Washington v. Farmington Estates Owners Association et al

1 – FINDINGS AND RECOMMENDATIONS
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
WILMORE L WASHINGTON III,
Plaintiff,
v.
FARMINGTON ESTATES OWNERS
ASSOCIATION; NORTHWEST COMMUNITY
MANAGEMENT, LLC; SARA BERG; MICHAEL
ORRANTIA; KATIE PATTERSON; BRIAN
HESS; JENNIFER LAYTON, THE
MANAGEMENT TRUST; NATALIE SEIBEL,
Defendants.
Case No. 3:21-cv-01032-YY
FINDINGS AND
RECOMMENDATIONS
YOU, Magistrate Judge.
FINDINGS
Plaintiff Wilmore Washington, who is representing himself in this matter, brought this
suit against the Farmington Estates Homeowners Association (“HOA Board”), The Management
Trust (“TMT”), the management company that the HOA Board hired to manage the community,
various individuals who at times served on the HOA Board, including Sara Berg, Michael
Orrantia, Jennifer Layton, Katie Patterson, and Natalie Seibel (who was also plaintiff’s
neighbor), and Brian Hess, a TMT employee who managed the community on TMT’s behalf
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(collectively “defendants”1). Plaintiff, who is African American, alleges that defendants violated
the Fair Housing Act (“FHA”) because they discriminated or retaliated against him in failing to
resolve plaintiff’s numerous complaints about his neighbors to his satisfaction, and that this
created a hostile housing environment that caused him to move out of the community.2 As will
become clear, that is not the only allegation that plaintiff asserts here, but it is the primary issue
driving this dispute.
Currently pending are defendants’ motions for summary judgment on all of plaintiff’s
claims. ECF 152, 153.3 As explained in more detail below, plaintiff has not produced any
evidence showing that the various alleged actions by defendants were driven by a discriminatory
or retaliatory purpose, or that they were sufficiently severe to have created a hostile housing
environment. Although plaintiff wanted TMT and the HOA Board to do more than send written
notices to his neighbors in response to his complaints—namely, he wanted his neighbors to be
fined and their cars to be towed—TMT believed that the HOA Board did not have the power
under the governing documents in place at the time to take those actions. Plaintiff has not shown
that this belief was based on some intent to discriminate or retaliate against him, nor is there any
evidence showing that the time it took for TMT and the HOA Board to correct this gap in the
governing documents was driven by any discriminatory or retaliatory purpose. There are many
1 Plaintiff’s initial complaint named the HOA Board, Northwest Community Management, LLC,
Berg, Orrantia, Layton, Patterson, and Hess. References to the briefing from these defendants is
labeled “HOA Mot. Summ. J.” or “HOA Reply” where necessary for clarity. Later, plaintiff
amended the complaint to add Seibel and TMT; these later-added defendants are represented by
different counsel than the original defendants. TMT is “the parent company and assumed
business name of Defendant Northwest.” Seibel and TMT Mot. Summ. J. 3, ECF 153.
2 Plaintiff apparently still owns the property but has rented it out. See Resp. 34, ECF 172.
3 Also pending are two motions that plaintiff has filed seeking sanctions against defendants for
alleged discovery violations and a motion for leave to file a Fifth Amended complaint. See ECF
149, 150, 174. Those motions are resolved separately.
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other aspects of this case that are analyzed below. But the bottom line is that plaintiff’s evidence
does not show that defendants treated plaintiff differently because of his race or because he
accused defendants of discrimination. Nor is there evidence that defendants’ actions created a
hostile housing environment. Therefore, defendants are entitled to summary judgment on all of
plaintiff’s claims.
I. 	Procedural History
In response to defendants’ motions for summary judgment, plaintiff filed a 115-page
brief, far in excess of the page limit allowed under the court’s rules, and only sought the court’s
leave to do so at the same time he filed the over-length response. See ECF 171, 172. The
response is unwieldy and, at times, almost incomprehensible. For the five claims that plaintiff
asserts, plaintiff outlined a total of 224 individual “legal issues” that are cross-referenced to
numbered “fact” paragraphs that then reference exhibits. Plaintiff seems to be asserting that
nearly every interaction he had with the numerous defendants over the course of approximately
three years was discriminatory or retaliatory in some way. Some of the allegations are grouped
into rough categories, and some are chronological and some are not. Also, plaintiff often repeats
the same factual allegation numerous times across the various claims. On close examination,
many of the exhibits do not support the proposition that plaintiff has cited them for. Sometimes,
the explanation that plaintiff has provided is not clear as to how it supports the particular claim.
This makes it difficult to address each of plaintiff’s points in any reasonably concise or efficient
way.
Additionally, the evidence that plaintiff submitted in responding to defendants’ motions
for summary judgment presents its own challenges. It includes 142 pages of documents with
bates numbers that appear to be emails and other documents from TMT that were produced in
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discovery, though plaintiff did not include a declaration explaining where these documents (or,
for that matter, any other exhibits) came from.4 Additionally, many of these documents are email
threads for which plaintiff seems to have included only certain portions of the written
conversation, making it difficult at times to fully evaluate them.5 Plaintiff also submitted another
178 pages of emails that appear to be downloaded directly from plaintiff’s own inbox; it is not
clear whether these documents were produced to defendants during discovery, and again,
plaintiff does not include a declaration explaining what these documents are or attesting to their
accuracy.6 Plaintiff also submitted two “reports,” one titled “Work Order Summary for 1/1/2020
– 2/28/2023” and the other one titled “Violation Report – Detail for 1/1/2020 – 2/28/2023.”7
Each of these reports includes the title “Farmington Estates Owners’ Association,” but neither
one is bates-numbered and it is unknown where these reports came from, who generated them,
and when or whether they were produced to defendants during discovery. Both defendants raised
these and a number of other evidentiary objections in their reply briefs, see HOA Reply 2–6,
ECF 178, Seibel and TMT Reply 2–9, ECF 179, and plaintiff submitted a sur-reply attempting to
address those objections as allowed under this court’s Local Rules 7-1(f)(3) and 56(b). See Sur-
Reply, ECF 185-1.
Although there may be grounds for striking some of this evidence, the court is satisfied
after exhaustively reviewing the current record that the documents plaintiff submitted are more
likely than not true and correct copies that could, with some additional clarification, be
admissible. In particular, while it is not clear when or how plaintiff acquired the “Work Order
4 See Resp., Ex. 5, ECF 172-5.
5 E.g., id. at 5.
6 Resp., Ex. 6, ECF 172-7.
7 Resp., Exs. 9, 10, ECF 172-10, 172-11.
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Summary” and “Violation Report,” when comparing the dates of the entries on these reports and
the text information for each entry with other documents in the record, it seems apparent that
these reports are based on information maintained by TMT in some kind of database for the
Farmington Estates community that includes complaints, requests for repairs, and other
communications that community members sent to Hess or other TMT employees. And though
the court has not conducted a comprehensive review of each entry on these reports, carbon
copies of the reports often appear in the emails from plaintiff’s inbox, which corroborates that
the databases were maintained by TMT to assist in managing requests and complaints from
community members.8 Because these reports and the emails from plaintiff’s inbox provide some
important information necessary to fully understanding the facts of this dispute and analyzing
plaintiff’s claims, they are incorporated here where necessary and defendants’ objections to them
are, for the purposes of summary judgment only, overruled.
Another issue that has lingered over this case is plaintiff’s belief that defendant’s
document discovery is incomplete or that defendants wrongly withheld documents that should
have been produced. This issue was the subject of numerous motions to compel filed by plaintiff.
See ECF 100, 113, 127. The court held several discovery hearings and repeatedly denied the
motions, on the basis that defendants produced over 16,000 pages of documents, defense counsel
repeatedly represented that defendants had engaged in an exhaustive search in attempting to
respond to plaintiff’s numerous and broadly-drawn requests for production, and other documents
are obviously protected by the attorney client privilege. See Minutes of Proceedings (Oct. 19,
2023), ECF 100. At one point, the court told plaintiff that the supposed gaps in the document
record could potentially be explored by deposing witnesses, though neither party conducted any
8 Compare Resp., Ex. 9 at 2, ECF 172-10, with Resp., Ex. 6 at 98, ECF 172-7.
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depositions before the deadline to complete fact discovery passed on August 5, 2024. See
Minutes of Proceedings (June 5, 2024). ECF 115.
On August 26, 2024, plaintiff filed a motion seeking to extend the discovery deadline by
120 days, largely repeating the same arguments about purportedly “missing” documents that
plaintiff had made in his previous motions to compel, and the court denied the motion on August
27, 2024. Order (Aug. 27, 2024), ECF 121. On September 9, 2024, plaintiff filed a third motion
to compel on these same issues. ECF 127. The court denied that motion and subsequently
granted defendants’ requests for attorney fees and expenses under Federal Rule of Civil
Procedure 37(a)(5), after finding that plaintiff’s motion was not substantially justified in the face
of the court’s previous denials of identical motions and explanations to plaintiff about the
discovery process. See Order (Apr. 9, 2024) 5, ECF 148.
Almost immediately following the court’s order on fees, plaintiff filed another motion on
the same issues, this time styled as a “Motion for Sanctions” against defendants for their alleged
failure to preserve electronic evidence. See Mot. Sanctions 7, ECF 149; Mot. Sanctions 8, ECF
150.9 And now, plaintiff’s briefing on summary judgment is annotated with over 100 footnotes
stating that certain categories of documents or communications among defendants were not
produced. As has been explained to plaintiff on numerous occasions, there is nothing beyond
plaintiff’s own speculation to suggest that any of these documents were wrongly withheld or
otherwise not produced because of some scheme to hide information from him.
On a related note, plaintiff has written, in his sur-reply to defendants’ numerous
evidentiary objections in connection with the motions for summary judgment, that “[i]f there is
anything the court deems necessary or need additional evidence regarding FRE 602, 701, and
9 Those motions have been resolved in a separate order issued this same date.
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702, [p]laintiff can create testimony and affidavits if it can be more helpful.” Sur-Reply 5, ECF
185-1. The time for gathering this evidence was during the discovery process, and the deadline to
complete fact discovery expired more than a year ago. Perhaps testimony from the various
witnesses might have shed light on what plaintiff believed were gaps in the documentary
evidence and may have provided helpful factual context. But that time is passed, and the analysis
below is based on the documents that plaintiff submitted as attachments to his response to the
motions for summary judgment, notwithstanding their apparent incompleteness and the questions
regarding their ultimate admissibility.
II. 	Background
Despite the challenges noted above, the essence of plaintiff’s discontent is relatively
straight-forward, and the following background facts are provided as a high-level overview of
the relevant events. Additional detail is provided below where necessary to specifically analyze
plaintiff’s claims and the evidence in the record.
Almost immediately after moving into the Farmington Estates community in January of
2020, plaintiff began experiencing difficulties with his neighbors.10 Primarily, plaintiff believed
the neighbors were running an “auto repair business” out of their house. This caused problems
with cars being parked in front of plaintiff’s driveway11 and resulted in some kind of oily run-off
that plaintiff claimed damaged his front yard,12 although his complaints about the neighbors also
included things like barking and unleashed dogs, cigarette butts littering the ground, banging on
trash cans, and more.13 He lodged many complaints with the HOA Board and TMT, the company
10 See Resp., Ex. 6 at 1, ECF 172-7 (February 19, 2020 inquiry about “rules with noisy neighbors
and barking dogs in this community”).
11 See id. at 9.
12 Id. at 17.
13 E.g., id. at 16, 18.
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that the HOA Board had hired in April or May of 2020 to manage the community and handle,
among other things, complaints from residents.14 Defendant Brian Hess was the TMT
representative primarily in charge of managing the community, and was for the most part the
person plaintiff wrote or called most often (and it was quite often indeed) regarding his
complaints about his neighbors.15
Plaintiff is unsatisfied with what he saw as inadequate responses from Hess, TMT, and
the HOA Board to his many complaints—plaintiff made dozens and dozens of emailed
complaints, and the record suggests that plaintiff had at least several phone calls with Hess and
others at TMT.16 Generally speaking, TMT sent written notices of community rule violations to
plaintiff’s neighbors, although plaintiff did not believe that the notices were sent as soon as they
could have been, and neither TMT nor the Board did as plaintiff repeatedly requested and issue
fines or tow improperly parked cars in response to his complaints.17 As plaintiff was told
numerous times over many months, the governing documents for the community that were in
place for most of the relevant time period did not empower the HOA Board to fine residents for
rule violations or tow improperly parked cars.18 When TMT was hired, one of the first issues it
identified for the HOA Board to consider was the lack of a so-called “Financial Penalties
Resolution,” which Hess explained would set out the procedures for when and how the HOA
Board could issue fines for rules violations.19 Without an “FPR” in place, the best that TMT
14 See id. at 8.
15 Resp., Ex. 5 at 1, ECF 172-5; Resp., Ex. 6 at 9–20, ECF 172-7.
16 See Resp., Ex. 6 at 39, ECF 172-7.
17 E.g., Resp., Ex. 5 at 35, 39, 41, ECF 172-5.
18 See Resp., Ex. 6 at 87 (Jan. 21, 2021: “As the association does not have a Financial Penalties
Resolution, we cannot find the owner for these infractions.”); id. at 101 (Apr. 7, 2021: “Just like
we discussed at the town hall meeting there are several things that need to take place before we
can start fining them for repeated violations.”).
19 Resp., Ex. 5 at 51, ECF 172-5.
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could do was send out written notices, but this did not carry the same “weight” as a potential fine
would have.20 A “towing resolution” was similarly missing and would be needed, in TMT’s
view, before the HOA Board could order cars towed.21 It is fair to say that the adequacy of the
HOA Board or TMT’s actions regarding plaintiff’s complaints, including whether they should
have or could have issued fines or towed improperly parked cars, is the primary issue underlying
plaintiff’s claims here.
Sometimes, Hess or someone else from TMT told plaintiff that certain complaints he
had—such as harassment or trespassing—should be reported to local law enforcement.22 And it
appears that plaintiff did in fact do that several times.23 Plaintiff grew more frustrated with what
he saw as a lack of action by TMT, the HOA Board, and, it seems, law enforcement.24 It also is
clear that the tension between plaintiff and his neighbors was growing. At some point near the
end of June of 2020, plaintiff erected a fence between his yard and the neighbors. Although it
seems the fence went through a few changes, at one point it consisted of green plastic netting
attached to fence posts with what appears to be zip ties.25 Some neighbors complained about the
fence’s appearance,26 and eventually the HOA Board told plaintiff to remove the fence in August
of 2020 because it was not approved by the community’s Architectural Review Committee.27
Plaintiff also believed that a neighbor’s “auto repair business” had caused some run-off
onto his property, and he asked several times over the summer of 2020 and beyond for the HOA
20 Id. at 52.
21 Id. at 56.
22 Resp., Ex. 6 at 44, ECF 172-7.
23 Sur-Reply, Ex. 1, ECF 185-2.
24 See Resp., Ex. 6 at 39, ECF 175-7.
25 Resp., Ex. 5 at 105, ECF 172-5.
26 Id. at 88.
27 Resp., Ex. 6 at 65, ECF 172-7.
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Board to pay for the “hazardous waste” to be removed and his yard repaired.28 Hess discussed
this option with members of the HOA Board, and while there was some interest in granting
plaintiff’s request, the HOA Board was waiting for the FPR to be in place, which would allow
them to fix plaintiff’s yard and bill the neighbors for the cost.29 Eventually, it appears that the
HOA Board did get plaintiff’s yard fixed sometime around May of 2021, although at the time the
work was done, there still was no FPR in place; the HOA Board simply hoped they could recoup
the costs once that was completed.30
Plaintiff continued to complain about his neighbors, and around April or May of 2021,
plaintiff ran for and was elected to an HOA Board position.31 As a board member, plaintiff
continued to ask for fines and towing to occur, but again, TMT told plaintiff repeatedly that these
actions could not be taken without an FPR or towing resolution in place.32 Plaintiff was unhappy
with how long that process was taking and that other board members, specifically defendant
Orrantia, did not necessarily agree with plaintiff that the changes should be made.33 Other
aspects of plaintiff’s tenure on the HOA Board are part of his claims here; he alleges, for
example, that at some point the other board members “took away” his position as treasurer, and
that Hess “blamed” the HOA Board for a lack of progress on the fines and towing resolutions
that plaintiff badly wanted. Resp. 65, 93, ECF 172. Eventually, it seems, the HOA Board was
able to get an FPR and some kind of “fines schedule” in place sometime in late 2021 or 2022,34
28 E.g., id. at 30, 38.
29 See Resp., Ex. 5 at 116, ECF 172-5.
30 Id. at 119.
31 See Resp., Ex. 6 at 116, ECF 172-7.
32 Id. at 118.
33 Id. at 119.
34 See Resp., Ex. 5 at 139, ECF 172-5.
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and the record shows that TMT sent a few “Daily Fine Letters” in October and November of
2022, but there is no evidence showing that any fines were ever collected or for how much.35
Sometime around April and May of 2021, the community began experiencing a “rat
problem” and this caused, in plaintiff’s view, another universe of allegedly discriminatory,
retaliatory, or hostile actions against him. Generally speaking, the epicenter of the rat activity
was in and around the backyards belonging to plaintiff and defendant Seibel, who was plaintiff’s
neighbor on the other side from the “auto repair business.”36 Seibel and plaintiff exchanged
several emails and had at least a few tense in-person interactions during which they each
believed that the other person was primarily responsible for the rats.37 Some videos and photos
of the rats in both neighbor’s yards circulated among Hess, Seibel, plaintiff, and other members
of the HOA Board.38 When the Board and TMT reached out to an extermination company to
obtain a proposal for resolving the infestation, plaintiff objected that it was unfair that the rat
problem was being addressed before his issues with his neighbors were resolved to his
satisfaction.39 It is not entirely clear how the rat problem was resolved, but plaintiff’s briefing is
replete with accusations about how various defendants discriminated or retaliated or conspired
against him with regard to the rat problem and how it unfolded. See Resp. 30–33, 62–64, 94–95,
ECF 172.
In any event, plaintiff’s complaints about his neighbors’ auto repair business continued
into the summer of 2021.40 Plaintiff filed this suit in July of 2021, see Compl., ECF 1, and in
35 See Resp., Ex. 10 at 4, 7, ECF 172-11.
36 See Resp., Ex. 5 at 123, ECF 172-5.
37 See id. at 135; Resp., Ex. 6 at 126–28, ECF 172-7
38 Resp., Ex. 6 at 132, 134.
39 Id. at 119.
40 E.g., id. at 144.
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September of 2021, plaintiff “moved out of the community . . . for safety reasons and got [the]
unit rented out.” Resp. 34, ECF 172. Eventually, plaintiff added Seibel as a defendant, and
asserts that after Seibel was elected to the HOA Board sometime in 2022, she “targeted” his unit
and a unit owned by another African American resident for rules violations. Id. at 36.
Plaintiff’s operative Fourth Amended Complaint asserts the following claims:
• 	Discrimination;
• 	Harassment;
• 	Hostile Environment;
• 	Retaliation;
• 	Retaliatory Harassment.
Fourth Am. Compl. 42–45, ECF 101.
Currently pending are defendants’ motions for summary judgment, which generally
assert that plaintiff has not produced evidence sufficient to support any of his claims. HOA Mot.
Summ. J. 6–11, ECF 152; Seibel and TMT Mot. Summ. J. 3–13, ECF 153. Plaintiff’s response to
defendants’ motions for summary judgment characterizes the claims as follows:
• 	“Discrimination in Housing Services Based on Protected Class,” Resp. 39, ECF 172;
• 	“Coercion, Intimidation, Threats, Interference . . . Based on Protected Class,” id. at
45;
• 	“Retaliation . . . Based on Protected Activity,” id. at 54;
• 	“Coercion, Intimidation, Threats, Interference . . . Based on Protected Activity,” id. at
67;
• 	“Quid Pro Quo and Hostile Environment Harassment,” id. at 101.
These five causes of action are construed as asserting three claims under the FHA: 1)
discrimination or disparate treatment; 2) retaliation; and 3) hostile housing environment.
As mentioned above, in responding to defendants’ motions for summary judgment,
plaintiff identified 224 separate “legal issues” that are, in essence, individual events or
interactions that plaintiff believes constitute either discrimination, retaliation, or the creation of a
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hostile housing environment. Many of these legal issues are repeated across multiple claims. The
court has reviewed all 224 identified legal issues, and finds that they can generally be grouped
into the following categories:
• 	Defendants delayed or “denied” sending written notices to plaintiff’s neighbors in
response to plaintiff’s complaints, or the written notices that were sent were not
satisfactory to plaintiff. See Resp., “LI” or Legal Issue41 Nos. 5–25, 32–45, 68, 69,
74, 96, 97, 98, 99, 101, 102, 103, 105–111, 114, 115, 117-120, 122, 123, 125, 129,
130, 132, 134–138, 142, 144, 146, 148, 150, 152, 154, 159, 165, 179, 193, 209, 214,
217, 218.
• 	Defendants failed to take action beyond sending written notice such as instituting
fines or towing inoperable or improperly parked cars in response to plaintiff’s
complaints. Id., Legal Issue Nos. 26–29, 70, 78, 79, 86, 89, 112, 121, 124, 126, 139,
143, 145, 147, 149, 153, 155, 160, 161, 163, 166, 170, 171, 172, 174, 175, 177, 180,
185, 188, 191, 192, 195, 196, 197, 210, 215, 216.
• 	Plaintiff was “deferred” to the county or law enforcement for certain complaints. Id.,
Legal Issue Nos. 1, 2, 30, 31, 47, 84.
• 	Defendants did not keep his complaints about his neighbors anonymous. Id., Legal
Issue Nos. 64, 65, 156–158, 162, 167, 168, 169, 178, 187.
• 	Plaintiff was “denied access” to the HOA Board or TMT to lodge complaints. Id.,
Legal Issue Nos. 4, 72, 82, 151.
• 	Defendants failed to fix plaintiff’s front yard, which he asserts was damaged from
some kind of “hazardous waste” run-off from a neighbor’s auto repair business. Id.,
Legal Issue Nos. 46, 67, 73, 75, 76, 80, 81, 83, 87, 100, 104, 116, 127, 128, 131, 164,
173, 176, 181, 182, 184, 189, 190.
• 	Defendants conspired to “frame” plaintiff for feeding the rats that had apparently
infiltrated plaintiff’s and Seibel’s backyards, and various other claims regarding the
“rat problem” in the community. Id., Legal Issue Nos. 53–59, 61, 85, 88, 90, 204–
41 Because plaintiff has organized his briefing using these separately numbered “Legal Issues,”
the references herein will utilize those markers in lieu of individual page numbers where doing
so would avoid duplicative and potentially confusing citations. Sometimes, the specific page
numbers along with a specific legal issue will be used to aid the reader in more quickly locating
the relevant allegation.
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207, 211, 212, 213.
• 	Plaintiff was required to take down a fence he put up in his front yard because it was
not approved by the “ARC Committee.” Id., Legal Issue Nos. 48, 49, 77, 95, 133,
140, 141.
• 	Various allegations regarding plaintiff’s tenure on the board, including that
defendants “took away” his position as treasurer. Id., Legal Issue Nos. 93, 94, 186,
198–203, 208, 219, 220, 221.
• 	Defendants did not send an “e-blast” to the community about his lost cell phone or his
run for a seat on the HOA Board. Id., Legal Issue Nos. 183, 194.
• 	Plaintiff was “targeted for inspections.” Id., Legal Issue Nos. 63, 222, 223, 224.
• 	Plaintiff was “denied a board meeting” after he requested one in 2020. Id., Legal
Issue Nos. 3, 32.
Still there are other allegations that are practically incomprehensible, see id., Legal Issue Nos.
60, 62, or are unsupported by the cited exhibits, see id., Legal Issue No. 91, and is not clear how
these allegations could be construed as discriminatory, retaliatory, or otherwise contribute to a
hostile housing environment.
Given these various incidents, generally speaking, cross over all of plaintiff’s claims, the
analysis below first sets out the legal standards for the three claims, and then the discussion is
organized around the 12 broad categories of factual allegations. Each of those 12 sections
contains an analysis of the three claims that plaintiff has asserted and the evidence plaintiff has
cited and produced in support of those claims.42
42 Some of the claims asserted in the complaint have been subject to motions practice and have
been previously dismissed or otherwise narrowed. See Findings and Recommendations (July 13,
2022), ECF 55, adopted by Order (Jan. 19, 2023), ECF 59; Findings and Recommendations
(May 17, 2024), ECF 110, adopted by Order (Oct. 10, 2024), ECF 137. Given, however, the
factual complexity presented by plaintiff’s briefing and because, as explained throughout here,
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III. 	Legal Standards
A. 	FHA Discrimination
Section 3604(b) of 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 therewith, because of race, color, religion, sex, familial status, or national
origin.’ ” The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th
Cir. 2009) (quoting 42 U.S.C. § 3604(b)). “As a general matter, FHA claims are evaluated under
the burden-shifting framework of the Title VII discrimination analysis and may be brought under
theories of both disparate treatment and disparate impact.” Id. Plaintiff’s claims sound in
disparate treatment and not disparate impact, and thus only disparate treatment is discussed here.
See Findings and Recommendations (May 17, 2024) 9, ECF 110.
“An individual suffers disparate treatment when he or she is singled out and treated less
favorably than others similarly situated on account of race or any other criterion impermissible
under [the FHA].” Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)
(simplified). To succeed on a disparate treatment claim, a plaintiff must first establish a prima
facie case by showing (1) the plaintiff is a member of a class protected under the FHA, (2) the
defendant subjected the plaintiff to different terms, conditions, or privileges because of the
plaintiff’s protected status, and (3) as a result of that discriminatory conduct, the plaintiff
suffered a distinct and palpable injury. See Wilson v. Guardian Mgmt., LLC, 383 F. Supp. 3d
plaintiff does not provide any evidence that any of the defendants acted with discriminatory or
retaliatory intent, or that any of the defendants’ actions are sufficient to establish a hostile
housing environment, the analysis below refers generally to defendants collectively and
identifies with particularity certain defendants where necessary for clarity. Nothing in the
analysis here should be construed as a reconsideration of or as otherwise altering any prior
rulings regarding the legal sufficiency of plaintiff’s claims.
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1105, 1108 (D. Or. 2019). “[I]f the plaintiff establishes the prima facie case, the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory reason for its action.” Gamble v. City
of Escondido, 104 F.3d 300, 305 (9th Cir. 1997) (citations omitted). If the defendant satisfies this
burden, “the plaintiff must prove by a preponderance of evidence that the reason asserted by the
defendant is a mere pretext.” Id. (citations omitted).
B. 	FHA Retaliation
To succeed on an FHA retaliation a claim, a plaintiff must show that (1) the plaintiff
engaged in a protected activity, (2) the defendant subjected the plaintiff to an adverse action, (3)
a causal link exists between the protected activity and the adverse action, and (4) the plaintiff
suffered some resulting damage. Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir.
2001); San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998). A
“protected activity” includes “many types of actions but must relate to a plaintiff exercising . . .
rights granted or protected by the FHA.” Macon v. Proud Ground Org., No. 3:20-cv-01660-HZ,
2021 WL 3354157, at *6 (D. Or. July 30, 2021) (citing 42 U.S.C. § 3617). “Examples of
‘protected activity’ include advocating for fair housing rights, reporting discrimination to a
public body, requesting a reasonable accommodation for a disability, or filing a complaint with a
landlord or housing organization.” Id. For an FHA retaliation claim, the adverse action must be
“in the form of coercion, intimidation, threats, or interference.” Walker, 272 F.3d at 1128
(simplified).43
43 Because, as explained below, plaintiff has not produced evidence connecting any of
defendants’ actions to a retaliatory purpose, the court does not reach the issue whether any of
plaintiff’s actions were “protected activity” as that term is understood under the FHA.
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C. 	Hostile Housing Environment
To succeed on a “hostile housing environment claim a plaintiff must allege that [the
plaintiff] was subjected to (1) unwelcomed (2) harassment that was (3) sufficiently severe or
pervasive so as to interfere with or deprive the plaintiff of [the] right to use or enjoy” the home.
West v. City & Cnty. of San Francisco, No. 3:21-cv-02370-EMC, 2022 WL 1556415, at *8 (N.D.
Cal. May 17, 2022) (citing Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1290 (E.D. Cal. 2013));
see also Morris v. W. Hayden Ests. First Addition Homeowners Ass’n, Inc., 104 F.4th 1128,
1147 (9th Cir. 2024) (citation omitted). Whether an environment is sufficiently hostile or abusive
depends on the totality of 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 [person’s] living conditions.” West, 2022
WL 1556415 at *8 (citing Hall v. Meadowood Ltd. P’ship, 7 F. App’x 687, 689 (9th Cir. 2001);
24 C.F.R. § 100.600(a)(2)(i)).
IV. 	Discussion
A. 	“Delay” or “Denial” in Sending Written Notices
Because the HOA Board and TMT’s responses to plaintiff’s complaints are the primary
issue underlying this dispute, those allegations are addressed first. The evidence in the record
shows that plaintiff lodged numerous complaints with the HOA Board, TMT, Hess, and others
about his neighbors. Internal emails from TMT reflect that plaintiff made a “high volume of calls
and emails . . . (sometimes up to 10 calls or emails in a day)” with various complaints about his
neighbors.44 But the record also plainly shows that TMT frequently sent written notices to
plaintiff’s neighbors in response to plaintiff’s complaints:
44 Resp., Ex. 5 at 56, ECF 172-5.
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• 	June 26, 2020 notice regarding vehicle parked on sidewalk.45
• 	July 9, 2020 notice regarding operating a business and chemical waste disposal.46
• 	July 9, 2020 notice regarding trash and litter on the property.47
• 	July 9, 2020 notice regarding unleashed dogs.48
• 	November 4, 2020 notice regarding unleashed dogs.49
• 	January 12, 2021 notice regarding improper storage of trash (cigarette butts) within
sight of common area.50
• 	January 12, 2021 notice regarding vehicle parked on sidewalk.51
• 	January 21, 2021 notice regarding vehicle parked on sidewalk.52
• 	January 21, 2021 notice regarding operating a business.53
• 	January 7, 2021 notice regarding inoperable vehicle.54
• 	February 8, 2021 notice regarding inoperable vehicle.55
• 	February 17, 2021 notice regarding operating a business.56
• 	February 17, 2021 notice regarding vehicle parked on sidewalk.57
• 	February 17, 2021 notice regarding inoperable vehicle.58
• 	August 20, 2021 notice regarding operating a business.59
• 	February 25, 2022 notice regarding improper parking.60
• 	February 25, 2022 notice regarding operating a business.61
Plaintiff asserts that Hess and TMT “delayed” in sending out written notices in response
to his complaints, and that this delay was discriminatory or retaliatory. See Resp. 46 (Legal Issue
Nos. 33–37), ECF 172. As mentioned above, TMT was hired as a new management company for
45 Id. at 13.
46 Id. at 35.
47 Id. at 39.
48 Id. at 41.
49 Id. at 86.
50 Id. at 92.
51 Id. at 95.
52 Id. at 98.
53 Id. at 99.
54 Id. at 100.
55 Id. at 101.
56 Id. at 104.
57 Id. at 106.
58 Id. at 108.
59 Id. at 138.
60 Id. at 48.
61 Id. at 37.
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19 – FINDINGS AND RECOMMENDATIONS
the community in early 2020, and as of May 1, 2020, complaints from community members
began being routed to TMT and to Hess.62 On June 3, 2020, after fielding about a half-dozen
complaints from plaintiff about parking issues and off-leash dogs, Hess wrote to plaintiff as
follows:
As you know we are the new Management Company for
Farmington Estates. We are still in the process of doing some last
minute set up of the community. We are in the process of getting
all of the data entered into the system that we use to generate
violation letters to members that are in violation of the CC&Rs.
We have sent out an eblast in regards to parking and I have
reached out to the address we have on file for your neighbors and
have not heard a reply from them.
As soon as we get the data entered we can send them an official
violation letter.
Same as in the case of the unleashed pet. I would also recommend
that you call the Washington County Animal Control to make a
report. They take these kinds of issues seriously and will likely
follow-up with the owner directly.63
Plaintiff continued to email Hess, and on June 15, 2020, Hess again told plaintiff that the
system was not ready, and encouraged plaintiff to contact the police for any complaints of
harassment.64 In the meantime, Hess sent out email reminders to the community about off-leash
dogs and emailed plaintiff’s neighbors about parking.65 The first written notice from TMT to
plaintiff’s neighbors is dated June 26, 2020,66 and three other written notices are dated July 9,
62 Resp., Ex. 6 at 8, ECF 172-7.
63 Id. at 20. The term “CC&Rs” is an acronym for the “Declaration of Covenants, Conditions,
and Restrictions of Farmington Estates,” the recorded document that encumbers properties with
certain restrictions and obligations to which the property owners in the community have to
comply. See Resp., Ex. 1 at 2, ECF 172-1; see also Glendora Courtyard, LLC v. BBVA Compass
Bancshares Inc., No. 3:16-cv-01189-JLS-KSC, 2017 WL 960431, at *1 (S.D. Cal. Mar. 13,
2017) (explaining effects of CC&Rs).
64 Id. at 23, 25.
65 Id. at 20, 33.
66 Resp., Ex. 5 at 13, ECF 172-5.
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20 – FINDINGS AND RECOMMENDATIONS
2020.67 In short, the evidence shows that the delay was caused not by any discrimination or
retaliation, but because TMT simply needed time to set up the system properly.
Plaintiff asserts that a “non-black homeowner violation treated favorably,” Resp. 46–47
(Legal Issue Nos. 33–37, citing Facts 44 and 70 at Resp. 14, 18), ECF 172. The “facts” that
plaintiff cites do not support this claim. At Fact 44, plaintiff asserts that Hess’s supervisor at
TMT wrote to the HOA Board “on 04-16-20, notices can be sent starting 05-01-20.” Id. at 14
(citing Resp., Ex. 5 at 15, ECF 172-5). But the cited email does not say that at all. TMT’s
Division President Kelsie Roper wrote that “once we ‘go live’ if the Board wishes to address the
issue, we could do so by sending a courtesy notice.”68 In other words, just as Hess represented,
the system was not yet “live.” Notices could be sent at some later time, presumably once the
database or system was setup. Not only that, but the “05-01-20” date that plaintiff mentioned
does not seem to appear in this email.
At Fact 70, plaintiff writes: “Berg (Board member) reported 5387 inoperable car
violation . . . [on] 06-24-20, and Hess instructed TMT to send the inoperable vehicle notice on
06-25-20, without any photos.” Resp. 18, ECF 172 (citing Resp., Ex. 5 at 46–47) (some
formatting modified). Although it is not entirely clear from plaintiff’s briefing, the point plaintiff
seems to be making is that Berg reported an inoperable car to Hess on June 25, 2020, Hess sent a
letter to the homeowner that same day, and plaintiff believes that the “delay” in sending written
notices to his neighbors was discriminatory. But the record shows that in late June of 2020, Hess
and plaintiff were engaged in an ongoing conversation about whether the issues he was having
with his neighbors were really a matter of HOA rules or whether some issues were better
67 Id. at 35, 39, 41.
68 Id. at 15.
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21 – FINDINGS AND RECOMMENDATIONS
addressed to the police.69 On June 23, 2020, Hess wrote to plaintiff that TMT had “drafted a
letter to the owners about the violations and it will be going out in the mail today,” and as
mentioned above, there is a written notice dated June 26, 2020.70 On July 7, 2020, plaintiff and
Hess talked on the phone, Hess directed that more letters be sent to the neighbors,71 and there are
three such notices dated July 9, 2020.72 Not only that, but there are many other instances where
plaintiff complained to Hess and a written notice was also sent right away.73 There is simply no
evidence that any “delay” in sending notices in response to plaintiff’s complaints was caused by
some discriminatory or retaliatory motive, or that any delay could constitute the type of severe
and abusive behavior that establishes a hostile housing environment claim. See Macon, 2021
WL 3354157 at *5 (explaining that “[d]isparate treatment requires some showing of
discriminatory intent on the part of the defendants”).
B. 	Failure to Issue Fines or Tow Cars
The second primary theory that plaintiff advances for his claims is based on his
frustration that TMT or the HOA Board did not issue fines to his neighbors or tow cars that were
inoperable or parked improperly. See Resp. 44 (Legal Issue No. 26), ECF 172 (“Plaintiff was
denied fines service on reporting [his neighbor’s] improper parking[.]”); id. (Legal Issue No. 27)
(asserting the same regarding “towing service”).
69 See Resp., Ex. 6 at 26–31, ECF 172-7.
70 Id. at 32.
71 Id. at 37.
72 Resp., Ex. 5 at 35, 39, 41, ECF 172-5.
73 See Resp., Ex. 6 at 79, ECF 172-7 (Nov. 4, 2020 email complaint from plaintiff regarding
unleashed dogs) and Resp., Ex. 5 at 86, ECF 172-5 (Nov. 4, 2020 Compliance Notice to
plaintiff’s neighbors regarding unleashed dogs); see also Resp., Ex. 6 at 90, ECF 172-7 (Feb. 16
email complaint regarding business, parking, inoperable cars) and Resp., Ex. 5 at 104–08, ECF
172-5 (Feb. 17, 2021 Compliance Notices for business, parking, and inoperable cars).
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22 – FINDINGS AND RECOMMENDATIONS
As mentioned above, Hess and others from TMT responded to plaintiff’s numerous
requests for fines or towing by explaining that there needed to be an FPR or similar “Towing
Resolution” in place before TMT or the HOA Board could fine his neighbors or tow their cars as
he requested. For example, in July of 2020, after plaintiff had made several complaints to Hess
that were not resolved to plaintiff’s satisfaction, he sent an email to Sara Beddow, the Division
Senior Vice President for TMT, outlining his many complaints and his frustration with Hess.74
Beddow responded that she had “reviewed this situation with [Hess]” and explained the “steps
[TMT has] taken on these concerns” and the need for an FPR:
Brian has sent letters for many of these concerns, and will continue
to send additional notices as applicable. While some of these
concerns are issues that we can send letters for, there are some
issues that we will recommend contacting the police for instead, as
they are more equipped to deal with immediate life/safety issues,
or noise violations in real time. . . .
Brian is working with the Board on both the possibility of updated
governing documents (which requires a vote of the Owners) and
creating a financial penalties resolution, which will allow us to fine
after a defined amount of time for violations of the documents.
This will help clarify the standards for the neighborhood, and more
information will be shared with Owners as the Board continues to
work through this process.
Some of the issues mentioned are more neighbor to neighbor
concerns rather than violations of the governing documents.75
There are many other examples in the record where it was explained to plaintiff that no fines
could be issued or towing could occur until the HOA Board adopted an FPR or a similar towing
resolution.76 Not only that, but plaintiff was a member of the HOA Board and was part of
74 Resp., Ex. 6 at 43, ECF 172-7.
75 Id. at 45.
76 See id. at 87 (Jan. 21, 2021: “As the association does not have a Financial Penalties
Resolution, we cannot fine the owner for these infractions.”); id. at 101 (Apr. 7, 2021: “Just like
we discussed at the town hall meeting there are several things that need to take place before we
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23 – FINDINGS AND RECOMMENDATIONS
numerous discussions about changing the documents and adopting an FPR or a towing
resolution, and what the process to enact those changes would require.77 Eventually, the HOA
Board adopted some kind of FPR and “fines schedule” and after that point, the HOA Board
issued a few “Daily Fine Letters” in 2022.78 It is not clear from the record if the HOA Board
ever adopted a similar “towing resolution” and there is no evidence, such as a receipt from a
towing company, showing that any car was actually towed.
Plaintiff makes a significant number of allegations regarding the defendants’ purported
lack of power to issue fines or to tow cars. See Resp., Legal Issue Nos. 26–29, 70, 71, 78, 79, 86,
89, 112, 121, 124, 126, 139, 143, 145, 147, 149, 153, 155, 160, 161, 163, 166, 170, 171, 172,
174, 175, 177, 180, 185, 188, 191, 192, 195, 196, 197, 210, 215, 216. Plaintiff’s theory seems to
be primarily based on his belief that the HOA Board already “had [the] power to enforce” the
CC&Rs through fines and towing, and that the FPR and towing resolutions that Hess and TMT
said they needed were really just “operational polic[ies]” that Hess and TMT somehow
“weaponized . . . to deny [p]laintiff” the remedies he wanted for his complaints. See Resp. 44–45
(Legal Issue Nos. 26–29); id. at 56–57 (Legal Issue Nos. 70–71); id. at 75 (Legal Issue No. 126),
id. at 79 (Legal Issue No. 143). In support of this theory, plaintiff cites an email from a “prior
board member” to Hess stating that the HOA Board had issued fines in the past, see Resp. 44
(Legal Issue No. 26, citing Fact 76 at Resp. 19), and a towing agreement purportedly between
can start fining them for repeated violations.”); id. at 114 (Apr. 21, 2021: “As we have discussed
before the FPR is not in place as of yet so we cannot fine or charge them. But we are working on
that.”); id. at 118 (May 15, 2021: “As we have talked about several times. There is no Financial
Penalties Resolution in place as of yet. So the most action that can be done at this time is to send
out letters. . . . Board would need to discuss a towing resolution (similar to above and get that
sent out and then get a tow company in place.”).
77 See id. at 117–18.
78 Resp., Ex. 5 at 139, ECF 172-5; see also Resp., Ex. 10 at 4, 7, ECF 172-11.
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24 – FINDINGS AND RECOMMENDATIONS
Beaverton Towing and the HOA Board, see Resp. 44 (Legal Issue No. 27, citing Fact 13 at Resp.
11).
Regarding the fines issue, there is indeed an email from Cynthia Hobbs regarding the
HOA Board’s purported past practice regarding fines. On June 29, 2020, Hobbs wrote in part to
Hess as follows:
I have gotten emails that come out addressing certain things, and it
would be nice if reminders went out that trash cans need to stored
out of view. It is in our CC&rs and when I was on the board, we
did assess a fee amount for violations. If this is no longer a
enforced rule, please let me k[n]ow as I would like to leave my
trash cans outside as well.79
But for several reasons, this email is insufficient to establish that any of the defendants
discriminated or retaliated against plaintiff by insisting that the HOA Board could not issue fines
for plaintiff’s complaints without an FPR. For one thing, Hobbs is not a party to this case, and
thus to the extent plaintiff seeks to use her statement in this email to establish the fact that the
HOA Board issued fines in the past, it is hearsay (meaning it is an out-of-court statement offered
to prove the truth of the matter asserted) and inadmissible for that purpose. Fed. R. Evid. 801(a),
(c); see also Rulison v. Yogurt Play, LLC, No. 2:13-cv-00454-RSL, 2014 WL 868783, at *2
(W.D. Wash. Mar. 5, 2014) (explaining that an email from a non-party “notifying plaintiff that
[the defendant] employed fifteen or more persons is hearsay”). There is no other evidence that
the HOA Board actually issued fines at some point before it hired TMT, when they did, for what
violations, for how much, or to whom. There are no receipts, bills, fine notices, or anything of
the sort from Hobbs’s purported time on the HOA Board, or any testimony from Hobbs
regarding any specifics about these alleged past fines. Nor does plaintiff identify any evidence
establishing what legal authority the HOA Board may have relied upon in issuing fines in the
79 Resp., Ex. 5 at 55, ECF 172-5 (as written).
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past, or point to any specific provision of the documents that existed during the relevant time to
show the HOA Board had the power to institute fines as plaintiff wanted.
The record reflects that, as early as May of 2020, TMT and Hess formed the belief that
the existing governing documents for Farmington Estates had several “flaws.”80 After reviewing
the existing documents, Hess recommended in July of 2020 that the HOA Board adopt an FPR:
When and [sic] owner is in violation we send out a courtesy notice,
then if the violation is not corrected we send a compliance notice.
IF [sic] the violation is still not corrected and the owner does not
request a hearing this resolution will allow the association to
implement fines on the owners account until the violation is
corrected. Once the resolution is drafted and approved by the board
we need to mail this out to the entire community and notify them
of the new document. Then we can start using that process to
enforce compliance.81
Hess also explained that the FPR was important because “[a]s of now the letters that we send out
do not hold any weight since there is no penalty as an end result.”82
In response, Berg stated, “It seems to me that there is already something like this in our
current CC&R’s.”83 Hess explained that “[t]he governing documents do allow for the fines, but
the association needs to have a resolution in place that outlines the process, fine amounts etc.,”84
Roper added that the FPR was “separate from the governing docs, but critical for management
operations to continue.”85 Over the following months, there was a substantial amount of email
traffic regarding the FPR, in addition to a possible towing resolution. Notably, in August of
2020, there was some confusion regarding actions that Berg remembered the Board taking
“several years ago” that apparently resulted in amended governing documents from 2007—a
80 Id. at 54.
81 Id. at 52.
82 Id.
83 Id.
84 Id. at 51.
85 Id. at 51.
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copy of which plaintiff has included as an exhibit here.86 But TMT explained that the 2007
documents were not recorded or distributed to the community members, and thus could not be
relied upon in enforcing the community’s rules.87
Hess and the board members went back-and-forth about the FPR over the next few
months, and in October of 2020, Hess wrote to his supervisor that the Board had signed off on
TMT’s proposal to draft an FPR, along with updated governing documents, although Hess also
noted the Board was “a little restless about the time frame on the documents[.]”88 TMT’s work
on those documents was apparently delayed in part because the employee working on the
documents experienced a family health crisis.89 At a meeting in March of 2021, the HOA Board
approved TMT’s proposal to rewrite the governing documents.90 Plaintiff was elected to the
board in April or May of 2021, and there are a number of emails after that reflecting debate
among the board members as to whether an FPR should be adopted.91 The record is not entirely
clear on when a finalized FPR was in place such that the HOA Board and TMT could issue fines
for rules violations. The HOA Board voted for a draft to be prepared in July of 202192, and then
at a meeting in September of 2021 that plaintiff could not attend, Berg and Orrantia voted to
“approve the fine resolution.”93 Plaintiff does not offer a coherent explanation for what happened
next with the FPR despite serving on the HOA Board during this time. An email from February
of 2022 seems to reflect Berg and Hess’s belief that the FPR was operational at that point.94 And
86 See id. at 70; see also Resp., Ex. 3 at 1–14, ECF 172-3.
87 Resp., Ex. 5 at 69–70, ECF 172-5.
88 Id. at 84.
89 Id. at 85.
90 Id. at 111.
91 See, e.g., Resp., Ex. 6 at 120, ECF 172-7.
92 Id. at 139.
93 Resp., Ex. 5 at 139, ECF 172-5.
94 Id. at 36.
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the “Violation Report” reflects that TMT sent four fine letters, all regarding visible trash, in
October and November of 2022, two to plaintiff and two to another resident.95
Whether Hess and TMT were ultimately correct that the HOA Board needed to adopt an
FPR before issuing fines is ultimately not relevant for several reasons. See Resp. 72 (Legal Issue
No. 112), ECF 172 (asserting that TMT and Hess “interfered by . . . not abiding by governing
docs . . . in denying/delaying/limiting service to [p]laintiff is absence of resolutions”). First, there
is no evidence suggesting that Hess and TMT developed this belief because of some intent to
discriminate or retaliate against plaintiff or that this belief was advanced as a mere “pretext” to
disguise a way to treat plaintiff differently. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1063 (9th Cir. 2002) (finding that the plaintiff’s discrimination claim could not survive
summary judgment because there was “no evidence that [the employer] did not honestly believe
its proffered reasons” for terminating the plaintiff); Santos v. Cnty. of Humboldt, No. 1:22-cv-
07485-RMI, 2023 WL 6882748, at *6 (N.D. Cal. Oct. 18, 2023) (finding that no causal link for
retaliation claim was established because a “plethora of other plausible explanations” could
account for the “chain of events surrounding” the alleged retaliatory action). Moreover, there is
no evidence showing that the HOA Board or TMT issued fines or towed cars based on any other
homeowners’ complaints, but refused to do so for plaintiff. The “Violation Report” shows that
TMT issued written notices for all complaints received from community members before the
FPR was adopted around September of 2021, and after that, they sent out a handful of “Daily
Fine Letters” for repeated, uncured violations.96 In other words, there is no evidence that
plaintiff’s complaints were treated differently because of his race or because he engaged in any
95 Resp., Ex. 10 at 4, 7, ECF 172-11.
96 Resp., Ex. 5 at 36, ECF 172-5; Resp., Ex. 10 at 1–18, ECF 172-11.
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purported protected activity. See McDonald v. Coldwell Banker, 543 F.3d 498, 504 (9th Cir.
2008) (affirming summary judgment in the defendants’ favor on FHA discrimination claim
because the plaintiff provided no evidence that the defendants “treated only African-American . .
. individuals the way they treated [the plaintiff]” and thus the plaintiff failed to establish a
“discriminatory motive” ).
Plaintiff notes that some of his complaints about his neighbors were “closed” after
September 21, 2021, and no fines were issued, even though plaintiff claims the “auto repair
business” was still operating. See Resp. 65 (Legal Issue No. 92), ECF 172.97 But plaintiff has not
included a copy of the FPR text, and there is nothing to indicate that the FPR and the new
process for instituting fines for rules violations would have been retroactive for outstanding
written notices that were not “backed up,” so to speak, by the real threat of fines at the time they
were issued. There are no email complaints from plaintiff about the neighbors’ car business after
the FPR adopted in September of 2021; the “Violation Report” shows that TMT sent plaintiff’s
neighbor’s a “pre-courtesy notice” about the auto repair business in February of 2022,98 but that
is the most recent mention in the record, and plaintiff has not provided any evidence showing
how this was resolved, whether the problem is ongoing, or anything else regarding the “auto
repair business” post-dating the September 2021 passage of the FPR.
Finally, plaintiff attempts to compare the Board’s actions in issuing a “Cease and Desist”
letter to a different homeowner for an exterior modification that was not previously approved by
the ARC Committee,99 to the failure to fine or issue a “Cease and Desist” to his neighbors for the
auto business. See Resp. 82 (Legal Issue No. 155), ECF 172. Those situations are not sufficiently
97 Resp., Ex. 10 at 10, ECF 172-11.
98 Id. at 15.
99 Resp., Ex. 5 at 38, ECF 172-5
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similar to draw any inference of discrimination or retaliation. Brown v. Alaska Airlines, Inc., No.
2:22-cv-668-BJR, 2024 WL 2325058, at *9 (W.D. Wash. May 22, 2024) (“To be relevant as
circumstantial evidence of discrimination, a comparator must ‘be similarly situated in all
material respects.’ ” (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)).
Regarding plaintiff’s argument that the HOA Board already had the authority to tow cars,
plaintiff relies in part on two documents—a version of community CC&Rs that contains the date
June 1, 2007100 and an undated agreement apparently between the HOA and Beaverton
Towing.101 But those documents do not change the analysis of plaintiff’s claims regarding
defendants’ failure to tow his neighbors’ cars. For one thing, plaintiff does to explain where the
2007 CC&Rs document came from or who authored it. More importantly, this version of the
CC&Rs is not signed by anyone and was not recorded, meaning it has no legal effect. As
explained above, TMT informed the HOA Board that it could not rely on unrecorded CC&Rs to
enforce community rules.102
The towing contract has similar problems. It is also not dated, and there is no signature by
any representative from Beaverton Towing, meaning the agreement is not fully executed.103
Furthermore, plaintiff has not produced any evidence that TMT or the HOA Board actually
ordered a car to be towed at any time, whether pursuant to the unexecuted towing contract or for
any other reason, despite there being complaints from other homeowners in the record regarding
100 Resp., Ex. 3 at 1, ECF 172-3. Notably, the document states, “This Declaration is made at this
1st day of June 2007,” but the signature page, which is blank, has the date November 30, 2005.
101 Resp., Ex. 4 at 1, ECF 172-4.
102 See Resp., Ex. 5 at 69–70, ECF 172-5 (in which TMT explains to the HOA Board that the
new CC&Rs “need[ed] to be recorded and distributed to the membership in order to be valid and
enforceable” and that the recorded documents in place “do not seem to refer to towing”).
103 Resp., Ex. 4 at 1, ECF 172-4.
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inoperable cars and parking issues.104 See Wilson, 383 F. Supp. 3d at 1111 (granting summary
judgment on FHA discrimination claim based in part on the defendants’ alleged failure to repair
the plaintiff’s “carpet and closet doors” because the plaintiff “offer[ed] no evidence that [the
defendants] made repairs of similar damage for any other tenants within a similar time frame”).
As late as November of 2022, Seibel asked Hess whether the HOA Board was “at the point of
towing yet,”105 and still there is no evidence of any car being actually towed. In short, there is no
evidence that any lack of towing in response to plaintiff’s complaints was discriminatory or
retaliatory, or otherwise sufficient to establish a hostile housing environment claim.
C. 	“Deferring” Plaintiff’s Complaints to the County
Plaintiff asserts several times that defendants allegedly discriminated against him by
“deferring” his complaints to local law enforcement or by explaining to him that certain issues
were best handled through neighbor-to-neighbor mediation. See Resp., Legal Issue Nos. 1, 2, 30,
31, 47, 84, 110 ECF 172. Primarily, plaintiff seems to be arguing that there was some
discriminatory difference between the manner in which the Board responded to his February
2020 complaint about his neighbors’ barking dogs—by “deferring” him to “the [C]ounty” and
suggesting he consider seeking neighbor-to-neighbor mediation—and the way in which the
Board respond to an April 2020 complaint from another resident about the smell of marijuana
smoke—where the Board brought to the concern to TMT.106
104 See Resp., Ex. 5 at 71, ECF 172-5.
105 Id. at 147, ECF 172-6.
106 See id. at 2–3, ECF 172-5. Ultimately, TMT suggested telling the complainant, essentially,
that there was nothing the HOA Board could do about another resident smoking on their own
property. See id. (in which Hess wrote to Berg that “there is not a lot that we can d[o] to prohibit
the neighbor from smoking in their yard” and recommended asking the complainant to “talk to
the neighbors” about the smoke).
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The issue is simply one of timing. The precise date upon which TMT and Hess took on
the primary responsibility from the HOA Board for responding to neighbor complaints is not
entirely clear. But an internal TMT email dated March 10, 2020, notes that Farmington Estates
was a “new association” for the company, and that TMT’s “Services begin: April 1, 2020.”107
There are other emails in the record showing that the Board was coordinating with TMT in the
days leading up to April 1, 2020; for example, Berg wrote to TMT on March 30, 2020, regarding
a community member’s inquiry about a “leak issue.”108 Later in May of 2020, an unidentified
person writing from the farmingtonestates@gmail.com address who had been corresponding
with plaintiff about some of his initial complaints told plaintiff that “[b]eginning May 1 [2020],
we are now being managed by a property management company” and that plaintiff should “send
[his] address and the address of the home that have the cars parked in your driveway along with
the complaint to” Hess.109 There is no evidence, though, that TMT had any involvement with the
Board or the community before March of 2020. The fact that plaintiff’s February 2020 complaint
was not brought to TMT but was “deferred” to local law enforcement is not discriminatory,
retaliatory, or hostile; TMT had not been hired yet.
Relatedly, plaintiff’s other allegation seems to be that Hess and TMT wrongly told him in
June of 2020 that complaints regarding personal safety or harassment were best reported to
police. Resp. 49 (Legal Issue No. 47), ECF 172. He cites the same April 2020 complaint
regarding marijuana smoke and several paragraphs related to the “rat problem,” which is
discussed in more detail below. Neither one, though is comparable to plaintiff’s complaints that
his neighbors were “knocking down trash cans” and “relieving body fluids in plaintiff’s
107 Id. at 1.
108 Id. at 26.
109 Resp., Ex. 6 at 8, ECF 172-7.
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backyard,” Id. at 13, and thus no discriminatory or retaliatory intent can be inferred from the
different way that defendants responded to these situations.
D. 	Non-Anonymous Complaints
Plaintiff lists a number of times when Hess or other defendants “took away plaintiff’s
anonymity” for his complaints about his neighbors. See Resp., Legal Issue Nos. 64, 65, 156–158,
162, 167, 168, 169, 178, 187, ECF 172. This appears to be based on the fact that a few of the
written notices that were sent to plaintiff’s neighbor were accompanied by pictures that plaintiff
asserts revealed that it was he who made the complaint. See id. There are several examples,
however, where TMT sent written notices to other homeowners, including to plaintiff himself,
that were similarly accompanied by pictures of the purported violation.110 Thus, there is no
evidence showing that including pictures on the written notices based on plaintiff’s complaints
was done out of some discriminatory or retaliatory purpose, nor does it constitute any abusive
behavior that could sustain a hostile housing environment claim.
E. 	“Denied Access” to HOA Board or TMT
Plaintiff’s assertion that he was “denied access” to TMT “during the transition” is not
borne out by the record and, again, does not provide any support for a discrimination, retaliation,
or hostile housing environment claim. See Resp. 40 (Legal Issue No. 4), ECF 172. As described
above, the record is replete with evidence that plaintiff was able to, and quite often did, contact
Hess and others at TMT regarding his complaints about his neighbors. Again, plaintiff cites the
April 2020 complaint from another community member regarding marijuana smoke, but as
explained above, there is nothing discriminatory or retaliatory to infer from the fact that the April
110 See Resp., Ex. 5 at 112–13, ECF 172-5 (parking violation); id. at 30 (ARC violation); id. at 45
(pet waste).
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2020 complaint was sent to TMT for advice and plaintiff’s February 2020 complaint was not
because TMT was not hired until April or May of 2020.
F. 	Front Yard Repair
Regarding plaintiff’s numerous assertions related to his request that the HOA repair his
front yard for the damage purportedly caused by his neighbor’s alleged auto repair business,
there is no evidence showing discrimination or retaliation, or that could establish a hostile
housing environment claim. See Resp., Legal Issue Nos. 46, 67, 73, 75, 76, 80, 81, 83, 87, 100,
104, 116, 127, 128, 131, 164, 173, 176, 181, 182, 184, 189, 190. Starting around June of 2020,
plaintiff made several complaints or requests that the HOA pay for repairing his front yard.111
TMT wrote to plaintiff’s neighbor in July of 2020, advising her that she was required to clean up
plaintiff’s yard.112 Plaintiff objected to that because he wanted the cleanup “done by a licensed
contractor that is bonded and knows how to remove oil and gas (hazardous waste) from our front
yard.”113 The subsequent discussion among Hess and the HOA Board shows that they wanted to
wait to act on plaintiff’s request to fix his yard until after the governing documents could be
updated with a FPR, so any costs incurred could be charged to the neighbor.114 Shortly
thereafter, however, it appears the HOA Board changed their minds. On April 12, 2021, TMT
wrote to plaintiff that it had “sent a request to the HOA’s landscaper to inspect the landscaping
and make any needed replacements due to the oil spill.”115 Later that day, TMT wrote again to
plaintiff that the requested repair “does not fall under the responsibility of the [HOA]” because
111 Resp., Ex. 6 at 30, ECF 172-7.
112 Resp., Ex. 5 at 35, ECF 172-5.
113 Resp., Ex. 6 at 38, ECF 172-7 (some formatting modified).
114 See Resp., Ex. 5 at 116, ECF 172-5.
115 Resp., Ex. 6 at 106, ECF 172-7.
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“[w]alkways are homeowner responsibility.”116 Plaintiff wrote back that it was a “landscape
issue, it has nothing to do with the walkways or side walk, the material goes right into my front
yard.”117 It is not clear what happened next, but a short time later, plaintiff did in fact get his yard
repaired and it was paid for by the HOA, even though the FPR was not yet in place. On May 5,
2021, Berg wrote to Hess:
Did [plaintiff] say anything about having his yard fixed? If we can
ever impose a fine to the neighbor that $ should go to cover that
cost.118
Hess wrote back that he “believe[d]” plaintiff was “very excite[d] to have his yard done” because
plaintiff had apparently talked to another TMT employee about it.119 An email from plaintiff to
Hess on May 21, 2021, reflects that his yard had indeed been fixed.120
Plaintiff does not explain how this result could be the basis of a discrimination,
retaliation, or hostile housing environment claim—plaintiff got what he asked for, and the
evidence shows that the delay is attributable at least in part to the process required to adopt the
FPR. As explained above, there is no evidence that process was tainted by any discriminatory or
retaliatory intent.
Plaintiff cites to an August 2020 event where Hess “scheduled the landscaper to repair
the front yard” of another homeowner who had requested “weeding,” and a June 2021 event
where “Seibel’s backyard is fixed by HOA landscapers.” See Resp. 15, 49, 50, 152, ECF 172.
Neither is sufficient to show discrimination, retaliation, or the creation of a hostile housing
environment. As for the front yard weeding, there is no evidence in the record showing that the
116 Id. at 109.
117 Id. at 110.
118 Resp., Ex. 5 at 119, ECF 172-5.
119 Id.
120 Resp., Ex. 6 at 131, ECF 172-7.
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weeding request was actually completed or when, nor is there any evidence establishing that the
homeowner who requested it was not a member of a protected class; therefore, no discriminatory
intent can be inferred from this email.121 Not only that, but the neighbor’s request for weeding is
not substantially similar to plaintiff’s request for “hazardous waste” cleanup. Thus any allegedly
different treatment that plaintiff’s request received cannot be attributed to any discriminatory or
retaliatory intent, or some kind of hostile act. Furthermore, the pictures plaintiff produced of the
“hazardous waste” that had allegedly leaked onto his property seem to reflect that at least part of
the affected area was a stone walkway.122 That suggests the HOA Board’s initial conclusion that
the requested repair was not within the scope of the HOA’s responsibility for “front yards” and
was instead connected to a “walkway” for which plaintiff was responsible was at least arguably
based on a reasonable interpretation of their rules.
The only evidence offered for plaintiff’s allegation that Seibel’s backyard was “fixed by
HOA landscapers” is an email from plaintiff to Hess in which plaintiff noted that some work was
being done in Seibel’s back yard and asked, “Is HOA paying for that?”123 There is no response
back from Hess, or any testimony about this backyard repair in the record. Plaintiff’s speculation
that the HOA paid for Seibel’s backyard is not sufficient to establish discrimination, retaliation,
or the creation of a hostile housing environment.
G. 	The “Rat Problem”
As mentioned above, in May of 2021, the community began experiencing problems with
rats around plaintiff’s and Seibel’s properties. Berg “saw a live rat” in the neighborhood near
Seibel’s property and requested that TMT to send out an email to homeowners regarding rats in
121 See Resp., Ex. 5 at 23, ECF 172-5.
122 See id. at 31–32.
123 Resp., Ex. 6 at 122, ECF 172-7.
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the community asking “all residents for [their] help” by, among other things, not feeding birds
and squirrels and by ensuring that “all garbage is securely inside [the] trash bin.”124 In June of
2021, Seibel complained to Hess that plaintiff was “putting out bird seed and peanuts” that
Seibel believed was attracting the rats, and that plaintiff was “hostile towards [her]” when she
asked him to stop.125 Seibel apparently took a video of the rats in or around plaintiff’s yard; the
video itself was not made part of the record, but Hess sent the video to an extermination
company and the representative responded “WOW!! Our equipment will definitely help
however, for our efforts to be successful” the unit owner (presumably plaintiff) “will have to stop
. . . feeding them[.]”126
The rat dispute caused escalating tensions between plaintiff and Seibel. Plaintiff believes
that Seibel and other defendants “frame[d] [him] for feeding rats” and that Hess “circulated” the
“narrative” that plaintiff was feeding the rats. Resp. 7, ECF 172. Additional pictures and videos
of the rats in plaintiff’s yard circulated among the HOA Board, and plaintiff sent Hess several
pictures he claimed were of rats in Seibel’s backyard, among other places.127 Plaintiff denied that
rats lived in his yard, although he had seen significant rat activity there.128 Plaintiff believed the
rats were coming to his yard through Seibel’s property, and that she was “giving them good
shelter, [and a] food and water source.”129
124 Resp., Ex. 5 at 126, ECF 172-5.
125 Id. at 122.
126 Id. at 122, 133.
127 Resp., Ex. 6 at 132, 134, ECF 172-7.
128 Id. at 133-34.
129 Id.
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When the Board and TMT reached out to the extermination company to obtain a
proposal, plaintiff objected that it was unfair that the rat problem was being addressed before his
issues with his neighbors were resolved:
The fact a homeowner complained about rats and was able to get a
possible resolution so quickly and I have sent so many complaints
about my neighbor for over a year and no signs of a possible
resolution, does not seem fair to me.130
Hess explained to plaintiff that the Board was “only seeking a proposal for the pest issue,” there
was “no cost to send out the pest control company to obtain a proposal,” and “once the proposal
is received then the board will be able to review the proposal and make a determination how to
proceed.”131 It is not clear from the record what action the HOA Board ended up taking
regarding the rats, but given that the email traffic about the rats eventually died down after about
June of 2021, it seems the “rat problem” was essentially resolved at some point.
Obviously, plaintiff and Seibel disagreed about who was to blame for the “rat
problem,”132 but plaintiff does not identify any evidence showing defendants took any alleged
actions regarding the rats because of plaintiff’s race or because he engaged in any protected
activity. Notably, in response to Seibel’s complaint that plaintiff was feeding the rats, Hess wrote
that he “checked the current governing documents and [did] not see anything in there that limits .
. . feeding animals outside[.]”133 In other words, Hess treated Seibel the same as he did
plaintiff—he checked what the governing documents said and reported back on what limitations
there were as to what TMT or the Board could do in response to the complaint.
130 Id. at 119.
131 Id. at 131.
132 See id. at 126–28.
133 Resp., Ex. 5 at 123, ECF 172-5.
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To the extent that plaintiff believes it was “unfair” that the HOA Board and TMT seemed
to be more assertive in acting to curb the “rat problem” before acting on his complaints against
his neighbor’s auto business, the two situations are much different. It is common knowledge that
rats are a disease vector and that, if not controlled, a rat infestation could easily grow and cause
significant damage to the environment and structures across the community. Plaintiff’s situation
with his neighbor, while very frustrating and stressful for plaintiff, did not carry the same
potential for serious health and safety issues throughout the community, nor the potential impact
that a rat infestation, even if localized, could have on homeowners selling or renting their
properties.134
Also, the remedy that the HOA Board was considering for the “rat problem” was not the
same as those plaintiff sought for his neighbors, i.e., issuing fines for operating a business or
towing cars. One involves taking some action to impose a penalty on an individual for a rule
violation, while the other involves spending shared resources to address an environmental
problem with potentially community-wide negative impacts. Moreover, it is not entirely clear
from the record what the HOA Board actually did regarding the rat problem. Beyond apparently
sharing the video with an exterminator, there is nothing showing whether an exterminator was
actually hired or how the “rat problem” was ever resolved, and there is no evidence of any vote
or of any money spent on the rat problem. In other words, there is insufficient evidence in the
record to compare defendants’ actual actions in addressing the “rat problem” with defendants’
actions in dealing with plaintiff’s complaints. And, in the end, the two situations are not similar
enough to draw any inference that the HOA Board or any other defendant was acting with some
134 See id. at 122 (email from Seibel to Hess in which she states, “This is now an infestation; a
health hazard and the value of our properties will likely reduce. I don’t know who would want to
buy a house that clearly has rats running all over day and night.”)
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improper purpose on the basis of plaintiff’s race or any purported protected activity when they
prioritized dealing with the “rat problem.”
As for plaintiff’s various allegations that defendants discriminated against him by taking
videos of the rats in his backyard, discussing among themselves that the rats seemed to be
coming from (or were at least present in) his backyard, reporting the rats in his backyard to
County Code Enforcement, or otherwise conspiring to “frame” plaintiff for the “rat problem,”
see Resp. 51–52, 62–64, ECF 172, plaintiff has not produced any evidence that these things
happened as a result of discrimination or retaliation. Instead, the evidence in the record reflects
that several people, including plaintiff himself, saw live rats in or around plaintiff’s property.
Plaintiff told Seibel that he noticed an “enormous amount of rat activity destroying [his]
property,” although he thought they were coming in from Seibel’s property,135 and he reported
the same thing to Hess.136 Wherever the rats ultimately came from, or who was truly to “blame”
for their presence, is beside the point. The record shows it was the presence of the rats in and
around plaintiff’s yard, and not some discriminatory or retaliatory animus, that prompted
defendants to act.
Finally, apart from plaintiff’s own unsworn speculation, there is no evidence showing
that Seibel or any other defendant “threw [a] dead rat with noose” into plaintiff’s yard. See, e.g.,
Resp. 52–53, ECF 172. For all those reasons, defendants are entitled to summary judgment on all
of plaintiff’s claims based on the events arising from the “rat problem.”
135 Resp., Ex. 6 at 126, ECF 172-7.
136 Id. at 133.
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H. 	Plaintiff’s Fence
Plaintiff makes several allegations regarding the temporary fence he had installed in his
front yard between his property and the “auto repair business” neighbor. Generally, he asserts
that defendants wrongly required him to apply for “ARC” approval for the fence and then denied
his application. Resp., Legal Issue Nos. 48, 49, 77, 95, 133, 140, 141, ECF 172. The governing
documents in place at the time provided that “[a]ll fences and all fence finishes” needed to be
approved by the “Architectural Review Committee” before they were installed.137 The examples
that plaintiff cites of how the HOA Board handled other ARC issues are not similar enough to
draw any inferences of discrimination, retaliation, or hostile housing environment. One neighbor
received a written notice about “attached items to [a] tree.”138 Another example is an “ARC
Modification Approval” regarding an “upstairs bathroom remodel.”139 Another pertains to the
installation of a “Little Free Library.”140 Yet another involved the installation of a “Camelia
bush.”141 None of these are comparable to plaintiff’s fence application.
There is, however, a much more similar incident that plaintiff did not cite—in 2022,
TMT sent at Berg’s request a written notice to another homeowner who was building a fence
explaining that they had not applied for ARC approval and needed to stop the work until an
application was submitted and approved.142 In short, in the closest analog to plaintiff’s situation,
he and another homeowner were treated in essentially the same way—in both circumstances, the
property owners were directed to obtain approval for their fence installation through the ARC
137 Resp., Ex. 1 at 14, ECF 172-1.
138 Resp., Ex. 5 at 75, ECF 172-5.
139 Id. at 76.
140 Id. at 77.
141 Id. at 78.
142 Id. at 36, 38.
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process. Plaintiff does not to cite evidence showing that the HOA Board allowed a fence similar
to his but did not allow his fence, and therefore, any discrimination, retaliation, or hostile
housing environment claim based on the fence issue is subject to summary judgment.143
I. 	Issues Regarding Plaintiff’s HOA Board Tenure
Plaintiff alleges that defendants retaliated against him by “taking [his] treasurer position
[on the HOA Board] away,” and then “falsified [the] meeting minutes” regarding his
appointment to the position. Resp., Legal Issue Nos. 93, 94, 219, 221, ECF 172. There is no
evidence supporting these claims. Meeting minutes from the May 2021 meeting show that
Orrantia was appointed treasurer for a one-year term.144 On November 22, 2021, plaintiff
emailed the other members of the Board:
I was reviewing the Board meeting packet (Farmington Estates
Board and Management Contact Information page), not sure if you
guys have voted me out behind my back or was it just a mistake
that Mike is the Treasurer now.145
About six months later, there is another email exchange where plaintiff claimed he was elected
as treasurer at the “last annual meeting,” and he asked for a copy of the meeting minutes.146
Plaintiff’s response mentions “video recordings” of several 2021 meetings, but no copies of
those videos were made part of the record. See Resp. 35, ECF 172. Thus, the undisputed
143 To the extent plaintiff seems to allege that defendant Orrantia “targeted” him by complaining
about the fence, Resp. 49 (Legal Issue Nos. 48–49), ECF 172, again there is no evidence that
Orrantia’s complaints were based on plaintiff’s race and not based on the fence’s appearance.
See Resp., Ex. 5 at 67–68, ECF 172-5 (in which Orrantia emails Hess that plaintiff’s fence “now
has plastic green chicken wire wrapped around the already hideous fence in the front yard with a
No Trespassing sign on it. There’s no way this is kosher with HOA rules[.]”); see also id. at 105
(picture of fence).
144 Resp., Ex. 5 at 161, ECF 172-6.
145 Resp., Ex. 6 at 154 (some formatting modified), ECF 172-7.
146 Id. at 158.
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evidence in the record shows that Orrantia was appointed treasurer in May of 2021. And there is
nothing, apart from plaintiff’s speculation, suggesting that the meeting minutes were falsified.
Plaintiff also makes a variety of allegations regarding the communications Hess made to
the HOA Board about what process needed to be followed to adopt an FPR, whether other board
members supported the proposal, or how the governing documents could be changed. See Resp.,
Legal Issue Nos. 186, 198–203, 208, 219, 220, ECF 172. There are numerous reasons why these
allegations are not sufficient to create a question of fact as to whether any defendant
discriminated or retaliated against plaintiff. Several of plaintiff’s factual assertions are not
supported with any citation to admissible evidence in the record. See, e.g. Resp. 99 (Legal Issue
No. 220, citing Fact 178 at Resp. 35) (citing an alleged hearsay statement by an attorney), ECF
172. Sometimes, the significance of individual events is not clear from plaintiff’s briefing or an
examination of the evidence that plaintiff cites. See Resp. 89 (Legal Issue No. 186), ECF 172.
Plaintiff fails to explain how communications to the HOA Board collectively about the process
needed to pass an FPR could be discriminatory or retaliatory against him. See id. at 93 (Legal
Issue Nos. 198 and 200). And plaintiff does not explain how the process by which TMT and the
HOA Board were working together to adopt the FPR—which, in the end, was what plaintiff
wanted—was somehow discriminatory or retaliatory simply, so it seems, because plaintiff
thought it was taking too long. For one thing, there is evidence in the record that others wanted to
implement the FPR or otherwise change the governing documents, and at least one of the
defendant board members appeared to be frustrated on plaintiff’s behalf that there seemed to be
little the HOA Board could do to more aggressively address some of his concerns about his
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neighbors.147 Eventually, the HOA Board passed a “Fine Resolution,” with both Berg and
Orrantia voting for it, at a board meeting that plaintiff did not attend.148 It is again not clear on
what basis this could be discriminatory or retaliatory.
There are many reasons why changing the governing documents of an HOA community
might take a long time. It might be that not all board members could agree.149 It might be that it
costs money.150 The community members might need to vote on it.151 There might be lawyers
involved.152 All of these factors are present, in some shape or form, in plaintiff’s briefing and in
the record. What is missing is any evidence that Hess’s communications to the Board about the
FPR or towing resolutions, and the HOA Board’s process for considering those resolutions was
tainted by some intent to discriminate or retaliate against plaintiff individually, and thus
defendants are entitled to summary judgment on plaintiff’s claims based on this theory.
J. 	“E-Blast” Issues
Plaintiff alleges that defendants did not send an “e-blast” to the community about his lost
cell phone or his run for a seat on the HOA Board. Resp., Legal Issue Nos. 183, 194, ECF 172.
Neither of these allegations is sufficient to establish discrimination, retaliation, or the creation of
147 Resp., Ex. 5 at 50, ECF 172-5 (in which Berg states that she “agre[ed] to move forward with
replacing the current CC&R’s and Bylaws with newly written ones”); id. at 57 (in which Berg
states she was “very concerned about” the situation with plaintiff and his neighbor and “[felt]
like it needs to get addressed ASAP”); id. at 66 (in which Berg writes to TMT that parking was
“out of control,” that there were “unlicensed and non-running cars in the complex and in people
driveways,” and “[p]eople are parking over the sidewalks is dangerous as well”).
148 Id. at 139.
149 See Resp., Ex. 6 at 120, ECF 172-7 (in which Orrantia summarizes why he did not support the
FPR or updating the governing documents).
150 See id. at 119 (in which plaintiff writes to Berg encouraging her to “reconsider the $250 draft”
of the FPR “that has been a hold up for over a year now”) (as written).
151 Id. at 120.
152 See id. at 116 (in which Hess writes that he “would want the HOA attorney to draft or at least
review the towing resolution to make sure it is in compliance with the governing documents”).
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hostile housing environment. First, there is no evidence that a similarly situated individual was
treated differently. In response to plaintiff’s request for his bio to be sent to all homeowners via
email, Hess explained that there would “be a time in the meeting for you and other nominees to
share a little bit about yourself before the owner’s vote” and that TMT did “not send bios
beforehand.”153 There is no evidence that defendants sent out an “e-blast” on behalf of other
persons who were running for the HOA Board but refused to do so for plaintiff. Regarding his
lost cell phone, plaintiff cites to an example where TMT sent an email to the community about a
neighbor’s lost pet in 2025.154 This is not comparable to plaintiff’s request regarding a lost phone
and thus no discriminatory or retaliatory intent can be inferred from this email. Additionally,
plaintiff does not describe how any of these events caused him any actual injury. Thus,
defendants are entitled to summary judgment on any claim based on these “e-blast” incidents.
K. 	Targeted Inspections
Plaintiff makes several allegations related to his claim that Seibel “targeted” plaintiff’s
unit for inspections. See Resp., Legal Issue Nos. 63, 222, 223, 224, ECF 172. This appears to be
related to the fact that after plaintiff moved out of the neighborhood in late 2022 and rented his
unit, he received written notices about garbage accumulating outside of the unit and also a letter
from TMT notifying him that he would receive a daily fine until the garbage situation was
resolved.155 The evidence in the record does not support any claim for discrimination, retaliation,
or the creation of a hostile housing environment arising out of this incident. There are three
emails in which Seibel reported to Hess that several units had trash cans in front of the house;
one email lists units 5387, 5381, and 5322, another email list units 17319, 17343, 17355, 5387,
153 Id. at 115.
154 See id. at 99–100.
155 See Resp., Ex. 10 at 4, 7, ECF 172-7; see also Sur-Reply, Ex. 1 at 1–4, ECF 186-2.
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5369, 5381, 5352, and 5322, and another lists units 17319, 5387, 5381, 5369, 5322.156 Plaintiff
asserts that “only Black residen[ts] ([p]laintiff and 5387) were regulars in the list.” Resp. 36,
ECF 172. First, that is not true—unit 17319 also appears twice—and furthermore, there is no
admissible evidence regarding the race of the owner of 5387. Perhaps more importantly, there is
no indication that Seibel’s inspections were “targeted” based on some discriminatory or
retaliatory intent. Rather, Seibel identified nine different residences—and again, there is no
evidence regarding the race of the homeowners—that had garbage outside. Like the “rat
problem,” the only evidence in the record is that these inspections were driven by the appearance
of trash and not by discrimination or retaliation. Finally, plaintiff has not shown that he was
actually injured by any alleged inspection. The “Violation Report” shows that TMT sent plaintiff
two fine letters in November of 2022 regarding trash issues, but in a follow-up message to
plaintiff, TMT noted that the “fines were assessed in error as the cure period [had] not passed yet
on the second notice” and that the fines would be removed from plaintiff’s account.157 For all
these reasons, defendants are entitled to summary judgment on any discrimination, retaliation, or
hostile housing environment claim based on any alleged “targeted inspection.”
L. 	“Denial” of Board Meetings
Finally, as for plaintiff’s assertion that he was “denied” a request for a Board Meeting in
2020, or that the Board did not meet in 2020, the evidence plaintiff cites does not support his
characterization of the facts, nor does it show any discrimination or retaliation. See Resp. 39–40
(Legal Issue No. 3, citing Fact 16 at Resp. 11), ECF 172; id. at 45–46 (Legal Issue No. 32, citing
Facts 16 and 17 at Resp. 11). The cited exhibit does not show, however, that plaintiff requested a
156 Resp., Ex. 5 at 142, ECF 172-5; Resp., Ex. 6 at 162, ECF 172-7.
157 Resp., Ex. 10 at 17, ECF 172-11; see also Sur-Reply, Ex. 1, ECF 186-2.
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46 – FINDINGS AND RECOMMENDATIONS
board meeting; in April of 2020, he wrote to the farmingtonestates@gmail.com that he “would
like to know when are the HOA meetings and who are the members of the HOA?”158 An
unidentified person wrote back:
The only current members of the HOA board are Sara Berg & Jen
Layton. Unfortunately we aren’t having HOA meetings due to
COVID but we may need to schedule a zoom meeting in order to
stay in compliance. We are moving to a management company
beginning May 1st, please watch for more information to come.159
Furthermore, there is nothing in this exchange that could be construed as discriminatory or
retaliatory in any way. And even assuming that, as plaintiff asserts, the HOA Board did not hold
a meeting for more than a year, plaintiff does not explain how this could establish that the HOA
Board was discriminating against him individually because the lack of meetings would impact
every member of the community in the same way, regardless of their race. Thus, defendants are
entitled to summary judgment based on this theory of allegedly “denied” board meetings.
RECOMMENDATIONS
Defendants’ Motions for Summary Judgment (ECF 152 and 153) should be granted
because plaintiff has not produced any evidence that defendants’ actions in this case were
discriminatory or retaliatory against plaintiff, or created a hostile housing environment.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if
any, are due Monday, December 01, 2025. If no objections are filed, then the Findings and
Recommendations will go under advisement on that date.
158 Resp., Ex. 6 at 5, ECF 172-7.
159 Id. at 6.
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47 – FINDINGS AND RECOMMENDATIONS
If objections are filed, then a response is due within 14 days after being served with a
copy of the objections. When the response is due or filed, whichever date is earlier, the Findings
and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal
Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED November 7, 2025.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
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