the conduct of third 17 parties.” Regents of Univ. of Cal. v. Superior Ct., 4 Cal. 5th 607, 627 (2018). There are at least 18 two exceptions to this general no-duty-to-protect rule: first, when a special relationship exists 19 between the defendant and either the plaintiff or the third party; and second, when the defendant 20 undertakes a duty, i.e., assumed a duty. Barenborg v. Sigma Alpha Epsilon Fraternity, 33 Cal. 21 App. 5th 70, 76 (2019). A plaintiff seeking to impose an affirmative duty to protect must show 22 that the imposition of a duty is supported by law, even if a special relationship exists “or some 23 other set of circumstances giv[e] rise to an affirmative duty to protect.” Brown v. USA 24 Taekwondo, 11 Cal. 5th 204, 209 (2021). Here, plaintiffs must establish that the imposition of an 25 ///// 26 ///// 27 ///// 28 ///// 19 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 20 of 46 1 affirmative duty to protect is supported by law. If they cannot, their NIED claims fail. See id.10 2 Unburdened by any citation to a California court decision finding a duty based on similar 3 circumstances, plaintiffs simply contend that “it is unfathomable” for defendants to claim they did 4 not owe plaintiffs a duty “[g]iven the array of services provided” by Naomi’s House. (Doc. No. 5 64 at 8.) The parties’ briefing does not characterize plaintiffs’ NIED claim as seeking to impose 6 an affirmative duty to protect. (See Doc. Nos. 56-1 at 18; 64 at 8.) Defendants argue that 7 plaintiffs cannot demonstrate that a duty existed under any of the three standards, i.e., by law, 8 special relationship, or assumption. It appears that plaintiffs also analyze the duty element using 9 this same framework. Thus, the court will begin by discussing whether a duty was imposed on 10 defendants by law based on a balancing of the factors articulated by the California Supreme Court 11 in Rowland v. Christian, 69 Cal. 2d 108 (1968). Because the court concludes that consideration 12 of those factors does not weigh in favor of imposing a duty, the court will then briefly explain 13 why a special relationship cannot give rise to a duty in this case. Last, the court will determine 14 whether defendants assumed a duty in which in which the “emotional condition of the plaintiff[s] 15 [wa]s an object.” See Potter, 6 Cal. 4th at 985. 16 California courts consider the so-called Rowland factors when determining whether a duty 17 is imposed by law. See, e.g., Elsheref v. Applied Materials, Inc., 223 Cal. App. 4th 451, 459 18 (2014). These factors include the 19 “foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection 20 between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing 21 future harm, the extent of the burden to the defendant and 22 10 In Brown the court noted two exceptions to the no-duty-to-protect rule, when a person assumes 23 a duty and when a special relationship exists. 11 Cal. 5th at 215. Although only the latter exception was at issue in the case, Brown appears to hold more broadly that whenever an 24 exception to the no-duty-to-protect rule applies, the imposition of an affirmative duty to protect must still be supported by law. However, the court in Brown did not explicitly discuss situations 25 where a party assumes a duty in which the emotional condition of the plaintiffs is the object. See 26 Potter, 6 Cal. 4th at 985. In situations where a party assumes such a specific duty, it is unclear if the imposition of a duty must still be supported by law based on the holding in Brown. Because it 27 does not impact resolution of the pending motion, the court will analyze whether defendants assumed an affirmative duty to protect the emotional condition of plaintiffs, irrespective of any 28 possible limitation imposed by the California Supreme Court in Brown. 20 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 21 of 46 1 consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and 2 prevalence of insurance for the risk involved.” 3 Id. (quoting Rowland, 69 Cal. 2d at 113). In applying the Rowland factors, “the question is not 4 whether the specific facts support an exception to the general duty of reasonable care, but 5 ‘whether carving out an entire category of cases from that general duty rule is justified by clear 6 considerations of policy.’” Makhzoomi v. Sw. Airlines Co., 419 F. Supp. 3d 1136, 1160 (N.D. 7 Cal. 2019) (quoting Vasilenko v. Grace Fam. Church, 3 Cal. 5th 1077, 1083 (2017)). “Unlike 8 other elements of negligence—breach, injury, and causation—which are necessarily fact- 9 dependent, the ‘[a]nalysis of duty occurs at higher level of generality.’” Id. Courts must 10 not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather 11 to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm 12 experienced that liability may appropriately be imposed on the negligent party. 13 14 Elsheref, 223 Cal. App. 4th at 459 (quoting Ballard v. Uribe, 41 Cal. 3d 564, 572 n.6 (1986)). 15 Therefore, courts do not necessarily view the record in a light most favorable to the nonmoving 16 party when applying the Rowland factors on summary judgment. See, e.g., Carter v. Nat’l R.R. 17 Passenger Corp., 63 F. Supp. 3d 1118, 1149 n.18 (N.D. Cal. 2014). Here, consideration of the 18 Rowland factors do not support imposing a duty on defendants. Even viewing the facts in the 19 light most favorable to plaintiffs, as the court must, only one factor weighs in favor of finding a 20 duty, but all other factors do not. 21 Evaluating the factual circumstances in a light most favorable to plaintiffs, some harm to 22 plaintiffs was likely foreseeable. Defendants had rules governing behavior likely because, among 23 other reasons, they understood that their clients’ existing emotional issues could be exacerbated 24 by a lack of respect and dignity. (DSF-Carranza at ¶¶ 6–7, 9.) Furthermore, defendants could 25 have foreseen some harm because they had procedures for clients to make complaints, (DSF- 26 Carranza at ¶ 22), and various clients made complaints against D.N. over the course of several 27 months with increasing frequency, (PSF-Carranza at ¶¶ 32–49). On the other hand, in making 28 this determination the court is not to focus on the specific facts of this case; instead, it must ask at 21 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 22 of 46 1 a higher level whether defendants’ conduct (i.e., not doing more to protect its clients from other 2 clients) “is sufficiently likely to result in the kind of harm experienced” by plaintiffs (i.e., 3 emotional harm). See Elsheref, 223 Cal. App. 4th at 459 (citation omitted). In this regard, 4 plaintiffs have not offered evidence on summary judgment indicating that defendants have, as a 5 general matter and aside from D.N. specifically, failed to prevent inappropriate conduct on the 6 part of clients. There is no evidence before the court suggesting that the type(s) of negligent 7 conduct and harm alleged in this case was a frequent or even occasional issue at Naomi’s House. 8 (See, e.g., PSF-Carranza at ¶¶ 24–25 (undisputed that “Michelle” was a transgender woman who 9 had no problems with plaintiffs “and was well received by the clients”).) Rather, the evidence on 10 summary judgment indicates that this was an issue involving D.N. only. If plaintiffs showed that 11 defendants regularly failed to protect clients in a similar manner, consideration of the 12 foreseeability factor would undoubtedly weigh heavily in favor of imposing a duty here. 13 Nonetheless, because some harm was likely foreseeable, the court concludes that consideration of 14 this factor weighs to some degree in favor of imposing a duty. 15 However, “[f]oreseeability of injury . . . is but one factor to be considered in the 16 imposition of the negligence liability” when courts apply the Rowland factors. See Elsheref, 223 17 Cal. App. 4th at 460 (quoting Bily v. Arthur Young & Co., 3 Cal. 4th 370, 398 (1992)). Here, 18 consideration of all the other factors does not support imposing a duty on defendants. First, the 19 degree of certainty of each plaintiffs’ injuries is far from certain. It is undisputed that no plaintiff 20 suffered from any “economic or physical” harm “as a result of the alleged events giving rise to 21 this lawsuit.” (DSF-Carranza at ¶ 29; DSF-McGee at ¶ 32; DSF-Stroud at ¶ 30; DSF-Wade at ¶ 22 26.) D.N. never touched any of the plaintiffs in an “offensive or harassing” manner. (DSF- 23 Carranza at ¶ 39; DSF-McGee at ¶ 41; DSF-Stroud at ¶ 39; DSF-Wade a ¶ 34.) The only harm at 24 issue in this case is emotional harm. See Regents of Univ. of Cal., 4 Cal. 5th at 671 (noting that 25 the degree of certainty that harm occurred “may come into play when the plaintiff’s claim 26 involves intangible harm, such as emotional distress”); Kesner v. Superior Ct., 1 Cal. 5th 1132, 27 1148 (2016) (explaining this factor “has been noted primarily, if not exclusively, when the only 28 claimed injury is an intangible harm such as emotional distress”). But even that is speculative 22 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 23 of 46 1 based on the evidence before the court on summary judgment. See Burgess, 2 Cal. 4th at 1073 2 (“[I]n the context of a negligence action, damages may be recovered for serious emotional 3 distress unaccompanied by physical injury.” (emphasis added)); see also Molien v. Kaiser Found. 4 Hosps., 27 Cal. 3d 916, 925–27 (1980) (recognizing NIED based only on “serious” emotional 5 harm but noting the justification for the previous rule requiring physical injury “appear[ed] to be 6 that it serve[d] as a screening device to minimize a presumed risk of feigned injuries and false 7 claims”). In this case it is undisputed that the medical records of three of the plaintiffs “do not 8 differentiate between” stress related to D.N.’s conduct and stress related to each plaintiff’s 9 personal issues unrelated to D.N. (DSF-Carranza at ¶ 31; DSF-McGee at ¶ 34; DSF-Wade at 10 ¶ 28.) As to the remaining plaintiff, it is undisputed that the office where she claims to have 11 sought counseling for her emotional issues as a result of D.N.’s conduct “has no record of [her] as 12 a patient.” (DSF-Stroud at ¶ 32.) The evidence on summary judgment in this case is 13 representative of the types of issues that will arise if the court finds that a duty exists at a more 14 general level. While there is some evidence that plaintiffs suffered from stress as a result of 15 D.N.’s alleged harassment, that is the kind of harm that counsels against imposing a duty here. 16 Second, the closeness of defendants’ conduct and the injury suffered is attenuated. See, 17 e.g., Modisette v. Apple, Inc., 30 Cal. App. 5th 136, 145 (2018) (“In cases where courts have 18 found a sufficiently close connection to warrant the recognition of a duty of care notwithstanding 19 the involvement of a third party, the relationship between the defendant’s actions and the 20 resulting harm was much more direct.”). Plaintiffs’ theory of this case is not that defendants 21 “directly put the plaintiffs in danger,” but instead, defendants knew of a third party that was 22 harming plaintiffs and failed to sufficiently remedy the situation under the circumstances. See id. 23 at 146. 24 Third, the moral blame of defendants’ conduct is minimal. This is particularly true here 25 where it is undisputed that defendants made good-faith efforts to comply with federal law 26 requiring them to accommodate D.N.’s “gender identity”—even if there may be a genuine issue 27 of disputed fact as to whether defendants took sufficient steps to respect plaintiffs’ privacy 28 interests. See, e.g., Trear v. Sills, 69 Cal. App. 4th 1341, 1355 (1999) (“Granting the premise that 23 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 24 of 46 1 a patient’s symptoms (e.g., an eating disorder) might be the result of the suppressed trauma of 2 child molestation (as the Legislature certainly has), there is no moral blame in a therapist seeking 3 to confront it.”). While it is true that defendants had knowledge at some point that D.N. was 4 disturbing other clients, defendants had to balance that interest with not violating federal law. See 5 id. (finding that a therapist owed no duty to a patient’s father, who alleged that the therapist 6 triggered the patient’s false memories of sexual abuse, in part because of the countervailing 7 interest of the therapist’s duty to the patient). 8 Fourth, if the court were to impose a legal duty on defendants here, the burden on 9 Naomi’s House—a nonprofit organization—and other homeless shelters may have adverse 10 consequences to the community, including the shutting down of such desperately needed shelters. 11 Cf. Elsheref, 223 Cal. App. 4th at 460 (“imposing a duty [on employers] toward nonemployee 12 persons saddles the defendant employer with a burden of uncertain but potentially very large 13 scope” (citation omitted)). Imposing a duty on homeless shelters would place them in the 14 untenable position of having to choose between either defending against lawsuits alleging 15 negligence, on the basis they failed to respect a client’s subjective concern regarding transgender 16 individuals or, alternatively, for violating federal law, on the basis they allegedly failed to respect 17 a client’s gender identity.11 In sum, consideration of the Rowland factors does not support 18 imposing liability on defendants. 19 The parties do not cite any California state court case holding that homeless shelters have 20 a duty to its clients. However, defendants have cited three decisions from other jurisdictions as 21 persuasive authority to support their argument that the court should not impose such a duty in this 22 case. The first case concerns a homeless shelter’s duty to protect the public generally and is thus 23 not directly on point. In Rivera v. New York City Health & Hospitals Corporation, the plaintiff 24 sued a homeless shelter for negligence after he was pushed into an oncoming subway train by an 25 individual who was receiving assistance from the shelter, with the plaintiff claiming among other 26 11 27 The court is unaware of the availability and cost of any insurance for the type of risk presented in this case and the parties have not presented evidence addressing that issue in connection with 28 the pending motion. 24 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 25 of 46 1 things that the shelter failed to take steps to protect the public from the perpetrator. 191 F. Supp. 2 2d 412, 415 (S.D.N.Y. 2002). The district court granted the homeless shelter’s motion to dismiss 3 because the complaint failed to allege any facts giving rise to a duty of care to the general public, 4 in part, because the plaintiff did not allege that the shelter “had any ability to control” the 5 perpetrator. Id. at 425. The other two cases cited by defendants concern a homeless shelter’s 6 duty to its own clients and are somewhat more relevant here given the facts in this case. In 7 Metropolitan Dade County v. Dubon, the state appellate court reversed a jury verdict finding a 8 county liable for negligence after a client of a homeless shelter attacked his roommate. 780 So. 9 2d 328, 330 (Fla. Dist. Ct. App. 2001). The state appellate court reasoned that “[b]ecause the 10 defendants did not have either the right or the ability to control the assailant, they did not owe a 11 duty to the plaintiff.” Id. (“[B]oth the plaintiff and the defendant were absolutely free to come 12 and go as they chose. Beckham Hall provided valuable services to its homeless residents. It did 13 not have a common law duty to maintain a vigil over those who sought shelter.”). Finally, in 14 Henry v. Bi-District Board of Urban Ministry, Incorporated, the state appellate court affirmed the 15 trial court’s grant of summary judgment on a negligence claim brought by a guest of a homeless 16 shelter struck in the head by another guest after balancing “the foreseeability and gravity of the 17 potential harm against the burden imposed in preventing that harm.” 54 S.W.3d 287, 289–90 18 (Tenn. Ct. App. 2001) (citation omitted). The analysis by the courts in Dubon and Henry support 19 this court’s conclusion and its application of certain factors under Rowland. Plaintiffs attempt to 20 discredit the decisions in Dubon and Henry on the basis that the bodily injuries resulting from 21 physical attacks were less foreseeable and preventable than some degree of emotional harm 22 resulting from sexual harassment. The court finds plaintiffs’ argument in this regard to be 23 unconvincing for three reasons. Under Rowland, foreseeability alone is insufficient basis upon 24 which to find a duty, whether conduct was “preventable” is not a factor (at least not without 25 consideration to the burden it would impose), and courts must consider the degree of certainty 26 that the plaintiff suffered an injury (e.g., emotional harm as opposed to bodily injury) among 27 other factors. See Elsheref, 223 Cal. App. 4th at 459–60. For all of these reasons, this court 28 concludes that defendants did not owe a duty to plaintiffs under California law. 25 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 26 of 46 1 Next, the court will briefly discuss why defendants did not owe a duty to plaintiffs based 2 on a special relationship. As noted above, a duty can generally be imposed under three separate 3 circumstances (i.e., by law, special relationship, or assumption). See Potter, 6 Cal. 4th at 985. 4 However, in Brown, the California Supreme Court recently limited the ways in which a duty can 5 be imposed in cases “where defendant did not create the risk that resulted in plaintiff’s injuries” 6 or, in other words, cases seeking to impose an affirmative duty to protect. 11 Cal. 5th at 222 n.9. 7 In Brown, an Olympic athlete alleged Olympic organizations “acted negligently by failing to take 8 steps to protect her from her coach’s abuse.” 11 Cal. 5th at 222. The California Supreme Court 9 held that in seeking to impose an affirmative duty to protect, a plaintiff’s claim must satisfy both 10 the Rowland-factors and the special-relationship test. Id. at 213. Neither basis by itself is 11 sufficient to impose an affirmative duty to protect. Therefore, “even when a special relationship 12 gives rise to an affirmative duty to protect, a court must still consider whether the policy 13 considerations set out in Rowland warrant a departure from that duty in the relevant category of 14 cases.” Id. at 222. Applying Brown here, plaintiffs cannot argue that a special relationship 15 between themselves and defendants, even if one existed, imposes an affirmative duty to protect 16 on defendants because the court has already concluded above that consideration of the Rowland 17 factors does not support that conclusion. 18 Finally, the court will explain why defendants did not assume a duty to plaintiffs in this 19 case. As an initial matter, their NIED claims appears foreclosed even if plaintiffs could 20 demonstrate that defendants assumed a duty because the court concluded above that Rowland 21 does not support imposing an affirmative duty to protect in this case. Brown, 11 Cal. 5th at 209, 22 218–19 (holding exceptions to the no-duty-to-protect rule must be consistent with Rowland). 23 However, assuming plaintiffs’ NIED claim is not foreclosed on that basis, their claim still fails as 24 a matter of law. As noted above, a NIED claim based on an assumption of a duty can succeed 25 only if defendants assumed a duty “in which the emotional condition” of any of the plaintiffs was 26 the “object.” See Potter, 6 Cal. 4th at 985; see also Erlich v. Menezes, 21 Cal. 4th 543, 559 27 (1999) (explaining NIED claims based on an assumed duty may prevail only if “emotional 28 concerns are the essence” of the duty); Granger v. Lowe’s Home Ctrs., LLC, No. 1:14-cv-01212- 26 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 27 of 46 1 DAD, 2016 WL 1138175, at *6 (E.D. Cal. Mar. 23, 2016) (same). Plaintiffs argue that 2 defendants assumed a duty to prevent emotional harm because of the services they offered. (See, 3 e.g., Doc. No. 64 at 8.) Plaintiffs essentially ask the court to impose a duty on defendants based 4 on the good Samaritan rule, also referred to as a theory of negligent undertaking. “The 5 foundational requirement of the good Samaritan rule is that in order for liability to be imposed 6 upon the actor, he must specifically have undertaken to perform the task charged with having 7 performed negligently, for without the actual assumption of the undertaking there can be no 8 correlative duty to perform that undertaking carefully.” Artiglio v. Corning Inc., 18 Cal. 4th 604, 9 614–15 (1998) (citation omitted). “[T]he scope of any duty assumed depends on the nature of the 10 undertaking.” Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 249 (2005). Here, Naomi’s House 11 did not “specifically” undertake the task of protecting its clients from emotional harm. See 12 Artiglio, 18 Cal. 4th at 614–15. Plaintiffs’ general claim to the contrary, unsupported by any 13 citation to evidence, will not be accepted at face value. (See Doc. No. 64 at 8 (“Defendants 14 specifically designed their facility to formulate plans to affect their clients’ physical, mental and 15 emotional well-being.” (emphasis added)).) Plaintiffs also argue unpersuasively that defendants 16 assumed a duty to prevent clients from suffering emotional harm because Naomi’s House 17 imposed rules on the behavior of its clients. See Delgado, 36 Cal. 4th at 249–50 (“Merely 18 because a supermarket or other similar enterprise ‘chooses to have a security program’ that 19 includes provision of a roving security guard does not signify that the proprietor has assumed a 20 duty to protect invitees from third party violence.” (citation omitted)). In short, plaintiffs cannot 21 point to any evidence before the court on summary judgment indicating that defendants 22 specifically assumed the task of caring for the emotional well-being of its clients. 23 For these reasons, the court concludes that defendants did not owe plaintiffs a duty under 24 California law. Defendants’ motions for summary judgment as to the plaintiffs’ NIED claims 25 will therefore be granted. 26 C. Negligence Per Se 27 Plaintiffs do not oppose the granting of summary judgment in favor of defendants as to 28 plaintiffs’ negligence per se claims, nor do they otherwise address those claims in their 27 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 28 of 46 1 oppositions. (See passim Doc. No. 64.) A negligence per se claim has four elements: “(1) the 2 defendant violated a statute or regulation, (2) the violation caused the plaintiff’s injury, (3) the 3 injury resulted from the kind of occurrence the statute or regulation was designed to prevent, and 4 (4) the plaintiff was a member of the class of persons the statute or regulation was intended to 5 protect.” United States v. Sierra Pac. Indus., 879 F. Supp. 2d 1096, 1103–04 (E.D. Cal. 2012) 6 (quoting Alejo v. City of Alhambra, 75 Cal. App. 4th 1180, 1184–85 (1999)). Here, plaintiffs 7 cannot demonstrate there is a genuine issue of material fact as to the first element of their 8 negligence per se claim. As explained below, the court will dismiss all of plaintiffs’ 9 statutory/regulatory claims. Further, plaintiffs have not identified any other law that may serve as 10 the basis for their negligence per se claims. (See, e.g., DSF-Carranza at ¶ 33.) Because plaintiffs 11 fail to identify any “statute or regulation” that defendants may have violated, the court will 12 dismiss their negligence per se claims. 13 D. Federal Housing Act 14 The FHA prohibits housing discrimination and threats or intimidation on the basis of sex 15 and other protected classes. 42 U.S.C. § 3604. In moving for summary judgment with respect to 16 plaintiffs’ FHA claim, defendants make three arguments: (1) Naomi’s House is not a “dwelling”; 17 (2) the alleged harassment was not “sufficiently severe or pervasive”; and (3) defendants did not 18 “coerce, intimidate, threaten, or interfere” with plaintiffs’ enjoyment of their rights. (Doc. No. 19 56-1 at 24–28.) Plaintiffs oppose summary judgment on each ground. Below, the court will 20 discuss defendants’ first two arguments because they are dispositive of the pending motions as to 21 plaintiffs’ FHA claims. 22 1. Naomi’s House Is Not A “Dwelling” Under The FHA. 23 The FHA is intended “to provide, within constitutional limits, for fair housing throughout 24 the United States” and is afforded a “generous construction” to further its “broad and inclusive” 25 protections. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995) (citations omitted). 26 Specifically, the FHA prohibits “discriminat[ion] against any person in the terms, conditions, or 27 privileges of sale or rental of a dwelling . . . because of . . . sex[.]” 42 U.S.C. § 3604(b). Under 28 the FHA, a “dwelling” is either a building or structure “occupied as, or designed or intended for 28 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 29 of 46 1 occupancy as, a residence” or alternatively, “any vacant land” offered for sale or lease. 42 U.S.C. 2 § 3602(b) (emphasis added); 24 C.F.R. § 100.20(b) (same); see 24 C.F.R. § 100.201 (defining a 3 “dwelling unit” as including “sleeping accommodations in shelters intended for occupancy as a 4 residence for homeless persons” (emphasis added)). “Residence” is critical to the definition of 5 “dwelling.” Although undefined by the FHA, courts have interpreted “residence” consistent with 6 its ordinary meaning. See, e.g., United States v. Hughes Mem’l Home, 396 F. Supp. 544, 549 7 (W.D. Va. 1975) (“a temporary or permanent dwelling place, abode or habitation to which one 8 intends to return as distinguished from a place of temporary sojourn or transient visit” (quoting 9 Webster’s Third New Int’l Dictionary)); Jenkins v. N.Y. City Dep’t of Homeless Servs., 643 F. 10 Supp. 2d 507, 517–18 (S.D.N.Y. 2009) (observing that courts “continue[] to look to the Hughes 11 ‘plain meaning’ analysis in determining what constitutes a dwelling under the FHA”). 12 Whether a homeless shelter is a “dwelling” subject to the FHA has divided courts across 13 the country. See, e.g., Hunter on behalf of A.H. v. Dist. of Columbia, 64 F. Supp. 3d 158, 174 14 (D.D.C. 2014) (collecting cases). The Ninth Circuit has “never squarely addressed the issue of 15 whether all temporary shelters fit within the . . . definition of ‘dwelling’” under the FHA. Cmty. 16 House, Inc. v. City of Boise, 490 F.3d 1041, 1048 n.2 (9th Cir. 2007) (noting circuit precedent in 17 Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996), where “the parties did 18 not dispute that the FHA applied” to a homeless shelter). At the same time, the Ninth Circuit in 19 Community House stated that it had “little trouble concluding that at least part of the” shelter was 20 a “dwelling” because it generated “up to $125,000 in rent per year from [49] transitional housing 21 units in which the tenants reside for up to a year and a half.” Id. 22 In Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, the district 23 court granted a motion for summary judgment brought on behalf of a nonprofit homeless shelter 24 after concluding that it was not a dwelling subject to the FHA. 717 F. Supp. 2d 1101, 1109–12 25 (D. Idaho 2010), aff’d on other grounds, 657 F.3d 988 (9th Cir. 2011). The district court 26 explained that other courts had considered two factors to determine if a facility is a dwelling: 27 “(1) whether the facility is intended or designed for occupants who intend to remain in the facility 28 for any significant period of time; and (2) whether those occupants would view the facility as a 29 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 30 of 46 1 place to return to during that period.” Id. at 1109 (quoting Lakeside Resort Enters., LP v. Bd. of 2 Supervisors of Palmyra Twp., 455 F.3d 154, 158 (3d Cir. 2006)). After observing that two out- 3 of-circuit district courts had reached the opposite conclusion as to whether a homeless shelter is a 4 dwelling under the FHA, the district court in Intermountain then summarized the case law outside 5 the context of homeless shelters. The court noted that summer bungalows, cabins for migrant 6 workers, nursing homes, drug-and-alcohol treatment facilities, group homes for children, and 7 hospice facilities for AIDS patients were all dwellings subject to the FHA; but that city jails and 8 lodging, such as hotels and bed-and-breakfasts, did not qualify as dwellings. Id. at 1111. In 9 concluding that the homeless shelter in Intermountain was not a dwelling for purposes of the 10 FHA, the district court found the following facts relevant: 11 guests of the shelter component are not charged a fee for staying in the shelter; are assigned a bed in a dormitory-style room, a hallway, 12 or the day room; generally are allowed to stay for a maximum of seventeen consecutive nights (except during the winter season 13 months when the maximum stay is more flexible due to the danger that cold weather presents to homeless individuals during the 14 night); are not guaranteed that they will have the same bed each night they return; with limited exceptions, are not allowed to stay at 15 the shelter during the day, are required to leave the shelter every morning by 8:00 a.m., and may not return, except for lunch, until 16 4:00 p.m.; are not allowed to leave the shelter once they arrive in the evening; generally are not allowed to stay at the shelter on a 17 particular evening if they do not check in during the designated hours; are not allowed to personalize the bed area assigned to them 18 or leave belongings in their bed area; and, with extremely limited exceptions, are not allowed to receive phone calls, mail, or have 19 visitors at the shelter. 20 Id.; see also Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 969 (9th Cir. 2010) (observing 21 Intermountain concluded that the same homeless shelter was not a “dwelling,” but declining to 22 decide the issue because qualified immunity required dismissal).12 23 Alternatively, plaintiffs argue that this court should follow the decision in Woods v. 24 Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995), which concluded—on a motion to dismiss— 25 that a homeless shelter may qualify as a dwelling under the FHA. (See Doc. No. 64 at 18.) In 26 12 27 The Fourth Circuit also declined to answer whether a homeless shelter may be a dwelling under the FHA. See Thomas v. The Salvation Army S. Territory, 841 F.3d 632, 639 (4th Cir. 28 2016). 30 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 31 of 46 1 Woods, the district court concluded that a homeless shelter was a dwelling because the plaintiffs 2 in that case had “no other place to return to or reside[.]” 884 F. Supp. at 1174. The district court 3 in Intermountain distinguished Woods on the facts and on the law. It first explained that the 4 guests in Woods were permitted to stay at the shelter “for a much longer period of time” and up to 5 120 days, whereas the guests in Intermountain were only allowed to stay for 17 consecutive 6 nights with some exceptions during the colder months. 655 F. Supp. 2d at 1112. Disagreeing 7 with the legal reasoning adopted by the court in Woods, the district court in Intermountain stated 8 that it also was 9 not convinced that a homeless shelter is a “dwelling” simply because the guests have “nowhere else to ‘return to,’” . . . because, 10 under that interpretation of “dwelling,” any building or structure in which a homeless person is sleeping and storing his or her 11 possessions would be considered a “dwelling” based simply on the intent and circumstances of the homeless person. 12 13 Id. (internal citations omitted); see also Johnson v. Dixon, 786 F. Supp. 1, 4 (D.D.C. 1991) 14 (doubting whether an “‘emergency overnight shelter,’ . . . i.e., a place of overnight repose and 15 safety for persons whose only alternative is to sleep in alleys or doorways, can be characterized as 16 a ‘dwelling’ within the meaning of the Act, even if it may seem like home to them”). 17 Here, defendant Naomi’s House and the homeless shelter at issue in Intermountain share 18 many similarities. Naomi’s House is an “overnight” homeless shelter with 24 beds. (DSF- 19 Carranza at ¶ 3.) Naomi’s House does not charge clients a fee to utilize its services. (Id. at ¶ 15.) 20 Instead, for new clients, beds at Naomi’s House are assigned on a first-come, first-serve basis, 21 “and most nights there is a lottery to stay.” (Id. at ¶ 5.) Returning clients staying consecutive 22 nights are not guaranteed the same bed or room each day. (Id. at ¶ 35.) All clients must check 23 out of Naomi’s House at 8:00 a.m. and clients wishing to return are not allowed to enter Naomi’s 24 House again until 4:30 p.m. on weekdays, 12:45 p.m. on weekends, and 5:45 p.m. on holidays. 25 (Id. at ¶ 37.) If a returning client fails to check in at the times noted above, “her spot at Naomi’s 26 House will be given to another individual in need.” (Id. at ¶ 34.) Plaintiffs are allowed to bring 27 personal items into Naomi’s House “at their own risk[,]” though it appears undisputed that they 28 may not “claim or personalize” their assigned spaces “in any way.” (Id. at ¶ 36.) Clients are not 31 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 32 of 46 1 allowed to bring cell phones into Naomi’s House. (Id. at ¶ 8.) Further, defendants’ showers “are 2 not private, but rather a locker room style building consisting of an open changing area and seven 3 individual shower stalls.” (Id. at ¶ 11.) Thus, the main difference between Naomi’s House and 4 the shelter in Intermountain is that the clients in Intermountain were allowed to stay for a 5 maximum of 17 consecutive nights, whereas “[t]here is no limit on the number of days a client 6 can stay at Naomi’s House” so long as they check back into the shelter by the times noted above. 7 (Id. at ¶ 34.) There is also one other difference. The parties agree that, during D.N.’s stay, “the 8 longest anyone had been at Naomi’s House was approximately one year off and on.” (PSF- 9 Carranza at ¶ 18 (emphasis added).)13 Accordingly, a key question for the court to resolve is 10 whether these two facts—no maximum stay and one client who stayed for a year “off and on” 11 while D.N. was present—are a sufficient basis upon which to conclude that Naomi’s House is a 12 dwelling subject to the FHA. 13 The court finds that plaintiffs have not presented sufficient evidence in opposing summary 14 judgment to create a genuine issue as to whether Naomi’s House is a dwelling. As noted in 15 Woods, the sole case relied upon by plaintiffs, “the length of time one expects to live in a 16 particular place . . . is not the exclusive factor in determining whether the place is a residence or a 17 ‘dwelling.’” 884 F. Supp. at 1173. Thus, while the length of time one expects to stay at a shelter 18 13 The parties also agree that the longest period of time that any client has ever stayed at Naomi’s 19 House—which occurred “prior to D.N. entering the program”—is eight years. (PSF-Carranza at ¶ 17.) The uncontroverted evidence shows that defendants subsequently took steps “way back 20 then” to ensure that “does not happen again.” (See id.; Kapetan Decl. at ¶ 3, Ex. 1 (Deposition of Sara Mirhadi, Programs Officer of Defendants) at 61:22–25.) Of course, “[i]t is the period the 21 Shelter was intended or designed to be available to [plaintiffs] that is relevant, not the amount of 22 time the Shelter may have been available to others.” Smith v. The Salvation Army, No. 13-114-J, 2015 WL 5008261, at *4 (W.D. Pa. Aug. 20, 2015) (applying the Third Circuit’s test in 23 concluding that a shelter was not a dwelling under the FHA). Still, if similarly situated clients stay at the same facility during the same time period—one of the groups staying for a much 24 longer period of time than the other––that might well be relevant in determining whether the facility was a dwelling. See Hughes, 396 F. Supp. at 549 (plain meaning); see also Lakeside 25 Resort, 455 F.3d at 158 (two-factor test). Here, because no plaintiff has presented evidence 26 showing that her stay overlapped at all with the client who stayed at Naomi’s House for eight years, the length of that client’s stay is not relevant. (See PSF-Carranza at ¶ 17.) However, 27 because each plaintiff has shown that her stay overlapped, at least to some extent, with the client who stayed for one non-consecutive year, the length of that client’s stay is relevant to resolution 28 of this issue here. (See id. at ¶ 18.) 32 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 33 of 46 1 is relevant to the analysis, it is not dispositive. Instead, the length of time a client may stay at a 2 shelter is but one factor of the Third Circuit’s test, which also asks whether the shelter was 3 intended or designed for a prolonged stay and whether clients would view the shelter as a place to 4 return during that stay. See Lakeside Resort, 455 F.3d at 158. Here, the parties agree that 5 Naomi’s House, which is a part of Poverello House, “serves the homeless” by providing 6 “temporary shelter . . . for those seeking and hoping to end their homelessness.” (DSF-Carranza 7 at ¶ 1 (emphasis added).) Furthermore, the parties also agree that Naomi’s House carries out its 8 mission by assigning a case manager to each client who is responsible for “formulating a housing 9 and service plan, and those plans are how to get [the client] out of homelessness.” (PSF-Carranza 10 at ¶ 10 (emphasis added).) In this regard, it appears the parties agree that Naomi’s House is “a 11 place of temporary sojourn or transient visit.” See Hughes, 396 F. Supp. at 549. Stated 12 differently and applying the first prong of the Third Circuit’s rule, Naomi’s House is not 13 “intended or designed for” individuals to stay “for any significant period of time[.]” See 14 Lakeside, 455 F.3d at 158. Additionally, plaintiffs have not presented evidence satisfying the 15 second prong of the Third Circuit’s test either. Aside from the single client who stayed at 16 Naomi’s House “off and on” for about a year, there is no other evidence before the court on 17 summary judgment suggesting that Naomi’s House was generally “view[ed]” by its clients “as a 18 place to return to” during their stays of “significant” length. See id. For example, plaintiffs did 19 not submit their own declarations explaining if they viewed Naomi’s House as a place “to which 20 [they] intend[ed] to return[,]” see Hughes, 396 F. Supp. at 549, nor do they provide the average 21 length clients stayed at Naomi’s House more generally. Although Naomi’s House did not impose 22 a maximum length of stay on its clients, which would seem to weigh in favor of plaintiffs on 23 summary judgment, the practical realities of Naomi’s House paint a different picture. That 24 plaintiffs, who have completed discovery in this case, were only able to muster just a single client 25 who stayed at Naomi’s House sporadically for about a year, actually suggests that the shelter was 26 ///// 27 ///// 28 ///// 33 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 34 of 46 1 not viewed as a residence by many (if not almost all) of its clients.14 Applying the plain meaning 2 analysis in Hughes as well as the two-prong test in Lakeside, the court concludes that Naomi’s 3 House—where the allegations giving rise to this lawsuit occurred—is not a dwelling subject to 4 the FHA. The leading district court decision in the Ninth Circuit—Intermountain—supports this 5 conclusion. Therefore, defendants’ motion for summary judgment as to plaintiffs’ FHA claims 6 will be granted on this basis. 7 2. D.N.’s Alleged Harassment Was Not “Sufficiently Severe or Pervasive” 8 Summary judgment in favor of defendants on plaintiffs’ FHA claims is also warranted on 9 another ground. Some courts, including judges in this district, allow sexual harassment claims 10 brought under the FHA if the alleged harassment creates a “hostile housing environment.” See, 11 e.g., Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1290 (E.D. Cal. 2013); see also Gamble v. City 12 of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (explaining that the analysis for discrimination 13 claims under Title VII applies to claims of discrimination under the FHA). To prevail on such a 14 claim, a plaintiff must demonstrate that she was subjected to: (i) unwelcome (ii) sexual 15 harassment (iii) that was sufficiently severe or pervasive as to deprive the plaintiff the right to 16 enjoy his or her home, and (iv) defendant knew or should have known of the harassment in 17 question but failed to take prompt remedial action. Salisbury, 974 F. Supp. 2d at 1290. Courts 18 must look to “all the circumstances” in determining if the alleged conduct was severe or 19 pervasive, including “the frequency of the discriminatory conduct; its severity; whether it is 20 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 21 interferes with” a plaintiff’s right to enjoy his or her home. See Harris v. Forklift Sys., Inc., 510 22 U.S. 17, 23 (1993). 23 The Supreme Court has explained that the “standards for judging hostility are sufficiently 24 demanding to ensure that Title VII does not become a ‘general civility code.’” Faragher v. City 25 14 26 The same logic applies with equal force even if the court were to consider relevant the other client who stayed at Naomi’s House for eight years. See supra note 13. Two lengthy stays—one 27 occurring “off and on” and the other prompting changes at the facility to prevent such stays— does not convince the court that Naomi’s House is a dwelling for purposes of the FHA as that 28 term has been defined under the law. 34 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 35 of 46 1 of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). “Properly applied, they will filter out 2 complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of 3 abusive language, gender-related jokes, and occasional teasing.’” Id. (citation omitted); see also 4 Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) (finding no hostile 5 working environment based on “isolated incidents of sexual horseplay”); Jordan v. Clark, 847 6 F.2d 1368, 1374–75 (9th Cir. 1988) (telling “off-color” jokes did not create an abusive working 7 environment). The Ninth Circuit has explained that “the required showing of severity or 8 seriousness of the harassing conduct varies inversely with the pervasiveness of the conduct.” 9 Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (citation omitted). In other 10 words, “the more severe harassment, the less need to show a repetitive series of incidents.” Id. 11 Two relatively recent Ninth Circuit decisions help clarify the line between sufficient and 12 insufficient conduct to prevail on such a claim under Title VII. In Westendorf v. West Coast 13 Contractors of Nevada, Incorporated, the Ninth Circuit affirmed the district court’s grant of 14 summary judgment in favor of the employer on a work-place discrimination claim brought under 15 Title VII after concluding that four “crude and offensive remarks,” including comments about 16 breast sizes, tampons and orgasms, and gender-based stereotypes, were not “sufficiently severe or 17 pervasive” for the plaintiff to demonstrate that she was “subject . . . to an abusive environment.” 18 712 F.3d 417, 422 (9th Cir. 2013). Conversely, in E.E.O.C. v. Prospect Airport Services, 19 Incorporated, the Ninth Circuit reversed the dismissal of a work-place discrimination claim 20 brought under Title VII. 621 F.3d 991, 1000 (9th Cir. 2010). There, an employee, Ms. Munoz, 21 made several sexual advances towards another employee, Mr. Lamas. Ms. Munoz “propositioned 22 him for sex[,]” “wrote to him that she dreamed of him in a bath, that she gave good ‘body wash,’ 23 and that she wanted him ‘sexually.’” Id. at 997. But it didn’t stop there. Ms. Munoz “performed 24 gestures simulating fellatio, and give him a photograph of herself emphasizing her breasts and 25 possibly without clothes on.” Id. “After she recruited coworkers to pressure [Mr.] Lamas, they 26 mocked him by suggesting that he was homosexual.” Id. Simply put, Ms. “Munoz’s pursuit of 27 [Mr.] Lamas was relentless.” Id. at 1000. Mr. Lamas “described over six months of constant 28 (and often daily) sexual pressure and humiliation” at his workplace. Id. Based on these facts, the 35 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 36 of 46 1 Ninth Circuit concluded that genuine issues of material fact precluded summary judgment and 2 reversed the district court’s dismissal of Mr. Lamas’ claim. 3 In Title VII cases, the Supreme Court has directed courts to give proper consideration to 4 the circumstances in which the allegations of discrimination arise. More specifically, the inquiry 5 in harassment cases “requires careful consideration of the social context in which particular 6 behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 7 U.S. 75, 81 (1998). As the Supreme Court has explained: 8 A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks 9 him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the 10 coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a 11 constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of 12 the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and 13 juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person 14 in the plaintiff’s position would find severely hostile or abusive. 15 Id. at 81–82. 16 Construing the evidence presented on summary judgment here in the light most favorable 17 to plaintiffs, the court concludes that there is no genuine issue as to whether D.N.’s conduct was 18 “sufficiently severe or hostile” as to deprive plaintiffs of their right to enjoy the services offered 19 by Naomi’s House. 20 The court will begin with the more straightforward analysis first. It is undisputed that 21 plaintiffs Carranza and Wade never complained that D.N. ever harassed them in any manner, 22 aside from D.N.’s mere presence in Naomi’s House. In her first complaint, plaintiff Carranza 23 simply reported that she had a problem showering with D.N. (DSF-Carranza at ¶ 25.) The 24 second complaint, initiated by a staff member, followed an incident where plaintiff Carranza 25 yelled at D.N. for using the shower. (Id. at ¶ 26.) Indeed, plaintiff Carranza was reminded by 26 Naomi’s House not to yell at others. (Id.) The parties agree that D.N. never made any “sexual 27 advances towards” plaintiff Carranza and D.N. never touched her “in a manner she considered 28 offensive or harassing.” (Id. at ¶¶ 38–39.) On the other hand, plaintiff Wade never made any 36 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 37 of 46 1 complaint about D.N. whatsoever. (DSF-Wade at ¶ 25.) She claims she did not do so because 2 she was in fear that she would be kicked out of Naomi’s House, but she provides no evidentiary 3 support for this conclusory claim, such as any evidence indicating that other clients who 4 complained of D.N.’s behavior “end[ed] up on the street.” (See id.) Still, plaintiff Wade never 5 claimed in her deposition testimony that she was harassed directly by D.N. Further, it is 6 undisputed that D.N. never touched plaintiff Wade “in a manner she considered offensive or 7 harassing.” (Id. at ¶ 34.) The circumstances surrounding the alleged sexual harassment directed 8 at plaintiffs Carranza and Wade, viewed in a light most favorable to them, do not even rise to the 9 level of “sporadic use of abusive language, gender-related jokes, and occasional teasing”—which 10 is, to be sure, insufficient to prevail on a sexual harassment claim brought under Title VII. See 11 Faragher, 524 U.S. at 788 (citation omitted). Neither plaintiffs Carranza nor Wade oppose 12 summary judgment with any evidence from which a jury could reasonably infer that they were 13 subjected to “sufficiently severe and pervasive” sexual harassment. See Westendorf, 712 F.3d at 14 422. Therefore, defendants’ motion for summary judgment with respect to the FHA claims 15 brought by plaintiffs Carranza and Wade will be granted. 16 The evidence presented by plaintiff Stroud and McGee in opposing summary judgment as 17 to their FHA claims presents a closer call but is ultimately insufficient to prevail on those claims 18 as well, even viewing the evidence in a light most favorable to them. As an initial matter, the 19 court must consider Naomi’s House’s “social context” in determining whether D.N.’s alleged 20 harassment rose to the level of being “sufficiently severe and pervasive” so as to deprive plaintiffs 21 of their right to enjoy the services offered by the shelter. See Oncale, 523 U.S. at 81. It is 22 undisputed that Naomi’s House is a shelter intended to serve “hard-to-reach homeless persons 23 with severe mental illness who are typically unable or too unwell to participate in other housing 24 or supportive services[.]” (DSF-Carranza at ¶ 4.) For its clients, Naomi’s House is not a place of 25 employment as is the case in many of the sexual-harassment cases. See, e.g., Manatt v. Bank of 26 America, NA, 339 F.3d 792, 794–95 (9th Cir. 2003) (financier at a large national bank); Nichols v. 27 Azteca Rest. Enters., Inc., 356 F.3d 864, 870 (9th Cir. 2001) (restaurant host); Anderson v. Reno, 28 190 F.3d 930, 932 (9th Cir. 1999) (Federal Bureau of Investigation agent), abrogated on other 37 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 38 of 46 1 grounds, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Draper v. Coeur 2 Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 1998) (mining company employee). Instead, the 3 parties agree that Naomi’s House is a place of refuge for individuals who are facing some of the 4 most significant hardships life has to offer. Moreover, the facts here are not similar to the typical 5 sexual-harassment case brought in the housing context, where the allegations usually focus on the 6 statements and conduct of a property manager or landlord—not another tenant who lives in the 7 same unit as the victim. See, e.g., Salisbury, 974 F. Supp. 2d at 1284 (involving a resident of a 8 mobile home park allegedly harassed by property managers); Macias v. Lange, No. 14cv2763- 9 GPC(JMA), 2016 WL 1274762, at *2 (S.D. Cal. Apr. 1, 2016) (involving a landlord making 10 unannounced visits to units and requiring in-person rent payments to facilitate harassment); 11 Sharon v. New Directions Inc., No. 2:15–cv–04239–SVW–E, 2016 WL 158223, at *1–2 (C.D. 12 Cal. Jan. 12, 2016) (involving a veteran suffering from PTSD residing at a supportive housing 13 facility for veterans who was harassed by property manager and security guard). In contrast, D.N. 14 was not a property manager or landlord for Naomi’s House, but was a guest at the shelter from 15 June 2017 to April 2018. (DSF-Carranza at ¶ 18.) 16 In light of the above, it is not entirely clear where the court should set the threshold for 17 “sufficiently severe and pervasive” harassment in the context of this case, which involves a 18 shelter for women in need, some of whom are suffering from and living with mental health issues. 19 At the same time, unlike in many employment and housing harassment cases, the individual who 20 allegedly harassed the plaintiffs in this case can in no way be considered an agent of defendants. 21 The facts of this case must be considered in this unique context. In doing so, and viewing the 22 evidence presented on summary judgment in the light most favorable to plaintiffs Stroud and 23 McGee, the evidence does not support the conclusion that they were subject to a “sufficiently 24 severe and pervasive” hostile-housing environment at Naomi’s House. 25 Beginning with plaintiff Stroud, she reported on June 7, 2017 that D.N. said the two could 26 be together after they left Naomi’s House. (DSF-Stroud at ¶ 27.) On June 16, 2017, plaintiff 27 Stroud reported that D.N. made a sexual comment of an unspecified nature and showed plaintiff a 28 picture of D.N. wearing a bra and “with her ‘private tucked’” between her legs. (Id. at ¶ 28.) It is 38 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 39 of 46 1 undisputed that D.N. never touched plaintiff Stroud “in a manner she considered offensive or 2 harassing.” (Id. at ¶ 39.) Thus, plaintiff Stroud’s allegations are confined to a period of 3 approximately one week. Because these incidents were not pervasive, they must therefore have 4 been egregious for plaintiff to maintain her claim. See Brooks, 229 F.3d at 926 (explaining 5 severity is inversely related to pervasiveness for a sufficient showing under Title VII). Even 6 viewing the evidence in the light most favorable to plaintiff Stroud, these two incidents upon 7 which her claim is based are not sufficiently severe. Propositioning another individual in a non- 8 sexual manner to be in a relationship sometime in the future and showing that individual a picture 9 of a sexual nature about a week later is, at most, two “isolated incidents of sexual horseplay.” See 10 Candelore, 975 F.2d at 590; see also Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 11 1034 (9th Cir. 2005) (“Simple teasing, offhand comments, and isolated incidents (unless 12 extremely serious) will not amount to discriminatory changes in the terms and conditions of 13 employment.” (internal quotation marks omitted)). This result does not change even if the court 14 assumes the picture D.N. showed plaintiff Stroud involved nudity.15 Most courts have held that a 15 single sexual picture, including one depicting pornography, is insufficient to maintain a Title VII 16 claim. See, e.g., Alioto v. Associated Exch. Inc., 482 Fed. App’x 222, 223 (9th Cir. 2012) 17 (affirming no finding of a hostile working environment because, in part, “[t]here was no evidence 18 of widespread pornography” and the employer took corrective action after a coworker showed the 19 plaintiff a single “pornographic picture”).16 And courts have held that multiple pictures of a 20 sexual nature, including ones with nudity, are also insufficient to maintain a viable Title VII 21 claim. See Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 315, 319 (2d Cir. 1999) (finding 22 no hostile working environment where allegations included seven pictures of semi-clothed or 23 24 15 Although plaintiff Stroud never asserted the pictures involved nudity, the court must construe this fact in a light most favorable to plaintiff. (See Doc. Nos. 57-6 (Declaration of Sara Mirhadi 25 for Plaintiff Stroud) at ¶ 22, Ex. L; 57-8 at 89 (Copy of Complaint Filed by Plaintiff Stroud) 26 (making no mention of nudity); 57-4 (Declaration of Cynthia Lawrence for Plaintiff Stroud) at ¶ 8, Ex. U; 57-10 at 52–53 (Deposition Transcript for Plaintiff Stroud: same).) 27 16 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 39 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 40 of 46 1 nude men posted in the workplace, and one instance of “lewd banter” where the plaintiff heard 2 one co-worker ask another “do you want to do it now?” while “point[ing] at his crotch”). While 3 D.N.’s behavior may have been inappropriate, even viewing the evidence in a light most 4 favorable to plaintiff Stroud, it did not rise to the level sufficient to prevail on a sexual- 5 harassment claim. No reasonable jury could conclude under the law as it exists that D.N.’s 6 conduct was “sufficiently severe and pervasive” as to deprive plaintiff of the right to use the 7 services at Naomi’s House. Therefore, defendants’ motion for summary judgement will be 8 granted as to plaintiff Stroud’s FHA claim as well. 9 Plaintiff McGee’s allegations and evidence present the closest call on summary judgment 10 in the court’s view because she registered the most complaints about D.N.’s behavior. On June 11 18, 2017, plaintiff McGee made the following complaints: D.N. said she had a “sexting session” 12 earlier with an unspecified person and had “69 orgasms”; D.N. said she was a lesbian and wanted 13 to “suck a man dry”; and D.N. showed pictures of sexually-posed women on her phone. (DSF- 14 McGee at ¶ 25.) After making that complaint, and aside from complaints about it being unfair to 15 be required to shower with D.N.,17 plaintiff McGee did not make another complaint alleging 16 harassment until 10 months later. (See id. at ¶¶ 26, 28–29.) On April 5, 2018, plaintiff McGee 17 complained that D.N. said that plaintiff’s breasts become larger when she is stressed and smaller 18 when not stressed. (Id. at ¶ 30.) The same day, plaintiff McGee also reported D.N.’s 19 inappropriate treatment of another client—named “L” and who is not a party to this action. (Id.) 20 After “L” formally complained, Naomi’s House expelled D.N. for the night. (Id.) The parties 21 have not described “L”’s allegations in detail in connection with the pending motion. However, 22 based on the court’s review of the evidence before it on summary judgment, it appears the 23 allegations against “L” are as follows: D.N. started “gravitating” towards “L”; D.N. peered into 24 “L”’s room; D.N. exposed her genitals to “L” when the two were shopping at Walmart; and D.N. 25 showed “L” a YouTube video of her shaving her legs and “rubbing [her]self” in an unspecified 26 manner. (PSF-McGee at ¶¶ 40–42.) The parties agree that D.N. never touched plaintiff McGee 27 17 As discussed above, Naomi’s House addressed these complaints by separating plaintiff Stroud 28 and D.N. into different shower groups. 40 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 41 of 46 1 “in a manner she considered offensive or harassing” and plaintiff McGee “never saw D.N. touch 2 anyone.” (DSF-McGee at ¶¶ 41–42.) 3 Here, although it is a closer question than with the other plaintiffs, the court concludes that 4 plaintiff McGee’s allegations, viewed in a light most favorable to her, do not rise to the level of 5 being “sufficiently severe and pervasive” so as to deprive her of the right to enjoy the services 6 offered by Naomi’s House. The relevant allegations of harassment occurred on two separate 7 occasions ten months apart: the first occurred on June 18, 2017 and alleged that D.N. harassed 8 plaintiff McGee in several ways; and the second occurred on April 5, 2018 and alleged that D.N. 9 made one inappropriate comment to plaintiff McGee but also reported that D.N. was harassing 10 another client of Naomi’s House who is not a party to this lawsuit. First, D.N.’s comments about 11 her desire to perform oral sex on a man and experiencing orgasms are not severe. Crucially, they 12 were not directed at plaintiff McGee and involved no touching whatsoever. See Westendorf, 712 13 F.3d at 419 (asking employee about her experience with orgasms, in combination with other 14 allegations, is not actionable, particularly given that the harassment “was not physical”). Second, 15 for purposes of the pending motion, the court will construe D.N.’s comment about plaintiff 16 McGee’s breast size as being more demeaning than other comments made by D.N to the other 17 plaintiffs in this litigation. Ultimately, however, that single comment, which occurred over a year 18 after plaintiff’s initial complaint, was not particularly severe either. See id. at 419 (asking 19 plaintiff if she was intimidated by another woman’s breast size is not severe enough to state a 20 potentially meritorious claim even in combination with other sexual remarks). 21 D.N. did show plaintiff McGee several sexually-charged pictures. Again, although 22 plaintiff McGee never explicitly asserted these pictures involved nudity, the court must view this 23 evidence in the light most favorable to her. (See Doc. Nos. 56-6 (Declaration of Sara Mirhadi for 24 Plaintiff McGee) at ¶ 19, Ex. J; 56-8 at 85 (Copy of Complaint Filed by Plaintiff McGee: making 25 no mention of nudity).) Nonetheless, as noted above, the display of a few sexual pictures— 26 including ones with nudity—is not a sufficient basis upon which to maintain a claim under Title 27 VII even with some other allegations of sexual discrimination. See Brennan, 192 F.3d at 315, 28 319; see also Lipsett v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988) (finding a 41 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 42 of 46 1 hostile working environment due to an onslaught of sexual harassment involving, among other 2 things, employees posting numerous sexually-explicit pictures or drawings in the workplace, 3 including explicit drawings of the plaintiff’s body and lists of sexually charged and vulgar 4 nicknames of plaintiff and other female employees). Plaintiff McGee’s allegation is that D.N. 5 showed her sexually-charged pictures—with little details provided—on just one occasion. After 6 the first reported complaint, there is no evidence that D.N. engaged in this type of behavior again. 7 See Alioto, 482 Fed. App’x at 223 (finding that persuasive “corrective action” was taken after a 8 pornographic picture was shown on one occasion). Under existing law, D.N.’s conduct did not 9 rise to the level of being actionable under Title VII, even viewing the allegations in a light most 10 favorable to plaintiff McGee. 11 Finally, the allegations surrounding “L” do not save plaintiff McGee’s sexual harassment 12 claim. As a threshold matter, the court observes that while plaintiff McGee complained on behalf 13 of “L,” it remains unclear exactly what plaintiff McGee knew about D.N.’s conduct toward “L” 14 because the parties do not provide many details in this regard in connection with the pending 15 motions. (See PSF-McGee at ¶ 30 (“Plaintiff . . . made allegations about D.N. was allegedly 16 treating” “L.”).) Still, even if plaintiff McGee had full knowledge of the allegations surrounding 17 D.N.’s alleged harassment directed at “L,” some of those allegations are vague and some provide 18 limited support to plaintiff McGee’s own claim. For example, the court is unaware of any 19 decision finding that an individual “gravitating” towards another, without any other details, is 20 inappropriate, let alone actionable harassment. Further, an allegation of one client “peering” into 21 another client’s room inside of a homeless shelter, where clients sleep and shower in close 22 proximity to one another, is at best vague. So too is the allegation that D.N. showed a video of 23 her shaving her legs and rubbing herself in an unspecified manner. But even viewing the two 24 allegations in a light most favorable to plaintiff McGee that these two incidents constituted 25 harassment, they are not egregious enough to demonstrate a “sufficiently severe and pervasive” 26 hostile-housing environment under the case law. Regarding the most problematic of 27 allegations—D.N. exposing her genitals to “L”—the parties agree that this incident occurred not 28 at Naomi’s House but at a Walmart store. (PSF-McGee at ¶ 41.) As a result, the legal relevance 42 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 43 of 46 1 of this incident is questionable. Some courts have held that conduct occurring away from the 2 workplace has limited legal relevance in Title VII cases. See Candelore, 975 F.2d at 590. Other 3 courts have held that such conduct is relevant “when an employee is forced to work for, or in 4 close proximity to, someone who is harassing her outside the workplace . . .” Duggins ex rel. 5 Duggins v. Steak’N Shake, Inc., 3 Fed. App’x 302, 311 (6th Cir. 2001); see also Ellison v. Brady, 6 924 F.2d 872, 882 (9th Cir. 1991). Naomi’s House did not require any of the plaintiffs to be in 7 close proximity to D.N. (See DSF-Carranza at ¶ 14 (“Any individual utilizing the services 8 provided by Defendants are free to accept or reject those services at any time.”). Thus, the same 9 logic that makes harassment outside the workplace relevant in employment cases under Title VII, 10 does not appear to apply with equal force in this case concerning a nonprofit homeless shelter 11 operating entirely for the benefit of its clients who incur no cost whatsoever in using the services 12 offered. (See id. at ¶ 15.) Moreover, in instances where harassment occurring outside the 13 workplace is relevant, the harassment at issue was directed at the plaintiff, not a nonparty to the 14 litigation. See Duggins ex rel. Duggins, 3 Fed. App’x at 304–05; Ellison, 924 F.2d at 874. The 15 Walmart incident, though problematic, was not directed at plaintiff McGee. Although the court 16 finds it somewhat relevant to her hostile-housing-environment claim, it must still be assessed in 17 light of D.N.’s harassment directed at plaintiff McGee specifically. 18 Viewing the evidence in a light most favorable to plaintiff McGee and considering all of 19 her allegations and evidence together—two incidents (one of which included several complaints) 20 occurring almost a year apart and harassment directed at “L”—the court concludes that D.N.’s 21 sexual harassment was not “sufficiently severe or pervasive” to maintain a hostile-housing 22 environment claim. Plaintiff McGee does not cite any decision holding that allegations similar to 23 hers—taking place in any sort of setting—are actionable under Title VII, the FHA, or any other 24 federal law. (See passim Doc. No. 64 at 18–19.) Accordingly, defendants’ motion for summary 25 judgment with respect to plaintiff McGee’s FHA claim will also be granted. 26 For the reasons explained above, summary judgment in favor of defendants as to 27 plaintiffs’ FHA claims is warranted on two separate grounds. First, Naomi’s House, which is 28 where the conduct giving rise to this litigation occurred, is not a “dwelling” under the FHA. 43 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 44 of 46 1 Second, assuming Naomi’s House was a “dwelling,” each plaintiff has failed to oppose summary 2 judgment by coming forward with evidence upon which a jury could reasonably conclude that she 3 was subjected to “sufficiently severe and pervasive” sexual harassment at Naomi’s House. 4 Therefore, defendants’ motions for summary judgment as to all FHA claims will also be granted 5 on both of these independent grounds. 6 E. Fair Housing and Employment Act 7 The analysis for sexual harassment claims brought under California’s FEHA “mirror[s] 8 the elements and analysis under the FHA and under Title VII.” Salisbury, 974 F. Supp. 2d at 9 1293. Thus, to prevail on a FEHA claim based on sexual harassment in the housing context, one 10 element the plaintiff must prove is “that the harassment complained of was sufficiently severe or 11 pervasive so as to alter or interfere unreasonably with the condition of the housing arrangement . . 12 . .” Brown v. Smith, 55 Cal. App. 4th 767, 783 (1997). Defendants argue that because plaintiffs 13 cannot maintain a claim under the FHA, their FEHA claims must also be rejected. (Doc. No. 56- 14 1 at 28–29.) Plaintiffs incorporate their arguments as to their FHA claim into the section of their 15 opposition addressing the FEHA claim, and do not provide any additional arguments or evidence 16 in opposing summary judgment on the FEHA claim. (See Doc. Nos. 63–66 at 20.) Because the 17 court has concluded above that D.N.’s conduct did not rise to the level of being “sufficiently 18 severe and pervasive” for any plaintiffs to prevail on their FHA claims, summary judgment in 19 favor of defendants as to all of the plaintiffs FEHA claims is warranted as well. 20 F. Intrusion into Private Affairs 21 A claim of intrusion into private affairs has two elements: (1) “the defendant must 22 intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable 23 expectation of privacy”; and (2) “the intrusion must occur in a manner highly offensive to a 24 reasonable person.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286 (2009). With respect to 25 the first element, “the defendant must have ‘penetrated some zone of physical or sensory privacy 26 . . .’ in violation of the law or social norms.” Id. (quoting Shulman v. Grp. W Prods., Inc., 18 27 Cal. 4th 200, 232 (1998)). A plaintiff’s “expectation of privacy must be ‘objectively 28 reasonable.’” Id. (citation omitted). The second element of an intrusion claim “essentially 44 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 45 of 46 1 involves a ‘policy’ determination as to whether the alleged intrusion is ‘highly offensive’ under 2 the particular circumstances.” Id. at 287 (citation omitted). “Relevant factors include the degree 3 and setting of the intrusion, and the intruder’s motives and objectives.” Id. There is no bright- 4 line rule defining “highly offensive” intrusions. Id. Instead, “each case must be taken on its 5 facts.” Id. (quoting Shulman, 18 Cal. 4th at 237). 6 Here, defendants argue that plaintiffs cannot demonstrate there is a genuine issue of 7 material fact with respect to their claim for intrusion into private affairs. (Doc. No. 56-1 at 29.) 8 The court agrees. The entire crux of the instant litigation is that D.N. purportedly intruded the 9 privacy of plaintiffs. (See, e.g., Compl. at ¶¶ 22 (“D.N. was allowed to shower with Plaintiffs.”), 10 39 (“Defendants intruded and/or allowed D.N. to intentionally intrude into Plaintiffs[’] zone of 11 privacy.”). There is no evidence before the court on summary judgment suggesting that 12 defendants (not D.N.) invaded plaintiffs’ reasonable expectations of privacy. To the extent 13 plaintiffs attempt to rely on a theory that defendants “allowed D.N. to intentionally intrude” into 14 their privacy—as alleged in their complaint—that theory fails for a simple reason. A claim for 15 intrusion requires the “defendant [to] intentionally intrude” a plaintiff’s privacy. See Hernandez, 16 47 Cal. 4th at 286. However, D.N. is not a named defendant in this litigation and it is thus 17 unnecessary for the court to decide whether D.N. invaded plaintiffs’ privacy. Nor does the 18 complaint assert any aiding-and-abetting theory pursuant to which liability could be imposed on 19 defendants with respect to this claim. Indeed, plaintiffs do not oppose the granting of defendants’ 20 motion for summary judgment on their claims for intrusion into private affairs. (See passim Doc. 21 Nos. 63–66.) Accordingly, the court will grant defendants’ motion for summary judgment as to 22 the intrusion claim on the basis that plaintiffs have failed to come forward with any evidence 23 demonstrating that defendants may be held liable with respect to that claim. 24 G. Punitive Damages 25 Because the court will grant the motions to summary judgment in favor of defendants as 26 to all of plaintiffs’ remaining claims, it need not address if the evidence supports a claim for 27 punitive damages under the FHA or California law. 28 ///// 45 Case 1:18-cv-00768-DAD-SAB Document 75 Filed 08/13/21 Page 46 of 46 1 CONCLUSION 2 For all of the reasons explained above: 3 1. Defendants’ motion for summary judgment as to plaintiff Carranza (Doc. No. 55) is 4 granted in its entirety; 5 2. Defendants’ motion for summary judgment as to plaintiff McGee (Doc. No. 56) is granted 6 in its entirety; 7 3. Defendant’s motion for summary judgment as to plaintiff Stroud (Doc. No. 57) is granted 8 in its entirety; 9 4. Defendant’s motion for summary judgment as to plaintiff Wade (Doc. No. 58) is granted 10 in its entirety; and 11 5. The Clerk of the Court is directed to assign a District Judge to this case for purposes of 12 closing this case and, upon doing so, to enter judgment in favor of defendants and close 13 this case. 14 IT IS SO ORDERED. 15 Dated: August 12, 2021 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 46