The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRENDA MOORE, Case No.: 3:23-cv-00826-JAH-WVG
ORDER:
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Plaintiff,
13 (1) GRANTING PLAINTIFF’S
v.
AMENDED MOTION TO FILE
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PACIFIC VIEW APARTMENTS SUPPLEMENTAL DOCUMENTS
15 CARLSBAD LLC; STEVEN QUICK; (ECF NO. 20);
JANE DOE; JOHN DOE; PROPERTY
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ATTORNEYS; JULIA DOUGLAS, (2) GRANTING PLAINTIFF’S
17 MOTION TO FILE UNDER SEAL
Defendants.
(ECF NO. 15);
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19 (3) DISMISSING PLAINTIFF’S
THIRD AMENDED COMPLAINT
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WITH PREJUDICE (ECF NO. 14);
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INTRODUCTION
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On May 4, 2023, Plaintiff, proceeding pro se, filed a complaint along with a
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motion to proceed in forma pauperis (“IFP”) and a motion for appointment of counsel.
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(ECF Nos. 1-3). On May 11, 2023, Plaintiff filed a first amended complaint. (ECF No.
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4). On June 23, 2023, Plaintiff filed a motion for hearing on the merits of her action and
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a request for an injunction. (ECF No. 5). On June 27, 2023, the Court dismissed the first
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1 amended complaint without prejudice, denied the IFP as moot, denied the motion for a
2 ruling on the merits as moot, and denied the request for an injunction as moot. (ECF No.
3 6). The Court permitted Plaintiff to file a second amended complaint on or before August
4 1, 2023. Id. On July 18, 2023, Plaintiff filed a second amended complaint along with
5 another IFP motion and motion to appoint counsel. (ECF Nos. 8-10). On September 28,
6 2023, Plaintiff filed an expedited motion to supplement the pleading. (ECF No. 11). On
7 November 1, 2023, the Court dismissed the second amended complaint without
8 prejudice, granted the IFP, denied the motion to appoint counsel as moot, and denied the
9 motion to supplement pleadings as moot. (ECF No. 13). On November 13, 2023,
10 Plaintiff filed a third amended complaint along with a motion to file documents under
11 seal.1 (ECF Nos. 14; 15). Thereafter, Plaintiff filed a motion for leave to file
12 supplemental documents.2 (ECF No. 20).
13 After careful consideration of the pleadings and the applicable law, and for the
14 reasons set forth below, the Court GRANTS Plaintiff’s motion to file supplemental
15 documents, GRANTS Plaintiff’s motion to file under seal, and DISMISSES Plaintiff’s
16 third amended complaint with prejudice.
17 LEGAL STANDARD
18 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by
19 any person proceeding IFP pursuant to 28 U.S.C. Section 1915(a) is subject to a
20 mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous,
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23 1 Plaintiff contends the documents contain confidential medical information that are
relevant to issues presented in her third amended complaint.
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2 Plaintiff initially filed a motion seeking leave to file supplemental documents that
25 were illegible. (ECF No. 18). Plaintiff subsequently filed a legible motion requesting
leave to file supplemental documents. (ECF No. 20). Recognizing its obligation to
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construe Plaintiff’s motions and pleadings liberally, this Court will treat both the third
27 amended complaint and the supplemental pleading as a unified third amended complaint.
See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003).
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1 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary
2 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun
3 v. Stahl, 254 F.3d 845 (9th Cir. 2001). A court must also dismiss an action sua sponte if
4 it determines, at any time, it lacks subject matter jurisdiction. See Fed. R. Civ. P.
5 12(h)(3); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir.
6 2011). Thus, Section 1915(e)(2) provides the court reviewing any complaint filed by a
7 person proceeding IFP, with the authority and obligation to make and rule on its own
8 motion to dismiss the complaint, prior to service, or at any time it becomes clear that the
9 action is frivolous, fails to state a claim, or seeks monetary relief from immune
10 defendants. Calhoun, 254 F.3d at 845.
11 Federal Rule of Civil Procedure 8 requires a complaint to “contain: (1) a short and
12 plain statement of the grounds for the court’s jurisdiction”; “(2) a short and plain
13 statement of the claim showing the pleader is entitled to relief; and (3) a demand for the
14 relief sought.” Fed. R. Civ. P. 8. Courts have a duty to construe pro se pleadings
15 liberally. See Bernhardt, 339 F.3d at 925; see also Haines v. Kerner, 404 U.S. 519, 520
16 (1972) (per curiam) (noting that courts hold pro se complaints to “less stringent standards
17 than formal pleadings drafted by lawyers”). However, a court’s liberal construction of a
18 pro se pleading will not apply facts not alleged by the plaintiff. See Ivey v. Board of
19 Regents, 673 F.2d 266, 268 (9th Cir. 1982).
20 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
21 Co. of America, 511 U.S. 375, 377 (1994). To proceed with an action in federal court, a
22 plaintiff must establish that the court has subject matter jurisdiction. Id. There are two
23 types of subject matter jurisdiction – federal question jurisdiction and diversity
24 jurisdiction. See 28 U.S.C §§ 1331 and 1332.
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1 DISCUSSION
2 I. Plaintiff’s Complaint
3 In her third amended complaint, Plaintiff alleges two residents (“Defendant
4 Residents”) of and two property managers (“Defendant Property Managers”) for Pacific
5 View Apartments intentionally made false statements about Plaintiff that were damaging
6 to her reputation, causing her humiliation, trauma, and physical and mental anguish.
7 (ECF Nos. 14; 20). Plaintiff further alleges the residents, residing in the apartment unit
8 directly above Plaintiff, have intentionally made excessive and unbearable noise by
9 “stomping [and] hitting on the floor,” which caused the drywall in Plaintiff’s unit to
10 break and resulted in Plaintiff suffering a concussion. (ECF No. 20 at 5). Additionally,
11 Plaintiff alleges that the Defendant Residents operate their washing machine for several
12 hours throughout the day and night to further harass Plaintiff. Id. Plaintiff contends the
13 reason for the Defendant Residents’ “excessive and unbearable noises … [is] because of
14 Plaintiff’s visible protected characteristic.” (ECF No. 14 at 2). Plaintiff also contends
15 that the Defendant Residents have “secretly record[ed] Plaintiff while Plaintiff [is] inside
16 of [her] home.” (ECF No. 20 at 3). Plaintiff also alleges that the Defendant Property
17 Managers began harassing her after she made a report of the residents’ “excessive [and]
18 intentional noises.” (ECF No. 14 at 2). Lastly, Plaintiff alleges she requested reasonable
19 accommodations for her disability by requesting Defendant Property Managers to move
20 her into another unit, but her request was denied. Id. Plaintiff cites to 42 U.S.C. Sections
21 3601 and 3604 of the Fair Housing Act (“FHA”), 42 U.S.C. Section 12102 of the
22 Americans with Disabilities Act (“ADA”), and 18 U.S.C. Section 2511 of the Federal
23 Wiretap Act (“Wiretap Act”) to support her claims. (ECF Nos. 14; 20).
24 A. Federal Claims
25 To the extent Plaintiff is asserting claims under federal law, she must plead a
26 colorable claim “arising under” the Constitution or laws of the United States to invoke
27 federal question jurisdiction pursuant to 28 U.S.C. Section 1331. Arbaugh v. Y&H Corp.,
28 546 U.S. 500, 513 (2006). “The presence or absence of federal question jurisdiction is
1 governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction
2 exists only when a federal question is presented on the face of the plaintiff’s well-pleaded
3 complaint.” Abada v. Charles Schwab & Co., 300 F.3d 1112, 1118 (9th Cir. 2002)
4 (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392–393 (1987). Plaintiff’s third
5 amended complaint references the FHA, the ADA, and the Wiretap Act. (ECF Nos. 14;
6 20).
7 1. Fair Housing Act (“FHA”)
8 Under the FHA, it is unlawful “[t]o discriminate in the sale or rental, or to
9 otherwise make unavailable or deny, a dwelling to any buyer or renter because of a
10 handicap of—(A) that buyer or renter, (B) a person residing in or intending to reside in
11 that dwelling after it is so sold, rented, or made available; or (C) any person associated
12 with that buyer or renter.” 42 U.S.C. § 3604(f)(1). Discrimination under the FHA
13 includes, but is not limited to, “a refusal to make reasonable accommodations in rules,
14 policies, practices, or services, when such accommodations may be necessary to afford
15 such person equal opportunity to use and enjoy a dwelling.” Id. at § 3604 (f)(3)(B). The
16 FHA defines handicap with respect to persons as “(1) a physical or mental impairment
17 which substantially limits one or more of such person’s major life activities, (2) a record
18 of having such an impairment, or (3) being regarded as having such an impairment[.]” 42
19 U.S.C. § 3602(h). To state a claim of discrimination resulting from denial of reasonable
20 accommodations, a plaintiff must show “that (1) [s]he suffers from a handicap as defined
21 by FHA[]; (2) defendants knew or reasonably should have known of the plaintiff’s
22 handicap; (3) accommodation of the handicap ‘may be necessary’ to afford plaintiff an
23 equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such
24 accommodation.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003)
25 (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th
26 Cir.1997). Thus, a “causal link” must exist between the requested accommodation and
27 the plaintiff’s disability. Giebeler, 343 F.3d at 1155. However, “[t]he reasonable
28 accommodation inquiry is highly fact-specific, requiring case-by-case determination.”
1 Cal. Mobile Home Park Mgmt. Co., 107 F.3d at 1380.
2 Here, Plaintiff alleges she is a handicapped person as defined under the FHA and
3 was discriminated against by Defendants “because of [her] visible protected
4 characteristic.” (ECF No. 14 at 2). Plaintiff asserts that she suffers from “Emotional
5 Impaired Disorder and Sensory Impaired Disorder” which limits her ability to walk and
6 see. Id. Plaintiff alleges that she requested to be moved into another apartment unit, but
7 her request was denied by the Defendant Property Managers. Id. Plaintiff further asserts
8 that her request to move into another unit away from Defendant Residents is medically
9 necessary and that her apartment unit is uninhabitable because of Defendant Residents’
10 “intentional harassment [and] excessive loud noises.” (ECF No. 20 at 6). However,
11 Plaintiff does not allege any facts to demonstrate that her requested accommodation was
12 necessary. See Giebeler, 343 F.3d at 1155; see also Cal. Mobile Home Park Mgmt. Co.,
13 107 F.3d at 1381 (finding that the plaintiff failed to prove her prima facie case of FHA
14 reasonable accommodation discrimination because she “failed to show why [her
15 caretaker]’s convenience is necessary for her own use and enjoyment of her home.”). For
16 example, Plaintiff fails to sufficiently allege facts indicating how a different unit away
17 from Defendant’s “excessive loud noises” would ameliorate Plaintiff’s alleged disability
18 that impacts her ability to walk and see. (ECF Nos. 14 at 2; 20 at 6). As currently plead,
19 there are no facts showing a “causal link” between Plaintiff’s requested accommodation
20 and her status as a disabled person. See Giebeler, 343 F.3d at 1156. Her conclusory
21 allegation that a move to a different unit is medically necessary is insufficient.
22 Accordingly, Plaintiff’s third amended complaint fails to sufficiently allege a claim under
23 the FHA.
24 2. Americans with Disability Act (“ADA”)
25 Plaintiff does not indicate under which title of the ADA she seeks relief. As such,
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1 the Court will address both Title II and Title III of the ADA.
2 i. Title II of the Americans with Disability Act
3 Title II of the ADA prohibits discrimination of a “qualified individual with a
4 disability” by a public entity or the denial of benefits of services of a public entity. 42
5 U.S.C. § 12132. To state a claim under Title II, a plaintiff must allege facts showing “(1)
6 [s]he is a ‘qualified individual with a disability’; (2) [s]he was either excluded from
7 participation in or denied the benefits of a public entity’s services, programs or activities,
8 or was otherwise discriminated against by the public entity; and (3) such exclusion,
9 denial of benefits, or discrimination was by reason of [her] disability.” Weinreich v. Los
10 Angeles County Metropolitan Transp. Authority (9th Cir. 1997) 114 F.3d 976, 978.
11 Here, Plaintiff’s third amended complaint does not allege that any defendant is a
12 public entity, which is fatal to her claim. Additionally, Plaintiff has not alleged facts that
13 Defendant’s conduct is connected to, or “by reason of,” Plaintiff’s status as a disabled
14 person. Id. Therefore, Plaintiff’s third amended complaint fails to sufficiently allege a
15 claim under Title II of the ADA.
16 ii. Title III of the Americans with Disability Act
17 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) she
18 is disabled within the meaning of the ADA; (2) the defendant is a private entity that
19 owns, leases, or operates a place of public accommodation; and (3) the plaintiff was
20 denied public accommodations by the defendant because of her disability.” Molski v.
21 M.J. Cable, Inc. 481 F.3d 724, 730 (9th Cir. 2007). Apartments and other similar
22 dwellings covered by the FHA are generally not considered “public accommodations”
23 under Title III of the ADA. See, e.g., Wolf v. City of Millbrae, 2023 WL 2134403 n.1
24 (9th Cir. 2023); Arceneaux v. Marin Hous. Auth., 2015 WL 3396673, *7 (N.D. Cal. May
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3 Title I of the ADA prohibits discrimination in employment circumstances. Title I
27 does not apply to Plaintiff’s allegations of discrimination relating to her housing. See 42
U.S.C. § 12112(a).
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1 26, 2015) (“[A]partment complexes do not constitute ‘public accommodations’ within the
2 meaning of the ADA.”).
3 Here, Plaintiff’s third amended complaint does not allege that any defendant is a
4 private entity which operates as a place of public accommodation. As currently plead,
5 Plaintiff’s third amended complaint fails to state sufficient facts to allege a claim under
6 Title III of the ADA.
7 3. Federal Wiretap Act
8 Plaintiff alleges a new cause of action in her third amended complaint under the
9 Wiretap Act. 18 U.S.C. § 2511. Pursuant to the Wiretap Act, it is unlawful for any
10 person to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person
11 to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Id.
12 The Wiretap Act contains a civil damages provision which provides a private right of
13 action to “any person whose wire, oral, or electronic communication is intercepted,
14 disclosed, or intentionally used in violation of [the act].” 18 U.S.C. § 2520. According
15 to the Wiretap Act, “intercept” means “the aural or other acquisition of the contents of
16 any wire, electronic, or oral communication through the use of any electronic,
17 mechanical, or other device.” 18 U.S.C. § 2510(4). The Wiretap Act defines “contents” to
18 “include[] any information concerning the substance, purport, or meaning of that
19 communication.” 18 U.S.C. § 2510(8). Thus, interception occurs “when the contents of
20 a wire communication are captured or redirected in any way.” Noel v. Hall, 568 F.3d
21 743, 749 (9th Cir. 2009) (quoting United States v. Rodriguez, 968 F.2d 130, 136 (2d
22 Cir.1992).
23 Here, Plaintiff alleges that her “phone communications were violated by [the
24 Defendant Residents] by secretly recording Plaintiff while Plaintiff was inside of [her]
25 home.” (ECF No. 20 at 3). Other than this conclusory allegation, Plaintiff fails to plead
26 any plausible facts to support her allegation that the Defendant Residents recorded
27 Plaintiff or Plaintiff’s telephone communications. “A claim has facial plausibility when
28 the plaintiff pleads factual content that allows the court to draw the reasonable inference
1 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
2 678 (2009). As currently plead, Plaintiff’s complaint fails to meet this burden.
3 Accordingly, Plaintiff’s complaint fails to sufficiently allege a claim under the Wiretap
4 Act.
5 Because Plaintiff fails to sufficiently allege claims arising under federal law, she
6 fails to establish federal question subject matter jurisdiction.
7 B. State Law Claims
8 1. Diversity Jurisdiction
9 Plaintiff asserts state law claims for harassment, defamation, negligence, and
10 breach of the covenant of quiet enjoyment. (ECF Nos. 14; 20). A court may exercise
11 jurisdiction over state law claims pursuant to diversity jurisdiction if a party shows: (1)
12 complete diversity of citizenship among opposing parties; and (2) an amount in
13 controversy exceeding $75,000. 28 U.S.C. § 1332(a). Thus, the plaintiff’s citizenship
14 must be different from each defendant. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68
15 (1996). Plaintiff bears the burden of demonstrating the Court has diversity jurisdiction.
16 Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986).
17 According to Plaintiff’s third amended complaint, she and Defendants Jane Doe
18 and John Doe live in San Diego, California, at Pacific View Apartments. (ECF No. 14).
19 Therefore, complete diversity of citizenship does not exist. Plaintiff does not allege the
20 citizenship of the remaining Defendants Pacific View Apartments Carlsbad, LLC, or the
21 Defendant Property Managers. The Court informed Plaintiff that the citizenship of these
22 three Defendants must be identified in the complaint to support her burden of establishing
23 complete diversity of citizenship. (ECF No. 6 at 4-5; ECF No. 13 at 8). As alleged,
24 Plaintiff fails to establish this Court has diversity jurisdiction over the alleged state law
25 claims.
26 2. Supplemental Jurisdiction
27 In “any civil action of which the district courts have original jurisdiction, the
28 district courts shall have supplemental jurisdiction over all other claims that are so related
1 ||to claims in the action within such original jurisdiction that they form part of the same
2 ||case or controversy under Article III of the U.S. Constitution.” 28 U.S.C. § 1367(a). All
3 ||state law claims must “arise from a common nucleus of operative facts” so that
4 ||“‘considerations of judicial economy, convenience and fairness to litigants” support a
5 ||single adjudication. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725-726
6 ||(1966). However, a district court’s decision whether to exercise supplemental
7 ||jurisdiction over state law claims once all federal claims have been dismissed is “purely
8 || discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Thus,
9 || the district court may decline to exercise supplemental jurisdiction over a state law claim
10 where the district court has dismissed all claims over which original jurisdiction was
11 ||asserted but not established. See 28 U.S.C. 1367(c).
12 Because the Court dismisses all federal and state law claims alleged for failure to
13 |/establish subject matter jurisdiction, the Court declines to exercise supplemental
14 jurisdiction over the state law claims.
15 Accordingly, IT IS HEREBY ORDERED:
16 1. Plaintiff's amended motion to file supplement documents is GRANTED;
17 2. Plaintiff’s motion to file under seal is GRANTED;
18 3. Plaintiff's third amended complaint is DISMISSED with prejudice.
19 IT IS SO ORDERED.
20 || DATED: April 24, 2024,
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22 JC A. HOUSTON
73 INITED STATES DISTRICT JUDGE
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