GLENN HOWARD; GALE HOWARD; CHRISTINE HOWARD, Plaintiffs-Appellants, v. HMK HOLDINGS, LLC; HOVIK M. KHALOIAN, Defendants-Appellees.
No. 18-55923
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 23, 2021
D.C. No. 2:17-cv-05701-DMG-JPR
Opinion by Judge Bennett
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding
Argued and Submitted September 1, 2020 Pasadena, California
Filed February 23, 2021
Before: Sandra S. Ikuta and Mark J. Bennett, Circuit Judges, and Douglas P. Woodlock,* District Judge.
Opinion by Judge Bennett
* The Honorable Douglas P. Woodlock, United States District Judge for the District of Massachusetts, sitting by designation.
SUMMARY**
Fair Housing
The panel affirmed the district court‘s grant of summary judgment in favor of the defendants in an action under the Fair Housing Amendments Act.
Plaintiffs Glenn Howard et al. sought to extend their tenancy in defendants’ property due to Howard‘s medical condition. They alleged violation of
Plaintiffs also alleged that defendants were liable under the FHAA for failing to engage in an interactive process with them. Agreeing with the Third and Sixth Circuits, the panel held that there is no stаndalone liability under the FHAA for a landlord‘s failure to engage in an interactive process.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Matthew M. Hilderbrand (argued) and Louis A. Chaiten, Jones Day, Cleveland, Ohio, for Plaintiff-Appellant Glenn Howard.
Christine Howard, Orlando, Florida, pro se Plaintiff-Appellant.
Gale Howard, Orlando, Florida, pro se Plaintiff-Appellant.
Andrew I. Shadoff (argued), Martin H. Orlick, and Stuart K. Tubis, Jeffer Mangels Butler & Mitchell, Los Angeles, California, for Defendants-Appellees
BENNETT, Circuit Judge:
Glenn Howard, his wife Gale Howard, and his daughter Christine Howаrd appeal the district court‘s award of summary judgment in favor of Defendants HMK Holdings, LLC, (“HMK“) and Hovik M. Khaloian on the Howards’ claim for violations of the Fair Housing Amendments Act of 1988 (“FHAA“). The district court found that (1) the Howards failed to show that “extending their tenancy was necessary because of [Glenn]‘s medical condition,” and (2) the FHAA does not provide for independent liability based on a landlord‘s failure to engage in the interactive process. We have jurisdiction under
The Howards were tenants in a home in Los Angеles, California. Their original lease term was for one year beginning September 2012, with monthly rent of
In March 2017, Gale sent a second letter to HMK, acknowledging the Notice to Quit and requesting a two-month extension of the lease termination until July 15, 2017, as a reasonable accommodation of Glenn‘s disability. Glenn had had a tumor removed from his brain in 1994 and then underwent extensive radiation treatment, which further damaged his brain. As a result, Glenn required 24-hour supervision and care. Although Glenn‘s condition had been stable when the Howards moved into the home, his regular medication regime stopped working in late 2016 and he began to suffer from nocturnal seizures. In her letter requesting an accommodation, Gale explained that Glenn was “brain [i]njured and needs 24-hour care” and that his health was “very unstable.” The letter also stated that Glenn‘s “neurologist is trying a new treatment right now that [the family] believe[s] will make it possible for him to move in July 2017.” The record contains no indication of how much (if any) information about Glenn‘s medical condition the Howards provided HMK before March 2017.
HMK acceded to Gale‘s request to extend the tenancy to July 15, 2017, but also stated that no other extensions would be granted. In early May, HMK sent the Howards a letter noting the July 2017 termination date, pro-rating the July rent, and reiterating that no other extensions would be granted. The letter enclosed a revised 60-day Notice to Quit.
In late June, Gale sent HMK a request for an extension of the reasonable accommodation for Glenn “until his medical condition for his disability is safely stabilized after which the landlord will be notified.” This request attached a letter from Dr. Sung-Min Park, a doctor with the U.S. Department of Veterans Affairs (“VA“), stating that Glenn “has a medical condition that rеquires optimization before he can safely embark on a long trip,” and that the landlord would be notified when Glenn “is appropriately stabilized for long travel.” Neither Gale nor Dr. Park explained the references to a “long trip” or “long travel.” A week later, HMK wrote back denying this second request for an extension, describing it as an “open ended accommodation” that “does not appear to be reasonable.” HMK asked the Howards to timely vacate the home on July 15, 2017. Gale responded on July 6, again requesting an extension, but this time specifically requesting a January 22, 2018, tenancy-termination date. Gale enclosed a letter from VA neurologist Dr. Kolar Murthy, stating that Glenn‘s medical condition “needs to be optimized before he can safely embark on a long trip” and that “[t]he family needs to stay until January 22, 2018, when [Glenn] is appropriately stabilized for long travel.”
Though they never communicated it to HMK, the Howards intended to move to Florida after vacating the home. Dr. Park was aware of this intention and wrote his letter because he needed more time to treat Glenn before Glenn “could make a cross-country visit.” The Howards never discussed with Dr. Park moving to a new residence in Los Angeles or anywhere that did not require cross-country travel. Dr. Park testified that his letter did not concern Mr. Howard‘s ability to be physically moved from his home “at all.” Dr. Murthy‘s opinion was that Glenn‘s medical condition made “riding on a long trip inadvisable.” Dr. Murthy also stated that nothing in his letter addressed Glenn‘s inability to ride in a car for short trips or “to be transported in a car from one residence to another residence in the Los Angeles area.” Gale confirmed that Dr. Murthy was concerned about Glenn safely making a trip from California to Florida.
In early July, Gale sent HMK a $4,700 check for “rent July 2017.” On July 12, HMK returned the check and directed Gale to remit a check for the prorated July rent amount. On July 14, Gale sent another request fоr an extension, stating that the Howards were willing to pay $5,966 per month (the rental rate set in the lease HMK had proposed and which Gale had rejected). HMK did not respond to the letter and on July 21, 2017, filed a state court complaint for unlawful detainer to recover possession of the house. The Howards filed their federal court complaint on August 1, 2017.
The Howards remained in the home until January 2018, when they permanently moved to Florida.3 For about seven to ten days before vacating the homе, the family lived in a motel in Burbank, California. The Howards (including Glenn) drove back and forth between the motel and the home during this time. Glenn also traveled by car from his home to his VA appointments on various occasions, including in 2017.
This court reviews grants of summary judgment de novo. Harris v. Itzhaki, 183 F.3d 1043, 1050 (9th Cir. 1999). We must view the evidence in the light most favorable to the nonmoving party to determine whether there are “any genuine issues of material fact” and “whether the district court correctly applied the relevant substantive law.” Id. at 1050-51 (citation omitted). When determining whether a genuine issue оf material fact exists, we “must draw all justifiable inferences in favor of the nonmoving party.” Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1132 (9th Cir. 2003) (citation omitted).
I
The Howards base their FHAA discrimination claim on
(1) that the plaintiff or his associate is handicapped within the meaning of
42 U.S.C. § 3602(h) ; (2) that the defendant knew or should reasonably be expected to know of the handicap; (3) that accommodation [in rules, policies, practices, or services] of the handicap may be necessary to afford the handicapped personan equal opportunity [i.e., equal to a non-handicapped person] to use and enjoy the dwelling; (4) that the accommodation [in rules, policies, practices, or services] is reasonable; and (5) that 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). Review is “highly fact-specific, requiring case-by-case determination.” Id. (citation omitted).
Here the third element is at issue—whether an accommodation in rules, policies, practices, or services was necessary to afford Glenn an opportunity, equal to a non-disabled person, “to use and enjoy” the house. The district court granted summary judgment to Defendants, finding that Plaintiffs failed to show that the January 22, 2018 move-out date was necessary to accommodate Glenn‘s impairment, as opposed to simply making it more convenient because the Howards wanted to move to Florida. We agree that making “accommodations in rules, policies, practices, or services” was not necessary to afford the Howards “equal opportunity to use and enjoy a dwelling.”
We start here with the undisputed fact that HMK offered the Howards, who were on a month-to-month tenancy, terminable at will, a new lease for one year at an increased rent. The Howards turned down the nеw lease. Whether they turned it down because they refused to pay an increased rent, or because they wanted to move to Florida sooner than one year, or for some other reason, isn‘t in the record, and doesn‘t matter. The Howards never argued (nor credibly could they) that they turned down the lease for any reason related to Glenn‘s disability.4 Once the Howards turned down the new lease, HMK terminated their tenancy as of July 15, 2017.5 Upon termination, the Howards were in the same position as a family with no disability that had had its lease terminated. The question is whether, in those circumstances, the Howards’ request that HMK make an accommodation in its lease termination policy so that the Howards could remain in the home until January 22, 2018, was necessary to accommodate Glenn‘s disability.
“Necessary” suggests “something that ‘cannot be done without.‘” Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917, 923 (10th Cir. 2012) (quoting Oxford English Dictionary, vol. X at 276 (2d ed. 1989)); see Vorchheimer v. Philadelphian Owners Ass‘n, 903 F.3d 100, 105–07 (3d Cir. 2018) (defining “necessary” to mean
“required, indispensable, essential“). To prove that an accommodation to HMK‘s lease termination рolicy was “necessary,” the Howards must establish that, “but for the accommodation, they likely will be denied an equal opportunity [i.e., equal to the opportunity afforded non-disabled persons] to enjoy the housing of their choice.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003) (quoting Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996)). Thus, the inquiry is a causal one that “examines whether the requested accommodation ... would redress injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive.” Anderson v. City of Blue Ash, 798 F.3d 338, 361 (6th Cir. 2015) (citation omitted). The plaintiff‘s disability must cause the need for an accommodation
Our decisions in Giebeler v. M & B Associates, 343 F.3d 1143, and United States v. California Mobile Home Park Management Co. (Mobile Home II), 107 F.3d 1374 (9th Cir. 1997), are instructive. Giebeler is an example of what causality looks like. The plaintiff‘s disability prevented him from working, which caused him to fail the tenancy‘s income requirements (thereby disqualifying him from a tenancy he otherwise would be qualified for), which would have been redressed by allowing his mother to cosign—the requested accommodation to the tenancy requirement. 343 F.3d at 1155–56. The causal link from disability to the need for an accommodation was evident, and we deemed the accommodation necessary. Id. Conversely, in Mobile Home II, the plaintiff‘s daughter‘s disability did not cause a need for a waiver of the babysitter‘s parking fees. 107 F.3d at 1381. There was no evidence that her daughter‘s disability required the babysitter to use a car or to park it in spaces subject to the landlord‘s parking fees, or that waiving the fees was necessary to give the daughter an equal opportunity to use and enjoy the dwelling. Id. There was also no evidence that her daughter‘s disability was why the babysitter could not pay parking fees in violation of the landlord‘s policy. Id. Because there was no causal link, we described the requested accommodation as a convenience, not a necessity. See id. at 1380–81.
No causal link exists here. We cannot find a connection between Glenn‘s disability and his request to remain in the home until January 22, 2018. The Howards offered no admissible evidence that relocating Glenn to another residence in or near Los Angeles at the end of their tenancy would have jeopardized Glenn‘s health or safety. Both of Glenn‘s treating physicians, Dr. Park and Dr. Murthy, made clear they wеre not so opining. And, in fact, the record shows that Glenn could and did travel locally by car. Because there is no indication that Glenn would have suffered any injury because of his disability absent a tenancy extension, there is no causal link between his disability and the requested accommodation. See Mobile Home II, 107 F.3d at 1381. We do not doubt, as the Howards have claimed, that the prospect of having to move was “extreme[ly] stress[ful]” and would have needed “a lot of planning and extreme amount of care.” But that does not come close to establishing that the requested accommodation, an extension of the tenancy until January 2018, was “necessary.” See Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 749 (7th Cir. 2006) (en banc) (“[N]ot every rule that creates a general inconvenience or expense to the disabled needs to be modified.“).
We agree with the district court that “[b]ecause Plaintiffs have not established a causal link between [Glenn]‘s medical condition and the requested accommodation, Defendants were under ‘no obligаtion’ to extend the tenancy-termination date, and the FHAA inquiry ends.” Howard v. HMK Holdings, LLC, No. CV 17-5701, 2018 WL 3642131, at *9 (C.D. Cal. June 11, 2018).6
Glenn argues that regardless of whether HMK is liable for discrimination under
We begin with the text of the relevant section of the FHAA. Discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
“make reasonable accommodations,” not failing to “interactively engage.”8
Glenn argues his position finds support in the decisions of our sister circuits. We disagree. Two circuits have declined to
The other circuits that have discussed a landlord‘s failure to engage with a tenant do so only as part of the
Glenn also argues that his position finds support in the ADA and RA, as they provide some context regarding the concept of an “interactive process.” We find these statutes (and our cases interpreting them) irrelevant to the issue at hand. See Lapid-Laurel, 284 F.3d at 455 (“[T]he FHAA and the [RA] do not bear the significant similarities that justified importing the [interactivе process] from the ADA to the [RA].“). But even were that not so, Glenn‘s argument fails on its own terms. See Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 964–65 (9th Cir. 2019).
Under the ADA and RA, “reasonable accommodation” requires an employer “to initiate an informal, interactive process with the individual with a disability in need of the accommodation” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”
Undeterred, Glenn contends on appеal that “failure to engage in the interactive process can result in liability—if [a reasonable] accommodation would have been available“—and that such a failure “excuse[s] a disabled tenant from having to prove the ‘necessity’ element.” That imitation of our language in Snapp does not save Glenn‘s “interactive process” claim. It ignores that, in the ADA context, the “interactive process” requirement kicks in only “once the need for accommodation has been estаblished.” Vinson, 288 F.3d at 1154 (emphasis added); see Peebles v. Potter, 354 F.3d 761, 769–70 (8th Cir. 2004) (finding employer was not liable for failing to engage in the interactive process where plaintiff‘s demand was not necessitated by his disability). And, of course, the FHAA requires necessity, not an interactive process.
In sum, the FHAA does not refer to an interactive process or base liability on a landlord‘s failure to interact, so there is no such liability under the FHAA. No other circuit has found that failing to engage in an interactive process provides an independent basis for liability under the FHAA. And even our own precedent rejects an independent basis of liability for the failure to engage in the interactive process in the context of other statutes involving disability. Thus, the district court properly granted summary judgment to Defendants on Glenn‘s interactive process FHAA claim.
AFFIRMED.