ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL
On October 17, 1994, the Court heard defendants Chris Caras’ and James Rickell’s motion for partial dismissal of plaintiffs First Amended Complaint. After fully considering the moving, opposition, and reply papers, exhibits submitted in connection with the request to take judicial notice, authorities, and counsel’s oral arguments, the Court denies the motion with respect to the First, Seventh, and Eighth Causes of Action, and grants the motion without leave to amend the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action.
I
PROCEDURAL BACKGROUND
Plaintiff Linda Beliveau (“Beliveau”) filed an action in Los Angeles Superior Court on
Defendants demurred to the complaint. On June 16, 1994, the Superior Court sustained the demurrer without leave to amend on the causes of action for housing discrimination, sexual assault (against Caras), intentional infliction of emotional distress (agаinst Caras), and negligent infliction of emotional distress (against Caras). Leave to amend was granted with respect to the negligent hiring and negligent supervision causes of action.
On July 5, 1994, plaintiff filed a First Amended Complaint (“FAC”) alleging the following causes of action: (1) discrimination in housing (42 U.S.C. § 3604 et seq.); (2) negligent hiring (unamended); (3) negligent supervision (unamended); (4) sexual battery (against Riekell) (5) intentional infliction of emotional distress (against Riekell); (6) negligent infliction of emotional distress (against all defendants and without court permission); (7) violation of the Ralph Civil Rights Act (Civ.C. § 51.7); (8) violation of the Unruh Act (Civ.C. § 51); (9) breach of the covenant of good faith and fair dealing; (10) breach of the covenant of quiet enjoyment (Civ.C. § 1927); and (11) intentional nuisance (Civ.C. § 3479). Pursuant to Federal Rule of Evidence 201, the Court hereby takes judicial notice of the pleadings and records in the Los Angeles Superior Court.
Defendants removed the case to federal court on August 9, 1994 based on the federal claim for discrimination in housing. Defendants Caras and Riekell moved to dismiss the First, Second, Third, and Sixth through Eleventh Causes of Action.
II
RELEVANT FACTUAL BACKGROUND
The following facts, which the Court must accept as true for purposes of the instant motion, are alleged in the First Amended Complaint (“FAC”).
Plaintiff rents an apartment in Redondo Beach. Defendant Chris Caras owns and operates the building; defendant James Riekell is the resident manager.
In about July/August 1993, Beliveau noticed that Riekell was staring at her while she was laying out by the apartment pool in her bathing suit. During that same time period, Riekell “began making off-color, flirtatious and unwelcome remarks to Beliveau.” FAC, ¶ 10. Also during this time frame, Riekell “went to Plaintiffs apartment to repair a water leak in her shower, when he thereafter called her into the bathroom, proceeded to put his arm around her, told her she was an attractive woman, he would like to keeр her company any time, and made a remark about her breasts, referring to them as ‘headlights.’ ” Id., ¶ 11, Beliveau pushed him away, and he “grabbed her breast, and, after being pushed away again, grabbed her buttock as she walked away from him.” Id., ¶ 12.
Ill
DISCUSSION
A. Standard on Motion to Dismiss
The purpose of a Rule 12(b)(6) motion is to test the “legal sufficiency of the claim or claims stated in the complaint.” Sehwarzer, Tashima and Wagstaffe,
California Practice Guide: Federal Civil Procedure Before Trial (“Fed.Civ.Proc.”),
§ 9:187 (1994),
citing Conley v. Gibson,
In evaluating the motion, the Court looks only to the face of the complaint to determine whether there are defects.
Levine v. Diamanthuset, Inc.,
B. Federal Housing Discrimination Claim
Title VIII or the Housing Rights Act of 1968, the Fair Housing Act, 42 U.S.C. §§ 3601-3619, prohibits, among other things, sexual discrimination in housing. 42 U.S.C. § 3604(b) provides in relevant part:
[I]t shall be unlawful—
(b) To discriminate against any person in the terms, conditions, or privileges of sale оr 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.
The application of sexual harassment doctrine to cases under Title VIII is relatively new. The first district court to find sexual harassment to constitute impermissible housing discrimination did so in Shellhammer v. Lewallen, Fair Hous.—Fair Lend. Rep. (PH) ¶ 15,472 (W.D.Ohio Nov. 22, 1983). In that case, a landlord requested that plaintiff pose for nude photographs and engage in sexual intercourse with him. Plaintiff refused, and, as the Shellhammers alleged, this prompted the landlord to commenсe eviction proceedings on the pretext of their purported nonpayment of rent.
The court reviewed the arguments for and against allowing a housing discrimination claim to be based on sexual harassment. The court noted that, in the employment context, other courts had not found the absence of express authorization in the text or legislative history of Title VII to justify rejecting such claims. Moreover, both Title VII and Title VIII were “designed to eradicate the effects of bias and prejudice. Their purposes are, clearly, the same; only their field of operation differs.” Indeed, as the Chief Judge of that district had explained, “The [Fair Housing] Act ... is to be construed generously to ensure the prompt and effective elimination of all traces of discrimination within the housing field.”
Id,
p. 16,-128,
quoting United States v. City of Parma,
The judge then explained that in the housing area, “sexual harassment would consist of either creating an ‘offensive environment,’ or conditioning tenancy or continued tenancy, upon sexual consideration.” Id The court found the latter form of sexual harassment to be present.
Since
Shellhammer,
additional courts have agreed that sexual harassment is an actionable form of housing discrimination. In
New York ex rel. Abrams v. Merlino,
More recently, in
Honce v. Vigil,
Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be ‘sufficiently severe or pervasive’ to alter the conditions of the housing arrangement ... It is not sufficient if the harassment is isolated or trivial____ ‘ “[C]asual or isolated manifestations of a discriminatory environment ... may not raise a cause of action.” ’ ... The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender.
Id. at 1090 (citations omitted). The court found defendant’s conduct, which escalаted from asking her out to threats of eviction, to be “eccentric, and probably unwarranted,” but because his behavior was not sexual or directed only at women, it was not actionable. Id.
In sum, it is beyond question that sexual harassment is a form of discrimination. Moreover, as the above cases make clear, the purposes underlying Titles VII and VIII are sufficiently similar so as to support discrimination claims based on sexual harassment regardless of context. Indeed, it is the behavior that the law seeks to eradicate. The basic principles thus apply as strongly in the housing situation as in the workplace. 1 At this point, then, it is appropriate to turn to this circuit for guidance on the applicable standards in sexual harassment cases.
The Ninth Circuit set forth the parameters of sexual harassment claims in employment in
Ellison v. Brady,
The Ninth Circuit reversed. The court noted first that “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”
Id., quoting King v. Board of Regents of University of Wisconsin System,
The court explained that harassment should be analyzed from the victim’s perspective. Women’s viewpoints differ widely, the court acknowledged. But certain realities persist. Notably, women remain disproportionately vulnerable to rape and sexual assault, which can and often does shape women’s interpretations of words or behavior of a sexual nature, particularly if unsolicited or occurring in an inappropriate context. Id. at 879. Such differences in experience and perception are a regrettable function of the society we live in, not an inevitability grounded in biology.
Regardless of the source, though, the net result of the disparate experiences of women and men concerning harassment, as the Ninth Circuit recognized, is that a single standard
perpetuates
inequalities: “a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.”
Id.
at 879.
Applying the reasonable woman standard to the facts, the Ninth Circuit did not find Ellison’s reaction to be hyper-sensitive:
We believe that a reasonable woman could have had a similar reaction. After receiving the first bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to lеave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been “watching” and “experiencing” her; he made repeated references to sex; he said he would write again. Ellison had no way of knowing what Gray would do next.
Id. Despite the lack of evidence of any malicious intent on Gray’s part, the court refused to regard Gray as a “modern-day Cyrano de Bergerac wishing no more than to woo Ellison with his words.” Id.
In the instant case, plaintiff has alleged several incidents in which defendant Rickell made “off-color, flirtatious and unwelcome remarks.” In addition, she has alleged an incident of offensive touching, which, if proved, would constitute a sexual battery under California Civil Code § 1708.5. 3 Any such touching would support a sexual harassment claim under the federal Fair Housing Act. Particularly where, as here, the alleged battery was committed (1) in plaintiffs own home, where she should feel (and be) less vulnerable, and (2) by one whose very role was to provide that safe environment, defendants’ contention that plaintiff has failed to allege “conduct that was so severe or pervasive to ‘alter the conditions’ of plaintiffs housing environment” and hаs failed to “allege an ‘abusive’ housing environment” resulting from defendants’ conduct is not well-taken. There are few clearer examples of classic sexual harassment than an unpermitted, allegedly intentional, sexual touching. Under no circumstances should a woman have to risk further physical jeopardy simply to state a claim for relief under Title VIII. Plaintiff has adequately alleged the requisite offensive housing environment. The motion to dismiss this claim is denied. 4
C. Other Claims
1. Claims Subject to Court Ruling on Demurrer
Before this case was removed, defendants demurred successfully to the causes of action for negligent hiring, negligent supervision, and negligent infliction of emotional distress. Plaintiff was given leave to amend the first two, but did not do so. The court did not give plaintiff leave to amend the negligent infliction cause of action as to the property owner, defendant Caras.
On removal, the state court’s rulings stand, unless or until modified by a federal court.
Fed.Civ.Proc.,
§ 2:1018,
citing Salveson v. Western States Bankcard Ass’n,
2. Ralph Civil Rights Act
Plaintiffs Seventh Cause of Action asserted a violation of the Ralph Civil Rights Act of 1976, Civil Code § 51.7, which provides in relevant part:
All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, or position in a labor dispute. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.
Defendants have challenged the claim with respect to Caras, arguing that only the actual harasser is potentially liable for any violation. Defendants relied on a series of cases in which courts have declined to apply the doctrine of respondeat superior to hold school district employers liable for the sexual torts of their employees.
It is, of course, well-established under California law, which controls on this claim, that the doctrine of respondeat superior may support a finding of employer liability for “torts committed by an employee within the scope of employment.”
Mary M. v. City of Los Angeles,
In
Mary M.,
the California Supreme Court stated again that for respondeat superior to apply, plaintiff had to “prove that the employee’s tortious conduct was committed within the scope of employment.”
Id.
at 209,
The California Supreme Court reiterated that courts must also consider three policy objectives in determining whether the doctrine of respondeat superior applies in a particular case. First, courts must evaluate whether imposing liability “may prevent recurrence of the tortious conduct” by “ ‘creating a strong incentive for vigilance by those in a position “to guard substantially against the evil to be prevented.” ’ ”
Id.
at 214,
Whether certain conduct, such as the unwanted touching and allegedly offensive remarks here, occurs within the scope of employment is ordinarily a question of fact, unless the facts are undisputed.
Farmers Insurance Group v. County of Santa Clara,
In the instant case, plaintiff has alleged that defendant Rickell was the resident manager and was employed by defendant Caras. Plaintiff further alleged that “each of
There is little question that courts have demonstrated ambivalеnce concerning the proper characterization of an employee’s behavior when he allegedly commits a sexual battery or rape while “on duty.” The California Supreme Court found the City of Los Angeles to be liable when one of its police officers raped a woman after he took her home when she performed poorly on a field sobriety test.
Mary M. v. City of Los Angeles, supra,
Decisions following
Mary M.,
however, have not made it possible to articulate a bright line rule on when respondeat superior ought to apply. For example, in
Debbiе Reynolds Professional Rehearsal Studios v. Superior Court,
Less than six months later, however, another division of the same district court of appeal appears to have confused the issue somewhat. In
Morin v. Henry Mayo New-hall Memorial Hospital,
As the above examples demonstrate, the line-drawing in the subset of respondeat superior cases involving sexual assaults and batteries is. highly fact-specific. As discussed, plaintiff here has plainly alleged facts
3. Unruh Civil Rights Act
The Unruh Civfl Rights Act, Civil Code § 51, provides in relevant part:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of ever kind whatsoever.
The Unruh Civil Rights Act is to be liberally construed.
Lambert v. Mandel’s of Cal.,
Defendants contend that Civil Code § 51 does not by its term prohibit sexual harassment. Defendants rely on
Harris v. Capital Growth Investors XIV,
4. Breach of the Covenant of Good Faith and. Fair Dealing
The Second Restatement of Contracts, quoted in 1 B. Witkin, Summary of California Law, “Contracts” (9th ed. 1987) § 744, provides that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Plaintiff did not contest defendants’ argument that plaintiff has no contract with Riekell and that Caras is not alleged to have done anything to breach the rental agreement. Def. Mot., pp. 19-20. As plaintiff has not even alleged a breach of contract claim in the FAC, she would seem to be missing a key element of her breach of implied covenant claim, whether pled in contraсt or tort. In any event, at oral argument, plaintiffs counsel consented to dismissal of this claim.
5. Breach of the Covenant of Quiet Enjoyment
As Professor Witkin has explained, “[i]n every lease, there is an implied covenant by the lessor of
quiet enjoyment
and possession during the term.” 4 B. Witkin,
Summary of
Here, plaintiff has alleged that she “continues to be, a resident of ... the ‘RENTAL PREMISES^]’” FAC, ¶2. Asa result, she cannot state a claim for breach of the implied covenant of quiet enjoyment based on eithеr actual or constructive eviction. This claim is therefore dismissed.
6. Intentional Nuisance
Nuisance is defined in the Civil Code as follows:
§ 3479. Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisanee.
Quoting the Second Restatement of Torts, Witkin stated: “[Private nuisance] covers the invasion of the private interest in the use and enjoyment of land. In its origin it was purely tortious in character, and it has remained so. It is always a tort against land, and the plaintiffs action must always be founded upon his interest in the land.” 11 B. Witkin, Summary of California Law, “Equity” (9th ed. 1990), § 122 (emphasis added). A single act can constitute a nuisance. Id., § 123 (citation omitted).
Assuming that plaintiffs tenancy is an interest in land sufficient to confer standing for purposes of a nuisance claim
{see Jones v. Kelly,
Here, though, the “nuisance” is Rickell’s alleged sexual battery, not his failure to make repairs. True, the incident occurred while he was in the apartment to repair the shower. This appears to be incidental, for nuisance purposes, to the harm plaintiff allegedly suffered. It is his unwelcome comments and offensive touching, combined with the fact he was the apartment manager, not his failure to make necessary repairs in her unit, that is the gravamen of her complaint. The motion to dismiss is also granted on this claim.
IV
CONCLUSION
For the reasons set forth above IT IS HEREBY ORDERED that defendаnts’ motion to dismiss with respect to the First, Seventh, and Eighth Causes of Action is denied. The motion regarding the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action is granted without leave to amend.
Notes
. One commentator has suggested that sexual harassment in the home is in some respects more oppressive: "When sexual harassment occurs at work, at that moment or at the end of the work day, the woman may remove herself from the offensive environment. She will choose whether to resign from her position based on economic and personal considerations. In contrast, when the harassment occurs in a woman's home, it is a complete invasion in her life. Ideally, home is the haven from the troubles of the day. When home is not a safe place, a woman may feel distressed and, often, immobile.” Comment, “Home is No Haven: An Analysis of Sexual Harassment in Housing.” 1987 Wis.L.Rev. 1061, 1073 (Dec. 1987).
. The court recognized that the "reasonable victim standard” would "classiffy] conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.” Id. at 880. The burden, then, would be on employers to "educate and sensitize their workforce[.]" Id.
. Civ.C. § 1708.5(a)(1) provides that "A person commits а sexual battery who does any of the following: (1) Acts with the intent to cause a harmful or offensive contact with the intimate part of another, and a sexually offensive contact with that person directly or indirectly results.” Both "buttock” and “breast of a female” are "intimate parts” within the meaning of the statute. § 1708.5(d).
. The Court notes that, effective January 1, 1995, new California Civil Code §51.9 will specifically authorize a cause of action for sexual harassment by, among others, a tenant against a landlord or property manager.
. The doctrine of respondeat superior also apрlies in the context of Federal Housing Act claims.
Chicago v. Matchmaker Real Estate Sales Center,
. Civil Code § 1927 provides: "An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”