Parham v. Cih Properties, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EVELYN PARHAM, )
)
Plaintiff, )
)
V. ) Civil Case No. 14—1706 (RJL)
)
CIH PROPERTIES, INC. et al., )
> FILED
Defendants. )
DEC 09 2015
Clerk, US. District & Bankruptcy
MEMORAND INION Courts for the District of Columbia
December , 2015 [#23]
Plaintiff Evelyn Parham (“plaintiff”) brings this suit against CIH Properties, Inc.
and Dupont Park Apartments Joint Venture (together “defendants”), seeking damages
based on allegations that her car was towed and never returned to her in violation of
various federal and local laws. See generally Compl. [Dkt. #1-1]. Before this Court is
defendants’ Motion for Summary Judgment [Dkt. #23] (“Defs’ Mot”). Upon
consideration of the parties’ pleadings, relevant law, and the entire record in this case,
defendants’ motion is GRANTED.
BACKGROUND
For over thirty years, plaintiff has resided with her mother in an apartment at
Banneker Place, an apartment complex owned and operated by defendants. P1.’s Opp’n
to Defs.’ Mot. for Summ. J. W 1, 15 [Dkt. #24] (“PL’s Opp’n”); Defs.’ Mot. 1. This case
arises out of an incident on or before September 30, 2011 when plaintiff’s car, a 1987
Mercedes bearing a DC. handicap tag, was towed from the apartment complex parking
lot. Pl.’s Opp’n W 3, 5.
When plaintiff discovered that her car had been towed, she inquired with the rental
office as to its location and was informed by Paula Jones, an employee of defendants, that
the car had been removed by the DC. Metropolitan Police Department (“MPD”). Pl.’s
Opp’n fl 6. After receiving this information, plaintiff went to the police station to locate
her car, but police records showed that MPD had not, in fact, taken possession of her car.
Pl.’s Opp’n 1i 7. Returning to the rental office, plaintiff learned from a different staff
member, Carolyn Gill, what had actually transpired—the rental office had called a towing
company to remove several cars from the apartment complex parking lot. Pl.’s Opp’n 1i
8. Indeed, on September 29, 2011, Ms. Gill authorized a company called “Big Es
Towing” to tow cars that had been ticketed for “dead tags” six days prior and to take
them to the junkyard “to be crushed for scrap metal.” See Defs.’ Mot. Ex. 2 [Dkt. #23-2].
Citing a “dead tag” ticket issued for a Mercedes on September 23, 2011, defendants
believe that one of the cars towed by Big Es Towing may have been plaintiffs car.
Defs.’ Mot. 2 & Ex. 1 [Dkt. #23-1]. Plaintiff, however, contends that her tags were up—
to-date and that the tag number recorded on the ticket is inconsistent with the paper tag
on her car at the time. P1.’s Opp’n 1] 16. Although the rental office staff provided
plaintiff with the name and telephone number of the man who they believe towed her car,
plaintiff has been unable to reach anyone at that number and does not know the location
of the junkyard. Pl.’s Opp’n ll 10. Not surprisingly, plaintiff 5 car was never returned to
her. Pl.’s Opp’n fil 11.
sufficient to defeat a motion for summary judgment). Plaintiffs bare claims that she
“suffered from a few car accidents and was then disabled from working” and that she has
a “handicap tag in her car since 1998” are not sufficient to demonstrate that she has a
“disability” as specifically defined by the relevant statutes and that defendants were, or
should have been, aware of that disability. P1.’s Opp’n 11 24. Moreover, plaintiff has
failed to demonstrate that she made a request for a reasonable accommodation that
defendants denied. Her last-minute claims that she has “for years” sent written requests
to defendants for a first-floor apartment and “easy access parking space” do not suffice.
Pl.’s Opp’n 1i 27.
CONCLUSION
For the foregoing reasons, defendants’ Motion for Summary Judgment is
GRANTED. A separate Order consistent with this decision accompanies this
Memorandum Opinion.
RICHA ON
United States District Judge
ll
Just over three years after these events unfolded, plaintiff brought this action in the
Superior Court for the District of Columbia seeking to recover the value of her car, treble
damages pursuant to the DC Consumer Protection Act, and punitive damages. See
Compl. at 5. Defendants removed the action to this Court, Notice of Removal [Dkt. #1],
and now move for summary judgment, see Defs.’ Mot.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial
burden of demonstrating the absence of a genuine issue of material fact to be decided
with respect to any essential element of the nonmovant’s claim. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmovant
must set forth specific facts showing that there is a genuine issue for trial. See id. at 323-
24. In evaluating a motion for summary judgment, the Court must View the facts in the
light most favorable to the nonmovant, giving it the benefit of all justifiable inferences
derived from the evidence in the record. Anderson v. Liberty Lobby, Inc, 477 U.S. 242,
255 (1986). The nonmovant’s opposition, however, may not rest upon the mere
allegations or denials of the pleadings, but must be supported by affidavits or other
competent evidence. Celotex, 477 U.S. at 324. Thus, by pointing to the absence of
evidence sufficient to establish the existence of an element essential to the nonmovant’s
case, a moving party may succeed on summary judgment. Id. at 325.
ANALYSIS
Defendants move for summary judgment arguing that the record does not contain
evidence sufficient to establish the essential elements of plaintiff s claims. See generally
Defs.’ Mot. I agree.
A. Breach of Contract
Plaintiff” s first cause of action is for breach of contract. See Compl. W 24-25.
She supports her claim, however, not with affidavits or competent evidence, but mere
allegations that because she was a life-long tenant of Banneker Place, defendants
“breached the contract” when they towed her car “out of [the] private parking lot without
justifiable reason.” Pl.’s Opp’n ‘H 15. Such arguments are too slender a reed upon which
to base a property claim of this genre. As defendants point out, plaintiff has utterly failed
to provide any competent evidence that a contract existed between defendants and
herself. See Defs.’ Mot. 2. Indeed, the only potentially relevant contract now before this
Court is a 1972 lease agreement signed by Mr. Franklin E. Parham, which explicitly
states that parking is not covered by the agreement: “Lesee agrees that parking
accommodations are not included in the rental, nor are parking accommodations to be
furnished to the Lesee unless a separate express agreement in writing with respect thereto
’
is made between Lessor and Lesee.” Defs.’ Reply in Supp. of Mot. for Summ. J. (“Defs
Reply”) Ex. 1 at l [Dkt. #25—1].1
1 Although plaintiff’s contract claim must be dismissed, defendants’ additional assertion—that
the towing of plaintiff’s car was “in compliance with DC. law,” Defs.’ Mot. 2—is equally
unsupported. Defendants admit that on September 29, 2011, they authorized Big Es Towing to
tow and crush for scrap metal four cars that were ticketed for “dead tags” six days earlier.
Defs.’ Mot. 2 & Ex. 2. However, under D.C. law, a vehicle left on private property that does not
4
B. Fraudulent Misrepresentation
Plaintiff next lodges a claim of fraudulent misrepresentation. Compl. ii 26. To
defeat defendant’s motion for summary judgment on this claim, plaintiff must point to
competent evidence as to each of the elements of fraudulent misrepresentation: “(1) a
false representation, (2) in reference to a material fact, (3) made with knowledge of its
falsity, (4) and with the intent to deceive, (5) with action taken in reliance upon the
representation.” Nader v. Allegheny Airlines, Inc, 626 F.2d 1031, 1036 (DC. Cir. 1980).
In addition, plaintiff must show that she suffered some injury as a consequence of her
reliance on the misrepresentation. Chedz'ck v. Nash, 151 F.3d 1077, 1081 (DC. Cir.
1998). Unfortunately for plaintiff, she has not done so here.
To support her claim for fraudulent misrepresentation, plaintiff simply states that
“[d]efendant knowingly made inconsistent and false statements concerning who towed
the car and where the car was,” and that these misrepresentations caused her to “ran [sic]
around to locate her car.” P1.’s Opp’n 11 18. Specifically, plaintiff claims that Ms. Jones
incorrectly informed her that her car had been towed by MPD. P1.’s Opp’n 11 6.
display valid tags is only considered “abandoned” after it has been there for more than 30 days
and when it is extensively damaged, apparently inoperable, or houses pests. See DC. Code 50-
2421 .02(1). Moreover, such vehicles may be towed by the DC. government or a towing
company acting at the direction of the Department of Public Works, but only 45 days after a
warning notice is issued. DC. Code 50-2421.05(3). The Court is not aware of any law
authorizing a private property owner to have another person’s car towed and scrapped just six
days after it has been ticketed for “dead tags.” Defendants would do well in the future to read
the law more carefully so as to avoid leaving the Court with the impression that they
intentionally mischaracterized the law to justify their actions.
Unfortunately for plaintiff, she has not put forward sufficient evidence to establish that
this statement is actionable as a fraudulent misrepresentation.
While Ms. Jones’ statement that it was MPD who towed plaintiff’s car satisfies the
first element as an “affirmative misrepresentation,” plaintiff has not demonstrated that
Ms. Jones knew this statement was false or that she made it with the intent to deceive.
Indeed, it was Ms. Gill who authorized the towing of cars from the apartment complex,
not Ms. Jones, and plaintiff has not pointed to any evidence suggesting that Ms. Jones
was aware that Ms. Gill had taken such action. But even if Ms. Jones was aware,
plaintiff has also failed to demonstrate that her reliance on this statement—which entailed
traveling to the police station only to learn they did not have her car—resulted in the type
of injury that would make a misrepresentation actionable. To succeed on a claim of
fraudulent misrepresentation, plaintiff must prove that that her reliance on defendants’
misstatement caused her substantial pecuniary loss. See Day v. Avery, 548 F.2d 1018,
1029 (DC. Cir. 1976) (per curiam) (“[A] sine qua non of any recovery for
misrepresentation is a showing of pecuniary loss proximately caused by reliance on the
misrepresentation”); see also id. (“[S]ince the modern action of deceit is a descendant of
the older action on the case, it carries over the requirement that the plaintiff must have
suffered substantial damage before the cause of action can arise.” (quoting W.
Prosser, Law of Torts § 110 at 731 (4th ed. 1971)». The inconvenience of a trip to the
local police station simply does not meet this requirement.2
2 Plaintiff also suggests that the rental office’s withholding the specific name of the towing
company and the location of her car amounts to fraudulent misrepresentation. Pl.’s Opp’n W 8,
6
C. D.C. Consumer Protection Procedures Act
Plaintiff also seeks relief for defendants’ alleged “misrepresentations” under the
DC Consumer Protection Procedures Act (“CPPA”). See Comp]. 111] 27-28; Pl.’s Opp’n
11 21; DC. Code § 28-3904(e) (“It shall be a violation of this chapter, whether or not any
consumer is in fact misled, deceived or damaged thereby, for any person to: . . . (e)
misrepresent as to a material fact which has a tendency to mislead”). The CPPA
authorizes consumers to bring suits against merchants who employ trade practices that
violate District of Columbia law. Id. § 28-3905(k)(1)(A). A “consumer” for purposes of
the CPPA is “a person who . . . does or would purchase, lease (as lessee), or receive
consumer goods or services.” Id. § 28-3901(a)(2). A “trade practice” is “any act which
does or would create, alter, repair, furnish, make available, provide information about, or,
directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of
10, 18, 20; see Rothenberg v. Aero Mayflower Transit Co., Inc, 495 F. Supp. 399, 406 (D.D.C.
1980) (“A false representation may be either an affirmative misrepresentation or a failure to
disclose a material fact when a duty to disclose that fact has arisen”). As a preliminary matter,
plaintiff has presented no evidence that defendants knew the location of her car, yet failed to
reveal that information to her. As to the specific name of the towing company, even assuming
that Ms. Gill had a duty to disclose this fact, for an omission to be actionable it must be material
and plaintiff must have relied on it. In the context of this case, the towing company’s name does
not strike this Court as material. See Nader v. Allegheny Airlines, Inc, 445 F. Supp. 168, 174
(D.D.C. 1978), rev ’d, 626 F.2d 1031 (DC. Cir. 1980) (“A material fact is one to which a
reasonable person might attach importance in choosing his course of action”). Plaintiff was
provided specific information regarding the name of the man who towed her car and his
telephone number, Pl.’s Opp’nfil 10, and has not alleged that knowing the company’s name
would have aided the search for her car in any way. More importantly though, plaintiff has
failed to make a showing of intent to deceive—it does not stand to reason that defendants would
take responsibility for having the car towed, affirmatively provide the name and phone number
for the man who actuated the tow, all the while intending to mislead plaintiff by refusing to
reveal the specific name of the towing company.
consumer goods or services.” Id. § 28-3901(a)(6). These definitions make clear that the
CPPA simply does not cover the dispute in this case.
As a preliminary matter, it is not at all clear that the CPPA even applies to
landlord—tenant relations. Although the CPPA is, “‘to say the least, an ambitious piece of
legislation, with broad remedial purposes,’ it is not clear from its plain language that the
statutory scheme, designed to protect consumers, applies to [landlord-tenant relations].”
Twin Towers Plaza Tenants Ass ’n, Inc. v. Capitol Park Assocs., L.P. , 894 A.2d 1113,
1120 (DC. 2006) (quoting DeBerry v. First Gov ’t Mortg. & Inv’rs Corp, 743 A.2d 699,
700 (DC. 1999) (internal quotations omitted)). While the Court of Appeals for the
District of Columbia has held that a prior version of the CPPA did not create a private
right of action for tenants to sue their landlords, Childs v. Purll, 882 A.2d 227, 237—38
(DC. 2005), it has declined to consider whether the statute, as revised in October 2000,
does, id. (declining to decide “whether the Council intended . . . to expand the private
right of action” to cover landlord-tenant relations); see also Twin Towers Plaza, 894 A.2d
at 1120.3 I also do not need to reach this broader question because, even assuming
landlord—tenant relations are covered generally, it is clear that the CPPA does not reach
the specific facts of this case. While it may be true that the rental office initially made a
false statement to plaintiff regarding the location of her car, to be actionable under the
3 At least one of my colleagues in this District has found that the statute, even as revised, fails to
reach the landlord—tenant context. See Feemster v. BSA Ltd. P ’ship, 471 F. Supp. 2d 87, 103-06
(D.D.C. 2007) afl’d in part, rev ’61 in part, 548 F.3d 1063 (DC. Cir. 2008) (holding that the plain
language of the CPPA makes clear that allowing a tenant to sue his or her landlord under the
CPPA “would be an inappropriate back door expansion of the range of remedies expressly made
available to tenants in landlord tenant matters”).
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CPPA, plaintiff would need to show that this misrepresentation was a “trade practice” as
defined by the statute. See DC. Code 28-3905(k)(1)(A). This she cannot do. The
statement was simply not made to “make available” or to “provide information about” “a
sale, lease or transfer, of consumer goods or services.” Id. § 28-3901(a)(6).
D. Americans with Disabilities Act
Finally, plaintiff claims that defendants violated the reasonable accommodation
requirement of the Americans with Disabilities Act (“ADA”) by having her car, which
displayed a handicap tag, towed. See Compl. W 30-32; Pl.’s Opp’n W 23-26.
Unfortunately for plaintiff, the ADA is not applicable in this case. Title III of the ADA—
the provision relevant to plaintiff’s failure to accommodate claim—prohibits
discrimination in any “place of public accommodation,” 42 U.S.C. § 12182(a), which is
defined to include, inter alia, “an inn, hotel, motel, or other place of lodging.” 42 U.S.C.
§ l218l(7)(A). I have previously found, as have a number of courts, that private
apartment complexes do not qualify as “public accommodations” for purposes of the
ADA. Parham v. CIH Properties, Inc, Civ. No. 14—1613 (RJL), 2015 WL 5294683, at
*3 (D.D.C. Sept. 6, 2015) (Leon, J.).
Even assuming, however, that plaintiff had alleged her reasonable accommodation
claim under an applicable antidiscrimination law, she has still failed to point to any
evidence that defendants refused to reasonably accommodate her disability. Similar to
the ADA, the Fair Housing Act (“FHA”) and DC. Human Rights Act (“DCHRA”)
require reasonable accommodations to be made for persons with disabilities.4 These
statutes, moreover, are generally interpreted to be coextensive with regards to the
requirement to reasonably accommodate. See, e. g., Good Shepherd Manor Found, Inc.
v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003) (observing that the elements of a
failure to reasonably accommodate claim are the same under the ADA and the FHA);
Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (DC. Cir. 1997) (interpreting the
language of the DCHRA consistent with interpretations of federal antidiscrimination
laws). Thus, to succeed on a failure to accommodate claim under any one of these
statutes, plaintiff must show: (1) that she had a handicap within the meaning of the
statute; (2) that defendants knew or reasonably should have known of the handicap; (3)
that an accommodation may be necessary to afford her an equal opportunity to use and
enjoy the dwelling; and (4) that defendants refused to make the requested accommodation.
United States v. District ofColumbia, 538 F. Supp. 2d 211, 217-18 (D.D.C. 2008). As
these elements suggest, the “underlying assumption of any reasonable accommodation
claim is that the plaintiff . . . has requested an accommodation which the defendant . . .
has denied.” Flemmings v. Howard Univ., 198 F.3d 857, 861 (DC. Cir. 1999).
Simply put, plaintiff has not proffered any competent evidence to prove any one of
these elements. See Celotex, 477 US. at 324 (finding that mere allegations are not
4 The FHA makes housing discrimination unlawful, see 42 U.S.C. § 3604(f)(1)-(2), and provides
that “discrimination includes . . . a refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling,” 42 U.S.C. § 3604(f)(3)(B). The DCHRA prohibits
landlords from discriminating against persons with disabilities and includes in its definition of
“unlawful discrimination” a “refusal to make reasonable accommodations” for disabled tenants.
DC. Code § 2-1402.21(d).
10