Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 1 of 177

1
MARY BERNSTEIN
2 3416 Deerwood Terrace, #113
Fremont, CA 94536
3 Email: [email protected]
(510) 938-6280
4
Plaintiff Pro Se
5
ELIZABETH TIGANO
6 2439 N. Richey Blvd.
7
Tucson, Arizona 85716
(520) 245-1030
8 Plaintiff Pro Se
9

10
IN THE UNITED STATES DISTRICT COURT

11 FOR THE NORTHERN DISTRICT OF CALIFORNIA

12
SAN FRANCISCO DIVISION
13
MARY BERNSTEIN, ELIZABETH Case No. C20-2983JSC
14 TIGANO,
FIRST AMENDED COMPLAINT DUE
15
Plaintiffs,
16
October 29 2020
vs.
17 JURY TRIAL DEMANDED
UNITED STATES OF AMERICA (UNITED
18
STATES DEPARTMENT OF HOUSING
19 AND URBAN DEVELOPMENT, STATE OF
CALIFORNIA (CALIFORNIA
20 DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING, a California state agency),
21
DEPARTMENT HOUSING AND URBAN
22 DEVELOPMENT, Phoenix, PAUL SMITH,
KEVIN KISH, RICARDO REYES, JAMES
23 CORTES, SHAYNAH WILLIAMS, BRYAN
24
GREENE, ROSALIND EVANS, MARIA
GONZALES, CHERIE DOUGLAS,
25 CLAUDIA LOPEZ, JOHN DOE 1-50;
MARY ROE 1-50; XYZ CORP 1-50; ABC
26 LLC 1-50; The names of the "John Doe 1-50"
27
"Mary Roe 1-50", "XYZ Corp, 1-50", and
"ABC LLC, 1-50", defendants being fictitious,
28 and unknown to the Plaintiff,

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 2 of 177

1
Defendants.
2
81 FR 63054 - Quid Pro Quo and Hostile Environment Harassment and
3 Liability for Discriminatory Housing Practices Under the Fair Housing
Act
4

5 https://www.govinfo.gov/app/details/FR-2016-09-14/2016-21868
PLAINTIFFS MARY BERNSTEIN AND ELIZABETH TIGANO, for their first Amended
6
Complaint1, respectfully allege as follows:
7
1. This action is brought pursuant to the Federal Tort Claims Act 31 FR 16616; 28 CFR
8
part 14;
9 2. This action is brought pursuant to the Federal Tort Claims Act 28 U.S. Code § 2674;
10 3. This action is brought pursuant to Bivens v. Six Unknown Named Agents of Federal
11 Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), request
12 declaratory and injunctive relief, damages, and attorneys' fees.

13 4. This action is brought pursuant to 81 FR 63054 - Quid Pro Quo and Hostile

14
Environment Harassment and Liability for Discriminatory Housing Practices Under
the Fair Housing Act and 24 CFR 100 DISCRIMINATORY CONDUCT UNDER
15
THE FAIR HOUSING ACT. On September 14, 2016, effective October 14, 2016
16
HUD passed a rule wherein This final rule amends HUD's fair housing regulations to
17
formalize standards for use in investigations and adjudications involving allegations of
18
harassment on the basis of race, color, religion, national origin, sex, familial status, or
19
disability. The rule specifies how HUD will evaluate complaints of quid pro quo (“this
20 for that”) harassment and hostile environment harassment under the Fair Housing Act.
21 It will also provide for uniform treatment of Fair Housing Act claims raising
22 allegations of quid pro quo and hostile environment harassment in judicial and

23 administrative forums. This rule defines “quid pro quo” and “hostile environment

24
harassment,” as prohibited under the Fair Housing Act, and provides illustrations of

25 1 Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a complaint must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will be considered “plausible on its
26
face” “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
27 In reviewing plaintiff’s complaint, the court is mindful that, “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
28

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discriminatory housing practices that constitute such harassment. In addition, this rule
1
clarifies the operation of traditional principles of direct and vicarious liability in the
2
Fair Housing Act context. Plaintiffs filed complaints with HUD in 2018 and 2019
3
alleging quid pro quo and hostile environment after this rule was passed and in effect.2
4
This is an action for declaratory judgment, permanent injunctive relief, damages, costs,
5
and attorneys’ fees, alleging a continuing pattern of racially, religious discriminatory
6 conduct in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, and the
7 Fair Housing Act of 1968, as amended, 42 U.S.C. §§ 3601-19 (“FHA”), negligence
8 and infliction of emotional distress. UNRUH CIVIL RIGHTS ACT Code SectionCiv.
9 §§51, et seq. (Public Accommodations) Gov. §12940 et seq. (Housing & employment)

10
and Agency Civ §§51: None; Gov. §12940: Dept. of Fair Employment and Housing.

11
5. Plaintiffs had to file petitions to obtain nine civil harassment orders due to the
12
outrageous harassment of disabled individuals and conduct multiple civil harassment
13
trials. Civil Harassment trials additionally scheduled for January 19, 2021 and
14
reissuance hearings for current civil restraining orders set to expire. Multiple 911
15
calls, police reports DURING HUD, CAL DFEH preliminary "case" which HUD,
16
CAL DFEH refusal to intervene for plaintiffs pleas for help for retaliation for filing
17
initial HUD complaint. HUD, CAL DFEH refusal to intervene, assist, protect
18
complainants abdicating responsibility to enforce rules 2016 Hostile
19
Environemnt/Quid Pro Quo Fair Housing Act of the Civil Rights Act. action is
20
brought pursuant to 81 FR 63054 - Quid Pro Quo and Hostile Environment
21
Harassment and Liability for Discriminatory Housing Practices Under the Fair
22
Housing ActTitle VIII of the Civil Rights Act of 1968 (Fair Housing Act). 24 CFR §
23
100.600 - Quid pro quo and hostile environment harassment The rule prohibits both
24
quid pro quo and hostile environment harassment because of a resident's protected
25
class which, under the Fair Housing Act (FHA) includes race, color, religion, sex,
26

27 2 HUD is issuing its Nuisance Guidance as the country marks the 22nd anniversary of the Violence Against Women's Act
(VAWA). Through the VAWA 2013 reauthorization, protections have been expanded to nearly all HUD programs.
28 Previously, only residents of public housing and Section 8 tenant-based and project-based programs were covered.
https://archives.hud.gov/news/2016/pr16-134.cfm

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 4 of 177

1 familial status, national origin, or disability. ... Harassment can take the form of
2 written, verbal, or other conduct. Plaintiffs traveled by East Bay Paratransit on or
3 about July 15, 2019 regarding escalating harassment at the HOA complex. Plaintiff
4 was advised by HUD to file a retaliation complaint which is why disabled Plaintiffs
5 traveled to San Francisco HUD. Immediately thereafter Plaintiffs received
6 communication from Paul Smith that the matter had been closed on a few days after
7 filing retaliation complaint July 17, 2019.
8
I. THE PARTIES
9
6. Plaintiff Mary Bernstein is a citizen of the United States and resides in Alameda
10 County, California.
7. Plaintiff Elizabeth Tigano is a citizen of the United States and resides in Pima County,
11
Arizona. Plaintiff Elizabeth Tigano suffered unbearable abuses by HOA Community
12 wherein Mary Bernstein resides in Alameda County, California as well as suffering
unbearable abuses in Mission Vista Apartments Tucson Arizona which receives
13
section 8. The Section 8 Housing Choice Voucher program is a form of government
14 rent assistance federal government.
8. Defendant United States of America (“USA”) is the governmental entity responsible
15
for the operation of the United States Department of Housing and Urban Development.
16 9. Defendant State of California (“California”) is the governmental entity responsible for
the operation of the California Department of Fair Housing.
17
10. Secretary Ben Carson Department of Housing and Urban Development is not a
18 party or Defendant to the matter as he did not actively commit or omit actions.
Subordinates in the Department of Housing and Urban Development were
19 responsible for commissions and omissions.
20 11. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
Region IX Department of Housing and Urban Development located in San Francisco,
21 California. Defendant Paul Smith was an employee of the Department of Housing and
22
Urban Development and as an employee of the United States of America, was acting
under the color of federal law.
23 12. Defendant Kevin Kish, in his official and individual capacity as Director of the
24
California Department of Fair Employment and Housing of the State of California
located in Sacramento, California. Defendant Kevin Kish was an employee of the
25 California Department of Fair Employment and Housing and as an employee of the
State of California, was acting under the color of state law.
26
13. Defendant Claudia Lopez in her official and individual capacity as Equal Opportunity
27 Specialist in the Department of Housing and Urban Development located in San
Francisco, California. Defendant Claudia Lopez was an employee of the Department
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 5 of 177

of Housing and Urban Development and as an employee of the United States of

1
America, was acting under the color of federal law.
2 14. Defendant Maria Gonzalez in her official and individual capacity as DFEH Assistant
Deputy Director of the California Department of Fair Employment and Housing of the
3
State of California located in Sacramento, California. Defendant Maria Gonzalez was
4 an employee of the California Department of Fair Employment and Housing and as an
employee of the State of California, was acting under the color of state law.
5
15. Defendant James Cortes in his official and individual capacity as Staff Services
6 Manager II California Department of Fair Employment and Housing of the State of
California located in Sacramento, California. Defendant James Cortes was an
7
employee of the California Department of Fair Employment and Housing and as an
8 employee of the State of California, was acting under the color of state law.
16. Defendant Shaynah Williams in her official and individual capacity as Housing
9
Consultant Department of Fair Employment and Housing of the State of California
10 located in Sacramento, California. Defendant Shaynah Williams was an employee of
the California Department of Fair Employment and Housing and as an employee of the
11 State of California, was acting under the color of state law.
12 17. Defendant Bryan Greene in his official and individual capacity as the General Deputy
Assistant Secretary of the Office of Fair Housing and Equal Opportunity at the U.S.
13 Department of Housing and Urban Development (HUD) located in Washington, DC.
14
Defendant Bryan Greene was an employee of the Department of Housing and Urban
Development and as an employee of the United States of America, was acting under
15 the color of federal law.
16
18. Defendant Rosalind Evans in her official and individual capacity as Government
Technical Representative HUD monitor oversight Region IX Department of Housing
17 and Urban Development located in San Francisco, California. Defendant Rosalind
Evans was an employee of the Department of Housing and Urban Development and as
18
an employee of the United States of America, was acting under the color of federal
19 law.
19. Defendant Ricardo Reyes Associate Governmental Program Analyst Department of
20
Fair Employment and Housing of the State of California located in Sacramento,
21 California. Defendant Ricardo Reyes was an employee of the California Department
of Fair Employment and Housing and as an employee of the State of California, was
22
acting under the color of state law.
23 20. Cherie Douglas in her official and individual capacity as Investigator Department of
Fair Employment and Housing of the State of California located in Sacramento,
24
California. Defendant Cherie Douglas was an employee of the California Department
25 of Fair Employment and Housing and as an employee of the State of California, was
acting under the color of state law.
26
21. California DFEH and HUD have workshare agreement. The Fair Housing Assistance
27 Program (FHAP) is a formula grant program established under the Fair Housing Act

28

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which allows for state and local agencies to assist in the enforcement of the Act. ...
1
FHAP agencies receive funding from HUD to support their efforts.3
2
II. JURISDICTION AND VENUE
3
22. The jurisdiction of this Court is predicated upon 28 USC Sections 1331s and
4 1346(b)(1), 646, Title IV, 60 Stat. 812, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C.
§ 1346) ("FTCA") is a 1946 federal statute that permits private parties to sue the
5
United States in a federal court for most torts committed by persons acting on behalf
6 of the United States. Jurisdiction is conferred on this Court by 42 U.S.C. § 3613(a)-(b)
and by 28 U.S.C. §§ 1331, 1337, 1343 and 2201. The Court also has supplemental
7
jurisdiction under 28 U.S.C. § 1367(a) over the related state law claims for breach of
8 contract, negligent infliction of emotional distress, and intentional infliction of
emotional distress.
9
23. Venue is predicated upon 28 USC Section 1391(b)(2) as a substantial part of the
10 events or omissions giving rise to the claim occurred with respect to employees of
Department of Housing and Urban Development Region IX San Francisco: California,
11 Arizona, Hawaii, Nevada.
12 3 HUD did not investigate CAL DFEH https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP#FHAP3
Responsibilities of FHAP Recipients
13 FHAP is an intergovernmental enforcement partnership between HUD and the state or local agencies. As in any partnership, both
parties must contribute to the success of the program.
14
While HUD provides significant resources to Substantially Equivalent Agencies in the form of training, technical assistance and
15 funding, the agencies must demonstrate a commitment to thorough and professional complaint processing. This includes all
phases of complaint processing, from accurate identification of issues at intake, through complete and sound investigations,
16 to following through on administrative or judicial enforcement to ensure that victims of unlawful housing discrimination
obtain full remedies and the public interest is served. The agencies should also work to develop relationships with public,
private, and non-profit organizations in a grass roots approach to making fair and open housing a reality.
17
Of equal importance, the political jurisdictions in which the agencies operate must understand their own commitment and must
18 support the existence and the work of the Substantially Equivalent Agencies. Funding provided by HUD is not intended to
cover 100 percent of the costs of the agencies’ operations, so local resources must be provided by the jurisdiction to their
19 respective agencies. Resources from the jurisdiction should include both funding and the legal resources necessary to pursue
administrative and/or judicial enforcement.
20
State or local agencies interested in participating in the FHAP should also consult the specific requirements enumerated in 24
21 C.F.R. part 115. He holds success in store for the upright, he is a shield to those whose walk is blameless, Proverbs 2:7

Funding Availability
22
Through FHAP, HUD reimburses both interim and certified substantially equivalent state and local agencies in their fair housing
enforcement efforts, consistent with congressional appropriations.
23
Complaint Processing Under a Substantially Equivalent Law
24 Generally, when HUD receives a complaint and the complaint alleges violations of a state or local fair housing law administered
by an interim certified or certified agency, it will refer the complaint to the state or local agency for investigation, conciliation
25 and enforcement activities. Having fair housing professionals based in the locality (or the same state, district, possession or
territory) where the alleged discrimination occurred benefits all parties to a housing discrimination complaint. These
26 individuals often have a greater familiarity with local housing stock and trends. In addition, the agencies’ closer proximity to
the site of the alleged discrimination may lead to greater efficiency in case processing.
27
While certification results in a shift in fair housing enforcement power from the federal government to the state or locality, the
substantive and procedural strength of the Fair Housing Act is not compromised. The FHAP is a partnership between the
28 federal government and state and local agencies to provide protection to the public against discrimination in housing.

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1 III. PROCEDURAL BACKGROUND

24. On or about June 19, 2019 Mary Bernstein served a Notice of Claim upon the
2
defendant USA sent to Department of Housing and Urban Development Region IX
3 pursuant to the provisions of the Federal Tort Claims Act. Attached as Exhibit A and
efiled 9 5 2020 Docket Entry 19.
4
25. On or about August 29, 2019 Elizabeth Tigano served a Notice of Claim upon the
5 defendant USA sent to Department of Housing and Urban Development Region IX
pursuant to the provisions of the Federal Tort Claims Act. Attached as Exhibit B
6
and efiled 9 5 2020 Docket Entry 20.
7 26. As of December 19, 2019, 6 months later after service of Mary Bernstein Notice of
Claim Defendant USA Department of Housing and Urban Development Region IX did
8
not confirm that either of these claims were received.
9 27. As of February 27, 2020, 6 months later after service of Elizabeth Tigano Notice of
Claim Defendant USA Department of Housing and Urban Development Region IX did
10
not confirm that either of these claims were received.
11 28. On March 9, 2020 Disabled Plaintiffs and sisters, Mary Bernstein and Elizabeth
Tigano frustrated with no response from Defendant USA Department of Housing and
12 Urban Development Paul Smith submitted prefiling complaint letter to Department of
13 Housing and Urban Development Headquarters in Washington DC attaching
previously served Notices of Claims. Attached as Exhibit C and efiled 9 5 2020
14 Docket Entry 21.
15
29. On April 30, 2020 Plaintiffs filed initial complaint herewith after no acknowledgement
of prefiling complaint, previous notices as to the statute of limitations not to run out.
16 30. On August 22, 2020 Plaintiff Mary Bernstein once again sent copies via email to
17
Defendant USA Paul Smith enclosing notices of claims by Plaintiff Bernstein and
Tigano to defendants seeking acknowledgement of claims. Three times now notices of
18 claims have been submitted without confirmation. In addition, videos of extreme
violent harassment of Plaintiff with walker, medical personnel. To date, September 5,
19
2020 no acknowledgement of notices of claims received/confirmed by Paul Smith
20 Defendant USA nor any acknowledgement of videos demonstrating continual,
ongoing hostile environment Plaintiffs are subjected despite 81 FR 63054 - Quid Pro
21
Quo and Hostile Environment Harassment and Liability for Discriminatory Housing
22 Practices Under the Fair Housing Act. Exhibit D and efiled as Docket Entry 22.
31. Defendant USA has not denied or otherwise acted upon the claims of Plaintiffs and
23
more than six months have elapsed since the filing of said Claims.
24 32. FOIA Request response August 8 2019 HUD Case file 09-19-4260-8. Exhibit E and
efled as Docket Entry 23. Incomplete record provided by HUD, CAL DFEH FHAP
25
many responsive documents omitted including Notice of Appeal and Appeal to CAL
26 DFEH.
33. Letter to this Court from Plaintiffs regarding status of preparation of First Amended
27
Complaint exhibiting diligence to meet deadline of October 29, 2020. Exhibit F and
28 Docket Entry 24.

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1 IV. BACKGROUND
2
34. Plaintiff Mary Bernstein, is a homeowner of a condominium unit located in an
3 enormous condominium complex known as Meadow Brook Village located in
Fremont, California. John Bernstein, III and John Bernstein IV are also owners of the
4
condominium unit. The property has been owned by the Bernstein family since July 6,
5 1988. Monthly assessments are paid monthly and have been since ownership to the
Meadow Brook Village Association – Fremont. The purpose of monthly assessments
6
is for operation, maintenance and preservation of the community property. Plaintiffs
7 have paid to date through September 2020 is $114,088.30. This is a contractual
relationship. There are 466 units in Meadow Brook. Cumulative total paid by all the
8
individual units owners since 1988 to date calculated is 466 units x 114,088.3 =
9 53,165,147.08. The figure is actually higher as the construction of the units
completion 1985/1986, when developers turned over to homeowners once 50%
10
occupied Plaintiff is unaware. Therefore, the figure would obviously be somewhat
11 higher, however, Plaintiff cannot ascertain the exact amount. Cumulative total paid in
assessments by all homeowners estimate since July 1988 based on when Plaintiff
12 Bernstein family purchased property. Exhibit G and Docket Entry 25.
13 https://www.theodysseyonline.com/shake-dust-feet
35. An “emergency assessment” was levied against owners by the longstanding HOA
14 Board members due to absolute neglect of the property, despite payments over $50
15
million dollars by homeowners to maintain the property. Exhibit H and Docket Entry
26.
16 36. An “emergency assessment” was levied against owners by the longstanding HOA
17
Board members due to absolute neglect of the property, despite payments over $50
million dollars by homeowners to maintain the property. Exhibit H and Docket
18 Entry 26.
37. Plaintiff disputed, challenged the assessment $33,000 and could not afford to pay this
19
amount particularly within 2 months notice. Plaintiff filed a real estate civil litigation
20 in Alameda County Superior Court, Case No. CV18897381 and a preliminary
injunction seeking to quash the astronomical assessments against homeowners.
21
Afterwards, Plaintiff began enduring harassment by homeowners, vandalism, stalking
22 as retaliation for filing a civil lawsuit, a constitutional right. Plaintiff and family
members to date have had to file 9 civil harassment restraining orders despite HUD
23
and DFEH claiming that there is no violation. Exhibit I and Docket Entry 27.
24 Video footage one of several videos incidents targeted harassment guests, family
members, Plaintiffs and friends here:
25
https://www.youtube.com/watch?v=ZY7j5ZNj_9s&feature=youtu.be
26 38. Whatsapp social media harassment, exploitation in addition to physical perimeter
27 harassment. Several homeowners advised me how horrifically my family and I
defamed. In addition, when I go outside with walker constant videos, photos take of
28 me uploading to social media whatsapp. Mike Durbin and John Gibson two violent

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individuals restraining orders second one continual terrorism of myself and anyone
1
associated with me. Joaquin Rivera terrorized me in house and my sister Plaintiff
2 Elizabeth Tigano on video calls and here with constant dropping of weights, furniture
night and day. Exhibit J and Docket Entry 28.
3
39. Ravi Rathanau ramp ridiculed by HOA Presidents difficulties in obtaining permission
4 for ramp. Exhibit K and Docket Entry 29.
40. Plaintiff Elizabeth Tigano is a homeowner residence located in Tucson, Arizona.
5
Anna Smith Fogltance and Elizabeth Tigano own the residence. My mother Anna
6 Smith Fogltance elderly, bedridden and on oxygen and sister Elizabeth Tigano not
only endure harassment in Arizona residence by HUD affiliated project housing across
7
the street but have been impacted by harassment here in California. I am the eldest of
8 the three children of my mother Anna Smith Fogltance although I am disabled, I
manage my disabled sister and my disabled, elderly mother’s affairs. In January 2019
9
when my mother was diagnosed with congestive heart failure in addition to her other
10 heart problems, I traveled to Arizona for a month for her rehabilitation. Many years
now and especially during COVID my sister and I have to be in communication with
11 video calls or regular calls managing my mother. The violence directed at us by
12 upstairs neighbor not only interfered with my sister’s education on the phone but also
daily management and living. The constant dropping of barbells upstairs intimidation
13 would destabilize the two of us. This interfered heavily with communication with my
14
mother, sister traumatizing them as well.
41. Elizabeth for the first time was going to college to attempt to learn the computer in
15 January 2020. I was tutoring her to facilitate a better quality of life for both my
16
mother and her paying bills online, social interaction. Elizabeth has drawn a lot of
photos depicting her mental anguish, turmoil that we both suffer as this is part of her
17 communication process to the Court.
18
V. STATEMENT OF FACTS
19
HUD QUID PRO QUO FILING DATES
20

21 Does the Civil Rights Act and its protections only apply to low income individuals
or all citizens? Does the Family Housing Act and its protections which is a
22
subchapter and follow up to the Civil Rights Act only apply to low income
23 individuals or individuals located in HUD housing? 81 FR 63054 - Quid Pro Quo
and Hostile Environment Harassment and Liability for Discriminatory Housing
24 Practices Under the Fair Housing Act does not state within this rule that this
protection ONLY applies to low income or individuals situated, residing in HUD
25
properties.
26
The Department of Housing and Urban Development (HUD) enforces the Fair
27 Housing Act, which prohibits discrimination and the intimidation of people in their
homes, apartment buildings, and condominium developments – in nearly all
28

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housing transactions, including the rental and sale of housing and the provision of
1
https://www.hud.gov/sites/documents/FHEO_BOOKLET_ENG.PDF …..
2
42. On July 26 2018 Plaintiff Mary Bernstein filed a written complaint with HUD
3
following up on Internet July 13 2018 for quid pro quo, hostile environment seeking
4 intervention and relief by this United States Agency based on 81 FR 63054 - Quid Pro
Quo and Hostile Environment Harassment and Liability for Discriminatory Housing
5 Practices Under the Fair Housing Act https://www.govinfo.gov/app/details/FR-2016-
6 09-14/2016-21868. Exhibit L and Docket Entry 30.
43. On August 22 2019 Plaintiff Elizabeth Tigano filed a complaint with HUD for quid
7 pro quo, hostile environment seeking intervention and relief by this United States
8
Agency relief based on 81 FR 63054 - Quid Pro Quo and Hostile Environment
Harassment and Liability for Discriminatory Housing Practices Under the Fair
9 Housing Act https://www.govinfo.gov/app/details/FR-2016-09-14/2016-21868.
10
Exhibit M and Docket Entry 31.
44. FHA Booklet states page i: “The Department of Housing and Urban Development
11 (HUD) enforces the Fair Housing Act, which prohibits discrimination and the
intimidation. of people in their homes, apartment buildings, and condominium
12
developments” …..Additional Protection If You Have a Disability
13 If you or someone associated with you: Have a physical or mental disability (including
hearing, mobility and visual impairments, cancer, chronic mental illness, HIV/ AIDS, or
14
mental retardation) that substantially limits one or more major life activities. Have a
15 record of such a disability or Are regarded as having such a disability … Exhibit N and
Docket Entry 32.
16

17 OTHER CASULATIES UNITED STATES DEPARTMENT DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT, UNITED STATES MARSHALS
18
OFFICE, DEPARTMENT OF JUSTICE
19
45. Jacqueline Illera contacted HUD July 9 2020 to obtain assistance for squatters in her
20
apartment that the management of her apartments allowed to continually abuse her
21 without intervening. These individuals were not on the lease, Ms. Illera contacted
HUD to intervene. HUD stated that only low income people are afforded quid pro quo
22 hostile environment and FHA protection. Jacqueline Illera suffered credit issues due
23 to individuals that occupied her housing.
46. Barbara Marenco November 25, 2018 filed HUD complaint never responded. Barbara
24 Marenco aged 61 now homeless, lost everything.
25 47. Joseph Tigano III v. United States of America 19-CV-3337(PKC). This is not the first
time the Untied States has mishandled matters involving our family, procedural
26 deviation. Writing for the Court, Judge Pooler concluded that Tigano’s nearly seven
27
years of pretrial incarceration were “egregiously oppressive.”4 Joseph Tigano III was

28 4 The pretrial detention experienced by Joseph Tigano, III appears to be the longest ever experienced by a defendant in a speedy
trial case in the Second Circuit. Tigano’s experience is an extreme outlier even among the severe examples found within

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also discarded by Defendant United States of America agency imprisoned for seven
1
years New York Plaintiffs Mary Bernstein and Elizabeth Tigano likewise
2 discriminated against, discarded by United States of America agencies.
https://www.nytimes.com/2018/01/23/nyregion/trial-delay-new-york-marijuana.html
3

10

11

12

13

14

15

16 Sixth Amendment case law. Yet no single, extraordinary factor caused the cumulative seven years of pretrial delay. Instead,
the outcome was the result of countless small choices and neglects, none of which was individually responsible for the
injustice suffered by Tigano, but which together created this extreme instance of a Sixth Amendment violation. A review of
17
the procedural history reveals that Tigano was the victim of poor trial management and general indifference at every level
toward this low-priority defendant in a straightforward case.
18
She then recounted, in exhaustive detail, and broken down over eight separate time periods from July 8, 2008 to May 3, 2015, the
19 various events that caused the long delays that ensued; and she analyzed those events in the context of four key factors that
the Supreme Court determined, in Barker v. Wingo, 407 U.S. 514 (1972), should be considered when deciding whether
20 Tigano’s Sixth Amendment rights had been violated. Those four, non-exclusive, factors are: “length of delay, the reason for
the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Judge Pooler’s analysis led to the following
21 conclusions:

Weighing the four Barker factors leads us to the inescapable conclusion that Tigano’s Sixth Amendment right to a speedy trial
22
was violated by his nearly seven years of pretrial incarceration. The reasons for delay fall largely on the district court and
government attorneys. Tigano’s repeated assertions of his right to a speedy trial place him on the extreme end of our Circuit’s
23 case law. His repeated pleas for trial also speak to the fourth and final prong, the prejudice suffered by Tigano in the form of
anxiety and the oppressiveness of his lengthy period of pretrial incarceration. The only remedy is to dismiss the case with
24 prejudice ....

25 We reiterate that the nearly seven years of pretrial detention in this case, as well as Tigano’s single-minded focus on obtaining a
speedy trial, present extreme facts in the speedy trial context. In other words, these facts represent what we expect will be a
26 ceiling, rather than a floor, for Sixth Amendment analysis. Yet the case is no less significant because of its outlier status.
Years of subtle neglects resulted in a flagrant violation of Tigano’s Sixth Amendment right to a speedy trial .... Tigano’s
years of imprisonment represent a failure of our courts to comply with their obligation to bring defendants to “a speedy and
27
public trial.” See: U.S. v. Tigano, 880 F.3d 602 (2d Cir. 2018).
28 This article originally appeared in the January 2018 issue of Punch & Jurists and is reprinted with
permission.https://www.criminallegalnews.org/news/2018/mar/16/7-years-pre-trial-incarceration-vacated-convictions/

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 12 of 177

OTHER CASUALTIES CALIFORNIA DEPARTMENT OF FAIR

1
EMPLOYMENT HOUSING, CALIFORNIA DEPARTMENT OF VETERANS
2 AFFAIRS PATTERN OF DENIAL, NEGLECT
3
Pattern of California Governance Allowance of harassment, discrimination not
4 prosecting Hate Crimes Towards Christians, Elderly, Disabled
5
Diana Martin California DFEH
6
Diana Martin had been living in the Windgate Village Apartments in Hanford for almost
7
14 years when she claims she was suddenly evicted and told it was because of her
8 religious activities -- sharing her faith and offering to pray for people -- as reasons why
she must relocate.
9
https://www.foxnews.com/us/california-woman-prayer-faith-evicted
10
Artis Brea CAL Veterans Affairs
11

12 March 1 email from an attorney with the California Department of Veterans Affairs
saying Artis Breau's Bible studies violate prior directives and would result in her
13 "involuntary discharge" from the Home in Yountville if they continued.
14
The Institute said Breau and her late husband moved to the Veterans Home about nine
years ago and that he served as a Merchant Marine in World War II, as well as overseas
15 in the 82nd Airborne Division and with the Air Force during the Korean War. Breau
16
worked as a civilian employee in the Office of the Chief of Staff of the Army at the
Pentagon during the Korean War, PJI said.
17 At the Home, Breau has volunteered with the chaplaincy program and led Bible studies,
and the Institute noted that trouble began for her with official and individual s last
18
September over a claim that "a discussion between herself and another resident about
19 heaven and hell had allegedly caused him to lose sleep and therefore was elder abuse,
emotional abuse, and otherwise illegal."
20
In mid-December, the Home notified Artis that her volunteer status was being
21 suspended indefinitely due to the ongoing investigation. Nearly three months later,
CalVet has yet to schedule an interview with Artis about the alleged complaint; yet she
22
remains barred from volunteering in any official and individual role. However, until this
23 past week she had been permitted to continue leading Bible studies for some of the
Home's most elderly and mobility-challenged residents—many of whom cannot get to
24
chapel services.
25 And then PJI said it received the March 1 email from the CalVet attorney threatening
Breau with eviction unless the Bible studies stopped
26
https://www.theblaze.com/news/vets-widow-eviction-threat-bible-studies
27
John MacArthur
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 13 of 177

Pastor John MacArthur and Grace Community Church have filed a lawsuit against
1
California Gov. Gavin Newsom, and other state and local official and individual s,
2 claiming their coronavirus pandemic regulations directed to churches are
unconstitutional.
3

4
PLAINTIFF BERNSTEIN HUD
5

6
INVESTIGATION (LACK THEREOF)
7 (INITIAL INVESTIGATION SHOVED TO
INCOMPETENT CAL DFEH,
8

10
SUBSEQUENT COMPLAINTS
11 IMMEDIATELY DISMISSED, REFUSAL)
A. Plaintiff HUD QUID Pro Quo Hostile
12

13

14 Environment Complaint 1
15
Early June 2018: Harassment Begins by HOA Community, HOA Board in Retaliation for
16 the filing of Alameda County Superior Court Case No. CIV 18897381 Mary Bernstein v.
Associa, et al. breach of fiduciary duty, infliction of emotional distress and the refusal to
17
dismiss matter under duress. This attempt at coercion threats by HOA Michael Durbin
18 that he could make life hard for me insinuation to drop the case and feeling sexualized
when cornered by him alone in the pool area constitutes quid pro quo.. This caused me
19
to endure the same helpless feelings of molestation as a child. Swimming suit, alone
20 vulnerable in a pool handicapped with a giant man coming threatening, intimidating.
Vehicle vandalized fecal matter smeared all oer beginning to endure harassment, hostile
21
environment alienation by large numbers of individuals in the HOA Community. Plaintiff
22 learnt of new rule passed hostile environment, quid pro quo relief and files HUD hostile
environment quid pro quo complaint to obtain intervention, protection relief from
23 persecution as a disabled person that filed a civil complaint, a constitutional right
24 enduring unbearable torment in housing community
Timeline of Events HUD and HUD Delegation to California DFEH
25

26
48. Plaintiff Bernstein has been disabled since childhood with ADHD. On July 13 2018
Plaintiff contacted HUD via Internet. Plaintiff followed up with July 26 letter to HUD
27 detailed quid pro quo hostile environment complaint. Exhibit E HUD file page 10
28
states that matter was closed because I did not respond – matter closed July 31,

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 14 of 177

2018 and then reopened October 10 2018 when it was referred to FHAP Cal DFEH
1
assigning Cherie Douglas.5
2
5 The MOU between the Department and DFEH expired on April 1, 2002. A 2008 Addendum between DFEH and the
3 Department was executed on July 9, 2009, and extended certification until July 9, 2014. The 2014 Addendum renews and extends
the MOU for five years from the date it is signed by all appropriate signatories. In 2019 the MOU was extended for another five
4 years.

5 A workshare agreement exists through medium of Memorandum of Understanding between California Department of Fair
Employment Housing and the U.S. Department of Housing and Urban Development since 1997 and continuing to the
6 present. The California Department of Fair Employment and Housing applies for re-certification every five years with HUD.
The Fair Housing Act contemplates that, across the country, state and local governments will enact and enforce their own
statutes and ordinances that are substantially equivalent to the Fair Housing Act. HUD provides FHAP funding annually on a
7
noncompetitive basis to state and local agencies that administer fair housing laws that provide rights and remedies that are
substantially equivalent to those provided by the Fair Housing Act.
8
Substantial Equivalence Certification
9 A state or local agency may be certified as substantially equivalent after it applies for certification and HUD determines that the
agency administers a law that provides substantive rights, procedures, remedies and judicial review provisions that are
10 substantially equivalent to the Fair Housing Act. Typically, once certified, HUD will refer complaints of housing
discrimination that it receives to the state or local agency for investigation.
11
There are two phases in determining whether an agency is substantially equivalent. In the first phase, the Assistant Secretary for
Fair Housing and Equal Opportunity determines whether, "on its face," the state or local law provides rights, procedures,
12
remedies and judicial review provisions that are substantially equivalent to the Fair Housing Act. If so, HUD offers the
agency interim certification for up to three years. During the three years of interim certification, the agency builds its capacity
13 to operate as a fully certified substantially equivalent agency.

14 In the second phase, the Assistant Secretary for Fair Housing and Equal Opportunity determines whether, "in operation," the state
or local law provides rights, procedures, remedies and the availability of judicial review that are substantially equivalent to
15 the Fair Housing Act.

16 To obtain certification, a state or local agency must have a law that, at a minimum, prohibits discrimination against the same
protected classes as the Fair Housing Act (race, color, national origin, religion, sex, disability and familial status). A
substantially equivalent agency’s law may include additional protected classes.
17
An affirmative conclusion that the state or local law is substantially equivalent both on its face and in operation will result in
18 HUD offering the agency certification. Certification is for a term of five years.

19 During the five years of certification, the agency's ability to maintain certification will be assessed. After the five years of
certification, if the Assistant Secretary determines that the agency still qualifies for certification, HUD will renew the
20 agency's certification for another five years.

21 Substantial equivalence certification presents numerous advantages to state and local governments, parties to housing
discrimination complaints, and the general public. These advantages include funding and local complaint processing under a
substantially equivalent law.
22
Responsibilities of FHAP Recipients
23 FHAP is an intergovernmental enforcement partnership between HUD and the state or local agencies. As in any partnership, both
parties must contribute to the success of the program.
24
While HUD provides significant resources to Substantially Equivalent Agencies in the form of training, technical assistance and
25 funding, the agencies must demonstrate a commitment to thorough and professional complaint processing. This includes all
phases of complaint processing, from accurate identification of issues at intake, through complete and sound investigations,
26 to following through on administrative or judicial enforcement to ensure that victims of unlawful housing discrimination
obtain full remedies and the public interest is served. The agencies should also work to develop relationships with public,
private, and non-profit organizations in a grass roots approach to making fair and open housing a reality.
27
Of equal importance, the political jurisdictions in which the agencies operate must understand their own commitment and must
28 support the existence and the work of the Substantially Equivalent Agencies. Funding provided by HUD is not intended to
cover 100 percent of the costs of the agencies’ operations, so local resources must be provided by the jurisdiction to their

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 15 of 177

49. An email was received August 24 2018 by Investigator Claudia Lopez. Plaintiff
1
Bernstein disabled responded to email and stated that I would call on Monday August
2 27 2018. Claudia Lopez responded on Monday August 27 2018 that she was going on
leave and requested information by email.
3
50. Plaintiff Bernstein responded that is disabled but would compile the information as
4 quickly as possible. Plaintiff explained in email that a comprehensive complaint had
been sent to her office and Ben Carson office detailing quid pro quo hostile
5
environment. Disabled Plaintiff then addressed and provided pushing self with
6 completing information next day due to urgency August 28 2018. Exhibit N and
Docket Entry 33.
7
51. Plaintiff Bernstein emails to Claudia Lopez August 28 2018 TRO explaining
8 becoming very frightening, documentation of other disabled people harassed in the
past, gay couple and stating that I would be sending a further letter to Ben Carson.
9
52. Plaintiff Bernstein follow up letter concerning Quid Pro Quo Complaint and Hostile
10 Environment September 19 2018. Exhibit O and Docket Entry 34.
53. Plaintiff Bernstein sent email to Claudia Lopez September 19 2018 follow up letter,
11 documentation complaint, HUD complaint Oswald Paul San Miguel years ago and
12 information deceased abused disabled man harassment gay couple Oswald Paul San
Miguel.
13 54. Plaintiff Bernstein received an email dated October 24 2018 initial email from CAL
14
DFEH Investigator Cherie Douglas to obtain dates for telephonic interview. Plaintiff
responded agreeing to interview November 6 2018. Two of cats were poisoned by
15 neighbor during this harassment which was related during the November 9 2018
16
interview.
55. Cherie Douglas email November 5 2018 stating that due to a conflict in scheduling the
17 November 6 2018 interview would need to be rescheduled to November 9 2018.
56. Plaintiff Bernstein outline due to communication disabilities for CAL DFEH
18
telephonic interview with Investigator Cherie Douglas November 9 2018 so that
19
respective agencies. Resources from the jurisdiction should include both funding and the legal resources necessary to pursue
20 administrative and/or judicial enforcement.

21 State or local agencies interested in participating in the FHAP should also consult the specific requirements enumerated in 24
C.F.R. part 115.
22
Funding Availability
Through FHAP, HUD reimburses both interim and certified substantially equivalent state and local agencies in their fair housing
23 enforcement efforts, consistent with congressional appropriations.

24 Complaint Processing Under a Substantially Equivalent Law

Generally, when HUD receives a complaint and the complaint alleges violations of a state or local fair housing law administered
25 by an interim certified or certified agency, it will refer the complaint to the state or local agency for investigation, conciliation
and enforcement activities. Having fair housing professionals based in the locality (or the same state, district, possession or
26 territory) where the alleged discrimination occurred benefits all parties to a housing discrimination complaint. These
individuals often have a greater familiarity with local housing stock and trends. In addition, the agencies’ closer proximity to
the site of the alleged discrimination may lead to greater efficiency in case processing.
27
While certification results in a shift in fair housing enforcement power from the federal government to the state or locality, the
28 substantive and procedural strength of the Fair Housing Act is not compromised. The FHAP is a partnership between the
federal government and state and local agencies to provide protection to the public against discrimination in housing.

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 16 of 177

disabled Plaintiff would not forget what to say during interview due to communication
1
disabilities. This was submitted to Cherie Douglas for quid pro quo hostile
2 environment telephonic interview on November 3 2018. Multiple emails provided to
Investigator Douglas including declarations prior to November 9 beginning October
3
24, 2018. Exhibit P and Docket Entry 35.
4 Transition to Present day momentarily - Plaintiff Bernstein
5 has ADHD, Bipolar, Complex PTSD and will sometimes
6 deviate from chronological order of events. Paragraph 55
7
chronicles the continual, defiance, indifference, indignation of
HUD SF to date.
8
57. Plaintiff Mary Bernstein and Jacqueline Illera telephone call from Defendant Paul
9 Smith September 28 2020 8:58 am home telephone number 510 936 6471. Defendant
Paul Smith telephoning from the comfort of his own home presumably displayed
10
further indifference, arrogance to women on the telephone. “If you want to spend your
11 money on litigation that is fine; I have never lost a case,” Defendant Paul Smith
exclaimed to us. Defendant Paul Smith also advised me that I have no understanding
12
of the law and could not read further insulting disabled Plaintiff Mary Bernstein.
13 Defendant Paul Smith advised us we could have no help from federal program because
we were not protected classes. I have been targeted, hostile environment and my sister
14
Elizabeth due to our disabilities; Jacqueline Illera has been targeted due to her race
15 called a Philipino monkey. Jacqueline Ilera will be filing a notice of claim.
Defendant Paul Smith was responding to voice mail that was left for him last
16 Thursday. Elizabeth Tigano, Mary Bernstein and Jacqueline Illera telephoned HUD
17 leaving several messages as the HUD message prompt provides only 30 seconds to
leave name, number forcing the public to continually keep calling back or give up.
18 The telephone message stated that a HUD complaint could be filed on the phone
19
which it cannot. The HUD personnel do not respond to email complaints. This is an
attempt to deny access to federal protection FHA to the public which desperately
20 needs assistance. Paul Smith does not understand the hostile environment rule, quid
21
pro quo rule and displays his ignorance. Defendant Paul Smith misrepresents that he
has never lost any HUD matters. To the contrary, the Court in 2000 upheld case
22 against HUD official and individual Defendant Paul Smith6 and others Exhibit Q
23 6 A federal appeals court handed another victory yesterday to three Berkeley residents who sued federal housing official and
individual s for investigating why the neighbors spoke out against a low-income housing project.
24
The 9th U.S. Circuit Court of Appeals upheld a 1998 decision by U.S. District Judge Marilyn Hall Patel that rebuked the
25 Department of Housing and Urban Development for infringing on the First Amendment rights of Joseph Deringer, his wife,
Alexandra White, and neighbor Richard Graham during an eight-month probe.
26
"There was simply no justification for the official and individual s to take the extraordinarily intrusive and chilling measure they
did during the subsequent eight-month investigation," appeals court Judge Stephen Reinhardt wrote in yesterday's ruling.
27
The appeals court agreed with Patel that four HUD official and individual s, LaVera Gillespie, Paul Smith, Russell Bruce Lee --
28 who has since died -- and Robert Zurowski are liable as individuals because no reasonable person would have thought the
probe was lawful.

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 17 of 177

https://www.sfgate.com/bayarea/article/Berkeley-Neighbors-Suit-Against-HUD-Staff-
1
Upheld-2736635.php. In fact, according to the State Bar of California Paul Smith is
2 not even eligible to practice law in the State of California, has had inactive status as a
bar member since 1988 Exhibit R. Paul Smith was admitted to the California State
3
Bar in 1979 and then retired bar status in 1988 presumably when he began working for
4 HUD. Exhibit S Paul Smith making determination if Plaintiff Bernstein is to receive
assistance from HUD based on WHAT religion not based on religion exhibiting
5
selective representation, discrimination, what religions are authorized to utilize
6 incense. Exhibit T email to Paul Smith submitting the notice of claims that had
previously been mailed to Paul Smith not acknowledged and continual refusal to
7
acknowledge, indifference to Plaintiffs. Exhibit U ECF Attorney report demonstrates
8 no cases Paul Smith. This appears to be a misrepresentation that Paul Smith has never
lost a case. It appears that in 2000 Paul Smith was working for HUD in investigator
9
capacity not as an attorney and presently Paul Smith is working as a Director for HUD
10 San Francisco Region IX. Therefore, he has not functioned it appears as an attorney
since 1988. The conclusion reached is that if he did act as an attorney it would have
11 only been for 9 years. Therefore how could he have had opportunity not to lose any
12 cases for HUD? He was not working as an attorney to be afforded the opportunity to
win or lose cases. This statement to Mary Bernstein and Jacqueline Ilera on telephone
13 call September 28 2020 was made in an effort to intimidate, neutralize and
14
discriminate that women were not entitled to relief from HUD for abuses hostile
environment, quid pro quo despite being members of a protected class.
15
Return to chronology Paragraph 56 from interjection,
16 digression present day Paragraph 55.
17 58. The interview was conducted by Cherie Douglas on November 9 2018. Cherie
Douglas corrected me on the phone stating I misprounced her name it was “cherie’.”
18 This investigator seemed more concerned with her narcisstic name then my
19
problematic situation and my mental anguish Cherie Douglas inquired if I would be
open to mediation with the Respondents. I said absolutely. Shortly thereafter the
20 matter was scheduled for mediation on January 24 2019. I was then requested to
21
prepare materials in connection with the mediation by the Mediator in a very short
turnaround time. January 22 2019 I receive after the rush that the Mediator had me do
22 and respondents prepare Mediation Brief outlining all cases, Respondents declined
after all this mental stress preparing the brief for all four cases. The additional work,
23
Mediation Brief, Mediation was scheduled in Bad Faith, Respondents obviously
24 merely only wanted to learn of my strategies for all cases and evidence on hand.
Exhibits V Bernstein Mediation Statement & W Emails from Elise Chu
25
cancelation. Respondents vehemently denied canceling stating that the Mediator
26 canceled. One of the parties was lying but Plaintiff not certain if it was Respondents
or the Mediator. Cherie Douglas DFEH the matter reverts back to investigation.
27
Despite the discrepancy, this evidence from Elise Chu I, plaintiff Bernstein presented,
28 investigator Cherie Douglas believes everything stated by Respondent counsel as

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 18 of 177

gospel. This bias, prejudice, to be demonstrated during the entire investigation

1
following by Cherie Douglas, DFEH ignoring my evidence.
2

3 HUD DFEH Case returns to Cherie Douglas for Investigation

4
as Mediation did not occur Preparation of Initial
Comprehensive Report with Mountains of Evidence Which
5
Clearly this Investigator Resented
6

7 59. Cherie Douglas requests me to send her evidence, report for investigation.
8 I send her extensive evidence, comprehensive report. I also send
Mediation Statement for reference. I request to meet with Cherie Douglas
9
to come here she refuses. I provide declarations witnesses. I request to
10 meet with Cherie Douglas she refuses. To date, witnesses stated that they
11 were never contacted.
12
INVESTIGATOR CHERIE DOUGLAS SIDES WITH
13
COUNSEL FOR RESPONDENT IN SYNOPSIS NOT
14
REFERENCING ANY OF EVIDENCE PROVIDED BY
15 PLAINTIFF BERNSTEIN, NOR ACKNOWLEDGING AS IF
16 SHE HAD NEVER READ ANY OF IT AT THE VERY LEAST,
17 NO COMPARISON AND CONTRAST, NO ANALYSIS – NO
18
REFERENCE TO QUID PRO QUO HOSTILE
ENVIRONMENT – ONLY REFERENCE TO REASONABLE
19
ACCOMMODATIONS – THIS WAS A COMPLAINT FOR
20
HOSTILE ENVIRONMENT QUID PRO QUO STATED
21
CONSISTENTLY 81 FR 63054 - Quid Pro Quo and Hostile
22 Environment Harassment WHICH CHERIE DOUGLAS
23 REFUSED TO APPLY LAW RULE
24
60. Cherie Douglas sends me erroneous response she prepared summarizing
25
Respondent’s position not mentioning my evidence. Directs me to
26 prepare a rebuttal.
27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 19 of 177

1 PLAINITFF BERNSTEIN PREPARES REBUTTAL TO

2
RESPONDENTS’ RESPONSE TO COMPLAINT AND
ADDENDUM TO REBUTTAL – REITERATING TO THE
3
INVESTIGATOR THAT THIS IS A COMPLAINT FOR
4
HOSTILE ENVIRONMENT QUID PRO QUO STATED
5
CONSISTENTLY 81 FR 63054 - Quid Pro Quo and Hostile
6 Environment Harassment WHICH CHERIE DOUGLAS
7 REFUSED TO APPLY LAW RULE
8

10

11

12

13

14

15

16

17

18

19

20

21 SECOND, THIRD VIOLATIONS DURING

22 CURRENT HUD CAL DFEH INVESTIGATION
23 REPORTED BY PLAINTIFF BERNSTEIN,
24 IGNORED FAILED TO INTERVENE
25

26
61. On April 28 2019 I am injured by difficulty getting into pool, strain
muscles ribs falling on step due to refusal of HOA to open up disability
27
access pool. I lose my footing on step, lifting up walker holding heavy
28

- 19 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 20 of 177

1
pool gate open. I go to emergency room I prepare extensive rebuttal and
then addendum to rebuttal.7
2
Former HOA Susan Condio Hernandez Board President Assaults me on
3 Sidewalk with Walker May 16 2019 aggressively charging towards me
4 with something in her hands – reach out to HUD that advises me I need
to contact CAL DFEH to amend complaint because matter is still open.
5
If the matter is not open, I am to file a new complaint with HUD.
6

7
I file second HUD violation Meadowbrook April 28 2019 concerning intensifying escalating harassment
8 in and outside my condominium by tenants, homeowners. I have reached out to California DFEH
7 [email protected]
9
Engaging in bilateral stimulation is one of the main reasons you are feeling calmer. Bilateral stimulation can be done in a variety
10 of ways, such as; jogging, swimming, drumming, bilateral tapping, listening to bilateral tones or bilateral music.

Bilateral stimulation is used in conjunction with EMDR therapy, it also can serve as a stand alone resource to help reduce stress
11
and anxiety as well as improve our overall level of functioning.
12 M. Helen Bernstein MS APC CLA
Sat 5/11/2019 8:56 AM
13 Our names have never even been listed on the Directory gate to buzz in deliveries, friends since we bought and moved in in
February 2006. We had made repeated requests but tenancy issues never dealt with at all. We are skeptical if our names will
14 finally be on directory and able to buzz people since this was never done for us in all these years here. Nevertheless I conveyed
this to the dispatch at East Bay Paratransit for Monday pick up with the lift walker and brace for me so they can come in curbside
15 for me for physical therapy.

May 9 2019 requested codes for East Bay Paratransit to access

16
We have not been listed on the access code directory since we moved in in 2006 despite repeated requests – ignoring, refusal to
add – not been able to buzz in guests, deliveries and now east bay paratransit
17 A new gate system is to be launched after a delay of four months allegedly Monday May 13 I am to be able to buzz in the east
bay partransit
18
Amended Summons – identifying and adding Susan Condio Hernandez and Charlie West individually breach of fiduciary duty,
19 emotional distress. The entire old HOA Board perhaps? Adding Mike Durbin individually and new HOA Board members
perhaps for emotional distress, breach of fiduciary duties as well not increasing regular assessments, levying outrageous
20 Many people have moved
120 days extended litigation stay health not where it should be not certain if a set back will occur with pool heat turned off and
cold weather fall and winter
21
Amended Complaint and Amended Summons adding Susan Condio Hernnandez and Charlie West
22
On April 29 2019 the Pool service came to fix the 3575 Buttonwood sauna motor. I was excited as they stated that that would be
23 heated and ready at 1 pm. I was elated believing that the disabled friendly pool and sauna would be available. At 12:30 pm I
came and utilized thrilled to not have to lift walker up the step. I had physical therapy appointment on April 30. On May 1 I
24 came to 3575 Buttonwood sauna pool only to find that spitefully the heat was turned off at the direction of the HOA Board. This
is direct evidence of retaliatory and abusive behavior towards me. The mental anguish and games. The display of power trips on
25 me. Even though we pay constantly assessments they refuse to address any tenancy issues. They are unable to separate medical
conditions, tenancy issues from the litigations resulting in more violations. The hostile environment, equivalent of workplace
mobbing in this entire community towards me interfering with my exercise and rehabilitation. This is causing intense depression
26
and making me feel reclusive. The dirty looks given to my shalom plaque on my patio makes me feel violated as well as when I
take the paratransit being gawked at with my walker and leg brace. I have been drawn and quartered simply for being disabled
27 and needing to use what I pay for here. Many people driven away Jackie Sorinsen, Barbara Marenco filed a HUD Complaint as
well for abuses.
28

- 20 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 21 of 177

investigator Cherie Douglas regarding these frightening events that refuses to acknowledge causing me
1
to reach out to HUD for my family and my safety.
2 Officer Robert smith Fremont police department neighbors upstairs constantly body slamming ceiling
3
slamming furniture for prolonged period of tiem when aromatherapy mediation candles and incense.
This triggers ptsd. I have to use this at times when on counseling appointments telephonically
4 discussing traumas as well as when writing legal matters and to calm down when anxious. This is my
home and I do not need to be traumatized constantly inside and outside my walls.
5
The 15 million dollar expense is only the first phase of several and I have a right to see the records
6 regarding all these missing reserve funds, how we got here. We cannot afford constantly huge special
assessments levied every few years. I am on social security disablilty and have aq right to litigation and
7
examine.
8

10

11

12

13

14

15

16

17

18

19

20

21 I reach out to HUD May 8 2019. Email inquring if they have received complaints. See email
22

23

24

25

26

27

28

- 21 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 22 of 177

10

11

12

13
Susan Condio Hernandez escalated continual violations
14
On May 16 2019 I filed THIRD VIOLATIONS
15
May 16 2019 While waling early 6:59 am internal sidewalk with my walker in pain from osteoarhtris
16 and Costochondritis at a slow pace, on the sidewalk former HOA Board Pressident Susan Condio
Hernandez with her bag of trash charging at me walking right up to me. I did not defer move out of the
17 way going down on the curb for fear of falling with walker. Susan glared at me just as she has all these
18
years harassing, attempting to intimidate disabled, bully posturing. She went around the other way on
way back avoiding me but then the same stance as I was progressing on path in front of her door
19 smirking at walker, smirking at me refusing to step aside challenging me. This is an example of how this
woman ruled the entire time on the HOA Board to me. The woman has a video camera on door and on
20 patio surveying people. There may be a video record of the encounter as the woman is a voyeur and
enjoys such activities…
21
I have suspended my physical therapy for a time due to the increased harassment when I go out to
22 appointments with East Bay Paratransit. I have started to only go out extremely early so that I do not
have to encounter interact with anyone. However, even as demonstrated above when I go out in the
23 early morning it is harassment. This is affecting my recovery physical therapy rehabilitation and
affecting escalating the PTSD due to continual abuses. This is affecting me as causing me to withdraw
24
and become reclusive from all.
25

26
On May 17 2019 In email to Kevin Kish and Cherie Douglas I wrote “Please amend my complaint
27
to incorporate these new charges pursuant to Claudia Lopez instruction to me. I will send the new charges in new
28

- 22 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 23 of 177

1 complaint I submitted in the next email. These people do not believe HUD or DFEH will do anything and the harassment is

2 increasing constantly.”

5 On May 17 2019 I also write emails to Rosalind HUD copies to Bryan Greene at HUD about

6 the lack of response CAL DFEH. “I am very upset Rosalind. I am told in email to contact you
7 regarding concerns. I have been experiencing escalating hostility which frightens me here. I
8 have sent volumes of evidence to investigator cherie douglas and her supervisor kevin kish.
9 They have done nothing to stop the harassment even during the investigation I understand
10 they are may be still working on it - they could contact respondents and advise them t o stop
11 harassment d uring this investigation.
12
Yesterday with my walker out walking very frightening. I sent and copied you on emails you
13 will s ee it. I am worried I am going to be stabbed or injured. This criminal harassme nt is
almost more than i can bear. I am fearful to go outside alm ost anymore. the court gave m e
14
a stay fo rmy civil li tiga tion because o f my d eclining health. Please do som ething to help
15 me. “

16
“Further this HOA Board consists primarily now of eastern indian males
17
under an individual with pattern of harassing behavior, criminal
18
behavior acting as HOA President. Originally this individual came in to
19 the HOA Board as treasurer and then HOA President directing this
20 hostility towards Plaintiff as well as engaging in hostility, violence,
21 discrimination towards Plaintiff. Two restraining orders have been
22
filed. HOA Board is aware of this man’s criminality, harassment and
continues to retain Mike Durbin as opposed to removing or causing him
23
to resign. I am not certain if they are even naturalized citizens o r on
24
HB1 visas. In India, disabled people a re treated horribly nad i feel t
25 h at they are transferring this to me here despite the fact that we
26 have laws to protect the disabled. The demographics in here are
27 majority of indian people foreigners now as most of the americans hae
28
v seem to have moved away. I do not feel like I am in my o wn cou

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 24 of 177

1 ntry and am so depressed. I feel so oppressed. Please

2
help do something. This is no quality o f life for a disabled pe rson to
b e enduring. I cannot get better from PTSD or osteoarthritis when i
3
am constantly being abused. “ This is a feeling of restriction,
4
confinement, imprisonment as I am not allowed to freely move in
5 complex which I continue to pay for privileges. This is a feeling of
6 intense insecurity.
7

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 25 of 177

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25

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27 On May 17 2019 Claudia Lopez writes to me that she is forwarding to Rosalind

28 Evans. I think finally that some help is coming to my aid.

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 26 of 177

1 On May 21 2019 Rosalind Evans tells me that the complaint was referred to CAL
2 DFEH and she can do nothing.
3

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 27 of 177

4
On May 21 2019 I am then told to contact Maria Gonzales. Hi Ms. Bernstein,
5
“Please contact Maria Gonzales, DFEH’s Assistant Deputy Director, at 916.585.7570 or by
6 email [email protected] I will also contact Ms. Gonzales and request that someone
7
from that office contact you asap.

8 Regards,
9 Rosalind”
10
May 21- 23 2019 I leave several voice mail messages Maria Gonzales, Kevin Kish May 21 -
11 23 2019. Maria advises that it is being looked into.
12
On May 25 2019 out of desperation I write to Claudia with carbon copy Paul
13
Smith and Henedina Patena and forward to Bryan Greene HUD: “I raised the
14
new claims issue Claudia Lopez and Rosalind Evans as instructed by you below in
15
email May 16 2019 with the investigator Cherie Douglas at DFEH while my case
16
was open. I could not leave messsage on voice mail because her voice mail full.
17
I have become very frightened and requested her to acknowledge my claims
18
regarding the assault from the HOA former President coming right up to be nearly
19
pushing me off the curb while having chest pains with my walker and leg brace
20
which is escalating. This is in addition to other recent within last two months
21
intense harassment paratransit ridicule among other hostile actions in retaliation. I
22
emailed and requested the complaint be amended. The investigator
23
would not contact me and on May 24 2019 simply sent me a letter yesterday that
24
she was closing my case. The letter does not reference any of the issues I
25
brought up in rebuttal, or assault by HOA former Preside nt. Thiis looks to be
26
hastily closed to get rid of me. I am so upset at this misconduct. I was just in
27
the emergency for chest pains last Sunday. This case was Hostile Environment
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 28 of 177

1 Quid Pro Quo. Please help me I do not know what to do about the indifference
2 with t his investigator to me. Please please help me.”
3

4 Your proper remedy is to raise these issues with the Investigator in that previous
5 complaint and/or his/her Supervisor. If the investigation is still open, you should
request that the complaint be amended or the investigation reviewed. If the
6
investigation is closed, you need to ask that the investigation be reviewed. Please
7 contact the following agency regarding the investigation of your
8
complaint No. 562804 / 09-19-4260-8 - Bernstein, Mary B. and John III v.
Meadow Brook Village HOA, California Dept.-Fair Empl/Hsg - 0600 (FHAP
9 Case #201810-03850210):
10

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17

18

19

20

21

22

23
On July 6 2019 I write to James Cortes and DFEH Appeals
24
I WRITE: :I followed the protocol from HUD Chief Intake Paul Smith
25
forwarded to me by Claudia Lopez which directed me to request that the
26
complaint be amended. The investigation was open when I did just this
27
contacting Cherie Douglas regarding new violations. Cherie Douglas promptly
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 29 of 177

1 closed while investigation open disregarding the request and did not even
2 acknowledge this email protocol by HUD.”
3

5 I also learn from some HOA Community Members that there is a defamatory
6 Whatsapp sociasl media strategizing social platform libel defamation slander hate
7 speech hate crimes circulating discussing me, targeting me. People are texting,
8 also photographing me with my walker which is destabilizing to me the feelings of
9 exploitation as a disabled woman. I am not a public figure and should not be
10 subjected to this unwanted attention.
11

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 30 of 177

10

11

12

13 CAL DFEH SPITEFULLY CLOSES CASE DUE TO REQUEST TO

14 AMEND COMPLAINT AS NEW ABUSES OCCURRING, HUD SF
15
DIRECTED ME TO CONTACT INVESTIGATOR TO AMEND
COMPLAINT IF MATTER STILL OPEN
16

17 62. I contact Cherie Douglas to amend complaint regarding assault from

18
former HOA Board member. No witnesses of mine contacted, no
inspections to property which I requested multiple times. No responses
19
from Investigator Cherie Douglas to multiple frantic emails authored by
20 Plaintiff Bernstein to Cherie Douglas to intervene, advise the HOA
21 Community Board to de-escalate during HUD, CAL DFEH investigation.
Cherie Douglas immediately closes the file. Plaintiff Bernstein contacting
22
and meeting with politician staff, Senators Bob Wieckowski. Travel to
23 Kamala Harris, Senator Feinstein offices San Francisco. Communications
24 with Eric Swalwell office. Politicians staff advised to obtain restraining
orders as HUD, CAL DFEH was doing nothing to intervene prevent
25
violence for the filing of HUD, CAL DFEH quid pro quo hostile
26 environment retaliatory complaints.8
27

28
8 https://communityassociations.net/category/violence-in-associations/

- 30 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 31 of 177

10

11

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19

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22

23

24 63. Notice of Appeal filed June 17 2019 Cal DFEH letter, powerpoint and
25
video due to request to file amended complaint concerning outrageous
conduct by Respondents during HUD CAL DFEH. Plaintiff Bernstein
26
sent several emails to Bryan Greene HUD ignored no response.
27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 32 of 177

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 34 of 177

10

11

12

13 64. On birthday July 8 2019 I traveled in car walking with pain to Sacramento CAL
DFEH met with James Cortes who advised me that I could filed a retaliatory
14
complaint. I proceed to take information and file complaint. In November 2019, I
15 receive notification that they cannot help me. This is in response to increasing
harassment by former HOA President female Susan Condio assault and intense
16
harassment upstairs above my unit by violent individuals. I had reached out numerous
17 times as indicated by emails to CAL DFEH which refused to intervene, address,
investigate, come out to the premises direct the HOA, property manager to direct these
18 abuses to cease and desist. I then would have to file restraining order aftert restraining
19 order DURING CAL DFEH HUD INVESTIGATION as this empowered the abusers
to retaliate even more jubiliation outside my condo at dismissal of CAL DFEH by
20 mob.
21

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 35 of 177

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 38 of 177

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24

25 B. Plaintiff Bernstein Second HUD

26
Quid Pro Quo Hostile Environment
Complaint
27

28

- 38 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 39 of 177

2
TRAVEL TO SAN FRANCISCO PARATRANSIT FEARFUL
FOR LIFE IN HOA COMMUNITY ESCALATING ABUSES
3
TO FILE NEW HUD COMPLAINT AS CAL DFEH
4
INVESTIGATION CLOSED
5

6 65. I travel to San Francisco by East Bay Paratransit desperate for help from
7
escalating violence in HOA Community towards me July 15, 2019 file a
new complaint in person.
8

9 HUD PAUL SMITH IMMEDIATELY DISMISSES NEW

10 COMPLAINT FILED IN PERSON July 15 2019 FOR NEW
11 VIOLENCE ENDURING IN HOA COMMUNITY BY
12 FEMALE FORMER HOA BOARD PRESIDENT THAT WAS
13 ON HOA BOARD FOR 14 YEARS
14
66. Paul Smith dismisses this Complaint immediately July 17 2019 despite
15
Plaintiff Bernstein desperation regarding protected class abuse hostile
16 environment quid pro quo.
17

18
DUE TO HUD, CAL DFEH REFUSAL TO INTERVENE,
PROTECT, FAILURE TO ASSIST AFTER MULTIPLE
19
PLEAS FOR HELP EVEN FOR A SIMPLE LETTER FROM
20
HUD CAL DFEH TO DIRECT THE RESPONDENTS
21 DURING HOUSING INVESTIGATION TO REFRAIN AND
22 CAUSE HOA COMMUNITY TO REFRAIN FROM
23 HARASSMENT OF PLAINTIFF , PLAINTIFF IS FORCED
24
TO FILE MULTIPLE RESTRAINING ORDERS IN
SEPTEMBER, OCTOBER 2019 WHICH PROVES TO BE
25
EXHAUSTING. CURRENT HOA PRESIDENT THE
26
RINGLEADER OF THE HARASSMENT MIKE DURBIN.
27
MIKE DURBIN HAS CRIMINAL HISTORY AND
28 RESTRAINING ORDERS CONCERNING GUNS PULLED

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 40 of 177

1 ON WOMEN AND CHILDREN, FALSE IMPRISONMENT,

2
DRUGS.
3

4
Civil Harassment 2019 Petitions
5
RG19034687 BERNSTEIN MARY 9/11/2019
Bernstein VS Durbin
6
CH-100 Request for Orders to Stop Harassment (Civil
7
Harassment)
8

9 RG19035648 BERNSTEIN MARY 9/19/2019

10 Bernstein VS Gibson
11
CH-100 Request for Orders to Stop Harassment (Civil
12
Harassment)
13
RG19036528 BERNSTEIN MARY 9/25/2019
14
Bernstein VS Hernandez
15 CH-100 Request for Orders to Stop Harassment (Civil
16 Harassment)
17

18
RG19037125 BERNSTEIN MARY 9/30/2019
Bernstein VS Simonson
19
CH-100 Request for Orders to Stop Harassment (Civil
20
Harassment)
21

22 On October 2, 2019 immediately after service of process

23 Alameda County Sheriff John Gibson violated while Plaintiff
24 loading car with exhibits for Michael Durbin civil harassment
25
trial. Plaintiff telephoned Fremont Police on 10 4 2019
reporting the violated in effect restraining order on 10 2 2019
26
police report # P19119610Plaintiff would later learn that both
27
parties were communicating, HOA attorneys insisting on
28
combining the civil harassment trials.

- 40 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 41 of 177

1
In November 2019 after multiple continuances and exhaustion, Plaintiff
2
dismisses two of the civil harassment matters and pursues only the two most
3 violent and aggressive Mike Durbin, John Gibson both gun owners.
4
The dismissed civil harassment matters are:
5

6 RG19036528 BERNSTEIN MARY 9/25/2019

7 Bernstein VS Hernandez
8 CH-100 Request for Orders to Stop Harassment (Civil
9 Harassment)
10
RG19037125 BERNSTEIN MARY 9/30/2019
11
Bernstein VS Simonson
12
CH-100 Request for Orders to Stop Harassment (Civil
13 Harassment)
14

15
HOA Board attorneys representing now in private civil matters for
harassment against Plaintiff. HOA attorneys McNamara attorneys
16
represented John Gibson Mona Oliver in DUI. How are these matters HOA
17 related individual criminal matters? Is this where our assessment reserve
18
funds go to individual matters? Mike Durbin possesses four guns; John
Gibson one gun. Violent, unstable individuals Mike Durbin criminal
19
background; John Gibson mentally illness background 5150.
20

21 Plaintiff begs the Court to schedule on separate days the two civil
harassment trials as Plaintiff is unrepresented, medicated and disabled
22
litigant. The Judge refuses schedules the two violent matters back to back
23 on January 21 2020 despite requests for reasonable accommodations.
24 Psychologist Shai Tsur writes repeated letters stating that it is imperative
these matters are scheduled one at a time, a week apart. The Court refuses
25
both intense matters are heard on January 21, 2020. All the while during
26 this time, the neighbors upstairs are continually dropping barbells daily
27 leading up to eventually a restraining order filing against these tenants.
28
These tenants are friends with John Gibson so it becomes clear that this is
being done purposefully as a tactic for me to have a complete breakdown.

- 41 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 42 of 177

1
67. Prior to the two civil restraining order trials Durbin, Gibson, the HOA hot
2
water was turned off a week before Christmas December 2019, early
3 January 2019 and other times in several buildings. This is uninhabitable
4 in the middle of winter for people to be without hot water boilers worked
on, turned off. People were so desperate they were bathing in the hot
5
tubs. On January 21, 2020 Claudia Lopez HUD after exhausting two
6 civil trials wherein the restraining orders are removed, the upstairs
7 neighbor jumping, dropping the bar bells for hours shaking walls.
Plaintiff contacts HUD concerning this issue again. HUD, CAL DFEH is
8
aware of the various issues that are occurring here and fails to intervene,
9 assist in any way. It should be alarming that during winter, hot water is
10 not available rendering uninhabitable. The HOA Board, Property
11
Management functions as a Landlord for we cannot fix the boilers and
property ourselves. This is why we pay assessments for operations and
12
maintenance of property reserve funding.
13

14

15

16

17

18

19

20

21

22

23

24

25

26
Civil Harassment 2020 Petitions
27

28

- 42 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 43 of 177

1 PHYSICAL ASSAULT BY UPSTAIRS NEIGHBOR

2 JOAQUIN RIVERA AFTER REPEATED
3 COMPLAINTS FILED WITH HUD, CAL DFEH
4 ABOUT THE DANGER OF THIS INDIVIDUAL
5
HOSTILE ENVIRONMENT
6
Civil Harassment Petition filed
Case Number: RG20057366
7

8
Title: Bernstein VS Rivera
9
Case Type: Civil
10
Complaint Type: CH-100 Request for Orders to
11

12
Stop Harassment (Civil Harassment)
13
Case Number: HG20057369
14 Title: Bernstein VS Rivera
15 Case Type: Civil
16 Complaint Type: CH-100 Request for Orders to
17 Stop Harassment (Civil Harassment)
18 Pre-Civil Harassment Petition Filing - Tenant
19 Joaquin Rivera police calls, reaching out to HOA
20
Management Third Party Liability and Investment
21
Property Owner
Psychiatric appointments concerning virtually
22

23
everyday banging, harassment destabilizing
24
PTSD
25
6 4 2018
26

27
7 11 2018
28

- 43 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 44 of 177

1 7 14 2018 P18002325 truck vandalism

police report fecal matter rubbed all over
2

4
truck number suspected Joaquin Rivera
5
Dates of extreme harassment reported to
6
psychologist all during HUD complaint opening
7 8 6 2018
8 9 6 2018
9 9 18 2018
10 10 16 2018
11 12 3 2018
12
1 21 2019
13
4 4 2019
4 24 2019
14

5 15 2019
15

16
5 19 2019
17
6 26 2019
18
7 8 2019
19

20
7 29 2019
21
8 26 2019
22 12 30 2019
23 Assault on Plaintiff February 26 2020
On February 26 2020 Plaintiff was violently assaulted at front door when home alone by
24
Joaquin Rivera. A 911 call captures the terror. Plaintiff Bernstein is terrified living
25 under this unpredictable young man whose family will not control him, HOA Board,
Property Management firm, individual investment property owner third party liability
26
will do nothing, HUD and CAL DFEH will do nothing about this serial harassment for
27 years now.
28
2 26 2020 #P20024382 assault

- 44 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 45 of 177

1
Civil Harassment Filing Petition Joaquin Rivera.
2

3
The destruction to our property and harassment
4
does not diminish.
3 5 2020 Restraining order filed
5

6 Intentional, deliberate, willful violations of

7
restraining order prior to the civil harassment trial
8
Joaquin Rivera constant demonstration this mentally
unstable individual even more incensed
9

10

11 #P20024382 police incident

#P20033829
12 March 14
13
March 15
P20038345 March 21
14
March 25 p20041343
15
April 8
16 April 12 Easter horrific
April 21
17
Incident report
18
#P20033829
19
14-MarYEAR 2020
20 15-MarYEAR 2020
3 21 P20038345
21
3 25 p20041343
22 8-Apr
April 12 Easter horrific
23

24 21-Apr

25

26 7 7 2020 P20069552

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 46 of 177

1 Post Hearing Permanent Restraining Order

2 Harassment- 4 hour July 15 2020 Civil
3 Harassment Trial Joaquin Rivera found guilty,
4 multiple witnesses Joaquin Rivera guilty of
5
harassment towards Plaintiff Bernstein and
6
Plaintiff Tigano. Restraining Order for six
months to be reissued. Within one week Joaquin
7

8
Rivera dropping barbells angry, daily encounters
9
to date. Multiple police calls.
10

11

12
Joaquin Rivera request to reissue order. This man has violated permanent order one

13 week after July 15 2020 Judge Rebekah Evenson ruling. This man violates essentially
14 every day tormenting my sister and I; however, on the most violent days we have
15
telephoned the Fremont Police Department. I was assaulted February 26 2020 by Joaquin
16
Rivera that is relentless in his harassment of me upstairs; John Gibson, Mike Durbin
17

18 outside my condominium unit. Under Penal Code 273.6 PC, California law makes it a

19 crime for a person to violate the terms or conditions of a court-issued restraining order,
20
protective order, or stay-away order. This offense is a misdemeanor that carries a
21
maximum sentence of up to one year in jail. Commissioner Pelayo Llamas dismissive to
22
women residents here and guests enduring this absolute torment, stalking, criminal
23

24 harassment. Below police report numbers SINCE the Permanent July 15 2020 Restraining

25 Order most violent violations:

26
7 22 2020 p20075042 Officer Francisco 11357
27
7 25 2020 p20076218 Officer Ceniceros 13253
28

- 46 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 47 of 177

7 28 2020 p20077292 Officer Castro 16059

1

2 8 15 2020 p20083970 Officer Montojo 14306

3 8 17 2020 p20084524 Officer Singh 16180

4
8 31 2020 P20089504 Officer Gorley 13531
5
9 11 2020 p20093260 Officer Gerber 14852
6

SECOND RESTRAINING ORDER JOHN

8

10 GIBSON
11
Case Number: HG20067974
Title: Bernstein VS Gibson
12

13

14 Case Type: Civil

15
Complaint Type: CH-100 Request for
Orders to Stop Harassment (Civil
16

17

18 Harassment)
19
July 20, 2020 filing
20

21
7 10

22 7 15 P20072580 Day of Joaquin Rivera hearing restraining order granted. Joaquin Rivera
telephoned John Gibson no court orders mailed out. John Gibson
23 then harassed husband saying that he had a better attorney then Joaquin
8 27

24
10 5 2020 p201005032
Lujan 15893 refusal to arrest criminal stalking, hate crime
25

26

27 SECOND RESTRAINING ORDER MKE

28
DURBIN

- 47 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 48 of 177

1 Case Number: HG20068279

Title: Bernstein VS Durbin
2

4 Case Type: Civil

5

Complaint Type: CH-100 Request for

6

8 Orders to Stop Harassment (Civil

9 Harassment)
July 22, 2020 filing
10

11
harassment at pool consistently
12
driving around with truck chasing me in walker
13

14

15

16 4 27 2020 pointing phone at me like a gun looking down barrel calling me crazy

17 restraining order was on him four months

18

19 These two men have evaded service by

20 Alameda County Sheriff, individual
process servers
21

22

23 John Bernstein, Jacqueline Illera filed

24
restraining orders against these men
as well
25

26

27

28

- 48 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 49 of 177

1 Plaintiff has to endure the stress of

two back to back civil harassment
2

4 trials again
5

10

11

12

13

14

15

16

17 • RESTRAINING ORDERS FILED BY JACQUELINE ILLERA AND JOHN

BERNSTEIN III
18

19 • 9 RESTRAINING ORDERS LATER

20
• EXTREME STRESS FILING, CONDUCTING, SERVICE OF PROCESS,
21 RESTRAINING ORDER TRIALS
22
• MEETING WITH POLITICIANS U.S. TO REACH OUT TO HUD TO ASSIST
23 ME
24
• JACQUELINE ILLERA JOHN GIBSON
25

26
Deceit, Vicious HOA Coercion
27
Individuals that advised about HOA Whatsapp Group disparaging me and my family hate
28
speech

- 49 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 50 of 177

1
• Rowen Frick
2 • Marla Guo
3
• Ravi Rathanau
• George Reyna
4

5
Invasion of Privacy

6 • Chandon Sheath October 1 36 year old lecture me on my situation, interrogating

7
how I obtained PTSD. Who is a foreigner to come to this land and attempt to
dictate, tell me that being abused occurs everywhere, dismissive attitude received
8 $50,000 bonus from Google which covered his assessment owned for only five
years did not pay assessments forward since 1988
9

10 Invasion of Privacy constantly

11
• Following me Chai Min Loke social media cameras pointed me
• Gunoor Judge cameras pointed me
12

13
I wrote to HUD on our behalf as well on July 12 including Paul Smith they did not respond at all.
14

15
From: M. Helen Bernstein MS APC CLA
16 Sent: Sunday, July 12, 2020 9:57 AM
To: Complaints Office 09 <[email protected]>; Brad Dacus
17
<[email protected]>; matthew mcreynolds <[email protected]>;
18 [email protected] <[email protected]>; Abby
Southerland <[email protected]>; Jay Sekulow, ACLJ Chief Counsel
19
<[email protected]>; [email protected]
20 <[email protected]>; Smith, Paul E <[email protected]>;
[email protected] <[email protected]>
21
Subject: guest of mine and I harassed assaulted chilling video in HOA & Jacqueline
22 assaulted in her apartment - HUD Complaint Office 09 responsible region for us in
California
23

24 We are in imminent danger! Mobs of people. Jacqueline will be replying here with her
materials. Declarations intense court appearances restraining order hearings this week.
25

26 We have both filed HUD Complaints and are seeking protection from further retaliation
for filing complaints with court and HUD by these individuals.
27

28 CAL DFEH Transfer

- 50 -
 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 51 of 177

The In Person Complaint filed July 15 2019 traveling by East Bay Paratransit
1

4 ELIZABETH TIGANO JOAQUIN RIVERA MICHAEL DURBIN JOHN GIBSON

5

6
C. Plaintiff Bernstein Multiple
7 Subsequent Quid Pro Quo Hostile
8
Environment Complaints Reaching
9

10
out to HUD via Internet and in
11 person pleading for help
12

13

14
April 28 2019, May 16, 2019, (July
15 15 2019 in person by para transit
SF Region IX) January 21 2020
16

17

18

19 Paul Smith concerned with the

religion that I am as opposed to
20

21

22
intervening, assisting all this time
23 for several years now
Paul Smith advised Plaintiff Mary
24

25

26 Bernstein and occupational

27 therapist Jacqueline Illera on
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 52 of 177

1 telephone conference call that they

were not protected classes and
2

4 that they could not read

What religion are you? Revelation bowls of incense
5
Scripture prayers like incense to God
6

10

11

12

13

14

15

16

17

18

19 Transition to Present day momentarily - Plaintiff Bernstein

20 has ADHD, Bipolar, Complex PTSD and will sometimes
21 deviate from chronological order of events. Paragraph 55
22
chronicles the continual, defiance, indifference, indignation of
23
HUD SF to date.
Plaintiff Mary Bernstein and Jacqueline Illera telephone just today call from Defendant Paul
24 Smith September 28 2020 8:58 am home telephone number 510 936 6471. Defendant Paul
Smith telephoning from the comfort of his own home presumably displayed further
25
indifference, arrogance to women on the telephone. “If you want to spend your money on
26 litigation that is fine; I have never lost a case,” Defendant Paul Smith exclaimed to us.
Defendant Paul Smith also advised me that I have no understanding of the law and could not
27
read further insulting disabled Plaintiff Mary Bernstein. Defendant Paul Smith advised us
28 we could have no help from federal program because we were not protected classes. I have

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 53 of 177

been targeted, hostile environment and my sister Elizabeth due to our disabilities; Jacqueline
1
Illera has been targeted due to her race called a Philipino monkey. Jacqueline Ilera will be
2 filing a notice of claim. Defendant Paul Smith was responding to voice mail that was left
for him last Thursday. Elizabeth Tigano, Mary Bernstein and Jacqueline Illera telephoned
3
HUD leaving several messages as the HUD message prompt provides only 30 seconds to
4 leave name, number forcing the public to continually keep calling back or give up. The
telephone message stated that a HUD complaint could be filed on the phone which it cannot.
5
The HUD personnel do not respond to email complaints. This is an attempt to deny access
6 to federal protection FHA to the public which desperately needs assistance. Paul Smith
does not understand the hostile environment rule, quid pro quo rule and displays his
7
ignorance. Defendant Paul Smith misrepresents that he has never lost any HUD matters.
8 To the contrary, the Court in 2000 upheld case against HUD official and individual
Defendant Paul Smith9 and others Exhibit Q
9
https://www.sfgate.com/bayarea/article/Berkeley-Neighbors-Suit-Against-HUD-Staff-
10 Upheld-2736635.php. In fact, according to the State Bar of California Paul Smith is not
even eligible to practice law in the State of California, has had inactive status as a bar
11 member since 1988 Exhibit R. Paul Smith was admitted to the California State Bar in 1979
12 and then retired bar status in 1988 presumably when he began working for HUD. Exhibit S
Paul Smith making determination if Plaintiff Bernstein is to receive assistance from HUD
13 based on WHAT religion not based on religion exhibiting selective representation,
14
discrimination, what religions are authorized to utilize incense. Exhibit T email to Paul
Smith submitting the notice of claims that had previously been mailed to Paul Smith not
15 acknowledged and continual refusal to acknowledge, indifference to Plaintiffs. Exhibit U
16
ECF Attorney report demonstrates no cases Paul Smith. This appears to be a
misrepresentation that Paul Smith has never lost a case. It appears that in 2000 Paul Smith
17 was working for HUD in investigator capacity not as an attorney and presently Paul Smith is
working as a Director for HUD San Francisco Region IX. Therefore, he has not functioned
18
it appears as an attorney since 1988. The conclusion reached is that if he did act as an
19 attorney it would have only been for 9 years. Therefore how could he have had opportunity
not to lose any cases for HUD? He was not working as an attorney to be afforded the
20
opportunity to win or lose cases. This statement to Mary Bernstein and Jacqueline Ilera on
21 telephone call September 28 2020 was made in an effort to intimidate, neutralize and
22

23 9 A federal appeals court handed another victory yesterday to three Berkeley residents who sued federal housing official and
individual s for investigating why the neighbors spoke out against a low-income housing project.
24
The 9th U.S. Circuit Court of Appeals upheld a 1998 decision by U.S. District Judge Marilyn Hall Patel that rebuked the
25 Department of Housing and Urban Development for infringing on the First Amendment rights of Joseph Deringer, his wife,
Alexandra White, and neighbor Richard Graham during an eight-month probe.
26
"There was simply no justification for the official and individual s to take the extraordinarily intrusive and chilling measure they
did during the subsequent eight-month investigation," appeals court Judge Stephen Reinhardt wrote in yesterday's ruling.
27
The appeals court agreed with Patel that four HUD official and individual s, LaVera Gillespie, Paul Smith, Russell Bruce Lee --
28 who has since died -- and Robert Zurowski are liable as individuals because no reasonable person would have thought the
probe was lawful.

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 54 of 177

discriminate that women were not entitled to relief from HUD for abuses hostile
1
environment, quid pro quo despite being members of a protected class.
2

10

11

12

13

14

15

16

17 i. Your Recent Claim: Bernstein 584761

4 Smith, Paul E <[email protected]>
18 Mon 7/27/2020 10:48 AM
Dear Claimant
19

20
You have contacted us alleging housing discrimination in violation of federal fair housing laws. In order to
evaluate your claim, we need to discuss your claim with you. Please contact Paul Smith in our Intake Unit at 510 936
21
6471 or by return email at [email protected] and discuss your claim. We have not filed a complaint, no investigation
is presently contemplated, and we cannot proceed until we are able to obtain more information from you. If we do not
22 hear from you in ten days, we will close this inquiry administratively, but will reopen it if you provide the needed
information within the applicable limitations period.
23

24
If you would rather respond by post or email, we need the following information in order to evaluate this claim.
25

26
1. How were you discriminated against? State briefly what happened. Describe incidents with dates and
perpetrators. Describe incidents indicate these events took place because of your race, color, national origin, religion, sex,
27
disability, or familial status.
28 a. You state that you have been told not to burn incense, which interferes with your practice of religion.

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 55 of 177

1 What is your religion? What practice in your religion do you undertake in your home that utilizes incense?
Please describe an incident with a date that supports your assertion that you have been told not to burn incense in order
2 to stop your practice of your religion? Identify who perpetrated this and provide their contact information and describe
their relationship to the HOA.
3
b. You report that a neighbor screams at you in the hallways. Please describe the incidents that support this
4 this assertion, provide a date on which this incident occurred, and identify the neighbor and provide their contact
information.
5
c. You also report that you were told to take down items in your patio that others are allowed to display.
Please identify the neighbors who have similar items in the patio area, describe the items they have in their patio, and
6 describe why you believe this request to remove these items was wrongful.

7 d. For all these incidents, please describe why these actions taken by the respondents are not in retaliation
for your state court lawsuits for malfeasance of the HOA and others under state law that you brought before any adverse
8 actions began.

9 2. Who discriminated against you? What did they do? Please provide their mailing address.

10 3. When did these incidents that denied you rights occur?

4. What is the address of the property where the discrimination occurred?

11
5. Please provide the names of all persons in your household at the time of the discrimination, the dates of birth for
12 the minors, and your current mailing address. Please also include your current phone number and email address.

13

14
ii. HUD Housing Inquiry No. 606323
15 Lopez, Claudia L <[email protected]>
Tue 1/21/2020 3:50 PM
16
Mary Bernstein
17
[email protected]
18

19
Dear Ms. Bernstein,
20

21

22
You have contacted us alleging housing discrimination in violation of federal fair housing
23 laws. In order to evaluate your claim, we need to discuss your claim with you. Please contact
me at [email protected] or at (415) 489-6540 or (800) 347-3739 and while the
24
greeting is playing press * and then enter his or her extension (the last four digits of the 415
25 number) and discuss your claim. We have not filed a complaint, no investigation is presently
contemplated, and we cannot proceed until we are able to obtain more information from
26
you. Please provide the following information by email. If you would rather respond by post
27 or email, generally we need the following information in order to evaluate a claim.

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 56 of 177

1
Please describe incident(s) that indicate that the hot water denial is retaliatory for filing prior
2 complaints against the respondents when so many other residents were also affected. Please
provide dates for each incident.
3

4
Please note that under the Fair Housing Act you have a statute of limitations of one year
5
from the last date of discrimination if you file with this office, and two years if you file your
6 own action in a state or federal court. Under other fair housing laws, the statute of
limitations is 180 days. We will be glad to work with you to determine if a description of
7
events presents a sufficient basis to file a complaint in this office if you provide us the
8 necessary information within the applicable limitations period. It is therefore extremely
important that you contact us promptly if the end of the applicable limitations period is
9
imminent. Thanks for your cooperation.
10
Regards,
11

12

13 PLAINTIFF TIGANO HUD

14
INVESTIGATION (LACK THEREOF)
15

16 68. In July 2004, Mission Vista Apartments the harassment began. TMM Family Services
Tucson owned these apartments that were constructed in this neighborhood in 1999 or
17
2000. These apartments were owned by and was a the main purpose of TMM Family
18 Services Tucson to serve at risk children and families; act as a catalyst for positive
change; engage congregations of all kinds to expand community outreach; and develop
19
new and ongoing research for quality ministry. To this date, Apartment Finders, Rent
20 Café and its own website advertises that it takes HUD vouchers and other subsidiary
payments.
21 69. Journals logs of Plaintiff Tigano and illustrations attached depict occurrences and
22 individuals identities unknown located in Mission Vista Apartments that engage in a
continual pattern of harassment. “Constantly watching, surveying me, threatening me,
23 defaming me, stalking following me to the store, harassing me, criticisms about my
24
weight, my clothing, accusing me of being prostitute, pretentious, aloof.”
“Tresspassing on property, prowling, tipping over chairs, threatening with assault.”
25 “They say that they hate me so much that they want me to kill myself.” “Two males
26
have shaven heads of Mexican descent I believe 8 or 9 years.” Teenager white male
12 long shorts on bike light brown fat ass, retard several times.” Baggy shirts, baggy
27 blue jeans. Long hair female 16 they will shoot me where I stand.” Larger groups
standing on the property Mission Vista groups of older teens, young adults. I was
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 57 of 177

sleeping 2018 on the couch and punched the kitchen window, rang doorbell. I saw
1
people running away but it was dark. I am a loser, not very bright.
2 70. Plaintiff Tigano states “they call me a Jessup/jessop constantly. The urban dictionary
slang word defition. Jessup 1. (n.) A town in North Eastern Pensylvania (NEPA)--
3
near Scranton, Carbondale, and relatively close to Wilkes Barre. A town where the
4 people get creepily involved with 'holidays' that involve getting sloshed and carrying
weird-looking statues of saints that nobody's heard of up and down hills. The only
5
other place in the world to hold SAINT UBALDO DAY aside from Gubbio, Italy. A
6 town where nobody uses proper grammar, and everyone talks like they're retarded.. "
"Lets go to da Jessup ta pick up dem der Ubaldo Statues."
7
https://www.urbandictionary.com/define.php?term=Jessup Jessop 1. An individual
8 who cares not for relationships beyond the realm of the sexual, these people sleep with
many partners not caring about anything save for the moment of climax. 2. An
9
individual who just cannot turn it libido off 3. Promiscuous man/ woman 4. Someone
10 with the desire to engage in human sexual behavior at a level high enough to be
considered clinically significant.4. Perverted or dirty Didn't go home alone again last
11 night. What a jessop! Lee is tearing it up on the dance floor again, he won't leave
12 those poor girls alone. He's such a filthy jessop!”
https://www.urbandictionary.com/define.php?term=Jessop “They say they want to
13 rape me the older males.” “They say go home to the mental hospital that that is my
14
home.” Plaintiff Tigano did not even know what the slang terminology meant as this
is a younger generation dialogue This evidences to doctors and family that they
15 encounters are occurring causing secondary trauma.
16
71. Plaintiff Tigano filed a HUD complaint as a disabled person, protected class on
August 22 2019 (Exhibit U) for quid pro quo and was immediately dismissed by Paul
17 Smith HUD Region IX August 27 2019 (August 27 2019) 5 days later without
contacting Plaintiff Tigano, any acknowledgement, attempt at investigation. (Exhibits
18
U and V).
19

20

21

22

23

24

25

26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 58 of 177

10

11

12

13

14

15
ELIZABETH BERNSTEIN AND
16 JACQUELINE ILLERA IMPACTED BY
ABUSES AT PLAINTIFF BERNSTEIN
17

18

19
HOA COMMUNITY MEADOWBROOK
20

21 July 10 2020 Jacqueline while visiting affected by Joaquin Rivera, mob of people, John
Gibson Jacqueline Illera, on July 10, 2020, witnessed and endured verbal attacks with
22
Mary Bernstein at her condominium project.
23
Elizabeth Tigano aggrieved since 2018 telephone calls, later video calls in school John
24
Gibson, Mike Durbin Joaquin Rivera
25
DISABLED WOMENS’ EFFORTS DUE TO
26

27
REFUSAL HUD TO ASSIST INTERVENE
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 59 of 177

1 TO STOP THE HARASSMENT

RESULTED IN EXTREME STRESS
2

4 72. The only thing HUD had to do in both situations was generate a letter calling for the
cessation of harassment. In Bernstein matter, in particular, San Francisco HUD/CAL
5
DFEH surrogate state that it has come to their attention that during HUD CALDFEH
6 investigation that Complainant Bernstein was enduring harassment for retaliation
contacting HUD to cease or violation citation applied. In Tigano matter, generating
7
letter to the Apartments that complainant contacted and the matter investigated.
8 Instead, both severely disabled women forced to not only endure continual, escalating
abuses but to attempt to investigate, de-escalate harassment on their own. HUD CAL
9
DFEH complete failures to intervene, investigate caused immense stress levels,
10 despair.

11

12 Attempts at remedies by Plaintiffs Bernstein,

13
Tigano two disabled women due to HUD refusal
14

A. Efforts Elizabeth Tigano Hostile Environment

15

16
De-Escalate/Resolution Arizona Undertaken by
17
Bernstein
18

19 For years Elizabeth Tigano has been taunted, ridiculed as a handicapped person when
coming and going to her home as well as while inside the home pestered incessantly by
20
tweens, teens and young adults from low income housing Section 8 voucher Mission
21 Vista Apartments. In 2011 neighbor threw a six week old cat at Plaintiff Bernstein’s
head killed cracking the skull of the kitten Suzanne
22
https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx?AspxAutoDetectCookieS
23 upport=1

24 As a result of Defendant Paul Smith HUD San Francisco Region IX, failure to investigate
25 matter of disabled woman enduring adult abuse, harassment by neighborhood apartments
across the street, disabled Plaintiff Bernstein and Plaintiff Tigano were forced to
26 investigate and contact repeatedly parties incurring additional stress to obtain relief for
27 Plaintiff Elizabeth Bernstein. False reports by children were made to the police in
Tucson Arizona and phone tampering resulting in the lines not working. Elderly mother
28 suffers from congestive heart failure, is on oxygen. This created an immensely stressful

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 60 of 177

situation for Plaintiff Bernstein and Plaintiff Tigano as they confer daily regarding care
1
for mother and other life matters. This was distressing for Plaintiff Bernstein not to be
2 able to reach Plaintiff Tigano and likewise for Plaintiff Tigano not to be able to contact
Plaintiff Bernstein. Exhausting measures letter writing, emails, phone calls requesting
3
intervention by responsible parties to speak to the management of Mission Vista to
4 investigate what children, individuals were doing these nuisance, harassment behaviors
and put an end to the suffering of Plaintiff Tigano. Plaintiff Tigano learnt of the 81 FR
5
63054 Hostile Environment and Quid Pro Quo rule put into effect in 2016 and sought
6 relief from HUD based on protected person status.

10

11

12

13

14

15

16

17

18

19
TMM Family Services Contacted
20

21 MEB Partners contacted November 25 2019

22

23

24

25

26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 61 of 177

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24
Mission Vista Partners contacted
25

26
Tucson Unified School District contacted December 11 2019
27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 62 of 177

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
How to Become a Section 8 Landlord
26

27
After reading about the pros and cons of becoming a section 8 landlord, you
28 may be wondering how to get started. In order to accept housing vouchers,

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 63 of 177

1 your local housing authority must approve both you, the landlord, and
your property. Below is an outline of how to qualify as a landlord in the
2
Housing Choice Voucher Program.
3

4 1. You will need to contact your local public housing authority. The
5
housing authority contact information can be found on your state’s
Public Housing Authority website. Each housing authority has different
6
preferences and requirements based on their service area affordable
7 housing needs.
8 2. The housing authority inspector will meet with you and inspect your
9
property to make sure it meets all local building and safety codes. They
will use a government inspection form. They will also review your rental
10
rates to ensure that they fall in line with rates for comparable dwellings
11 in your area.
12 3. Once the inspector approves your property, you will sign a W-9 and
paperwork to then begin accepting Section 8 housing vouchers. At that
13
point, you find your own tenants or they find you.
14
4. Then, once a month, the housing authority will mail you a portion of the
15 rent or directly deposit it into your bank. The tenant will pay you the
16 rest. Although your rental rate may stay the same, the amount paid to
you by the government may fluctuate depending on the Section 8
17
tenant income.
18 https://www.realwealthnetwork.com/learn/section-8-landlords/
19

20 PROPERTY DETAILS
21

22 MISSION VISTA
23
Welcome home to Mountain Mission Vista Apartment Homes! We are conveniently located
24 on Dodge Blvd. just North of Grant Rd. Our community is being FULLY RENOVATED! New
interior features; Countertops, appliances, fixtures, flooring, paint, fixtures and energy
25 efficient windows! Mountain Vista will have a newly remodeled clubhouse, fitness center,
26 business center, on-site 24 hour laundry facility and leasing office! Enjoy all of our new
amenities in a great location that is affordable! Our community works with any Subsidiary
27 Providers including; Section 8, HUD, Shelter Plus Care. Please call for further details on how
we can assist you!
28
https://www.apartmentguide.com/apartments/Arizona/Tucson/Mission-Vista/24477/

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 64 of 177

10

11 • Paul Smith outright denied Plaintiff Tigano claim immediately upon receipt 2019.
The letter was generated without any contact Plaintiff Tigano email, call or letter.
12

13 • Barbara Marenco complaint was never even acknowledged; this woman is now
homeless, her cat became homeless and is now deceased 2018
14

15 • The late Oswald Paul San Miguel and Jeffrey Sheadon gay couple disabled
harassed in MeadowBrook HUD did not find violation 2009. These men were
16
made homeless.
17

18 It appears Only Donohue Francis entitled to Quid Pro Quo

19 Hostile Environment Quid Pro Quo protection which was not
20
sexual. Hostile Environment Quid Pro Quo is not only sexual
therefore.
21

22
Amicus brief
23

24
Seniors Diana Martin and Artis Breau CAL DFEH

25

26

27
B. Efforts Mary Bernstein Hostile Environment
28
Quid Pro Quo De-Escalate/Resolution California

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 65 of 177

1 Undertaken by Plaintiff Bernstein due to HUD,

2 CAL DFEH abdicating responsibility protecting
3 protected classes after filing complaint from
4 further retaliation
5

7
PLAINTIFF TIGANO AND PLAINTIFF
8 BERNSTEIN INTERRELATED CLAIMS
9
FHA CIVIL RIGHTS FHA VIOLATIONS
10

11
PROTECTED CLASS MEMBERS
73. Plaintiff Elizabeth Tigano has been disabled since childhood with bipolar,
12
schizophrenia unable to work, attend college. In 2020, Elizabeth at age 36 was
13 undertaking for the first time a computer class at Pima Communty College through
disabled program. Elizabeth received two good grades on computer quizzes 80% and
14
100% but for the most part was auditing the class.
15 74. This was Plaintiff Tigano’s initial voyage in her academic odyssey towards college
education. To avoid discouragement, Plaintiff Bernstein scheduled computer class
16
with disability section Pima Community College to audit as opposed to letter grades.
17 Plaintiff Tigano had not been in any type of structured activity or class since age 17;
20 years ago. Plaintiff Tigano due to disability and bullying in high school
18 transitioned to home school. This endeavor for Plaintiff Tigano to be coaxed to attend
19 college for self reliance involved much persuasion on Plaintiff Bernstein’s part and
courage by Plaintiff Tigano. Plaintiff Bernstein tutored Plaintiff Tigano after class on
20 Tuesdays and Thursdays via Video Calls at the Learning Lab at Pima Community
21
College. Plaintiff Bernstein’s location was in her room while video conferencing
Plaintiff Tigano.
22 75. Plaintiff Tigano was subjected to destabilizing banging while trying to concentrate,
23
focus at College Campus learning life skills computer operation in the 21st Century.
76. Plaintiff Tigano has also had to be subjected to harassment while on the phone, video
24 call with Plaintiff Bernstein hearing derogatory statements directed at disabled when
Plaintiff Bernstein walking with walker. Secondary eggshell theory subjected to fear
25
for family member Bernstein.10 The same HOA Board members have remained
26
10 California harassment Unruh
27
HOA Rogue Board from Bad to Worse
2018 elected board
28 Amy DeJesus, President
Bill Schneider, Vice President

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 66 of 177

continually and empowered through HUD CAL DFEH dismissal of matter. The HOA
1
Community jubilant when it learned of dismissal June 17, 2019. Plaintiff Bernstein
2 began to receive vitriolic attacks from HOA Community.
3

4
DEFENDANT USA THROUGH
5 DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT (“HUD”) AND
6

8
STATE OF CALIFORNIA THROUGH
9 CALIFORNIA DEPARTMENT OF FAIR
EMPLOYMENT AND HOUSING (“DFEH”)
10

11

12 ENGAGED IN DISCRIMINATION,
13 NEGLIGENCE INFLICTING EMOTIONAL
DISTRESS AGAINST PLAINTIFFS
14

15
Plaintiffs Mary Bernstein and Elizabeth Tigano are biological half-sisters with
16 disabilities. We are disabled and special education, reasonable accommodations to be
provided to us in writing with communication disabilities, concentration issues,
17
medication. Both women sexually assaulted as children and women further being
18 traumatized by violent men harassment.11
19 Rohit Varicatt, Treasurer
Mike Durbin, Secretary
20 Vipul Ramani, Director at Large lied during canvassing that they would keep pool open, heated year round and get rid of
emergency assessment. I gave all five votes to him. Perpetrated Fraud
21 The Board has approved the formation of the following 6 committees: Construction, Financial Planning, Audit, Community
Outreach, Governance, and Landscape & Janitorial. Committees will meet weekly, generate minutes and submit a monthly
22 report to the Board of Directors. Committee minutes and reports will be published and made available to the entire MBV
community.
23
2019 elected board
Virendra Dhavale, Michael Durbin, Romulo Zafra, Rohit Varicatt, and Ashok Agarwal.
24 2020 Election by Acclamation. No timely election held. Retained Power for 18 months, indefinitely.
Virendra Dhavale, Michael Durbin, Romulo Zafra, Rohit Varicatt, and Ashok Agarwal.
25
11 https://archives.hud.gov/news/2017/17ChargeofDiscriminationCao.pdf
26
https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-
27
liability-for-discriminatory-housing-practices#h-29
28
https://www.justice.gov/crt/case-document/file/908746/download

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 67 of 177

1
Castillo Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev., No. 14-2139 (1st Cir.
2 2016)
3

4 VI. CAUSES OF ACTION

Count I (42 U.S.C. § 1981)
5
As to All Defendants
6 FIRST CLAIM FOR RELIEF RACIAL DISCRIMINATION
7
77. Plaintiffs Bernstein and Tigano repeat and reallege each and every allegation
8
heretofore alleged as if fully set forth herein.
9 78. During Bernstein’s HUD investigation, Defendant USA denied Plaintiff Bernstein
protection under 81 FR 63054 - Quid Pro Quo and Hostile Environment Harassment
10
and Liability for Discriminatory Housing Practices Under the Fair Housing Act
11 79. Defendant USA's conduct closing files, denying relief, denying that Plaintiffs were
federally protected class extreme and outrageous and done with discrimination.
12
80. Defendant USA Department of Housing and Urban Development ("HUD") is a public
13 agency. Defendant State of California California Department of Fair Employment and
Housing ("DFEH") is a public agency. HUD and DFEH refused, withheld from and
14
denied to Plaintiffs accommodations, advantages, facilities and privileges thereof that all
15 citizens are to be provided when seeking assistance for housing abuses and harassment
and discrimination. The U.S. government has a public policy to promote equal rights for
16
all citizens. One way to encourage this idea is to actively discourage discrimination
17 against members of protected classes (such as racial minorities, women, and the
disabled). To prevent discrimination in public accommodations, the government enacted
18 certain laws at the federal, state, and sometimes local levels. Specifically, the federal
19 Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national
origin, and religion. The Unruh Civil Rights Act requires "full and equal
20 accommodations, advantages, facilities, privileges or services in all business
21 establishments. Plaintiffs are members of a protected class, documented disabled
women that have been harassed in housing pleading for help from these agencies.
22 Defendants HUD and DFEH have a duty to investigate and provide with protection when
23
Plaintiffs report to and advise enduring abuses in their housing. Defendant USA HUD
agent Paul Smith has repeatedly denied them this right, advising them that are not
24 members of a protected class forcing Plaintiffs to endure intensifying psychological
trauma. HUD and DFEH privileges, accomodations, advantages consist of also
25
representation. HUD has outright denied Plaintiff Tigano in Arizona matter housing and
26 civil rights. HUD and DFEH have outright denied several times and in the case of DFEH
ignored evidence, pleas and spitefully closed file despite massive amounts of testimony
27
and evidence.
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 68 of 177

81. Under 42 U.S.C. §§ 1981 and 1982 Section 1981(a) provides that “[a]ll persons within
1
the jurisdiction of the United States shall have the same right in every State . . . to make
2 and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of persons and property as is enjoyed by
3
white citizens . . . .” 42 U.S.C. § 1981(a). To establish a claim under § 1981, a plaintiff
4 must show that (1) he is a member of a protected class; (2) defendant intended to
discriminate against plaintiff based upon his membership in the protected class; and (3)
5
the discrimination concerned one or more of the activities enumerated in § 1981. Brown
6 v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). Like the Equal Protection Clause, §
1981 can only be violated by purposeful discrimination. Gen. Bldg. Contractor’s Assn.,
7
Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). 42 U.S.C. § 1982 states that “[a]ll
8 citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real
9
and personal property.” Section 1982 has been interpreted to prohibit “intentional
10 discrimination” based on race. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617
(1987) (citation omitted). Plaintiffs are members of protected class: disabled women.
11 Another woman Jacqueline Illera, a minority, also is protected class that was denied.
12 Still another german disabled woman now homeless Barbara Marenco and her cat
became homeless as HUD did not respond to their complaint. Barbara’s cat became
13 homeless Brutis we took in that has since died as the cat appeared to be depressed that its
14
owner Barbara Marenco was gone and could not adapt. None of us seem to be protected
classes according to Paul Smith HUD although minorities, disabled women and therefore
15 ot afforded protections that some are entitled therefore discriminating against us.
16
82. Plaintiffs Bernstein and Tigano, white disabled women, protected class members have
been subjected to constant violence, onslaughts mockery, assaults called disabled freaks,
17 jessups, disgusting disabled pigs, but provided no relief. Plaintiff Bernstein was denied
any investigation. Jacqueline Illera a witness in this action, a minority and member of
18
protected class was denied any investigation.
19 83. Defendant Paul Smith in his individual capacity as an employee of the HUD and acting
under color of federal law, personally participated and conspired in acts as set
20
forth supra, for the purpose of violating plaintiffs civil constitutional rights to 42 U.S.C.
21 §§ 1981 and 1982 Section 1981(a) in violation of Bivens. Plaintiff Mary Bernstein and
Jacqueline Illera telephone call from Defendant Paul Smith September 28 2020 8:58 am
22
home telephone number 510 936 6471. Defendant Paul Smith did not even telephone
23 Jacqueline Illera concerning her wish to again file a complaint for racial harassment
endured in her home. Defendant Paul Smith telephoned Plaintiff Bernstein that in turn
24
dialed Jacqueline Illera conferencing calling her in for discussion. Defendant Paul
25 Smith telephoning from the comfort of his own home presumably displayed further
indifference, arrogance to women on the telephone. “If you want to spend your money
26
on litigation that is fine; I have never lost a case,” Defendant Paul Smith exclaimed to
27 us. Defendant Paul Smith stated to disabled Plaintiff Bernstein that she has no
understanding of the law and could not read further insulting disabled Plaintiff Mary
28

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Bernstein. Defendant Paul Smith advised us we could have no help from federal
1
program because we were not protected classes.
2 84. Defendant Cherie Douglas in her individual capacity as an employee of the DFEH and
acting under color of state law, personally participated and conspired in acts as set forth
3
supra, for the purpose of violating plaintiffs California civil constitutional rights to 42
4 U.S.C. §§ 1981 and 1982 Section 1981(a). On May 23 2019 9:44 am Plaintiff Bernstein
again pleads with Investigator Cherie Douglas to come to complex to investigate, witness
5
enduring harassment, intervene due to the filing of complaint retaliation. Plaintiff had
6 requested complaint amendment as the investigation was still open and HUD Defendant
Rosalind Evans advised that Plaintiff was to contact the investigator to do so. Plaintiff
7
writes on May 23 2019 9:44 am in email to Defendant Cherie Douglas “is it because I am
8 white that I cannot get any assistance”?
85. In November 9 2018 Defendant Cherie Douglas expressed indifferent attitude at the onset
9
when Plaintiff Bernstein was describing that harassment and expressing PTSD
10 exacerbation. Plaintiff said Cherie this is so hard after explaining all these details at the
end of the conversation. The only statement Cherie Douglas said was “it’s Cheeerie.”
11 Plaintiff Bernstein disabled misprounced name as it was written like the name Sherry.
12 The original interview continued from November 6 2018 at the direction of Defendant
Cherie Douglas. This nonchalant, unsympathetic, through plaintiffs tears high trauma
13 response describing actions by HOA Community was she was concerned with the
14
pronounciation of her name.

15

16

17

18

19

20

21

22

23

24

25

26

27 86. Defendant Cherie Douglas on that same day May 23 2019 5:14 pm spitefully issues
28 case closure determination letter. The letter requests furnishing additional evidence by
June 3 2019. Plaintiff Bernstein responds, Defendant Cherie Douglas again ignores

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evidence, pleas of disabled Plaintiff Bernstein and spitefully closes file despite
1
massive amounts of testimony and evidence on June 17 2019 .12
2

10

11

12

13

14

15

16

17 12 Harassment in housing threatens a resident’s safety and privacy in her own home. In HUD’s experience enforcing the Fair
Housing Act, low-income women—often racial and ethnic minorities and persons with disabilities—may be particularly
18 vulnerable to sexual harassment in housing. HUD’s final rule on harassment in housing includes:

19 Formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context.

20 Quid Pro Quo Harassment involves subjecting a person to an unwelcome request or demand and making submission to the
request or demand a condition related to the person’s housing.
21
Hostile Environment Harassment involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such
that it interferes with or deprives the person of the right to use and enjoy the housing.
22
Clarification as to when housing providers and other covered entities or individuals may be held directly or vicariously liable
23 under the Fair Housing Act for illegal harassment or other discriminatory housing practices. HUD Announces New
Protections for Victims of Harassment and Survivors of Domestic Violence https://www.hudexchange.info/news/hud-
24 announces-new-protections-for-victims-of-harassment-and-survivors-of-domestic-
violence/#:~:text=Hostile%20Environment%20Harassment%20involves%20subjecting,use%20and%20enjoy%20the%20hou
25 sing. HUD is issuing its Nuisance Guidance as the country marks the 22nd anniversary of the Violence Against Women Act
(VAWA). Through the VAWA 2013 reauthorization, protections have been expanded to nearly all HUD programs.
26 Previously, only residents of public housing and Section 8 tenant-based and project-based programs were covered.

HUD’s final Harassment Rule is titled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory
27
Housing Practices under the Fair Housing Act. HUD and courts have long held that harassment in housing or housing-related
transactions on the basis of race, color, national origin, religion, sex, disability, and familial status is prohibited under the Fair
28 Housing Act. The final rule specifies how HUD will evaluate claims of “hostile environment” and “quid pro quo” harassment
in both private and publicly-assisted housing.

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1
Count II (42 U.S.C. § 1981)
As to All Defendants
2
SECOND CLAIM FOR RELIEF RELIGIOUS DISCRIMINATION
3

4 87. Plaintiffs Bernstein and Tigano repeat and reallege each and every allegation
heretofore alleged as if fully set forth herein.
5
88. During Bernstein’s HUD investigation, Defendant USA denied Plaintiff Bernstein
6 protection under 81 FR 63054 - Quid Pro Quo and Hostile Environment Harassment
and Liability for Discriminatory Housing Practices Under the Fair Housing Act
7 89. Defendant USA's conduct closing files, denying relief, denying that Plaintiffs were
8 federally protected class extreme and outrageous and done with discrimination.
Defendant State of California conduct closing files, denying relief, through workshare
9 with HUD FHAP denying that Plaintiffs were federally protected class extreme and
10
outrageous and done with discrimination.
90. Defendant USA Department of Housing and Urban Development ("HUD") is a public
11 agency. Defendant State of California California Department of Fair Employment and
12
Housing ("DFEH") is a public agency. HUD and DFEH refused, withheld from and
denied to Plaintiffs accommodations, advantages, facilities and privileges thereof. The
13 U.S. government has a public policy to promote equal rights for all citizens. One way to
encourage this idea is to actively discourage discrimination against members of protected
14
classes (such as racial minorities, women, and the disabled). To prevent discrimination in
15 public accommodations, the government enacted certain laws at the federal, state, and
sometimes local levels. Specifically, the federal Civil Rights Act of 1964 prohibits
16
discrimination on the basis of race, color, national origin, and religion. The Unruh Civil
17 Rights Act requires "full and equal accommodations, advantages, facilities, privileges or
services in all business establishments. Plaintiffs are members of a protected class,
18
documented disabled women that have been harassed in housing pleading for help from
19 these agencies. Defendants HUD and DFEH have a duty to investigate and provide with
protection when Plaintiffs report to and advise enduring abuses in their housing.
20
Defendants agent Paul Smith has repeatedly denied them this right, advising them that are
21 not members of a protected class forcing Plaintiffs to endure intensifying psychological
trauma. HUD and DFEH privileges, accomodations, advantages consist of also
22
representation. HUD has outright denied Plaintiff Tigano in Arizona matter housing and
23 civil rights. HUD and DFEH have outright denied several times and in the case of DFEH
ignored evidence, pleas and spitefully closed file despite massive amounts of testimony
24 and evidence.
25 91. Under 42 U.S.C. §§ 1981 and 1982 Section 1981(a) provides that “[a]ll persons within
the jurisdiction of the United States shall have the same right in every State . . . to make
26 and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit
27
of all laws and proceedings for the security of persons and property as is enjoyed by
white citizens . . . .” 42 U.S.C. § 1981(a). To establish a claim under § 1981, a plaintiff
28 must show that (1) he is a member of a protected class; (2) defendant intended to

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discriminate against plaintiff based upon his membership in the protected class; and (3)
1
the discrimination concerned one or more of the activities enumerated in § 1981. Brown
2 v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). Like the Equal Protection Clause, §
1981 can only be violated by purposeful discrimination. Gen. Bldg. Contractor’s Assn.,
3
Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). 42 U.S.C. § 1982 states that “[a]ll
4 citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real
5
and personal property.” Section 1982 has been interpreted to prohibit “intentional
6 discrimination” based on race. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617
(1987) (citation omitted). Plaintiffs are members of protected class: disabled women.
7
Another woman Jacqueline Illera, a minority, also is protected class that was denied.
8 Still another german disabled woman now homeless Barbara Marenco and her cat
became homeless as HUD did not respond to their complaint. Barbara’s cat became
9
homeless Brutis we took in that has since died as the cat appeared to be depressed that its
10 owner Barbara Marenco was gone and could not adapt. None of us seem to be protected
classes according to Paul Smith HUD although minorities, disabled women and therefore
11 not afforded protections that some are entitled therefore discriminating against us.
12 92. Defendant Paul Smith in his individual capacity as an employee of the HUD and acting
under color of federal law, personally participated and conspired in acts as set
13 forth supra, for the purpose of violating plaintiffs civil constitutional rights to 42 U.S.C. §§
14
1981 and 1982 Section 1981(a) in violation of Bivens. Plaintiff Mary Bernstein contacted
HUD concerning religious, medical interference burning incense. On July 27 2020
15 Defendant Paul Smith inquired what religion and what religious acts undertaken.
16
Plaintiffs Bernstein and Tigano are Christian women. Are only certain religions allowed
to utilize incense as part of faith? The Bible depicts incense use and Christians utilize
17 incense. The story of Jesus involves frankincense and myrh.
18

19

20

21

22

23

24

25

26

27

28

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10

11

12

13 Psalm 141:2
14
English Standard Version
15
2
Let my prayer be counted as incense before you,
16
and the lifting up of my hands as the evening sacrifice!
17
Read full chapter
18 Psalm 141:2 in all English translations
19
Revelation 5:8
20

21 English Standard Version

22
8
And when he had taken the scroll, the four living creatures and the twenty-four
23
elders fell down before the Lamb, each holding a harp, and golden bowls full of
24
incense, which are the prayers of the saints.
25

26
Read full chapter
Revelation 5:8 in all English translations
27

28 Revelation 8:3-4
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1
English Standard Version
2
3
3 And another angel came and stood at the altar with a golden censer, and he was given
4 much incense to offer with the prayers of all the saints on the golden altar before the

5
throne, 4 and the smoke of the incense, with the prayers of the saints, rose before God
from the hand of the angel.
6

7 93. Defendant Cherie Douglas in her individual capacity as an employee of the DFEH and
acting under color of state law, personally participated and conspired in acts as set forth
8
supra, for the purpose of violating plaintiffs California civil constitutional rights to 42
9 U.S.C. §§ 1981 and 1982 Section 1981(a). Defendant Cherie Douglas aware Plaintiff
Bernstein is a christian as Plaintiff Bernstein informed of faith. Defendant ignored
10 evidence, pleas and spitefully closed file despite massive amounts of testimony and
11 evidence. Under 42 U.S.C. §§ 1981 and 1982 Section 1981(a) provides that “[a]ll
persons within the jurisdiction of the United States shall have the same right in every
12 State . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full
13
and equal benefit of all laws and proceedings for the security of persons and property as
is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a).
14 94. Defendant State of California has demonstrated a pattern of discrimination towards the
15
Christian faith. Prior to and during COVID 19 shutdown:
▪ Diana Martin California DFEH ignored this elderly 85 year old
16 Christian widow evicted Windgate Apartments for praying for individuals.
17
• Artis Brea resident CAL Veterans Affairs and her husband were
threatened with eviction in veterans home for holding Bible Studies.
18 • John MacArthur Pastor Grace Community Church California
19
Government filed lawsuit against him for holding church.

20
Count III
21
As to All Defendants
22 THIRD CLAIM FOR RELIEF NEGLIGENCE NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS
23
Cal. Civ. Code §3294
24

25 95. Plaintiffs Bernstein and Tigano repeat and reallege each and every allegation
26
heretofore alleged as if fully set forth herein.
96. Punitive damages can be awarded where a jury finds that the Defendants acted with a
27 "willful and conscious disregard" of the rights of others, and "oppression, fraud or
malice." Cal. Civ. Code §3294(a). "Malice" includes both conduct intended to cause
28

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injury as well as conduct that causes injury unintentionally. Cal. Civ. Code §3294
1
provides for punitive damages for unintentional negligent conduct.
2 97. Defendant USA was negligent in its supervision of its agents and/or employees in
causing Plaintiff federal and state civil right to be deprived of his Fourteenth
3
Amendment constitutional right to due process. Two separate portions of the
4 Constitution authorized Congress to legislate to protect housing rights for persons with
disabilities: The Fourteenth Amendment, and the Commerce Clause. Prohibiting
5
housing discrimination on the basis of handicap was a valid exercise of Congress's
6 Fourteenth Amendment power. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state
7
deprive any person of life, liberty, or property, without due process of law; nor deny to
8 any person within its jurisdiction the equal protection of the laws.
98. Defendant USA's conduct closing files, denying relief, denying that Plaintiffs were
9
federally protected class extreme and outrageous and done with the intent to cause
10 severe emotional distress.
99. Defendant USA's conduct resulted in Plaintiffs Bernstein and Tigano suffering severe
11 emotional distress.
12 100. Defendant State of California was negligent in its supervision of its agents and/or
employees in causing Plaintiff federal and state civil right to be deprived of his
13 Fourteenth Amendment constitutional right to due process. Two separate portions of
14
the Constitution authorized Congress to legislate to protect housing rights for persons
with disabilities: The Fourteenth Amendment, and the Commerce Clause. Prohibiting
15 housing discrimination on the basis of handicap was a valid exercise of Congress's
16
Fourteenth Amendment power. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state
17 deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
18
101. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
19 Region IX Department of Housing and Urban Development located in San Francisco,
California. Defendant Paul Smith was an employee of the Department of Housing and
20
Urban Development and as an employee of the United States of America, was acting
21 under the color of federal law. Defendant Paul Smith denied Plaintiffs relief
misrepresented that he was an attorney and never lost a litigation. A search of ECF
22
reflects no cases associated with Paul Smith from 1992 to the present. Further, it
23 appears that Paul Smith with HUD has never functioned in an attorney capacity, legal
counsel for HUD. It is unlikely that Paul Smith had a private practice on the side in
24
addition to working full time in positions for HUD. Paul Smith falsified this
25 statement, attempting to intimidate Jacqueline Illera and Plaintiff Mary Bernstein on
telephone September 28 2020.
26
102. Defendant Cherie Douglas in her official and individual capacity as Investigator
27 Department of Fair Employment and Housing of the State of California located in
Sacramento, California. Defendant Cherie Douglas was an employee of the California
28

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Department of Fair Employment and Housing and as an employee of the State of

1
California, was acting under the color of state law.
2 103. Defendant Kevin Kish, in his official and individual capacity as Director of the
California Department of Fair Employment and Housing of the State of California
3
located in Sacramento, California. Defendant Kevin Kish was an employee of the
4 California Department of Fair Employment and Housing and as an employee of the
State of California, was acting under the color of state law.
5
104. Defendant Claudia Lopez in her official and individual capacity as Equal
6 Opportunity Specialist in the Department of Housing and Urban Development located
in San Francisco, California. Defendant Claudia Lopez was an employee of the
7
Department of Housing and Urban Development and as an employee of the United
8 States of America, was acting under the color of federal law.

10

11

12

13

14

15

16

17

18

19

20 105. Defendant Maria Gonzalez in her official and individual capacity as DFEH
21 Assistant Deputy Director of the California Department of Fair Employment and
Housing of the State of California located in Sacramento, California. Defendant Maria
22 Gonzalez was an employee of the California Department of Fair Employment and
23
Housing and as an employee of the State of California, was acting under the color of
state law. Defendant Maria Gonzazlez Assistant Director CAL DFEH was negligent
24 in her supervision of Investigator Cherie Douglas. Nonchalantly, stating that Cherie
25
Douglas is clearing out her voice mail after Plaintiff frantically contacting DFEH for
assistance for months due to intense harassment.
26 106. Defendant Rosalind Evans in her official and individual capacity as HUD monitor
in San Francisco was negligent in her “monitoring” handling of Plaintiff Bernstein’s
27
complaints about Investigator Cherie Douglas ignoring, indifferent to Plaintiff
28 Bernstein. Plaintiff Bernstein reached out several times to Defendant Rosalind Evans.

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Rosalind Evans did not take measures to report to HUD higher ups regarding the
1
incompetence, indifference in the handling of HUD Hostile Environment, Quid Pro
2 Quo Complaint.
3

10

11

12

13
107. Defendant James Cortes in his official and individual capacity as Staff Services
14 Manager II California Department of Fair Employment and Housing of the State of
California located in Sacramento, California. Defendant James Cortes was an
15
employee of the California Department of Fair Employment and Housing and as an
16 employee of the State of California, was acting under the color of state law.
108. Defendant Shaynah Williams in her official and individual capacity as Housing
17
Consultant Department of Fair Employment and Housing of the State of California
18 located in Sacramento, California. Defendant Shaynah Williams was an employee of
the California Department of Fair Employment and Housing and as an employee of the
19
State of California, was acting under the color of state law.
20 109. Defendant Bryan Greene in his official and individual capacity as the General
Deputy Assistant Secretary of the Office of Fair Housing and Equal Opportunity at the
21 U.S. Department of Housing and Urban Development (HUD) located in Washington,
22 DC. Defendant Bryan Greene was an employee of the Department of Housing and
Urban Development and as an employee of the United States of America, was acting
23 under the color of federal law.
24
110. Defendant Rosalind Evans in her official and individual capacity as Government
Technical Representative HUD monitor oversight Region IX Department of Housing
25 and Urban Development located in San Francisco, California. Defendant Rosalind
26
Evans was an employee of the Department of Housing and Urban Development and as
an employee of the United States of America, was acting under the color of federal
27 law. Defendant Rosalind Evans was negligent in her supervision of CAL DFEH files
as “HUD Monitor.”
28

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111. Defendant Ricardo Reyes Associate Governmental Program Analyst Department

1
of Fair Employment and Housing of the State of California located in Sacramento,
2 California. Defendant Ricardo Reyes was an employee of the California Department
of Fair Employment and Housing and as an employee of the State of California, was
3
acting under the color of state law.
4 112. Civil Code section 3294 provides that a plaintiff can obtain punitive damages
when it is proven by clear and convincing evidence that the defendant has been guilty of
5
oppression, fraud or malice. Civil Code § 3294 provides for punitive damages for
6 unintentional negligent conduct. Civil Code § 3294 provides for punitive damages for
unintentional negligent conduct. In the case at hand, Defendant USA knew through
7
Plaintiffs repeated complaints how dangerous
8 113. Civil Code section 3294 provides that a plaintiff can obtain punitive damages
when it is proven by clear and convincing evidence that the defendant has been guilty of
9
oppression, fraud or malice. Civil Code § 3294 provides for punitive damages for
10 unintentional negligent conduct. Civil Code § 3294 provides for punitive damages for
unintentional negligent conduct. In the case at hand, Defendant State of California knew
11 through Plaintiffs repeated complaints how dangerous.
12 114. Punitive damages can be awarded where a jury finds that the Defendants acted
with a "willful and conscious disregard" of the rights of others, and "oppression, fraud
13 or malice." Cal. Civ. Code §3294(a). "Malice" includes both conduct intended to cause
14
injury as well as conduct that causes injury unintentionally. Cal. Civ. Code §3294
provides for punitive damages for unintentional negligent conduct.
15

16 Count IV
17 As to All Defendants
FOURTH CLAIM FOR RELIEF NEGLIGENCE INTENTIONAL
18
INFLICTION OF EMOTIONAL DISTRESS
19 Cal. Civ. Code §3294
20

21
115. Plaintiffs Bernstein and Tigano repeat and reallege each and every allegation
22 heretofore alleged as if fully set forth herein.
23 116. Punitive damages can be awarded where a jury finds that the Defendants acted
with a "willful and conscious disregard" of the rights of others, and "oppression, fraud or
24 malice." Cal. Civ. Code §3294(a). "Malice" includes both conduct intended to cause
25
injury as well as conduct that causes injury unintentionally. Cal. Civ. Code §3294
provides for punitive damages for unintentional negligent conduct.13
26
13 DIRECT LIABILITY FOR NEGLIGENT FAILURE TO CORRECT AND END DISCRIMINATION: § 100.7(A)(1)(II)
27
AND (III). The “knew or should have known” standard is well established in civil rights and tort law.[27] A housing
provider “should have known” of the harassment of one resident by another when the housing provider had knowledge from
28 which a reasonable person would conclude that the harassment was occurring. Such knowledge can come from, for example,
the harassed resident, another resident, Start Printed Page 63067or a friend of the harassed resident.[28] There is no

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117. Defendant USA was negligent in supervision of its employees and monitor of
1
HUD FHAP CAL DFEH in workshare relationship. Defendant USA was negligent in
2 proper training of FHAP CAL DFEH in 81 FR 63054. HUD and CAL DFEH
employees, agents seem to be unable to apply hostile environment and quid pro quo
3
rule for relief and charge violations.
4 118. Defendant USA's conduct closing files, denying relief, denying that Plaintiffs
were federally protected class extreme and outrageous and done with the intent to
5
cause severe emotional distress.
6 119. Defendant USA's negligent conduct resulted in Plaintiffs Bernstein and Tiano
suffering severe emotional distress.
7
120. Over time, forms of harassment that violate civil rights laws have coalesced into
8 two legal doctrines—quidpro quo and hostile environment. Although HUD and the
courts have recognized that the Fair Housing Actprohibits harassment because of race
9
or color, disability, religion, national origin, familial status, and sex, the doctrines of
10 quid pro quo and hostile environment harassment are not well developed underthe Fair
Housing Act. One's home is a place of privacy, security, and refuge(or should be), and
11 harassment that occurs in or around one's home can be far more intrusive, violative
12 and threatening than harassment in the more public environment of one's work place.14
Consistent with this reality, the Supreme Court has recognized that individuals have
13 heightened expectations of privacy within the home. This hostile environment quid
14
pro quo rule therefore formalizes standards to address harassment in and around one's
home and identifies some of the differences between harassment in the home and
15 harassment in the workplace. While Title VIIand Fair Housing Act case law contain
16
requirement that the resident contact the housing provider about the harassment, only that the housing provider have
17 knowledge from which a reasonable person would conclude that harassment was occurring. If the housing provider has no
information from which a reasonable person would conclude that one resident or a third-party was harassing another resident,
18 the housing provider is not liable for failing to take action to correct and end the harassment. If the knowledge component is
not met, a housing provider cannot be held liable for a resident's or third-party's discriminatory conduct. Application of this
19 standard to the liability provisions of the rule helps clarify the Act's coverage for residents and housing providers. It is
intended to help guide housing providers in their assessment of when to intervene to prevent or end discriminatory conduct.
20 HUD encourages housing providers to create safe, welcoming, and responsive housing environments by regularly training
staff, developing and publicizing anti-discrimination policies, and acting quickly to resolve complaints once sufficient
information exists that would lead a reasonable person to conclude that harassment was occurring.
21 https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-
liability-for-discriminatory-housing-practices#h-29
22 14 See, e.g., Quigley v. Winter, 598 F. 3d at 947 (emphasizing that defendant's harassing conduct wasmade “even more

egregious” by the fact that it occurred in plaintiff's home, “a place where [she] wasentitled to feel safe and secure and need
23 not flee.”); Salisbury v. Hickman,
974 F. Supp. 2d 1282, 1292 (E.D.Cal. 2013) (“[c]ourts have recognized that harassment in one's own home is particularly
24 egregious and is afactor that must be considered in determining the seriousness of the alleged harassment”); Williams v.
Poretsky Management, 955 F. Supp. 490, 498 (D. Md. 1996) (noting sexual harassment in the home moresevere than in
25 workplace); Beliveau v. Caras,873 F. Supp. at 1398 (describing home as place where oneshould be safe and not vulnerable to
sexual harassment); D. Benjamin Barros, Home As a Legal Concept,46 Santa Clara L. Rev. 255, 277-82 (2006) (discussing
legal concept of home as source of security, libertyand privacy which justifies favored legal status in many circumstances);
26
Nicole A. ForkenbrockLindemyer, Article, Sexual Harassment on the Second Shift: The Misfit Application of Title
VIIEmployment Standards to Title VIII Housing Cases, 18 Law & Ineq. 351, 368-80 (2000) (noting thattransporting of Title
27 VII workplace standards for sexual harassment into Fair Housing Act cases ofresidential sexual harassment ignores important
distinctions between the two settings); Michelle Adams,Knowing Your Place: Theorizing Sexual Harassment at Home, 40
28 Ariz. L. Rev. 17, 21-28 (1998) (describingdestabilizing effect of sexual harassment in
the home).

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many similar concepts, this regulation describes the appropriate analytical framework
1
for harassment claims under the Fair Housing Act. The rule addresses only quid pro
2 quo and hostile environment harassment, and not conduct genericallyreferred to as
harassment that, for different reasons, may violate section 818 or other provisions of
3
the FairHousing Act. For example, a racially hostile statement by a housing provider
4 could indicate a discriminatorypreference in violation of section 804(c) of the Act, or
it could evidence intent to deny housing ordiscriminate in the terms or conditions of
5
housing in violation of sections 804(a) or 804(b), even if thestatement does not create
6 a hostile environment or establish a quid pro quo. Section 818, which makes
itunlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise
7
or enjoyment of” rightsprotected by the Act, or on account of a person having aided
8 others in exercising or enjoying rights protectedby the Act, could be violated by
conduct that creates a quid pro quo or hostile environment. It is not,however, limited
9
to quid pro quo or hostile environment claims and could be violated by other conduct
10 thatconstitutes retaliation or another form of coercion, intimidation, threats, or
interference because of aprotected characteristic. In sum, this rule provides standards
11 that are uniformly applicable to claims of quidpro quo and hostile environment
12 harassment under the Fair Housing Act, regardless of the section of the Actthat is
alleged to have been violated, and the same discriminatory conduct could violate more
13 than oneprovision of the Act whether or not it also constitutes quid pro quo or hostile
14
environment harassment.15
121. Defendant Kevin Kish failed to supervise and manage his employee Cherie
15 Douglas that was indifferent and ignoring Plaintiff Bernstein’s pleas. Plaintiff
16
Bernstein and Plaintiff Tigano are permanently disabled women that receive social
security benefits because they cannot engage in substantial gainful activity. The stress
17 of constant letter writing, contacting politicians, restraining orders for protection has
taken its toll on them The email to Kevin Kish carbon copied Defendants Maria
18
Gonzalez, Bryan Greene, Cherie Douglas, Rosalind Evans. May 24 2019 the matter
19 was case closure determination without any investigation.
122. Plaintiff Elizabeth Tigano has endured emotional trauma as well as emotional
20
trauma as a bystander, close relative sibling to Plaintiff Bernstein concerning
21 harassment of Plaintiff Mary Bernstein. Plaintiff Bernstein also has endured
emotional trauma as a bystander concerning the harassment occurring against sibling
22
Elizabeth Tigano.
23

24

25

26

27

28 15 See, e.g. Frisby v. Schultz, 487 U.S. 474, 484 (1988) (“[w]e have repeatedly held that individuals are notrequired to welcome
unwanted speech into their own homes and that the government may protect thisfreedom”).

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10

11

12

13
Count V
14 As to All Defendants
15 FIFTH CLAIM FOR RELIEF NEGLIGENCE INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
16
RELIGIOUS/RACIAL DISCRIMINATION BY HUD, CAL
17 DFEH/CIVIL RIGHTS VIOLATION UNRUH CIVIL RIGHTS ACT Code
18 Section Civ. §§51, et seq. (Public Accommodations) Gov. §12940
et seq. (Housing & employment)
19
Agency Civ §§51: None; Gov. §12940: Dept. of Fair Employment
20 and Housing
21
123. Plaintiffs Bernstein and Tigano repeat and reallege each and every allegation
22 heretofore alleged as if fully set forth herein.
23
124. Punitive damages can be awarded where a jury finds that the Defendants acted
with a "willful and conscious disregard" of the rights of others, and "oppression, fraud or
24 malice." Cal. Civ. Code §3294(a). "Malice" includes both conduct intended to cause
injury as well as conduct that causes injury unintentionally. Cal. Civ. Code §3294
25
provides for punitive damages for unintentional negligent conduct.
26
125. Defendant USA was negligent in supervision of its employees and monitor of
27 HUD FHAP CAL DFEH in workshare relationship. Defendant USA was negligent
in proper training of FHAP CAL DFEH in 81 FR 63054. HUD and CAL DFEH
28

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employees, agents seem to be unable to apply hostile environment and quid pro quo
1
rule for relief and charge violations.
2 126. Defendant USA's intentional conduct closing files, denying relief, denying that
Plaintiffs were federally protected class extreme and outrageous and done with the
3
intent to cause severe emotional distress.
4 127. Defendant USA's intentional conduct resulted in Plaintiffs Bernstein and Tigano
suffering severe emotional distress.
5

10

11

12

13

14

15

16

17

18 128. Defendant Kevin Kish failed to supervise and manage his employee Cherie
19
Douglas that was indifferent and ignoring Plaintiff Bernstein’s pleas. Plaintiff
Bernstein and Plaintiff Tigano are permanently disabled women that receive social
20 security benefits because they cannot engage in substantial gainful activity. The stress
of constant letter writing, contacting politicians, restraining orders for protection has
21
taken its toll on them The email to Kevin Kish carbon copied Defendants Maria
22 Gonzalez, Bryan Greene, Cherie Douglas, Rosalind Evans. May 24 2019 the matter
was case closure determination without any investigation.
23

24 UNRUH CIVIL RIGHTS ACT

25 The Unruh Civil Rights Act (California Civil Code Section 51) provides protection from
26
discrimination by all business establishments in California, including housing and public
accommodations, because of age, ancestry, color, disability, national origin, race, religion,
27 sex and sexual orientation. Other State laws relating to prohibitions of discrimination based
on disability include California Civil Codes Sections 54 through 55.2 .
28

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10

11

12

13

14
SIXTH CLAIM FOR RELIEF
15
129. Plaintiff Bernstein repeats and realleges each and every allegation heretofore
16
alleged as if fully set forth herein.
17
130. During Bernstein’s nearly three years of lack of investigation by HUD CAL
18
DFEH, closure of file and appeal, Defendants USA, State of California, Paul Smith,
19
Kevin Kish, Bryan Greene, Rosalind Evans, Cherie Douglas delayed Plaintiff
20
Bernstein's right to enjoyment of use and enjoy a dwelling and public and common
21
use areas by failing to intervene and assign violations to Respondent during
22
investigation. Defendants at no time produced a written document or verbal
23
communications to Respondents to cease from harassment to date despite the age of
24
the investigation, and its insistence that no violations have occurred despite repeated
25
pleas from Plaintiff Bernstein enduring escalating harassment. Defendants Cherie
26
Douglas and Paul Smith failed to apply the 81 FR 63054 - Quid Pro Quo and Hostile
27
Environment Harassment and Liability for Discriminatory Housing Practices Under
28

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1 the Fair Housing Act" enacted in 2016 which Plaintiff filed complaint under
2 concerning third parties and sought relief. Plaintff Bernstein to date is enduring
3 “continuing violation" refers to either a series of related discriminatory acts, or a
4 discriminatory policy that continues to affect members of a particular category. The
5 regulations provide, at 24 CFR 103.40(c), Memorandum of Understanding executed
6 2014 and 20`9 between HUD and DFEH workshare agreement in place through the
7 investigation and in this appeal stage.
8 131. During Bernstein’s nearly three years of lack of investigation by HUD CAL
9 DFEH, closure of file and appeal, Defendants USA, State of California, Paul Smith,
10 Kevin Kish, Bryan Greene, Rosalind Evans, Cherie Douglas, denied Bernstein
11 Tigano's right to enjoyment of use and enjoy a dwelling and public and common use
12 areas by failing to intervene and assign charges of discrimination violations to
13 Respondent during investigation
14 116.During Bernstein’s nearly three years of investigation and appeal, Defendants
15 USA, State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans,
16 Cherie Douglas, denied Bernstein Tigano's Fourth amendment constitutional right
17 Privacy of the Person and Possessions, the right of the people to be secure in their
18 persons, houses, papers, and effects by delaying in interviewing interested persons,
19 declarants during investigation. Defendants requesting Plaintiff to furnish, provide
20 needlessly repetitive and dilatory writings, reports which disabled Plaintiff Bernstein
21 provided previously. The HUD investigator is a fact-finder whose only function is to
22 objectively gather the facts from appropriate and credible sources that pertain to the
23 complainant’s allegations and respondent’s defenses, and any other questions that should
24 be answered to determine whether there is reasonable cause to believe that the respondent
25 violated the Act. The investigator observes, collects and records evidence accurately.
26 Defendants Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans failed to intervene
27 when Plaintiff brought to attention the failure to respond Cherie Douglas, refusal to
28 interview witnesses, incompetence in preparation of summary of rebuttal respondent with

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1 multiple erroneous facts, errors, no mention of Plaintiff Bernstein evidence exhibiting

2 bias, prejudice, discrimination.
3 117. During Bernstein’s nearly three years of investigation and appeal, Defendants USA,
4 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
5 Douglas, denied Bernstein Tigano's right to privacy and possessions by failing to prioritize
6 plaintiffs case amongst court congestion and provide a legitimate mediator. DFEH utilizes
7 “volunteer” mediators which is unacceptable. https://www.dailyjournal.com/articles/348612-
8 dfeh-is-recruiting-volunteer-mediators-for-statewide-initiative. Despite receiving large
9 amounts of federal funding, the most in the country, DFEH poor mouths and decries
10 workload, rather than hiring legitimate mediators “advertises” for volunteer mediators.
11 Plaintiffs mediation was canceled at the last minute by mediator Elise Chu claiming that
12 Respondents canceled. Respondents claim that mediator Elise Chu canceled. Plaintiff
13 prepared extensive mediation brief at the direction of mediator and request respondents to
14 include all claims.
15 118. During the nearly three years of lacking of investigation and appeal, Bernstein Tigano's
16 hostile environment, quid pro quo complaint, Defendants USA, State of California, Paul
17 Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie Douglas, had a duty to
18 monitor and intervene in a timely manner when Plaintiff Bernstein advised abuse was
19 escalating since the filing of HUD complaint and the closure of HUD Complaint and still
20 ongoing harassment during appeals process. 9 restraining orders have had to be filed by
21 Plaintiff Bernstein. Plaintiff Bernstein had to travel by paratransit to U.S. Senators, State
22 Senators which advised her to obtain restraining orders due to CAL DFEH, HUD failure to
23 protect disabled Plaintiff from retaliation. Defendants took no action investigating or
24 intervening in any way.
25 119. During the nearly three years of Bernstein lack of proper housing investigation and ppeal
26 , Defendants USA, State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind
27 Evans, Cherie Douglas, duty to take steps to avoid unnecessary delay in resolving abuses of
28

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1 Plaintiff Bernstein. Abuses are continuing to this day in housing community causing more
2 emotional and physical damages.
3 84. During Bernstein’s nearly three years of investigation and appeal, Defendants USA,
4 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
5 Douglas, had a duty to conduct appropriate interviews and investigations. Reports of any
6 interviews or investigation conducted during intake, including testing results and their
7 summaries
8 85. During Bernstein’s nearly three years of investigation and appeal, Defendants USA,
9 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
10 Douglas had a duty to physically examines records and other documents relevant to the
11 case, on-site or off-site, and interviews the parties and witnesses..
12 86. During the nearly three years of investigation and appeal , Defendants USA, State of
13 California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie Douglas,
14 Defendant Smith had a duty to analyze investigator examines, compares, and evaluates
15 the evidence gathered and determines whether further investigation is needed for a
16 recommendation in the case. FOIA record obtained incomplete does not reflect all the
17 evidence provided via email which evidence submitted will demonstrate. Defendant
18 Cherie Douglas summary of respondent rebuttal makes no reference to analysis of
19 Plaintiff evidence submitted, comparison and contrast. A form letter to furnish more
20 evidence causing destabilization of plaintiff, frustration, anxiety, fear, panic.
21 Discrimination against white disabled woman debilitating.
22 87. During Bernstein’s nearly three years of investigation and appeal,, Defendants USA,
23 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
24 Douglas,Flynn, Hochul and Defendant Douglas investigator should be consulting on a
25 regular basis with his or her supervisor on the progress of the investigation and any
26 obstacles or unexpected developments that may occur.
27 91. During Bernstein’s nearly three years of investigation and appeal,, Defendants USA,
28 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie

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1 Douglas, Defendant Smith and Defendant Douglas had a duty to provide plaintiff with
2 her Fourteenth amendment constitutional right disabled persons. The Equal Protection
3 Clause of the Fourteenth Amendment. White, disabled people are abused and deserve
4 representation.
5 92. During Bernstein’s nearly three years of investigation and appeal, Defendants USA,
6 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
7 Douglas, Defendant Smith and Defendant Douglas had a duty to provide plaintiff with
8 her Fourth amendment constitutional right Privacy of the Person and Possessions, the
9 right of the people to be secure in their persons, houses, papers, and effects, such that
10 Plaintiff was not subjected to escalating violence and harassment. Plaintiff has been
11 subjected to exploitation, aggravated harassment, criminal stalking which Defendants fail
12 to assist with deterrent.
13 93. During Bernstein’s nearly three years of investigation and appeal,, Defendants USA,
14 State of California, Paul Smith, Kevin Kish, Bryan Greene, Rosalind Evans, Cherie
15 Douglas, Defendant Smith and Defendant Douglas had a duty to insure that plaintiff was
16 not subject to unreasonably long investigation without a charge of discrimination or
17 hostile environment.
18 94. Defendants breached said aforementioned duties.
19 95. Defendant USA was negligent in failing to provide plaintiff with her Fourth
20 amendment constitutional right Privacy of the Person and Possessions. The right of the
21 people to be secure in their persons, houses, papers, and effects.96. Defendant USA was
22 negligent in its supervision of its agents and/or employees in causing plaintiff to be
23 deprived of her Fourth amendment constitutional right Privacy of the Person and
24 Possessions. The right of the people to be secure in their persons, houses, papers, and
25 effects.
26 97. As a result of defendant USA's negligence in failing to provide plaintiff with their
27 Fourth amendment constitutional right Privacy of the Person and Possessions, the right of
28 the people to be secure in their persons, houses, papers, and effects, plaintiff was caused

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1 to suffer an egregiously oppressive nearly three years of investigation and appeal.

2 Despite volumes of evidence and testimony submitted to investigator, said testimony was
3 not referenced or considered in determination. Witnesses stated that they had never been
4 contacted by HUD or DFEH. HUD, DFEH refused to come to condominium complex.
5 DFEH Cherie Douglas refused to allow Plaintiff Bernstein to meet with them in
6 Sacramento.
7 98. As a result, plaintiff was caused to sustain serious and permanent physical and
8 psychological injuries, including but not limited to exacerbation of conditions post-
9 traumatic stress disorder, anxiety, depression, mental suffering, and emotional distress.
10 SEVENTH CLAIM FOR RELIEF
11 99. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
12 fully set forth herein.
13 100. Defendant USA was negligent in failing to provide plaintiff with their Third
14 amendment constitutional right privacy of the home.
15 101. Defendant USA and State of California were negligent in their supervision of their
16 agents and/or employees in causing plaintiffs to be deprived of their Third amendment
17 constitutional right privacy of the home.
18 102. As a result of defendant USA's negligence in failing to provide plaintiff with his
19 Third amendment constitutional right privacy of the home, plaintiff was caused to suffer
20 an egregiously oppressive nearly three years of investigation and appeal without charge
21 of discrimination or hostile environment to Respondents.
22 103. As a result, plaintiff was caused to sustain serious and permanent physical and
23 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
24 depression, mental suffering, and emotional distress.
25 EIGHTH CLAIM FOR RELIEF
26 104. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
27 fully set forth herein.
28

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1 105. Defendant USA was negligent in subjecting plaintiff to discrimination, disparate

2 treatment in violation of her Fourteenth amendment constitutional right disabled persons.
3 The Equal Protection Clause of the Fourteenth Amendment..
4 106. Defendant USA was negligent in its supervision of its agents and/or employees in
5 subjecting plaintiff to discrimination and disparate treatment in violation of their
6 Fourteenth amendment constitutional right disabled persons. The Equal Protection
7 Clause of the Fourteenth Amendment.
8 107. As a result of defendant USA's negligence in subjecting plaintiffs to discrimination
9 and disaparate treatment in violation of their Fourteenth amendment constitutional right
10 disabled persons, the Equal Protection Clause of the Fourteenth Amendment, plaintiffs
11 were caused to suffer an egregiously oppressive nearly three years of investigation and
12 appeal with escalation of abuses by HOA Community due to no determination,
13 intervention charges of discrimination or hostile environment. As a result of Defendants
14 failure to investigate or intervene in any way, tolerating facilitating rights under FHA,
15 hostile environment rule, quid pro quo rule, Defendants violated her civil and
16 constitutional rights, creating a further hostile environment and interfered with right to
17 peaceful enjoyment of home.
18

19 108. As a result, plaintiff was caused to sustain serious and permanent physical and
20 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
21 depression, mental suffering, and emotional distress.
22 NINTH CLAIM FOR RELIEF
23 109. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
24 fully set forth herein.
25 110. Defendant USA was negligent in failing to provide plaintiff with her constitituional
26 right to privacy, security in her home, relief afforded to individuals filing housing claim.
27 111. Defendant USA was negligent in its supervision of its agents and/or employees in
28

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1 causing plaintiff to be deprived of her constitituional right to privacy, security in her

2 home.
3 112. As a result of defendant USA's negligence in failing to provide plaintiff with her
4 constitituional right to privacy, security in her home, plaintiff was caused to suffer an
5 egregiously oppressive nearly three years of investigation and appeal.
6 113. As a result, plaintiff was caused to sustain serious and permanent physical and
7 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
8 depression, mental suffering, and emotional distress.
9 TENTH CLAIM FOR RELIEF
10 114. Plaintiff repeats and realleges each and every allegation contained in the
11 aforementioned paragraphs of the Complaint as if fully set forth at length herein.
12 115. Defendant USA excessively imprisoned, confined and/or restricted plaintiff's
13 freedom of movement by failing to intervene with abuses suffered at the hands of
14 Respondents, HOA Community harassing disabled Plaintiff in and outside home.
15 Incessant dropping bar bells on ceiling of Plaintiff destabilizing causing to relive child
16 abuse at the hands of stepfather throwing her against the wall age 10 and sexual abuses
17 by various men triggering intrusive memories and constant PTSD attacks. Outside
18 several violent men constantly pursuing disabled Plaintiff with walker shouting
19 obsecnities, threats constantly. Video footage evidence.
20 116. Plaintiff Bernstein Tigano was conscious of said excessive imprisonment,
21 confinement and/or restriction.
22 117. Plaintiff Bernstein Tigano did not consent to said excessive imprisonment,
23 confinement and/or restriction.
24 118. The excessive imprisonment, confinement and/or restriction was not otherwise
25 privileged.
26 119. As a result of defendant's excessive imprisonment to her own condo due to
27 harassment outside, plaintiff prior to COVID 19 was driven from her home. During
28 COVID 19 with nowhere to go due to shutdown, Plaintiff has been confined to her

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1 condominium during light hours, going out only during dark hours to avoid onslaught,
2 plaintiff was caused to suffer an egregiously oppressive nearly three years of
3 investigation and appeal confinement and/or restriction, and to sustain serious and
4 permanent physical and psychological injuries, including but not limited to post-
5 traumatic stress disorder, anxiety, depression, mental suffering, and emotional distress.
6 As a result of Defendants failure to investigate or intervene in any way, tolerating
7 facilitating rights under FHA, hostile environment rule, quid pro quo rule, Defendants
8 violated her civil and constitutional rights, creating a further hostile environment and
9 interfered with right to peaceful enjoyment of home.
10 120. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
11 fully set forth herein.
12 121. Defendant USA's conduct was negligent and done to inflict emotional distress
13 upon plaintiff.
14 122. As a result, plaintiff was caused to sustain serious and permanent physical and
15 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
16 depression, mental suffering, and emotional distress.
17 ELEVENTH CLAIM FOR RELIEF
18 123. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
19 fully set forth herein.
20 124. Defendant USA's conduct was intentional and/or reckless such that it was known
21 or should have been known that emotional distress would likely result to plaintiff. As a
22 result of Defendants failure to investigate or intervene in any way, tolerating facilitating
23 rights under FHA, hostile environment rule, quid pro quo rule, Defendants violated her
24 civil and constitutional rights, creating a further hostile environment and interfered with
25 right to peaceful enjoyment of home.
26 Defendant State of California's conduct was intentional and/or reckless such that it was
27 known or should have been known that emotional distress would likely result to plaintiff.
28 As a result of Defendants failure to investigate or intervene in any way, tolerating

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1 facilitating rights under FHA, hostile environment rule, quid pro quo rule, Defendants
2 violated her civil and constitutional rights, creating a further hostile environment and
3 interfered with right to peaceful enjoyment of home.
4

5 125. As a result, plaintiff was caused to sustain serious and permanent physical and
6 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
7 depression, mental suffering, and emotional distress.
8 TWELFTH CLAIM FOR RELIEF
9 126. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 127. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
12 Region IX Department of Housing and Urban Development located in San Francisco,
13 California, and acting under color of federal law, personally participated and
14 conspired in acts as set forth supra, for the purpose of violating plaintiffs Fourth
15 amendment constitutional right Privacy of the Person and Possessions. The right of the
16 people to be secure in their persons, houses, papers, and effects, in violation of Bivens.
17 128. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
18 Region IX Department of Housing and Urban Development located in San Francisco,
19 California, and acting under color of federal law, personally participated and
20 conspired in acts as set forth supra, for the purpose of violating plaintiffs Third
21 amendment constitutional right privacy of the home, in violation of Bivens.
22 129. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
23 Region IX Department of Housing and Urban Development located in San Francisco,
24 California, and acting under color of federal law, personally participated and
25 conspired in acts as set forth supra, for the purpose of violating plaintiff' Fourteenth
26 amendment constitutional right disabled persons, the Equal Protection Clause of the
27 Fourteenth Amendment., in violation of Bivens.
28 132. As a result, plaintiff was caused to sustain serious and permanent physical and

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1 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
2 depression, mental suffering, and emotional distress.
3 THIRTEENTH CLAIM FOR RELIEF
4 133. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
5 fully set forth herein.
6 134. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
7 Region IX Department of Housing and Urban Development located in San Francisco,
8 California, and acting under color of federal law, personally participated and conspired in
9 acts as set forth supra, for the purpose of excessively imprisoning, confining and/or
10 restricting plaintiffs freedom of movement, in violation of Bivens. As a result of defe
11 135. Plaintiff Bernstein Tigano was conscious of said excessive imprisonment,
12 confinement and/or restriction.
13 136. Plaintiff Bernstein Tigano did not consent to said excessive imprisonment,
14 confinement and/or restriction.
15 137. The excessive imprisonment, confinement and/or restriction was not otherwise
16 privileged.
17 138. As a result of defendant's excessive imprisonment, confinement and/or restriction,
18 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
19 hostile environment confinement and/or restriction, and to sustain serious and permanent
20 physical and psychological injuries, including but not limited to post-traumatic stress
21 disorder, anxiety, depression, mental suffering, and emotional distress.
22 FOURTEENTH CLAIM FOR RELIEF
23 139. Plaintiff repeats and reallcges each and every allegation heretofore alleged as if
24 fully set forth herein.
25 140. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
26 Region IX Department of Housing and Urban Development located in San Francisco,
27 California
28 , and acting under color of federal law, personally participated and

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1 conspired in acts as set forth supra, for the purpose of negligently inflicting emotional
2 distress upon plaintiiffs, in violation of Bivens. As a result of Defendants failure to
3 investigate or intervene in any way, tolerating facilitating rights under FHA, hostile
4 environment rule, quid pro quo rule, Defendants violated her civil and constitutional
5 rights, creating a further hostile environment and interfered with right to peaceful
6 enjoyment of home.
7 141. As a result, plaintiff was caused to sustain serious and permanent physical and
8 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
9 depression, mental suffering, and emotional distress.
10 FIFTTEENTH CLAIM FOR RELIEF
11 142. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
12 fully set forth herein.
13 143. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
14 Region IX Department of Housing and Urban Development located in San Francisco,
15 California , and acting under color of federal law, personally participated and
16 conspired in acts as set forth supra, for the purpose of intentionally inflicting emotional
17 distress upon plaintiff, in violation of Bivens. As a result of Defendants failure to
18 investigate or intervene in any way, tolerating facilitating rights under FHA, hostile
19 environment rule, quid pro quo rule, Defendants violated her civil and constitutional
20 rights, creating a further hostile environment and interfered with right to peaceful
21 enjoyment of home.
22 144. Defendant Kish's conduct was intentional and/or reckless such that it was known
23 or should have been known that emotional distress would likely result to plaintiff.
24 145. As a result, plaintiff was caused to sustain serious and permanent physical and
25 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
26 depression, mental suffering, and emotional distress.
27 146. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
28 fully set forth herein.

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1 147. Defendant Kevin Kish, in his official and individual capacity as Director of the
2 California Department of Fair Employment and Housing of the State of California
3 located in Sacramento, California, and acting under color of federal law, personally
4 participated and conspired in acts as set forth supra, for the purpose of violating plaintiff's
5 Fourth amendment constitutional right Privacy of the Person and Possessions. The right
6 of the people to be secure in their persons, houses, papers, and effects, in violation of
7 Bivens.
8 148. Defendant Kevin Kish, in his official and individual capacity as Director of the
9 California Department of Fair Employment and Housing of the State of California
10 located in Sacramento, California, and acting under color of federal law, personally
11 participated and conspired in acts as set forth supra, for the purpose of violating plaintiffs
12 Third amendment constitutional right privacy of the home, in violation of Bivens.
13 149. Defendant Kevin Kish, in his official and individual capacity as Director of the
14 California Department of Fair Employment and Housing of the State of California
15 located in Sacramento, California, and acting under color of federal law, personally
16 participated and conspired in acts as set forth supra, for the purpose of violating plaintiffs
17 Fourteenth amendment constitutional right disabled persons, the Equal Protection Clause
18 of the Fourteenth Amendment, in violation of Bivens.
19 150. Defendant Kevin Kish, in his official and individual capacity as Director of the
20 California Department of Fair Employment and Housing of the State of California
21 located in Sacramento, California , and acting under color of federal law, personally
22 participated in and conspired in acts as set forth supra, for the purpose of violating
23 plaintiffs statutory right to a speedy trial pursuant to 18 U.S. Code Section 3161, in
24 violation of Bivens.
25 151. As a result of Defendant Smith's negligence in failing to provide plaintiff with his
26 constitutional and statutory rights, plaintiff was caused to suffer an egregiously
27 oppressive nearly three years of a retaliatory hostile environment .
28 152. As a result, plaintiff was caused to sustain serious and permanent physical and

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1 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
2 depression, mental suffering, and emotional distress. As a result of Defendants failure to
3 investigate or intervene in any way, tolerating facilitating rights under FHA, hostile
4 environment rule, quid pro quo rule, Defendants violated her civil and constitutional
5 rights, creating a further hostile environment and interfered with right to peaceful
6 enjoyment of home.
7

8 SIXTEENTH CLAIM FOR RELIEF

9 153. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 154. Defendant Kevin Kish, in his official and individual capacity as Director of the
12 California Department of Fair Employment and Housing of the State of California
13 located in Sacramento, California, and acting under color of federal law, personally
14 participated and conspired in acts as set forth supra, for the purpose of excessively
15 imprisoning, confining and/or restricting plaintiffs freedom of movement, in violation of
16 Bivens. As a result of Defendants failure to investigate or intervene in any way, tolerating
17 facilitating rights under FHA, hostile environment rule, quid pro quo rule, Defendants
18 violated her civil and constitutional rights, creating a further hostile environment and
19 interfered with right to peaceful enjoyment of home.
20 155. Plaintiff Bernstein Tigano was conscious of said excessive imprisonment,
21 confinement and/or restriction.
22 156. Plaintiff Bernstein Tigano did not consent to said excessive imprisonment,
23 confinement and/or restriction.
24 157. The excessive imprisonment, confinement and/or restriction was not otherwise
25 privileged. As a result of Defendants failure to investigate or intervene in any way,
26 tolerating facilitating rights under FHA, hostile environment rule, quid pro quo rule,
27 Defendants violated her civil and constitutional rights, creating a further hostile
28 environment and interfered with right to peaceful enjoyment of home.

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2 158. As a result of defendant's excessive imprisonment, confinement and/or restriction,

3 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
4 hostile environment confinement and/or restriction, and to sustain serious and permanent
5 physical and psychological injuries, including but not limited to post-traumatic stress
6 disorder, anxiety, depression, mental suffering, and emotional distress.
7 SEVENTEENTH CLAIM FOR RELIEF
8 159. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
9 fully set forth herein.
10 160. Defendant Kevin Kish, in his official and individual capacity as Director of the
11 California Department of Fair Employment and Housing of the State of California
12 located in Sacramento, California, and acting under color of federal law, personally
13 participated and conspired in acts as set forth supra, for the purpose of negligently
14 inflicting emotional distress upon plaintiff, in violation of Bivens.16
15 161. As a result, plaintiff was caused to sustain serious and permanent physical and
16

17 16 Harassment in housing threatens a resident’s safety and privacy in her own home. In HUD’s experience enforcing the Fair
Housing Act, low-income women—often racial and ethnic minorities and persons with disabilities—may be particularly
18 vulnerable to sexual harassment in housing. HUD’s final rule on harassment in housing includes:

19 Formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context.

20 Quid Pro Quo Harassment involves subjecting a person to an unwelcome request or demand and making submission to the
request or demand a condition related to the person’s housing.
21
Hostile Environment Harassment involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such
that it interferes with or deprives the person of the right to use and enjoy the housing.
22
Clarification as to when housing providers and other covered entities or individuals may be held directly or vicariously liable
23 under the Fair Housing Act for illegal harassment or other discriminatory housing practices. HUD Announces New
Protections for Victims of Harassment and Survivors of Domestic Violence https://www.hudexchange.info/news/hud-
24 announces-new-protections-for-victims-of-harassment-and-survivors-of-domestic-
violence/#:~:text=Hostile%20Environment%20Harassment%20involves%20subjecting,use%20and%20enjoy%20the%20hou
25 sing. HUD is issuing its Nuisance Guidance as the country marks the 22nd anniversary of the Violence Against Women Act
(VAWA). Through the VAWA 2013 reauthorization, protections have been expanded to nearly all HUD programs.
26 Previously, only residents of public housing and Section 8 tenant-based and project-based programs were covered.

HUD’s final Harassment Rule is titled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory
27
Housing Practices under the Fair Housing Act. HUD and courts have long held that harassment in housing or housing-related
transactions on the basis of race, color, national origin, religion, sex, disability, and familial status is prohibited under the Fair
28 Housing Act. The final rule specifies how HUD will evaluate claims of “hostile environment” and “quid pro quo” harassment
in both private and publicly-assisted housing.

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1 psychological injuries, including but not limited to exacerbation of post-traumatic stress

2 disorder, anxiety, depression, mental suffering, and emotional distress.
3 EIGHTEENTH CLAIM FOR RELIEF
4 162. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
5 fully set forth herein.
6 163. Defendant Kevin Kish, in his official and individual capacity as Director of the
7 California Department of Fair Employment and Housing of the State of California
8 located in Sacramento, California, and acting under color of federal law, personally
9 participated and conspired in acts as set forth supra, for the purpose of intentionally
10 inflicting emotional distress upon plaintiff, in violation of Bivens.
11 164. Defendant Kish's conduct was intentional and/or reckless such that it was known
12 or should have been known that emotional distress would likely result to plaintiff.
13 165. As a result, plaintiff was caused to sustain serious and permanent physical and
14 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
15 depression, mental suffering, and emotional distress.
16 NINETEENTH CLAIM FOR RELIEF
17 166. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
18 fully set forth herein.
19 167. Defendant Smith, in his/her individual capacity as an employee of the
20 HUD and acting under color of federal law, personally participated and conspired in acts
21 as set forth supra, for the purpose of violating plaintiffs Fourth amendment constitutional
22 right Privacy of the Person and Possessions. The right of the people to be secure in their
23 persons, houses, papers, and effects, in violation of Bivens.
24 168. Defendant Smith, in his individual capacity as an employee of the
25 HUD and acting under color of federal law, personally participated and conspired in acts
26 as set forth supra, for the purpose of violating plaintiffs Third amendment constitutional
27 right privacy of the home, in violation of Bivens.
28 169. Defendant Smith, in his/her individual capacity as an employee of the

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1 HUD, and acting under color of federal law, personally participated and conspired in acts
2 as set forth supra, for the purpose of violating plaintiff's Fourteenth amendment
3 constitutional right disabled persons, the Equal Protection Clause of the Fourteenth
4 Amendment, in violation of Bivens.
5 170. Defendant Smith, in his individual capacity as an employee of the
6 HUD, and acting under color of federal law, personally participated in and conspired in
7 acts as set forth supra, for the purpose of violating plaintiff's constitutional right Privacy
8 of the Person and Possessions, the right of the people to be secure in their persons,
9 houses, papers, and effects. Denial of pursuing housing investigation, claiming disabled
10 white woman Plaintiff Bernstein was not a protected class. The Supreme Court gave
11 guests in someone else's home a broad right of privacy yesterday, ruling that almost all
12 invited. Plaintiff Tigano and guest Jacqueline Illera injured at HOA Community due to
13 Defendant Smith failure to file housing investigation against hostile environment
14 perpetrated by HOA Meadowbrook. MINNESOTA v. CARTER 569 N. W. 2d 169 in
15 violation of Bivens.
16 171. As a result of Defendant Smith 's negligence in failing to provide
17 plaintiff with her constitutional and statutory rights, plaintiff was caused to suffer an
18 egregiously oppressive nearly three years of investigation and appeal while all the time
19 still suffering escalating violence, abuses at HOA Community in residence.
20 172. As a result, plaintiff was caused to sustain serious and permanent physical and
21 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
22 depression, mental suffering, and emotional distress.
23 TWENTIETH CLAIM FOR RELIEF
24 173. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
25 fully set forth herein.
26 174. Defendant Smith, in his individual capacity as an employee of the
27

28

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1 HUD, and acting under color of federal law, personally participated and conspired in acts
2 as set forth supra, for the purpose of excessively imprisoning, confining and/or restricting
3 plaintiff's freedom of movement, in violation of Bivens.
4 175. Plaintiff Bernstein Tigano was conscious of said excessive imprisonment,
5 confinement and/or restriction due to the allowance by HUD, CAL DFEH of abuse of
6 disabled women by Respondents.
7 176. Plaintiff Bernstein Tigano did not consent to said excessive imprisonment,
8 confinement and/or restriction. Privileges denied.
9 178. The excessive imprisonment, confinement and/or restriction was not otherwise as a
10 result of harassment in their homes due to HUD, CAL DFEH lack of intervention,
11 plaintiffs were caused to suffer an egregiously oppressive nearly three years of a
12 retaliatory hostile environment. As a result of denial of charge of discrimination or
13 hostile environment, plaintiffs endured social isolation, aleination confinement and/or
14 restriction, and to sustain serious and permanent physical and psychological injuries,
15 including but not limited to post-traumatic stress disorder, anxiety,
16 depression, mental suffering, and emotional distress.
17 TWENTY FIRST CLAIM FOR RELIEF
18 179. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
19 fully set forth herein.
20 180. Defendant Smith, in his individual capacity as an employee of the HUD, and
21 acting under color of federal law, personally participated and conspired in acts as set
22 forth supra, for the purpose of negligently inflicting emotional distress upon plaintiff, in
23 violation of Bivens.
24 180. Defendant Kish, in his individual capacity as an employee of the CAL DFEH, and
25 acting under color of federal law and state law, personally participated and conspired in
26 acts as set forth supra, for the purpose of negligently inflicting emotional distress upon
27 plaintiff, in violation of Bivens.
28

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1 180. Defendant Douglas, in her individual capacity as an employee of the CAL DFEH,
2 and acting under color of federal law and state law, personally participated and conspired
3 in acts as set forth supra, for the purpose of negligently inflicting emotional distress upon
4 plaintiff, in violation of Bivens.
5 181. As a result, plaintiff was caused to sustain serious and permanent physical and
6 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
7 depression, mental suffering, and emotional distress.
8 TWENTY SECOND CLAIM FOR RELIEF
9 182. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 183. Defendant Smith, in his individual capacity as an employee of the HUD, and
12 acting under color of federal law, personally participated and conspired in acts as set
13 forth supra, for the purpose of intentionally inflicting emotional distress upon plaintiff, in
14 violation of Bivens.
15 184. Defendant Smith 's conduct was intentional and/or reckless such that it
16 was known or should have been known that emotional distress would likely result to
17 plaintiff. Plaintiff advising HUD senior level employees, filing additional complaints
18 alerted Defendant Smith to the heightened anxiety, panic, fear, complaints that surrogate
19 workshare CAL DFEH doing nothing to intervene causing intense retaliation against
20 Plaintiff by HOA Community. In fact, the retaliation because of HUD CAL DFEH
21 intensified towards family members and friends as well.
22 185. As a result, plaintiff was caused to sustain serious and permanent physical and
23 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
24 depression, mental suffering, and emotional distress.
25 TWENTY THIRD CLAIM FOR RELIEF
26 186. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
27 fully set forth herein.
28 187. Defendant Douglas, in her individual capacity as an employee of the

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1 CAL DFEH and acting under color of state law, personally participated and conspired in
2 acts as set forth supra, for the purpose of violating plaintiffs Fourth amendment
3 constitutional right Privacy of the Person and Possessions. The right of the people to be
4 secure in their persons, houses, papers, and effects., in violation of Bivens.
5 188. Defendant Douglas, in his/her individual capacity as an employee of the
6 CAL DFEH and acting under color of federal law, personally participated and conspired
7 in acts as set forth supra, for the purpose of violating plaintiffs Third amendment
8 constitutional right privacy of the home, in violation of Bivens.
9 189. Defendant Douglas, in his/her individual capacity as an employee of the
10 CAL DFEH, and acting under color of federal law and state law, personally participated
11 and conspired in acts as set forth supra, for the purpose of violating plaintiff's Fourteenth
12 amendment constitutional right disabled persons, the Equal Protection Clause of the
13 Fourteenth Amendment. in violation of Bivens.
14 190. Defendant Douglas, in his/her individual capacity as an employee of the
15 CAL DFEH, and acting under color of federal law, personally participated in and
16 conspired in acts as set forth supra, for the purpose of violating plaintiff's statutory right
17 to be secure in their persons, houses, papers, and effects in violation of Bivens.
18 191. As a result of Defendant Douglas's negligence in failing to provide
19 plaintiff with his constitutional and statutory rights, plaintiff was caused to suffer an
20 egregiously oppressive nearly three years of investigation and appeal. Defendant
21 Douglas’ incompetence in applying 81 FR 63054 hostile environment, quid pro quo rule,
22 failure to investigate, conduct interviews, review testimony declarations and evidence,
23 Plaintiff was forced to endure prolonged abuse. Defendant Douglas continual
24 characterization of complaint as reasonable accommodations despite Plaintiff Bernstein
25 continual correction that the matter was Quid Pro Quo And Hostile Environment
26 Harassment And Liability For
27 Discriminatory Housing Practices Under The Fair Housing Act,
28

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1 81 Fed. Reg. 63,054 (Sept. 14, 2016) demonstrates her inability to thoroughly apply rule
2 to situation. Denial of reasonable accommodations, the pool and other matters is
3 demonstrative of the hostile, retaliatory environment by the HOA Board Respondents
4 among other hostile, acrimonious, divisive actions against Plaintiff.
5 192. As a result, plaintiff was caused to sustain serious and permanent physical and
6 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
7 depression, mental suffering, and emotional distress.
8 TWENTY FOURTH CLAIM FOR RELIEF
9 193. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 194. Defendant Douglas, in his/her individual capacity as an employee of the
12 CAL DFEH, and acting under color of federal law and state law, personally participated
13 and conspired in acts as set forth supra, for the purpose of excessively imprisoning,
14 confining and/or restricting plaintiffs freedom of movement in HOA Community, in
15 violation of Bivens.
16 195. Plaintiff Bernstein Tigano was conscious of said excessive imprisonment,
17 confinement and/or restriction of privileges.
18 196. Plaintiff Bernstein Tigano did not consent to said excessive imprisonment,
19 confinement and/or restriction of rights in HOA Community.
20 197. The excessive imprisonment, confinement and/or restriction was not otherwise
21 privileged.
22 198. As a result of defendant's excessive imprisonment, confinement and/or restriction,
23 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
24 hostile environment confinement and/or restriction, and to sustain serious and permanent
25 physical and psychological injuries, including but not limited to post-traumatic stress
26 disorder, anxiety, depression, mental suffering, and emotional distress.
27 TWENTY FIFTH CLAIM FOR RELIEF
28 199. Plaintiff repeats and realleges each and every allegation heretofore alleged as if

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1 fully set forth herein.

2 200. Defendant Douglas, in his/her individual capacity as an employee of the CAL
3 DFEH, and acting under color of federal law and state law, personally participated and
4 conspired in acts as set forth supra, for the purpose of negligently inflicting emotional
5 distress upon plaintiff, in violation of Bivens.
6 201. As a result, plaintiff was caused to sustain serious and permanent physical and
7 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
8 depression, mental suffering, and emotional distress.
9 TWENTY SIXTH CLAIM FOR RELIEF
10 202. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
11 fully set forth herein.
12 203. Defendant Douglas, in his/her individual capacity as an employee of the CAL
13 DFEH, and acting under color of federal law, personally participated and conspired in
14 acts as set forth supra,
15 for the purpose of intentionally inflicting emotional distress upon plaintiff, in violation of
16 Bivens.
17 204. Defendant Douglas's conduct was intentional and/or reckless such that it
18 was known or should have been known that emotional distress would likely result to
19 plaintiff.
20 205. As a result, plaintiff was caused to sustain serious and permanent physical and
21 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
22 depression, mental suffering, and emotional distress.
23 TWENTY SEVENTH CLAIM FOR RELIEF
24 206. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
25 fully set forth herein.
26 207. Plaintiff's unreasonably prolonged detention constituted a violation of fourth
27 amendment right to be safe and secure in home. As a result of Defendants failure to
28 investigate or intervene in any way, tolerating facilitating rights under FHA, hostile

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1 environment rule, quid pro quo rule, Defendants violated her civil and constitutional
2 rights, creating a further hostile environment and interfered with right to peaceful
3 enjoyment of home.
4 208. Defendant USA was negligent in failing to provide plaintiff with her Fourth
5 Amendment constitutional right.
6 209. Defendant USA was negligent in its supervision of its agents and/or employees in
7 causing plaintiff to be deprived of her Fourth Amendment constitutional right.
8 210. As a result of defendant USA's negligence in failing to provide plaintiff with her
9 Fourth Amendment right to be safe and secure in home, plaintiff
10 was caused to suffer an egregiously oppressive nearly three years of investigation and
11 appeal.
12 211. As a result, plaintiff was caused to sustain serious and permanent physical and
13 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
14 depression, mental suffering, and emotional distress.
15 TWENTY EIGHTH CLAIM FOR RELIEF
16 212. Plaintiff repeats and realleges each and every allegation contained in the
17 aforementioned paragraphs of the Complaint as if fully set forth at length herein.
18 213. Plaintiff had the right to be free from unreasonably prolonged detention stemming
19 from defendant USA's negligent mishandling of her housing investigation under Quid Pro
20 Quo Hostile Environment constantly referring to reasonable accommodations.
21 214. Defendant USA was deliberately indifferent to plaintiff by ignoring plaintiff's
22 repeated requests for intervention due to escalating violence. As a result of Defendants
23 failure to investigate or intervene in any way, tolerating facilitating rights under FHA,
24 hostile environment rule, quid pro quo rule, Defendants violated her civil and
25 constitutional rights, creating a further hostile environment and interfered with right to
26 peaceful enjoyment of home.
27 215.Defendant USA unreasonably prolonged plaintiffs detention.
28 Plaintiff Bernstein Tigano was conscious of said unreasonably prolonged detention.

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1 Plaintiff Bernstein Tigano did not consent to said unreasonably prolonged detention.
2 The unreasonably prolonged detention was not otherwise privileged.
3 Defendant USA's conduct resulting in plaintiff's unreasonably prolonged detention
4 shocked the conscience.
5 220. The actions of defendant USA violated plaintiffs right to be free from
6 unreasonably prolonged detention.
7 221. As a result of defendant USA's unreasonably prolonged detention of plaintiff,
8 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
9 hostile environment confinement and/or restriction, and to sustain serious and permanent
10 physical and psychological injuries, including but not limited to post-traumatic stress
11 disorder, anxiety, depression, mental suffering, and emotional distress.
12 TWENTY NINTH CAUSE OF ACTION
13 222. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
14 fully set forth herein.
15 223. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
16 Region IX Department of Housing and Urban Development located in San Francisco,
17 California, and acting under color of federal law, personally participated and
18 conspired in acts as set forth supra, for the purpose of violating plaintiffs Fourth
19 amendment constitutional right to be safe and secure in home, in violation of Bivens. As
20 a result of Defendants failure to investigate or intervene in any way, tolerating facilitating
21 rights under FHA, hostile environment rule, quid pro quo rule, Defendants violated her
22 civil and constitutional rights, creating a further hostile environment and interfered with
23 right to peaceful enjoyment of home.
24 224. As a result of Defendant Kish's negligence in failing to provide plaintiff with his
25 Fourth amendment constitutional right to be free from unreasonable search and seizure,
26 plaintiff was caused to suffer an egregiously oppressive nearly three years of
27 investigation and appeal. As a result of Defendants failure to investigate or intervene in
28 any way, tolerating facilitating rights under FHA, hostile environment rule, quid pro quo

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1 rule, Defendants violated her civil and constitutional rights, creating a further hostile
2 environment and interfered with right to peaceful enjoyment of home.
3 225. As a result, plaintiff was caused to sustain serious and permanent physical and
4 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
5 depression, mental suffering, and emotional distress.
6 THIRTIETH CAUSE OF ACTION
7 226. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
8 fully set forth herein.
9 227. Defendant Paul Smith in his official and individual capacity Chief, Intake Branch,
10 Region IX Department of Housing and Urban Development located in San Francisco,
11 California, and acting under color of federal law, personally participated and
12 conspired in acts as set forth supra, for the purpose of unreasonably prolonging the
13 detention of plaintiff, in violation of Bivens. As a result of Defendants failure to
14 investigate or intervene in any way, tolerating facilitating rights under FHA, hostile
15 environment rule, quid pro quo rule, Defendants violated her civil and constitutional
16 rights, creating a further hostile environment and interfered with right to peaceful
17 enjoyment of home.
18 228. Plaintiff had the right to be free from unreasonably prolonged detention stemming
19 from Defendant Kish's negligent mishandling of her investigation as Senior Director of
20 CAL DFEH responsibility lies with the leadership.
21 229. Defendant Kish was deliberately indifferent to plaintiff by ignoring plaintiff's
22 repeated requests for intervention to stop harassment, violence, abuses. As a result of
23 Defendants failure to investigate or intervene in any way, tolerating facilitating rights
24 under FHA, hostile environment rule, quid pro quo rule, Defendants violated her civil and
25 constitutional rights, creating a further hostile environment and interfered with right to
26 peaceful enjoyment of home.
27 230. Defendant Kish unreasonably prolonged plaintiff's detention.
28 Plaintiff Bernstein Tigano was conscious of said unreasonably prolonged detention.

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1 Plaintiff Bernstein Tigano did not consent to said unreasonably prolonged detention.
2 The unreasonably prolonged detention was not otherwise privileged.Defendant Kish's
3 conduct resulting in plaintiffs unreasonably prolonged detention shocked the conscience.
4 As a result of Defendants failure to investigate or intervene in any way, tolerating
5 facilitating rights under FHA, hostile environment rule, quid pro quo rule, Defendants
6 violated her civil and constitutional rights, creating a further hostile environment and
7 interfered with right to peaceful enjoyment of home.
8 235. The actions of Defendant Kish violated plaintiff's right to be free from
9 unreasonably prolonged detention.
10 236. As a result of Defendant Kish's unreasonably prolonged detention of plaintiff,
11 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
12 hostile environment confinement and/or restriction, and to sustain serious and permanent
13 physical and psychological injuries, including but not limited to post-traumatic stress
14 disorder, anxiety, depression, mental suffering, and emotional distress.
15 THIRTY FIRST CAUSE OF ACTION
16 237. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
17 fully set forth herein.
18 238. Defendant Kevin Kish, in his official and individual capacity as Director of the
19 California Department of Fair Employment and Housing of the State of California
20 located in Sacramento, California, and acting under color of federal law, personally
21 participated and conspired in acts as set forth supra, for the purpose of violating plaintiffs
22 Fourth amendment
23 constitutional right to be free from unreasonable search and seizure, in violation of
24 Bivens.
25 239. As a result of Defendant Kish's negligence in failing to provide plaintiff with her
26

27

28

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1 Fourth Amendment constitutional right to be secure in her home discriminating against

2 white woman, christian,17 plaintiff was caused to suffer an egregiously oppressive nearly
3 three years of investigation and appeal.
4 240. As a result, plaintiff was caused to sustain serious and permanent physical and
5 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
6 depression, mental suffering, and emotional distress.
7 THIRTY SECOND CAUSE OF ACTION
8 241. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
9 fully set forth herein.
10 242. Defendant Kevin Kish, in his official and individual capacity as Director of the
11 California Department of Fair Employment and Housing of the State of California
12 located in Sacramento, California , and acting under color of federal law, personally
13 participated and conspired in acts as set forth supra, for the purpose of unreasonably
14 prolonging the detention of plaintiff, in violation of Bivens. As a result of Defendants
15 failure to investigate or intervene in any way, tolerating facilitating rights under FHA,
16 hostile environment rule, quid pro quo rule, Defendants violated her civil and
17 constitutional rights, creating a further hostile environment and interfered with right to
18 peaceful enjoyment of home.
19 243. Plaintiff had the right to be free from unreasonably prolonged detention stemming
20 from Defendant Kish's negligent mishandling of her housing complaint under quid pro
21 quo hostile environment 2016 rule.
22 244. Defendant Kish was deliberately indifferent to plaintiff by ignoring plaintiff's
23 repeated requests for intervention to stop abuses.
24 245. Defendant Kish unreasonably prolonged plaintiffs mental anguish, confinement,
25 detention in her home, restriction from community privileges by failure to find cause
26

27
17 Let them praise the name of the Lord for his name alone is exhalted. As I was with Moses, so I will be with you; I will never
28
leave you nor forsake you.

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1 determination, investigate matter incompetent investigator Defendant Cherie Douglas

2 hostile environment quid pro quo.
3 Plaintiff Bernstein Tigano was conscious of said unreasonably prolonged detention.
4 Plaintiff Bernstein Tigano did not consent to said unreasonably prolonged detention.
5 The unreasonably prolonged detention was not otherwise privileged.
6 Defendant Kish's conduct resulting in plaintiff's unreasonably prolonged
7 detention shocked the conscience.
8 250. The actions of Defendant Kish violated plaintiffs right to be free from
9 unreasonably prolonged detention, confinement, abuse, hostile environment.
10 251. As a result of Defendant Kish’s unreasonably prolonged detention of plaintiff,
11 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
12 hostile environment confinement and/or restriction, and to sustain serious and permanent
13 physical and psychological injuries, including but not limited to post-traumatic stress
14 disorder, anxiety, depression, mental suffering, and emotional distress.
15 THIRTY THIRD CAUSE OF ACTION
16 252. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
17 fully set forth herein.
18 253. Defendant Rosalind Evans, in her individual capacity as an employee of the
19 HUD and acting under color of federal law, personally participated and conspired in acts
20 as set forth supra, for the purpose of violating plaintiff's right to be safe privacy,
21 possessions home in violation of Bivens.
22 254. As a result of Rosalind Evan 's negligence in failing to supervise as HUD Monitor
23 CAL DFEH, to provide plaintiff with her Fourth Amendment constitutional right to be
24 safe and secure, plaintiff was caused to suffer an egregiously oppressive nearly three
25 years of a retaliatory hostile environment in the HOA Community. Prior to the filing of
26 civil lawsuit of which Plaintiff was subjected to harassment, violence, social isolation,
27 alienation, Plaintiff Bernstein enjoyed her home, HOA Community pool and area. After
28 the filing of complaint civil in Alameda Superior Court for breach of fiduciary duty by

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1 HOA Board, Plaintiff Bernstein began being scapegoated for financial condition situation
2 of the property.. Plaintiff called disabled freak, opening salvo in series of verbal assaults,
3 disability slurs, threats to physical safety of which HUD and CAL DFEH would do
4 nothing about.
5 255. As a result, plaintiff was caused to sustain serious and permanent physical and
6 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,
7 depression, mental suffering, and emotional distress.
8 THIRTY FOURTH CAUSE OF ACTION
9 256. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 257. Defendant Smith, in his individual capacity as an employee of the
12 HUD, and acting under color of federal law, personally participated and conspired in acts
13 as set forth supra, for the purpose of unreasonably prolonging the detention, restriction,
14 confinement in her own home of plaintiff, in violation of Bivens.
15 258. Plaintiff had the right to be free from unreasonably prolonged detention stemming
16 from Defendant Smith 's negligent mishandling of her HUD housing investigation .
17 259. Defendant Smith was deliberately indifferent to plaintiff by ignoring
18 plaintiffs repeated requests for security, fear for her physical safety in her home.
19 260. Defendant Smith, unreasonably prolonged plaintiffs detention.
20 Plaintiff Bernstein Tigano was conscious of said unreasonably prolonged detention.
21 Plaintiff Bernstein Tigano did not consent to said unreasonably prolonged detention.
22 The unreasonably prolonged detention was not otherwise privileged.
23 Defendant John/Jane Doe 's conduct resulting in plaintiff's unreasonably
24 prolonged detention, shocked the conscience.
25 265. The actions of Defendant Smith violated plaintiffs right to be free
26 from unreasonably prolonged detention to her condominium because of inability to enjoy
27 the outdoors, causing her to flee complex almost daily before COVID 19, restriction,
28 confinement. Refusal of use of pool paid for denial of privileges.

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1 266. As a result of defendant Smith 's unreasonably prolonged detention, restriction,

2 confinement of plaintiff due to failure to investigate housing complaint, determination of
3 hostile environemnt, plaintiff was caused to suffer an egregiously oppressive nearly three
4 years of a retaliatory hostile environment confinement and/or restriction, and to sustain
5 serious and permanent physical and psychological injuries, including but not limited to
6 post-traumatic stress disorder, anxiety, depression, mental suffering, and emotional
7 distress.
8 THIRTY FIFTH CAUSE OF ACTION
9 267. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
10 fully set forth herein.
11 268. Defendant Douglas, in his/her individual capacity as an employee of the
12 CAL DFEH and acting under color of federal law, personally participated and conspired
13 in acts as set forth supra, for the purpose of violating plaintiffs Fourth amendment
14 constitutional right to be free from unreasonable search and seizure, in violation of
15 Bivens.
16 269. As a result of Defendant Douglas's negligence in failing to provide
17 plaintiff with her Fourth Amendment constitutional rights, plaintiff was caused to suffer
18 an egregiously oppressive nearly three years of investigation and appeal. Defendant
19 Douglas conduct so outrageous in closing file upon Plaintiff Bernstein pleas to amend
20 complaint incorporating intensifying violence enduring disabled epithets, verbal threats
21 and violent threats including assault of Plaintiff February 26 2020. 911 call tape.
22 Plaintiff Bernstein notified Defendant Douglas at least four times about Respondents
23 pervasive and severe conduct. HOA Community conduct so outrageous that it lead to
24 restraining orders. HOA Board President Mike Durbin history of civil restraining orders
25 including pulling guns on women, children, drug possession, false imprisonment by other
26 citizens in 1994 that continually harasses Plaintiff Bernstein to this day.
27 270. As a result, plaintiff was caused to sustain serious and permanent physical and
28 psychological injuries, including but not limited to post-traumatic stress disorder, anxiety,

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 113 of 177

1 depression, mental suffering, and emotional distress.

2 THIRTY SIXTH CAUSE OF ACTION
3 271. Plaintiff repeats and realleges each and every allegation heretofore alleged as if
4 fully set forth herein.
5 272. Defendant Douglas, in his/her individual capacity as an employee of the
6 CAL DFEH, and acting under color of federal law due to HUD worskshare surrogate and
7 state law, personally participated and conspired in acts as set forth supra, for the purpose
8 of unreasonably prolonging the harassment of plaintiff in HOA Community, in violation
9 of Bivens.
10 273. Plaintiff had the right to be free from unreasonably prolonged harassment stemming
11 from Defendant Douglas 's negligent mishandling of her housing investigation complaint.
12 274. Defendant Douglas was deliberately indifferent to plaintiff suffering, cries for help
13 by ignoring plaintiffs repeated requests for intervention contacting Respondents to cease
14 from harassment during housing investigation. Plaintiff Bernstein Tigano was conscious
15 of said unreasonably prolonged detention, restriction, confinement, denial of privileges
16 and enjoyment at condominium, community area paid for monthly. Plaintiff Bernstein
17 Tigano did not consent to said unreasonably prolonged detention, confinement,
18 restrictions. Plaintiff contacted HUD, HUD transferred to CAL DFEH that was to
19 intervene cause cessation of the abuse for filing civil lawsuit retaliation, breach of
20 fiduciary duty by HOA. The unreasonably prolonged detention was not otherwise
21 privileged. The Supreme Court gave guests in someone else's home a broad right of
22 privacy yesterday, ruling that almost all invited. Guests, family members have a right
23 and expectation to privacy, enjoyment 4th amendment constitutional rights.
24 MINNESOTA v. CARTER 569 N. W. 2d 169. Plaintiff Tigano had a reasonable
25 expectation of privacy, safety when with Plaintiff Bernstein.
26 279. Defendant Paul Smith, Defendant Kevin Kish Defendant Douglas' s conduct
27 resulting in plaintiff's unreasonably prolonged detention at HOA, causing Plaintiff to
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 114 of 177

1 have to remain inside during daylight hours due to extreme violence, negating Plaintiff to
2 only be allowed outside in the dark, subjecting shocked the conscience.
3 280. The actions of Defendant Douglas violated plaintiff's right to be free
4 from unreasonably prolonged detention, restriction, confinement, harassment at HOA
5 Community Housing.
6 281. As a result of Defendant Douglas 's unreasonably prolonged detention, restriction,
7 confinement of Plaintiff at HOA Condo premises unable to exercise, enjoy community
8 due to Investigators failure to investigate, interview, charge of hostile environment,
9 plaintiff was caused to suffer an egregiously oppressive nearly three years of a retaliatory
10 hostile environment confinement and/or restriction, and to sustain serious and permanent
11 physical and psychological injuries, including but not limited post-traumatic stress
12 disorder, anxiety, depression, mental suffering, and emotional distress.
13

14 HUD PLAINTIFF TIGANO AND

15 PLAINTIFF BERNSTEIN
INTERRELATED CLAIMS CIVIL RIGHTS
16

17

18 FHA VIOLATIONS PROTECTED CLASS

19 MEMBERS
20
Arizona Fair Housing Act
21 The State of Arizona also has a Fair Housing Act. This
22 state statute is substantially
23 equivalent to its federal fair housing counterpart.
24 Because of the substantial similarities between
25 the two laws, the information covered in this self-
26 advocacy guide also provides an ov erview of
27
the Arizona Fair Housing Act. Information on enforcing
28
your rights under our state’s Fair

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 115 of 177

1 Housing Act can be found in the enforcement section of

2 this guide.18
3

4
Arizona Disabled Rights
Arizona Civil Rights Act
5

6
Unruh Civil Rights Act, the California Disabled Persons
7
Act (CDPA), and the Fair Employment and Housing Act
8
(FEHA). (Federal disability rights laws, such as the
Americans with Disabilities Act (ADA)
9

10

11

12

13
A TALE OF TWO, THREE, FOUR VERY
14

15
DIFFERENT HUDS
16

17

18

19

20

21

22

23

24

25

26

27

28
18 https://www.azdisabilitylaw.org/wp-content/uploads/2016/04/FHA1-Fair-Housing-Rights-Rev-102011.pdf

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10

11

12

13

14

15

16

17

18

HUD AMICUS BRIEF POSITION 15-1823

19

20

21 SECOND CIRCUIT COURT OF APPEALS

22
REPRESENTING IN DONAHUE FRANCIS
V. KINGS PARK MANOR
23

24

25 CONTRADICTORY TO THE RULE THAT

26
IT ENACTED IN 2016 FOR THIS
INDIVIDUAL DONAHUE FRANCIS
27

28
On a certain level of hypocrisy,

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 117 of 177

10

11

12

13
DONAHUE FRANCIS 2014 COMPLAINT
FOR WHICH HUD HOSTILE
14

15

16 ENVIRONMENT RULE, QUID PRO QUO

17
ENACTMENT
18

19

20

21

22

23

24

25

26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 118 of 177

1 HUD DISCRIMINATED AGAINST

PLAINTIFFS DID NOT APPLY THIS
2

4 RULE TO PLAINTIFFS APPARENTLY

5 THIS RULE WAS ONLY ENACTED FOR
THIS INVIDUAL DONAHUE FRANCIS
6

10

11 Castillo Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev.,

12 No. 14-2139 (1st Cir. 2016)

In Donohue Francis, Carlo Gimenez

13

14

15
Bianco (Gimenez) matters, HUD
16 sympathizes with these minority men,
however, white disabled women and
17

18

19 white Asian woman were

20 discriminated against in relief by
Defendant USA.
21

22
When Carlo Gimenez Bianco (Gimenez) refused to remove his
23 emotional support dog from his condominium unit in violation of the
24 Castillo Condominium Association’s “no pets” bylaw, the Association
25
forced Gimenez to vacate and sell the unit. Gimenez brought a
complaint of disability discrimination with the United States
26
Department of Housing and Urban Development (HUD), which filed a
27 charge of discrimination against the Association. An administrative law
28
judge (ALJ) issued a recommended decision concluding that the
Association had not violated the Fair Housing Act. The Secretary of

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 119 of 177

1
HUD set aside the ALJ’s recommended decision and found the
Association liable for discrimination. On remand, the ALJ issued a
2
recommended decision proposing to award Gimenez $3,000 in
3 emotional distress damages and assessed a $2,000 civil penalty against
4 the Association. The Secretary increased the proposed award of
emotional distress damages to $20,000 and increased the civil penalty to
5
$16,000. The First Circuit denied the Association’s petition for review
6 and granted the Secretary’s cross-petition for enforcement of his order,
7 holding (1) the Secretary’s final order was supported by substantial
evidence in the record; (2) the ALJ did not err in refusing to apply res
8
judicata to pretermit Gimenez’s HUD charge; and (3) the Secretary’s
9 final order was not tainted by procedural error.
10

11
Castillo case This case rests on a statutory foundation: the Fair
12 Housing Act (the Act), 42 U.S.C. §§ 3601-3619. As relevant here,
13
the Act proscribes discrimination in housing and housing-related
matters based on a person's disability. 19 See id. § 3604(f). Under
14
the Act, a cognizable disability is "(1) a physical or mental
15 impairment which substantially limits one or more of [a] person's
16 major life activities, (2) a record of having such an impairment,
or (3) being regarded as having such an impairment." Id.
17
§ 3602(h).
18

19 Pertinently, the Act outlaws discrimination in

connection with the terms, conditions, or privileges of housing.
20
See id. § 3604(f)(2). Discrimination includes, among other things,
21
the "refusal to make reasonable accommodations in rules, policies,
22 practices, or services, when such accommodations may be necessary
23
to afford such person equal opportunity to use and enjoy a
dwelling." Id. § 3604(f)(3)(B).
24

25

26

27

28 19Although the Act uses the term "[h]andicap" rather than "disability," see 42 U.S.C. § 3602(h), we follow the parties' lead
and employ the term "disability" throughout.

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10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 121 of 177

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 122 of 177

4 HUD 2016 QUID PRO QUO RULE WAS

5 IN EFFECT WHILE PLAINTIFFS
SOUGHT RELIEF FROM HUD AND AT
6

8 THE TIME OF FILING THIS COMPLAINT

9
In Defendant USA Department of Housing and Urban Development amicus brief
10 concerning their own rule enacted 81 FR 63054 - Quid Pro Quo and Hostile Environment
Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing
11
Act in Francis v. Kings Manor Appeal 15-1823, Defendant USA speaks out of both sides
12 of mouth. This rule was enacted for Donohue Francis, an African American that now
Defendant USA attempts to distance self from saying that the appeal should not rely on
13
2016 rule but solely on FHA. “This Court should interpret the FHA itself, without relying
14 on the 2016 HUD Rule. The Court should also recognize that the FHA applies to
intentional post-acquisition discrimination concerning the terms, conditions, or privileges
15
of rental or sale, or the provision of services or facilities in connection therewith.”
16
The rule addresses only quid pro quo and hostile environment harassment, and not
17
conduct generically referred to as harassment that, for different reasons, may violate
18 section 818 or other provisions of the Fair Housing Act. For example, a racially hostile
statement by a housing provider could indicate a discriminatory preference in violation of
19 section 804(c) of the Act, or it could evidence intent to deny housing or discriminate in
20 the terms or conditions of housing in violation of sections 804(a) or 804(b), even if the
statement does not create a hostile environment or establish a quid pro quo. Section 818,
21 which makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in
22 the exercise or enjoyment of” rights protected by the Act, or on account of a person
having aided others in exercising or enjoying rights protected by the Act, could be
23 violated by conduct that creates a quid pro quo or hostile environment. It is not, however,
24
limited to quid pro quo or hostile environment claims and could be violated by other
conduct that constitutes retaliation or another form of coercion, intimidation, threats, or
25 interference because of a protected characteristic. In sum, this rule provides standards that
are uniformly applicable to claims of quid pro quo and hostile environment harassment
26
under the Fair Housing Act, regardless of the section of the Act that is alleged to have
27 been violated, and the same discriminatory conduct could violate more than one
provision of the Act whether or not it also constitutes quid pro quo or hostile environment
28
harassment.

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2 HUD ATTEMPTS TO RETRACT RELIEF

3 PROVIDED IN PROPOSAL
The rule is in effect right now Plaintiffs
4

6 filed in 2018 and 2016 Rule still in

7 place, Plaintiffs have sought relief
under which HUD, CAL DFEH refuse to
8

10 apply to Plaintiffs in this action hostile

11 environment, quid pro quo
12

13

14 A Rule is implemented for obedience or

15 disobedience or consequences not
metaphorically govern
16

17

18 HUD now tries to state that this “Rule” is only interpretative, metaphoric and not
legislative
19

20 This is true regardless of whether the Court views the 2016 HUD Rule as a legislative or
an interpretive rule—a subject on which the panel majority and dissent disagreed. In
21
promulgating the 2016 HUD Rule, HUD took the position, to which it adheres, that the
22 rule was interpretive in nature. See, e.g., Final Rule, 81 Fed. Reg. 63,068. In its initial
opinion, the panel accepted “HUD’s characterization of its own regulation as
23
interpretive.” Kings Park I, 917 F.3d 109, 123 (2d Cir. 2019). If the en banc Court were
24 to agree, then the 2016 HUD Rule “do[es] not have the force and effect of law.” See
Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 97 (2015) (citation omitted).
25

26 If the Court concludes that the 2016 HUD Rule is a legislative rule, the rule likewise
would not apply in this case because it became effective on October 14, 2016, after the
27
date of the complaint in this case, and it is not retroactive. See City of N.Y. v. Permanent
28 Mission of India to United Nations, 618 F.3d 172, 192-193 (2d Cir. 2010) (explaining
that, as “to rulemaking by executive agencies and departments, [the] presumption against

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 124 of 177

retroactivity means that ‘a statutory grant of legislative rulemaking authority will not, as a
1
general matter, be understood to encompass the power to promulgate retroactive rules’”)
2 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)), cert. denied, 564
U.S. 1046 (2011); see Kings Park I, 917 F.3d at 140 (Livingston, J., dissenting)
3
(maintaining that “the Rule is legislative, and so cannot have [a] retroactive effect on this
4 case”).
5
Plaintiffs sought protected from HUD filed BELIEVING that they would have protection
6 from retaliatory treatment. Defendant USA HUD and Defendant partner CAL DFEH
exposed Plaintiffs to further harassment leaving Plaintiffs out on a limb by themselves.
7
This demonstrates the dysfunction, acrimonious and divisive this Department of Housing
8 and Urban Development agency characterstic speaking out of both sides of the mouth.
One cannot serve to masters: tenants/landlords in this conflict. This rule was ostensbiltuy
9
written to aid exploited and harassed tenants. This presumably was to place
10 responsibility with the landlord in the position as Lord of the Land to demand abidance of
rules, decency.
11

12 The crux of the matter crux of the matter is the landlord responsibility as authority to
protect tenants from other tenants. The basic, central or critical point of an issue.
13 Removal of this language renders the rule absolutely worthless. This provides license for
14
the landlord to abdicate responsibility leaving their subjects or others to fend for
themselves. In Plaintiff Tigano position, affected by Plaintiff Bernstein teantns harassing
15 her during learning, visitations. In additiona, Plaintiff Tigano does not know the identity
16
of individuals in Section 8 housing across the street to pursue remedies. The property
management MEB, the owners Dodge Partners and the on site Manager will not
17 cooperate to achieve cessation of the abusive behavior. These entities have the power to
investigate, put on notice, demand that harassment stop concerning handicapped
18
neighbors across the street. HUD provides federal funding and could use as leverage
19 against disruptive individuals identities unknow that they face eviction, loss of benefits if
the parents do not control their minor children.
20

21 Likewise in Plaintiff Bernstein situation wherein the HOA acts the landlord power to
issue violations, control as well as the property management firm that carries out
22
responsibilities at the direction of the HOA Board members to demand that harassment
23 ends of disabled homeowner. Removal of the language renders the 2016 rule impotent.

24

25 IF HUD REMOVES THE

PARAGRAPH “THIRD
26

27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 125 of 177

2
PARTY LIABILITY,” THE
3
CRUX OF THE RELIEF FOR
4

5 THE PUBLIC, THERE IS

6

7
NOTHING LEFT! THERE IS
8

9
NO POINT TO THE RULE,
10 THERE IS NO RELIEF FOR
11

12 ANY ABUSED PEOPLE!

13

14

15
HUD Proposes Change to
16
Weaken Anti-Harassment Rule
17
Sep 28, 2020
18
HUD proposes a change to the 2016 Harassment rule, eliminating a paragraph
19 pertaining to “third-party liability” under the Fair Housing Act of 1968. If the change is
20
implemented, it would not be clear what a resident or advocate could do against a
landlord when the landlord knows that a third party (e.g., a neighbor) is harassing a
21
resident, yet the landlord fails to take action against the third party.
22

23 Background
HUD published a final rule on September 14, 2016 amending fair housing regulations
24
designed to protect individuals who experience harassment in housing. The courts and
25
HUD have long considered harassment based on race, color, national origin, sex, family
26 status, disability, and religion (“protected classes”) to be prohibited under the Fair
27 Housing Act. However, standards for assessing harassment claims had not previously
been formalized in regulation. To address this, the rule added to the existing regulation
28
definitions of the terms “quid pro quo” (“this for that”) harassment and “hostile

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 126 of 177

1 environment” harassment, and clarified standards for “direct liability.” It is the last
feature that the current Administration seeks to modify, eliminating paragraph (a)(iii) of
2
24 CFR part 100.7. The proposed change from the Administration will weaken fair
3
housing enforcement.
4 The 2016 rule provided in 24 CFR 100.7 several direct and vicarious liability principles
5 for who may be liable under the Fair Housing Act that were not previously contained in
HUD’s regulations. Paragraph (a)(iii) allows for liability on the part of a housing provider
6
for the actions of a third party, such as neighbor, who harasses another resident. In a
7
number of past cases, HUD held a landlord liable for neighbor to neighbor harassment
8 when the landlord knew about the harassment and had an obligation to address it under
9
a lease, but did not.

10
Section 100.7(a) of the 2016 rule is titled “Liability for Discriminatory Housing Practices.”
11 Subparagraph (a)(1) is “Direct Liability. A person is directly liable for:
12
“Failing to take prompt action to correct and end a discriminatory housing practice by a
13
third-party, where the person knew or should have known of the discriminatory conduct
14 and had the power to correct it. The power to take prompt action to correct and end a
15 discriminatory housing practice by a third-party depends upon the extent of the person's
16
control or any other legal responsibility the person may have with respect to the conduct
of such third-party.”
17

18 HUD’s Proposal
19 The proposal was sent to the Office of Information and Regulatory Affairs (OIRA) at the
Office of Management and Budget (OMB) on September 23. The proposed change is
20
titled “Reconsideration of Third-Party Liability Under the Fair Housing Act.” The
21
proposal was listed in HUD’s Spring 2020 Regulatory Agenda. HUD claims existing law
22 does not support the interpretive position that the Fair Housing Act creates negligence-
23 based liability for a property owner or manager for discriminatory conduct by a third
party who is not a common law agent of the property owner or manager. The
24
description states no other portions of the 2016 rule are changed.
25 The description of the proposed change is at: https://bit.ly/33XFmaL
26 The 2016 final rule is at: https://bit.ly/3ct1JZy
27

28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 127 of 177

1 HUD has submitted to OIRA, for

2 publication on its regulatory
3 agenda, HUD’s intention to
4 engage in rulemaking to withdraw
5 the 2016 HUD Rule. See Wetzel v. Glen St.
6 Andrew Living Cmty., LLC, 901 F.3d 856, 866 (7th Cir.
7 2018) (stating that “more analysis than HUD was able to
8 offer is necessary” before the court could apply the
9 standard reflected in the 2016 HUD Rule), cert.
10 dismissed, 139 S. Ct. 1249 (2019); Kings Park II, 944
11 F.3d 370, 379 n.7 (2d Cir. 2019) (stating that “we need
12 not and do not rely on [the 2016 HUD Rule] to resolve
13 this appeal” and that it “express[ed] no view regarding
14 [HUD’s] formulation”).
15

16 Thus, whether the 2016 HUD Rule is interpretive or

17 legislative, it does not control the disposition of
18 this appeal, and this Court can and should decide this
19 case based on the Court’s own interpretation of FHA.
20

21
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2529-AB00
22

23

24 View Rule
25 View EO 12866
Printer-Friendly Version Download RIN Data in XML
26 Meetings

27

28
HUD/FHEO RIN: 2529-AB00 Publication ID: Spring 2020

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 128 of 177

1 Title: ●Reconsideration of Third-Party Liability Under the Fair Housing Act (FR-6214)

2
Abstract:
3
In 2016, HUD issued a new rule that, among other things, set forth in 24 CFR 100.7 several direct and vicarious
4 liability principles for who may be liable under the Fair Housing Act, which were not previously contained in HUD’s
regulations. Subsequent developments in case law, primarily the U.S. Court of Appeals for the Second Circuit’s
December 2019 opinion in Francis v. King’s Park Manor , have caused HUD to reconsider its 2016 rulemaking on
5
one of those principles of liability, 24 CFR 100.7(a)(iii), which allows for liability on the part of a housing provider for
the actions of a third party (third party liability). HUD’s considered view is now that existing law does not support the
6 interpretive position that the Fair Housing Act creates negligence-based liability for a property owner or manager for
discriminatory conduct by a third party who is not a common law agent of such property owner or manager. This
7 proposed rulemaking would strike 24 CFR 100.7(a)(iii) from the regulation while leaving the remainder of the 2016
rulemaking intact. This would better allow courts to develop the Fair Housing Act in the area of third party liability.
8

10 Agency: Department of Housing and Urban

Priority: Other Significant
11 Development(HUD)

12
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
13
Major: No Unfunded Mandates: No
14
EO 13771 Designation: Other
15
CFR Citation: 24 CFR 100
16

Legal Authority: 42 U.S.C. 3535(d) 42 U.S.C. 3601-3619

17

18 Legal Deadline: None

19 Timetable:

20 Action Date FR Cite

21
NPRM 11/00/2020
22
Regulatory Flexibility Analysis Required: No Government Levels Affected: Undetermined
23
Federalism: No
24

25 Included in the Regulatory Plan: No

26 RIN Data Printed in the FR: No

27 Agency Contact:

28 David Enzel

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 129 of 177

1 Deputy Assistant Secretary for Enforcement and Programs

2 Department of Housing and Urban Development

3 Office of Fair Housing and Equal Opportunity

4 451 Seventh Street SW,

5 Washington, DC 20410

6 Phone:202 402-5557

8 https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2529-AB00
9

10
View Rule
11
View EO 12866
12 Printer-Friendly Version Download RIN Data in XML
Meetings
13

14

HUD/FHEO RIN: 2529-AB00 Publication ID: Spring 2020

15

16 Title: ●Reconsideration of Third-Party Liability Under the Fair Housing Act (FR-6214)

17 Abstract:

18
In 2016, HUD issued a new rule that, among other things, set forth in 24 CFR 100.7 several direct and vicarious
liability principles for who may be liable under the Fair Housing Act, which were not previously contained in HUD’s
19
regulations. Subsequent developments in case law, primarily the U.S. Court of Appeals for the Second Circuit’s
December 2019 opinion in Francis v. King’s Park Manor , have caused HUD to reconsider its 2016 rulemaking on
20 one of those principles of liability, 24 CFR 100.7(a)(iii), which allows for liability on the part of a housing provider for
the actions of a third party (third party liability). HUD’s considered view is now that existing law does not support the
21 interpretive position that the Fair Housing Act creates negligence-based liability for a property owner or manager for
discriminatory conduct by a third party who is not a common law agent of such property owner or manager. This
22 proposed rulemaking would strike 24 CFR 100.7(a)(iii) from the regulation while leaving the remainder of the 2016
rulemaking intact. This would better allow courts to develop the Fair Housing Act in the area of third party liability.
23

24
Agency: Department of Housing and Urban
25 Priority: Other Significant
Development(HUD)
26 RIN Status: First time published in the Unified Agenda Stage of Rulemaking: Proposed Rule
Agenda Stage
27
Major: No Unfunded Mandates: No
28 EO 13771 Designation: Other

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 130 of 177

1
CFR Citation: 24 CFR 100
Legal Authority: 42 U.S.C. 3535(d) 42 U.S.C. 3601-3619
2
Legal Deadline: None
3 Timetable:
Action Date FR Cite
4
NPRM 11/00/2020
5
Regulatory Flexibility Analysis
Government Levels Affected: Undetermined
6 Required: No
Federalism: No
7
Included in the Regulatory Plan: No
8 RIN Data Printed in the FR: No
9 Agency Contact:
David Enzel
10 Deputy Assistant Secretary for Enforcement and Programs
Department of Housing and Urban Development
11
Office of Fair Housing and Equal Opportunity
12 451 Seventh Street SW,
Washington, DC 20410
13 Phone:202 402-5557
14
FINAL RULE https://www.govinfo.gov/content/pkg/FR-2016-09-14/pdf/2016-21868.pdf
15
Subpart H— Quid Pro Quo and Hostile Environment Harassment § 100.600 Quid pro quo and
16
hostile environment harassment. (a) General. Quid pro quo and hostile environment harassment
17 because of race, color, religion, sex, familial status, national origin or handicap may violate
sections 804, 805, 806 or 818 of the Act, depending on the conduct. The same conduct may
18 violate one or more of these provisions. (1) Quid pro quo harassment. Quid pro quo harassment
refers to an unwelcome request or demand to engage in conduct where submission to the request
19
or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or
20 availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the
provision of services or facilities in connection therewith; or the availability, terms, or conditions
21 of a residential real estate-related transaction. An unwelcome request or demand may constitute
quid pro quo harassment even if a person acquiesces in the unwelcome request or demand. (2)
22
Hostile environment harassment. Hostile environment harassment refers to unwelcome conduct
23 that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or
enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision
24 or enjoyment of services or facilities in connection therewith; or the availability, terms, or
conditions of a residential real estate-related transaction. Hostile environment harassment does
25
not require a change in the economic benefits, terms, or conditions of the dwelling or
26 housingrelated services or facilities, or of the residential real-estate transaction. (i) Totality of the
circumstances. Whether hostile environment harassment exists depends upon the totality of the
27 circumstances. (A) Factors to be considered to determine whether hostile environment
28
harassment exists include, but are not limited to, the nature of the conduct, the context in which
the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct,

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and the relationships of the persons involved. (B) Neither psychological nor physical harm must
1
be demonstrated to prove that a hostile environment exists. Evidence of psychological or
2 physical harm may, however, be relevant in determining whether a hostile environment existed
and, if so, the amount of damages to which an aggrieved person may be entitled. (C) Whether
3 unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is
evaluated from the perspective of a reasonable person in the aggrieved person’s position. (ii)
4
Title VII affirmative defense. The affirmative defense to an employer’s vicarious liability for
5 hostile environment harassment by a supervisor under Title VII of the Civil Rights Act of 1964
does not apply to cases brought pursuant to the Fair Housing Act. (b) Type of conduct.
6 Harassment can be written, verbal, or other conduct, and does not require physical contact. (c)
7
Number of incidents. A single incident of harassment because of race, color, religion, sex,
familial status, national origin, or handicap may constitute a discriminatory housing practice,
8 where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro
quo. Dated: August 18, 2016. Gustavo Velasquez, Assistant Secretary for Fair Housing and
9 Equal Opportunity. [FR Doc. 2016–21868 Filed 9–13–16; 8:45 am] BILLING CODE 4210–67–
10
P

AMICUS BRIEFS FILED IN SUPPORT OF

11

12

13 DONOHUE FRANCIS APPELLANT

14

15
Case Caption
16
Francis v. Kings Park Manor, Inc., No. 14-cv-3555 (E.D.N.Y.)
17

18 Francis v. Kings Park Manor, Inc., No. 15-1823 (2d Cir.)

19
Published Decisions
20
944 F.3d 370 (2d Cir. 2019)
21

22 91 F. Supp. 3d 420 (E.D.N.Y. 2015)

23
RELATED MATERIALS
24
Complaint
25
Second Circuit Opinion (Dec. 6, 2019)
26
Plaintiff-Appellant's Opening Brief (March 16, 2020)
27
Amicus Brief of Lawyers' Committee in Support of Appellant
28

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 132 of 177

1 Amicus Brief of NFHA, et al. in Support of Appellant

2 Brief for Defendants-Appellees
3 Amicus Brief of Georgetown University Law Center in Support of Appellant
4 Amicus Brief of AARP, et al. in Support of Appellant
5 Amicus Brief of LatinoJustice, et al. in Support of Appellant
6 Amicus Brief of ACLU, NYCLU, NWLC, et al. in Support of Appellant
7 Amicus Brief of State of New York in Support of Appellant
8 Amicus Brief of Paralyzed Veterans of America and Public Justice Center in
9 Support of Appellant
10 Amicus Brief of NAACP Legal Defense and Education Fund in Support of
11 Appellant
12 Amicus Brief of US DOJ in Support of Neither Party
13 Amicus Brief of City of New York in Support of Appellant
14 Amicus Brief of New Civil Liberties Alliance in Support of Neither Party
15 Amicus Brief of Court-Appointed Amicus Debo Adegbile in Support of
16 Appellant
17 Reply Brief of Plaintiff-Appellant Donahue Francis
18

19 EMOTIONAL, PSYCHOLOGICAL
20 DISTRESS, MENTAL ANGUISH SUFFERED
21 BY PLAINTIFF BERNSTEIN BY THE VERY
22 NEIGHBORS PLAINTIFF BERNSTEIN WAS
23 CONSCRIPTED, ATTEMPTED TO ASSIST IN
24 THEIR PREDICAMENT. SECOND OPINION
25 MEMO CIRCULATED THAT HOMEOWNERS
26 HAVING DIFFICULTY OBTAINING
27 DOCUMENTS, URGENT, SEEKING
28 ASSISTANCE FROM OTHER

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1 HOMEOWNERS. PLAINTIFF BERNSTEIN

2 $50,000 EXPENSE TO ATTEMPT TO HALT
3 “EMERGENCY ASSESSMENT” LEVIED AND
4 OBTAINING DOCUMENTS TO ASSIST ALL
5 THE HOMEOWNER COMMUNITY AS THE
6 NEW AND OLD BOARDS WERE NOT
7 DOING, INCAPABLE OF DOING. THIS HOA
8 COMMUNITY RETURNED EVIL FOR GOOD.
9 RETURNING KINDNESS WITH VIOLENCE,
10 HATRED, ALIENATION OF PLAINTIFF.
11 PERPETRATED FRAUD, RUSE BY
12 MEADOWBROOK TO COVER UP AND
13 REPLENISH MISSING RESERVE FUNDS.
14

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SOME OF THE SIGNED FLYERS
28

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27 EMOTIONAL, PSYCHOLOGICAL DISTRESS,

28 MENTAL ANGUISH SUFFERED BY

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1 PLAINTIFF TIGANO ATTEMPTING TO BE

2 KIND TO THE DISADVANTAGED
3 CHILDREN ACROSS THE STREET.
4 PLAINTIFF TIGANO GAVE AWAY TOYS,
5 OTHER ITEMS DONATING TO CHILDREN
6 ACROSS THE STREET IN ATTMPT TO
7 CAUSE THE HATEFULNESS TO CEASE.
8 THIS APARTMENT COMMUNITY
9 RETURNED EVIL FOR GOOD. RETURNING
10 KINDNESS WITH VIOLENCE, HATRED,
11 ALIENATION OF PLAINTIFF.
12
The rule addresses only quid pro quo and hostile environment harassment, and not conduct
13
generically referred to as harassment that, for different reasons, may violate section 818 or other
14 provisions of the Fair Housing Act. For example, a racially hostile statement by a housing
provider could indicate a discriminatory preference in violation of section 804(c) of the Act, or it
15 could evidence intent to deny housing or discriminate in the terms or conditions of housing in
violation of sections 804(a) or 804(b), even if the statement does not create a hostile
16
environment or establish a quid pro quo. Section 818, which makes it unlawful to “coerce,
17 intimidate, threaten, or interfere with any person in the exercise or enjoyment of” rights
protected by the Act, or on account of a person having aided others in exercising or
18 enjoying rights protectedby the Act, could be violated by conduct that creates a quid pro
19
quo or hostile environment. It is not, however, limited to quid pro quo or hostile environment
claims and could be violated by other conduct that constitutes retaliation or another form of
20 coercion, intimidation, threats, or interference because of a protected characteristic. In sum, this
rule provides standards that are uniformly applicable to claims of quid pro quo and hostile
21 environment harassment under the Fair Housing Act, regardless of the section of the Act
22
that is alleged to have been violated, and the same discriminatory conduct could violate
more than one provision of the Act whether or not it also constitutes quid pro quo or
23 hostile environment harassment.
24 HUD INVESTIGATED HOME OWNER
25
ISSUES WITH LOW INCOME HOUSING
COMPLAINT PAUL SMITH BERKELEY
26

27

28 WHITE V. ELIZABETH JULIAN

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2 Prior to 1997 HUD passing off responsibilities to California DFEH MOU, HUD
3 actually investigated Alexandra White. Defendant Paul Smith was also involved in
4 this matter. Defendant Paul Smith was the San Francisco Office's investigations
5 branch chief. Plaintiffs Alexandra White, Joseph Deringer, and Richard Graham
6 are residents of Berkeley, California. White and Deringer are married to each
7 other. Graham is their neighbor. This matter involved home owner
8 investigations and low income housing. Plaintiff Tigano and mother are
9 homeowners across the street enduring harassment and discrimination by low
10 income apartment tenants Mission Vista in Tucson, Arizona. Defendant Paul
11 Smith felt this case worthy to pursue but refused to investigate Plaintiff Bernstein
12 and Plaintiff Tigano matters. Defendant Paul Smith advised that he has never lost
13 a case. Curiously state bar membership inactive and with HUD has also performed
14 as a non attorney position.
15

16
At all times relevant to this case, defendant Elizabeth Julian was the assistant
secretary of HUD for Fair Housing and Equal Opportunity (FHEO). Defendant
17 LaVera Gillespie was the director of the Regional Office of FHEO in San
18 Francisco (“the San Francisco Office”). Defendant Paul Smith was the San
Francisco Office's investigations branch chief. Defendant Russell Bruce Lee
19
(now deceased) was an investigator, and defendant Robert Zurowski was an
20 investigator-conciliator. Defendant John Phillips was special assistant to the
21
HUD regional administrator.

22 2. Conversion of the Bel Air Motel

23
On May 12, 1992, a local nonprofit housing developer, Resources for Community
24
Development (RCD), applied for a use permit from Berkeley's Zoning Adjustment
25 Board. RCD sought to convert the Bel Air Motel, a property on University
Avenue, to a multi-family housing unit for homeless persons. The use permit
26
required approval by both the Zoning Adjustment Board and the Berkeley City
27 Council.
28 The plaintiffs lived close to the Bel Air Motel and were opposed to its proposed
conversion. They expressed their opposition in a variety of ways. They wrote

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1
to the Berkeley City Council, spoke out before the Zoning Adjustment Board and
at other public meetings, and published a newsletter with articles critical of the
2 project. The front page of the February 1993 issue of the plaintiffs' newsletter,
3 Flatland News, for example, contained an article titled “City Forcing Bel Air
Project Down Our Throats.” The plaintiffs discussed their opposition to the
4
project with the local press and attempted to persuade merchants on University
5 Avenue to oppose the Bel Air project also.
6
The Zoning Adjustment Board granted RCD its use permit on October 1, 1992.
7 An appeal to the Berkeley City Council failed, by a 4-4 vote, in April 1993. That
8 same month, a coalition in which plaintiffs were involved (“the Coalition of
Neighborhood Groups Opposing the Bel Air Conversion”) filed a lawsuit against
9
Berkeley and RCD in state court. Plaintiff White verified the complaint. It
10 alleged that one of the Zoning Adjustment Board's members, Linda Maio, was also
a member of RCD's board and, because of this conflict of interest, improperly
11
participated in the Zoning Adjustment Board's hearings. On April 19, the
12 coalition moved for a preliminary injunction to prevent the issuance of an effective
13 use permit. The Alameda County Superior Court denied the motion and set the
case for trial on November 15, 1993. Although RCD's use permit became
14
effective in May 1993, the developer thereafter experienced difficulty obtaining
15 promised funds for the project from Berkeley and had to seek repeated extensions
from other funders.
16

17 The Superior Court entered final judgment against the plaintiffs' coalition on
18
February 3, 1994.

19 3. HRI's Complaint to HUD

20
Marianne Lawless (now deceased) was the executive director of Housing Rights,
21
Inc. (“HRI”), a Berkeley housing rights advocacy group. She had testified at a
22 hearing in support of the Bel Air project. On October 15, 1993, Lawless wrote a
23
letter to the San Francisco Office stating her intention to file a HUD administrative
complaint against the plaintiffs. Lawless attached a letter dated October 12 from
24 the executive director of RCD to the Housing and Civil Enforcement Section of the
25 Department of Justice complaining about the plaintiffs' opposition to the Bel Air
project.3 Lawless also attached several flyers and other documents which, she
26
stated, “demonstrate the discriminatory scare tactics used by the opponents.” 4
27
A HUD complaint intake analyst in the San Francisco Office (not a defendant here)
28
spoke with Lawless about her complaint. The analyst wrote in a memorandum

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1
that “Ms. Lawless stated that these named residents, also known as the ‘Coalition
of Neighborhood Group Opposing RCD Plan for the Bel-Air Conversion[,]’ is [sic]
2 a very vocal group who stand firm in their belief that the homeless persons moving
3 into the area will be undesirables who are mentally disabled or disabled through
substance abuse.”
4

5 The analyst concluded that HUD had jurisdiction and should accept Lawless's
6
complaint for processing, and a supervisor concurred. On October 26, the intake
analyst drafted an administrative complaint against the plaintiffs on Form HUD-
7 903. Boxes on the form were checked indicating that HRI had been
8 “[i]ntimidated, interfered [with], or coerced ․ to keep [HRI] from the full benefit of
the Federal Housing Law” and that the plaintiffs had engaged in discrimination on
9
the basis of mental handicap. The complaint included the following statement
10 written on HRI's behalf:
11
We are a fair housing agency in the city of Berkeley. As such, one of our
12 missions is to ensure equal opportunities for all persons. The above named
13 respondents have impaired our ability to ensure equal housing by impeding the
proposed conversion of the Bel Air Motel to permanently house low-income
14
homeless persons. One of their principal arguments against this project is that it
15 will benefit people that are diagnosed as mentally disabled or disabled through
16
substance abuse. Although the respondents unsuccessfully attempted to obtain a
preliminary injunction against the developer acquiring a use permit, they have been
17 given a trial date for November 15, 1993. We believe the above named
18 individuals are blocking the proposed project because they perceive the primary
residents of the facility will be the mentally disabled or the disabled through
19
substance abuse.
20
The San Francisco Office sent this draft complaint to Lawless, she signed it, and
21
the complaint was filed on November 1, 1993.
22

23 4. The San Francisco Office's Investigation

24
In early November 1993, the San Francisco Office sent letters to White, Deringer,
25 and Graham. The office enclosed HRI's complaint and stated that the plaintiffs
could file an answer within ten days. HUD, the letters stated, would “commence
26
an investigation of this complaint, and simultaneously encourage all parties
27 involved to conciliate the matter.” If conciliation failed and HUD's investigation
28
produced “evidence to substantiate a finding that there is reasonable cause to
believe that you have engaged in an unlawful discriminatory housing practice,”

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1
HUD would issue a charge against them, at which point they would be exposed to
certain penalties-including damages as great as $100,000-and could elect to have
2 their case heard by an administrative law judge or referred for trial in U.S. District
3 Court.5 The plaintiffs filed answers to the complaint on November 12.
4
Defendant Smith assigned the complaint to defendant Lee to investigate and
5 defendant Zurowski to conciliate. On December 17, 1993, Lawless sent
6
Zurowski a “Proposal for Conciliation” containing the following settlement terms:

7 1) That the above named respondents [White, Deringer, and Graham], and the
8 Neighborhood Groups Opposing the Bel Air Conversion, cease all litigation
against Resources for Community Development and the City of Berkeley
9
regarding the development of the Bel Air Motel; and
10
2) That the above named respondents, and the Neighborhood Groups Opposing
11
the Bel Air Conversion, cease publication of discriminatory statements (including
12 articles in the CNA Newsletter) and fliers about the potential residents of the Bel
13 Air project.
14
Zurowski relayed these proposed terms to the plaintiffs. According to a
15 declaration by the attorney then representing the plaintiffs, David Bryden,
Zurowski told him “that the proposed settlement was a good one because my
16
clients had, in fact, engaged in discriminatory actions in violation of the Fair
17 Housing Act-I recall him telling me that HUD had evidence of a flyer which
18
demonstrated such a violation-and that I should be relieved that my clients would
not also have to pay damages to the complainant.” 6
19

20 On January 12, 1994, Lee drafted and Smith reviewed and signed, on behalf of the
San Francisco Office's compliance director, a letter to the three plaintiffs. It
21
stated that the San Francisco Office was investigating HRI's complaint and that it
22 was HUD policy “to secure the voluntary cooperation of all persons in the
23
collection of information during the investigation.” The letter continued:

24 When access to premises, records, documents, individuals and other possible

25 sources of information and evidence which may be necessary for the furtherance of
the investigation is not provided, the Department may issue subpoenas to compel
26
such access, production or testimony. Any person who willfully fails or neglects
27 to attend and testify or to answer any lawful inquiry or to produce records,
documents or other evidence in obedience to a subpoena “shall be fined not more
28
than $100,000 or imprisoned not more than one year, or both.”

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1
Attached to the letter was an “Attachment of Request to Produce Written
2 Responses” listing ten items. This request was extremely broad. It directed the
3 plaintiffs to submit, inter alia, the name and contact information of any person
“who was involved in or witnessed the act(s) alleged on the complaint form”; “a
4
copy of any documents or the contents of any file in your control concerning the
5 Bel Air Motel conversion”; all correspondence with or minutes or reports
6
generated by the Council of Neighborhoods Association regarding the Bel Air
project; and all literature, posters, newsletters, and flyers about the project. On
7 January 18, the plaintiffs, through their attorney, stated that they did not have some
8 of the documents sought and that they refused to provide the others. HUD did not
take any further action to obtain these documents from the plaintiffs.
9

10 On February 1, Smith told the plaintiffs' attorney Bryden that HUD would issue a
subpoena to compel the plaintiffs' testimony if they refused to be interviewed by
11
Lee. Bryden agreed that Lee could interview the plaintiffs by telephone. The
12 interview took place on February 7 and lasted for about one hour. Lee asked the
13 plaintiffs why they were opposed to the Bel Air project and what statements they
had made about the project to the public. Lee later testified in a deposition that
14
Smith had directed him to ask the plaintiffs these questions, which Lee had
15 considered irregular and beyond the scope of a routine FHA investigation.
16
On February 8, pursuant to Lee's request, Bryden sent Lee a memorandum from
17 the Berkeley City Manager stating that Zoning Adjustment Board member Linda
18
Maio had a conflict of interest on the RCD matter. Sometime during the
investigation, Smith also became aware that there was reason to believe that Maio
19 had a conflict of interest.
20
The Fair Housing Act requires HUD to provide a written statement of reasons in
21
the event that it is “impracticable” to complete an investigation within 100 days.
22 See 42 U.S.C. §§ 3610(a)(1)(B)(iv), 3610(a)(1)(C). On February 10, Bryden
23
called Lee to inquire about the status of the investigation. On February 15, the
Director of HUD's Office of Investigations in Washington, D.C. informed HRI and
24 the plaintiffs by letter that although the processing of the administrative complaint
25 was not yet complete, HUD was “expediting this matter.” However, the San
Francisco Office's final investigative report shows that the investigators' first
26
contact with a witness other than the plaintiffs was on May 17, 1994, an interview
27 with the executive director of RCD. All other contacts with witnesses took place in
mid-June 1994.
28

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1
On June 24, Bryden wrote a letter asserting that HUD's investigation was an effort
to chill the plaintiffs' constitutional rights. He asked that the investigation be
2 terminated. Smith drafted a letter in response, which defendant Gillespie signed
3 on July 14. This letter stated that “numerous court opinions” had established
HUD's jurisdiction over the case:
4

5 The Department has jurisdiction over all claims under the federal Fair Housing Act
6
concerning land use and zoning. This jurisdiction has been recognized uniformly
to extend to allegations that individuals have engaged in speech advocating illegal
7 acts, including discrimination against persons based on their physical or mental
8 disabilities.
9
The Complainant in the above case alleged that your clients advocated the denial
10 by the City of Berkeley of a use permit to a nonprofit housing developer for the
conversion of the Bel Air Motel to a homeless shelter because, among other
11
reasons, the residents of the project would be mentally disabled. Evidence was
12 produced during the investigation that your clients wrote news articles which
13 referenced the mental disability of the intended residents of the proposed project as
a reason for denial of the project.
14

15 The letter further stated that HRI had suffered an injury sufficient to establish its
standing to pursue relief under the Fair Housing Act because its director, Lawless,
16
“devoted time and resources to advocating on behalf of the developer of the Bel
17 Air project, in opposition to your clients.”
18
Lee submitted a draft of the final investigative report to Smith on June 17, 1994.
19 After further revisions by Smith and review by Gillespie, the San Francisco Office
20 adopted the report and, on July 11, sent it and the entire case file to HUD
headquarters in Washington. The report concluded that the plaintiffs had violated
21
the Fair Housing Act and that there was reasonable cause to take further
22 enforcement action against them. On July 22, 1994, the San Francisco Examiner
23
reported that defendant Phillips had said “that HUD's preliminary investigation had
concluded the three residents [White, Deringer, and Graham] had broken the law,
24 but that it would be up to HUD and Justice Department attorneys to decide whether
25 to prosecute.”
26
5. Disposition of HRI's Complaint
27
For approximately two weeks Sara Pratt, the director of HUD's Office of
28
Investigations in Washington, reviewed HRI's complaint and the San Francisco

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1
Office's report and case file. Finding that the file contained “little if any”
information on the state-court lawsuit filed by the plaintiffs' organization, Pratt
2 asked the San Francisco Office to obtain documents and information regarding that
3 action. Upon receiving these materials, Pratt determined that the Alameda
County Superior Court had in fact found that Linda Maio's simultaneous service on
4
the Zoning Adjustment Board and RCD's board constituted a conflict of interest
5 that violated a Berkeley ordinance. The court, however, had “found no violation
6
of state law requiring invalidation of the use permit, and considered the good faith
of the zoning board member in doing so.” Pratt concluded:
7

8 [A]t the time the complaint was filed, on November 1, 1993, the lawsuit presented
material questions of fact and/or of law and was not clearly frivolous. Moreover,
9
the state court decision in the case, entered in February 1994, indicated that the
10 lawsuit was premised on a reasonable basis in fact or in law (that is, that it stated a
violation of a local ordinance) and, but for the “good faith” exception contained in
11
state law, would have constituted a successful legal claim. The respondents'
12 actions in instituting and prosecuting a lawsuit are thus protected by the First
13 Amendment.
14
Pratt also concluded that the plaintiffs' distribution of flyers and newsletters and
15 lobbying of public officials were activities protected by the First Amendment and
did not constitute a violation of the Fair Housing Act. HUD issued a
16
“Determination of No Reasonable Cause” on August 16, 1994.
17

18
B. Proceedings Below

19 The plaintiffs filed their complaint in May 1995. They alleged that defendants
20 Gillespie, Smith, Lee, Zurowski, and Phillips investigated and harassed them
solely because of the exercise of their First Amendment rights to free speech and to
21
petition the government for a redress of grievances. The plaintiffs sued these
22 defendants in their official and individual capacities, pursuant to Bivens v. Six
23
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), and requested declaratory and injunctive relief,
24 damages, and attorneys' fees. They sued defendant Julian only in her official
25 capacity, for declaratory and injunctive relief.
26
The HUD officials initially moved to dismiss the complaint. Ultimately, the court
27 refused to do so, except for the claim for prospective relief. With respect to that
claim, the district court first found that while the plaintiffs were not currently under
28
investigation by HUD, they had sufficiently alleged “that they are engaging or will

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1
in the future likely engage in activities similar to those that precipitated the HUD
investigation in this case.” However, because HUD had implemented and
2 memorialized a new policy prohibiting agency investigations into protected First
3 Amendment activity and the plaintiffs had not alleged any specific objectionable
conduct occurring after the implementation of that policy, the district court
4
concluded that there was no live controversy under Article III. Accordingly,
5 pursuant to Federal Rule of Civil Procedure 12(b)(1), it dismissed the plaintiffs'
6
claim for prospective relief as moot.

7 After discovery, the parties filed cross-motions for summary judgment. All five
8 officials sued in their individual capacities argued that they were entitled to
qualified immunity. Defendant Lee also moved for summary judgment on the
9
ground that the plaintiffs had failed to establish his liability for any violation of the
10 First Amendment. For their part, the plaintiffs moved for partial summary
judgment against Lee, Smith, Zurowski, and Gillespie on the issue of liability.
11
On December 18, 1998, the district court denied the defendants' motions and
12 granted the motion of the plaintiffs.7
13
The defendants filed timely notices of appeal. Pursuant to Federal Rule of Civil
14
Procedure 54(b), the district court granted the plaintiffs' motion, consented to by
15 the defendants, to certify for appeal as a final judgment the court's August 1996
dismissal of their claim for injunctive and declaratory relief. The plaintiffs then
16
filed a timely cross-appeal.
17

18
ANALYSIS

19 We consider, in turn, (1) the HUD officials' appeal of the district court's denial of
20 their motion for summary judgment on the ground of qualified immunity, (2) the
officials' appeal of the entry of partial summary judgment on the issue of liability,
21
and (3) the plaintiffs' appeal of the dismissal of their claim for prospective relief.
22

23
I. DENIAL OF QUALIFIED IMMUNITY

24 A. Jurisdiction
25
Although the denial of a summary judgment motion is not ordinarily appealable,
26
this court has jurisdiction to review an order denying a government official
27 summary judgment on the ground of qualified immunity. Schwenk v. Hartford,
204 F.3d 1187, 1195 (9th Cir.2000) (citing Behrens v. Pelletier, 516 U.S. 299, 312,
28
116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). “Our jurisdiction in such cases,

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1
however, is limited to questions of law; it does not extend to claims in which the
determination of qualified immunity depends upon disputed issues of material
2 fact.” Id. (citing Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132
3 L.Ed.2d 238 (1995); Knox v. Southwest Airlines, 124 F.3d 1103, 1106 (9th
Cir.1997)). This court reviews de novo the denial of a motion for summary
4
judgment on the ground of qualified immunity. Katz v. United States, 194 F.3d
5 962, 966 (9th Cir.1999) (citing Knox, 124 F.3d at 1105), petition for cert. filed, 68
6
U.S.L.W. 3774 (U.S. June 8, 2000) (No. 99-1977); Calabretta v. Floyd, 189 F.3d
808, 812 (9th Cir.1999). Here, the material facts are not in dispute, and the issues
7 involve only questions of law. Thus, we have jurisdiction over the qualified
8 immunity appeal.
9
B. Have the Plaintiffs Stated a First Amendment Claim?
10
The Supreme Court has held that, in analyzing the defense of qualified immunity,
11
courts must decide first whether the plaintiff has stated a proper claim for a
12 violation of a right, then whether the right at issue was “clearly established” at the
13 time the alleged violation occurred. Wilson v. Layne, 526 U.S. 603, 609, 119
S.Ct. 1692, 143 L.Ed.2d 818 (1999); Conn v. Gabbert, 526 U.S. 286, 290, 119
14
S.Ct. 1292, 143 L.Ed.2d 399 (1999); see also Schwenk, 204 F.3d at 1196; Knox,
15 124 F.3d at 1107. Accordingly, we begin by addressing the merits of the
plaintiffs' First Amendment claim.
16

17 1. The Plaintiffs' First Amendment Activity and the Defendants' Chilling

18
Conduct

19 Although the HUD officials frame this case in terms of a complex doctrinal debate
20 involving Noerr-Pennington immunity and its labor law permutation, we find it to
be, at heart, quite simple. In opposing their local government's approval of the
21
Bel Air project, White, Deringer, and Graham engaged in activity paradigmatically
22 protected by the First Amendment. The HUD officials' eight-month investigation
23
into the plaintiffs' activities and beliefs chilled the exercise of their First
Amendment rights. The plaintiffs are entitled to seek a remedy for this
24 constitutional violation.
25
a. The Speech
26

27 The First Amendment provides that “Congress shall make no law ․ abridging
28
the freedom of speech, or of the press․” Here, the plaintiffs wrote and distributed

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1
flyers and published a newsletter in the advocacy of a politically controversial
viewpoint-“the essence of First Amendment expression.” See McIntyre v. Ohio
2 Elections Comm'n, 514 U.S. 334, 347, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)
3 (citations omitted); see also Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434,
16 L.Ed.2d 484 (1966) (“The Constitution specifically selected the press, which
4
includes not only newspapers, books, and magazines, but also humble leaflets and
5 circulars, to play an important role in the discussion of public affairs.”) (citation
6
omitted). They organized and participated in a coalition of neighbors who shared
their views, admirable or not. Roberts v. United States Jaycees, 468 U.S. 609,
7 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (“[I]mplicit in the right to engage in
8 activities protected by the First Amendment [is] a corresponding right to associate
with others in pursuit of a wide variety of political, social, economic, educational,
9
religious, and cultural ends.”) (citations omitted); NAACP v. Alabama ex rel.
10 Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (describing as
“beyond debate” that freedom of speech encompasses “freedom to engage in
11
association for the advancement of beliefs and ideas”) (citations omitted). The
12 right to expressive association includes the right to pursue, as a group,
13 discriminatory policies that are antithetical to the concept of equality for all
persons. See Boy Scouts of America v. Dale, 530 U.S. 640, ----, 120 S.Ct. 2446,
14
2457-58, 147 L.Ed.2d 554 (2000).
15
The First Amendment also guarantees the right “to petition the Government for a
16
redress of grievances.” The plaintiffs exercised this right by attending and
17 speaking out at Zoning Adjustment Board hearings and by challenging in the
18
courts the board's decision to grant a use permit for the Bel Air project. See, e.g.,
Christian Gospel Church, Inc. v. City & County of San Francisco, 896 F.2d 1221,
19 1226 (9th Cir.1990) (neighbors who opposed zoning permit application by church
20 “by circulating a petition, testifying before the Planning Commission and writing
letters to the editor” were “fully protected by the first amendment”); Evers v.
21
County of Custer, 745 F.2d 1196, 1204 (9th Cir.1984) (activity of property owners
22 who urged county officials not to close what they believed was public road “falls
23
within the first amendment's protection of the right to petition the government for
redress of grievances”) (citing Eastern R.R. Presidents Conference v. Noerr Motor
24 Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)). Regardless of
25 what we might think of their objectives, the plaintiffs “were doing what citizens
should be encouraged to do, taking an active role in the decisions of government.”
26
Christian Gospel Church, 896 F.2d at 1226.
27
It is important to emphasize that a person's speech or petitioning activity is not
28
removed from the ambit of First Amendment protection simply because it

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1
advocates an unlawful act. The First Amendment does not permit government “to
forbid or proscribe advocacy of the use of force or of law violation except where
2 such advocacy is directed to inciting or producing imminent lawless action and is
3 likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447,
89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); see also NAACP v. Claiborne Hardware
4
Co., 458 U.S. 886, 928, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Noto v. United
5 States, 367 U.S. 290, 291, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); Yates v. United
6
States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) overruled in part
on other grounds by Burks v. United States, 437 U.S. 1, 7, 12, 98 S.Ct. 2141, 57
7 L.Ed.2d 1 (1978). Advocacy is unprotected only if it is “intended to produce, and
8 likely to produce, imminent disorder”; “advocacy of illegal action at some
indefinite future time” is not actionable. Hess v. Indiana, 414 U.S. 105, 108-09,
9
94 S.Ct. 326, 38 L.Ed.2d 303 (1973).
10
It is clear that the term “advocacy,” as used in Brandenburg, encompasses not only
11
freedom of speech, but the other rights of expression guaranteed by the First
12 Amendment as well. Brandenburg specifically held that “[s]tatutes affecting the
13 right of assembly, like those touching on freedom of speech, must observe the
established distinctions between mere advocacy and incitement to imminent
14
lawless action.” 395 U.S. at 449 n. 4, 89 S.Ct. 1827. See also Communist Party of
15 Indiana v. Whitcomb, 414 U.S. 441, 448-50, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974)
(applying Brandenburg principles to state regulation of access to the ballot). The
16
Supreme Court has also explained that the right to petition is “inseparable” from
17 and “was inspired by the same ideals of liberty and democracy that gave us the
18
freedoms to speak, publish, and assemble.” McDonald v. Smith, 472 U.S. 479,
485, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) (citations omitted).
19

20 We need not decide whether the plaintiffs' primary objective-the defeat of the
proposed conversion of the Bel Air motel-would have involved an unlawful act.
21
The mere fact that citizens urge their government to adopt measures that may be
22 unlawful does not deprive the speech involved of its First Amendment protection.
23
Cf. Manistee Town Center v. City of Glendale, 227 F.3d 1090 (9th Cir.2000)
(affirming dismissal under Noerr-Pennington doctrine of complaint challenging
24 lobbying of county officials that allegedly resulted in unconstitutional taking of
25 plaintiff's property). Here, it is clear that nothing that the plaintiffs said or did
came close to meeting the Brandenburg test. “Imminent lawless action,” as used
26
in Brandenburg, means violence or physical disorder in the nature of a riot.
27 Peaceful speech, even speech that urges civil disobedience, is fully protected by
the First Amendment. Were this not the case, the right of Americans to speak out
28
peacefully on issues and to petition their government would be sharply

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1
circumscribed. We therefore hold that the standard set forth in Brandenburg
applies to all the First Amendment activity at issue in this case, including plaintiffs'
2 petitioning activity, regardless of whether the denial of the permit on the grounds
3 urged would have been contrary to the provisions of the Fair Housing Act.
4
b. The Chill
5

6
The investigation by the HUD officials unquestionably chilled the plaintiffs'
exercise of their First Amendment rights. It is true that the agency did not ban or
7 seize the plaintiffs' materials, and officials in Washington ultimately decided not to
8 pursue either criminal or civil sanctions against them. But in the First
Amendment context, courts must “look through forms to the substance” of
9
government conduct. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct.
10 631, 9 L.Ed.2d 584 (1963). Informal measures, such as “the threat of invoking
legal sanctions and other means of coercion, persuasion, and intimidation,” can
11
violate the First Amendment also. Id.8 This court has held that government
12 officials violate this provision when their acts “would chill or silence a person of
13 ordinary firmness from future First Amendment activities.” Mendocino
Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999)
14
(citation omitted). Here, the type of investigation conducted and the manner in
15 which the individual defendants carried out their functions more than meets that
standard.
16

17 The HUD officials carried out an investigation that lasted more than eight months,
18
substantially longer than the presumptive 100-day time limit set by 42 U.S.C. §
3610(a)(1)(B)(iv). During the investigation, defendant Zurowski conveyed a
19 conciliation proposal requiring the plaintiffs to cease all litigation and publications
20 regarding the Bel Air project and advised the plaintiffs to accept it because they
had violated the Fair Housing Act by distributing “discriminatory” flyers.
21
Defendants Lee and Smith directed the plaintiffs under threat of subpoena to
22 produce all their publications regarding the Bel Air project, minutes of relevant
23
meetings, correspondence with other organizations, and the names, addresses, and
telephone numbers of persons who were involved in or had witnessed the alleged
24 discriminatory conduct.9 Smith interrogated the plaintiffs, again under threat of
25 subpoena, about their views and public statements in opposition to the Bel Air
project. In a letter drafted by Smith, defendant Gillespie asserted HUD's
26
purported authority to investigate “allegations that individuals have engaged in
27 speech advocating illegal acts, including discrimination against persons based on
their physical or mental disabilities” and stated that the plaintiffs had violated the
28
Fair Housing Act by writing “news articles which referenced the mental disability

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1
of the intended residents of the proposed project as a reason for denial of the
project.” Defendant Phillips told a major metropolitan newspaper that the
2 plaintiffs had “broken the law.” 10 We conclude that these actions would have
3 chilled or silenced a person of ordinary firmness from engaging in future First
Amendment activities.
4

5 2. The FHA as a Justification

6
The HUD officials argue that their actions constituted lawful efforts to enforce
7 the Fair Housing Act (FHA). The purpose of that statute is “to provide, within
8 constitutional limitations, for fair housing throughout the United States.” 42
U.S.C. § 3601. The FHA prohibits, among other things, owners and landlords
9
from refusing to sell or rent housing because of race, color, religion, sex, handicap,
10 familial status, or national origin. See id. at § 3604.11 The FHA also makes it
unlawful “to coerce, intimidate, threaten, or interfere with any person in the
11
exercise or enjoyment of ․ any right granted or protected by section 3603, 3604,
12 3605, or 3606 of this title.” Id. at §§ 3617, 3602(f). A violation of this
13 provision is considered a “discriminatory housing practice” for which an
“aggrieved person” may file an administrative complaint with HUD. Id. at §
14
3610(a)(1)(A)(i). If this occurs, HUD must serve notices upon the
15 complainant 12 and the respondents 13 and “make an investigation of the alleged
16
discriminatory housing practice and complete such investigation within 100 days
after the filing of the complaint ․ unless it is impracticable to do so.” Id. at §
17
3610(a)(1)(B)(iv).
18
We have applied § 3617 broadly to cover a variety of practices that have the effect
19
of interfering with the exercise of fair housing rights protected by the FHA. See
20 United States v. City of Hayward, 36 F.3d 832, 835 (9th Cir.1994) (“ ‘Interference’
21
ranges from racially motivated firebombings, to exclusionary zoning, and
insurance redlining.”) (citations omitted). In theory, § 3617 could be interpreted
22 even more broadly, so that a wide range of speech regarding the housing rights of
23 others could be investigated and sanctioned. One person's persuasive editorial on
a zoning dispute, for instance, might well “interfere” with another person's ability
24
to secure housing. So construed, however, § 3617 would quickly run afoul of the
25 First Amendment principles discussed above.
26
For this reason, other courts have recognized that a speaker's advocacy of his
27 views, however “ill-advised, uninformed, and even distasteful,” can amount to a
28 violation of § 3617 of the FHA only in the event that the advocacy is directed to

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1
inciting or producing imminent violence and is likely in fact to do so. We agree.
See Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F.Supp. 695, 720
2 (E.D.Mich.1992), aff'd, 18 F.3d 337 (6th Cir.1994); see also United States v.
3 Wagner, No. 3:94-CV-2540-H, 1995 WL 841924, at *5 (N.D.Tex. Dec.11, 1995)
(“[T]he Pines have not presented evidence that the petitioning activities were likely
4
to incite imminent lawless action, despite the overtones of the leaflets.”) (citing
5 Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827). Threats of violence and other
6
forms of coercion and intimidation directed against individuals or groups are,
however, not advocacy, and are subject to regulation or prohibition. See United
7 States v. Gilbert, 813 F.2d 1523, 1529-30 (9th Cir.1987) (holding that criminal
8 prosecution under FHA of person who mailed letters and flyers threatening to
murder whites who aided blacks and other minorities was not precluded by First
9
Amendment). In this case, no such acts were alleged.
10
Although the HUD officials now concede that the plaintiffs' “protest activities of
11
writing newspaper articles, leafleting, etc., [were], of course, constitutionally
12 protected forms of speech,” they suggest parenthetically in their brief that their
13 investigation was necessary to determine whether the flyers distributed by the
plaintiffs involved an incitement to imminent lawless action. This suggestion is
14
not supported by the record. HRI executive director Lawless sent a letter to the
15 San Francisco Office that enclosed the relevant flyers two weeks before she signed
the complaint. The officials did not need to gather additional information before
16
determining whether these flyers incited imminent lawless action or not. That the
17 First Amendment protected the authors and distributors of the flyers was plain.
18
3. The Plaintiffs' Lawsuit as a Justification
19

20 In attempting to justify their eight-month investigation, the HUD officials rely

mainly on the lawsuit filed by the plaintiffs' neighborhood coalition in April 1993.
21
An unsuccessful state-court lawsuit, the officials argue, can violate the FHA if it is
22 filed with a discriminatory motive; their theory is essentially that the First
23
Amendment does not protect litigants who lose. Because the state court denied
the plaintiffs their requested relief in February 1994, the HUD officials maintain
24 that, after HRI filed its complaint in November 1993, they were entitled to
25 investigate the plaintiffs' speech in opposition to the Bel Air project to determine
whether they had filed their suit with an unlawful discriminatory motive. Cf.
26
Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S.Ct. 2194, 124 L.Ed.2d 436
27 (1993). In making this argument, the officials rely principally on Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983),
28

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1
and Diamond Walnut Growers, Inc. v. NLRB, 53 F.3d 1085 (9th Cir.1995), two
cases we discuss below.
2

3 In dissecting the serious flaws in the officials' argument, it is necessary to examine

carefully the protection that the First Amendment affords to individuals who
4
petition the government for redress of grievances through the courts. In the end,
5 however, we conclude that whether or not the HUD officials had the right to
6
conduct a limited investigation at the outset, and whether or not in some
circumstances a lawsuit may be stripped of its First Amendment protection simply
7 because the plaintiffs fail to prevail on the merits, the investigation that the HUD
8 officials conducted exceeded the bounds of reasonable governmental action and
violated the plaintiffs' First Amendment rights.
9

10 a. Noerr-Pennington immunity
11
The Supreme Court has described the right to petition as “among the most precious
12 of the liberties safeguarded by the Bill of Rights” and “intimately connected, both
13 in origin and in purpose, with the other First Amendment rights of free speech and
free press.” United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n,
14
389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). It is “cut from the same
15 cloth as the other guarantees of [the First] Amendment, and is an assurance of a
particular freedom of expression.” McDonald v. Smith, 472 U.S. at 482, 105
16
S.Ct. 2787.
17

18
The Court has further established that the right to petition extends to all
departments of the government, including the executive department, the
19 legislature, agencies, and the courts. California Motor Transport Co. v. Trucking
20 Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). California
Motor Transport involved Noerr-Pennington immunity, a doctrine initially
21
promulgated “to protect efforts to influence legislative or executive action from
22 liability under the Sherman Act.” Oregon Natural Resources Council v. Mohla,
23
944 F.2d 531, 533 (9th Cir.1991) (citing Noerr, 365 U.S. 127, 81 S.Ct. 523, 5
L.Ed.2d 464; United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585,
24 14 L.Ed.2d 626 (1965)). While the Noerr-Pennington doctrine originally arose in
25 the antitrust context, it is based on and implements the First Amendment right to
petition and therefore, with one exception we discuss infra (see Section I.B.3.b),
26
applies equally in all contexts. See Manistee Town Center, 227 F.3d at 1092
27 (“The immunity is no longer limited to the antitrust context ․”) (citing Boulware v.
28
Nevada Dep't of Human Resources, 960 F.2d 793, 800 (9th Cir.1992); Evers v.
County of Custer, 745 F.2d at 1204); ONRC v. Mohla, 944 F.2d at 533-34 (“The

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1
protection has been expanded to apply to petitions to courts and administrative
agencies, as well as to preclude claims other than those brought under the antitrust
2 laws.”) (citations omitted).
3
The Noerr-Pennington doctrine ensures that those who petition the government
4
for redress of grievances remain immune from liability for statutory violations,
5 notwithstanding the fact that their activity might otherwise be proscribed by the
6
statute involved. See Professional Real Estate Investors, Inc. v. Columbia
Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993).
7 Noerr-Pennington is a label for a form of First Amendment protection; to say that
8 one does not have Noerr-Pennington immunity is to conclude that one's petitioning
activity is unprotected by the First Amendment.14 With respect to petitions
9
brought in the courts, the Supreme Court has held that a lawsuit is unprotected only
10 if it is a “sham”-i.e., “objectively baseless in the sense that no reasonable litigant
could realistically expect success on the merits.” Id. at 60, 113 S.Ct. 1920. See
11
also California Motor Transport, 404 U.S. at 513, 92 S.Ct. 609 (stating that First
12 Amendment protection would not extend to “a pattern of baseless, repetitive claims
13 ․ [that lead] the factfinder to conclude that the administrative and judicial
processes have been abused”).
14

15 In Professional Real Estate Investors, the Supreme Court rejected the contention
16
that regardless of a lawsuit's objective merit an antitrust defendant can be found
liable if the plaintiff showed that it brought the suit for a “predatory motive.” See
17 508 U.S. at 55-56, 113 S.Ct. 1920. Both requirements must be met to establish
18 antitrust liability: “an objectively reasonable effort to litigate cannot be sham
regardless of subjective intent.” Id. at 57, 113 S.Ct. 1920. Furthermore, proof of
19
a lawsuit's objective baselessness is the “threshold prerequisite”: a court may not
20 even consider the defendant's allegedly illegal objective unless it first determines
that his lawsuit was objectively baseless. Id. at 55, 60-61, 113 S.Ct. 1920.
21

22 The fact that a litigant loses his case does not show that his lawsuit was
23 objectively baseless for purposes of Noerr-Pennington immunity:
24
A winning lawsuit is by definition a reasonable effort at petitioning for redress and
25 therefore not a sham. On the other hand, when the antitrust defendant has lost the
underlying litigation, a court must “resist the understandable temptation to engage
26
in post hoc reasoning by concluding” that an ultimately unsuccessful “action must
27 have been unreasonable or without foundation.” Christiansburg Garment Co. v.
28
EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Accord
Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per

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1
curiam). The court must remember that “[e]ven when the law or the facts appear
questionable or unfavorable at the outset, a party may have an entirely reasonable
2 ground for bringing suit.” Christiansburg, supra, 434 U.S. at 422, 98 S.Ct. 694.
3
508 U.S. at 60 n. 5, 113 S.Ct. 1920 (citations modified). Professional Real Estate
4
Investors itself involved a copyright action that had been defeated on summary
5 judgment. See id. at 52-53, 113 S.Ct. 1920. Because this action “was arguably
6
‘warranted by existing law’ or at the very least was based on an objectively ‘good
faith argument for the extension, modification, or reversal of existing law,’ ” the
7 Supreme Court affirmed the lower court's decision rejecting the antitrust
8 counterclaim. Id. at 65, 113 S.Ct. 1920 (quoting Fed.R.Civ.P. 11). See also
Liberty Lake Invs., Inc. v. Magnuson, 12 F.3d 155, 157-58 (9th Cir.1993). We do
9
not lightly conclude in any Noerr-Pennington case that the litigation in question is
10 objectively baseless, as doing so would leave that action without the ordinary
protections afforded by the First Amendment, a result we would reach only with
11
great reluctance.15
12

13 Applying these principles to the present case, it follows that the plaintiffs' state-
court lawsuit could have amounted to a discriminatory housing practice only in the
14
event that (1) no reasonable litigant could have realistically expected success on
15 the merits, and (2) the plaintiffs filed the suit for the purpose of coercing,
intimidating, threatening, or interfering with a person's exercise of rights protected
16
by the FHA. Because, in the present case, the first requirement cannot be sustained,
17 we need not even consider the second. Objective baselessness is the sine qua non
18
of any claim that a particular lawsuit is not deserving of First Amendment
protection.16 The lawsuit filed by the plaintiffs was unquestionably not
19 objectively baseless. Far from it: it challenged a rather egregious conflict of
20 interest by a person who was simultaneously a member of both the Zoning
Adjustment Board and the board for the developer seeking the Bel Air use permit.
21
As the director of HUD's Office of Investigations ultimately concluded, the
22 plaintiffs' action “would have constituted a successful legal claim” but for the
23
court's application of the “good faith” exception under California law.

24 The HUD officials protest that they could not ascertain from the face of HRI's
25 administrative complaint whether the plaintiffs' lawsuit in fact had an objective
basis. The complaint did not mention the conflict of interest that lay at the heart
26
of the litigation. Instead, the complaint simply stated that (1) the plaintiffs had
27 filed a lawsuit seeking to stop RCD from receiving a use permit for the Bel Air
project, (2) they had failed in their efforts to obtain a preliminary injunction, and
28
(3) HRI believed that the plaintiffs were “blocking” the Bel Air project “because

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1
they perceive the primary residents of the facility will be the mentally disabled or
the disabled through substance abuse.” The officials argue that while it did not
2 say so explicitly, HRI's complaint at least raised the possibility that the plaintiffs'
3 lawsuit was objectively baseless, that its sole purpose was to cripple the Bel Air
project by causing undue delay and the imposition of substantial legal costs on its
4
supporters, and therefore that the state-court action constituted a discriminatory
5 housing practice under the FHA.17 The officials contend that on that basis they
6
were entitled, and indeed required by § 3610(a)(1)(B) of the FHA, to investigate
this matter.
7

8 We agree that the San Francisco Office was justified in accepting HRI's complaint.
Furthermore, the mere fact that the officials provided the plaintiffs with a copy of
9
HRI's complaint and informed them of their rights and duties under the FHA,
10 pursuant to § 3610(a)(1)(B)(ii), did not in itself violate the plaintiffs' rights under
the First Amendment. As we have explained earlier, however, the critical issue is
11
not whether the HUD officials were justified in accepting HRI's complaint and
12 initiating some form of limited investigation, but whether the manner in which they
13 actually conducted their eight-month investigation violated the plaintiffs' First
Amendment rights.
14

15 This court has held that when an action involves “the right to petition
governmental bodies under Noerr-Pennington,” it is necessary to apply a
16
“heightened level of protection ․ to avoid ‘a chilling effect on the exercise of this
17 fundamental First Amendment right.’ ” ONRC v. Mohla, 944 F.2d at 533
18 (quoting Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive
Bd., 542 F.2d 1076, 1082 (9th Cir.1976)). Because the plaintiffs' lawsuit could
19
have been actionable under the FHA if and only if it were a sham, the officials
20 were obligated to first determine that the suit was objectively baseless before
proceeding with any potentially chilling investigation into the plaintiffs' protected
21
speech and other petitioning activity-even for the stated purpose of determining
22 whether the plaintiffs had filed the suit with an unlawful discriminatory intent.
23 As with the methodology mandated by the Supreme Court for judicial review of
lawsuits, see Professional Real Estate Investors, 508 U.S. at 60-61, 113 S.Ct. 1920,
24
a determination of objective baselessness of the litigation is a constitutionally
25 required precondition to any investigation into the nature of the plaintiffs'
advocacy.
26

27 The HUD officials completely failed to satisfy this threshold requirement. From
28
the time they initiated their investigation until the time they submitted their final
report to the Washington office, the officials made little or no effort to investigate

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1
the basis for the plaintiffs' suit. Instead, their investigation focused almost
exclusively on what the officials considered to be the plaintiffs' discriminatory
2 speech. Director Gillespie's two-page, single-spaced letter of July 1994 broadly
3 asserted HUD's purported jurisdiction to investigate “speech advocating illegal
acts” and cited reprovingly the plaintiffs' “news articles which referenced the
4
mental disability” of the Bel Air project's intended residents; it did not, however,
5 mention the plaintiffs' lawsuit once. Likewise, investigator Smith did not ask the
6
plaintiffs any questions about the lawsuit during his interviews. Most striking,
the officials completed and submitted to HUD headquarters a final investigative
7 report that failed to include any information about the plaintiffs' lawsuit more
8 substantial than what was set forth in HRI's complaint. After receiving the San
Francisco Office's investigative materials, and analysis, and its finding of
9
“reasonable cause” to believe that the plaintiffs had violated the FHA, Director
10 Pratt in the Office of Investigations felt compelled to direct the San Francisco
Office to supplement the report with information and documents on the lawsuit.
11
This is in spite of the fact that on February 8, 1994, the plaintiffs' attorney had sent
12 investigator Lee a memorandum from the Berkeley City Manager acknowledging
13 the conflict of interest that was the subject of the plaintiffs' action.
14
These undisputed facts show that the San Francisco HUD officials conducted their
15 eight-month investigation, primarily if not exclusively, into and in response to the
plaintiffs' purportedly unlawful speech and not in connection with their state-court
16
lawsuit. Having ignored the factual and legal basis for that litigation throughout,
17 and instead having taken a course certain to chill the exercise of the plaintiffs' First
18
Amendment rights, the officials may not now argue that their investigation was
justified as a means of determining whether the plaintiffs had violated the FHA by
19 filing a sham lawsuit.
20
b. Bill Johnson's
21

22 The HUD officials strongly argue, however, that most of the investigatory
23
period occurred after the state court entered judgment against the plaintiffs, and
because of that adverse judgment there was no need for the officials to inquire into
24 the lawsuit's objective basis. This argument is based on the theory that the Noerr-
25 Pennington “sham” rule that protects all but frivolous suits applies in antitrust
cases only and therefore does not apply to the plaintiffs' lawsuit. The officials
26
assert that a decision from the realm of labor law, Bill Johnson's Restaurants, Inc.
27 v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983), rather than Noerr-
Pennington, sets forth the appropriate rule for the case before us. Under Bill
28
Johnson's, according to the HUD officials, if a plaintiff loses its lawsuit, all that it

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1
is necessary to show is that the suit was filed with a discriminatory motive;
whether or not there was an objective basis for the legal action is immaterial.
2

3 In Bill Johnson's a waitress filed unfair labor practice charges with the National
Labor Relations Board (NLRB), alleging that she had been fired for her efforts to
4
organize a union. 461 U.S. at 733, 103 S.Ct. 2161. The restaurant sued her in
5 state court, alleging that while picketing she had harassed customers, blocked
6
access to the restaurant, threatened public safety, and libeled the restaurant in her
leaflets. Id. at 734, 103 S.Ct. 2161. The waitress then filed a second charge with
7 the NLRB, alleging that the restaurant had violated 29 U.S.C. § 158(a)(1) of the
8 National Labor Relations Act (NLRA), which makes it an unfair labor practice for
an employer “to interfere with, restrain, or coerce employees in the exercise of the
9
rights” guaranteed under that act. See 461 U.S. at 734-35, 103 S.Ct. 2161. The
10 NLRB found that the restaurant's lawsuit lacked a reasonable basis in fact and was
filed to penalize the waitress for engaging in protected activity, and it ordered the
11
restaurant to withdraw its state-court complaint and undertake a number of
12 additional remedial measures. Id. at 737, 103 S.Ct. 2161.
13
The Supreme Court vacated and remanded. It observed that § 158(a)(1) was a
14
broad, remedial provision intended to guarantee employees the ability to enjoy
15 their rights under the NLRA, and that “[a] lawsuit no doubt may be used by an
employer as a powerful instrument of coercion or retaliation.” Id. at 740, 103
16
S.Ct. 2161. On the other hand, the Court wrote, “the right of access to the courts
17 is an aspect of the First Amendment right to petition the Government for redress of
18
grievances.” Id. at 741, 103 S.Ct. 2161 (citing California Motor Transp., 404 U.S.
at 510, 92 S.Ct. 609). It cited its construction of the antitrust laws “as not
19 prohibiting the filing of a lawsuit, regardless of the plaintiff's anticompetitive intent
20 or purpose in doing so, unless the suit was a ‘mere sham’ filed for harassment
purposes.” Id. (citing California Motor Transp., 404 U.S. at 511, 92 S.Ct. 609).
21
The NLRA had to be construed with a similar sensitivity to “these First
22 Amendment values,” the Court said. Id. It therefore concluded that the California
23
Motor Transport rule for “sham litigation” applied to the NLRA as well. The
NLRB could enjoin a state-court lawsuit as an unfair labor practice only if the
24 employer was “prosecut[ing] a baseless lawsuit with the intent of retaliating
25 against an employee for the exercise of rights protected by [§ 158].” Id. at 744,
103 S.Ct. 2161. An injunction would be improper if there was “any realistic
26
chance that the plaintiff's legal theory might be adopted.” Id. at 747, 103 S.Ct.
27 2161.
28

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1
Notwithstanding the foregoing analysis and its affirmance of the principles set
forth in California Motor Transport, the Court in Bill Johnson's then went on to
2 draw a distinction with respect to the NLRB's right to impose remedies for the
3 filing of state-court lawsuits that were pending and those that had concluded in a
judgment adverse to the plaintiffs. The latter lawsuits, the Court stated, did not
4
receive the same broad immunity from NLRB action as the former. Once the
5 plaintiff lost its lawsuit, the NLRB could “consider the matter further and, if it is
6
found that the lawsuit was filed with retaliatory intent, ․ find a violation and order
appropriate relief.” Id. at 749, 103 S.Ct. 2161. Such NLRB action was
7
permissible because at that point “the employer has had its day in court, [and] the
8 interest of the state in providing a forum for its citizens has been vindicated.” Id.
at 747, 103 S.Ct. 2161. We would ordinarily be tempted to treat these statements
9
in Bill Johnson's as dicta, because they were not pertinent to the case before the
10 Court and because in Professional Real Estate Investors, decided ten years later,
11
the Court did not even mention the Bill Johnson's statements when holding that
unsuccessful lawsuits receive the traditional protection described in California
12 Motor Transport, specifically including the requirement of objective
13 baselessness.18 Whatever we might otherwise make of the apparently
contradictory positions announced by the Court, however, this circuit is not free to
14
ignore the Bill Johnson's statements. On the basis of those statements, we have
15 rejected an employer's argument that the NLRB erred in failing to determine
16
whether a libel suit, which did not survive a demurrer in state court, was baseless.
See Diamond Walnut Growers, Inc. v. NLRB, 53 F.3d 1085, 1088 (9th Cir.1995).
17 In that case we held that “bringing an action that proves unmeritorious may
18 constitute an unfair labor practice, even though the suit did not lack a reasonable
basis in law or fact at the time it was filed.” Id. We are bound by Diamond
19
Walnut and therefore by the Bill Johnson's statements.
20
Citing Bill Johnson's and Diamond Walnut, the HUD officials argue that a person
21
would violate the FHA if he brought “an unsuccessful state court action to deter
22 another person, or group of persons, from exercising their federally protected
23 rights-e.g. to keep them from moving into the neighborhood.” Because the
plaintiffs ultimately lost their state-court lawsuit, the officials argue that they acted
24
properly in investigating the plaintiffs' opposition to the Bel Air project to
25 determine whether they had filed that action with a discriminatory motive.19
26
The HUD officials do not adequately explain why the Bill Johnson's and Diamond
27 Walnut rule which is applicable in NLRA cases should apply with respect to the
28
FHA or to other statutes generally. They contend that the holding in Professional
Real Estate Investors is limited to the antitrust context, whereas the statements in

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1
Bill Johnson's establish the rule “for meritless state court suits in other contexts.”
The officials get the point exactly backwards. As we have discussed, this court
2 has applied “the First Amendment rationale of the Noerr-Pennington doctrine”
3 broadly to claims not involving antitrust law. See Manistee Town Ctr., 227 F.3d
at 1092; Boulware, 960 F.2d at 800; ONRC v. Mohla, 944 F.2d at 533-34.
4
Indeed, in Evers v. County of Custer we cited Noerr in holding that “the first
5 amendment's protection of the right to petition the government for redress of
6
grievances” encompasses the right of homeowners to challenge such property-
related decisions by local government as road access rules. 745 F.2d at 1204.
7 Adopting the theory advanced by the HUD officials would thus conflict with our
8 prior case law which protects the First Amendment right of citizens to engage in
petitioning activity, including the filing of lawsuits with an objective basis in fact
9
or law, even if they ultimately prove unsuccessful. Restricting the basic Noerr-
10 Pennington principles to antitrust cases, as the HUD officials urge, would
contravene our cases applying the Noerr-Pennington sham rule in all but the
11
NLRA context.20
12

13 Indeed, it is the NLRA cases that we treat differently from all others with respect
to the Noerr-Pennington “sham” exception. The reason is simple. The First
14
Amendment rights of employers “in the context of [the] labor relations setting” are
15 limited to an extent that would rarely, if ever, be tolerated in other contexts. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547
16
(1969). In Gissel Packing the Supreme Court held that employer speech that
17 constitutes an unfair labor practice under the NLRA does not receive full First
18
Amendment protection.21 The employer's right of expression has to be balanced
against “the equal rights of the employees to associate freely,” giving special
19 consideration to “the economic dependence of the employees on their employers.”
20 Id. at 617, 89 S.Ct. 1918. See also NLRB v. Associated Gen. Contractors, Inc.,
633 F.2d 766, 772 n. 9 (9th Cir.1980) (“Any attempt to reconcile an asserted
21
governmental interest in disclosure with First Amendment rights must be made in
22 the context of the labor relations setting. Association that would otherwise be
23
protected may be regulated if necessary to protect substantial rights of employees
or to preserve harmonious labor relations in the public interest.”) (citation omitted).
24 The NLRB is an agency charged with the regulation of union elections, the debate
25 between employers and employees, and other related speech and conduct.
Regulations controlling such expressive activity would almost certainly be invalid
26
outside the labor relations setting.
27
In sum, the HUD officials would transform an exception that applies only to
28
NLRB regulation of unfair labor practices into a rule of general applicability.

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1
They cite no cases that have so extended the Bill Johnson's “rule,” and we have
found none through our own research. Moreover, despite the present argument of
2 the officials made for purposes of litigation, the director of HUD's Office of
3 Investigations in Washington acknowledged, in finding no reasonable cause to
proceed, that when a lawsuit is “premised on a reasonable basis in fact or in law,”
4
it is “protected by the First Amendment.” We therefore conclude, as we have
5 concluded in other contexts (including in the context of the petitioning activity of
6
homeowners), that the principles embodied in the Noerr-Pennington doctrine apply
to this case. That doctrine protects losing as well as winning lawsuits, so long as
7 they are not objectively baseless. Thus, for the reasons explained earlier, the
8 HUD officials' failure to investigate the objective basis for the plaintiffs' lawsuit
rendered its investigation into the plaintiffs' advocacy unconstitutional.
9

10 4. Excessive Breadth of the Defendants' Investigation

11
As we have previously stated, there is a further reason why the investigation into
12 the plaintiffs' First Amendment activity was violative of the plaintiffs' rights.
13 Regardless of whether Noerr-Pennington or Bill Johnson's applies, the
investigation far exceeded what was reasonable for the purpose of ascertaining the
14
plaintiffs' motives for filing the state-court suit and thus intruded unnecessarily on
15 their First Amendment rights.
16
It is axiomatic that when the actions of government officials so directly affect
17 citizens' First Amendment rights, the officials have a duty to take the least intrusive
18
measures necessary to perform their assigned functions. See Lamont v.
Postmaster Gen. of United States, 381 U.S. 301, 310, 85 S.Ct. 1493, 14 L.Ed.2d
19 398 (1965) (Brennan, J., concurring) (citing Butler v. Michigan, 352 U.S. 380, 77
20 S.Ct. 524, 1 L.Ed.2d 412 (1957)); cf. Scott v. Rosenberg, 702 F.2d 1263, 1275
(9th Cir.1983) (observing that although “[c]ertainly, governmental agencies must
21
be wary of complaints which cannot be investigated without interfering with first
22 amendment rights,” investigation “in this case was narrow and avoided any
23
unnecessary interference with the free exercise of religion”). The plaintiffs'
reasons for opposing the Bel Air project were matters of public record and evident
24 from the flyers in the San Francisco Office's possession before HRI even filed its
25 complaint. There was simply no justification for the officials to take the
extraordinarily intrusive and chilling measures they did during the subsequent
26
eight-month investigation. There was no cause, for example, for defendant
27 Zurowski to advise the plaintiffs during the conciliation process to “cease
publication of discriminatory statements (including articles in the CNA Newsletter)
28
and fliers about the potential residents of the Bel Air project”; even if the

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1
plaintiffs' suit had been objectively baseless, their non-threatening statements,
“discriminatory” or not, would still have been fully protected by the First
2 Amendment. There was no cause for defendants Smith and Lee to demand that
3 the plaintiffs produce a list of the names, addresses, and telephone numbers of all
involved parties and all witnesses to the expressive activity complained of, as well
4
as copies of all files in their control concerning the Bel Air project. There was no
5 cause for defendant Gillespie to assume the authority to investigate speech because
6
it advocated discrimination against persons afforded benefits by the Fair Housing
Act. There was also no cause for defendant Phillips to tell the San Francisco
7 Examiner (if he did) that the plaintiffs “had broken the law.”
8
The HUD officials' conduct cannot be squared with the First Amendment, no
9
matter what rule is applied in evaluating the filing of the state-court lawsuit. The
10 breadth of the investigation and the measures the officials took during its course
bore no relation to the narrow purpose on which they now rely. The scope and
11
manner of the investigation violated the plaintiffs' First Amendment rights.
12

13 C. Was the Law Clearly Established?

14
Having concluded that the plaintiffs have stated a proper First Amendment
15 claim, we next consider whether the HUD officials are entitled to qualified
immunity. Under this doctrine, government officials sued for damages for
16
injuries arising out the performance of their discretionary functions must be
17 “shown to have violated ‘clearly established statutory or constitutional rights of
18
which a reasonable person would have known.’ ” Conn v. Gabbert, 526 U.S. at
290, 119 S.Ct. 1292 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
19 2727, 73 L.Ed.2d 396 (1982)). Closely analogous preexisting case law is not
20 required to show that a right was clearly established. Schwenk, 204 F.3d at 1198;
Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.1994); Alexander v. Perrill, 916
21
F.2d 1392, 1398 (9th Cir.1990). As the Supreme Court has explained, “qualified
22 immunity seeks to ensure that defendants ‘reasonably can anticipate when their
23
conduct may give rise to liability,’ by attaching liability only if ‘[t]he contours of
the right [violated are] sufficiently clear that a reasonable official would
24 understand that what he is doing violates that right.’ ” United States v. Lanier,
25 520 U.S. 259, 270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (citations omitted).
“This is not to say that an official action is protected by qualified immunity unless
26
the very action in question has previously been held unlawful; but it is to say that
27 in the light of preexisting law the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citations
28
omitted). In analyzing a claim of qualified immunity, this court asks two related

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1
questions: (1) Was the law governing the officials' conduct clearly established?
and (2) Under that law, could a reasonable official have believed the conduct
2 lawful? See, e.g., Ortega v. O'Connor, 146 F.3d 1149, 1154 (9th Cir.1998); Act
3 Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).22
4
We hold that in this case the unconstitutionality of each of the HUD officials'
5 actions was apparent at the time they acted. The plaintiffs' claim is founded on
6
bedrock First Amendment principles and legal rules that this court and the
Supreme Court have applied for decades, if not centuries. In 1993 and 1994,
7 reasonable government officials would have known that they could not conduct an
8 eight-month investigation into the vocal but entirely peaceful opposition of
residents to a housing project proposed for their neighborhood, or into their efforts
9
to persuade the appropriate government agencies of their point of view. They
10 would also have known that accusations of law-breaking, threatened subpoenas,
improper broad demands for documents and information, and admonishments to
11
cease nonfrivolous litigation and the publication of “discriminatory” statements
12 would chill “uninhibited, robust, and wide-open” debate on public issues. See
13 New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964). The HUD officials could not have reasonably believed their actions (as
14
described at 1238 supra and in the Statement of Facts) to be consistent with the
15 First Amendment.23 See cases cited in Section I.B.1., supra.
16
The officials argue that they were required by statutes and regulations to serve
17 HRI's complaint on the plaintiffs, conduct an investigation, and attempt to resolve
18
it through conciliation. The fact that an investigation may have been initiated
pursuant to statutory and regulatory authority does not, however, entitle the
19 defendants to qualified immunity regarding the extent of the investigation and the
20 manner in which it was conducted. See, e.g., Calabretta, 189 F.3d at 817 (stating
that it was “not clear” why authorization under state regulations would excuse
21
officials “from compliance with the Fourth Amendment”). It is the scope and
22 manner of the investigation that the HUD officials should have known to be
23
violative of the plaintiffs' First Amendment rights.

24 It was also clearly established that the Noerr-Pennington doctrine sharply limited
25 the officials' ability to treat the plaintiffs' state-court lawsuit as a possible violation
of law. Controlling case law had made clear that the doctrine was not limited to
26
the antitrust context, and that the officials had a duty to first determine that the
27 plaintiffs' suit-the only conceivable FHA violation alleged in HRI's administrative
complaint-was objectively baseless before proceeding with a potentially chilling
28

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1
investigation into the plaintiffs' indisputably protected speech and other petitioning
activity. See cases cited in Section I.B.3., supra.
2

3 The HUD officials-or, to be more specific, their counsel from the U.S. Department
of Justice-contend that they will face the specter of “personal financial ruin” in the
4
event that they are denied qualified immunity. The appropriate amount of
5 damages to be awarded for the injuries sustained by the plaintiffs will be an issue
6
for the jury or judge on remand; we express no opinion on that subject now. We
observe only that Bivens suits against individual officials are often the only
7 available means by which citizens may obtain remedies when the federal
8 government violates their constitutional rights. To the extent that HUD is
genuinely concerned about the inhibiting effect that the threat of personal liability
9
will have on its future operations, it may indemnify its employees as permitted by
10 law. We would, in fact, be most surprised if the agency did not do so in this case.
When government officials violate citizens' clearly established First Amendment
11
rights, however, we will not apply the doctrine of qualified immunity to defeat a
12 remedy of damages to which the citizens are entitled under Bivens.
13
II. PARTIAL SUMMARY JUDGMENT ON LIABILITY
14

15 The HUD officials ask us to review the district court's decision granting the
plaintiffs summary judgment on the issue of liability. Under Federal Rule of
16
Civil Procedure 56(c), a court may award a partial summary judgment that decides
17 only that issue. The district court did so here. The court cited the following
18
conduct as establishing liability: 1) defendant Smith's supervision of Lee and
Zurowski and his specific direction that Lee ask the plaintiffs questions about their
19 opposition to the Bel Air project, questions which Lee considered irregular and
20 beyond the scope of a routine FHA investigation; 2) defendant Lee's work as the
investigator on the case; 3) the offer made by defendant Zurowski “to terminate
21
the investigation if the plaintiffs agreed to relinquish their constitutionally
22 protected expressive activities”; and 4) defendant Gillespie's review and approval
23
of the final investigative report. “In participating and contributing to the HUD
investigation,” the court stated, “each of these defendants engaged in conduct
24 which impermissibly chilled the plaintiffs' First Amendment activities.”
25
The plaintiffs argue that we do not have jurisdiction to review this ruling. In
26
general, orders granting partial summary judgment are not appealable final orders
27 under 28 U.S.C. § 1291 “because partial summary judgment orders do not dispose
of all claims and do not end the litigation on the merits.” Williamson v. UNUM
28
Life Ins. Co. of America, 160 F.3d 1247, 1250 (9th Cir.1998) (citations omitted).

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1
We conclude, however, that special circumstances exist in this case that permit us
to review the award of partial summary judgment, and to leave for trial, with
2 respect to these four defendants, only the issue of damages.
3
As explained earlier, we have jurisdiction to review on interlocutory appeal the
4
district court's decision denying the officials summary judgment on the defense of
5 qualified immunity. We also have jurisdiction to review at the same time other
6
issues that are “inextricably intertwined” with the question of qualified immunity.
See Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131
7 L.Ed.2d 60 (1995); Mendocino Environmental Ctr., 192 F.3d at 1296. In Marks
8 v. Clarke, 102 F.3d 1012 (9th Cir.1996), we concluded that we had jurisdiction to
review the district court's rulings granting partial summary judgment on liability
9
which, we found, were “unquestionably inextricably intertwined” with the district
10 court's decision to deny the defendants qualified immunity. Id. at 1018.
11
In reviewing the plaintiffs' qualified immunity appeal under the methodology
12 mandated by the Supreme Court, we have already found that the plaintiffs stated a
13 valid claim for a violation of their First Amendment rights. We recognize,
however, that an interlocutory appeal of a denial of summary judgment as to the
14
defense of qualified immunity necessarily involves only issues of law, see Johnson,
15 515 U.S. at 319, 115 S.Ct. 2151, while an appeal from a grant of partial summary
judgment on the merits may well involve disputed factual issues or even additional
16
or different questions of law.
17

18
In the case before us the material facts as to defendants Smith, Lee, Zurowski, and
Gillespie are undisputed, as a result primarily of the parties' commendable
19 submission to the district judge of a comprehensive joint statement of undisputed
20 facts. Moreover, the principal issues of law involved in the partial summary
judgment appeal have necessarily all been resolved by our qualified immunity
21
determination. It is clear from that determination, moreover, that the conduct of
22 each of these defendants violated the plaintiffs' constitutional rights.
23
Accordingly, we conclude that here the two issues on appeal are sufficiently
“inextricably intertwined” to justify our exercise of jurisdiction over them both.
24 Cf. Huskey v. City of San Jose, 204 F.3d 893, 904-05 (9th Cir.2000) (exercising
25 interlocutory appellate jurisdiction to find city not liable where its liability was
based solely on liability of individual officials and qualified immunity analysis
26
showed that plaintiff had not stated proper constitutional claim).
27
The four HUD officials argue that the partial summary judgment ruling was
28
erroneous because there are “factual issues that remain despite the joint statement

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1
of undisputed facts.” They make two specific points. First, they argue that
“whether the plaintiffs were in fact chilled in the exercise of the speech is a
2 disputed question for the jury.” The dispute, if there were one, would not be
3 material. In making their First Amendment claim, the plaintiffs were obligated to
prove only that the officials' actions would have chilled or silenced “a person of
4
ordinary firmness from future First Amendment activities,” not that their speech
5 and petitioning were “actually inhibited or suppressed.” Mendocino
6
Environmental Ctr., 192 F.3d at 1300 (citation omitted). In any event, the
officials point to no evidence in the record that disputes the assertions in the
7 plaintiffs' declarations that their rights were in fact chilled. The officials did not
8 submit excerpts of any depositions of the plaintiffs, or any other evidence tending
to undermine the plaintiffs' credibility on this point. While, on remand, the
9
officials will certainly be entitled to challenge the extent of the injury suffered by
10 the plaintiffs for purposes of determining damages, the fact that the plaintiffs
incurred First Amendment injury is not a matter in genuine dispute.
11

12 Second, the officials contend that the district court “plainly erred” in entering a
13 finding of liability against defendant Zurowski. The joint statement of undisputed
facts states only that Zurowski conveyed to the plaintiffs HRI's conciliation
14
proposal demanding that the plaintiffs cease all litigation and “publication of
15 discriminatory statements (including articles in the CNA Newsletter) and fliers
about the potential residents of the Bel Air Project.” The officials argue that a
16
government official's mere conveyance of a settlement offer, even one containing
17 patently unconstitutional terms, does not violate the First Amendment. We need
18
not decide this question because it is also undisputed that Zurowski advised David
Bryden, the attorney then representing the plaintiffs, to accept the unconstitutional
19 conciliation proposal because, Zurowski said, HUD had already collected evidence
20 that the plaintiffs had violated the FHA. Such official action, we have already held,
was sufficiently chilling to establish liability under the First Amendment.
21

22 The HUD officials repeatedly contend in their briefs that the assertion, set forth in
23
a declaration by attorney Bryden, that Zurowski endorsed the conciliation
proposal, is “disputed” and therefore an improper basis for an award of summary
24 judgment. At oral argument, however, counsel conceded that the record contains
25 no evidence that disputes Bryden's assertion-not even a declaration from Zurowski
denying that the conversation as reported by Bryden took place. In civil rights
26
cases, as in all others, summary judgment can work both for and against the
27 government. Rule 56(e) provides that “[w]hen a motion for summary judgment is
made and supported as provided in this rule, an adverse party may not rest upon
28
the mere allegations or denials of the adverse party's pleading, but the adverse

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1
party's response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.” We may not reverse
2 an award of partial summary judgment simply because the government asserts,
3 without evidence in the record, that a critical fact is disputed.
4

5 Resolving all inferences from the evidence in the four officials' favor, we conclude
6 that it was not error for the district court to award the plaintiffs partial summary
7 judgment on the issue of liability.
8
PLAINTIFFS’ FIRST AMENDMENT COMPLAINT EXHIBIT TABLE
9
Exhibit Docket Entry Description
10
A 19 June 19, 2019 Mary Bernstein
11 served a Notice of Claim upon
12
the defendant USA sent to
Department of Housing and
13 Urban Development Region IX
pursuant to the provisions of
14
the Federal Tort Claims Act
15 (Bernstein, Mary) (Filed on
9/5/2020)
16
B 20 August 29, 2019 Elizabeth
17
Tigano served a Notice of Claim
18 upon the defendant USA sent to
Department of Housing and
19 Urban Development Region IX
20 pursuant to the provisions of
the Federal Tort Claims Act
21
C 21 March 9 2020 Disabled Plaintiffs
22 and sisters, Mary Bernstein and
Elizabeth Tigano frustrated with
23
no response from Defendant
24 USA Department of Housing
and Urban Development Paul
25
Smith submitted prefiling
26 complaint letter to Department
of Housing and Urban
27 Development Headquarters in
28 Washington DC attaching
previously served Notices of

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Claims
1
D 22 On August 22, 2020 Plaintiff
2
Mary Bernstein once again sent
3 copies via email to Defendant
USA Paul Smith enclosing
4
notices of claims by Plaintiff
5 Bernstein and Tigano to
defendants seeking
6 acknowledgement of claims.
7
Three times now notices of
claims have been submitted
8 without confirmation. In
addition, videos of extreme
9
violent harassment of Plaintiff
10 with walker, medical personnel
To date, September 5, 2020 no
11
acknowledgement of notices of
12 claims received/confirmed by
Paul Smith Defendant USA nor
13 any acknowledgement of videos
14
demonstrating continual,
ongoing hostile environment
15 Plaintiffs are subjected despite
81 FR 63054 - Quid Pro Quo and
16
Hostile Environment
17 Harassment and Liability for
Discriminatory Housing
18
Practices Under the Fair
19 Housing Act

20 E 23 FOIA Request response August

8 2019 HUD Case file 09-19-
21 4260-8
22 F 24 Letter from Plaintiffs Mary
23 Bernstein and Elizabeth Tigano
to Judge Corley regarding status
24 of preparation of First Amended
Complaint
25
G 25 Excel Spreadsheet HOA Monthly
26
Assessments paid to date to
27 Meadow Brook Village
Association - Fremont for
28
operations, maintenance and

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 168 of 177

preservation of property
1
H 26 Meadow Brook Village
2
Association - Fremont
3 Emergency Assessment
replacing Special Assessment
4
which sought even more funds
5 from homeowners

6 I 27 9 Separate Restraining Orders

Against Violent Individuals
7 Targeting Plaintiff, Family
8
Members

9 J 28 Whatsapp Social Media

Cyberstalking Exploitation of
10 Plaintiff
11 K 29 Disdain for handicapped owners
and residents, ridiculed, abused,
12
stalked
13
L 30 Plaintiff Mary Bernstein initial
14 quid pro quo hostile
environment complaint to
15
Department of Housing and
16 Urban Development July 26
2018
17
M 31 Plaintiff Elizabeth Tigano initial
18
quid pro quo hostile
19 environment complaint to
Department of Housing and
20 Urban Development August 22
21
2019

22
N 32 FHEO BOOKLET ENG The
Department of Housing and
23 Urban Development (HUD)
enforces the Fair Housing Act,
24
which prohibits discrimination
25 and the intimidation of people
in their homes, apartment
26
buildings, and condominium
27 developments

28 O 33 Response to HUD Request

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 Case 3:20-cv-02983-JSC Document 37 Filed 10/29/20 Page 169 of 177

Claudia Lopez for Additional

1
Information Quid Pro Quo
2 Hostile Environment Complaint
August 28 2018
3
P 34 September 19 2018 follow up
4
letter to HUD Ben Carson,
5 Claudia Lopez Quid Pro Quo
Hostile Environment
6
Q 35 Plaintiff Bernstein outline due
7 to communication disabilities
8
for CAL DFEH telephonic
interview with Investigator
9 Cherie Douglas November 9
2018
10
NOTE: Disabled, Pro Per Plaintiffs were rebuked by Judge Jacqueline Scott Corley Order to not file
11
Exhibits or face losing E-filing Privileges
12
The following transaction was entered on 9/9/2020 at 8:27 AM and filed on 9/8/2020
13 Case Name: Bernstein et al v. United States Department of Housing & Urban Development et al
Case Number: 3:20-cv-02983-JSC
14 Filer:
Document Number: 36
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Docket Text:
16 ORDER NO. 2 REGARDING PLAINTIFFS' FILINGS. Signed by Magistrate Judge Jacqueline Scott Corley on
9/8/2020. (ahm, COURT STAFF) (Filed on 9/8/2020). Plaintiffs are handicapped with communication
17 disabilities and were e-filing exhibits as they went along to avoid the potential mistake of not
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attaching when submitting first amended complaint and to avoid being overwhelmed.

19 Q SF Gate Article Berkeley

Neighbors Suit Against HUD
20 Staff Upheld
Henry K. Lee, Chronicle Staff
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Writer Published 4:00 am PDT,
22 Thursday, September 28, 2000

23 R California State Bar Inactive

Paul Smith since 1988
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S Paul Smith email screening
25 “what religion are you”
26 T Paul Smith refusal to
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acknowledge notice of claims
emailed and mailed previously
28 indifference

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U Elizabeth Tigano complaint

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letter to HUD Quid Pro Quo
2 August 22 2019

3 V Paul Smith HUD dismissal letter

Eizabeth Tigano August 27 2019
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W Appeals Powerpoint
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X Sanator Diane Feinstein
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Powerpoint
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Y Senator Kamala Harris
8 Powerpoint

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24 SOME OF THE SIGNED FLYERS HOA COMMUNITY THAT

25 ENCOURAGED PLAINTIFF TO INVESTIGATE, LITIGATE
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27 EMOTIONAL, PSYCHOLOGICAL DISTRESS,

28 MENTAL ANGUISH SUFFERED BY

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1 PLAINTIFF TIGANO ATTEMPTING TO BE

2 KIND TO THE DISADVANTAGED
3 CHILDREN ACROSS THE STREET.
4 PLAINTIFF TIGANO GAVE AWAY TOYS,
5 OTHER ITEMS DONATING TO CHILDREN
6 ACROSS THE STREET IN ATTMPT TO
7 CAUSE THE HATEFULNESS TO CEASE.
8 THIS APARTMENT COMMUNITY
9 RETURNED EVIL FOR GOOD. RETURNING
10 KINDNESS WITH VIOLENCE, HATRED,
11 ALIENATION OF PLAINTIFF.
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13 CONCLUSION
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Have not I commanded thee? Be strong and of a good courage; be not afraid, neither be thou
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dismayed: for the Lord thy God is with thee whithersoever thou goest.
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17 PRAYER FOR RELIEF

18 WHEREFORE, plaintiff demands judgment against defendants, and each of them, for:
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1. Compensatory damages according to proof;
2. Punitive damages;
20 3. Defendant USA Department of Housing and Urban Development do it’s job intervening,
protecting Plaintiffs from abuses. HOA, MEB, Mission Vista
21 4. Defendant CAL DFEH
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5. Plaintiffs know that they are not the only ones suffering exhibited by Barbara Marenco,
Jacqueline Illera, Joe Tigano harmed by Defendant USA
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WHEREFORE, plaintiff respectfully request judgment against the defendants as
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25 a) On the First Claim for Relief, $1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
26 b) Claim filed pursuant to the Federal Tort Claims Act.
c) On the Second Claim for Relief, $10,000,000.00 as stated in plaintiffs Notice of
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d) Claim filed pursuant to the Federal Tort Claims Act.
28 e) On the Third Claim for Relief, $1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed

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f) Claim filed pursuant to the Federal Tort Claims Act.

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g) On the Fourth Claim for Relief, $1,000,000.00, $500,000.00 each as stated in each of
2 Plaintiffs Bernstein and Tigano Notices of Claims filed
h) Claim filed pursuant to the Federal Tort Claims Act.
3 i) On the Fifth Claim for Relief $1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
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j) Claim filed pursuant to the Federal Tort Claims Act.
5 k) On the Sixth Claim for Relief, $1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
6 l) Claim filed pursuant to the Federal Tort Claims Act.
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m) On the Seventh Claim for Relief, $1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
8 n) Claim filed pursuant to the Federal Tort Claims Act.
o) On the Eighth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
9 Plaintiffs Bernstein and Tigano Notices of Claims filed
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p) On the Ninth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
11 q) On the Tenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
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r) On the Eleventh Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
13 Plaintiffs Bernstein and Tigano Notices of Claims filed
s) On the Twelfth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
14 Plaintiffs Bernstein and Tigano Notices of Claims filed
t) On the Thirteenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
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Plaintiffs Bernstein and Tigano Notices of Claims filed
16 u) On the Fourteenth Claim for Relief, the amount of $10,()()0,000.00.
v) On the Fifteenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
17 Plaintiffs Bernstein and Tigano Notices of Claims filed
w) On the Sixteenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
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Plaintiffs Bernstein and Tigano Notices of Claims filed
19 x) On the Seventeenth Claim for Relief, the amount of $10,000,000.00
y) On the Eighteenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
20 Plaintiffs Bernstein and Tigano Notices of Claims filed
z) On the Nineteenth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
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Plaintiffs Bernstein and Tigano Notices of Claims filed
22 aa) On the Twentieth Claim for Relief, the amount of $10,000,000.00
bb) On the Twenty First Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
23 of Plaintiffs Bernstein and Tigano Notices of Claims filed
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cc) On the Twenty Second Claim for Relief$1,000,000.00, $500,000.00 each as stated in
each of Plaintiffs Bernstein and Tigano Notices of Claims filed
25 dd) On the Twenty Third Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
of Plaintiffs Bernstein and Tigano Notices of Claims filed
26 ee) On the Twenty Fourth Claim for Relief, the amount of $10,000,000.00 as stated in
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ff) plaintiffs Notice of Claim filed pursuant to the Federal Tort Claims Act.
gg) On the Twenty Fifth Claim for Relief, the amount of $10,000,000.00 as stated in
28 hh) plaintiffs Notice of Claim filed pursuant to the Federal Tort Claims Act.

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ii) On the Twenty Sixth Claim for Relief, the amount of $10,()00,000.00.
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jj) On the Twenty Seventh Claim for Relief$1,000,000.00, $500,000.00 each as stated in
2 each of Plaintiffs Bernstein and Tigano Notices of Claims filed
kk) On the Twenty Eighth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
3 of Plaintiffs Bernstein and Tigano Notices of Claims filed
ll) On the Twenty Ninth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
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of Plaintiffs Bernstein and Tigano Notices of Claims filed
5 mm) On the Thirtieth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
6 nn) On the Thirty First Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
7
Plaintiffs Bernstein and Tigano Notices of Claims filed
oo) On the Thirty Second Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
8 of Plaintiffs Bernstein and Tigano Notices of Claims filed
pp) On the Thirty Third Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
9 Plaintiffs Bernstein and Tigano Notices of Claims filed
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qq) On the Thirty Fourth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each
of Plaintiffs Bernstein and Tigano Notices of Claims filed
11 rr) On the Thirty Fifth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
Plaintiffs Bernstein and Tigano Notices of Claims filed
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ss) On the Thirty Sixth Claim for Relief$1,000,000.00, $500,000.00 each as stated in each of
13 Plaintiffs Bernstein and Tigano Notices of Claims filed

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6. Such other and further relief as this court may deem just and proper.
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16 JURY DEMAND

17 Plaintiffs demand Case Management Conference November 19 202020 live in person in San
Francisco courthouse as Plaintiffs are disabled with communication disabilities reasonable
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accommodations, scheduling of pretrial, a trial by jury and all issues so triable. Plaintiffs cannot
19 effectively present matters on phone calls, require court reporters that Plaintiffs provide for
memory issues. Pursuant to Fed. R. Civ. P. 38 (a), (b) & (c) Plaintiff hereby demand a trial by
20 jury on all issues. RULE 38. RIGHT TO A JURY TRIAL; DEMAND.
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DATED this 29th day of October, 2020.
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23

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20 CMC is to be held within 120 days of filing action in federal court.
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(a) Except in categories of cases excluded under the Federal Rules of Civil Procedure, or these Local Rules or orders of
this Court, when an action is filed the Court shall issue to the filing party an Order Setting Initial Case Management Conference
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and ADR Deadlines. The Order shall set the date for the Initial Case Management Conference — which shall be on the first date
available on the assigned Judge’s calendar that is not less than 90 days after the action was filed, and shall specify the deadline
27 for filing the ADR Certification required by Civil L.R. 16-8(b) and either a Stipulation Selecting an ADR Process or a Notice of
Need for ADR Phone Conference as required by Civil L.R. 16-8 (c) and ADR L.R. 3-5(c).
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3
__________
MARY BERNSTEIN
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DATED this 29th day of October, 2020.
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_
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7 ELIZABETH TIGANO
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