Dubois v. Association of Apartment Owners of 2987 Kalakaua

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN G. DUBOIS, 
Plaintiff-Appellant,
and
TIMOTHY PRINDABLE,
Plaintiff,
v. No. 04-15695


ASSOCIATION OF APARTMENT D.C. No.
OWNERS OF 2987 KALAKAUA, a CV-02-00504-ACK
domestic nonprofit corporation;
CERTIFIED MANAGEMENT INC., a OPINION
domestic corporation; LOIS CAIN;
STACY TOKAIRIN; SUZANNE
MACGILL; JOHN DOES 1-10; DOE
PARTNERSHIP; DOE CORPORATIONS,
or other Entities 1-10,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding

Submitted November 22, 2005*
Honolulu, Hawaii

Filed July 13, 2006

*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a).

7795
7796 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton
7798 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS

COUNSEL

Shawn A. Luiz, Honolulu, Hawaii, for the plaintiff-appellant.

Lissa H. Andrews, Honolulu, Hawaii, for the defendants-
appellees.

OPINION

CLIFTON, Circuit Judge:

Plaintiffs John Dubois and Timothy Prindable sued a con-
dominium association, two association board members, the
property management company, and one of its employees
(collectively, the “Condominium Association”) for refusing to
permit plaintiffs to keep a dog in their condominium unit.
Their primary legal claim was that the Condominium Associ-
ation had discriminated against plaintiffs in violation of the
Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3631, by fail-
ing to make a reasonable accommodation for Prindable’s dis-
ability. The district court granted summary judgment in favor
of the Condominium Association, in a series of orders. Sum-
mary judgment on the FHA discrimination claim was granted
in a published decision. See Prindable v. Ass’n of Apt. Own-
ers, 304 F. Supp. 2d 1245 (D. Haw. 2003). The district court
 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS 7799
later denied a motion for reconsideration of that order, and
then granted summary judgment to the Condominium Associ-
ation on all remaining claims. Dubois appeals the judgment
which resulted from those orders. We affirm.

I. BACKGROUND

The factual background of this case has been thoroughly
detailed by the district court, see id. at 1249-52, and we will
not repeat that exposition here. For purposes of this appeal, it
is enough to note the following facts.

Dubois was the owner of a unit in a residential condomin-
ium project, known as and located at 2987 Kalakaua Avenue
in Honolulu, Hawaii, an attractive site on the beach of Wai-
kiki, across from Kapiolani Park and near Diamond Head.1 He
lived in that apartment together with Prindable. The condo-
minium project was subject to bylaws promulgated by its
Association of Apartment Owners, one of which sought to
limit the presence of animals:

No animals . . . shall be permitted on the premises,
except that qualified individuals with disabilities
1
During the pendency of this dispute, Dubois lost ownership of the unit.
As described in the district court’s opinion, Prindable, 304 F. Supp. 2d at
1248 & nn. 5 & 6, the Condominium Association foreclosed upon the unit
due to nonpayment of maintenance fees and subsequently assessed late
fees and legal fees. Dubois refused to vacate the unit and contested the
foreclosure in separate state court proceedings. After a state court granted
the Condominium Association’s ejectment motion, Dubois ultimately
vacated the unit in September 2003. Although Dubois attempts in his
briefs to raise issues related to the foreclosure in this action, they are not
properly before us. Similarly, although Dubois and the Condominium
Association have been at war for years—they have been parties to at least
four state court actions, in addition to administrative proceedings—and the
arguments made to us have referred to other grievances, we limit our dis-
cussion to the subjects properly raised by plaintiffs in this federal court
action, namely the federal and state fair housing act claims and assorted
tort claims.
7800 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS
may have assistance animals. Such animals shall be
required to conform to appropriate behavior stan-
dards established by the board and shall be removed
if they disturb the quiet enjoyment of other residents.
A disabled resident must provide appropriate medi-
cal documentation justifying the need for the assis-
tance animal before bringing it onto the project.

In January 2000, Dubois brought home Einstein, an English
bulldog. In a purported effort to satisfy the bylaw quoted
above, Dubois and Prindable submitted letters from doctors
recommending that one or the other be permitted to keep Ein-
stein for “medical reasons,” with little explanation. The Con-
dominium Association and its property management
company, Certified Management, Inc., requested more infor-
mation about the alleged conditions, but none of the doctors
ever responded. Dubois and Prindable took the position that
neither they nor their physicians were obligated to disclose
further information, but they eventually submitted letters from
a behavioral medicine specialist and two doctors stating that
Prindable suffered from depression, that he would benefit
from animal-assisted therapy, and that separation from Ein-
stein would exacerbate his condition.

At that point, the Condominium Association granted plain-
tiffs temporary permission to keep Einstein, pending its
review of the submissions concerning Prindable’s condition.
Before the Condominium Association took any further action
to evict the dog, Prindable filed a housing discrimination
complaint against the Condominium Association with the
U.S. Department of Housing and Urban Development
(“HUD”). HUD then referred the complaint to the Hawaii
Civil Rights Commission. The Condominium Association
advised Dubois and Prindable that it would continue the tem-
porary exemption for Einstein, with final approval now con-
tingent upon the results of the state agency’s investigation.

Rather than await the outcome of the state investigation,
though, Dubois and Prindable filed the current lawsuit, alleg-
 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS 7801
ing discrimination and retaliation in violation of the FHA and
its Hawaii counterpart, the Discrimination in Real Property
Transactions Act, Haw. Rev. Stat. §§ 515-1 to -20 (2005).
They also asserted claims for intentional infliction of emo-
tional distress, negligent infliction of emotional distress, defa-
mation, invasion of privacy, breach of fiduciary duty, and
abuse of process and prayed for punitive damages and injunc-
tive relief.

The Condominium Association subsequently moved for
summary judgment on the entire complaint. In its published
order, filed on July 11, 2003, the district court granted the
motion only as to the FHA discrimination claim. See Prind-
able, 304 F. Supp. 2d at 1262-63. Dubois and Prindable filed
a motion for relief from that order, which the district court
treated as a motion for reconsideration and which it denied.
The Condominium Association then filed a motion for sum-
mary judgment as to all remaining claims. Before the district
court decided that motion, both parties stipulated to dismissal
of the complaint as to Prindable, leaving Dubois as the sole
remaining plaintiff. The district court subsequently granted
summary judgment to the Condominium Association on all
remaining claims. Dubois timely appealed.

II. DISCUSSION

This court reviews de novo the district court’s decision to
grant summary judgment. Balint v. Carson City, 180 F.3d
1047, 1050 (9th Cir. 1999) (en banc). We review for an abuse
of discretion the district court’s denial of a motion for recon-
sideration. Caroll v. Nakatani, 342 F.3d 934, 940 (9th Cir.
2003).

A. The FHA Discrimination Claim

[1] Plaintiffs’ primary claim was that the Condominium
Association discriminated against them on the basis of handi-
cap in violation of the FHA when it refused to allow Dubois
7802 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS
and Prindable to keep Einstein as a reasonable accommoda-
tion for Prindable’s mental illness. The FHA makes it unlaw-
ful to “discriminate against any person . . . in the provision of
services or facilities in connection with [his] dwelling,
because of a handicap” of that person or any person associ-
ated with that person. 42 U.S.C. § 3604(f)(2). Discrimination
includes “a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommoda-
tions may be necessary to afford [a disabled] person equal
opportunity to use and enjoy a dwelling. . . .” 42 U.S.C.
§ 3604(f)(3)(B); 24 C.F.R. § 100.204. “The reasonable
accommodation inquiry is highly fact-specific, requiring case-
by-case determination.” United States v. California Mobile
Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)
(citations omitted).

[2] To prevail on a claim under 42 U.S.C. § 3604(f)(3), a
plaintiff must prove all of the following elements: (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 of the handicap may be necessary to afford
the handicapped person an equal opportunity to use and enjoy
the dwelling; (4) that the accommodation is reasonable; and
(5) that defendant refused to make the requested accommoda-
tion. See 42 U.S.C. § 3604(f)(3)(B); California Mobile Home,
107 F.3d at 1380; HUD v. Riverbay Corp., HUDALJ 02-93-
0320-1 (Sept. 8, 1994).

[3] Although the parties have argued various issues at
length, there is a simple answer here. The Condominium
Association never required Einstein to leave and thus never
refused to make the requested accommodation, which is one
of the essential elements of the FHA claim. Dubois and Prind-
able kept Einstein from the day they brought him home in
January 2000 until the day they vacated their unit in Septem-
ber 2003. After Prindable requested an accommodation, the
Condominium Association granted them a temporary exemp-
 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS 7803
tion from the bylaw while it investigated and decided what to
do. Although Dubois and Prindable made the investigation
difficult, the Condominium Association did not force the
issue. Instead, the Condominium Association, presumably out
of patience, prudence, or a combination of both, left the tem-
porary exemption in place and so advised Dubois and Prind-
able. Since the Condominium Association never refused to
make the requested accommodation, plaintiffs’ FHA claim
necessarily failed. See 42 U.S.C. §§ 3604(f)(3)(B),
3613(a)(1)(A) (requiring a defendant to “refus[e] to make rea-
sonable accommodations” before a plaintiff can file suit under
42 U.S.C. § 3613); see also Bryant Woods Inn, Inc. v. How-
ard County, 124 F.3d 597, 602 (4th Cir. 1997) (“[A] violation
[of the FHA] occurs when the disabled resident is first denied
a reasonable accommodation. . . .”). Summary judgment in
favor of the Condominium Association on the FHA discrimi-
nation claim was appropriate. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986) (“[T]he plain language of Rule
56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case. . . .”).2

B. Motion for Reconsideration

[4] Dubois next argues that the district court erred in deny-
ing plaintiffs’ motion for reconsideration, based on “new
material facts not previously available.” District of Hawaii
Civil Local Rule 60.1. The district court reviewed all of the
evidence. It concluded that the evidence, most of it inadmissi-
ble under the Federal Rules of Evidence in any event, merely
reinforced previously known facts or was immaterial. We
agree with that assessment. More importantly, none of the
newly submitted evidence created a triable issue of fact on the
2
In so concluding, we need not and do not reach other issues addressed
by the district court, including whether the plaintiffs must prove that Ein-
stein “is an individually trained service animal.” Prindable, 304 F. Supp.
2d at 1257.
7804 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS
FHA discrimination claim, because none of it changed the
crucial fact that the Condominium Association never actually
refused plaintiffs’ requested accommodation.

C. Remaining Claims

The district court subsequently granted summary judgment
in favor of the Condominium Association as to all remaining
claims. We agree that each of the claims addressed below was
properly dismissed for failure of proof. Plaintiffs’ exhibits
were largely irrelevant or insufficient, leaving as the only
other “evidence” their uncorroborated and self-serving decla-
rations, which alone do not create any genuine issues of mate-
rial fact. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002). We also confine our review to
those disputed facts that plaintiffs identified in their Concise
Statement, as those are the only facts the district court was
obligated to consider. See District of Hawaii Civil Local Rule
56.1(f).

In addition to the discrimination claim, Count I alleged
retaliation under the FHA. On appeal, Dubois does not chal-
lenge the district court’s grant of summary judgment on this
issue.

[5] Count II alleged discrimination and retaliation under
Hawaii’s Discrimination in Real Property Transactions Act,
Haw. Rev. Stat. §§ 515-1 to -20, which is nearly identical to
the FHA in language and purpose. In the absence of Hawaii
state cases interpreting the statute, we turn to our FHA juris-
prudence for guidance as to how the state’s highest court
might rule. See Assurance Co. of America v. Wall & Assocs.
LLC of Olympia, 379 F.3d 557, 560 (9th Cir. 2004). Dubois
claimed that the Condominium Association discriminated
against him and Prindable by refusing two reasonable accom-
modation requests: one for Einstein, and one for a parking
stall or drop-off point closer to their apartment. In both
instances, he failed to make out a prima facie case of discrimi-
 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS 7805
nation under the state statute, because he failed to set forth
any evidence that the Condominium Association denied their
requests.

[6] Dubois also failed to make out a prima facie case of
retaliation, under the Discrimination in Real Property Trans-
actions Act, for bringing the FHA discrimination claim. Turn-
ing to our circuit’s case law for guidance, such a claim
requires a prima facie showing that (1) the plaintiff was
engaged in protected activity; (2) he suffered an adverse
action in the form of coercion, intimidation, threats, or inter-
ference; and (3) there was a causal link between the two. See
Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003).
We find that Dubois’s claim fails for multiple reasons. First,
Dubois presented evidence of a fight with a neighbor and the
vandalization of his car that predated the FHA complaint;
such evidence was completely irrelevant to the retaliation
claim. Second, Dubois presented no evidence that the Condo-
minium Association blocked him from attending a board
meeting. Third, Dubois did not show that other actions alleg-
edly taken by the Condominium Association and his neigh-
bors, such as the Condominium Association’s placement of a
dumpster near his unit, its alleged tolerance of other pets in
the complex, or neighbors pounding on his door or taking pic-
tures of him, were in any way motivated by the FHA com-
plaint. Finally, Dubois presented no evidence that the
Condominium Association’s initiation of attorneys’ fees and
foreclosure proceedings against him was motivated by any-
thing other than its desire to collect the money and property
that it was potentially entitled to under state law. See Haw.
Rev. Stat. §§ 514A-90, -94.

[7] In Count III, Dubois alleged that the Condominium
Association intentionally and negligently caused him emo-
tional distress by discriminating and retaliating against him in
violation of federal and state fair housing acts. Because
Dubois did not prove the factual predicate for his emotional
distress claims, they necessarily fail. See Hac v. Univ. of
7806 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS
Hawaii, 73 P.3d 46, 59 (Haw. 2003) (“Inasmuch as the jury
did not find that Plaintiff was subjected to a hostile work
environment because of gender or racial bias, a fortiori, the
jury could not have found in Plaintiff’s favor on her claim of
intentional infliction of emotional distress. . . .” ).

[8] Dubois alleged in Count IV that the Condominium
Association defamed him in the course of the Hawaii Civil
Rights Commission’s investigation, Honolulu Police Depart-
ment investigations, and at a Circuit Court hearing arising out
of his disputes with the Condominium Association and his
neighbors. Dubois failed to make out a prima facie case of
defamation because these statements were covered by quali-
fied privilege. They were made to officials whose duty it was
to record them, and published to people with an interest in the
investigations and proceedings. See Courtney v. Canyon Tele-
vision & Appliance Rental, Inc., 899 F.2d 845, 850 (9th Cir.
1990).

[9] As to Count V, once Prindable was dismissed from the
complaint, Dubois lacked standing to assert Prindable’s claim
that the Condominium Association tortiously invaded Prind-
able’s right to privacy. See Joy A. McElroy, M.D., Inc. v.
Maryl Group, Inc., 114 P.3d 929, 937 (Haw. 2005) (“[T]he
‘general rule is that the doctrine of standing prohibits a liti-
gant from asserting another’s legal right.’ ”) (citation omit-
ted).

Dubois alleged in Count VI that the Condominium Associ-
ation’s officers and directors breached fiduciary duties to him,
but he failed to even allege gross negligence on their part, as
required by statute. See Haw. Rev. Stat. §§ 414D-149(f),
-155(e).

Dubois alleged in Count VII that the Condominium Associ-
ation was liable for abuse of process for initiating state pro-
ceedings against him to collect attorneys’ fees and to
foreclose on his property. The Condominium Association ini-
 DUBOIS v. ASSOCIATION OF APARTMENT OWNERS 7807
tiated these proceedings for their intended purposes under
Haw. Rev. Stat. §§ 514A-90, -94, and Dubois presented no
evidence that the Condominium Association did so “ ‘primar-
ily’ for an ulterior motive.” Wong v. Panis, 772 P.2d 695, 700
(Haw. App. 1989), abrogated on other grounds by Hac, 73
P.3d 46.

[10] Finally, on appeal, Dubois does not challenge the dis-
trict court’s grant of summary judgment on Counts VIII and
IX, his prayers for punitive damages and injunctive relief,
respectively. In sum, the district court did not err in granting
the Condominium Association’s motion for summary judg-
ment as to all remaining claims.

III. CONCLUSION

Although humor can be found in these facts, this story is
more tragic than comic. This litigation undoubtedly took a
substantial toll on the individual parties and other persons
connected with them and with this condominium project, not
only in terms of time and expense, but also from the dishar-
mony and aggravation that burdened their lives. Racing to the
courthouse is not always the right approach. Albert Einstein
was known not only as a genius but also as a peaceful and
patient man. On conflicts large and small, he once remarked,
“In the last analysis, every kind of peaceful cooperation
among men is primarily based on mutual trust and only sec-
ondly on institutions such as courts of justice and police.”3
Einstein’s owners would do well to heed that advice.

AFFIRMED.

3
Albert Einstein Quotes, http://www.spaceandmotion.com/Albert-
Einstein-Quotes.htm (last visited June 14, 2006).