Jay v. Grand Management Services, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PATSY JAY, Case No. 3:23-cv-656-SI

Plaintiff, OPINION AND ORDER

v.

GRAND MANAGEMENT SERVICES,

INC.; EVERGREEN GARDENS LIMITED

PARTNERSHIP; JERRY MASCOLO;

LEONDRA COLEMAN; and DAWN

COCKRUM,

Defendants.

Jamie Trinkle, Carly Cripps, Edward Johnson, and Nicole Pritchard, OREGON LAW CENTER,

230 NE Second Avenue, Suite F, Hillsboro, OR 97124. Of Attorneys for Plaintiff.

Heidi L. Mandt, WILLIAMS KASTNER, 805 SW Broadway, Suite 2440, Portland, OR 97205.

Of Attorneys for Defendants Grand Management Services, Jerry Mascolo, Leondra Coleman,

and Dawn Cockrum.

Nathan B. McClintock, CORRIGALL & MCCLINTOCK, 936 Central Avenue, PO Box 1178,

Coos Bay, OR 97420. Of Attorneys for Defendant Evergreen Gardens Limited Partnership.

Michael H. Simon, District Judge.

Plaintiff Patsy Jay had sued Defendants Grand Management Services, Inc. (“GMS”),

Evergreen Gardens Limited Partnership (“Evergreen”), and GMS employees Jerry Mascolo,

Leondra Coleman, and Dawn Cockrum. Plaintiff asserts three claims under the Federal Fair

Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and one claim for common law negligence. She

alleges that Defendants—who owned and managed the residential property where she lived—

exposed her to a hostile living environment and that Defendants retaliated against her after she

sought a restraining order against a neighbor who allegedly sexually assaulted her. GMS,

Mascolo, Coleman, and Cockrum (the “Moving Defendants”) have moved for summary judgment

against all claims asserted against them. For the reasons stated below, the Court grants in part and

denies in part the Moving Defendants’ motion.1

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden,

“the moving party must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving

party need only point out ‘that there is an absence of evidence to support the nonmoving party’s

case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of

proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,

984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving party must set

1 Notwithstanding the Moving Defendants’ request for oral argument, the Court does not

believe that oral argument would assist in resolving the pending motion. See LR 7-1(d)(1).

forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a

genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

The Court must view the evidence in the light most favorable to the non-movant and draw

all reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251

F.3d 1252, 1257 (9th Cir. 2001). Although “[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 . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla of

evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252, 255.

“Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

BACKGROUND

A. Evergreen Gardens and Its Tenant Policies

Evergreen Gardens is an apartment complex in Tillamook, Oregon. The property is owned

by Evergreen Gardens Limited Partnership and managed by GMS. At the time of the events that

gave rise to this case, GMS employed all three individual defendants. Mascolo and Coleman were

on-site property managers, and Cockrum was a compliance specialist. See Mascolo Depo. Tr.

(ECF 28-4) 13:11-22; Coleman Depo. Tr. (ECF 28-2) 15:1-9; Cockrum Depo. Tr. (ECF 28-3)

11:6-9.

Plaintiff has resided at Evergreen Gardens for 26 years. Decl. of Patsy Jay (ECF 31-20)

(“Jay Decl.”) ¶ 2. She signed a standard subsidized lease agreement with GMS. See ECF 31-15,

ECF 31-16. Several provisions of the lease are relevant to this case. For example, the following

provision regulates tenants’ patios and decks:

Patios and Decks. Patios and entrances to apartments are to be kept

clean and free of debris and cobwebs. Only patio type furniture and

planters are allowed on patios or decks.

ECF 31-16 at 20.

The lease also outlines the process of eviction:

Good Cause. The Landlord may terminate this lease at any time, by

the giving of written notice to the Tenant not less than thirty (30)

days prior to termination. Such notice may only be given for good

cause, such as serious or repeated damage to the premises, creation

of physical hazards, refusal to follow project rules, or due to

violations of government regulations or over-income status. . . . The

notice shall clearly state the reasons for the termination. The Tenant

shall have fourteen (14) days within which to cure the violation.

The notice will provide the date by which the Tenant must vacate

the apartment if Tenant fails to cure the violation.

Id. at 12. The parties refer to this process as a “14/30 notice.”

The lease also requires GMS to notify the tenant after the 14-day period as to whether the

tenant has “satisfactorily corrected the problems or acts prompting [a] notice.” ECF 28-9 at 5.

When there is more egregious conduct, however, GMS can take immediate action:

Outrageous Conduct. Landlord may immediately terminate the

lease and take possession after twenty-four (24) hours written notice

if:

(1) Tenant . . . threatens to immediately inflict personal

injury or actually inflicts substantial personal injury upon

the Landlord or the Landlord’s employees or any other

Tenant or any neighbor living in the immediate vicinity,

. . .

(4) Tenant . . . commits any act that is outrageous in the

extreme.

ECF 31-16 at 12. This provision provides as non-exhaustive examples of “outrageous acts”

prostitution, the manufacture or delivery of controlled substances, intimidation, and burglary. Id.

The provision also states, however, that “an act can be proven to be ‘outrageous in the extreme’

even if it is one that does not violate a criminal statute.” Id.

As a recipient of a federal rural development housing subsidy, Evergreen Gardens is

subject to certain housing laws and regulations. See, e.g., id. at 29. To comply with these

regulations, GMS developed a series of written policies, practices, and training related to fair

housing. For example, GMS developed policies and practices regarding disability

accommodation. Plaintiff’s lease includes the following provisions:

3. Requests by tenants or applicants for reasonable accommodation

and/or modification to structure, rules, policies or procedure must

be made in writing and directed to either the site manager or Grand

Management Services central office @ 420 Park Avenue, Coos

Bay, Oregon 97420. If it is not possible for the person requesting

the modification to provide a “written request” an alternative

request can be made as an accommodation to the tenant or

applicant. The form Grand Management Services uses to receive

“reasonable accommodation requests” is attached for your review.

4. Reasonable accommodation requests will be evaluated within 14

days of receipt from tenant or applicant by central office personnel.

A decision will be made to either accept or deny the

accommodation within 14 days. The decision will be made in

writing and delivered to tenant/applicant via first class mail. The

applicant/tenant will have 30 days to file a grievance in the case of

an adverse decision. All accommodation action will begin to take

place no later than 30 days after approval of the accommodation.

Id.

GMS also has policies and practices for dealing with disputes and inappropriate conduct

between co-tenants. These policies are not provided in the lease itself but were described by

Cockrum and Kristin Smith—a compliance specialist and the property manager, respectively—at

their depositions for this case. Cockrum explained that complaints would be forwarded to her

from the property manager. Cockrum Depo. Tr. 20:23-21:6. Sometimes, she would get these

complaints in writing and other times by telephone call. Id. Cockrum would log notes on a

program called AppFolio based on her correspondence with the complainant. Id. 21:14-17.

Smith explained that when there was an allegation by one tenant of misconduct by

another, GMS “would investigate, and hopefully, there would be a police record and [the

misbehaving tenant] would be issued a notice of intent to evict. That’s the most stringent notice

that we’re allowed to give under the Rural Development Rules and Regulations, and it does allow

a cure period.” Smith Depo. Tr. (ECF 28-1) 15:12-23. Such an investigation would include

interviewing both parties and any witnesses, and reviewing police records. Id. 16:2-6. Smith

continued:

[Y]ou can’t evict just for waiving a gun or threatening to hurt

someone or kill someone or to punch someone. It has to be, you did

it. . . You have to issue a 14/30, that is the [Rural Development]

regulations. There must be a cure period in subsidized housing,

unless there is substantial harm. Like I said, an assault or a rape or

physical action. It has to have taken place.

Id. 37:4-12.

B. Plaintiff’s Experience with Tenant John McKnight

Because of several health conditions—including atrial fibrillation and osteoarthritis—and

a series of surgeries in recent years, Plaintiff has limited mobility. Jay Depo. Tr. (ECF 31-1) 6:24-

7:4. In 2021, at the time of the encounter that gave rise to this case, she was about 75 years old

and used a walker or wheelchair most of the time.2 Jay Decl. ¶ 3. Due to her medical history,

Plaintiff has resided in subsidized housing as part of her Social Security Disability benefits. Jay

Depo. Tr. 16:12-13, 16:16-18.

2 For example, Plaintiff states that in 2021, she used a walker “about ninety percent of the

time.” Jay Decl. ¶ 3.

In 2019 or 2020, Plaintiff first met her neighbor, fellow tenant John McKnight. Jay Decl.

¶ 5. McKnight had moved into Evergreen Garden Apartments in 2018 and unofficially worked as

a maintenance worker on the property. Smith Depo. Tr. 66:13-16 (explaining that McKnight

“wasn’t really an employee”). McKnight did some maintenance work in Plaintiff’s apartment,

soon became friendly with her dog Sweet Pea, and offered to walk Sweet Pea on occasion. Jay

Decl. ¶ 5. Plaintiff, who had difficulty taking her dog outside because of her limited mobility,

agreed. Id. During the following year, McKnight would visit Plaintiff’s apartment twice each day

to pick up Sweet Pea, and as a result, McKnight and Plaintiff “developed a platonic friendship.”

Id. “After a while of knowing him,” Plaintiff gave McKnight a spare key to her apartment so he

could walk Sweet Pea even when Plaintiff was not at home. Id.

On the morning of July 12, 2021, Plaintiff was in her residence when McKnight returned

with Sweet Pea from a walk. Jay Depo. Tr. 22:21-23, 23:2-3. McKnight lingered to talk with

Plaintiff. Id. 23:8. Plaintiff was seated in her wheelchair during the conversation. See id. 28:22-

23. McKnight began to talk about “how he harassed [another tenant’s daughter] because she had

very large breasts and that every time he saw her, he would moo like a cow.” Id. 23:9-13. Plaintiff

was “aghast” at the comments and informed McKnight that she needed a new dog walker. Id.

at 23:14, 27:13-17. At that point, McKnight turned away from Plaintiff. Id. at 28:1-2. Plaintiff

heard a zipper, and when McKnight turned back towards Plaintiff, he was holding his exposed

genitalia in his hand. Id. at 28:2-5. He stepped towards Plaintiff, kicked her feet off her

wheelchair’s footrest, used the footrest to lean forward, and used his free hand to pull Plaintiff’s

head closer to his genitalia. Id. at 28:2-7, 28:22-23, 29:14-15, 30:10, 85:14-23; Jay Decl. ¶ 6.

Plaintiff could see that McKnight wore a holstered gun3 throughout this interaction. Jay Depo.

Tr. 30:7-8, 32:2; Jay Decl. ¶ 6. Plaintiff screamed. Jay Depo. Tr. 30:22-24. McKnight stepped

back, zipped up his pants, and left quickly. Id. 32:15-25. Plaintiff “was so frightened that [she]

vomited in [her] lap.” Jay Decl. ¶ 6.

Later that day, Plaintiff was taking Sweet Pea for a walk and encountered her friend, Ruth

Fulks. Id. ¶ 7. Plaintiff explained what had happened, and Fulks encouraged Plaintiff to call the

police. Id. When Plaintiff declined to do so, Fulks called the police herself. Id. Plaintiff gave her

account, and the police officer then talked with McKnight and Coleman. Id.; see ECF 31-5 at 4-6

(police report describing conversations with Plaintiff, McKnight, and Coleman). The officer

drafted a report. See generally ECF 31-5. The report does not mention that McKnight made any

physical contact with Plaintiff. See id. at 4-6. After the officer left, Coleman changed Plaintiff’s

locks. Jay Depo. Tr. 40:5-9. GMS issued a 14/30 notice to McKnight. Coleman Depo. Tr. 47:17-

18. Mascolo decided, however, that GMS would go no further “without some type of police

report or . . . charges being pressed against [McKnight].” Id. 45:1-14.

On July 16, 2021, Plaintiff filed for and was granted an Elderly Persons and Persons with

Disabilities Abuse Prevention Act restraining order. Jay Decl. ¶ 11. The order required McKnight

always to stay at least 500 feet away from Plaintiff’s residence and forbade him from contacting

Plaintiff by telephone or mail. See ECF 28-7 at 1-2. McKnight was arrested on August 31st for

violating his restraining order. See ECF 28-8 at 3. He was released by September 1st. ECF 31-3

at 1. After a hearing in October, that order was modified such that McKnight could not get closer

than 200 feet to Plaintiff’s residence. Jay Decl. ¶ 11. Given the proximity of McKnight’s

3 Plaintiff was aware that McKnight had a concealed weapons permit and wore a gun in

his holster “all the time”; she had never seen that gun outside of its holster. Jay Depo. Tr. 32:4-14.

residence to Plaintiff’s he was unable to comply with the terms of the order and eventually moved

out of Evergreen Gardens in November 2021. See Smith Depo. Tr. 50:12-14; ECF 31-3 at 1.

Nevertheless, from July 12th until when he left GMS, McKnight “continued to stalk and

harass [Plaintiff] daily.” Jay Decl. ¶ 11; see also Jay Depo. Tr. (ECF 28-5) 48:8 (“He stalked me

every day.”). “He would come to [Plaintiff’s] bedroom window at night and make noises to scare

[her].” Jay Decl. ¶ 11. On one occasion, McKnight “was out in front of his truck pretending to

shoot at [Plaintiff’s] apartment and pretending to punch and pantomiming an assault and looking

at [Plaintiff’s] apartment.” Jay Depo. Tr. 41:6-9. Plaintiff testified that “the man’s gun scared the

hell out of me.” Id. 41:14-15. In short, “there was rarely a day when [McKnight] didn’t either

come to [Plaintiff’s] window or follow [Plaintiff’] around pretending to shoot [her].” Id. 48:11-17

(ECF 28-5 at 17). Three or four times, McKnight approached Plaintiff and asked her, “Patsy,

Patsy, are you sure you’re not talking too much?” Id. 68:3-11 (ECF 28-5 at 18). Plaintiff reported

some—but not all—of this behavior to Coleman, who allegedly told Plaintiff either to call the

police or to ignore it. Id. 41:20-24; Jay Decl. ¶ 11. Coleman testified that Plaintiff’s caretaker,

Rebecca Mobley, made a series of complaints regarding McKnight’s conduct towards Plaintiff.

Coleman Depo. Tr. 74:16-21. Coleman further testified that she received a written report

concerning McKnight pretending to shoot at Plaintiff. Id. 77:2-6.

C. Defendants’ History with John McKnight

McKnight has had a history at Evergreen Gardens of women reporting him for

misconduct. The Court intentionally excludes the names and dates of the reported incidents to

maintain the reporters’ anonymity, but notes that all of the incidents are alleged to have occurred

between September 2018 and March 2021. See generally ECF 31-3. At least ten separate

complaints—including two filed by female employees of GMS—were filed in this time frame. Id.

At least two complainants had physical disabilities or a mental health condition. E.g., id. at 19, 26,

76. The women4 allege a variety of misconduct, including McKnight following a complainant

around, yelling at her in a way that made her fear for her life, staring at her through a window,

and deliberately showing a complainant McKnight’s gun. One woman, for example, alleged that

McKnight stood outside her kitchen window and lifted his shirt to show her his gun. Id. at 12.

Another asserted that McKnight would watch her apartment at night, waiting until she turned her

lights off, and would then start pounding on her walls. Id. at 38. At least one tenant obtained a

stalking order against McKnight. Id. at 3. Several women reported feeling unsafe at Evergreen

Gardens with McKnight as a co-tenant and requested GMS to take action. E.g., id. at 25, 28, 30,

68-9.

There were also at least two allegations of inappropriate touching. In one account, a tenant

stated that during a conversation involving that tenant, McKnight, and a GMS employee,

McKnight “rubbed” the tenant’s upper arm. Id. at 26. A different individual, who was then a

GMS employee herself, reported a more serious incident. In her incident report, she explained that

McKnight got close enough that she could smell alcohol on his breath, pulled out his gun, and

waved the gun in her face. Id. at 14. In a follow-up email that she sent to Smith and Mascolo, she

added further detail, including that McKnight had sexually assaulted her and left bite marks on

her body. Id. at 6.

These complaints were documented in AppFolio, GMS’s tenant tracking application,

tagged by McKnight’s name. From AppFolio’s documentation and from conversing with tenants

directly, GMS employees—including the individual defendants in this case—were put on notice

of these allegations. For example, Coleman told the police officer who responded to Plaintiff’s

4 It does not appear that any male tenants or male GMS employees filed complaints

against McKnight.

incident that there had been “many written reports about [McKnight] harassing some of the

women that live in the apartments,” and that there were reports of McKnight “looking through

windows and following them home.” ECF 31-5 at 5. Indeed, GMS “tried several times to evict

John McKnight.” Smith Depo Tr. 35:14-15.

D. Plaintiff’s Walker and GMS’s Notice of Eviction of Plaintiff

Because of her limited mobility, Plaintiff kept a walker on her porch to assist her in caring

for her plants and enjoying her porch. See Jay Depo. Tr. 71:23-72:4. On May 13, 2021, Plaintiff

received a notice on her door listing what kinds of items appropriately may be kept on her porch.

Id. 71:11-15, 72:5-6. This notice was not a formal “14/30 notice,” but instead just a “warning.”

Coleman Depo. Tr. 71:17; id. 71:7-8 (“That’s just me letting you know that there’s a problem you

have to fix.”). Upon receiving that notice, Plaintiff moved her walker off the porch and put it in

the gravel outside her apartment, under the kitchen window. Jay Depo. Tr. 71:18-20. Keeping the

walker on the gravel was “hard” because Plaintiff would have to “wrestle it back up on the porch”

to water her plants. Id. 75:23-25. At some point after receiving the May 13th notice and before

August 20, 2021, Plaintiff made a verbal request to Coleman that Plaintiff be allowed to keep her

walker on the porch because of Plaintiff’s disability. Jay Decl. ¶ 12. Plaintiff did not receive a

response to that accommodation request. Id.

On August 20, 2021, Plaintiff received a formal 14/30 notice (the “August Eviction

Notice”). Id. This notice asserted that Plaintiff had breached several terms of her lease agreement,

reading as follows:

On May 13, 2021, Management posted a notice on your door

regarding the appropriate items we can allow on the front porches

per the lease. You had voiced your opinion and notified

management you are an enforcer of the lease and will obey it.

On July 30, 2021, Management received a call regarding you and

John McKnight being in the community room at around the same

time. You saw John and followed him out of the community room

with your phone up stating that you were going to call the police

because he was breaking the restraining order. The community

room is a shared space between all tenants. Your current

restraining order does NOT give you the right to keep John

from using the community room or laundry room. If he is there

first, you need to wait until he has left before you enter, and he

is to do the same for you according to the language of the order.

On August 11, 2021, Your care taker approached management in

an aggressive and demanding manner. Stating that management is

not doing their job regarding the civil case between yourself and

John McKnight. After management has let you know on multiple

occasions that we have exhausted all resources and that we need to

let The Tillamook police and court system do their job. She also

stated that we are not following up on “Johns’ daily harassment”;

although management has not received any tenant complaints; or

police reports of these incidents other than the initial police report

and written tenant complaint of the private indecency.

On August 16, 2021, Management received a written tenant

complaint stating you are watching other tenants through your

window with binoculars.5 These tenants have expressed that this

behavior is making them uncomfortable, and invading their privacy.

On August 17, 2021, Management noticed you have a walker on

your front patio. You have been given notice on 5/13/2021

regarding the appropriate items we allow on the front porch, and

ensured your cooperation.

ECF 28-9 at 3-4 (emphasis in original); see also Coleman Depo. Tr. 67:13-24 (explaining that

Plaintiff received the August Eviction Notice for “[m]ultiple reasons,” including “watching John

[McKnight] through the window with binoculars,” “sending letters to . . . other tenants” and

“disturbing” their peace, and “not following through with her commitment to keep her front patio

up to the lease standards.”); ECF 31-19 (email from Cockrum explaining to Plaintiff that

5 At deposition, Coleman clarified that the only complaints she received about this issue

concerned Plaintiff watching McKnight with the binoculars, and not any other tenants. Coleman

Depo. Tr. 77:12-25.

the August Eviction Notice was issued in part because Plaintiff “cussed and yelled” at

management on “several occasions”).

On August 25, 2021, Plaintiff wrote a 12-page letter to GMS in which she responded to

the allegations in the August Eviction Notice. See ECF 28-10. In that letter, she asked to be

allowed to keep her walker on her patio instead of a patio chair due to her disability. Id. at 8. She

also noted that she had used her binoculars to look at “bird nests and eagles” and that she had “no

interest” in watching tenants’ units. Id. at 7. She also explained her bird watching in her

declaration, describing that she is an avid birdwatcher and that she often sits at her window or

porch and watches birds through her binoculars. Jay Decl. ¶ 4. Additionally, in the letter and at

her deposition, she explained that the purported “community room incident” never occurred. ECF

28-10 at 1-2; Jay Depo. Tr. 76:23-24. She also contends that neither she nor her caretaker were

ever aggressive towards management. Jay Depo. Tr. 73:23-25, 77:5-7. She did, however,

permanently move her walker indoors, from her the gravel on her patio to her bedroom. Id. 72:21,

77:1-2. Plaintiff was never evicted.

In March 2023,6 Plaintiff received another “14/30 notice.” Jay Depo. Tr. 77:21. Plaintiff

explains that in the past, whenever she went to recertify her rent subsidy policy, she would have

to bring with her several documents. Id. 78:9-10 (ECF 28-5 at 28). In March 2023, however, the

form that described her appointment stated that she had to bring only one, her Social Security

award letter. Id. 78:10-14 (ECF 28-5 at 28). Plaintiff attended her appointment with Sharon Elrod,

the new manager at GMS, during which Plaintiff confirmed with Elrod that Plaintiff did not need

6 There is some confusion regarding when this incident occurred. In her deposition,

Plaintiff describes a similar account as happening in March 2022, and then receiving

another 14/30 notice in March 2023. Jay Decl. ¶¶ 16-17. In her deposition, she describes only a

singular incident that occurred in March 2023. Jay Depo. Tr. 77:19-22. This discrepancy does not

affect the outcome of the pending motion.

to provide additional documents. Id. 78:18-25 (ECF 28-5 at 28). Nevertheless, Plaintiff received

another notice of intent to evict for violating the recertification policy. Id. 79:10-16 (ECF 28-5

at 29). After Plaintiff received the notice, she gathered the allegedly missing information and sent

it to Elrod, to which Elrod responded that she already had it. Id. 79:23-80:4 (ECF 28-5 at 29-30).

Plaintiff was never evicted. Id. 80:7-8 (ECF 28-5 at 30).

DISCUSSION

Plaintiff asserts four claims, and the Moving Defendants seek summary judgment on all

four. The Court addresses each claim in turn, and then discusses whether punitive damages, which

Plaintiff also seeks, may be appropriate in this case. Before turning to the merits, however, the

Court briefly addresses the parties’ dispute about the meet and confer requirement in LR 7-1.

Plaintiff alleges that the Moving Defendants failed to confer with her before filing this motion and

argues that the Court should deny the motion on this basis alone. The Moving Defendants counter

that the parties had “numerous communications” about Plaintiff’s claims. The Moving

Defendants assert that during a meeting on September 13, 2024, Plaintiff affirmed that they were

free to file dispositive motions by November 12, 2024. The Court finds these discussions

sufficient and will not deny the pending motion solely on the grounds of a failure to confer.

A. Plaintiff’s First Claim: Violation of FHA (Disability Discrimination)

Plaintiff alleges that Defendants violated the FHA by failing reasonably to accommodate

Plaintiff’s disability because they denied her request to keep her walker on her patio. She states

that because Defendants denied her accommodation request, she continues to keep her walker off

her porch and in her bedroom, which makes it cumbersome for her to access her patio.

The FHA 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 with such dwelling, because of a handicap of . . . that person.” 42 U.S.C.

§ 3604(f)(2)(A). “Discrimination” includes, among other conduct, “a refusal to make reasonable

accommodations in rules, policies, practices, or services, when such accommodations may be

necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.

§ 3604(f)(3)(B). “Thus, the [FHA] imposes an affirmative duty upon landlords reasonably to

accommodate the needs of handicapped persons, not only with regard to the physical

accommodations, but also with regard to the administrative policies governing rentals.” Giebeler

v. M & B Assocs., 343 F.3d 1143, 1146-47 (9th Cir. 2003) (cleaned up). An accommodation is

“reasonable” when it “imposes no fundamental alteration in the nature of the program” or “undue

financial or administrative burdens.” Id. at 1157 (quotation marks omitted). To prevail on a claim

brought under 42 U.S.C. § 3604(f)(3)(B), a plaintiff must show that (1) she or her associate is

“handicapped” within the meaning of 42 U.S.C. § 3602(h); (2) the defendant knew or reasonably

should be expected to know of the handicap; (3) “accommodation of the handicap may be

necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling”;

(4) the accommodation is reasonable; and (5) the defendant refused to make the requested

accommodation. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179

(9th Cir. 2006).

The Moving Defendants’ primary argument addresses the fifth element of the Dubois test.

They argue that after Plaintiff submitted a request for a reasonable accommodation in her

August 25, 2021, letter, “it is undisputed” that GMS granted it. The Court finds, however, that

there is a genuine dispute as to whether Defendants granted the accommodation request. Plaintiff

states that she never received a response—written or oral—to her reasonable accommodation

request or the expected Notice of Cure from GMS regarding the August Eviction Notice. See Jay

Decl. ¶ 12; Jay Depo. Tr. 84:5-10. Smith states that she and her colleagues received a request for

reasonable accommodation from Plaintiff and granted it, but did not recall when that was. Smith

Depo. Tr. 54:20-25 (ECF 31-2). Coleman states that Cockrum and Mascolo granted the request,

but does not provide details on how—or even whether—that outcome was communicated to

Plaintiff. See Coleman Depo. Tr. 81:18-23. Coleman further states that although she does not

remember what the outcome was, she does remember printing and posting the results back to

Plaintiff. Coleman Depo. Tr. 81:13-14. The Moving Defendants, however, fail to provide any

evidence of a communication to Plaintiff in which they granted her request. Without this

documentation, the question of whether Defendants communicated to Plaintiff that they granted

her request comes down to the credibility of each witness, which the Court may not resolve at

summary judgment. See, e.g., Johnson v. Guardian Mgmt., 535 F. Supp. 3d 1004, 1016 (D.

Or. 2021). Viewing the record in a light most favorable to Plaintiff, as the Court must do at this

stage of the lawsuit, there is a genuine dispute of material fact as to whether Defendants granted

the accommodation. Thus, the Court denies the Moving Defendants’ motion with respect to

Plaintiff’s first claim.7

B. Plaintiff’s Second Claim: Violation of FHA (Sexually Hostile Living Environment)

Plaintiff alleges that Defendants further violated the FHA by ignoring a hostile sexual

living environment.

1. Applicable Law

The FHA makes unlawful discriminatory practices based on “race, color, religion, sex,

familial status, or national origin.” 42 U.S.C. § 3604(a). The FHA also forbids interference with a

7 The parties also dispute whether Plaintiff submitted a request for reasonable

accommodation before the August Eviction Notice. Plaintiff alleges a claim for failure to

accommodate under the FHA, and that claim does not require that she request an accommodation

before Defendants sent the August Eviction Notice. It is undisputed that Plaintiff sent an

accommodation request on August 25, 2021.

person’s enjoyment of any right granted or protected by § 3604. 42 U.S.C. § 3617. This section

prohibits discriminatory harassment that unreasonably interferes with the use and enjoyment of a

home, or “by another name, a hostile housing environment.” Wetzel v. Glen St. Andrew Living

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

The Ninth Circuit has not yet explicitly outlined the scope of landlord liability under an

FHA hostile living environment claim for failing to address tenant-on-tenant harassment. See, e.g.,

Pardo-Pena v. Kaas Props. LLC, 2024 WL 3298284, at *4 (C.D. Cal. Feb. 9, 2024); Gibson v.

Cmty. Dev. Partners, 2022 WL 10481324, at *5 (D. Or. Oct. 18, 2022). District courts in this

circuit have adapted tests from other circuits to analyze hostile living environment claims. See,

e.g., Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1290 (E.D. Cal. 2013); Vickerman v. Ramon

Mobile Home Park Inc., 2015 WL 13918532, at *10 (C.D. Cal. Aug. 14, 2015); Pardo-

Pena, 2024 WL 3298284, at *5.

These district courts, however, appear to have adopted one of two versions of an Eighth

Circuit test. Under the first test, which Plaintiff uses, “a plaintiff must establish that she was

subjected to (1) unwelcomed (2) sexual harassment that was (3) sufficiently severe or pervasive

so as to interfere with or deprive the plaintiff of her right to use or enjoy her home.”

Salisbury, 974 F. Supp. 2d at 1290 (citing Quigley v. Winter, 598 F.3d 938, 946-47 (8th

Cir. 2010)). Under the second test, which the Moving Defendants use, a plaintiff must show that

(1) she is a disabled individual (2) who experienced unwanted harassment (3) based on her class

status, (4) the severity of which was sufficient to impact her right to enjoy her living arrangement,

and (5) property managers were aware of or should have known about, and failed to promptly

remedy the harassment. See Pardo-Pena, 2024 WL 3298284, at *5 (adapting this test from

Neudecker v. Boisclair Corp., 2005 WL 1607409, at *2 (D. Minn. July 7, 2005)). This second test

makes one significant addition: a plaintiff must show that her landlord was aware—or should

have been aware—of the harassment but failed to address it.

Which test a court adopts depends on whether the alleged offender in the case was a

member of management (or management’s agent) or a co-tenant. Compare, e.g., Salisbury, 974 F.

Supp. 2d at 1290 (employing three-part test in lawsuit against managers), and Sharon v. New

Directions Inc., 2016 WL 158223, at *3 (C.D. Cal. Jan. 12, 2016) (same); with, e.g., Pardo-

Pena, 2024 WL 3298284, at *5 (employing five-part test in lawsuit against co-tenants). But see

West v. City & County of San Francisco, 2022 WL 1556415, at *8 (N.D. Cal. May 17, 2022)

(employing three-part test in lawsuit against co-tenants). This general pattern is sound; if a

plaintiff seeks to hold management accountable for the improper conduct of a co-tenant, it is

reasonable to require the plaintiff to show that management was aware, or at least reasonably

should have been aware, of that co-tenant’s improper conduct. This approach aligns with a

Department of Housing and Urban Development regulation issued in 2016, which explains that a

person is directly liable for “[f]ailing to take prompt action to correct and end a discriminatory

housing practice by a third-party, where the person knew or should have known of the

discriminatory conduct and had the power to correct it.” 24 C.F.R. § 100.7(a)(1)(iii) (emphasis

added).

An analogous context in which the Ninth Circuit has adopted this type of standard is

employment discrimination and hostile work environment claims. Indeed, courts in the Ninth

Circuit “apply Title VII discrimination analysis in examining [FHA] discrimination claims.”

Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997). In this circuit, employers are

liable for harassing conduct by non-employees “where the employer either ratifies or acquiesces

in the harassment by not taking immediate and/or corrective actions when it knew or should have

known of the conduct.” Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th

Cir. 1997). “This theory of liability is grounded not in the harassing act itself . . . but rather in the

employer’s negligence and ratification of the harassment through its failure to take appropriate

and reasonable responsive action.” Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir. 2006) (quotation

marks omitted). In other words, an employer may be liable for the conduct of non-employees

engaging in harassment only when the employer knows or has reason to know of the conduct—

just as the Neudecker test holds management and their agents accountable for co-tenant

harassment only when management was aware or should have been aware of that harassment. See

Pardo-Pena, 2024 WL 3298284, at *4 (“District courts in the Ninth Circuit have found it

appropriate to use the Neudecker test because . . . the Neudecker test mirrors the hostile working

environment claims under Title VII.”). Thus, the Court will apply the five-part test in evaluating

Plaintiff’s claim.

2. Analysis

The Moving Defendants make two relevant arguments regarding this claim.8 First, they

address the second element of the Neudecker test by arguing that there is insufficient evidence

that McKnight harassed Plaintiff. Specifically, the Moving Defendants observe that Plaintiff

never submitted a written complaint regarding any of McKnight’s alleged conduct after the July

8 The Moving Defendants made an additional argument in their motion that there is no

evidence that John McKnight harassed Plaintiff because of her disability. As Plaintiff points out

in her response, however, her claim for hostile living environment is based on sexual harassment,

not harassment based on disability. Moreover, the Moving Defendants did not reply to this

argument. Thus, the Moving Defendants abandoned it. See Palmer v. Cognizant Tech. Sols.

Corp., 2022 WL 18214014, at *31 (C.D. Cal. Oct. 27, 2022) (“Plaintiffs do not respond to this

contention in their Reply, which constitutes a concession of that argument.”); Nguyen v. Nissan N.

Am., Inc., 487 F. Supp. 3d 845, 857 (N.D. Cal. 2020) (concluding that the party’s failure to

address counterarguments in reply constituted abandonment of position taken in initial brief). For

these two reasons, the Court does not address the merits of this argument.

12, 2021, incident. They further assert that Plaintiff’s anecdotal evidence of harassment—such as

when McKnight mimed shooting her at her apartment—lack “sufficient details, such as dates,

necessary to create a genuine issue of material fact.”

At summary judgment, the Court must construe evidence in the light most favorable to the

nonmoving party. Accordingly, the Court accepts as true Plaintiff’s deposition and declaration

testimony that McKnight sexually harassed her on July 12th and continued to harass her verbally

and by following her and gesturing at her thereafter. That Plaintiff does not provide specific dates

beyond July 12th and July 16th does not mean that her accounts do not create a genuine issue of

material fact. The Court is satisfied with Plaintiff’s sworn statement in her declaration that from

July 12th until he left GMS, McKnight “continued to stalk and harass [Plaintiff] daily.” Further,

although it is technically true that Plaintiff did not submit a formal written complaint to Coleman

regarding McKnight’s continued harassment, Plaintiff’s caretaker submitted to Coleman

additional complaints—including a written report—on Plaintiff’s behalf.

Plaintiff also documented some of McKnight’s harassing conduct in the August 25th letter

that she sent to GMS. In that letter and in her filings made in this case, Plaintiff provides details

such as the specific types of gestures and comments that McKnight made and where he was when

he made them. The Court finds that Plaintiff’s allegations go beyond what the Moving Defendants

characterize as “a self-serving and internally inconsistent affidavit.” A reasonable juror may

ultimately agree with the Moving Defendants and find that Plaintiff’s assertions are insufficient to

support her claim. Similarly, a reasonable juror could find that Plaintiff’s contentions sufficiently

are detailed and credible. Based on the governing standards, however, the Court declines to grant

summary judgment for the Moving Defendants on this ground.

Second, the Moving Defendants address the fourth element of the Neudecker test and

argue that there is no evidence that any harassment was sufficiently severe or pervasive such that

it unreasonably interfered with Plaintiff’s use and enjoyment of her residence. “To determine

what constitutes severe or pervasive sexual harassment under the FHA, federal courts look to

cases interpreting what constitutes severe or pervasive sexual harassment in the context of

[Title VII].” Salisbury, 974 F. Supp. 2d at 1290. Under Title VII, this inquiry requires considering

both objective and subjective factors. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);

EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 999 (9th Cir. 2010). Courts “must assess all

the circumstances, ‘including the frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating; or a mere offensive utterance; and whether it

unreasonably interferes [with a housing environment].’” Dominguez-Curry v. Nev. Transp.

Dept., 424 F.3d 1027, 1034 (9th Cir. 2005) (quoting Clark Cnty Sch. Dist. v. Breeden, 523

U.S. 268, 270-71 (2001)). No one factor is dispositive. Harris, 510 U.S. at 23. Although “isolated

and innocuous incidents do not support a finding of sexual harassment,” see Salisbury, 974 F.

Supp. 2d at 1291 (quoting DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996)), “the more

severe the harassment, the less need to show a repetitive series of incidents,” Brooks v. City of

San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (quoting EEOC, Policy Guidance on Sexual

Harassment, 8 BNA FEP Manual 405:6681 (Mar. 19, 1990)).

Considering the relevant circumstances viewed in the light most favorable to the

nonmoving party, the Court finds that Plaintiff raises an issue of fact as to whether she suffered

severe or pervasive harassment. First, the July 12th incident constituted severe sexual harassment.

Importantly, the alleged assault occurred in Plaintiff’s own home. See Salisbury, 974 F. Supp. 2d

at 1292 (“Courts have recognized that harassment in one’s own home is particularly egregious . . .

.” (citing Quigley, 598 F.3d at 947)). It was physical; McKnight kicked Plaintiff’s feet off her

wheelchair footrest, grabbed her hair, and tried to pull her head closer to his genitalia. It was

frightening and humiliating; Plaintiff reports that the encounter was nonconsensual, and that

afterwards she was so horrified that she vomited in her lap. A reasonable juror also could find that

it was threatening; McKnight was armed and stood over Plaintiff, an unarmed elderly woman

using a wheelchair. McKnight’s conduct on July 12th far exceeded “a mere offensive utterance.”

It thus also exceeds the conduct at issue in the two cases to which the Moving Defendants

analogize this case. See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th

Cir. 2013) (finding no severe or pervasive harassment where employer made “crude and offensive

remarks” towards the plaintiff on four occasions about breast sizes, orgasms, tampons, and

gender-based stereotypes); McGee v. Poverello House, 2021 WL 3602157, *23 (E.D. Cal.

Aug. 13, 2021) (finding no severe or pervasive harassment where a roommate made a sexual

comment and showed the plaintiff a photo of herself in her underwear).

Given the severity of the July 12th incident, there is less of a need to show repetitive

incidents thereafter. As discussed, however, McKnight made a series of comments and

threatening gestures towards Plaintiff between July 12 and August 31, 2021, including coming to

her bedroom window at night, making frightening noises, making shooting gestures at Plaintiff’s

apartment, and pantomiming punching her. The Moving Defendants argue that “Plaintiff does not

contend that these behaviors occurred hourly, daily, weekly or even monthly” and that “there is

no evidence that these behaviors occurred once or even more than once.” But the Court disagrees

with the Moving Defendants’ characterization. Plaintiff specifically asserts that McKnight

harassed her “daily.” Plaintiff testified at deposition that McKnight’s conduct made her go

“hysterical” and that she “freaked out” because McKnight’s “gun scared the hell out of [her].”

Viewing the record in a light favorable to Plaintiff, the Court finds the conduct in this case

to resemble—or perhaps even exceed—the severity and pervasiveness of the conduct in Ellison v.

Brady, 924 F.2d 872 (9th Cir. 1991). In that case, a male employee of the Internal Revenue

Service asked out his female coworker to lunch. Id. at 873. Although she initially accepted, he

started to “pester her with unnecessary questions,” asked her out repeatedly even when she

declined, and then began send her love letters that escalated in intensity. Id. at 873-74. The female

coworker reported feeling “frightened” by the obsessive letters. Id. at 874. At no point did the

male employee threaten violence or display a weapon. Nor did the male employee have a history

of harassing other employees. Nevertheless, the Ninth Circuit held that a “reasonable woman”

could consider the male employee’s conduct, as alleged by the female coworker, sufficiently

severe or pervasive to create a hostile working environment. Id. at 880. Indeed, as the Ninth

Circuit explained, “in some cases the mere presence of a [tenant] who has engaged in particularly

severe or pervasive harassment can create a hostile [living] environment.” See id. at 883

(emphasis added). The Court similarly finds that a reasonable woman—and indeed, a reasonable

juror—could find that McKnight’s physical conduct on July 12, 2021, coupled with “daily”

stalking incidents and threatening gestures thereafter, are sufficiently severe or pervasive to create

a hostile living environment. Accordingly, the Court denies summary judgment on Plaintiff’s

hostile living environment claim.

Finally, in moving for summary judgment on this claim, Moving Defendants do not

dispute the fifth factor, awareness. Nor do the Moving Defendants dispute that they had the power

to evict McKnight. Plaintiff spends considerable time on this issue in her Response, but because

the Moving Defendants do not contest her position in their pending motion, the Court does not

address it further with respect to this claim.

C. Plaintiff’s Third Claim: Violation of FHA (Retaliation)

Plaintiff alleges that Defendants engaged in discriminatory housing practices by issuing

the August Eviction Notice to Plaintiff and thereby “coercing, intimidating, threatening[,] and

interfering with Plaintiff.” Compl. (ECF 1) ¶ 56. The FHA prohibits retaliating against a person

for exercising rights protected by the FHA.9 See 42 U.S.C. § 3617. To successfully bring a

retaliation claim under the FHA, a plaintiff must show that (1) she engaged in a protected activity,

(2) an adverse housing consequence is causally linked to that activity, and (3) there was resulting

damage. San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998). “In the

context of a § 3617 claim, that adverse action must be in the form of coercion, intimidation,

threats, or interference.” Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)

(cleaned up).10

First, Plaintiff asserts that she engaged in protected activity by reporting McKnight. To the

extent that the Moving Defendants argue that they sent Plaintiff the August Eviction Notice

because she was spying on McKnight with binoculars, attempting to “evict” McKnight from

9 “A Section 3617 violation does not require the person who is interfered with to capitulate

to the interference, and a violation can involve a situation where no discriminatory housing

practice may have occurred at all.” Morris v. W. Hayden Ests. First Addition Homeowners Ass’n,

Inc., 104 F.4th 1128, 1142 (9th Cir. 2024) (quotation marks omitted). “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.” Id.

(quoting Bloch v. Frischholz, 587 F.3d 771, 782 (7th Cir. 2009).

10 Section 3617 does not define “coercion,” “intimidation,” or “threat.” In Walker, 272

F.3d at 1129, quoting Webster’s Third New International Dictionary (14th ed. 1961), the Ninth

Circuit adopted the following definitions. “Interference” means “the act of meddling in or

hampering an activity or process.” “Coercion” means “compel[ling] to an act or choice by force,

threat, or other pressure” and includes “the application of sanctions or force . . . accompanied by

the suppression of constitutional liberties in order to compel dissenters to conform.” Finally,

“threat” means “an expression to inflict evil, injury, or other damage on another.” Importantly,

Ҥ 3617 does not require a showing of force or violence for coercion, interference, intimidation,

or threats to give rise to liability.” Id. at 1128.

community spaces, or because her caretaker was rude, there are genuine disputes of fact as to

whether these events occurred at all, or, if they did occur, whether they were the reason for the

August Eviction Notice. Plaintiff testified at her deposition and stated in her declaration that she

used her binoculars for birdwatching. She further stated that the community room incident never

occurred and that her caretaker never behaved aggressively. The Moving Defendants do not

dispute that reporting an assault committed by a co-tenant is protected activity under the FHA,

and the Court agrees that Plaintiff has shown a genuine issue of material fact regarding this first

factor.

As for the second factor, the Moving Defendants argue that sending the August Eviction

Notice to Plaintiff after she obtained a restraining order was not interfering, coercive, threatening,

or intimidating. Again, this is a question for the jury. Plaintiff engaged in protected conduct by

reporting McKnight for harassing her. Defendants took an adverse housing action against Plaintiff

when they sent the August Eviction Notice to her, which stated that Plaintiff would be evicted if

she did not comply with its terms. Plaintiff is an elderly woman with a disability who has resided

in the same apartment complex for more than 25 years. A reasonable juror could conclude that the

August Eviction Notice constituted impermissible intimidation, coercion, or a threat.

The Moving Defendants also dispute whether Plaintiff’s protected activity is causally

linked to that adverse housing action. The Moving Defendants assert that the August Eviction

Notice concerned unlawful and improper behavior by Plaintiff, including her watching McKnight

with binoculars, Plaintiff trying to “evict” McKnight from community spaces, and Plaintiff’s

caretaker acting aggressively towards management. As noted, Plaintiff disputes these allegations.

If Plaintiff’s account is believed by the jury, that would be evidence that Defendants’ motives

were retaliatory. Cf. Walker, 272 F.3d at 1131 (denying summary judgment on coercion issue

because parties disputed the defendant’s motives in acting). Based on these disputed issues of

fact, the question of causality must go to the jury.

Additionally, the August Eviction Notice stated that Plaintiff’s walker was impermissibly

located. In May 2021, Plaintiff had been warned about keeping her walker on her porch, and she

immediately relocated it to the gravel area. No further action was taken until three months later in

August 2021, shortly after Plaintiff had begun to report McKnight’s conduct. See San Pedro

Hotel Co., 159 F.3d at 477-78 (holding that the timing of the allegedly retaliatory investigations

may be accepted as circumstantial evidence of invidious purpose); Walker, 272 F.3d at 1130

(focusing on how the allegedly coercive and retaliatory conduct occurred only two weeks after

defendants received a complaint). This is further evidence that a jury may consider as evidence of

Defendants’ retaliatory intent. As noted, summary judgment on causality is inappropriate.

The Moving Defendants also argue that the 14/30 notice sent in March 2023 is not

evidence of retaliation. They contend that this 14/30 notice simply related to a paperwork issue,

which Plaintiff corrected, and resulted in no further action. On this issue, the Court agrees with

the Moving Defendants. Plaintiff has offered no evidence to link her complaints against

McKnight to the paperwork miscommunication in March 2023, one and a half years later. Even if

Elrod had misinformed Plaintiff about the recertification process, nothing in the record indicates

that Elrod was involved with or even aware of Plaintiff’s reports about McKnight, or that she was

asked to misinform Plaintiff by somebody who was. The Court thus grants the Moving

Defendants’ motion with respect to this 14/30 notice.

D. Plaintiff’s Fourth Claim: Negligence

Plaintiff alleges that Defendants were negligent in two alternative ways. First, she alleges

that Defendants “negligently violated their duty to recognize their obligations under the law and

to refrain from discrimination.” Compl. ¶ 61. Second, she alleges that Defendants “negligently

violated their duty to provide a dwelling that was reasonably safe for Ms. Jay.” Id. ¶ 62. The

Moving Defendants move for summary judgment only on the second allegation.

1. Applicable Law

Generally, a negligence claim brought under Oregon common law requires a plaintiff to

show that a defendant’s conduct “unreasonably created a foreseeable risk to a protected interest of

the kind of harm that befell the plaintiff.” Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17

(1987). “‘Duty’ is not an element of a negligence case unless the claim involves an obligation

arising from a special relationship which creates, limits or defines the obligation.” Budd v. Am.

Sav. & Loan Ass’n, 89 Or. App. 609, 612 (1988). When a special relationship between the

defendant and the injured party exists, then that relationship may create, define, or limit the

defendant’s duty to the plaintiff. Or. Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329,

341 (2004). If, however, the special relationship does not prescribe a particular scope of duty,

then “[c]ommon law principles of reasonable care and foreseeability of harm are relevant.” Cain

v. Rijken, 300 Or. 706, 717 (1986).

“[T]he relationship between a landlord and tenant [is] the kind of special relationship that,

under Fazzolari, should be analyzed according to the landlord’s duty as opposed to general

foreseeability.” McPherson v. State ex rel. Dept. of Corr., 210 Or. App. 602, 609 (2007). “[T]he

landlord-tenant relationship imposes on a landlord an affirmative duty to take reasonable steps to

warn or otherwise protect a tenant from foreseeable unreasonable risks of physical harm posed by

another tenant, whether on or off the premises.” Miller v. Tabor W. Inv. Co., 223 Or. App. 700,

710 (2008) (quotation marks omitted). Thus, harm may be foreseeable even when inflicted by a

third person. Id. at 711 (citing Fazzolari, 303 Or. at 20). “But mere ‘facilitation’ of an unintended

adverse result, where intervening intentional criminality of another person is the harm-producing

force, does not cause the harm so as to support liability for it.” Buchler v. State By & Through Or.

Corr. Div., 316 Or. 499, 511 (1993). Indeed, in Buchler, the Oregon Supreme Court determined

that liability based the defendant’s failure to warn plaintiffs that an escaped criminal might be in

the area was not viable because the plaintiff failed to provide evidence that the defendant knew or

had reason to know of the specific danger presented to the plaintiffs by the prisoner. See id.

at 516.

“[W]hether a rational juror can find that harm is foreseeable, particularly in the context of

criminal activity by third parties, is an ad hoc determination depending on the particular

circumstances of each case.” McPherson, 210 Or. App. at 617. Oregon courts have identified

certain factors to consider when conducting the foreseeability analysis. For example, “cases

following Buchler have recognized that the third-party criminal offender’s criminal history and

propensity for violence—at least insofar as it was or should have been known to the defendant—

is an important consideration.” Miller, 223 Or. App. at 712-13 (collecting cases). The

vulnerability of the plaintiff also is a relevant factor. Id. at 713.

2. Analysis

The parties agree that GMS and Plaintiff had a landlord-tenant relationship between them,

which comes with heightened duties of care. The Moving Defendants’ argument at summary

judgment is that GMS could not reasonably have foreseen that McKnight would pose a danger to

Plaintiff. GMS explains that it “is not going to present McKnight as a boy scout, as he certainly

was not. However, despite the complaints lodged against McKnight by other tenants, most were

‘he said/she said’ situations that could not be verified.” Thus, the Moving Defendants explain,

“nothing about [McKnight’s] past behavior gave GMS a reason to believe that McKnight would

be sexually indecent with Plaintiff.” The Moving Defendants ask that the Court dismiss the

negligence claim as alleging only “mere facilitation” on the part of GMS.

The parties have discussed several cases that analyze when conduct may or may not be

foreseeable. In McAlpine v. Multnomah County, plaintiff-motorists were injured by a parolee

during a traffic-related altercation. 166 Or. App. 472, 477 (2000). The plaintiffs alleged that the

parole officer knew or had reason to know of the parolee’s violent history—including armed

robbery, possession of a gas bomb, and assault in the first degree—and that the roadside

altercation was therefore foreseeable. Id. at 483. The court held that at the motion to dismiss

stage, the harm could be reasonably foreseeable, and the court allowed the claim to proceed. Id.

Similarly, in Brown v. Washington County, the Oregon Court of Appeals concluded that a

reasonable juror could find that the defendant county knew or should have known that an assailant

was likely to cause bodily harm to others because the county was familiar with the assailant’s

“entire criminal history, which included violent assaultive conduct.” 163 Or. App. 362, 372

(1999).

Both McAlpine and Brown rely on the analysis in Buchler, in which the Oregon Supreme

Court explored what types of underlying conduct are relevant to a foreseeability inquiry. The

Buchler court held that the deaths and injuries caused by a felon with nonviolent underlying

convictions were not legally foreseeable to the defendant jailer. 316 Or. at 507. The court

explained that “the prisoner’s criminal record only concerned property crimes, not acts of

violence,” and thus, that “[i]t is not possible for a reasonable person to find from this record that a

custodian would have known that this particular prisoner was ‘likely to cause bodily harm.’” Id.

Finally, in Miller, which discussed foreseeability in the context of a landlord-tenant relationship,

the court concluded that there was enough of a difference between the assailant’s past conduct—a

history of mental illness and a single assault several years before—and the conduct that instigated

the case—an assault against a co-tenant—to hold as a matter of law that the attack was not

reasonably foreseeable. 223 Or. App. at 704, 716. The court emphasized that there was no

evidence that the defendants knew that the assailant had a mental illness (or that his illness

triggered violence) or that the defendants knew of the details of the first assault. Id. at 714.

Unlike in Miller, there is no dispute that the Moving Defendants were aware—both

through AppFolio and direct interactions with tenants—of past, detailed allegations against

McKnight. Furthermore, as in McAlpine and Brown, and unlike in Buchler, there are several

common threads between McKnight’s alleged past conduct and his alleged conduct towards

Plaintiff. At least ten complaints were made against McKnight during the two and a half years

preceding the July 12, 2021, incident and its aftermath. Although not all of these complaints

involved a sexual assault, many of them included stalking and following women, staring at female

tenants through windows, making threatening comments, and discussing his gun or deliberately

displaying it. Plaintiff alleges that McKnight did each of those things to her, and on some

occasions, multiple times. As for the sexual misconduct on July 12th, the Moving Defendants

were aware of at least two explicit allegations of sexual misconduct: a tenant who asserted that

McKnight rubbed her arm, and a GMS employee who asserted that McKnight sexually assaulted

her and left bite marks on her body. The Moving Defendants thus were aware of at least one

incident that potentially exceeded the severity of Plaintiff’s allegation.

These specific sexual misconduct allegations, in light of McKnight’s other disturbing

conduct towards women—such as following them around, pounding on their doors, and making

them fear for their lives—are sufficient to create an issue of fact as to whether the Moving

Defendants knew or should have known that McKnight was a danger to Plaintiff, sexually or

otherwise.11 A reasonable juror could find that Defendants’ conduct constituted more than “mere

facilitation” of a third party’s intervening intentional criminal act. A reasonable juror thus could

find that the alleged assault and subsequent harassment was foreseeable to the Moving

Defendants.12

The Court also is unpersuaded by the Moving Defendants’ argument that Defendants

could not have “divined” that McKnight posed a sexual danger when Plaintiff—his close friend

and supporter in a dispute against an ex-girlfriend—“herself did not make that inferential leap.”

This argument mischaracterizes which party had access to the pertinent information. Plaintiff

made the calculation to befriend McKnight based on the limited information she had accessible to

her. The Moving Defendants, who had access to the numerous past complaints, cannot blame

Plaintiff for relying on incomplete information. Nor can they use Plaintiff’s friendship with

McKnight to evade their duty to keep Plaintiff and other tenants safe from dangers of which they

were aware. That McKnight spent considerable time with Plaintiff and that Plaintiff thought the

11 The Court does not find persuasive the Moving Defendants’ ancillary argument that

they would not have had reason to know that McKnight would assault Plaintiff—as opposed to,

presumably, another tenant. The Moving Defendants were aware that Plaintiff and McKnight

were close, and that McKnight had a history of assaulting women with whom he was close

(including a former romantic partner). McKnight also had harassed at least two other women with

a disability.

12 In their opening brief, the Moving Defendants also argued that the Court should dismiss

Plaintiff’s claims against the individual defendants because Plaintiff failed to establish an

applicable standard of care. Citing Adams v. United States, 2022 WL 1538649, at *14 (D. Or.

May 16, 2022), the Moving Defendants asserted that Plaintiff needed to present expert testimony

establishing the standard of care, and because she did not do so, her negligence claim as against

the individual defendants cannot move forward. Plaintiff addressed this argument in her

Response, explaining both why Adams is inapplicable and why dismissal of the claims against the

individual Defendants is not warranted. The Moving Defendants do not address these arguments

in their Reply and have thus conceded these arguments. See supra note 8.

two were friends does not demonstrate that McKnight’s conduct was unforeseeable to the Moving

Defendants.

E. Plaintiff’s Request for Punitive Damages

“[I]f a court finds that a discriminatory housing practice has occurred or is about to occur,

the court may award to the plaintiff actual and punitive damages . . . .” 42 U.S.C. § 3613(c)(1). To

obtain punitive damages under the FHA, a plaintiff must show that defendants acted at least with

reckless indifference. See Fair Hous. Ctr. of Wash. v. Breier-Scheetz Props., LLC, 743 Fed.

App’x. 116, 118 (9th Cir. 2018) (unpublished) (citing Fair Hous. of Marin v. Combs, 285

F.3d 899, 906 (9th Cir. 2002)); see also Montano v. Bonnie Brae Convalescent Hosp., Inc., 79 F.

Supp. 3d 1120, 1134 (C.D. Cal. 2015) (awarding punitive damages under FHA where defendants

acted “with reckless indifference”); Sanzaro v. Ardiente Homeowners Ass’n, LLC, 364 F.

Supp. 3d 1158, 1182 (D. Nev. 2019) (same).

The Moving Defendants argue that Plaintiff should not be able to seek punitive damages

in this matter because she cannot show that the Moving Defendants “acted with an evil motive or

callous indifference towards Plaintiff.” Plaintiff responds that Defendants acted with reckless or

callous indifference to her federally established rights because Defendants “were aware” of

McKnight’s concerning behavior—including complaints filed by Plaintiff herself—and chose not

to evict him. Instead, Plaintiff argues, the Moving Defendants took adverse action against her by

issuing the unwarranted August Eviction Notice.

The Court finds that a reasonable juror could find that the Moving Defendants acted with

reckless indifference toward Plaintiff’s rights. As discussed, Defendants were on notice about

McKnight’s past behavior—behavior that scared or endangered several female tenants at

Evergreen Gardens. The record further reveals that Defendants had discussed evicting McKnight

in the past but chose not to, even after Plaintiff reported a sexual assault. Finally, viewed in a light

most favorable to Plaintiff, Defendants never responded to her request for a reasonable

accommodation to keep her walker outside. Cf. Montano, 79 F. Supp. 3d at 1128, 1134 (finding

that defendants acted with reckless indifference in part because they “either refused or failed to

respond to plaintiff’s reasonable accommodation requests”). Accordingly, the Court declines to

dismiss Plaintiff’s request for punitive damages at this stage of the litigation.

CONCLUSION

The Court GRANTS IN PART and DENIES IN PART the Moving Defendants’ motion

for summary judgment, ECF 27. The Court grants the motion only against that portion of

Plaintiff’s Third Claim for Relief (alleging “Interference, Coercion, Intimidation”) based on what

the parties refer to as the March 2023 “14/30 notice.” The Court denies the Moving Defendants’

motion in all other respects.

IT IS SO ORDERED.

DATED this 20th day of May, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge