Jeremy Morris v. West Hayden Estates First Add.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY RAY MORRIS; KRISTY No.19-35390

MORRIS,

D.C. No.

Plaintiffs-Appellants, 2:17-cv-00018-

BLW

v.

WEST HAYDEN ESTATES FIRST OPINION

ADDITION HOMEOWNERS

ASSOCIATION, INC., an Idaho

corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted June 5, 2020

Portland, Oregon

Filed June 17, 2024

Before: A. Wallace Tashima, Marsha S. Berzon, and

Daniel P. Collins, Circuit Judges.

2 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Opinion by Judge Berzon*;

Partial Dissent by Judge Tashima;

Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY**

Fair Housing Act

The panel affirmed in part and reversed in part the

district court’s judgment after a jury trial, and remanded, in

Jeremy and Kristy Morris’s action under the Fair Housing

Act against West Hayden Estates First Addition

Homeowners Association, Inc.

The Morrises alleged that the HOA discriminated against

them on the basis of religion by attempting to prevent them

from conducting a Christmas program. The jury returned a

verdict in favor of the Morrises and awarded them

compensatory and punitive damages. The district court

granted judgment as a matter of law and alternatively

granted a new trial or remittitur of the damages to the HOA.

The district court entered a permanent injunction against

future productions of the Christmas program that violate the

HOA’s covenants, conditions, restrictions, and easements,

or CC&Rs.

*

Judge Tashima concurs in the opinion with the exception of Parts

II(a)(i)(2) and II(c). Judge Collins concurs only in Parts II(a)(i)(2) and

II(c).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 3

The Morrises contended that the HOA Board

discriminated against them because of their Christian faith

by discouraging them from purchasing a home in West

Hayden Estates, interfering with the practice of their faith by

opposing the Christmas program, and selectively enforcing

the HOA rules. In Part II(a)(i)(1) of the opinion, affirming in

part, the panel held that the district court properly granted

judgment as a matter of law to the HOA as to the Morrises’

disparate treatment claim under 42 U.S.C. § 3604(b) because

they did not show that they were adversely affected by the

HOA’s actions. Agreeing with the Seventh Circuit, the panel

held that discrimination against a member of a protected

class in the interpretation and enforcement of HOA rules can

violate § 3604(b). Here, though, the HOA’s actions did not

constitute enforcement of its rules, discriminatory or

otherwise.

In Part II(a)(i)(2), reversing in part, the panel held that a

reasonable jury could find that the HOA interfered with the

Morrises’ right to purchase and enjoy their home free from

discrimination, in violation of 42 U.S.C. § 3617. The panel

concluded that, viewing the evidence in the light most

favorable to the Morrises, there was sufficient evidence

supporting the jury’s conclusion that the HOA Board’s

conduct was motivated at least in part by the Morrises’

religious expression.

In Part II(a)(ii), the panel affirmed the district court’s

grant of judgment as a matter of law on the Morrises’ claim

that the HOA’s toleration of threats and harassment targeted

at the Morrises by other residents of West Hayden Estates

violated § 3604(b).

In Part II(a)(iii), the panel affirmed the district court’s

grant of judgment as a matter of law on the Morrises’ claim

4 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that the Board’s January 2015 letter, addressing their pre-

closing inquiry about the Christmas program, violated

§ 3606(c), which prohibits making, printing, or publishing

any notice, statement, or advertisement, with respect to the

sale or rental of a dwelling that indicates any preference,

limitation, or discrimination based on a protected

characteristic, including religion. Agreeing with other

circuits, the panel adopted an objective “ordinary reader”

standard. Applying this standard, the panel agreed with the

district court that the HOA was entitled to judgment as a

matter of law on this claim.

In Part II(b), the panel affirmed the district court’s

alternative grant of a new trial to the HOA as to the § 3617

claim. The panel concluded that the district court did not

abuse its discretion in holding that the jury’s verdict was

against the clear weight of the evidence.

In Part II(c), the panel vacated the district court’s grant

of an injunction to the HOA. The panel reasoned that during

a new trial on the Morris’s § 3617 claim, the jury could

conclude that the HOA was motivated in part by a

discriminatory purpose in its interactions with the Morrises.

If so, then simultaneously permitting an injunction against

the Morrises could have the effect of sanctioning

discriminatory reliance on the CC&Rs.

Dissenting in part, Judge Tashima concurred in the

opinion with the exception of Parts II(a)(i)(2) and II(c).

Judge Tashima wrote that the district court properly granted

the HOA’s motion for judgment as a matter of law on all the

Morrises’ claims because the evidence permitted only one

reasonable conclusion: the HOA was concerned about the

Morrises’ holiday events because of the size and scale of the

events, not because of the Morrises’ religion. Judge Tashima

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 5

wrote that the district court also properly granted the HOA’s

motion for injunctive relief and did not abuse its discretion

in alternatively finding that the HOA was entitled to a new

trial and to remittitur.

Concurring in part and dissenting in part, Judge Collins

concurred only in Parts II(a)(i)(2) and II(c). Judge Collins

agreed with the majority’s conclusions that the district court

erred in granting judgment as a matter of law on the

Morrises’ claim under § 3617 and that this error

prejudicially affected the district court’s analysis of the

HOA’s counterclaim for injunctive relief enforcing the

CC&Rs against the Morrises. Judge Collins wrote that the

district court also erred by concluding that the judgment as a

matter of law was warranted for the HOA on the remaining

claims, as well as by conditionally awarding the HOA a new

trial and remittitur.

COUNSEL

Allyson N. Ho (argued), Gibson Dunn & Crutcher LLP,

Dallas, Texas; Katherine C. Yarger, Gibson Dunn &

Crutcher LLP, Denver, Colorado; Jeremiah G. Dys and

Stephanie N. Taub, First Liberty Institute, Plano, Texas; for

Plaintiffs-Appellants.

Peter J. Smith, IV (argued) and Jillian H. Caires, Smith &

Malek PLLC, Coeur d’Alene, Idaho, for Defendant-

Appellee.

6 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

OPINION

BERZON, Circuit Judge:

In 2014, Jeremy and Kristy Morris hosted a public

Christmas program outside their home in Grouse Meadows,

a neighborhood in Hayden, Idaho. Soon after the event, the

Morrises moved to a new home in West Hayden Estates,

where they hoped to continue their newly minted tradition of

producing a multi-day Christmas festival to raise money for

charity. Among other things, they intended to string up

thousands of Christmas lights, sing Christmas carols,

employ costumed Christmas characters including Santa

Claus and the Grinch, and host a live nativity scene,

complete with a real camel.

The Morrises’ plan received a frosty reception from the

Board of the West Hayden Estates First Addition

Homeowners Association (“HOA”). The Morrises’

Christmas program would likely violate the HOA’s rules, the

Board informed them. After two years during which the

Morrises did host the program, the Morrises filed this suit in

federal court. The Morrises accused the HOA of more than

just being Grinches. The HOA’s conduct discriminated

against them on the basis of religion, they maintain, in

violation of the Fair Housing Act, 42 U.S.C. §§ 3601–3631

(“FHA” or “the Act”).

The district court denied summary judgment, and the

case went to trial. The jury agreed with the Morrises and

awarded them $60,000 in compensatory damages and

$15,000 in punitive damages. Post-trial, the district court

granted judgment as a matter of law (“JMOL”) to the HOA.

We affirm in part and reverse in part.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 7

I. Facts and Background

In December of 2014, Jeremy Morris posted on

Facebook that he and his wife, Kristy, would be offering free

hot chocolate to anyone passing through their neighborhood,

Grouse Meadows, to look at the Christmas lights. Within a

day, an estimated 200 families had taken the Morrises up on

their offer. Over the following eight nights, between 20 and

100 families stopped by each night to see the Morrises’

Christmas decorations, some driving through the

neighborhood and others parking in a church parking lot

across the street. On one or two of the nights, a bus brought

residents from a retirement home to see the lights and enjoy

caroling. Visitors to the Morrises’ 2014 Christmas display

enjoyed the thousands of lights on the Morrises’ house, free

hot chocolate, Christmas-themed characters in costume,

caroling, and a live camel named Dolly.

Shortly after the holidays, the Morrises made an offer on

a new home in West Hayden Estates. Before closing, Jeremy

Morris, with “the Christmas program in mind,” requested a

copy of the HOA’s declaration establishing covenants,

conditions, restrictions, and easements (“CC&Rs”) to

ascertain whether there would be any problem with hosting

a Christmas event around the new home, similar to the 2014

production. Jeremy Morris also contacted Jennifer Scott,

president of the West Hayden Estates HOA to discuss a

potential Christmas program. He asked Scott to arrange a

meeting of the HOA Board to address how the CC&Rs

would impact the program, and to do so urgently.

Scott immediately scheduled an emergency meeting of

the HOA Board, which the Morrises did not attend. During

the meeting, members of the Board looked up information

about and watched YouTube videos depicting the Morrises’

8 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

2014 program on Facebook. After doing so, the Board was

concerned that an event of that scale would not be consistent

with the HOA’s rules and covenants. At the end of the

meeting, the Board agreed to send the Morrises a letter

advising them that hosting the proposed Christmas program

would likely violate the West Hayden CC&Rs.

The following day, former Board member Larry Strayer

circulated a draft letter to the other members of the HOA

Board. The letter stated that a program like the one planned

by the Morrises would violate three sections of the CC&Rs:

Section 5.4.1, which provides that properties in West

Hayden Estates are not to be used for any purpose other than

for single family residential purposes; Section 5.4.2, which

prohibits nuisances, including any noise which would

“interfere with the quiet enjoyment of any” neighbor; and

Section 5.4.15, which instructs that any exterior lighting on

an HOA home “shall be restrained in design” and that

“excessive brightness shall be avoided.” The letter also

expressed concern about the increase in traffic that would

likely accompany the Morrises’ Christmas program. The

draft letter concluded with two paragraphs that read:

And finally, I am somewhat hesitant in

bring[ing] up the fact that some of our

residents are avowed atheists and I don’t even

want to think of the problems that could bring

up.

It is not the intention of the Board to

discourage you from becoming part of our

great neighborhood but we do not wish to

become entwined in any expensive litigation

to enforce long standing rules and regulations

and fill our neighborhood with the riff-raff

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 9

you seemed to attract over by WalMart.

Grouse Meadows indeed!!! We don’t allow

“those kind” in our neighborhood.

After some back-and-forth among Board members, these

closing paragraphs were revised to read:

And finally, I am somewhat hesitant in

bringing up the fact that some of our residents

are non-Christians or of another faith and I

don’t even want to think of the problems that

could bring up.

It is not the intention of the Board to

discourage you from becoming part of our

great neighborhood but we do not wish to

become entwined in any expensive litigation

to enforce long standing rules and regulations

and fill our neighborhood with the hundreds

of people and possible undesirables. We

have worked hard to keep our area peaceful,

quiet, and clean. Neighbors respect the

CC&R’s and show common courtesy to those

around them. These are reasons why people

want to live here.

The revised letter was mailed to the Morrises on January 16,

and received January 21.

Undeterred by the HOA’s response to their inquiry, the

Morrises moved forward with their purchase of the West

Hayden Estates home. On January 27, Jeremy Morris met

with the HOA Board. He was joined by his realtor and, via

telephone, an attorney specializing in issues concerning

religious liberty. In that meeting, the Board raised concerns

10 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

about traffic and the number of people who would attend the

Christmas event.

The following month, the Board called a meeting of the

full HOA membership. In a letter to all HOA members

announcing the meeting, the Board stated:

A potential buyer is looking to purchase a

home within the development. He has

requested approval to hold a holiday event

that will last from 5–10 days during the

month of December. This display/event was

held in another development last year. In

speaking with the gentleman, he has

indicated that this “event” will produce in

excess of 900 additional vehicles traveling

through the neighborhood with up to 80

volunteers directing traffic and such. He has

indicated that he will be using a speaker/PA

system from 6 pm – 9 pm nightly. Last year,

he incorporated a camel and various other

amenities to attract attention to his display. .

..

His comment to the media was that this year,

he plans to create a much larger event. . . .

It is the Board’s opinion that while we

encourage holiday decorating and

community participation, this type of traffic

and event is in violation of the CCRs for West

Hayden Estates.

The board is seeking your opinions on the

matter as the individual has threatened legal

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 11

action if the board does not permit his

request.

After this notice was circulated but before the meeting,

Jeremy Morris sent a response letter to all members of the

HOA. That letter read in part:

[T]he HOA Board has engaged in

discriminatory violations of the Fair Housing

Act, and has rebuffed my attempts to resolve

the situation quietly. My only desire is to

exercise my rights as a homeowner, while

respecting the rights of others, in the spirit of

community, by celebrating my own Christian

message which includes decorating for

Christmas and raising money for charity. . . .

My own read of the CCR’s found nothing to

prevent a Christmas event from taking place,

and the opinion of other attorneys confirmed

this. In sum, with no CC&R provision

applicable to our Christmas event, the HOA

Board then resorted to religious

discrimination.

The letter also stated that the “Fair Housing Administration”

was “investigating this incident.”1

At the meeting, which took place in February of 2015,

HOA members discussed the Christmas program and held a

vote on whether the event should proceed. According to one

Board member’s trial testimony, the 19 HOA members

1

There is no evidence in the record that any government agency

investigated the Morrises’ claims.

12 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

present (not including Board members) voted that they did

not want the Morrises’ Christmas program to take place in

West Hayden Estates, but no formal action was taken as a

result. The following month, the Morrises closed on the

West Hayden Estates home and moved into the

neighborhood.

The residents of West Hayden Estates, including the

Morrises, lived in apparent harmony until the fall of 2015,

when Jeremy and Kristy began to set up Christmas lights in

preparation for their “2nd Annual Hayden Christmas Light

Show.” In October, the HOA Board, via their attorney, sent

the Morrises a letter expressing concern that the planned

event would not comply with local zoning ordinances and

would violate HOA rules prohibiting nuisances, excessive

lighting, and the keeping of animals other than “ordinary

household pets.” The letter further stated: “Unless you

request and receive written approval from the Association

Board to conduct your planned event, the Board has

authorized this office to file an action seeking an injunction

to prevent your event from occurring.”

The Morrises did not receive written approval but went

forward with the event as planned. For five nights leading

up to Christmas, the Morrises surrounded their house with:

an estimated 200,000 lights, thirty volunteers, costumed

characters (representing, among others, the Grinch, Frosty

the Snowman, Santa Claus, and Clifford the Big Red Dog),

several musical guests, a children’s choir, an antique cotton

candy machine, charity tables, security personnel, a live

nativity scene, and, once again, Dolly the camel. Four

commercial buses carried visitors to the event, and traffic

supervisors directed visitors’ cars through the streets around

the house. The HOA Board took no legal action. The

Morrises held a larger program in 2016, which had five

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 13

buses and 48 volunteers, and added four “hot chocolate

elves” to the attractions.

In the meantime, the relationship between the Morrises

and their West Hayden Estates neighbors grew tense. The

HOA reportedly received complaints from West Hayden

Estates residents regarding trash, traffic, and one incident of

public urination by a child, all allegedly generated by the

Christmas programs. On at least two occasions, Jeremy

Morris became involved in public arguments with other

West Hayden Estates residents. According to the Morrises,

during one such argument, a West Hayden resident, Larry

Bird, made threats against Morris.

December 2016 was the last time the Morrises hosted the

event. In January 2017, the Morrises filed suit in federal

court, asserting that the West Hayden Estates HOA violated

§§ 3601, 3604(b), 3604(c), and 3617 of the Fair Housing

Act, all prohibiting various forms of religion-based

discrimination in access to housing. The HOA

counterclaimed, asking the court to enjoin the Morrises from

holding their Christmas program again in West Hayden

Estates. After the close of discovery, the HOA moved for

summary judgment. The district court denied summary

judgment, explaining that, although the Board’s January

2015 letter to the Morrises “may have been an attempt to

offer some type of conciliation or recognition of sensitivity

to others’ religious beliefs,” a jury could reasonably view

that letter “as evidencing a discriminatory intent.”

A six-day jury trial ensued. The jury heard testimony

from the Morrises, members of the HOA Board, the

Morrises’ neighbors, and volunteers who helped the

Morrises carry out their Christmas programs. Following

deliberations, the jury completed a special verdict form on

14 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

which it found for the Morrises on each of their separate

FHA claims. First, the jury concluded that the HOA

“discriminated against [the Morrises] at least in part due to

their religion” both during and after the purchase of their

home, in violation of 42 U.S.C. § 3604(b). Next, the jury

found that the HOA’s January 2015 letter to the Morrises

“expressed, in the mind of an ordinary reader, a preference

that a non-religious individual purchase [the Morrises’]

home,” in violation of § 3604(c). Last, the jury found that

the HOA “threatened, intimidated, or interfered with [the

Morrises’] purchase or enjoyment of their home,” in

violation of § 3617. The jury awarded the Morrises $60,000

in compensatory damages and $15,000 in punitive damages.

After trial, the district court granted the HOA’s motion

for JMOL under Fed. R. Civ. P. 50(b). The court held that

the Morrises’ claims rested primarily on the HOA’s January

2015 letter, and that an ordinary reader would not view the

letter as showing that the Board intended to discriminate on

the basis of religion. The court also determined that the

HOA had been unfairly prejudiced when the jury heard

evidence of alleged threats and harassment targeting the

Morrises and that the weight of the evidence was against the

Morrises, and consequently held, in the alternative, that the

HOA was entitled to a new trial under Fed. R. Civ. P. 59, or

to remittitur of the damages to a total of $4. Finally, the

district court concluded that the Christmas program violated

the HOA rules and granted an injunction barring the

Morrises “from hosting a Christmas program in the West

Hayden Estates that violates the CC&Rs,” including by

decorating their house with lights visible from neighboring

lots, using their house for any purpose other than as a single-

family residence, interfering with the quiet enjoyment of

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 15

other homeowners, and keeping “livestock” on their

property (in the form of a donkey and Dolly the camel).

The Morrises appealed. We affirm in part and reverse in

part the district court’s grant of JMOL, affirm the grant of a

new trial, vacate the injunction, and remand.

II. Discussion

a. Judgment as a Matter of Law

The Morrises contend that the HOA violated three

provisions of the Fair Housing Act: Section 3604(b), which

makes it unlawful to “discriminate against any person in the

terms, conditions, or privileges of sale or rental of a

dwelling, or in the provision of services or facilities in

connection therewith, because of race, color, religion, sex,

familial status, or national origin,” 42 U.S.C. § 3604(b);

section 3604(c), under which it is unlawful “[t]o make, print,

or publish . . . any notice, statement, or advertisement, with

respect to the sale or rental of a dwelling that indicates any

preference, limitation, or discrimination based on . . .

religion,” id. § 3604(c); and section 3617, which makes it

“unlawful to coerce, intimidate, threaten, or interfere with

any person in the exercise or enjoyment of, or on account of

his having exercised or enjoyed . . . any right granted or

protected” by §§ 3603, 3604, 3605, or 3606 of the Act, id.

§ 3617.

We review the grant of judgment as a matter of law de

novo, viewing the evidence in the light most favorable to the

non-moving party, here, the Morrises. Corbello v. Valli, 974

F.3d 965, 973 (9th Cir. 2020). JMOL is appropriate “only if

there is no legally sufficient basis for a reasonable jury to

find for that party on that issue.” Krechman v. County of

16 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (internal

quotation marks and citation omitted).

i. Discriminatory Treatment and Interference

The Morrises contend that the HOA Board discriminated

against them because of their Christian faith by discouraging

them from purchasing a home in West Hayden Estates,

interfering with the practice of their faith by opposing the

Christmas program, and selectively enforcing the HOA

rules.

(1) Section 3604(b) of the FHA

Section 3604(b) of the FHA prohibits discrimination on

protected grounds, including religion, “in the terms,

conditions, or privileges of sale or rental of a dwelling, or in

the provision of services or facilities in connection

therewith.” 42 U.S.C. § 3604(b). The provision creates a

“broad and inclusive compass” entitled to “generous

construction.” McGary v. City of Portland, 386 F.3d 1259,

1262 (9th Cir. 2004) (internal quotation marks omitted)

(quoting City of Edmonds v. Oxford House, Inc., 514 U.S.

725, 731 (1995)).

The HOA’s CC&Rs are facially neutral, and the

Morrises make no argument that they have “a significantly

adverse or disproportionate impact on” Christians generally.

Comm. Concerning Cmty. Improvement v. City of Modesto

(CCCI ), 583 F.3d 690, 711 (9th Cir. 2009). So we consider

their § 3604(b) claim through the lens of disparate treatment.

See Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 503

(9th Cir. 2016).

Disparate treatment claims under the FHA are often

reviewed using the three-stage burden-shifting test derived

from McDonnell Douglas Corp. v. Green, 411 U.S. 792,

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 17

802–04 (1973). See also Gamble v. City of Escondido,

104 F.3d 300, 305 (9th Cir. 1997). The HOA, relying on

McDonnell Douglas, argues that the Morrises failed to prove

a prima facie disparate treatment claim because “[n]o other

event that had been held in the neighborhood compared to

the Morrises[’] Christmas Program.”

The McDonnell Douglas framework, however, is only

one way of establishing a disparate treatment claim,

applicable where the evidence is indirect and directed toward

challenging as pretextual a facially neutral explanation for

the challenged action. See, e.g., Lyons v. England, 307 F.3d

1092, 1112–13 (9th Cir. 2002); Diaz v. Am. Tel. & Tel., 752

F.2d 1356, 1361 (9th Cir. 1985). The Morrises may prevail

by otherwise “‘produc[ing] direct or circumstantial evidence

demonstrating that a discriminatory reason more likely than

not motivated’ the defendant and that the defendant’s actions

adversely affected [them] in some way.” Pac. Shores

Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158

(9th Cir. 2013) (quoting McGinest v. GTE Serv. Corp., 360

F.3d 1103, 1122 (9th Cir. 2004)). Under the FHA, the

evidence need not “prove that the discriminatory purpose

was the sole purpose of the challenged action, but only that

it was a ‘motivating factor.’” Ave. 6E Invs., 818 F.3d at 504

(quoting Arce v. Douglas, 793 F.3d 968, 977 (9th Cir.

2015)).

We start with whether the Morrises were “adversely

affected” by the Board’s conduct. Pac. Shores Props., 730

F.3d at 1158. The Morrises maintain that they were

adversely affected by the Board’s discriminatory

enforcement of the CC&Rs. As the Seventh Circuit

recognized in Bloch v. Frischholz, 587 F.3d 771, 779–81

(7th Cir. 2009) (en banc), discrimination against a member

18 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

of a protected class in the interpretation and enforcement of

HOA rules can violate § 3604(b) of the FHA.

In Bloch, an observant Jewish family sued their

condominium association for repeatedly removing the

traditional mezuzah from the family’s doorpost in the name

of enforcing rules that prohibited leaving “objects of any

sort” outside residence doors. Id. at 773. The en banc court

held that “§ 3604(b) prohibits the [Homeowners’]

Association from discriminating . . . through its enforcement

of the rules, even facially neutral rules.” Id. at 780.

Similarly here, if the Board had selectively enforced the

HOA rules against the Morrises on the basis of their religious

behavior, the enforcement would likewise fall afoul of

§ 3604(b).

In this case, however, the HOA’s actions regarding the

CC&Rs and the Morrises’ Christmas event did not constitute

“enforcement” of its rules, discriminatory or otherwise.

Stripped down, the Morrises’ claim rests on: the January

2015 letter advising the Morrises that the Christmas program

would most likely violate the CC&Rs, the February 2015

residents’ meeting, including the Board’s letter to West

Hayden Estates residents emphasizing the disruptive nature

of the Christmas pageant and encouraging a vote on whether

to “allow” the program, and the October 2015 letter.

Viewing this evidence in the light most favorable to the

Morrises, Corbello, 974 F.3d at 973, the Morrises have not

pointed to any adverse action sufficient to support a

§ 3604(b) disparate treatment claim. The Morrises were not

prevented from purchasing or moving into their home. Nor

were they prevented from enjoying the privileges of home

ownership. They were never prevented from holding their

Christmas event. Nor is there any suggestion in the record

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 19

that they were denied equal use and enjoyment of West

Hayden Estates’ common areas, that they incurred any

economic losses or onerous administrative burdens, Pac.

Shores Props., 730 F.3d at 1165–66, or that they were

subjected to any “proceedings that were contrary to the

[HOA’s] established policy and practice” as a result of the

Board’s actions, Harris v. Itzhaki, 183 F.3d 1043, 1052 (9th

Cir. 1999).

The Board’s attorney did send a letter to the Morrises in

October 2015, stating that the HOA had authorized

enforcement of the CC&Rs through legal action if the

Morrises proceeded without “written approval from the

Association Board to conduct [their] planned event.” The

Morrises never sought written approval and received none,

but the HOA took no action, and the Christmas programs

went forward as planned in 2015 and 2016.2 So, before the

commencement of this action, the HOA did not enforce the

CC&Rs, by taking legal action or otherwise.3

The Morrises’ experience is thus fundamentally

dissimilar from the adverse actions taken in applying

established procedures in cases such as Bloch, Harris and

Pacific Shores, each of which had a practical impact on the

plaintiff. Unlike in Bloch, the Board did not enforce,

selectively or otherwise, their facially neutral rules.

2

Judge Collins would hold that the HOA’s actions constituted

enforcement of the CC&Rs, and that a reasonable jury could find that

this enforcement constituted differential treatment. Collins Dissent at

89–90. As we discuss in more depth below, a demand letter outlining

the possible CC&R violations of a proposed action, without more, is not

adverse action.

3

The Board now seeks to enjoin any future productions of the Christmas

program as a counterclaim to this suit.

20 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In Harris, a tenant alleged that, in response to her

complaints about discrimination, her landlords immediately

sent her eviction notices when they did not receive rent on

time, a departure from their “established policy and practice”

of calling tenants to ask about rent before initiating the

eviction process. 183 F.3d at 1052. After her landlords

twice sent her such eviction notices, the tenant was forced to

alter her own behavior and “send all subsequent payments

by certified mail” to ensure she did not face eviction. Id.

In Pacific Shores, group homes for recovering alcoholics

and drug users challenged a local ordinance that prohibited

new group homes from opening in most residential areas and

required existing homes to undergo a burdensome permit

process to continue operating. 730 F.3d at 1147. Although

the group homes did not challenge the city’s denial of their

individual permit applications, this Court held that they had

faced “adverse effects” under the FHA’s disability

discrimination provision because the ordinance forced them

“to submit a detailed application for a special use permit . . .

to continue operating,” requiring the expenditure of

“substantial time, effort, and resources” and leading “to the

closure of approximately one third of the City’s” existing

group homes. Id. at 1164–65.

Here, by contrast, the only concrete action the HOA took

was to send a letter stating that it had authorized legal action

it never took. That was it. The Morrises did nothing in

response, the event went on, and the Board took no

enforcement action. Unlike in Bloch and Harris, the

Morrises disregarded the HOA’s demand letter without

facing any consequences or enforcement, and unlike in

Pacific Shores, they did not change their behavior to avoid

enforcement.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 21

We construe the FHA liberally, see McGary, 386 F.3d at

1262, and do not mean here to provide a comprehensive

standard for determining which adverse actions could give

rise to a § 3604(b) claim. But to support a disparate

treatment claim, plaintiffs must be able to point to some

concrete adverse impact suffered as a result of the

defendants’ behavior. The Morrises have pointed to no such

harm. We therefore conclude that the jury’s verdict for the

Morrises’ § 3604(b) disparate treatment claim is not

supported by sufficient evidence and so affirm the grant of

JMOL as to that claim. Cf. Wallace v. City of San Diego,

479 F.3d 616, 624 (9th Cir. 2007) (reversing the district

court’s grant of JMOL because substantial evidence

supported the jury’s verdict). Because we hold the HOA did

not cause any adverse impact on the Morrises, we do not

reach the second element of the Morrises’ § 3604(b) claim,

whether any adverse action was motivated by adversity to

religion.

(2) Section 3617 of the FHA

The Morrises also brought a claim under § 3617 of the

Act, which prohibits the “coerc[ion], intimidat[ion],

threaten[ing], or interfere[nce] with any person in the

exercise or enjoyment of” rights protected by other

provisions of the FHA (“interference claim”). 42 U.S.C.

§ 3617. Section 3617 is frequently construed with reference

to § 3604(b), but the two provisions are not coextensive. See

Bloch, 587 F.3d at 781–82. Section 3617 “reach[es] all

practices which have the effect of interfering with the

exercise of rights under the federal fair housing laws.” U.S.

v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994)

(internal quotation marks omitted) (quoting Mich. Prot. &

Advoc. Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)). A

Section 3617 violation does not require the person “who is

22 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

interfered with to capitulate to the interference,” and a

violation can “involve a ‘situation where no discriminatory

housing practice may have occurred at all.’” Id. at 836

(quoting Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir.

1975)). “For instance, if a landlord rents to a white tenant

but then threatens to evict him upon learning that he is

married to a black woman, the landlord has plainly violated

§ 3617, whether he actually evicts the tenant or not.” Bloch,

587 F.3d at 782.

Given this framework, the jury reasonably concluded

that the Board “threatened, intimidated, or interfered with”

the Morrises’ right to purchase and enjoy their home free

from religious discrimination. The JMOL standard requires

that the jury’s verdict be upheld if there is “evidence

adequate to support the jury’s conclusion, even if it is also

possible to draw a contrary conclusion.” Johnson v.

Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th

Cir. 2001). For the § 3617 interference claim, there is.

First, there is evidence that the Board “threatened,

intimidated, or interfered” with the Morrises during the

purchase and enjoyment of their home. Unlawful

interference occurs when a defendant “meddl[es] in or

hamper[s] an activity or process” protected by the FHA.

Walker v. City of Lakewood, 272 F.3d 1114, 1129 (9th Cir.

2001) (citation omitted). In this case, the Board notified the

Morrises, in their January 2015 letter, that their planned

event was “prohibit[ed]” by the CC&Rs and would “fill [the]

neighborhood with . . . hundreds of people and possible

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 23

undesirables.” The letter also warned that the Board did “not

wish to become entwined in any expensive litigation.”4

The following month, before the Morrises closed on their

home, the Board of the HOA organized an “emergency

meeting” of West Hayden Estates residents to discuss the

potential impact of the Morrises’ Christmas program on the

community. A letter from the Board to all West Hayden

Estates residents described the program as an “extravagant

event generating excessive traffic” and noted that the

Morrises had “not obtain[ed] the necessary permits” for their

2014 program. The letter went on to state that the Board

believed the Christmas program would violate the CC&Rs

and that the Board was “fearful that allowing such a breach

of the [CC&Rs] in this matter w[ould] ultimately lead to

further breaches in other areas within the community.”

Finally, the letter stated that Jeremy Morris had “threatened

legal action if the board d[id] not permit his request” to host

the event and warned that the matter “may result in a legal

situation that must be addressed and handled immediately.”

The agenda for the meeting framed the topic for discussion

as “possible litigation that may involve additional legal costs

and increased assessments,” and at the end of the meeting,

the HOA members present voted unanimously not to allow

the Christmas event, although the event was not in fact

banned.

Both the January 2015 letter and the February 2015

meeting could have been construed by the jury as

“threatening, intimidating, or interfering” with the Morrises’

purchase and enjoyment of their home. The HOA Board’s

4

We discuss alleged threats against and harassment of the Morrises by

other residents of West Hayden Estates later in this opinion. See infra

Part II.a.ii.

24 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

handling of the February meeting, in particular, resulted in

neighborhood opposition to the Morrises, not least by

indicating that if the Morrises were to move into the

neighborhood, litigation would likely ensue. Likewise, the

January 2015 letter could have been understood as

threatening the Morrises with litigation should they move

into the neighborhood and hold their Christmas program as

planned. Finally, the October 2015 letter warning the

Morrises that the Board had been authorized to take legal

action should the Morrises proceed with their event could

have been read as a threat or attempt at intimidation. A

reasonable jury could therefore find that the Board

“intimidate[d], threaten[ed], or interfere[d] with” the

Morrises as they sought to purchase and enjoy the use of

their home. 42 U.S.C. § 3617.

Section 3617, however, while broad, is not all-

encompassing; neighborly squabbles do not, without more,

create an FHA cause of action. To make out a claim under

§ 3617, a plaintiff must show that the defendant’s actions

affected the “exercise or enjoyment of . . . any right granted

or protected” by provisions of the Act, 42 U.S.C. § 3617,

including the right to be free from discrimination based on

religion. Heeding both the Supreme Court’s admonition to

give the FHA a “generous construction,” City of Edmonds,

514 U.S. at 731, and the obligation under the JMOL standard

to respect a jury’s verdict unless no reasonable jury could

have found a statutory violation, we conclude that the JMOL

was improper as to this § 3617 claim.

At its core, the FHA guarantees tenants and homeowners

a right to take and enjoy possession of a home free from

discrimination based on a protected characteristic, including

religion. See Bloch, 587 F.3d at 782–83; 24 C.F.R.

§ 100.400. Given the JMOL standard, see Krechman, 723

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 25

F.3d at 1109, we must review the record for evidence that

the Board’s threatening, intimidating, and interfering

conduct, although it did not preclude the Morrises from

purchasing their home or putting on their Christmas event,

was driven at least in part by a motive to disfavor the

Morrises’ religion. On this question, the Morrises’ evidence

is sufficient to support a rational jury’s verdict.

The Morrises point to three pieces of evidence to support

their assertion that the Board was driven by anti-religious

animus: two portions of trial testimony and the January 2015

letter.

First, the Morrises point to “[t]he Association’s board

flatly stat[ing] it did not want the Morrises’ ‘press[ing]’ their

beliefs ‘on the community.’” The quoted testimony is that

of Larry Breazeal, the former owner of the Morrises’ home.

The passage reads: “[Jennifer Scott] was talking about the

[January 2015] letter that they sent out and . . . she was a

little bit distraught about the letter, because the final sentence

in the letter stated something about not wanting their

Christmas program and the beliefs associated with it pressed

on the community because there [were] nonbelievers in the

community.” In context, the testimony about Scott’s

statement concerning the Morrises “press[ing]” their beliefs

“on the community” is a report of her paraphrase, as recalled

by Breazeal, of the January 2015 letter. It is therefore largely

cumulative of that letter, which we shall discuss.

Second, the Morrises point to a recorded statement by

Ron Taylor, Jennifer Scott’s successor as president of the

HOA Board, that “someone in this association doesn’t like

Christmas.” In the recording, which captures a wide-ranging

and at times combative discussion, Jeremy Morris can be

heard asking “Why did [the Board] come after me?” to

26 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

which Taylor responds: “It’s because somebody in this

association doesn’t like Christmas.”

Aside from the trial testimony and the recording, the

Morrises focus on the January 2015 letter as evidence of

discriminatory intent on the part of the HOA Board. Recall

that the version of the letter sent to the Morrises in response

to their pre-purchase inquiry about hosting the Christmas

program at West Hayden Estates included the following two

paragraphs:

And finally, I am somewhat hesitant in

bringing up the fact that some of our residents

are non-Christians or of another faith and I

don’t even want to think of the problems that

could bring up.

It is not the intention of the Board to

discourage you from becoming part of our

great neighborhood but we do not wish to

become entwined in any expensive litigation

to enforce long standing rules and regulations

and fill our neighborhood with the hundreds

of people and possible undesirables.

Again, plaintiffs in an FHA action need not “prove that

the discriminatory purpose was the sole purpose of the

challenged action”; they need only demonstrate that such a

purpose “was a ‘motivating factor.’” Ave. 6E Invs., 818 F.3d

at 504 (emphasis added) (quoting Arce, 793 F.3d at 977).

Our present inquiry, then, is whether the January 2015 letter,

viewed alongside other evidence in the record, could serve

as evidence that the Board was actually motivated, at least in

part, by an anti-religious discriminatory purpose. Pac.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 27

Shores Props., 730 F.3d at 1158; Ave. 6E Invs., 818 F.3d at

504.5

Principally, then, the Morrises’ discrimination claim

relies on Ron Taylor’s statement that “somebody in th[e]

association doesn’t like Christmas,” and the sentence in the

final 2015 letter: “And finally, I am somewhat hesitant in

bring[ing] up the fact that some of our residents are non-

Christians or of another faith and I don’t even want to think

of the problems that could bring up.”

Viewing this evidence in the light most favorable to the

Morrises, Corbello, 974 F.3d at 973, there is sufficient

“evidence adequate to support the jury’s conclusion” that the

Board violated § 3617, Johnson, 251 F.3d at 1227. To be

sure, there is also sufficient evidence to have permitted the

jury to draw the conclusion—endorsed by the district court’s

JMOL decision and Judge Tashima’s dissenting opinion—

5

The draft letter, revised before the January 2015 letter was sent, read:

And finally, I am somewhat hesitant in bring[ing] up

the fact that some of our residents are avowed atheists

and I don’t even want to think of the problems that

could bring up.

It is not the intention of the Board to discourage you

from becoming part of our great neighborhood but we

do not wish to become entwined in any expensive

litigation to enforce long standing rules and

regulations and fill our neighborhood with the riff-raff

you seemed to attract over by WalMart.. Grouse

Meadows indeed!!! We don’t allow “those kind” in

our neighborhood.

Our focus is on the letter actually sent. The draft letter is pertinent only

for whatever light it throws on what the jury could have concluded

regarding the motives behind the letter sent.

28 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that the Board’s conduct was motivated only by concern

about potential disruption and a desire to maintain harmony

in the West Hayden Estates neighborhood. Tashima Dissent

at 56–60, citing Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252 (1977) and Ave 6E Invs., 818 F.3d

493). But again, in “assessing the propriety” of a grant of

JMOL, we are constrained to “protect[] the province of the

jury” by refraining from “weigh[ing] evidence,” which

necessarily precludes us from determining which of the

plausible conclusions to which a jury could arrive is best

supported by the evidence. Harper v. City of Los Angeles,

533 F.3d 1010, 1021 (9th Cir. 2008). We may look only to

whether there was “evidence adequate to support the jury’s”

actual conclusion. Johnson, 251 F.3d at 1227.6

There was such evidence. The Board’s letter to the

Morrises could reasonably be read to indicate that the

program’s association with the Christian faith was one

6

Avenue 6E and Arlington Heights do not alter this standard of review.

Judge Tashima’s partial dissent is correct, Tashima Dissent at 56–58,

that courts deciding whether a discriminatory purpose was a motivating

factor must consider the broad context of a defendant’s actions, including

“events leading up to the challenged decision . . . the defendant’s

departure from normal procedures or substantive conclusions, and the

historical background of the decision and whether it creates a disparate

impact.” Ave. 6E Invs., 818 F.3d at 504. Arlington Heights similarly

states that “[d]etermining whether invidious discriminatory purpose was

a motivating factor demands a sensitive inquiry into such circumstantial

and direct evidence of intent as may be available.” 429 U.S. at 266.

Avenue 6E and Arlington Heights thus make clear the broad scope of

evidence relevant to a discriminatory purpose inquiry that may be

presented to the jury. They do not alter the constraints on a court

reviewing the propriety of a grant of JMOL based on that evidence. We

are not permitted to determine the most reasonable conclusion to which

a trier of fact could arrive, or, otherwise stated, to weigh evidence—that

is the province of the jury in the first instance. Harper, 533 F.3d at 1021.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 29

consideration in the Board’s opposition to the show. In

addition, in his recorded argument with Jeremy Morris, Ron

Taylor stated that “somebody in this association . . . not

lik[ing] Christmas” was one reason why the Board continued

to oppose the Morrises’ Christmas program. These

statements sufficiently support an inference by the jury that

an anti-Christian purpose was at least a motivating factor in

the Board’s conduct regarding the proposed Christmas

event, independent of any other concerns also underlying

that conduct. And given this permissible inference, there

was sufficient evidence for the jury rationally to conclude

that the Board interfered with the Morrises’ exercise of their

right to purchase and enjoy their home at least in part

because of their religious expression, and therefore violated

§ 3617 of the FHA.

As we are constrained to “protect[] the province of the

jury” by looking only to whether there is “evidence adequate

to support the jury’s conclusion,” even where, as here, other

conclusions would have enjoyed sufficient support in the

record, Harper, 533 F.3d at 1021, we reverse the grant of

JMOL as to the Morrises’ § 3617 claim.

ii. Harassment by West Hayden Estates

Residents

The Morrises contend additionally that the HOA’s

toleration of threats and harassment targeted at the Morrises

by other residents of West Hayden Estates violated

§ 3604(b) of the FHA. We agree that in appropriate

circumstances, § 3604(b) does forbid pervasive harassment

linked to a protected category, here, religion. But the record

does not support the conclusion that the HOA may be held

responsible for the harassment of the Morrises that occurred.

30 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In considering this harassment claim, we first clarify the

scope of the FHA’s anti-discrimination provisions. In CCCI

v. City of Modesto, we held that the FHA’s protections

extend to a tenant or homeowner’s “continuing rights, such

as the privilege of quiet enjoyment of the dwelling.”

583 F.3d at 713. Liability under the FHA’s anti-

discrimination provisions can therefore attach to conduct

that occurs both before and after the sale or rental of a home,

including “a whole host of situations . . . not amounting to

constructive eviction.” Id. at 714; see Harris, 183 F.3d at

1054.

Other federal courts of appeals have recognized that the

FHA’s prohibition on post-acquisition discrimination

encompasses a prohibition against “discriminatory

harassment that unreasonably interferes with the use and

enjoyment of a home—by another name, a hostile housing

environment.” Wetzel v. Glen St. Andrew Living Cmty.,

LLC, 901 F.3d 856, 861 (7th Cir. 2018)). See also

Neudecker v. Boisclair Corp., 351 F.3d 361, 364–65 (8th

Cir. 2003); Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir.

1993). We now join these circuits and hold that § 3604(b)

of the FHA prohibits the creation of a hostile housing

environment based on “race, color, religion, sex, familial

status, or national origin.” See Wetzel, 901 F.3d at 861.

The anti-discrimination provisions of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17,

have long been understood to provide a cause of action for

claims arising out of a hostile work environment. See, e.g.,

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54

(1998); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th

Cir. 1995) (as amended). Although the hostile environment

theory of discrimination was first discussed in the context of

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 31

sexual harassment, see Meritor Sav. Bank, 477 U.S. at 73, it

has since been applied to claims of discrimination on the

basis of protected characteristics other than sex, see Dawson

v. Entek Int’l, 630 F.3d 928, 939 (9th Cir. 2011) (sexual

orientation); Vasquez v. County of Los Angeles, 349 F.3d

634, 642 (9th Cir. 2003) (as amended) (race); see also, e.g.,

Huri v. Off. of the Chief Judge of the Circuit Ct. of Cook

Cnty., 804 F.3d 826, 833–34 (7th Cir. 2015) (religion and

national origin).

“We apply Title VII discrimination analysis in

examining Fair Housing Act . . . discrimination claims.”

Gamble, 104 F.3d at 304. Because we recognize that the

anti-discrimination provision of Title VII—under which it is

unlawful to “discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin,” 42 U.S.C. § 2000e-

2(a)(1)—prohibits the creation of a hostile work

environment, it follows that the parallel language of the

FHA, which prohibits “discriminat[ion] against any person

in the terms, conditions, or privileges of sale or rental of a

dwelling . . . because of race, color, religion, sex, familial

status, or national origin,” 42 U.S.C. §3604(b), likewise

prohibits discriminatory harassment that creates a hostile

environment. See Wetzel, 901 F.3d at 863. Adapting the

Title VII framework to the Fair Housing context, a plaintiff

may establish that he suffered a hostile housing environment

by showing that he was subjected to (1) severe or pervasive

harassment (2) that was based on a protected characteristic,

here religion, and (3) that the defendant is responsible for the

resulting hostile housing environment. See Christian v.

Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020); see also

Wetzel, 901 F.3d at 861–62. In this case, the third prong—

32 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

the question of derivative liability for harassment—

forecloses the Morrises’ harassment claim.

According to the Morrises, the HOA bears some

responsibility for harassing behavior perpetrated by Larry

Bird and other West Hayden Estates residents.7 In support

of this argument, the Morrises rely on an out-of-circuit case,

Wetzel, which held that a landlord who has “actual notice of

tenant-on-tenant harassment based on a protected status,” is

liable under the FHA where the landlord “chooses not to take

any reasonable steps within its control to stop that

harassment.” Wetzel, 901 F.3d at 859. Wetzel involved St.

Andrews, a “residential community for older adults.” Id.

The Wetzel opinion made clear that St. Andrews’s potential

liability for tenant-on-tenant harassment—harassment that

went “far beyond mere rudeness, all the way to direct

physical violence,” id. at 866—hinged on whether the

7

The harassment evidence was excluded by the district court on the

ground that the HOA was not liable for actions taken by residents who

were not “(1) members of the board, (2) agents of the HOA, [or] (3)

employees of the HOA;” the jury was directed to disregard the evidence.

See infra, p. 43, n. 12. The evidence included testimony concerning a

number of incidents involving the Morrises’ neighbors, some of it

contested. For example, Kristy Morris testified at trial that, during the

Morrises’ 2015 Christmas show, Bird accosted Jeremy Morris in the

Morrises’ driveway and threatened that he and other West Hayden

Estates residents had “enough guns and ammunition that will take care

of you.” One of the Morrises’ volunteers testified that, during the 2016

program, a West Hayden Estates neighbor screamed obscenities at her

and told her she “was not welcome in the neighborhood.” And a visitor

to the 2016 program testified that one of the Morrises’ neighbors kicked

the side of her car and demanded to know “why are you in my

neighborhood?”

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 33

landlord “had, but failed to deploy, available remedial tools”

against harassing residents. Id. at 865.8

The power to address discriminatory conduct against a

resident by a third party “depends upon the extent of the

[defendant’s] control or any other legal responsibility the

[defendant] may have with respect to the conduct of ” that

third-party. 24 C.F.R. § 100.7(a)(iii). The Morrises were

homeowners. The West Hayden Estates HOA—unlike the

defendant in Wetzel—is not a landlord. Unlike a landlord,

the HOA cannot threaten or carry out eviction or expulsion

of harassing residents, who are also homeowners. Cf.

Wetzel, 901 F.3d at 865–66.

The Board does have the power, via the CC&Rs, to

enforce HOA rules against association members. That

power includes the enforcement of the CC&Rs via the

remedies outlined in the rules themselves. The Morrises

argue that the HOA’s power to seek to enjoin breaches of the

CC&Rs by filing a lawsuit demonstrates that the Board is

liable for harassing conduct by West Hayden Estates

residents. But to support the assertion that the HOA has the

power to address neighbor-on-neighbor harassment, the

Morrises point only to the fact that the HOA once “sent a

letter to one homeowner whose dog had bitten a child

8

The Morrises also cite a Second Circuit case, Francis v. Kings Park

Manor, Inc., 944 F.3d 370 (2d Cir. 2019), vacated, 992 F.3d 67 (2d Cir.

2021) (en banc). The opinion the Morrises rely upon was vacated by the

en banc Second Circuit, which held that although some landlords may

exercise control over co-tenants sufficient to confer FHA liability for

tenant-on-tenant harassment, this degree of control cannot be presumed

to exist in the landlord-tenant relationship under New York law.

Francis, 992 F.3d at 77–80.

34 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

requiring that owner to fence their animal—and the owner

complied.”

This incident demonstrates the HOA’s power to enforce

rules enumerated in the CC&Rs. Those rules specifically

require that dogs “shall be contained when on” an owner’s

lot and which reserve to the Board the power to “require

removal of any pet which it finds disturbing other owners

unreasonably.” The Morrises do not point to any CC&R

provision violated by Bird’s or other neighbors’ behavior

toward the Morrises, or toward volunteers at or visitors to

the Morrises’ Christmas event, or any CC&R remedy that

the Board could have deployed against them for what they

did.

Liability for third-party conduct under the FHA is fact-

dependent. We do not hold that an HOA can never bear

responsibility for discriminatory harassment inflicted by one

member on another. In this case, however, the Morrises’

arguments are devoid of any demonstration that the

“remedial tools” available to the Board extended to the

power to intervene in disputes between neighbors. Wetzel,

901 F.3d at 865.

On the facts of this case, the HOA was not liable for the

allegedly harassing conduct of West Hayden Estates

residents. We therefore need not resolve whether the alleged

harassment by Bird and others was “severe or pervasive” or

whether it was based on a protected characteristic. Umpqua

Bank, 984 F.3d at 809.

iii. The January 2015 Letter

In addition to their § 3604(b) and § 3617 claims, the

Morrises challenge the HOA Board’s January 2015 letter

under § 3604(c) of the FHA. That section prohibits any

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 35

party engaged in the sale or rental of a dwelling from

“mak[ing], print[ing], or publish[ing] . . . any notice,

statement, or advertisement, with respect to the sale or rental

of a dwelling that indicates any preference, limitation, or

discrimination based on” a protected characteristic,

including religion. 42 U.S.C. § 3604(c); 24 C.F.R.

100.75(b).

Once again, we first clarify the appropriate standard for

determining whether a statement violates § 3604(c) of the

Fair Housing Act. We now follow every other federal court

of appeals to consider the question and adopt an objective

“ordinary reader” standard. See Jancik v. Dep’t of Hous. &

Urb. Dev., 44 F.3d 553, 556 (7th Cir. 1995) (collecting cases

from the Second, Fourth, and Sixth Circuits); see also Spann

v. Colonial Vill., Inc., 899 F.2d 24, 29 (D.C. Cir. 1990)

(applying a “reasonable reader” standard). Under this

standard, a plaintiff need not present evidence that the

defendant harbored a discriminatory purpose. Rather, a

statement violates § 3604(c) if “an ordinary listener would

believe that [it] suggests a preference, limitation, or

discrimination based on a protected status.” Corey v. Sec’y,

U.S. Dep’t of Hous. & Urb. Dev. ex rel. Walker, 719 F.3d

322, 326 (4th Cir. 2013) (citing White v. U.S. Dep’t of Hous.

& Urb. Dev., 475 F.3d 898, 905–906 (7th Cir. 2007)). Put

simply, the “touchstone” of a § 3604(c) claim “is . . . the

message.” Ragin v. N.Y. Times Co. (Ragin I ), 923 F.2d 995,

1000 (2d Cir. 1991).

An objective, ordinary-reader-focused standard for

communications regarding the sale or rental of a dwelling

best assures that prospective buyers or renters will not be

discouraged by discriminatory advertisements or other

communications from seeking homes offered for sale or

rental. Under this objective standard, evidence of a speaker

36 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

or creator’s intent may be relevant insofar as it illuminates

the likely understanding of the message by viewers. But the

scope of § 3604(c) liability is defined by the statement’s

impact on the reader, viewer, or listener, not by the

subjective motivations of the speaker. See id. Nor is the

speaker’s stated intent dispositive. Accepting a speaker’s

disclaimer that he or she “means no offense” as proof of

intent would allow the publisher of a discriminatory

statement to escape liability no matter the statement’s impact

on ordinary readers. See id.

Following the FHA’s “broad and inclusive ‘compass,’”

City of Edmonds, 514 U.S. at 731 (quoting Trafficante v.

Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)), statements

need not “jump out at the reader with their offending

message” to violate § 3604(c), Jancik, 44 F.3d at 556. Most

discriminatory messages are far “more subtle than the

hypothetical swastika or burning cross.” Ragin I, 923 F.2d

at 999. For § 3604(c) to have force, its prohibition must

extend beyond facially discriminatory messages to

“expression[s] of a tacit preference not to provide housing to

members of protected groups.” Soules v. U.S. Dep’t of Hous.

& Urb. Dev., 967 F.2d 817, 824–25 (2d Cir. 1992).

Discriminatory “comments or actions may appear innocent

or only mildly offensive to one who is not a member of the

targeted group, but in reality be intolerably abusive or

threatening when understood from the perspective of a

plaintiff who is a member of the targeted group.” McGinest,

360 F.3d at 1116; see also Ragin I, 923 F.2d at 999–1000;

Jancik, 44 F.3d at 556.

At the same time, the ordinary reader “is neither the most

suspicious nor the most insensitive of our citizenry,” Ragin

I, 923 F.2d at 1002. Merely mentioning one of the protected

characteristics identified in § 3604(c), without more, does

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 37

not necessarily convey a “preference, limitation, or

discrimination” forbidden by the FHA, particularly if “there

are situations in which it is legitimate” to do so. Soules, 967

F.2d at 824. The notice or statement at issue must be read

“in light of all the circumstances” to determine whether an

ordinary reader under those circumstances would understand

the statement to indicate a forbidden preference or

limitation. Id.

Soules, for instance, explained that a statement inquiring

“about the number of individuals interested in occupying an

apartment and their ages” did not indicate to the ordinary

reader a forbidden preference or limitation based on familial

status. Id.; see 42 U.S.C. §§ 3602 (defining familial status),

3604(a). “Local zoning regulations” could “constitute a

valid reason for asking whether and how many children a

prospective tenant has,” and “[c]onditions in the

neighborhood known to be either ideally suited to or

inherently dangerous to occupancy by families with children

might well permit an inquiry about the ages of the family

members.” Soules, 967 F.2d at 824. In light of these

considerations, Soules held, the questions asked would not

convey to the ordinary reader the proscribed discriminatory

preference or limitation based on familial status.

Turning to the facts of this case: First, the parties assume

the HOA’s January 2015 letter is a statement subject to

§ 3604(c). The HOA does not argue otherwise. And

although a “stray remark . . . unrelated to the decisional

process” is insufficient to establish a § 3604(c) violation,

Harris, 183 F.3d at 1055 (internal quotation marks omitted),

the Board’s mention of the Morrises’ faith was neither

“stray” nor unrelated to the Board’s treatment of the

Morrises. The statement was explicitly presented as a reason

for opposing the Christmas program, in an official

38 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

communication that went through at least one round of

drafting and revision.

In their Complaint, the Morrises asserted: “The HOA

printed a statement in the form of a certified letter which

indicated a preference for non-religious homeowners.” The

jury instructions and verdict form followed this same format.

If properly raised on appeal, a statutory theory different

from the one underlying the jury instruction can be the basis

for “reviewing a motion for judgment as a matter of law,” as

then “we apply the law as it should be, rather than the law as

it was read to the jury.” Spencer v. Peters, 857 F.3d 789 (9th

Cir. 2017) (citation omitted). But the Morrises do not

challenge “the sufficiency of the evidence on a legal basis

different from that contained in the instructions.” Air-Sea

Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 182

(9th Cir. 1989). Instead, the Morrises’ argument before us

is limited to whether the evidence is sufficient to support the

jury’s actual finding.9

The jury determined, in its special verdict form, that the

HOA’s January 2015 letter “expressed, in the mind of an

ordinary reader, a preference that a non-religious individual

purchase Mr. and Mrs. Morris’ home.” We agree with the

district court that the HOA was entitled to JMOL on this

claim.

Construing the evidence in the light most favorable to the

Morrises, there was “no legally sufficient evidentiary basis

for a reasonable jury to find” that the January 2015 letter

indicated a preference that a non-religious individual

purchase the Morrises’ home. Sanghvi v. City of Claremont,

9

Whether the Morrises may have succeeded on appeal on a different

theory of the meaning of § 3604(c) is therefore not at issue.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 39

328 F.3d 532, 536 (9th Cir. 2003) (quoting Fed. R. Civ. P.

50(a)). The HOA’s January 2015 letter to the Morrises

expressed concern about the Morrises’ proposed Christmas

program, in part because of “the fact that some of our

residents are non-Christians or of another faith” and

suggested that, for that reason, the Christmas program

“could bring up” “problems” in the neighborhood. Our

question is how an ordinary reader would have interpreted

the letter “in light of all the circumstances.” Soules, 967 F.2d

at 824.

The majority of the panel has held with regard to the

§ 3617 claim that the record evidence, particularly the

January 2015 letter, was sufficient to allow the jury to infer

that the Board’s disapproval and discouragement of the

Morrises’ Christmas pageant was at least in part motivated

by the program’s association with the Christian faith. See

Part II.a.i.2, supra. At the same time, considering the

Board’s January 2015 letter as a whole, a reasonable jury

could not have concluded that the letter indicated “a

preference that a non-religious individual purchase” the

Morrises’ home.

The Board’s letter was not concerned with the Morrises’

personal religiosity. Instead, the letter was concerned only

with discouraging the proposed holiday program, even if—

as a majority of the panel has concluded—the evidence

supports the conclusion that the opposition to the event was

in part because it was associated with the Christian faith.

Viewing the letter as a whole, an ordinary reader would

understand the Board to have indicated a preference,

limitation, or discrimination based not on whether the

prospective homeowners were themselves religious or non-

religious, Christian or atheist, but on whether the event they

proposed to host once a year would disturb the neighbors,

40 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

both by its size and raucousness and by offending non-

Christians. Although a majority of the panel has concluded

that the latter motive offends § 3617, that determination does

not indicate that the HOA cared at all about whether the

Morrises or other residents were personally religious,

including whether they practiced Christianity.

Nor does the letter through its use of the word

“undesirables,” see supra at 22–23, or otherwise, plausibly

disparage Christians generally. Rather, the concern

expressed regarding “undesirables” was that “hundreds” of

non-resident visitors driving through the neighborhood

might include unruly individuals who would interfere with

residents’ “quiet enjoyment” of their property. The event

itself was largely secular—there’s nothing religious about

Clifford the Big Red Dog or hot chocolate elves—so the

attendees were as likely to come for the spectacle and

libations as for religious observation. No ordinary reader of

the January 15 letter would conclude that the “undesirables”

referred to were religious—or Christian—individuals.

Moreover, contrary to showing a preference for a non-

religious purchaser as the jury concluded, the letter several

times expressed appreciation and respect for religious

exercise, the Morrises’ religion included. Although the letter

expressed concern about the “magnitude” of Morrises’

“holiday festival,” it also emphasized that “[t]ypical holiday

lighting has always been allowed” in West Hayden Estates.

In light of these statements, the letter’s sentence about

the impact of the Morrises’ program on residents who “are

non-Christians or of another faith,” would not be read by an

ordinary reader as a preference concerning prospective

homebuyers’ personal religiosity. Nor could an ordinary

reader, viewing the Board’s January 2015 letter as a whole,

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 41

come to the jury’s conclusion that the letter expressed “a

preference that a non-religious individual purchase Mr. and

Mrs. Morris’ home.” We therefore hold that the district

court did not err by granting JMOL to the HOA on the

Morrises’ § 3604(c) claim.10

b. New Trial

Because we reverse in part the district court’s grant of

JMOL, we next consider the court’s alternative grant of a

new trial.

A district judge may set aside a jury’s verdict if,

“weigh[ing] the evidence as he saw it,” he concludes that the

verdict, “even though supported by substantial evidence . . .

is contrary to the clear weight of the evidence, or is based

upon evidence which is false,” or that a new trial is necessary

“to prevent, in the sound discretion of the trial judge, a

miscarriage of justice.” Moist Cold Refrigerator Co. v. Lou

Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957). On a Rule

59 motion for a new trial, unlike on a JMOL motion, the trial

10

In Judge Berzon’s view, this conclusion is consistent with this

opinion’s holding that sufficient evidence in the record supported the

jury’s verdict as to the Morrises’ § 3617 claim. To establish

discrimination under § 3617, the Morrises needed only to show that

discriminatory purpose was a “motivating factor” for the HOA’s specific

actions with regard to the planned Christmas program. Ave. 6E Invs.,

818 F.3d at 504 (quoting Arce, 793 F.3d at 977). The jury’s special

verdict on the § 3604(c) claim—that the HOA’s January 2015 letter

“expressed, in the mind of an ordinary reader, a preference that a non-

religious individual purchase” a home in the subdivision—found a

blanket non-religious preference as to the ownership of the home,

without regard to the nature of any particular event. That the HOA Board

had a religion-based motive for opposing the event does not demonstrate

that the letter communicated to an ordinary reader an anti-religious

preference regarding purchasers in general or the Morrises’ in particular,

which is the preference the jury identified.

42 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

court may weigh the evidence and assess the credibility of

witnesses and is not required to view the evidence in the light

most favorable to the verdict. Experience Hendrix L.L.C. v.

Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir.

2014) (as amended).

The grant of a new trial is reviewed for abuse of

discretion, so we may reverse only if the district court’s

conclusion is “illogical, implausible, or without support in

the inferences that may be drawn from the record.” Kode v.

Carlson, 596 F.3d 608, 612 (9th Cir. 2010). With these

principles in mind, we affirm the district court’s decision to

grant a new trial as to the Morrises’ § 3617 claim.

First, the district court believed that granting a new trial

was necessary “to prevent . . . a miscarriage of justice.”

Moist Cold Refrigerator Co., 249 F.2d at 256. The district

court concluded after trial that the HOA was unfairly

prejudiced by the admission of a great deal of evidence—

ultimately stricken—of threats and harassment against the

Morrises by other homeowners in West Hayden Estates.11

Specifically, the jury heard testimony from seven witnesses,

all of whom testified that they observed threatening or

confrontational behavior from other residents of West

Hayden Estates. Both Kristy and Jeremy Morris also

testified about an asserted “death threat” they received from

one neighbor, Larry Bird. That asserted death threat was

11

The district court did not specifically identify these evidentiary issues

in the portion of the order analyzing whether to grant a new trial. But

the district court spent several pages explaining why the HOA was

unfairly prejudiced by the testimony regarding threats to the Morrises,

and earlier in the order stated that a “new trial may also be granted if the

Court concludes that a party was prejudiced by erroneous evidentiary

decisions.” See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th

Cir. 1999).

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 43

described—but not itself captured—in a recording of a

conversation between Jeremy Morris and Ron Taylor, in

which Jeremy Morris characterized Bird as “threatening to

murder my family.”

The district court eventually determined that this

evidence should be stricken and instructed the jury to

disregard it.12 The jury, however, heard a lot of such

testimony from several witnesses. The jury was also shown

exhibits regarding alleged threats by non-Board-members

against the Morrises and visitors to their Christmas program.

For that reason, the district court concluded, it was

“exceedingly unlikely that the jury was actually able to set

aside” all of that evidence. The court also determined that

the prejudice suffered by the HOA “was compounded by the

fact that Plaintiffs’ characterization of Mr. Bird’s statements

as a ‘death threat’ is an embellishment.” 13

Although, as the district court acknowledged, a court

must ordinarily presume that the jury will follow the court’s

instructions, see Weeks v. Angelone, 528 U.S. 225, 234

(2000), the district court here did not abuse its discretion by

determining that the admission of the disturbing harassment

evidence might have unfairly prejudiced the jury against the

12

As discussed, supra at Part II.a.ii, we agree with the district court’s

conclusion that the West Hayden Estates HOA is not liable for alleged

harassment by the Morisses’ neighbors. Because the HOA was not liable

for this harassment, it was not an abuse of discretion for the district court

to regard evidence relating to the alleged harassment as improperly

admitted and to be extraneous to the surviving claims.

13

As mentioned earlier, see supra note 7, Kristy Morris testified that

Larry Bird told Jeremy Morris “we have enough guns and ammunition

that will take care of you.” A partial video of the incident does not

capture this statement; it contains only the Morrises’ assertion that Larry

Bird said he would “take care of” Jeremy Morris.

44 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

HOA. A critical component of the Morrises’ § 3617 claim

was that the HOA had a discriminatory motive in opposing

the Christmas program, whereas the HOA argued at trial that

its actions were motivated by a desire to avoid the disruption

to the neighborhood that would occur with an event of the

Christmas program’s scale. It was not illogical for the

district court to conclude that the many witnesses and

exhibits suggesting that individual West Hayden Estates

residents harassed and harbored animus toward the Morrises

might have colored the jury’s assessment of the HOA

Board’s motive.

The district court also based its grant of a new trial on its

determination that the verdict was against the weight of the

evidence because the Morrises’ principal witness—Jeremy

Morris—was not credible and the HOA’s witnesses,

including Jennifer Scott, were “convincing and credible.”

The district court determined that Jeremy Morris’s testimony

was inconsistent with video, photographic, and documentary

evidence and that his account of the HOA Board as the

aggressor in the conflict over the Christmas program was

inconsistent with record evidence that he was “aggressively

confrontational” and “routinely threatened them with

litigation.” By contrast, the district court found the

testimony of the HOA’s witnesses, including Jennifer Scott,

president of the Board at the time the January 2015 letter was

drafted, credible and consistent.

After reviewing the record carefully, we cannot say that

the district court’s determination was “illogical, implausible,

or without support in the inferences that may be drawn from

the record.” Kode, 596 F.3d at 612. As Judge Tashima’s

partial dissent explains, the Morrises’ discrimination claim

was neither robust nor unassailable. See Tashima Dissent at

52–55. Contrasting conclusions could be drawn from the

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 45

few pieces of evidence in the record that support the jury’s

verdict on the § 3617 claim. Moreover, as the district judge

noted, Jeremy Morris’s testimony was inconsistent with

documentary evidence in the trial record. In particular,

Morris often downplayed the scale of his Christmas program

in his testimony. He testified, for instance, that he left his

roughly 200,000 Christmas lights on past 8:00 PM only one

year, on Christmas Eve and Christmas Day, but as the

HOA’s counsel pointed out on cross-examination, Morris

advertised on his Facebook page that he would leave his

lights on until 10:00 PM from December 23 to Christmas

Day in 2016.14 The record also contains multiple recordings

of Jeremy Morris initiating altercations with his neighbors

and thus supports the district court’s determination that

Morris was “aggressively confrontational,” a conclusion that

could cast doubt on his credibility.

In contrast to Jeremy Morris’s testimony, the district

court found Jennifer Scott’s testimony consistent and

credible. The thrust of Scott’s testimony was that the HOA

Board was not motivated by opposition to Morris’s religion

but rather was “really concerned about some of the CC&R

violations.” She and another Board member, Pat Keilig, also

testified that the Board was “mostly” concerned about “the

traffic” and attendant safety risks “that the light show would

cause,” consistent with the Board’s January 2015 letter. And

14

The trial record shows other inconsistencies as well. For example,

Morris testified that he did not want traffic at the event, but in his 2016

Facebook post, he encouraged visitors to “come directly to see” his

Christmas lights in their cars. Both Jeremy and Kristy Morris initially

testified that Jeremy Morris never used a bullhorn at the West Hayden

Christmas events, but Jeremy Morris’s testimony later admitted bullhorn

use after further questioning and the presentation of contrary video

evidence.

46 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

with respect to the one sentence in the Board’s January 2015

letter that referenced religion, both Scott and another Board

member, Ron Taylor, testified the full Board never approved

that language and that they would not have approved sending

the letter with that language in it.15

So, on the one hand, Jeremy Morris’s testimony depicted

the Christmas program as less disruptive than the

documentary evidence demonstrated and painted the HOA

as arbitrarily enforcing the CC&Rs against him. The district

court had a basis in the record to conclude that that testimony

was not credible. On the other hand, the testimony of

Jennifer Scott and the HOA’s other witnesses, the district

court believed, was credible. That testimony supported the

conclusion that the Board did not have a discriminatory

motive for opposing the Christmas program. A

determination of discriminatory intent must turn, at least in

part, on the factfinder’s assessment of the relevant party’s

subjective motivations, and it is the province of the trial

court to make credibility determinations in the context of a

new trial motion. See Kirola v. City & County of San

Francisco, 860 F.3d 1164, 1182 (9th Cir. 2017); Kode, 596

F.3d at 612. The district court therefore did not abuse its

discretion in determining that the jury’s verdict for the

Morrises was “contrary to the clear weight of the evidence,

15

Keilig testified that she sent the letter to the Morrises in a rush to give

them an answer about the Christmas event’s status under the CC&Rs and

that, when she mailed the letter, she “didn’t realize it wasn’t really signed

off” by “the board.”

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 47

or . . . based upon evidence which is false.” Moist Cold

Refrigerator Co., 249 F.2d at 256. 16

The district court’s grant of a new trial was within its

discretion.17

16

Our dissenting colleague as to this issue, Judge Collins, disagrees,

stating that “a simplistic wholesale rejection of all of one side’s

witnesses and evidence based on little more than a wholesale rejection

of one of that side’s witnesses . . . is a clear abuse of discretion.” Collins

Dissent at 99. The district court’s decision concerning the additional

witnesses is not determinative here, given that there was no abuse of

discretion concerning its credibility determination of the principal

witnesses, Jeremy Morris and Jennifer Scott, and our holding that the

HOA is not liable for the actions of the neighbors.

We note as well that Judge Collins highlights testimony that tends

to show the minimal impact of the Morrises’ actual 2015 and 2016

holiday events, Collins Dissent at 76–79, but there is testimony

supporting the opposite conclusion. The actual impact of the Christmas

events is not particularly relevant to the Morrises’ various FHA claims,

as those claims concern the HOA Board’s actions before the events were

held at West Hayden Estates. But the differences in the accounts of what

actually happened during the 2015 and 2016 events could be pertinent to

the credibility of the witnesses. So, to place Judge Collins’ account in

context: Witnesses did explain that there were “lots of lights;” and that

they were “bright;”, and one person testified that she was drawn to the

Morrises display because “when you go around town looking for

Christmas lights, you go for the ones that have the most.” An attendee,

familiar with the neighborhood, testified that she noticed an increase in

cars parked on the street and that, with the buses bringing people in and

out of the neighborhood there was “a lot of coming and going” and “more

[traffic] than what would be usual.” That attendee, also a volunteer at

the event, testified that she saw “hundreds” of people each night “at any

single time.” Several of the witnesses mentioned the presence of Dolly

the camel in the Morrises’ front yard, and, one year, a miniature donkey.

The police were called on several occasions.

17

Because we affirm the grant of a new trial, we do not reach the question

whether, in the alternative, remittitur was appropriate.

48 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

c. Injunction

Finally, we address the district court’s grant of injunctive

relief to the HOA.

After granting the HOA’s JMOL motion on all of the

Morrises’ claims, the district court issued an injunction

preventing the Morrises “from hosting a Christmas program

in the West Hayden Estates that violates the CC&Rs in the

manner described in” the district court’s post-trial order.

Specifically, the district court concluded that the Morrises’

Christmas programs violated, among other provisions, the

sections of the CC&Rs prohibiting “decorat[ing] the exterior

of any building . . . visible from a neighboring lot,” using a

dwelling “for any purpose other than a single-family

residential purpose,” and using a dwelling in a way “which

would in any way interfere with the quiet enjoyment of”

other residents.

The district court’s decision to enjoin the Morrises’

Christmas program was premised on its conclusions that the

HOA was entitled to JMOL on all of the Morrises’ claims

and that no reasonable jury could conclude that the HOA’s

attempts to stop the Morrises’ Christmas program were

motivated in part by religious animus. As explained above,

we agree with the Seventh Circuit’s decision in Bloch that

discriminatory enforcement of HOA rules, even facially

neutral rules, can violate the FHA. Bloch, 587 F.3d at 783–

86. Although the HOA never actually sought judicial

enforcement of the CC&Rs against the Morrises in this case,

the HOA’s counterclaim against the Morrises would seek to

do exactly that.

Because a majority of the panel has determined that the

HOA is entitled to a new trial on the Morrises’ § 3617 claim,

during which a jury will have a new opportunity to determine

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 49

whether the HOA’s conduct toward the Morrises was

motivated at least in part by an intent to discriminate against

them based on religion, we vacate the district court’s grant

of an injunction to the HOA. Whether the HOA may enforce

the CC&Rs against the Morrises consistent with the FHA

will depend on whether the jury after retrial concludes that

the HOA was motivated in part by a discriminatory purpose

in its interactions with the Morrises. If the jury so concludes,

and if that decision is supported by sufficient evidence, then

simultaneously permitting an injunction against the Morrises

could have the effect of sanctioning discriminatory reliance

on the CC&Rs. The injunction, therefore, is vacated.

III. Conclusion

A majority of the panel holds that:

The district court properly granted JMOL to the West

Hayden Estates HOA as to the Morrises’ claims of

intentional discrimination under §§ 3604(b) and 3604(c) of

the FHA. But a reasonable jury could find that the Board

interfered with the Morrises’ right to purchase and enjoy

their home free from discrimination, so the grant of JMOL

as to the § 3617 claim is reversed. The district judge did not

abuse his discretion in holding that the jury’s verdict was

against the clear weight of evidence; we therefore affirm the

grant of a new trial as to the Morrises’ § 3617 claim and

remand. Finally, we vacate the grant of an injunction against

future productions of the Christmas program, which the

district court may reconsider following retrial of the

Morrises’ remaining FHA claim.

In so holding, we are mindful of the FHA’s “‘broad and

inclusive’ compass” and “the Act’s stated policy ‘to provide,

within constitutional limitations, for fair housing throughout

the United States.’” City of Edmonds, 514 U.S. at 731 (first

50 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

quoting Trafficante, 409 U.S. at 209 and then quoting 42

U.S.C. § 3601). Accordingly, although the discrimination

alleged by the Morrises may have been subtle, we cannot

“trivialize” the FHA “by construing it to outlaw only the

most provocative and offensive expressions” of bias. Ragin

I, 923 F.2d at 999.

AFFIRMED in part, REVERSED in part, and

REMANDED.

TASHIMA, Circuit Judge, dissenting in part:

I believe that the district court properly granted the

motion of the West Hayden Estates First Addition

Homeowners Association (the HOA) for judgment as a

matter of law (JMOL) on all the Morrises’ claims because

the evidence permits only one reasonable conclusion: the

HOA was concerned about the Morrises’ holiday events

because of the size and scale of the events, not because of

the Morrises’ religion. See Morris v. W. Hayden Ests. First

Addition Homeowners Ass’n, 382 F. Supp. 3d 1093, 1105

(D. Idaho 2019); see also Reed v. Lieurance, 863 F.3d 1196,

1211 (9th Cir. 2017) (stating that “[j]udgment as a matter of

law is appropriate when the evidence presented at trial

permits only one reasonable conclusion” (quoting Torres v.

City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008))).

The HOA consistently expressed concern about the effect

the events would have on the residential neighborhood:

hundreds of people arriving every night for multiple nights,

cars and buses clogging the streets, choirs singing and music

playing outside the house through speakers, excessive lights,

a camel, and other animals in the front yard. The primary

evidence the Morrises proffered to support their claim was

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 51

the January 2015 letter sent by the board, which the district

court aptly characterized as “the crux of Plaintiffs’ case.”

Morris, 382 F. Supp. 3d at 1099. The Morrises relied, and

continue to rely, on both the initial draft of the letter and the

letter that ultimately was sent to the Morrises.1 As the

district court reasoned, the letter indicated the HOA Board’s

intention to be sensitive to religious differences, not a

religious preference. Id. at 1100-01. The evidence

unequivocally shows that the HOA did not oppose the

Morrises’ Christmas programs because of religion but

because of problems created by the crowds, noise, and traffic

generated by the events. Thus, there is no evidence to

support the jury’s findings that the HOA intentionally

discriminated against the Morrises based on their religion

during and after the purchase of their home in violation of

42 U.S.C. § 3604(b), that the HOA’s letter expressed a

preference that a non-religious person purchase the home in

violation of § 3604(c), or that the HOA interfered with the

Morrises’ purchase or enjoyment of their home in violation

of § 3617.

Because the evidence is so one-sided, the district court

also properly granted the HOA’s motion for injunctive relief

and did not abuse its discretion in alternatively finding that

the HOA is entitled to a new trial and to remittitur. In all of

its rulings, the district court carefully and thoroughly

1

The majority claims that it relies on the draft of the letter “only for

whatever light it throws on what the jury could have concluded regarding

the motives behind the letter sent.” Maj. op. at 27 n.5. However, as the

district court explained, the draft letter was prepared by Larry Strayer, a

former board member, and was sent without board approval. The letter

thus “has little if any relevance to the Board’s actual intent; at most, it

reveals Mr. Strayer’s feelings about Plaintiffs’ Christmas program.”

Morris, 382 F. Supp. 3d at 1100.

52 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

considered the evidence. The court’s rulings are fully

supported by the record and the law. For these reasons, I

respectfully dissent from Sections II(a)(i)(2) and II(c) of the

majority opinion, reversing the grant of JMOL as to the

§ 3617 claim and vacating the grant of an injunction.

The statute provides that “[i]t shall be unlawful to coerce,

intimidate, threaten, or interfere with any person in the

exercise or enjoyment of . . . any right granted or protected

by section . . . 3604 . . . of this title.” 42 U.S.C. § 3617. The

interference thus must be on account of a prohibited ground,

such as religion. 42 U.S.C. § 3604. Even viewing the

evidence in the light most favorable to the Morrises,

Holzhauer v. Golden Gate Bridge Highway & Transp. Dist.,

899 F.3d 844, 847 (9th Cir. 2018), the evidence permits only

one reasonable conclusion B the board was concerned with

the disruption caused by holding an event of this size and

scale in a residential neighborhood, not the Morrises’

religion.

The majority concludes, and I agree, that the January

2015 letter could not be read as expressing “a preference that

a non-religious individual purchase Mr. and Mrs. Morris’

home” in violation of § 3604(c). Maj. op. at 40–41.

Nonetheless, the majority relies on the letter to conclude that

there is sufficient evidence to support the jury=s finding that

the Board interfered with the Morrises’ purchase of the home

on the basis of religion in violation of § 3617. Maj. op. at

28–29. I disagree that the evidence is sufficient to support

this finding.

The majority first concludes that “there is evidence that

the Board ‘threatened, intimidated, or interfered’ with the

Morrises during the purchase and enjoyment of their home.”

Maj. op. at 22. The majority relies on the Board=s January

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 53

2015 letter, which stated that the Morrises’ “planned event

was ‘prohibit[ed]’ by the CC&Rs and would ‘fill [the]

neighborhood with . . . hundreds of people and possible

undesirables.’ The letter also warned that the Board did ‘not

wish to become entwined in any expensive litigation.’” Maj.

op. at 22–23. This evidence cited by the majority might

support the inference that the board interfered with the

Morrises’ purchase of their home. However, the inquiry is

not whether there was any interference, but whether there

was interference “on account of” a protected ground. 42

U.S.C. § 3617. None of the statements in the letter cited by

the majority support the inference that the Board interfered

with the Morrises’ purchase of their home because of their

religion. Instead, it was clear that the Board was concerned

with the scale of the event and the number of people who

would be attracted to the neighborhood. The Board also was

concerned that, if they allowed the Morrises to conduct the

event, which violated the CC&Rs in numerous ways set forth

in the letter, it might appear to non-Christians that the

Morrises’ Christian event was being favored, resulting in

“expensive litigation.” The majority also relies on the

February 2015 “emergency meeting” called by the board.

However, the evidence cited by the majority similarly

showed the Board was not concerned with the Morrises’

religion. Instead, as the majority states, the Board was

concerned that the program was “an ‘extravagant event

generating excessive traffic,’” the Morrises “had ‘not

obtain[ed] the necessary permits,’” the program would

violate the CC&Rs, and that “allowing such a breach of the

[rules] in this matter w[ould] ultimately lead to further

breaches in other areas within the community.” Maj. op. at

23. Nowhere in this February 2015 meeting is there any

54 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

indication that the Board interfered with the Morrises on the

basis of their religion.

Thus, neither the January 2015 letter nor the February

2015 meeting supports a finding that the Board interfered

with the Morrises on account of their religion. The

majority=s conclusion that Athe January 2015 letter and the

February 2015 meeting could have been construed by the

jury as ‘threatening, intimidating, or interfering’ with the

Morrises’ purchase and enjoyment of their home@ ignores

the requirement that any interference be on account of a

protected ground. Maj. op. at 23.

The January 2015 letter could not have been construed

as interfering with the Morrises’ enjoyment of their home on

account of their religion. The only reference to religion in

the letter was the statement, “I am somewhat hesitant in

bringing up the fact that some of our residents are

non-Christians or of another faith and I don’t even want to

think of the problems that could bring up.” The rest of the

letter focused on the numerous concerns raised by the size

and scope of the proposed event. For example, the draft

letter, as well as the final version sent to the Morrises, stated

that “a holiday festival of the magnitude you have described

as well as what is demonstrated on You Tube is well beyond

normal residential use,” in violation of Section 5.4.1 of the

CC&Rs. The letter stated that section 5.4.2 prohibits the use

of “exterior speakers, bells, whistles or sound devices,” or

any noise that is offensive or interferes with the quiet

enjoyment of any neighbor. It further stated that section

5.4.15 required lighting to be “restrained in its design” and

that “excessive brightness” should be avoided, advising the

Morrises that, although “[t]ypical holiday lighting has

always been allowed,” the Morrises’ design exceeded the

bounds of section 5.4.15. The letter also stated that the

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 55

vehicular and pedestrian traffic generated by the events

would inhibit the ability of emergency vehicles to respond to

medical emergencies, noting that such emergencies occurred

several times a year due to the high percentage of residents

over the age of seventy.

The letter thus indicated that the board had legitimate

concerns about the event=s impact on the neighborhood. In

fact, taken in context, the statement actually is an expression

of the Board’s concern that the “Christmas program, if

allowed to proceed, would leave non-Christian homeowners

in the West Hayden Estates with the impression that an

exception was being made to the CC&Rs [the HOA’s

declaration establishing covenants, conditions, restrictions,

and easements] in favor of Christians. Far from being

intolerant, the January 2015 Letter’s religious reference was

an attempt to respect religious pluralism.” Morris I, 382 F.

Supp. 3d at 1100. As the district court explained, “the

timeframe in which the January 2015 Letter was drafted and

sent confirms that the Homeowners Association did not

intend to discriminate against Plaintiffs.” Id. at 1101. The

board did not send the letter until after Morris told Jennifer

Scott “that he needed a quick answer regarding whether the

Board would oppose his Christmas program on the basis that

it violated the CC & Rs.” Id. Thus, “it is evident that rather

than attempting to interfere with Plaintiffs’ purchase of the

home, the Board was in fact acting in a solicitous manner by

trying to get Plaintiffs the quick answer that Mr. Morris was

asking for.” Id.

The majority then decides that the Morrises’ claim relies

principally on a comment by Ron Taylor, Jennifer Scott’s

successor as president of the board, that “someone in this

association doesn’t like Christmas.” Maj. op. at 27. This

random comment does not support a finding that the board

56 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

violated § 3617. Instead, similar to Mr. Strayer’s initial draft

of the January 2015 letter, this comment “has little if any

relevance to the Board’s actual intent.” Morris I, 382 F.

Supp. 3d at 1100. It merely is an expression of Mr. Taylor=s

opinion. There is no evidence that this was the position of

the board.

The majority concludes that Mr. Taylor’s speculative

remark and the statement in the letter about some residents

being of a different faith are sufficient evidence to support

the jury=s conclusion that the board violated § 3617, citing

the principle that “[a] plaintiff does not have to prove that

the discriminatory purpose was the sole purpose of the

challenged action, but only that it was a ‘motivating factor.’”

Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th

Cir. 2016) (quoting Arce v. Douglas, 793 F.3d 968, 977 (9th

Cir. 2015)). Maj. op. at 26B27. I disagree. For the reasons

set forth above, neither statement supports an inference that

the Board interfered with the Morrises’ purchase of their

home on account of religion.2 Moreover, the majority does

not consider the rest of the language in Avenue 6E.

2

Again, Mr. Taylor’s speculative remark that someone in the HOA does

not like Christmas is not an expression of the Board’s position. And the

statement in the January 2015 letter cannot reasonably be construed as

expressing intolerance for the Morrises’ religion. As the district court

found, “the plain text” of the letter and “the circumstances in which it

was sent also demonstrate that the Board did not intend to discriminate

against Plaintiffs.” Morris, 382 F. Supp. 3d at 1100. The initial draft of

the letter, which was written by a former, rather than current, board

member, and not approved by the Board, does not shed any light on the

Board’s motives, and the letter that was sent showed the Board’s concern

not to be seen as favoring the Morrises. In fact, the majority’s reliance

on the letter to support a finding that the Board interfered with the

Morrises’ purchase of their home on account of religion is inconsistent

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 57

Avenue 6E addressed Equal Protection and Fair Housing

Act disparate treatment claims against the City of Yuma

based on the City’s “refusal to rezone land to permit higher-

density development.” Ave. 6E, 818 F.3d at 496. In

reversing in part the district court’s dismissal under Rule

12(b)(6) and grant of summary judgment, the court relied on

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 U.S. 252 (1977), to

determine whether, “it is plausible that, in violation of the

FHA and the Equal Protection Clause, an ‘invidious

discriminatory purpose was a motivating factor’ behind the

City=s decision to deny the zoning application.” Id. at 504

(quoting Arlington Heights, 429 U.S. at 266). Although

discriminatory intent need not be “‘the sole purpose of the

challenged action,’” the evidence is not examined in a

vacuum. Id. (quoting Arce, 793 F.3d at 977). Instead, “[t]he

court analyzes whether a discriminatory purpose motivated

the defendant by examining the events leading up to the

challenged decision and the legislative history behind it, the

defendant=s departure from normal procedures or substantive

conclusions, and the historical background of the decision

and whether it creates a disparate impact.” Id.

Avenue 6E and Arlington Heights do not teach us that, if

there is one piece of evidence that might be construed as

supporting the plaintiffs’ position, despite all the evidence

pointing in the other direction, that is sufficient to establish

that discriminatory intent was a motivating factor in the

decision. To the contrary, we are to examine evidence such

as “the events leading up to the challenged decision and the

with the majority’s conclusion that the letter does not support a finding

that the Board preferred that a non-religious person purchase the

Morrises’ home.

58 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

legislative history behind it, the defendant’s departure from

normal procedures or substantive conclusions, and the

historical background of the decision” to determine

“whether a discriminatory purpose motivated the

defendant.” Id. “Determining whether invidious

discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” Arlington Heights,

429 U.S. at 266.

Although the situation here does not involve evidence

such as legislative history or departure from normal

procedures, there is plenty of “circumstantial and direct

evidence of intent,” id., that clearly establishes that a

discriminatory purpose did not motivate the board.

In Mr. Morris’ initial conversation with Ms. Scott, who

was then president of the HOA, he explained “the whole

show and what he wanted,” and told her that he had already

examined the CC&Rs and wanted to meet with the Board.

After hearing about the program, Ms. Scott invited Mr.

Morris to a board meeting to explain what he wanted, but he

did not attend. When Ms. Scott described the Christmas

program to the Board, “they started asking [her] questions

about the lights, about the traffic.” The board members

looked up the event on Facebook and became concerned

about the lights, the number of attendees, the traffic, and

possible violations of the CC&Rs. After this meeting, Ms.

Scott called Mr. Morris and told him that the Board could

not give him an answer because the members were

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 59

concerned and “wanted to look through the CC&Rs before

they gave him an answer.”3

Mr. Morris himself testified that when he and his realtor

met with the Board on January 27, 2015, the concerns the

Board raised were traffic and the number of people the event

would bring to the neighborhood. Similarly, when the board

called an HOA meeting in February 2015, the Board

informed the membership that a “potential buyer” wanted

approval to hold a five- to ten-day holiday event at his home

that he stated would “produce in excess of 900 additional

vehicles traveling through the neighborhood with up to 80

volunteers directing traffic and such.” Mr. Morris further

“indicated that he will be using a speaker/PA system from 6

pm - 9 pm nightly.” The Board informed the membership

that, the prior year, Mr. Morris “incorporated a camel and

various other amenities to attract attention to his display,”

and that “he plan[ned] to create a much larger event@ when

he moved to West Hayden Estates. The Board expressed the

opinion that, “while we encourage holiday decorating and

community participation, this type of traffic and event is in

violation of the CCRs for West Hayden Estates.” The Board

never displayed any concern about the Morrises’ religion.

At the meeting, the concerns raised by other homeowners

were about traffic, buses, and the number of people. There

3

Ms. Scott further testified that she was a Christian, that her husband

was a pastor, and that she told the Board at this meeting that she had in

fact gone to the show in 2014, before the Morrises moved to West

Hayden Estates. As the district court reasoned, the fact that “several

Board members were practicing Christians,” and that Ms. Scott “is both

a practicing Christian and married to a Christian minister,” “significantly

decreases the probability that the Board intended to discriminate against

[the Morrises] based on a faith shared by both [the Morrises] and several

Board members.” Morris I, 382 F. Supp. 3d at 1103B04.

60 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

is nothing in the record from which a reasonable juror could

conclude that the board’s opposition to the event was based

on anything other than the effect on the neighborhood of the

buses, crowds, traffic, animals, and noise.4 Finally, the

timing of the letter indicates that it was sent in response to

Mr. Morris’ request to know if the Board “would oppose his

Christmas program on the basis that it violated the CC&Rs,”

and the letter itself shows that the Board was concerned with

the numerous ways in which the program would violate the

CC&Rs. Morris, 382 F. Supp. 3d at 1101.

The majority’s conclusion that an “anti-Christian

purpose was at least a motivating factor in the Board’s

conduct” can be supported only by taking these two

statements B Mr. Taylor’s speculative remark and the

statement in the letter that some of the residents are not

Christians or of another faith B out of context and ignoring

all the other evidence. Maj. op. at 29. This reasoning is not

supported by Avenue 6E and Arlington Heights.

Because I believe the district court properly granted

JMOL on all of the Morrises’ claims, I conclude that the

district court did not abuse its discretion in granting the

HOA’s request for a permanent injunction. See Edmo v.

Corizon, Inc., 935 F.3d 757, 784 (9th Cir. 2019) (per curiam)

(“We review for abuse of discretion the district court’s

decision to grant a permanent injunction.”). I need not repeat

the court’s careful findings, but, after reviewing the record,

including Mr. Morris’ own testimony, photos, flyers, the

Morrises’ Facebook posts, and videos of the event, it is clear

that the programs violated the CC&Rs in numerous,

4

This brief summary does not include all the other evidence of the

numerous ways in which the Christmas program egregiously violated the

CC&Rs. See Morris I, 382 F. Supp. 3d at 1111B13.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 61

substantial ways that were extremely disruptive to the

neighborhood and unlike any of the examples to which the

Morrises compared their events. The district court did not

abuse its discretion in enjoining the Morrises from holding

the programs in a manner violating the CC&Rs. I therefore

dissent from the majority’s decision to vacate the

injunction.5

Because all of the district court’s rulings are supported

by the law and the record, I respectfully dissent from the

majority’s decision to reverse the grant of JMOL as to the

§ 3617 claim and vacate the injunction. I would affirm the

district court in full.

5

Although the majority does not address the question of whether

remittitur was appropriate, Maj. op. at 42 n.11, the district court did not

abuse its discretion in ordering remittitur. See Oracle Corp. v. SAP AG,

765 F.3d 1081, 1087 (9th Cir. 2014) (“We review for abuse of discretion

a remittitur amount set by the district court.”). It is clear that Mr. Morris’

testimony that he wanted closing and moving costs for when he decided

to move, at some unknown date in the future, is too speculative to support

the $60,000 award of compensatory damages. See Silver Sage Partners,

Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 824 (9th Cir. 2001)

(“‘Although compensatory damages need not be determined with

certainty, they may not be based upon “mere speculation or guess.’”

(quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282

U.S. 555, 563 (1931))). “The combination of Mr. Morris’ uncertainty,

and the fact that Mr. Morris was the sole source of evidence supporting

a projected damages amount” support the district court’s conclusion that

“the jury’s award of damages was both speculative and not supported by

the evidence.” Morris I, 382 F. Supp. 3d at 1106. The district court also

properly concluded that the $15,000 punitive damages award was

problematic because the Morrises presented no evidence the HOA acted

with evil intent, nor any evidence of Mr. Morris’ alleged medical

condition or the extent to which it was aggravated. Id.

62 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

COLLINS, Circuit Judge, concurring in part and dissenting

in part:

In late 2014, Jeremy and Kristy Morris1 offered to

purchase a home in the West Hayden Estates First Addition

neighborhood (“West Hayden Estates”) in Hayden, Idaho.

Hoping to continue their tradition of hosting an annual

Christmas celebration outside their home, they inquired of

the West Hayden Estates First Addition Homeowners

Association (“HOA”) whether it foresaw any problems with

doing so. In response, the HOA sent the Morrises a certified

letter taking the position that such an event would violate the

West Hayden Estates Covenants, Conditions, Restrictions,

and Easements (“CC&Rs”) and expressing concerns that the

proposed event could present “problems” for “some of our

residents [who] are non-Christians or of another faith” and

that it would attract “undesirables.” When the Morrises

expressed offense at this openly discriminatory letter, the

HOA responded by ginning up opposition among the

neighborhood to the Morrises. Even before the Morrises

closed escrow on their new home, the HOA called an

emergency meeting of the entire HOA, and in advance of the

meeting, it circulated a misleading letter that misrepresented

the size and scope of the planned event. The HOA’s efforts

bore the foreseeable fruit—the HOA members at the meeting

unanimously opposed the Morrises’ planned Christmas

event, and the Morrises were met with significant hostility

after they moved in and proceeded to hold the event anyway.

Indeed, one neighbor confronted Kristy in her driveway one

1

To avoid confusion, I refer to the Morrises individually by their first

names. By contrast, all other individuals are referred to by their last

names.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 63

evening, telling her that “we have enough guns and

ammunition that will take care of you.”

The Morrises subsequently filed this suit asserting that

the HOA’s conduct in connection with their purchase of their

home violated multiple provisions of the federal Fair

Housing Act, 42 U.S.C. § 3601, et seq. The jury returned a

verdict for the Morrises, but the district court granted

judgment for the HOA as a matter of law. Alternatively, the

district court conditionally granted a new trial and ordered a

remittitur of the compensatory and punitive damages

awards. The Morrises have timely appealed.

I agree with the majority’s conclusions that the district

court erred in granting judgment as a matter of law on the

Morrises’ claim under § 818 of the FHA, see 42 U.S.C.

§ 3617, and that this error prejudicially affected the district

court’s analysis of the HOA’s counterclaim for injunctive

relief enforcing the CC&Rs against the Morrises. I therefore

concur in Parts II(a)(i)(2) and II(c) of the majority opinion.

However, because the district court also erred by concluding

that judgment as a matter of law was warranted for the HOA

on the remaining claims, as well as by conditionally

awarding the HOA a new trial and remittitur, I respectfully

dissent in part.

I

A

In October 2014, Jeremy had the idea to celebrate

Halloween by stationing a cotton-candy machine in front of

his home in the Grouse Meadows section of Hayden, Idaho

and providing cotton candy to passing children. The

Morrises perceived this Halloween event to be a success, and

Kristy suggested doing something similar for Christmas.

64 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

The Morrises decided that such an event would be a way to

“reach[] out to people who typically don’t attend church”

and to invite them to “celebrate Christmas with us, to

celebrate the birth of Christ.” Jeremy sought logistical

assistance from others he knew in a Christian fellowship

group, and he also talked to his pastor about the idea. After

speaking with his pastor, Jeremy “came away with an

impression that, rather than doing like a massive preachy

thing,” he should start with “little Christian elements” and

add “more and more every year.”

Accordingly, the Morrises settled on a plan to decorate

their Grouse Meadows home with a substantial display of

Christmas lights and to stand outside with their daughter,

offering cotton candy, candy canes, and hot chocolate to

drivers viewing the lights. They posted their planned

Christmas celebration on Facebook, and more than 200

families indicated that they planned to attend. A neighboring

church agreed to offer its parking lot to drivers visiting the

home, and local police confirmed to the Morrises that their

planned event would not require any permits.

Thereafter, the Morrises held their 2014 Christmas event

for eight days. Each night, they turned on their Christmas

lights and offered cotton candy and hot chocolate for about

two hours. The Morrises arranged for a friend to dress up as

Santa Claus, and they set up a table to accept donations for

two local charities for children. They also organized the

singing of Christmas carols, using songs that were “Christian

based.” Although they did not otherwise have a live nativity

scene for this 2014 event, the Morrises did incorporate a live

camel into their Christmas display. About 20 to 25

volunteers helped the Morrises put on their 2014 Christmas

event in Grouse Meadows. Kristy estimated that between 20

and 100 people attended each night, the volunteers who

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 65

assisted suggested that “hundreds” came, and the Facebook

page indicated that a total of 1,700 people claimed to have

visited over the eight days. The Morrises received no

complaints about the event.

Shortly after Christmas, the Morrises began looking for

a new home. On New Year’s Eve 2014, they put down an

offer to purchase the home of Larry and Christina Breazeal

in the West Hayden Estates neighborhood of Hayden. Larry

Breazeal was a former president of the HOA, and the

Breazeals had lived in the neighborhood for approximately

15 years at that point. On January 6, 2015, the Breazeals

reached an agreement to sell their home to the Morrises.

Around the same time, Jeremy began to inquire about

whether he could host a similar Christmas event in the new

neighborhood. He reviewed a copy of the West Hayden

Estates CC&Rs, and concluded that they would not prohibit

such a Christmas program.

In early January 2015, Jeremy called Jennifer Scott, who

was then the president of the HOA, to discuss the matter.

Jeremy informed Scott that he had contracted to purchase a

home in the neighborhood and that he was planning to

continue to host a Christmas program each December after

he moved in. During the call, Jeremy explained to Scott

“various details about what that program entailed.” Jeremy

also explained to Scott the religious motivation behind the

event. He did not use language suggesting that he was

asking for permission, and instead he informed her that he

was “calling to reach out and be neighborly” and to discuss

certain issues.

In particular, Jeremy noted that, because the CC&Rs

prohibited “external speakers,” he would not use that feature

of the Grouse Meadows 2014 Christmas program at West

66 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Hayden Estates. Instead, he said that he might “just have

music inside my home just with the windows down.”

Jeremy also noted that, at West Hayden Estates, he would

not have access to a nearby church parking lot to handle

visitors, and so he suggested that perhaps “shuttles” could be

used to avoid any safety or logistical issues. Jeremy asked

for a prompt meeting of the HOA board because, as Scott

put it, “[h]e wanted to make sure that the board was on the

same page with him.” Jeremy told Scott that he needed a

quick response from the HOA board, because he was facing

a deadline for getting out of the home purchase contract.

Scott arranged an emergency meeting of the HOA board

for the next day. Although she recommended that Jeremy

meet the board himself, he was sick that day and missed the

meeting. Jeremy asked Scott to call him so that he could join

the meeting by phone. However, after the meeting began

and Scott perceived the significant level of concern about

potential CC&R violations among the board members (many

of whom had just joined the board), she decided that she

would not telephonically patch Jeremy into the meeting.

Jeremy texted Scott while she was in the meeting and he tried

to call her several times, but she did not answer or respond.

After the meeting was over, Scott called Jeremy and

explained that she did not telephonically include him in the

meeting “because the board was really concerned, and they

were asking a lot of questions, and they wanted to look

through the CC&Rs before they gave him an answer.”

Jeremy got “upset” with Scott during the call, because, as

Scott later explained, “[h]e just didn’t understand why [she]

didn’t call him in when [she] told him that [she] would.”

During the HOA board meeting from which Scott had

excluded Jeremy, Scott described her understanding of the

Christmas program. Scott told the board members that the

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 67

Morrises “wanted to continue putting on a [Christmas] light

show” that “would be held for . . . five days” and that it

involved volunteers and traffic control in addition to

providing cotton candy and hot chocolate. Because Scott

had “liked” and “was following” the Facebook page

concerning the Morrises’ 2014 event, she was able to pull up

that page on her phone and show it to the other board

members. The Facebook page’s report of the large number

of attendees “drew a lot of concerns” from board members.

Scott also reported to the board that, on one of the days the

2014 event was conducted, she personally drove by the

Morrises’ house in Grouse Meadows about 20 minutes

before the event was scheduled to start, and she saw “lots of

cars on the street.” When later asked about the board

meeting at trial, Scott acknowledged that she “may have

mentioned something” about “Mr. and Mrs. Morris’s

Christian faith.”

After the board meeting, most of the members were able

to review the CC&Rs, and several of them concluded that a

program like the 2014 one would violate some of the

CC&Rs. Given Jeremy’s request for a prompt response, one

of the board members suggested that Scott write him a letter

outlining the board’s concerns, and Scott in turn delegated

the task to Larry Strayer, a former member and president of

the board who had been at the emergency meeting.

After drafting the letter, Strayer circulated it to the board

for comments on the afternoon of January 14, 2015. The

draft letter stated that the Morrises’ Christmas program

would violate three CC&Rs: (1) the program would

constitute a use of the property for a purpose “other than for

single family residential purposes”; (2) the noise generated

by the event would constitute a “nuisance”; and (3) the

Morrises’ Christmas lights would violate a provision

68 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

requiring exterior lighting to be “restrained” and not to

involve “excessive brightness.” The letter also expressed

concern that the traffic generated by the event could impede

ingress and egress of emergency vehicles that might need to

get to homes in the neighborhood. The draft letter then

closed with the following paragraphs:

And finally, I am somewhat hesitant in bring

up the fact that some of our residents are

avowed atheists and I don’t even want to

think of the problems that could bring up.

It is not the intention of the Board to

discourage you from becoming part of our

great neighborhood but we do not wish to

become entwined in any expensive litigation

to enforce long standing rules and regulations

and fill our neighborhood with the riff-raff

you seemed to attract over by WalMart.

Grouse Meadows indeed!!! We don’t allow

“those kind” in our neighborhood.

On the morning of January 15, Pat Keilig, a board

member, forwarded her comments on the draft letter to Scott,

the board’s president, and to Ron Taylor, the board’s vice-

president. Keilig stated that she thought the letter was

“great” and that she “only question[ed] the last line.” She

thought that “it could end at riff-raff and could then say—

this neighborhood is not Grouse Meadows.” Taylor

suggested stopping at “long standing rules and regulations”

(which would remove the reference to “riff-raff” that Keilig

would have retained) but that the reference to “litigation”

should also be removed. About 3½ hours later, Keilig

circulated a revised draft of the letter. She reported that she

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 69

“changed the atheist bit and toned it down but left the

paragra[p]h in.”

The next morning, January 16, Keilig mailed the final

version of the letter to Jeremy, using certified mail with a

return receipt requested. Keilig stated at trial that, at the time

she mailed the letter, she thought she had the approval of the

board to do so, but that she later realized that the letter had

not actually been “signed off” by the board. The final

version of the letter was verbatim the same as the original,

except for the correction of some typographical errors and

two substantive changes. First, the final letter added the

following concluding sentence to the prior paragraph about

ingress and egress of emergency vehicles: “Snow removal at

that time is also a concern, excess cars on the street would

hinder that.” Second, the closing two paragraphs were

revised to read as follows (with the revised language shown

in boldface type):

And finally, I am somewhat hesitant in

bringing up the fact that some of our

residents are non-Christians or of another

faith and I don’t even want to think of the

problems that could bring up.

It is not the intention of the Board to

discourage you from becoming part of our

great neighborhood but we do not wish to

become entwined in any expensive litigation

to enforce long standing rules and regulations

and fill our neighborhood with the hundreds

of people and possible undesirables. We

have worked hard to keep our area

peaceful, quiet, and clean. Neighbors

respect the CC&R’s and show common

70 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

courtesy to those around them. These are

reasons why people want to live here.

Board reactions to the letter were mixed. Larry Breazeal

remarked that he and his wife both viewed the letter as

“prejudiced against the Morris[es’] Christian religion.”

Breazeal also stated that Scott called him and was

“distraught about the letter” because it “included a statement

that talked about not wanting the Morris family to push their

religious beliefs on others in the neighborhood.” In her

conversation with Breazeal, Scott claimed that the board had

“debated over” that sentence and “had decided to not include

[it] in the letter.” However, at trial, Scott stated that she did

not view the letter’s second-to-last paragraph to be

“discriminatory against Christians.” She testified, though,

that, had she drafted the letter, she “would have just stuck

to” the board’s concerns about “the violations of the

CC&Rs.” Although Taylor’s email commenting on the draft

letter had said nothing about removing its reference to

religion, Taylor later claimed at trial that, on the day after he

sent that email, he complained to Scott about that reference,

only to be “told that the letter had already been sent.”

Scott testified that, in the days after Jeremy received the

letter, he called her at least five times. She said that, in one

of those conversations, Jeremy complained about what he

perceived as the escalation inherent in sending a certified

letter, saying words to the effect, “How dare you send me a

certified letter. Do you have any idea what certified letters

mean? Do you know how offensive getting a certified letter

is?”

After receiving the letter, Jeremy called Scott again and

recorded the conversation. During that call, Scott informed

Jeremy that a majority of the board had concerns about the

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 71

event and wanted to ask him questions. Jeremy asked Scott

what she told the board regarding the January letter, stating

that “I’m not meeting with anybody until I know what kind

of people I’m meeting with. . . . I know you’re a nice person

but I don’t know who these people are.” Scott indicated that

the best path forward was for both sides to meet and

suggested that accommodation was possible if Jeremy could

help resolve the “biggest issue,” the expected traffic load.

Later in the call, she stated that “nobody cared about the

Christmas lights.”

Over the course of the call, Jeremy expressed frustration

over the January letter. He asked Scott, “Are they

apologetic? Do they—do they realize what they did?” Scott

responded, “Yes.” Jeremy later asked, “Regarding the letter,

I mean did you tell them—did you say, ‘you guys, this was

discriminatory language, even if you didn’t intend it this

way’?” Scott confirmed that she had. In response to Jeremy

asking whether she informed the board he might sue over the

letter, Scott reported that she had not, but that she did warn

the board that the letter “was discriminatory language.”

Jeremy then informed Scott that he was in contact with a

“religious liberties organization” and was considering legal

action against the HOA over the letter. Jeremy told Scott

that the organization informed him that the HOA had

violated federal law, and that it was interested in taking his

case and was “ready to go.” However, he said, “we can all

walk away from this” if the board accepted his demands.

Those demands, which he presented as non-negotiable, were

that the HOA either de-annex his home from the HOA or

sign a contract exempting him personally from payment of

HOA dues, exempting his Christmas event from the CC&Rs,

and requiring the resignation of any board members involved

in the current dispute. Jeremy told Scott that the board had

72 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

one week to accept his offer, or else he would file suit against

the HOA and send a letter to all residents of the development

informing them of his grievances. Jeremy also threatened to

share his grievances with the local press and suggested that

legal costs for the HOA might run as high as $60,000. In

response to Jeremy’s threats of legal action, Scott assured

him that “nobody cares that you are a Christian.” In another

phone call with Jeremy, Scott reportedly indicated that she

convinced the board to “tone down” the letter between

drafts.

On January 27, Jeremy and his realtor met with the full

board. Although not present in person, Jeremy’s attorney

also joined the meeting telephonically. The Morrises’

realtor described the board members at the meeting as

“extremely agitated” and “hostile.” In his view, “it wasn’t

like a productive meeting,” but rather “more of yelling” as

the board discussed the Morrises’ “Christmas light thing . . .

and the fact [that the board] didn’t want it in their

neighborhood.” The realtor described one attendee as “very,

very angry” and noted that another, Angie Penzkover, “stood

up and left” approximately “halfway through the meeting.”

The board members reiterated their concerns about the

CC&Rs from the letter, in particular the amount of traffic

and number of people who would attend the event. After

Jeremy proposed a plan to address the increased traffic load,

some members of the board indicated that it would

sufficiently address their traffic concerns. At the meeting, at

least one member of the board said that he did not believe

the CC&Rs covered the use of Christmas lights at all.

In response, Jeremy again proposed that the particular

home that he sought to buy be de-annexed from the HOA,

which would eliminate the HOA’s authority over the home

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 73

as well as the Morrises’ obligation to pay dues or fees.

Jeremy stated that, if the home were de-annexed, he would

agree not to sue the HOA. The board declined, concluding

that it lacked any power under the CC&Rs to agree to de-

annexation.

About two and a half weeks after the January 27 meeting,

the board announced that an emergency meeting of the full

membership of the HOA would be held on February 13,

2015 at the home of Angie Penzkover (the board member

who had walked out of the coffee shop meeting). The

ostensible purpose of that meeting was to explain the

situation to the membership and solicit the residents’ input.

At the board’s request, a notice announcing the meeting was

prepared by the HOA’s management company and was

distributed to all residents. The notice included the

following language:

A potential buyer is looking to purchase a

home within the development. He has

requested approval to hold a holiday event

that will last from 5-10 days during the month

of December. This display/event was held in

another development last year. In speaking

with the gentleman, he has indicated that this

“event” will produce in excess of 900

additional vehicles traveling through the

neighborhood with up to 80 volunteers

directing traffic and such. He has indicated

that he will be using a speaker/PA system

from 6 pm – 9 pm nightly. Last year, he

incorporated a camel and various other

amenities to attract attention to his display.

...

74 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In the newspaper article that was provided in

the Spokesman Review of the situation last

year, he did not obtain the necessary permits

for such an extravagant event generating

excessive traffic. His comment to the media

was that this year, he plans to create a much

larger event. . . .

It is the Board’s opinion that . . . this type of

traffic and event is in violation of the CCRs

for West Hayden Estates. . . .

The board is seeking your opinions on the

matter as the individual has threatened legal

action if the board does not permit his

request. The board is fearful that allowing

such a breach of the CCRs in this matter will

ultimately lead to further breaches in other

areas within the community. . . .

Unfortunately, this may result in a legal

situation that must be addressed and handled

immediately.

A separate sheet announcing the agenda for the meeting

referenced this item with the following description:

“Discussion regarding possible litigation that may involve

additional legal costs and increased assessments.” That

notice also stated that, because the topic “affects ALL

residents of the West Hayden HOA,” each member should

“attend or submit” an enclosed “proxy form.” The proxy

form gave the HOA member the option of either (1) allowing

the board to cast the member’s vote at the board’s discretion;

or (2) specifying a vote either “to allow new resident’s

holiday event and display” or not to allow it. The proxy form

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 75

reiterated, in bolded, underlined large type that used all

capital letters: “IF YOU CANNOT ATTEND, IT IS

CRUCIAL THAT YOU RETURN THE PROXY.”

At the February 13 meeting, approximately 19

homeowners “were represented,” not counting board

members. The homeowners in attendance asked about the

amount of traffic that was anticipated, focusing on the

number of buses that might be coming and the overall

number of attendees. At the conclusion of the discussion,

the vote was unanimous that those in attendance “did not

want [the Christmas event] to take place.” It is not clear from

the record whether the board ever formally notified the

Morrises of the outcome of this meeting.

Believing that the HOA’s written notice announcing the

February 13 meeting to the membership was “knowingly

false and misleading,” Jeremy soon sent a letter of his own.

In that letter, Jeremy alleged that the HOA had discriminated

against his family, had violated the Fair Housing Act, and

had refused his attempts to settle the matter amicably. His

letter also identified several statements made in the board’s

meeting notice that he considered to be false. In particular,

he took issue with the board’s characterization of the size

and duration of the Christmas event, and its assertion that the

event would violate the CC&Rs.

B

The Morrises closed escrow on their new home in March

2015. In September of that year, Scott noticed that Jeremy

began putting up outside lights in preparation for the

Christmas event. On October 26, attorneys for the board sent

a four-page letter to the Morrises instructing them not to hold

the event. The letter listed the various CC&R provisions the

board believed the Morrises’ planned event would violate,

76 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

including provisions prohibiting nuisances, excessive

lighting, and the keeping of animals. The letter specifically

asserted that the “exterior lighting you have already installed

on your home” violated the CC&Rs. The letter further

argued that the county zoning ordinance and Idaho law

would independently prohibit the Morrises’ planned event.

The letter acknowledged that the Morrises hoped to mitigate

the HOA’s traffic concerns by the use of shuttle buses, but

the letter claimed that those measures would be inadequate

because nothing would stop visitors from “simply driving to

the neighborhood and parking on the streets.” The letter

warned that unless the Morrises “request[ed] and receive[d]

written approval” from the board to conduct their Christmas

event, the board had authorized its attorneys “to file an

action seeking an injunction to prevent your event from

occurring and seeking an award of all legal fees and costs

incurred in that litigation.” The letter concluded by stating

that, if the Morrises did not reply in writing within 10 days,

“the Board will assume that you are unwilling to modify

your plans and legal action will follow.” After receiving the

letter, the Morrises decided that they “should tell them that

. . . we’re not backing down if they want to file a lawsuit.”

After Jeremy contacted the media about the dispute, the

HOA ended up not pursuing any legal action.

The Morrises went forward with the planned Christmas

event, which lasted five days. The Morrises strung up over

200,000 lights on their home and had roughly 30 volunteers,

a party bus, a costumed Santa Claus and Mrs. Claus, a

nativity scene with live animals, and a children’s choir

performing carols. Several attendees testified that the noise

was minimal. Indeed, the Morrises’ next-door neighbor

testified that she could not hear any noise from the event

when she was in her home. As a general matter, the event

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 77

premises were also cleanly maintained, although on at least

one occasion a child reportedly urinated on the lawn of one

of the Morrises’ neighbors and Ron Taylor reported picking

up “a few cups and some stir sticks” the next morning.

The 2015 event was also attended by more visitors than

the one the prior year in Grouse Meadows, although the

testimony at trial conflicted as to just how many visitors

attended. One witness testified that between 30 and 50

people were present on the Morrises’ lawn at any given time,

whereas another witness estimated that “a couple [of]

hundred” people were present at “any single time.” The trial

witnesses also disagreed about how much traffic the event

generated. The descriptive materials prepared by the

Morrises to advertise the event stated that “[a]ll vehicles

must part at Croffoot Park”; that shuttle buses would run

every 10 minutes between the park and the event; and that

“NO PARKING [was] permitted on Ferndale Dr. where

[the] event [was] held.” One witness testified that the event

nonetheless produced a significant volume of traffic,

whereas other witnesses testified that the event generated

minimal excess traffic. Taking “a wild guess,” one witness

placed the total number of cars driving past the Christmas

event over the course of a given evening at 50. Witnesses

also disagreed about how many cars ended up parking in the

streets of the neighborhood during the event.

The HOA board pursued no immediate action against the

Morrises with respect to the 2015 event. Indeed, the board’s

only response to the 2015 event was in the form of a January

2016 letter to the Morrises from Taylor, the new president of

the board. That letter noted that a child had been seen

urinating in the snow, and it complained about poor trash

pickup following the event. After reading the January 2016

letter, Jeremy spoke with Taylor outside the Morrises’ home,

78 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

again recording the conversation. Jeremy reported to Taylor

that the Morrises had received threats and harassment, and

reiterated his view that the board had engaged in

discrimination against his family. Jeremy asked Taylor,

“why does everyone keep coming after me?” Taylor replied,

“Because someone in this association doesn’t like

Christmas.”

The Morrises decided to repeat the event in December

2016. The 2016 event was similar in scope to its

predecessor. It again included over 200,000 Christmas

lights, although Jeremy testified that the 2016 event was the

first time that he left the lights on past 8:30 PM. The 2016

event featured costumed characters such as Santa Claus, the

Grinch, Frosty the Snowman, Clifford the Big Red Dog, and

Roman soldiers; a professional photographer for paid photos

with Santa; a live nativity scene that included “Dolly” the

camel; and a petting zoo with a miniature donkey. The

Morrises also invited live musicians, one of whom used a

speaker to amplify his performance. Jeremy also stated that,

in contrast to 2015, he occasionally used a bullhorn to

amplify his voice.

Scott testified that the traffic at the 2016 event was

roughly the same as the year before, although other

neighbors described the traffic as being slightly lower than

in 2015. The 2016 event also included about 30 volunteers.

In 2016, buses were again used to ferry visitors from the

parking site to the Morrises’ home. Some residents placed

cones in front of their driveways to prevent visitors parking

there, and one witness testified that, over the course of the

week, some residents moved the cones progressively further

into the street, thereby themselves obstructing traffic.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 79

The HOA board again took no immediate action in

response to the 2016 event. It never notified the Morrises

that they had violated the CC&Rs.

C

Although the board took no formal action in response to

the events, the Morrises contended that the board’s early and

subsequent opposition led to significant hostility in the

neighborhood.

In particular, in the leadup to the 2015 event, a West

Hayden Estates resident named Larry Bird came to the

Morrises’ house in an agitated state and told Kristy in the

driveway, “If you think the three-percenters are going to

protect you, we have enough guns and ammunition that will

take care of you.” (The “three-percenters” was apparently a

reference to a militia group that is active in the surrounding

area.) Jeremy told the board about the threat, but it took no

action in response. Kristy was sufficiently concerned about

Bird’s threat that she and the Morrises’ four-year-old

daughter stayed away from the house during the 2015 event.

Other expressions of hostility emerged as well. In the

aftermath of the February 2015 board meeting, Angelene

Cox, a West Hayden Estates resident who lived adjacent to

the Morrises, called Scott and asked whether the HOA’s

complaints about the CC&Rs were genuine. In response,

Scott told her that, “They just don’t want him there.” Cox

further reported in an affidavit that “[s]ome neighbors

openly referred to [the Morrises] as ‘the enemy.’” Jeremy

also submitted an affidavit asserting that in December 2016,

a neighbor named “Dolly M.” “placed a rotating laser on a

swivel in her driveway which directed several laser beams

through my family’s bedroom window.” He further stated

that, in January 2017, his family’s Christmas lights were tied

80 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

to a rope and dragged down the street by a car, although he

could not identify a culprit.

Residents also expressed hostility during the Christmas

programs. One neighbor pretended to be hit by one of the

Morrises’ buses, “flail[ing] his arms . . . like he was falling

down” while “a person with a video camera” filmed the

incident. Thereafter, another neighbor shoved one of the

Morrises’ volunteers while confronting the bus driver over

that alleged incident. Other neighbors shouted obscenities

outside the Morrises’ home during the event. At least one

resident kicked a visitor’s car while cursing at the Morrises.

And other residents harassed visitors, shouting obscenities at

them and telling them they were not welcome in the

neighborhood.

The Morrises claimed that the treatment they received

was not consistent with how other events were handled at

West Hayden Estates. For example, the HOA hosts an

annual block party, which involves the complete closure of

multiple streets within the development. The board has also

taken no action against an annual Fourth of July party,

involving allegedly illegal fireworks launched from the

streets of the development and lasting until after midnight.

The Breazeals also reported having regularly hosted parties

to watch football games throughout the football season and

postseason, with anywhere from 20 to 80 persons in

attendance and as many as 50 vehicles parked on the

neighborhood streets. The Breazeals’ football-watching

parties lasted for over four hours each, but the Breazeals

reported that they were never contacted by the HOA

regarding the parties. Larry Breazeal also stated that, during

his entire tenure as the HOA president, the board had never

sent a notice of violation of the CC&Rs for events causing a

nuisance. However, no event appears to have extended over

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 81

multiple days and none replicated the scale of the Morrises’

Christmas program.

The Morrises ultimately claimed that the neighborhood

was no longer hospitable for them. Jeremy testified at trial

that “I don’t see how I can continue to live in this

neighborhood,” in light of the alleged discrimination,

threats, and harassment.

D

In January 2017, the Morrises sued the HOA under the

Fair Housing Act (“FHA”), which has been classified, as

amended, to chapter 45 of the unenacted Title 42 of the

United States Code. See 42 U.S.C. § 3601 et seq.

In their first cause of action, the Morrises allege that the

HOA violated § 804(b) and § 804(c) of the FHA. Section

804(b) makes it unlawful, inter alia, to “discriminate against

any person in the terms, conditions, or privileges of sale or

rental of a dwelling . . . because of . . . religion.” 42 U.S.C.

§ 3604(b). The Morrises alleged that the HOA violated that

provision when it engaged in “a systematic strategy to . . .

dissuade the Morris[es] from moving to their home . . . under

the threat of litigation,” attempted to “dissuad[e]” the

Breazeals “from selling the property to the Morris family,”

and “creat[ed] a hostile living environment in an effort to

discourage the Morris family from continuing to live in the

association.” Section 804(c) makes it unlawful, inter alia,

to “make, print, or publish, or cause to be made, printed, or

published any notice, statement, or advertisement, with

respect to the sale or rental of a dwelling that indicates any

preference . . . based on . . . religion.” Id. § 3604(c). The

Morrises claim that the HOA violated this provision by

sending its January 16 letter, which the Morrises allege

“indicated a preference for non-religious homeowners.”

82 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

The Morrises’ third cause of action alleged a violation of

§ 818 of the FHA. Section 818 makes it unlawful to “coerce,

intimidate, threaten, or interfere with any person in the

exercise or enjoyment of . . . any right granted or protected

by” § 804 of the FHA. Id. § 3617. The Morrises allege that

the HOA violated § 818 by “sending a certified letter

threatening litigation”; “contacting the [Breazeals] and

attempting to dissuade them from selling to the [Morrises]”;

and causing the Morrises to “live[] in fear, keep[] their doors

locked at all times, and obtain[] concealed carry permits for

protection.”2

The HOA denied the allegations and counterclaimed

against the Morrises. In their counterclaim, the HOA alleged

that the Morrises’ 2015 and 2016 Christmas events violated

the CC&Rs and it sought an injunction against future such

events.

Before trial, the district court denied the HOA’s motion

for summary judgment on the Morrises’ FHA claims,

concluding that a reasonable jury could find for the Morrises

on these claims. The district court specifically stated, “I

really think that if I were to grant summary judgment [to the

HOA], I think the Ninth Circuit would reverse me almost

immediately.” The court explained:

I think the letter—it may well be, you

know . . . that there was not even the least bit

of discriminatory intent in writing the letter.

It may have been an attempt to offer some

2

The Morrises’ complaint’s second cause of action asserted a state-law

claim under Idaho Code § 67-5909, but the district court dismissed that

claim for failure to exhaust state administrative remedies, and the

Morrises have not appealed that dismissal.

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 83

type of conciliation or recognition of

sensitivity to others’ religious beliefs.

The problem, though, is the summary

judgment standard, which requires that the

court construe the evidence and any

reasonable inference that can be drawn from

the evidence in a light most favorable to the

plaintiff.

So the question is whether a jury could, in

viewing that statement contained in the letter

and, in particular, coupled with the other

evidence of statements made about wanting

to get the plaintiffs out of the neighborhood,

whether or not a reasonable jury could view

that as evidencing a discriminatory intent.

And I just have to say: I think they could.

I’m not saying that they will. I’m not in any

way suggesting that, at a jury trial, that the

jury is going to come back and agree with the

Morrises. I’m just saying that applying the

summary judgment standard to the facts of

this case, which is what I have to do, that the

plaintiffs have presented sufficient evidence

really in the form of the letter almost by itself.

But even if I made a statement earlier that the

letter by itself wasn’t enough, that probably

wasn’t well advised because I think that

reference to impact upon other—‘others in

the area that may not be Christian,’ that

coupled certainly with the statements that—

of kind of personal animus, I think, is enough

84 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that a reasonable jury could concluded that

there was, in fact, a discriminatory motive.

The ensuing jury trial lasted six days. After the Morrises

rested, the HOA moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a). The district

court denied the motion, stating “I’ve got some reservations

about the claims here. However, I think there is enough

evidence that, if you construe it in a light most favorable to

the plaintiffs, a reasonable jury could find that each element

of the claim has been made.” Referring back to its summary

judgment decision, the district court said, “[T]hat [January

16] letter is the linchpin, I think, why summary judgment

was denied and why I’m going to deny the Rule 50 motion

as well. I think a jury could infer that they were trying to

prevent someone from purchasing the home and that at least

part of the motivation was religion.”

The jury returned a verdict in favor of the Morrises.

Between announcing that the jury had reached a verdict and

revealing that verdict, the jury asked the district court

whether it could award “legal fees” as punitive damages,

rather than a specific dollar amount. The court stated that

“there is no evidence as to attorneys’ fees, and . . . the

instruction tells them what the purpose of punitive damages

is. And I don’t think it can be tied to anything like attorneys’

fees.” The district court therefore instructed the jury that it

could not award “legal fees” in lieu of a specific punitive

damages award.

Approximately 40 minutes after the district court

informed the jury that it could not award legal fees, the court

reconvened with the jury present. At that time, the verdict

was read, and the court announced the jury’s award of

damages. The jury found the HOA liable to the Morrises on

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 85

all of their claims. It awarded the Morrises $60,000 in

compensatory damages and $15,000 in punitive damages.

Following trial, the HOA filed a renewed motion for

judgment as a matter of law under Rule 50(b).

Notwithstanding its comments in denying the earlier

summary judgment motion and Rule 50(a) motion, the

district court concluded that no reasonable jury could find

for the Morrises and that the only conclusion permitted by

the evidence was that the HOA was not liable on any ground.

The court therefore entered judgment in favor of the HOA

on each of the Morrises’ claims. Turning to the HOA’s

counterclaim against the Morrises, the court granted the

HOA’s request for a permanent injunction against the

Morrises, barring them from “hosting a Christmas program

in the West Hayden Estates that violates the CC&Rs in the

manner described in this decision.” The district court also

made two alternative rulings. First, in the event that its entry

of judgment as a matter of law were reversed, the court

conditionally granted the HOA a new trial. Second, in the

event that its grant of a new trial were also reversed, the court

ordered remittitur of the Morrises’ damages to $1 for each of

their claims and $1 in punitive damages. The Morrises

timely appealed.

II

Even after a jury has rendered its verdict, a district court

may enter a contrary judgment as a matter of law if it

concludes that no reasonable jury could have found for the

prevailing party based on the admissible evidence in the

record. FED. R. CIV. P. 50(a), (b). We review the decision

to enter such an order de novo. Tan Lam v. City of Los

Banos, 976 F.3d 986, 995 (9th Cir. 2020). We must ask

“whether the evidence permits only one reasonable

86 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

conclusion, and that conclusion is contrary to the jury’s

verdict.” Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th

Cir. 2006). However, in making that determination, we may

not reweigh the evidence ourselves, EEOC v. Go Daddy

Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009), and must

keep in mind that “[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge,”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

I concur in the majority’s opinion to the extent that it

concludes that the Morrises presented sufficient evidence to

permit a reasonable jury to find in their favor on their third

cause of action under § 818 of the FHA. But I believe that

the district court also erred in entering judgment as a matter

of law on the Morrises’ claims under § 804(b) and § 804(c),

and I therefore dissent from the majority’s contrary

conclusion.

A

In their § 804(b) claim, the Morrises allege that the HOA

“discriminate[d] against [them] in the terms, conditions, or

privileges of sale or rental of a dwelling . . . because of . . .

religion.” 42 U.S.C. § 3604(b). To prevail at trial, the

Morrises needed to “simply produce direct or circumstantial

evidence demonstrating that a discriminatory reason more

likely than not motivated” the HOA and that the HOA’s

actions “adversely affected the [Morrises] in some way.”

Pacific Shores Props., LLC v. City of Newport Beach, 730

F.3d 1142, 1158 (9th Cir. 2013) (quoting McGinest v. GTE

Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). Here, a

jury found that the Morrises had carried that burden, and so

our review is limited to asking whether any reasonable jury

could so find. FED. R. CIV. P. 50(a). Bearing in mind our

MORRIS V. W. HAYDEN ESTATES FIRST ADD. 87

obligation to construe the evidence in the light most

favorable to the Morrises, Lytle v. Household Mfg., Inc., 494

U.S. 545, 554 (1990), I conclude that sufficient evidence was

presented to allow a reasonable jury to find that the HOA

had violated § 804(b).

The jury could properly have found that the HOA’s

actions adversely affected the Morrises based on either of

two factual predicates. First, the jury could reasonably have

concluded that, before the Morrises had closed escrow on

their home, the HOA ginned up significant opposition to the

Morrises among their neighbors through false and

misleading communications. Second, the jury could

reasonably have found that, before the Morrises closed

escrow, the HOA singled them out for future selective, by-

the-book enforcement of the CC&Rs. And on either theory,

the jury could also reasonably have concluded that the

HOA’s conduct was motivated by the Morrises’ religion and

their outward expression of it. I address each of these three

points in turn.

1

There can be little doubt that an HOA violates § 804(b)

if, upon learning that a particular family is about to purchase

a home in the neighborhood, the HOA actively fosters

significant animosity toward that family in the neighborhood

and does so based on a protected characteristic, such as

religion or race. On this record, a jury could reasonably find

that the HOA did just that.

The HOA made multiple statements to residents of the

neighborhood that would reasonably be expected to generate

hostility toward the Morrises in advance of their move to

West Hayden Estates. The most significant example of this

was the letter announcing the February 2015 “Emergency

88 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Special Meeting” of the full HOA. A reasonable jury could

conclude that this notice exaggerated the scope of the

Morrises’ planned event and cast it in a false and unduly

negative light. For example, the board suggested that the

program might run as long as ten days, involve three or more

hours of amplified noise, and flood the neighborhood with

nearly a thousand new cars. It also stated that the event

would bring in “up to 80 volunteers,” despite lacking any

basis for that claim—prior events had at most 48 volunteers.

The board further attempted to paint the Morrises as lawless,

suggesting that they refused to obtain necessary permits

from the county. At the same time, the letter characterized

Jeremy as litigious and portrayed the board as “fearful”

victims of his bullying. It cast him as a financial threat to

the neighborhood through the risk of “additional legal costs”

resulting in “increased assessments” against everyone in the

development.

Moreover, a reasonable jury could conclude that the

board’s behavior was more consistent with making the

Morrises unwelcome than with accomplishing its profe

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