FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY RAY MORRIS; KRISTY 

MORRIS, 

Plaintiffs-Appellants, 

 v. 

WEST HAYDEN ESTATES FIRST 

ADDITION HOMEOWNERS

ASSOCIATION, INC., an Idaho 

corporation, 

Defendant-Appellee.

No.19-35390 

D.C. No.

2:17-cv-00018-

BLW 

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted June 5, 2020

Portland, Oregon

Filed June 17, 2024

Before: A. Wallace Tashima, Marsha S. Berzon, and 

Daniel P. Collins, Circuit Judges.
2 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Opinion by Judge Berzon*;

Partial Dissent by Judge Tashima;

Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY**

Fair Housing Act

The panel affirmed in part and reversed in part the 

district court’s judgment after a jury trial, and remanded, in 

Jeremy and Kristy Morris’s action under the Fair Housing 

Act against West Hayden Estates First Addition 

Homeowners Association, Inc. 

The Morrises alleged that the HOA discriminated against 

them on the basis of religion by attempting to prevent them 

from conducting a Christmas program. The jury returned a 

verdict in favor of the Morrises and awarded them 

compensatory and punitive damages. The district court 

granted judgment as a matter of law and alternatively 

granted a new trial or remittitur of the damages to the HOA. 

The district court entered a permanent injunction against 

future productions of the Christmas program that violate the 

HOA’s covenants, conditions, restrictions, and easements, 

or CC&Rs. 

*

Judge Tashima concurs in the opinion with the exception of Parts 

II(a)(i)(2) and II(c). Judge Collins concurs only in Parts II(a)(i)(2) and 

II(c).

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 3

The Morrises contended that the HOA Board 

discriminated against them because of their Christian faith 

by discouraging them from purchasing a home in West 

Hayden Estates, interfering with the practice of their faith by 

opposing the Christmas program, and selectively enforcing 

the HOA rules. In Part II(a)(i)(1) of the opinion, affirming in 

part, the panel held that the district court properly granted 

judgment as a matter of law to the HOA as to the Morrises’ 

disparate treatment claim under 42 U.S.C. § 3604(b) because 

they did not show that they were adversely affected by the 

HOA’s actions. Agreeing with the Seventh Circuit, the panel 

held that discrimination against a member of a protected 

class in the interpretation and enforcement of HOA rules can 

violate § 3604(b). Here, though, the HOA’s actions did not 

constitute enforcement of its rules, discriminatory or 

otherwise. 

In Part II(a)(i)(2), reversing in part, the panel held that a 

reasonable jury could find that the HOA interfered with the 

Morrises’ right to purchase and enjoy their home free from 

discrimination, in violation of 42 U.S.C. § 3617. The panel 

concluded that, viewing the evidence in the light most 

favorable to the Morrises, there was sufficient evidence 

supporting the jury’s conclusion that the HOA Board’s 

conduct was motivated at least in part by the Morrises’ 

religious expression. 

In Part II(a)(ii), the panel affirmed the district court’s 

grant of judgment as a matter of law on the Morrises’ claim 

that the HOA’s toleration of threats and harassment targeted 

at the Morrises by other residents of West Hayden Estates 

violated § 3604(b). 

In Part II(a)(iii), the panel affirmed the district court’s 

grant of judgment as a matter of law on the Morrises’ claim 
4 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that the Board’s January 2015 letter, addressing their preclosing inquiry about the Christmas program, violated 

§ 3606(c), which prohibits making, printing, or publishing 

any notice, statement, or advertisement, with respect to the 

sale or rental of a dwelling that indicates any preference, 

limitation, or discrimination based on a protected 

characteristic, including religion. Agreeing with other 

circuits, the panel adopted an objective “ordinary reader” 

standard. Applying this standard, the panel agreed with the 

district court that the HOA was entitled to judgment as a 

matter of law on this claim. 

In Part II(b), the panel affirmed the district court’s 

alternative grant of a new trial to the HOA as to the § 3617 

claim. The panel concluded that the district court did not 

abuse its discretion in holding that the jury’s verdict was 

against the clear weight of the evidence. 

In Part II(c), the panel vacated the district court’s grant 

of an injunction to the HOA. The panel reasoned that during 

a new trial on the Morris’s § 3617 claim, the jury could 

conclude that the HOA was motivated in part by a 

discriminatory purpose in its interactions with the Morrises. 

If so, then simultaneously permitting an injunction against 

the Morrises could have the effect of sanctioning 

discriminatory reliance on the CC&Rs. 

Dissenting in part, Judge Tashima concurred in the 

opinion with the exception of Parts II(a)(i)(2) and II(c). 

Judge Tashima wrote that the district court properly granted 

the HOA’s motion for judgment as a matter of law on all the 

Morrises’ claims because the evidence permitted only one 

reasonable conclusion: the HOA was concerned about the 

Morrises’ holiday events because of the size and scale of the 

events, not because of the Morrises’ religion. Judge Tashima 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 5

wrote that the district court also properly granted the HOA’s 

motion for injunctive relief and did not abuse its discretion 

in alternatively finding that the HOA was entitled to a new 

trial and to remittitur. 

Concurring in part and dissenting in part, Judge Collins 

concurred only in Parts II(a)(i)(2) and II(c). Judge Collins 

agreed with the majority’s conclusions that the district court 

erred in granting judgment as a matter of law on the 

Morrises’ claim under § 3617 and that this error 

prejudicially affected the district court’s analysis of the 

HOA’s counterclaim for injunctive relief enforcing the 

CC&Rs against the Morrises. Judge Collins wrote that the 

district court also erred by concluding that the judgment as a 

matter of law was warranted for the HOA on the remaining 

claims, as well as by conditionally awarding the HOA a new 

trial and remittitur.

COUNSEL

Allyson N. Ho (argued), Gibson Dunn & Crutcher LLP, 

Dallas, Texas; Katherine C. Yarger, Gibson Dunn & 

Crutcher LLP, Denver, Colorado; Jeremiah G. Dys and 

Stephanie N. Taub, First Liberty Institute, Plano, Texas; for 

Plaintiffs-Appellants.

Peter J. Smith, IV (argued) and Jillian H. Caires, Smith & 

Malek PLLC, Coeur d’Alene, Idaho, for DefendantAppellee.
6 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

OPINION

BERZON, Circuit Judge:

In 2014, Jeremy and Kristy Morris hosted a public 

Christmas program outside their home in Grouse Meadows, 

a neighborhood in Hayden, Idaho. Soon after the event, the 

Morrises moved to a new home in West Hayden Estates, 

where they hoped to continue their newly minted tradition of 

producing a multi-day Christmas festival to raise money for 

charity. Among other things, they intended to string up 

thousands of Christmas lights, sing Christmas carols,

employ costumed Christmas characters including Santa 

Claus and the Grinch, and host a live nativity scene, 

complete with a real camel. 

The Morrises’ plan received a frosty reception from the 

Board of the West Hayden Estates First Addition 

Homeowners Association (“HOA”). The Morrises’

Christmas program would likely violate the HOA’s rules, the 

Board informed them. After two years during which the 

Morrises did host the program, the Morrises filed this suit in 

federal court. The Morrises accused the HOA of more than 

just being Grinches. The HOA’s conduct discriminated 

against them on the basis of religion, they maintain, in 

violation of the Fair Housing Act, 42 U.S.C. §§ 3601–3631

(“FHA” or “the Act”).

The district court denied summary judgment, and the 

case went to trial. The jury agreed with the Morrises and 

awarded them $60,000 in compensatory damages and 

$15,000 in punitive damages. Post-trial, the district court

granted judgment as a matter of law (“JMOL”) to the HOA. 

We affirm in part and reverse in part.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 7

I. Facts and Background

In December of 2014, Jeremy Morris posted on 

Facebook that he and his wife, Kristy, would be offering free 

hot chocolate to anyone passing through their neighborhood, 

Grouse Meadows, to look at the Christmas lights. Within a 

day, an estimated 200 families had taken the Morrises up on 

their offer. Over the following eight nights, between 20 and 

100 families stopped by each night to see the Morrises’ 

Christmas decorations, some driving through the 

neighborhood and others parking in a church parking lot 

across the street. On one or two of the nights, a bus brought 

residents from a retirement home to see the lights and enjoy 

caroling. Visitors to the Morrises’ 2014 Christmas display

enjoyed the thousands of lights on the Morrises’ house, free 

hot chocolate, Christmas-themed characters in costume, 

caroling, and a live camel named Dolly. 

Shortly after the holidays, the Morrises made an offer on 

a new home in West Hayden Estates. Before closing, Jeremy 

Morris, with “the Christmas program in mind,” requested a 

copy of the HOA’s declaration establishing covenants, 

conditions, restrictions, and easements (“CC&Rs”) to 

ascertain whether there would be any problem with hosting 

a Christmas event around the new home, similar to the 2014 

production. Jeremy Morris also contacted Jennifer Scott, 

president of the West Hayden Estates HOA to discuss a 

potential Christmas program. He asked Scott to arrange a 

meeting of the HOA Board to address how the CC&Rs 

would impact the program, and to do so urgently. 

Scott immediately scheduled an emergency meeting of 

the HOA Board, which the Morrises did not attend. During 

the meeting, members of the Board looked up information

about and watched YouTube videos depicting the Morrises’ 
8 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

2014 program on Facebook. After doing so, the Board was 

concerned that an event of that scale would not be consistent 

with the HOA’s rules and covenants. At the end of the 

meeting, the Board agreed to send the Morrises a letter 

advising them that hosting the proposed Christmas program 

would likely violate the West Hayden CC&Rs. 

The following day, former Board member Larry Strayer 

circulated a draft letter to the other members of the HOA 

Board. The letter stated that a program like the one planned 

by the Morrises would violate three sections of the CC&Rs: 

Section 5.4.1, which provides that properties in West 

Hayden Estates are not to be used for any purpose other than 

for single family residential purposes; Section 5.4.2, which 

prohibits nuisances, including any noise which would

“interfere with the quiet enjoyment of any” neighbor; and 

Section 5.4.15, which instructs that any exterior lighting on 

an HOA home “shall be restrained in design” and that 

“excessive brightness shall be avoided.” The letter also 

expressed concern about the increase in traffic that would 

likely accompany the Morrises’ Christmas program. The 

draft letter concluded with two paragraphs that read:

And finally, I am somewhat hesitant in 

bring[ing] up the fact that some of our 

residents are avowed atheists and I don’t even 

want to think of the problems that could bring 

up.

It is not the intention of the Board to 

discourage you from becoming part of our 

great neighborhood but we do not wish to 

become entwined in any expensive litigation 

to enforce long standing rules and regulations 

and fill our neighborhood with the riff-raff 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 9

you seemed to attract over by WalMart. 

Grouse Meadows indeed!!! We don’t allow 

“those kind” in our neighborhood.

After some back-and-forth among Board members, these 

closing paragraphs were revised to read:

And finally, I am somewhat hesitant in 

bringing up the fact that some of our residents 

are non-Christians or of another faith and I 

don’t even want to think of the problems that 

could bring up.

It is not the intention of the Board to 

discourage you from becoming part of our 

great neighborhood but we do not wish to 

become entwined in any expensive litigation 

to enforce long standing rules and regulations 

and fill our neighborhood with the hundreds

of people and possible undesirables. We 

have worked hard to keep our area peaceful, 

quiet, and clean. Neighbors respect the 

CC&R’s and show common courtesy to those 

around them. These are reasons why people 

want to live here.

The revised letter was mailed to the Morrises on January 16, 

and received January 21. 

Undeterred by the HOA’s response to their inquiry, the 

Morrises moved forward with their purchase of the West 

Hayden Estates home. On January 27, Jeremy Morris met 

with the HOA Board. He was joined by his realtor and, via 

telephone, an attorney specializing in issues concerning 

religious liberty. In that meeting, the Board raised concerns 
10 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

about traffic and the number of people who would attend the 

Christmas event. 

The following month, the Board called a meeting of the 

full HOA membership. In a letter to all HOA members 

announcing the meeting, the Board stated: 

A potential buyer is looking to purchase a 

home within the development. He has 

requested approval to hold a holiday event

that will last from 5–10 days during the 

month of December. This display/event was 

held in another development last year. In 

speaking with the gentleman, he has 

indicated that this “event” will produce in 

excess of 900 additional vehicles traveling 

through the neighborhood with up to 80 

volunteers directing traffic and such. He has 

indicated that he will be using a speaker/PA 

system from 6 pm – 9 pm nightly. Last year, 

he incorporated a camel and various other 

amenities to attract attention to his display. . 

. . 

His comment to the media was that this year, 

he plans to create a much larger event. . . . 

It is the Board’s opinion that while we 

encourage holiday decorating and 

community participation, this type of traffic 

and event is in violation of the CCRs for West 

Hayden Estates. 

The board is seeking your opinions on the 

matter as the individual has threatened legal 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 11

action if the board does not permit his 

request.

After this notice was circulated but before the meeting, 

Jeremy Morris sent a response letter to all members of the 

HOA. That letter read in part:

[T]he HOA Board has engaged in 

discriminatory violations of the Fair Housing 

Act, and has rebuffed my attempts to resolve 

the situation quietly. My only desire is to 

exercise my rights as a homeowner, while 

respecting the rights of others, in the spirit of 

community, by celebrating my own Christian 

message which includes decorating for 

Christmas and raising money for charity. . . . 

My own read of the CCR’s found nothing to 

prevent a Christmas event from taking place, 

and the opinion of other attorneys confirmed 

this. In sum, with no CC&R provision 

applicable to our Christmas event, the HOA 

Board then resorted to religious 

discrimination. 

The letter also stated that the “Fair Housing Administration” 

was “investigating this incident.”1

At the meeting, which took place in February of 2015, 

HOA members discussed the Christmas program and held a 

vote on whether the event should proceed. According to one 

Board member’s trial testimony, the 19 HOA members 

1 There is no evidence in the record that any government agency 

investigated the Morrises’ claims.
12 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

present (not including Board members) voted that they did 

not want the Morrises’ Christmas program to take place in 

West Hayden Estates, but no formal action was taken as a 

result. The following month, the Morrises closed on the 

West Hayden Estates home and moved into the 

neighborhood. 

The residents of West Hayden Estates, including the 

Morrises, lived in apparent harmony until the fall of 2015, 

when Jeremy and Kristy began to set up Christmas lights in 

preparation for their “2nd Annual Hayden Christmas Light 

Show.” In October, the HOA Board, via their attorney, sent 

the Morrises a letter expressing concern that the planned 

event would not comply with local zoning ordinances and 

would violate HOA rules prohibiting nuisances, excessive 

lighting, and the keeping of animals other than “ordinary 

household pets.” The letter further stated: “Unless you 

request and receive written approval from the Association 

Board to conduct your planned event, the Board has 

authorized this office to file an action seeking an injunction 

to prevent your event from occurring.” 

The Morrises did not receive written approval but went 

forward with the event as planned. For five nights leading 

up to Christmas, the Morrises surrounded their house with: 

an estimated 200,000 lights, thirty volunteers, costumed 

characters (representing, among others, the Grinch, Frosty

the Snowman, Santa Claus, and Clifford the Big Red Dog), 

several musical guests, a children’s choir, an antique cotton 

candy machine, charity tables, security personnel, a live 

nativity scene, and, once again, Dolly the camel. Four 

commercial buses carried visitors to the event, and traffic 

supervisors directed visitors’ cars through the streets around 

the house. The HOA Board took no legal action. The 

Morrises held a larger program in 2016, which had five 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 13

buses and 48 volunteers, and added four “hot chocolate 

elves” to the attractions. 

In the meantime, the relationship between the Morrises 

and their West Hayden Estates neighbors grew tense. The 

HOA reportedly received complaints from West Hayden 

Estates residents regarding trash, traffic, and one incident of 

public urination by a child, all allegedly generated by the 

Christmas programs. On at least two occasions, Jeremy 

Morris became involved in public arguments with other 

West Hayden Estates residents. According to the Morrises, 

during one such argument, a West Hayden resident, Larry 

Bird, made threats against Morris. 

December 2016 was the last time the Morrises hosted the 

event. In January 2017, the Morrises filed suit in federal 

court, asserting that the West Hayden Estates HOA violated 

§§ 3601, 3604(b), 3604(c), and 3617 of the Fair Housing 

Act, all prohibiting various forms of religion-based 

discrimination in access to housing. The HOA 

counterclaimed, asking the court to enjoin the Morrises from 

holding their Christmas program again in West Hayden 

Estates. After the close of discovery, the HOA moved for 

summary judgment. The district court denied summary 

judgment, explaining that, although the Board’s January 

2015 letter to the Morrises “may have been an attempt to 

offer some type of conciliation or recognition of sensitivity 

to others’ religious beliefs,” a jury could reasonably view 

that letter “as evidencing a discriminatory intent.” 

A six-day jury trial ensued. The jury heard testimony 

from the Morrises, members of the HOA Board, the 

Morrises’ neighbors, and volunteers who helped the 

Morrises carry out their Christmas programs. Following 

deliberations, the jury completed a special verdict form on 
14 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

which it found for the Morrises on each of their separate 

FHA claims. First, the jury concluded that the HOA 

“discriminated against [the Morrises] at least in part due to 

their religion” both during and after the purchase of their 

home, in violation of 42 U.S.C. § 3604(b). Next, the jury 

found that the HOA’s January 2015 letter to the Morrises 

“expressed, in the mind of an ordinary reader, a preference 

that a non-religious individual purchase [the Morrises’]

home,” in violation of § 3604(c). Last, the jury found that 

the HOA “threatened, intimidated, or interfered with [the 

Morrises’] purchase or enjoyment of their home,” in 

violation of § 3617. The jury awarded the Morrises $60,000 

in compensatory damages and $15,000 in punitive damages. 

After trial, the district court granted the HOA’s motion 

for JMOL under Fed. R. Civ. P. 50(b). The court held that 

the Morrises’ claims rested primarily on the HOA’s January 

2015 letter, and that an ordinary reader would not view the 

letter as showing that the Board intended to discriminate on 

the basis of religion. The court also determined that the 

HOA had been unfairly prejudiced when the jury heard 

evidence of alleged threats and harassment targeting the 

Morrises and that the weight of the evidence was against the 

Morrises, and consequently held, in the alternative, that the 

HOA was entitled to a new trial under Fed. R. Civ. P. 59, or 

to remittitur of the damages to a total of $4. Finally, the 

district court concluded that the Christmas program violated 

the HOA rules and granted an injunction barring the 

Morrises “from hosting a Christmas program in the West 

Hayden Estates that violates the CC&Rs,” including by 

decorating their house with lights visible from neighboring

lots, using their house for any purpose other than as a singlefamily residence, interfering with the quiet enjoyment of 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 15

other homeowners, and keeping “livestock” on their 

property (in the form of a donkey and Dolly the camel). 

The Morrises appealed. We affirm in part and reverse in 

part the district court’s grant of JMOL, affirm the grant of a 

new trial, vacate the injunction, and remand.

II. Discussion

a. Judgment as a Matter of Law

The Morrises contend that the HOA violated three 

provisions of the Fair Housing Act: Section 3604(b), which 

makes it unlawful to “discriminate against any person in the 

terms, conditions, or privileges of sale or rental of a 

dwelling, or in the provision of services or facilities in 

connection therewith, because of race, color, religion, sex, 

familial status, or national origin,” 42 U.S.C. § 3604(b); 

section 3604(c), under which it is unlawful “[t]o make, print, 

or publish . . . any notice, statement, or advertisement, with 

respect to the sale or rental of a dwelling that indicates any 

preference, limitation, or discrimination based on . . . 

religion,” id. § 3604(c); and section 3617, which makes it

“unlawful to coerce, intimidate, threaten, or interfere with 

any person in the exercise or enjoyment of, or on account of 

his having exercised or enjoyed . . . any right granted or 

protected” by §§ 3603, 3604, 3605, or 3606 of the Act, id. 

§ 3617.

We review the grant of judgment as a matter of law de 

novo, viewing the evidence in the light most favorable to the 

non-moving party, here, the Morrises. Corbello v. Valli, 974 

F.3d 965, 973 (9th Cir. 2020). JMOL is appropriate “only if 

there is no legally sufficient basis for a reasonable jury to 

find for that party on that issue.” Krechman v. County of 
16 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (internal 

quotation marks and citation omitted). 

i. Discriminatory Treatment and Interference

The Morrises contend that the HOA Board discriminated 

against them because of their Christian faith by discouraging 

them from purchasing a home in West Hayden Estates, 

interfering with the practice of their faith by opposing the 

Christmas program, and selectively enforcing the HOA 

rules. 

(1) Section 3604(b) of the FHA

Section 3604(b) of the FHA prohibits discrimination on 

protected grounds, including religion, “in the terms, 

conditions, or privileges of sale or rental of a dwelling, or in 

the provision of services or facilities in connection 

therewith.” 42 U.S.C. § 3604(b). The provision creates a 

“broad and inclusive compass” entitled to “generous 

construction.” McGary v. City of Portland, 386 F.3d 1259, 

1262 (9th Cir. 2004) (internal quotation marks omitted) 

(quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 

725, 731 (1995)). 

The HOA’s CC&Rs are facially neutral, and the 

Morrises make no argument that they have “a significantly 

adverse or disproportionate impact on” Christians generally. 

Comm. Concerning Cmty. Improvement v. City of Modesto 

(CCCI ), 583 F.3d 690, 711 (9th Cir. 2009). So we consider 

their § 3604(b) claim through the lens of disparate treatment.

See Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 503 

(9th Cir. 2016). 

Disparate treatment claims under the FHA are often 

reviewed using the three-stage burden-shifting test derived 

from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 17

802–04 (1973). See also Gamble v. City of Escondido, 

104 F.3d 300, 305 (9th Cir. 1997). The HOA, relying on 

McDonnell Douglas, argues that the Morrises failed to prove 

a prima facie disparate treatment claim because “[n]o other 

event that had been held in the neighborhood compared to 

the Morrises[’] Christmas Program.” 

The McDonnell Douglas framework, however, is only 

one way of establishing a disparate treatment claim, 

applicable where the evidence is indirect and directed toward

challenging as pretextual a facially neutral explanation for 

the challenged action. See, e.g., Lyons v. England, 307 F.3d 

1092, 1112–13 (9th Cir. 2002); Diaz v. Am. Tel. & Tel., 752 

F.2d 1356, 1361 (9th Cir. 1985). The Morrises may prevail 

by otherwise “‘produc[ing] direct or circumstantial evidence 

demonstrating that a discriminatory reason more likely than 

not motivated’ the defendant and that the defendant’s actions 

adversely affected [them] in some way.” Pac. Shores 

Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 

(9th Cir. 2013) (quoting McGinest v. GTE Serv. Corp., 360 

F.3d 1103, 1122 (9th Cir. 2004)). Under the FHA, the

evidence need not “prove that the discriminatory purpose 

was the sole purpose of the challenged action, but only that 

it was a ‘motivating factor.’” Ave. 6E Invs., 818 F.3d at 504 

(quoting Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 

2015)). 

We start with whether the Morrises were “adversely 

affected” by the Board’s conduct. Pac. Shores Props., 730 

F.3d at 1158. The Morrises maintain that they were 

adversely affected by the Board’s discriminatory 

enforcement of the CC&Rs. As the Seventh Circuit 

recognized in Bloch v. Frischholz, 587 F.3d 771, 779–81

(7th Cir. 2009) (en banc), discrimination against a member 
18 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

of a protected class in the interpretation and enforcement of 

HOA rules can violate § 3604(b) of the FHA. 

In Bloch, an observant Jewish family sued their 

condominium association for repeatedly removing the 

traditional mezuzah from the family’s doorpost in the name 

of enforcing rules that prohibited leaving “objects of any 

sort” outside residence doors. Id. at 773. The en banc court 

held that “§ 3604(b) prohibits the [Homeowners’] 

Association from discriminating . . . through its enforcement 

of the rules, even facially neutral rules.” Id. at 780. 

Similarly here, if the Board had selectively enforced the 

HOA rules against the Morrises on the basis of their religious 

behavior, the enforcement would likewise fall afoul of 

§ 3604(b).

In this case, however, the HOA’s actions regarding the 

CC&Rs and the Morrises’ Christmas event did not constitute

“enforcement” of its rules, discriminatory or otherwise. 

Stripped down, the Morrises’ claim rests on: the January 

2015 letter advising the Morrises that the Christmas program 

would most likely violate the CC&Rs, the February 2015 

residents’ meeting, including the Board’s letter to West 

Hayden Estates residents emphasizing the disruptive nature 

of the Christmas pageant and encouraging a vote on whether 

to “allow” the program, and the October 2015 letter. 

Viewing this evidence in the light most favorable to the 

Morrises, Corbello, 974 F.3d at 973, the Morrises have not 

pointed to any adverse action sufficient to support a 

§ 3604(b) disparate treatment claim. The Morrises were not 

prevented from purchasing or moving into their home. Nor 

were they prevented from enjoying the privileges of home 

ownership. They were never prevented from holding their 

Christmas event. Nor is there any suggestion in the record 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 19

that they were denied equal use and enjoyment of West 

Hayden Estates’ common areas, that they incurred any 

economic losses or onerous administrative burdens, Pac. 

Shores Props., 730 F.3d at 1165–66, or that they were 

subjected to any “proceedings that were contrary to the 

[HOA’s] established policy and practice” as a result of the 

Board’s actions, Harris v. Itzhaki, 183 F.3d 1043, 1052 (9th 

Cir. 1999). 

The Board’s attorney did send a letter to the Morrises in 

October 2015, stating that the HOA had authorized 

enforcement of the CC&Rs through legal action if the 

Morrises proceeded without “written approval from the 

Association Board to conduct [their] planned event.” The 

Morrises never sought written approval and received none, 

but the HOA took no action, and the Christmas programs

went forward as planned in 2015 and 2016.2 So, before the 

commencement of this action, the HOA did not enforce the 

CC&Rs, by taking legal action or otherwise.3 

The Morrises’ experience is thus fundamentally 

dissimilar from the adverse actions taken in applying 

established procedures in cases such as Bloch, Harris and 

Pacific Shores, each of which had a practical impact on the 

plaintiff. Unlike in Bloch, the Board did not enforce, 

selectively or otherwise, their facially neutral rules.

2

Judge Collins would hold that the HOA’s actions constituted 

enforcement of the CC&Rs, and that a reasonable jury could find that 

this enforcement constituted differential treatment. Collins Dissent at 

89–90. As we discuss in more depth below, a demand letter outlining 

the possible CC&R violations of a proposed action, without more, is not 

adverse action.

3 The Board now seeks to enjoin any future productions of the Christmas 

program as a counterclaim to this suit. 
20 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In Harris, a tenant alleged that, in response to her 

complaints about discrimination, her landlords immediately 

sent her eviction notices when they did not receive rent on 

time, a departure from their “established policy and practice” 

of calling tenants to ask about rent before initiating the 

eviction process. 183 F.3d at 1052. After her landlords 

twice sent her such eviction notices, the tenant was forced to 

alter her own behavior and “send all subsequent payments 

by certified mail” to ensure she did not face eviction. Id. 

In Pacific Shores, group homes for recovering alcoholics 

and drug users challenged a local ordinance that prohibited 

new group homes from opening in most residential areas and 

required existing homes to undergo a burdensome permit 

process to continue operating. 730 F.3d at 1147. Although 

the group homes did not challenge the city’s denial of their 

individual permit applications, this Court held that they had 

faced “adverse effects” under the FHA’s disability 

discrimination provision because the ordinance forced them 

“to submit a detailed application for a special use permit . . .

to continue operating,” requiring the expenditure of 

“substantial time, effort, and resources” and leading “to the 

closure of approximately one third of the City’s” existing 

group homes. Id. at 1164–65. 

Here, by contrast, the only concrete action the HOA took 

was to send a letter stating that it had authorized legal action 

it never took. That was it. The Morrises did nothing in 

response, the event went on, and the Board took no 

enforcement action. Unlike in Bloch and Harris, the 

Morrises disregarded the HOA’s demand letter without 

facing any consequences or enforcement, and unlike in 

Pacific Shores, they did not change their behavior to avoid 

enforcement.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 21

We construe the FHA liberally, see McGary, 386 F.3d at 

1262, and do not mean here to provide a comprehensive 

standard for determining which adverse actions could give 

rise to a § 3604(b) claim. But to support a disparate 

treatment claim, plaintiffs must be able to point to some

concrete adverse impact suffered as a result of the 

defendants’ behavior. The Morrises have pointed to no such 

harm. We therefore conclude that the jury’s verdict for the 

Morrises’ § 3604(b) disparate treatment claim is not 

supported by sufficient evidence and so affirm the grant of 

JMOL as to that claim. Cf. Wallace v. City of San Diego, 

479 F.3d 616, 624 (9th Cir. 2007) (reversing the district 

court’s grant of JMOL because substantial evidence 

supported the jury’s verdict). Because we hold the HOA did 

not cause any adverse impact on the Morrises, we do not 

reach the second element of the Morrises’ § 3604(b) claim, 

whether any adverse action was motivated by adversity to 

religion.

(2) Section 3617 of the FHA

The Morrises also brought a claim under § 3617 of the 

Act, which prohibits the “coerc[ion], intimidat[ion], 

threaten[ing], or interfere[nce] with any person in the 

exercise or enjoyment of” rights protected by other 

provisions of the FHA (“interference claim”). 42 U.S.C. 

§ 3617. Section 3617 is frequently construed with reference 

to § 3604(b), but the two provisions are not coextensive. See 

Bloch, 587 F.3d at 781–82. Section 3617 “reach[es] all 

practices which have the effect of interfering with the 

exercise of rights under the federal fair housing laws.” U.S.

v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994)

(internal quotation marks omitted) (quoting Mich. Prot. & 

Advoc. Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)). A 

Section 3617 violation does not require the person “who is 
22 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

interfered with to capitulate to the interference,” and a 

violation can “involve a ‘situation where no discriminatory 

housing practice may have occurred at all.’” Id. at 836 

(quoting Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 

1975)). “For instance, if a landlord rents to a white tenant 

but then threatens to evict him upon learning that he is 

married to a black woman, the landlord has plainly violated 

§ 3617, whether he actually evicts the tenant or not.” Bloch, 

587 F.3d at 782.

Given this framework, the jury reasonably concluded

that the Board “threatened, intimidated, or interfered with”

the Morrises’ right to purchase and enjoy their home free 

from religious discrimination. The JMOL standard requires 

that the jury’s verdict be upheld if there is “evidence 

adequate to support the jury’s conclusion, even if it is also 

possible to draw a contrary conclusion.” Johnson v. 

Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th 

Cir. 2001). For the § 3617 interference claim, there is.

First, there is evidence that the Board “threatened, 

intimidated, or interfered” with the Morrises during the

purchase and enjoyment of their home. Unlawful 

interference occurs when a defendant “meddl[es] in or 

hamper[s] an activity or process” protected by the FHA. 

Walker v. City of Lakewood, 272 F.3d 1114, 1129 (9th Cir. 

2001) (citation omitted). In this case, the Board notified the 

Morrises, in their January 2015 letter, that their planned 

event was “prohibit[ed]” by the CC&Rs and would “fill [the] 

neighborhood with . . . hundreds of people and possible 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 23

undesirables.” The letter also warned that the Board did “not 

wish to become entwined in any expensive litigation.”4 

The following month, before the Morrises closed on their 

home, the Board of the HOA organized an “emergency 

meeting” of West Hayden Estates residents to discuss the 

potential impact of the Morrises’ Christmas program on the 

community. A letter from the Board to all West Hayden 

Estates residents described the program as an “extravagant 

event generating excessive traffic” and noted that the 

Morrises had “not obtain[ed] the necessary permits” for their 

2014 program. The letter went on to state that the Board 

believed the Christmas program would violate the CC&Rs 

and that the Board was “fearful that allowing such a breach 

of the [CC&Rs] in this matter w[ould] ultimately lead to 

further breaches in other areas within the community.” 

Finally, the letter stated that Jeremy Morris had “threatened 

legal action if the board d[id] not permit his request” to host 

the event and warned that the matter “may result in a legal 

situation that must be addressed and handled immediately.” 

The agenda for the meeting framed the topic for discussion 

as “possible litigation that may involve additional legal costs 

and increased assessments,” and at the end of the meeting, 

the HOA members present voted unanimously not to allow 

the Christmas event, although the event was not in fact 

banned. 

Both the January 2015 letter and the February 2015 

meeting could have been construed by the jury as 

“threatening, intimidating, or interfering” with the Morrises’ 

purchase and enjoyment of their home. The HOA Board’s 

4 We discuss alleged threats against and harassment of the Morrises by 

other residents of West Hayden Estates later in this opinion. See infra 

Part II.a.ii.
24 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

handling of the February meeting, in particular, resulted in 

neighborhood opposition to the Morrises, not least by 

indicating that if the Morrises were to move into the 

neighborhood, litigation would likely ensue. Likewise, the 

January 2015 letter could have been understood as 

threatening the Morrises with litigation should they move 

into the neighborhood and hold their Christmas program as 

planned. Finally, the October 2015 letter warning the 

Morrises that the Board had been authorized to take legal 

action should the Morrises proceed with their event could 

have been read as a threat or attempt at intimidation. A 

reasonable jury could therefore find that the Board 

“intimidate[d], threaten[ed], or interfere[d] with” the 

Morrises as they sought to purchase and enjoy the use of

their home. 42 U.S.C. § 3617.

Section 3617, however, while broad, is not allencompassing; neighborly squabbles do not, without more, 

create an FHA cause of action. To make out a claim under 

§ 3617, a plaintiff must show that the defendant’s actions 

affected the “exercise or enjoyment of . . . any right granted 

or protected” by provisions of the Act, 42 U.S.C. § 3617, 

including the right to be free from discrimination based on 

religion. Heeding both the Supreme Court’s admonition to 

give the FHA a “generous construction,” City of Edmonds, 

514 U.S. at 731, and the obligation under the JMOL standard 

to respect a jury’s verdict unless no reasonable jury could 

have found a statutory violation, we conclude that the JMOL

was improper as to this § 3617 claim. 

At its core, the FHA guarantees tenants and homeowners

a right to take and enjoy possession of a home free from 

discrimination based on a protected characteristic, including 

religion. See Bloch, 587 F.3d at 782–83; 24 C.F.R. 

§ 100.400. Given the JMOL standard, see Krechman, 723 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 25

F.3d at 1109, we must review the record for evidence that 

the Board’s threatening, intimidating, and interfering 

conduct, although it did not preclude the Morrises from 

purchasing their home or putting on their Christmas event, 

was driven at least in part by a motive to disfavor the 

Morrises’ religion. On this question, the Morrises’ evidence 

is sufficient to support a rational jury’s verdict.

The Morrises point to three pieces of evidence to support 

their assertion that the Board was driven by anti-religious 

animus: two portions of trial testimony and the January 2015 

letter. 

First, the Morrises point to “[t]he Association’s board 

flatly stat[ing] it did not want the Morrises’ ‘press[ing]’ their

beliefs ‘on the community.’” The quoted testimony is that 

of Larry Breazeal, the former owner of the Morrises’ home. 

The passage reads: “[Jennifer Scott] was talking about the 

[January 2015] letter that they sent out and . . . she was a 

little bit distraught about the letter, because the final sentence 

in the letter stated something about not wanting their 

Christmas program and the beliefs associated with it pressed 

on the community because there [were] nonbelievers in the 

community.” In context, the testimony about Scott’s 

statement concerning the Morrises “press[ing]” their beliefs 

“on the community” is a report of her paraphrase, as recalled

by Breazeal, of the January 2015 letter. It is therefore largely 

cumulative of that letter, which we shall discuss. 

Second, the Morrises point to a recorded statement by 

Ron Taylor, Jennifer Scott’s successor as president of the 

HOA Board, that “someone in this association doesn’t like 

Christmas.” In the recording, which captures a wide-ranging 

and at times combative discussion, Jeremy Morris can be 

heard asking “Why did [the Board] come after me?” to 
26 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

which Taylor responds: “It’s because somebody in this 

association doesn’t like Christmas.” 

Aside from the trial testimony and the recording, the 

Morrises focus on the January 2015 letter as evidence of 

discriminatory intent on the part of the HOA Board. Recall 

that the version of the letter sent to the Morrises in response 

to their pre-purchase inquiry about hosting the Christmas 

program at West Hayden Estates included the following two 

paragraphs:

And finally, I am somewhat hesitant in 

bringing up the fact that some of our residents 

are non-Christians or of another faith and I 

don’t even want to think of the problems that 

could bring up.

It is not the intention of the Board to 

discourage you from becoming part of our 

great neighborhood but we do not wish to 

become entwined in any expensive litigation 

to enforce long standing rules and regulations 

and fill our neighborhood with the hundreds

of people and possible undesirables. 

Again, plaintiffs in an FHA action need not “prove that 

the discriminatory purpose was the sole purpose of the 

challenged action”; they need only demonstrate that such a 

purpose “was a ‘motivating factor.’” Ave. 6E Invs., 818 F.3d 

at 504 (emphasis added) (quoting Arce, 793 F.3d at 977). 

Our present inquiry, then, is whether the January 2015 letter, 

viewed alongside other evidence in the record, could serve 

as evidence that the Board was actually motivated, at least in 

part, by an anti-religious discriminatory purpose. Pac. 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 27

Shores Props., 730 F.3d at 1158; Ave. 6E Invs., 818 F.3d at 

504.5 

Principally, then, the Morrises’ discrimination claim

relies on Ron Taylor’s statement that “somebody in th[e] 

association doesn’t like Christmas,” and the sentence in the 

final 2015 letter: “And finally, I am somewhat hesitant in 

bring[ing] up the fact that some of our residents are nonChristians or of another faith and I don’t even want to think 

of the problems that could bring up.” 

Viewing this evidence in the light most favorable to the 

Morrises, Corbello, 974 F.3d at 973, there is sufficient 

“evidence adequate to support the jury’s conclusion” that the 

Board violated § 3617, Johnson, 251 F.3d at 1227. To be 

sure, there is also sufficient evidence to have permitted the 

jury to draw the conclusion—endorsed by the district court’s 

JMOL decision and Judge Tashima’s dissenting opinion—

5 The draft letter, revised before the January 2015 letter was sent, read:

And finally, I am somewhat hesitant in bring[ing] up 

the fact that some of our residents are avowed atheists 

and I don’t even want to think of the problems that 

could bring up.

It is not the intention of the Board to discourage you 

from becoming part of our great neighborhood but we 

do not wish to become entwined in any expensive 

litigation to enforce long standing rules and 

regulations and fill our neighborhood with the riff-raff 

you seemed to attract over by WalMart.. Grouse 

Meadows indeed!!! We don’t allow “those kind” in 

our neighborhood.

Our focus is on the letter actually sent. The draft letter is pertinent only 

for whatever light it throws on what the jury could have concluded 

regarding the motives behind the letter sent.
28 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that the Board’s conduct was motivated only by concern 

about potential disruption and a desire to maintain harmony 

in the West Hayden Estates neighborhood. Tashima Dissent 

at 56–60, citing Vill. of Arlington Heights v. Metro. Hous. 

Dev. Corp., 429 U.S. 252 (1977) and Ave 6E Invs., 818 F.3d 

493). But again, in “assessing the propriety” of a grant of 

JMOL, we are constrained to “protect[] the province of the 

jury” by refraining from “weigh[ing] evidence,” which 

necessarily precludes us from determining which of the 

plausible conclusions to which a jury could arrive is best 

supported by the evidence. Harper v. City of Los Angeles, 

533 F.3d 1010, 1021 (9th Cir. 2008). We may look only to 

whether there was “evidence adequate to support the jury’s” 

actual conclusion. Johnson, 251 F.3d at 1227.6

There was such evidence. The Board’s letter to the 

Morrises could reasonably be read to indicate that the 

program’s association with the Christian faith was one

6 Avenue 6E and Arlington Heights do not alter this standard of review. 

Judge Tashima’s partial dissent is correct, Tashima Dissent at 56–58,

that courts deciding whether a discriminatory purpose was a motivating 

factor must consider the broad context of a defendant’s actions, including 

“events leading up to the challenged decision . . . the defendant’s 

departure from normal procedures or substantive conclusions, and the 

historical background of the decision and whether it creates a disparate 

impact.” Ave. 6E Invs., 818 F.3d at 504. Arlington Heights similarly 

states that “[d]etermining whether invidious discriminatory purpose was 

a motivating factor demands a sensitive inquiry into such circumstantial 

and direct evidence of intent as may be available.” 429 U.S. at 266.

Avenue 6E and Arlington Heights thus make clear the broad scope of

evidence relevant to a discriminatory purpose inquiry that may be 

presented to the jury. They do not alter the constraints on a court 

reviewing the propriety of a grant of JMOL based on that evidence. We 

are not permitted to determine the most reasonable conclusion to which 

a trier of fact could arrive, or, otherwise stated, to weigh evidence—that 

is the province of the jury in the first instance. Harper, 533 F.3d at 1021.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 29

consideration in the Board’s opposition to the show. In 

addition, in his recorded argument with Jeremy Morris, Ron 

Taylor stated that “somebody in this association . . . not 

lik[ing] Christmas” was one reason why the Board continued 

to oppose the Morrises’ Christmas program. These 

statements sufficiently support an inference by the jury that 

an anti-Christian purpose was at least a motivating factor in 

the Board’s conduct regarding the proposed Christmas 

event, independent of any other concerns also underlying 

that conduct. And given this permissible inference, there 

was sufficient evidence for the jury rationally to conclude 

that the Board interfered with the Morrises’ exercise of their 

right to purchase and enjoy their home at least in part

because of their religious expression, and therefore violated 

§ 3617 of the FHA. 

As we are constrained to “protect[] the province of the 

jury” by looking only to whether there is “evidence adequate 

to support the jury’s conclusion,” even where, as here, other 

conclusions would have enjoyed sufficient support in the 

record, Harper, 533 F.3d at 1021, we reverse the grant of 

JMOL as to the Morrises’ § 3617 claim.

ii. Harassment by West Hayden Estates 

Residents

The Morrises contend additionally that the HOA’s

toleration of threats and harassment targeted at the Morrises 

by other residents of West Hayden Estates violated 

§ 3604(b) of the FHA. We agree that in appropriate 

circumstances, § 3604(b) does forbid pervasive harassment 

linked to a protected category, here, religion. But the record 

does not support the conclusion that the HOA may be held 

responsible for the harassment of the Morrises that occurred.
30 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In considering this harassment claim, we first clarify the 

scope of the FHA’s anti-discrimination provisions. In CCCI

v. City of Modesto, we held that the FHA’s protections 

extend to a tenant or homeowner’s “continuing rights, such 

as the privilege of quiet enjoyment of the dwelling.” 

583 F.3d at 713. Liability under the FHA’s antidiscrimination provisions can therefore attach to conduct 

that occurs both before and after the sale or rental of a home, 

including “a whole host of situations . . . not amounting to 

constructive eviction.” Id. at 714; see Harris, 183 F.3d at

1054. 

Other federal courts of appeals have recognized that the 

FHA’s prohibition on post-acquisition discrimination 

encompasses a prohibition against “discriminatory 

harassment that unreasonably interferes with the use and 

enjoyment of a home—by another name, a hostile housing 

environment.” Wetzel v. Glen St. Andrew Living Cmty., 

LLC, 901 F.3d 856, 861 (7th Cir. 2018)). See also

Neudecker v. Boisclair Corp., 351 F.3d 361, 364–65 (8th 

Cir. 2003); Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 

1993). We now join these circuits and hold that § 3604(b) 

of the FHA prohibits the creation of a hostile housing 

environment based on “race, color, religion, sex, familial

status, or national origin.” See Wetzel, 901 F.3d at 861.

The anti-discrimination provisions of Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, 

have long been understood to provide a cause of action for 

claims arising out of a hostile work environment. See, e.g., 

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54

(1998); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th 

Cir. 1995) (as amended). Although the hostile environment 

theory of discrimination was first discussed in the context of 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 31

sexual harassment, see Meritor Sav. Bank, 477 U.S. at 73, it 

has since been applied to claims of discrimination on the 

basis of protected characteristics other than sex, see Dawson 

v. Entek Int’l, 630 F.3d 928, 939 (9th Cir. 2011) (sexual 

orientation); Vasquez v. County of Los Angeles, 349 F.3d 

634, 642 (9th Cir. 2003) (as amended) (race); see also, e.g., 

Huri v. Off. of the Chief Judge of the Circuit Ct. of Cook 

Cnty., 804 F.3d 826, 833–34 (7th Cir. 2015) (religion and 

national origin). 

“We apply Title VII discrimination analysis in 

examining Fair Housing Act . . . discrimination claims.” 

Gamble, 104 F.3d at 304. Because we recognize that the 

anti-discrimination provision of Title VII—under which it is 

unlawful to “discriminate against any individual with respect 

to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, 

religion, sex, or national origin,” 42 U.S.C. § 2000e2(a)(1)—prohibits the creation of a hostile work 

environment, it follows that the parallel language of the 

FHA, which prohibits “discriminat[ion] against any person 

in the terms, conditions, or privileges of sale or rental of a 

dwelling . . . because of race, color, religion, sex, familial 

status, or national origin,” 42 U.S.C. §3604(b), likewise 

prohibits discriminatory harassment that creates a hostile 

environment. See Wetzel, 901 F.3d at 863. Adapting the 

Title VII framework to the Fair Housing context, a plaintiff 

may establish that he suffered a hostile housing environment 

by showing that he was subjected to (1) severe or pervasive 

harassment (2) that was based on a protected characteristic, 

here religion, and (3) that the defendant is responsible for the 

resulting hostile housing environment. See Christian v. 

Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020); see also 

Wetzel, 901 F.3d at 861–62. In this case, the third prong—
32 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

the question of derivative liability for harassment—

forecloses the Morrises’ harassment claim. 

According to the Morrises, the HOA bears some 

responsibility for harassing behavior perpetrated by Larry 

Bird and other West Hayden Estates residents.

7

In support 

of this argument, the Morrises rely on an out-of-circuit case, 

Wetzel, which held that a landlord who has “actual notice of 

tenant-on-tenant harassment based on a protected status,” is 

liable under the FHA where the landlord “chooses not to take 

any reasonable steps within its control to stop that 

harassment.” Wetzel, 901 F.3d at 859. Wetzel involved St. 

Andrews, a “residential community for older adults.” Id.

The Wetzel opinion made clear that St. Andrews’s potential 

liability for tenant-on-tenant harassment—harassment that 

went “far beyond mere rudeness, all the way to direct 

physical violence,” id. at 866—hinged on whether the 

7 The harassment evidence was excluded by the district court on the 

ground that the HOA was not liable for actions taken by residents who 

were not “(1) members of the board, (2) agents of the HOA, [or] (3) 

employees of the HOA;” the jury was directed to disregard the evidence. 

See infra, p. 43, n. 12. The evidence included testimony concerning a 

number of incidents involving the Morrises’ neighbors, some of it 

contested. For example, Kristy Morris testified at trial that, during the 

Morrises’ 2015 Christmas show, Bird accosted Jeremy Morris in the 

Morrises’ driveway and threatened that he and other West Hayden 

Estates residents had “enough guns and ammunition that will take care 

of you.” One of the Morrises’ volunteers testified that, during the 2016 

program, a West Hayden Estates neighbor screamed obscenities at her 

and told her she “was not welcome in the neighborhood.” And a visitor 

to the 2016 program testified that one of the Morrises’ neighbors kicked 

the side of her car and demanded to know “why are you in my 

neighborhood?” 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 33

landlord “had, but failed to deploy, available remedial tools” 

against harassing residents. Id. at 865.8 

The power to address discriminatory conduct against a 

resident by a third party “depends upon the extent of the 

[defendant’s] control or any other legal responsibility the 

[defendant] may have with respect to the conduct of ” that 

third-party. 24 C.F.R. § 100.7(a)(iii). The Morrises were 

homeowners. The West Hayden Estates HOA—unlike the 

defendant in Wetzel—is not a landlord. Unlike a landlord, 

the HOA cannot threaten or carry out eviction or expulsion

of harassing residents, who are also homeowners. Cf. 

Wetzel, 901 F.3d at 865–66. 

The Board does have the power, via the CC&Rs, to 

enforce HOA rules against association members. That 

power includes the enforcement of the CC&Rs via the 

remedies outlined in the rules themselves. The Morrises 

argue that the HOA’s power to seek to enjoin breaches of the 

CC&Rs by filing a lawsuit demonstrates that the Board is 

liable for harassing conduct by West Hayden Estates 

residents. But to support the assertion that the HOA has the 

power to address neighbor-on-neighbor harassment, the 

Morrises point only to the fact that the HOA once “sent a 

letter to one homeowner whose dog had bitten a child 

8 The Morrises also cite a Second Circuit case, Francis v. Kings Park 

Manor, Inc., 944 F.3d 370 (2d Cir. 2019), vacated, 992 F.3d 67 (2d Cir. 

2021) (en banc). The opinion the Morrises rely upon was vacated by the 

en banc Second Circuit, which held that although some landlords may 

exercise control over co-tenants sufficient to confer FHA liability for 

tenant-on-tenant harassment, this degree of control cannot be presumed 

to exist in the landlord-tenant relationship under New York law. 

Francis, 992 F.3d at 77–80.
34 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

requiring that owner to fence their animal—and the owner 

complied.” 

This incident demonstrates the HOA’s power to enforce 

rules enumerated in the CC&Rs. Those rules specifically 

require that dogs “shall be contained when on” an owner’s 

lot and which reserve to the Board the power to “require 

removal of any pet which it finds disturbing other owners 

unreasonably.” The Morrises do not point to any CC&R 

provision violated by Bird’s or other neighbors’ behavior 

toward the Morrises, or toward volunteers at or visitors to 

the Morrises’ Christmas event, or any CC&R remedy that 

the Board could have deployed against them for what they 

did. 

Liability for third-party conduct under the FHA is factdependent. We do not hold that an HOA can never bear 

responsibility for discriminatory harassment inflicted by one 

member on another. In this case, however, the Morrises’ 

arguments are devoid of any demonstration that the 

“remedial tools” available to the Board extended to the 

power to intervene in disputes between neighbors. Wetzel, 

901 F.3d at 865. 

On the facts of this case, the HOA was not liable for the 

allegedly harassing conduct of West Hayden Estates 

residents. We therefore need not resolve whether the alleged 

harassment by Bird and others was “severe or pervasive” or 

whether it was based on a protected characteristic. Umpqua 

Bank, 984 F.3d at 809.

iii. The January 2015 Letter

In addition to their § 3604(b) and § 3617 claims, the 

Morrises challenge the HOA Board’s January 2015 letter 

under § 3604(c) of the FHA. That section prohibits any 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 35

party engaged in the sale or rental of a dwelling from

“mak[ing], print[ing], or publish[ing] . . . any notice, 

statement, or advertisement, with respect to the sale or rental 

of a dwelling that indicates any preference, limitation, or 

discrimination based on” a protected characteristic, 

including religion. 42 U.S.C. § 3604(c); 24 C.F.R. 

100.75(b). 

Once again, we first clarify the appropriate standard for 

determining whether a statement violates § 3604(c) of the 

Fair Housing Act. We now follow every other federal court 

of appeals to consider the question and adopt an objective 

“ordinary reader” standard. See Jancik v. Dep’t of Hous. & 

Urb. Dev., 44 F.3d 553, 556 (7th Cir. 1995) (collecting cases

from the Second, Fourth, and Sixth Circuits); see also Spann 

v. Colonial Vill., Inc., 899 F.2d 24, 29 (D.C. Cir. 1990) 

(applying a “reasonable reader” standard). Under this 

standard, a plaintiff need not present evidence that the 

defendant harbored a discriminatory purpose. Rather, a 

statement violates § 3604(c) if “an ordinary listener would 

believe that [it] suggests a preference, limitation, or 

discrimination based on a protected status.” Corey v. Sec’y, 

U.S. Dep’t of Hous. & Urb. Dev. ex rel. Walker, 719 F.3d 

322, 326 (4th Cir. 2013) (citing White v. U.S. Dep’t of Hous. 

& Urb. Dev., 475 F.3d 898, 905–906 (7th Cir. 2007)). Put 

simply, the “touchstone” of a § 3604(c) claim “is . . . the 

message.” Ragin v. N.Y. Times Co. (Ragin I ), 923 F.2d 995, 

1000 (2d Cir. 1991). 

An objective, ordinary-reader-focused standard for 

communications regarding the sale or rental of a dwelling

best assures that prospective buyers or renters will not be 

discouraged by discriminatory advertisements or other 

communications from seeking homes offered for sale or 

rental. Under this objective standard, evidence of a speaker 
36 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

or creator’s intent may be relevant insofar as it illuminates 

the likely understanding of the message by viewers. But the 

scope of § 3604(c) liability is defined by the statement’s 

impact on the reader, viewer, or listener, not by the 

subjective motivations of the speaker. See id. Nor is the 

speaker’s stated intent dispositive. Accepting a speaker’s 

disclaimer that he or she “means no offense” as proof of 

intent would allow the publisher of a discriminatory 

statement to escape liability no matter the statement’s impact 

on ordinary readers. See id.

Following the FHA’s “broad and inclusive ‘compass,’” 

City of Edmonds, 514 U.S. at 731 (quoting Trafficante v. 

Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)), statements 

need not “jump out at the reader with their offending 

message” to violate § 3604(c), Jancik, 44 F.3d at 556. Most 

discriminatory messages are far “more subtle than the 

hypothetical swastika or burning cross.” Ragin I, 923 F.2d 

at 999. For § 3604(c) to have force, its prohibition must 

extend beyond facially discriminatory messages to 

“expression[s] of a tacit preference not to provide housing to 

members of protected groups.” Soules v. U.S. Dep’t of Hous. 

& Urb. Dev., 967 F.2d 817, 824–25 (2d Cir. 1992). 

Discriminatory “comments or actions may appear innocent 

or only mildly offensive to one who is not a member of the 

targeted group, but in reality be intolerably abusive or 

threatening when understood from the perspective of a 

plaintiff who is a member of the targeted group.” McGinest, 

360 F.3d at 1116; see also Ragin I, 923 F.2d at 999–1000; 

Jancik, 44 F.3d at 556. 

At the same time, the ordinary reader “is neither the most 

suspicious nor the most insensitive of our citizenry,” Ragin 

I, 923 F.2d at 1002. Merely mentioning one of the protected 

characteristics identified in § 3604(c), without more, does 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 37

not necessarily convey a “preference, limitation, or 

discrimination” forbidden by the FHA, particularly if “there 

are situations in which it is legitimate” to do so. Soules, 967 

F.2d at 824. The notice or statement at issue must be read

“in light of all the circumstances” to determine whether an 

ordinary reader under those circumstances would understand 

the statement to indicate a forbidden preference or 

limitation. Id.

Soules, for instance, explained that a statement inquiring 

“about the number of individuals interested in occupying an 

apartment and their ages” did not indicate to the ordinary 

reader a forbidden preference or limitation based on familial 

status. Id.; see 42 U.S.C. §§ 3602 (defining familial status), 

3604(a). “Local zoning regulations” could “constitute a 

valid reason for asking whether and how many children a 

prospective tenant has,” and “[c]onditions in the 

neighborhood known to be either ideally suited to or 

inherently dangerous to occupancy by families with children 

might well permit an inquiry about the ages of the family 

members.” Soules, 967 F.2d at 824. In light of these 

considerations, Soules held, the questions asked would not 

convey to the ordinary reader the proscribed discriminatory 

preference or limitation based on familial status.

Turning to the facts of this case: First, the parties assume 

the HOA’s January 2015 letter is a statement subject to 

§ 3604(c). The HOA does not argue otherwise. And 

although a “stray remark . . . unrelated to the decisional 

process” is insufficient to establish a § 3604(c) violation, 

Harris, 183 F.3d at 1055 (internal quotation marks omitted), 

the Board’s mention of the Morrises’ faith was neither 

“stray” nor unrelated to the Board’s treatment of the 

Morrises. The statement was explicitly presented as a reason 

for opposing the Christmas program, in an official 
38 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

communication that went through at least one round of 

drafting and revision. 

In their Complaint, the Morrises asserted: “The HOA 

printed a statement in the form of a certified letter which 

indicated a preference for non-religious homeowners.” The 

jury instructions and verdict form followed this same format. 

If properly raised on appeal, a statutory theory different 

from the one underlying the jury instruction can be the basis 

for “reviewing a motion for judgment as a matter of law,” as 

then “we apply the law as it should be, rather than the law as 

it was read to the jury.” Spencer v. Peters, 857 F.3d 789 (9th 

Cir. 2017) (citation omitted). But the Morrises do not 

challenge “the sufficiency of the evidence on a legal basis 

different from that contained in the instructions.” Air-Sea 

Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 182 

(9th Cir. 1989). Instead, the Morrises’ argument before us 

is limited to whether the evidence is sufficient to support the 

jury’s actual finding.9

The jury determined, in its special verdict form, that the 

HOA’s January 2015 letter “expressed, in the mind of an 

ordinary reader, a preference that a non-religious individual 

purchase Mr. and Mrs. Morris’ home.” We agree with the 

district court that the HOA was entitled to JMOL on this 

claim. 

Construing the evidence in the light most favorable to the 

Morrises, there was “no legally sufficient evidentiary basis 

for a reasonable jury to find” that the January 2015 letter 

indicated a preference that a non-religious individual

purchase the Morrises’ home. Sanghvi v. City of Claremont, 

9 Whether the Morrises may have succeeded on appeal on a different 

theory of the meaning of § 3604(c) is therefore not at issue.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 39

328 F.3d 532, 536 (9th Cir. 2003) (quoting Fed. R. Civ. P. 

50(a)). The HOA’s January 2015 letter to the Morrises

expressed concern about the Morrises’ proposed Christmas 

program, in part because of “the fact that some of our 

residents are non-Christians or of another faith” and 

suggested that, for that reason, the Christmas program 

“could bring up” “problems” in the neighborhood. Our 

question is how an ordinary reader would have interpreted 

the letter “in light of all the circumstances.” Soules, 967 F.2d 

at 824. 

The majority of the panel has held with regard to the 

§ 3617 claim that the record evidence, particularly the 

January 2015 letter, was sufficient to allow the jury to infer 

that the Board’s disapproval and discouragement of the 

Morrises’ Christmas pageant was at least in part motivated 

by the program’s association with the Christian faith. See 

Part II.a.i.2, supra. At the same time, considering the 

Board’s January 2015 letter as a whole, a reasonable jury 

could not have concluded that the letter indicated “a 

preference that a non-religious individual purchase” the 

Morrises’ home. 

The Board’s letter was not concerned with the Morrises’

personal religiosity. Instead, the letter was concerned only

with discouraging the proposed holiday program, even if—

as a majority of the panel has concluded—the evidence 

supports the conclusion that the opposition to the event was 

in part because it was associated with the Christian faith. 

Viewing the letter as a whole, an ordinary reader would 

understand the Board to have indicated a preference, 

limitation, or discrimination based not on whether the 

prospective homeowners were themselves religious or nonreligious, Christian or atheist, but on whether the event they 

proposed to host once a year would disturb the neighbors, 
40 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

both by its size and raucousness and by offending nonChristians. Although a majority of the panel has concluded

that the latter motive offends § 3617, that determination does 

not indicate that the HOA cared at all about whether the 

Morrises or other residents were personally religious, 

including whether they practiced Christianity. 

Nor does the letter through its use of the word 

“undesirables,” see supra at 22–23, or otherwise, plausibly 

disparage Christians generally. Rather, the concern

expressed regarding “undesirables” was that “hundreds” of 

non-resident visitors driving through the neighborhood 

might include unruly individuals who would interfere with 

residents’ “quiet enjoyment” of their property. The event 

itself was largely secular—there’s nothing religious about 

Clifford the Big Red Dog or hot chocolate elves—so the 

attendees were as likely to come for the spectacle and 

libations as for religious observation. No ordinary reader of 

the January 15 letter would conclude that the “undesirables” 

referred to were religious—or Christian—individuals.

Moreover, contrary to showing a preference for a nonreligious purchaser as the jury concluded, the letter several 

times expressed appreciation and respect for religious 

exercise, the Morrises’ religion included. Although the letter 

expressed concern about the “magnitude” of Morrises’

“holiday festival,” it also emphasized that “[t]ypical holiday 

lighting has always been allowed” in West Hayden Estates. 

In light of these statements, the letter’s sentence about 

the impact of the Morrises’ program on residents who “are 

non-Christians or of another faith,” would not be read by an 

ordinary reader as a preference concerning prospective 

homebuyers’ personal religiosity. Nor could an ordinary 

reader, viewing the Board’s January 2015 letter as a whole, 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 41

come to the jury’s conclusion that the letter expressed “a 

preference that a non-religious individual purchase Mr. and 

Mrs. Morris’ home.” We therefore hold that the district 

court did not err by granting JMOL to the HOA on the 

Morrises’ § 3604(c) claim.10

b. New Trial

Because we reverse in part the district court’s grant of 

JMOL, we next consider the court’s alternative grant of a 

new trial. 

A district judge may set aside a jury’s verdict if, 

“weigh[ing] the evidence as he saw it,” he concludes that the 

verdict, “even though supported by substantial evidence . . . 

is contrary to the clear weight of the evidence, or is based 

upon evidence which is false,” or that a new trial is necessary 

“to prevent, in the sound discretion of the trial judge, a 

miscarriage of justice.” Moist Cold Refrigerator Co. v. Lou 

Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957). On a Rule 

59 motion for a new trial, unlike on a JMOL motion, the trial 

10 In Judge Berzon’s view, this conclusion is consistent with this 

opinion’s holding that sufficient evidence in the record supported the 

jury’s verdict as to the Morrises’ § 3617 claim. To establish 

discrimination under § 3617, the Morrises needed only to show that 

discriminatory purpose was a “motivating factor” for the HOA’s specific 

actions with regard to the planned Christmas program. Ave. 6E Invs., 

818 F.3d at 504 (quoting Arce, 793 F.3d at 977). The jury’s special 

verdict on the § 3604(c) claim—that the HOA’s January 2015 letter 

“expressed, in the mind of an ordinary reader, a preference that a nonreligious individual purchase” a home in the subdivision—found a 

blanket non-religious preference as to the ownership of the home, 

without regard to the nature of any particular event. That the HOA Board 

had a religion-based motive for opposing the event does not demonstrate 

that the letter communicated to an ordinary reader an anti-religious 

preference regarding purchasers in general or the Morrises’ in particular, 

which is the preference the jury identified. 
42 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

court may weigh the evidence and assess the credibility of 

witnesses and is not required to view the evidence in the light 

most favorable to the verdict. Experience Hendrix L.L.C. v. 

Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 

2014) (as amended).

The grant of a new trial is reviewed for abuse of 

discretion, so we may reverse only if the district court’s 

conclusion is “illogical, implausible, or without support in 

the inferences that may be drawn from the record.” Kode v. 

Carlson, 596 F.3d 608, 612 (9th Cir. 2010). With these 

principles in mind, we affirm the district court’s decision to 

grant a new trial as to the Morrises’ § 3617 claim.

First, the district court believed that granting a new trial

was necessary “to prevent . . . a miscarriage of justice.” 

Moist Cold Refrigerator Co., 249 F.2d at 256. The district 

court concluded after trial that the HOA was unfairly 

prejudiced by the admission of a great deal of evidence—

ultimately stricken—of threats and harassment against the 

Morrises by other homeowners in West Hayden Estates.11 

Specifically, the jury heard testimony from seven witnesses, 

all of whom testified that they observed threatening or 

confrontational behavior from other residents of West 

Hayden Estates. Both Kristy and Jeremy Morris also 

testified about an asserted “death threat” they received from 

one neighbor, Larry Bird. That asserted death threat was 

11 The district court did not specifically identify these evidentiary issues 

in the portion of the order analyzing whether to grant a new trial. But

the district court spent several pages explaining why the HOA was 

unfairly prejudiced by the testimony regarding threats to the Morrises, 

and earlier in the order stated that a “new trial may also be granted if the 

Court concludes that a party was prejudiced by erroneous evidentiary 

decisions.” See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th 

Cir. 1999). 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 43

described—but not itself captured—in a recording of a 

conversation between Jeremy Morris and Ron Taylor, in 

which Jeremy Morris characterized Bird as “threatening to 

murder my family.” 

The district court eventually determined that this 

evidence should be stricken and instructed the jury to 

disregard it.

12 The jury, however, heard a lot of such 

testimony from several witnesses. The jury was also shown 

exhibits regarding alleged threats by non-Board-members 

against the Morrises and visitors to their Christmas program.

For that reason, the district court concluded, it was

“exceedingly unlikely that the jury was actually able to set 

aside” all of that evidence. The court also determined that 

the prejudice suffered by the HOA “was compounded by the 

fact that Plaintiffs’ characterization of Mr. Bird’s statements 

as a ‘death threat’ is an embellishment.” 13 

Although, as the district court acknowledged, a court 

must ordinarily presume that the jury will follow the court’s 

instructions, see Weeks v. Angelone, 528 U.S. 225, 234 

(2000), the district court here did not abuse its discretion by 

determining that the admission of the disturbing harassment

evidence might have unfairly prejudiced the jury against the

12 As discussed, supra at Part II.a.ii, we agree with the district court’s 

conclusion that the West Hayden Estates HOA is not liable for alleged 

harassment by the Morisses’ neighbors. Because the HOA was not liable 

for this harassment, it was not an abuse of discretion for the district court 

to regard evidence relating to the alleged harassment as improperly 

admitted and to be extraneous to the surviving claims. 

13 As mentioned earlier, see supra note 7, Kristy Morris testified that 

Larry Bird told Jeremy Morris “we have enough guns and ammunition 

that will take care of you.” A partial video of the incident does not 

capture this statement; it contains only the Morrises’ assertion that Larry 

Bird said he would “take care of” Jeremy Morris. 
44 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

HOA. A critical component of the Morrises’ § 3617 claim 

was that the HOA had a discriminatory motive in opposing 

the Christmas program, whereas the HOA argued at trial that 

its actions were motivated by a desire to avoid the disruption 

to the neighborhood that would occur with an event of the 

Christmas program’s scale. It was not illogical for the 

district court to conclude that the many witnesses and 

exhibits suggesting that individual West Hayden Estates 

residents harassed and harbored animus toward the Morrises 

might have colored the jury’s assessment of the HOA

Board’s motive.

The district court also based its grant of a new trial on its 

determination that the verdict was against the weight of the 

evidence because the Morrises’ principal witness—Jeremy 

Morris—was not credible and the HOA’s witnesses, 

including Jennifer Scott, were “convincing and credible.” 

The district court determined that Jeremy Morris’s testimony 

was inconsistent with video, photographic, and documentary

evidence and that his account of the HOA Board as the 

aggressor in the conflict over the Christmas program was 

inconsistent with record evidence that he was “aggressively 

confrontational” and “routinely threatened them with 

litigation.” By contrast, the district court found the 

testimony of the HOA’s witnesses, including Jennifer Scott, 

president of the Board at the time the January 2015 letter was 

drafted, credible and consistent. 

After reviewing the record carefully, we cannot say that 

the district court’s determination was “illogical, implausible, 

or without support in the inferences that may be drawn from 

the record.” Kode, 596 F.3d at 612. As Judge Tashima’s 

partial dissent explains, the Morrises’ discrimination claim 

was neither robust nor unassailable. See Tashima Dissent at

52–55. Contrasting conclusions could be drawn from the 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 45

few pieces of evidence in the record that support the jury’s 

verdict on the § 3617 claim. Moreover, as the district judge 

noted, Jeremy Morris’s testimony was inconsistent with 

documentary evidence in the trial record. In particular, 

Morris often downplayed the scale of his Christmas program 

in his testimony. He testified, for instance, that he left his 

roughly 200,000 Christmas lights on past 8:00 PM only one 

year, on Christmas Eve and Christmas Day, but as the 

HOA’s counsel pointed out on cross-examination, Morris 

advertised on his Facebook page that he would leave his 

lights on until 10:00 PM from December 23 to Christmas 

Day in 2016.14 The record also contains multiple recordings 

of Jeremy Morris initiating altercations with his neighbors 

and thus supports the district court’s determination that 

Morris was “aggressively confrontational,” a conclusion that 

could cast doubt on his credibility. 

In contrast to Jeremy Morris’s testimony, the district 

court found Jennifer Scott’s testimony consistent and 

credible. The thrust of Scott’s testimony was that the HOA 

Board was not motivated by opposition to Morris’s religion 

but rather was “really concerned about some of the CC&R 

violations.” She and another Board member, Pat Keilig, also 

testified that the Board was “mostly” concerned about “the 

traffic” and attendant safety risks “that the light show would 

cause,” consistent with the Board’s January 2015 letter. And 

14 The trial record shows other inconsistencies as well. For example, 

Morris testified that he did not want traffic at the event, but in his 2016 

Facebook post, he encouraged visitors to “come directly to see” his 

Christmas lights in their cars. Both Jeremy and Kristy Morris initially 

testified that Jeremy Morris never used a bullhorn at the West Hayden 

Christmas events, but Jeremy Morris’s testimony later admitted bullhorn 

use after further questioning and the presentation of contrary video 

evidence.
46 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

with respect to the one sentence in the Board’s January 2015 

letter that referenced religion, both Scott and another Board 

member, Ron Taylor, testified the full Board never approved 

that language and that they would not have approved sending 

the letter with that language in it.15

So, on the one hand, Jeremy Morris’s testimony depicted 

the Christmas program as less disruptive than the 

documentary evidence demonstrated and painted the HOA 

as arbitrarily enforcing the CC&Rs against him. The district 

court had a basis in the record to conclude that that testimony 

was not credible. On the other hand, the testimony of 

Jennifer Scott and the HOA’s other witnesses, the district 

court believed, was credible. That testimony supported the 

conclusion that the Board did not have a discriminatory 

motive for opposing the Christmas program. A

determination of discriminatory intent must turn, at least in 

part, on the factfinder’s assessment of the relevant party’s 

subjective motivations, and it is the province of the trial 

court to make credibility determinations in the context of a 

new trial motion. See Kirola v. City & County of San 

Francisco, 860 F.3d 1164, 1182 (9th Cir. 2017); Kode, 596 

F.3d at 612. The district court therefore did not abuse its 

discretion in determining that the jury’s verdict for the 

Morrises was “contrary to the clear weight of the evidence, 

15 Keilig testified that she sent the letter to the Morrises in a rush to give 

them an answer about the Christmas event’s status under the CC&Rs and 

that, when she mailed the letter, she “didn’t realize it wasn’t really signed 

off” by “the board.” 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 47

or . . . based upon evidence which is false.” Moist Cold 

Refrigerator Co., 249 F.2d at 256. 16

The district court’s grant of a new trial was within its 

discretion.

17

16 Our dissenting colleague as to this issue, Judge Collins, disagrees, 

stating that “a simplistic wholesale rejection of all of one side’s 

witnesses and evidence based on little more than a wholesale rejection 

of one of that side’s witnesses . . . is a clear abuse of discretion.” Collins 

Dissent at 99. The district court’s decision concerning the additional 

witnesses is not determinative here, given that there was no abuse of 

discretion concerning its credibility determination of the principal 

witnesses, Jeremy Morris and Jennifer Scott, and our holding that the 

HOA is not liable for the actions of the neighbors. 

We note as well that Judge Collins highlights testimony that tends 

to show the minimal impact of the Morrises’ actual 2015 and 2016 

holiday events, Collins Dissent at 76–79, but there is testimony 

supporting the opposite conclusion. The actual impact of the Christmas 

events is not particularly relevant to the Morrises’ various FHA claims, 

as those claims concern the HOA Board’s actions before the events were 

held at West Hayden Estates. But the differences in the accounts of what 

actually happened during the 2015 and 2016 events could be pertinent to 

the credibility of the witnesses. So, to place Judge Collins’ account in 

context: Witnesses did explain that there were “lots of lights;” and that 

they were “bright;”, and one person testified that she was drawn to the 

Morrises display because “when you go around town looking for 

Christmas lights, you go for the ones that have the most.” An attendee, 

familiar with the neighborhood, testified that she noticed an increase in 

cars parked on the street and that, with the buses bringing people in and 

out of the neighborhood there was “a lot of coming and going” and “more 

[traffic] than what would be usual.” That attendee, also a volunteer at 

the event, testified that she saw “hundreds” of people each night “at any 

single time.” Several of the witnesses mentioned the presence of Dolly 

the camel in the Morrises’ front yard, and, one year, a miniature donkey. 

The police were called on several occasions.

17 Because we affirm the grant of a new trial, we do not reach the question

whether, in the alternative, remittitur was appropriate.
48 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

c. Injunction

Finally, we address the district court’s grant of injunctive 

relief to the HOA.

After granting the HOA’s JMOL motion on all of the 

Morrises’ claims, the district court issued an injunction 

preventing the Morrises “from hosting a Christmas program 

in the West Hayden Estates that violates the CC&Rs in the 

manner described in” the district court’s post-trial order. 

Specifically, the district court concluded that the Morrises’ 

Christmas programs violated, among other provisions, the 

sections of the CC&Rs prohibiting “decorat[ing] the exterior 

of any building . . . visible from a neighboring lot,” using a 

dwelling “for any purpose other than a single-family 

residential purpose,” and using a dwelling in a way “which 

would in any way interfere with the quiet enjoyment of” 

other residents. 

The district court’s decision to enjoin the Morrises’ 

Christmas program was premised on its conclusions that the 

HOA was entitled to JMOL on all of the Morrises’ claims 

and that no reasonable jury could conclude that the HOA’s 

attempts to stop the Morrises’ Christmas program were 

motivated in part by religious animus. As explained above, 

we agree with the Seventh Circuit’s decision in Bloch that 

discriminatory enforcement of HOA rules, even facially 

neutral rules, can violate the FHA. Bloch, 587 F.3d at 783–

86. Although the HOA never actually sought judicial 

enforcement of the CC&Rs against the Morrises in this case, 

the HOA’s counterclaim against the Morrises would seek to 

do exactly that. 

Because a majority of the panel has determined that the 

HOA is entitled to a new trial on the Morrises’ § 3617 claim, 

during which a jury will have a new opportunity to determine 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 49

whether the HOA’s conduct toward the Morrises was 

motivated at least in part by an intent to discriminate against 

them based on religion, we vacate the district court’s grant 

of an injunction to the HOA. Whether the HOA may enforce 

the CC&Rs against the Morrises consistent with the FHA 

will depend on whether the jury after retrial concludes that 

the HOA was motivated in part by a discriminatory purpose 

in its interactions with the Morrises. If the jury so concludes, 

and if that decision is supported by sufficient evidence, then 

simultaneously permitting an injunction against the Morrises 

could have the effect of sanctioning discriminatory reliance 

on the CC&Rs. The injunction, therefore, is vacated.

III. Conclusion

A majority of the panel holds that:

The district court properly granted JMOL to the West 

Hayden Estates HOA as to the Morrises’ claims of 

intentional discrimination under §§ 3604(b) and 3604(c) of 

the FHA. But a reasonable jury could find that the Board 

interfered with the Morrises’ right to purchase and enjoy 

their home free from discrimination, so the grant of JMOL 

as to the § 3617 claim is reversed. The district judge did not 

abuse his discretion in holding that the jury’s verdict was 

against the clear weight of evidence; we therefore affirm the 

grant of a new trial as to the Morrises’ § 3617 claim and 

remand. Finally, we vacate the grant of an injunction against 

future productions of the Christmas program, which the 

district court may reconsider following retrial of the 

Morrises’ remaining FHA claim.

In so holding, we are mindful of the FHA’s “‘broad and 

inclusive’ compass” and “the Act’s stated policy ‘to provide, 

within constitutional limitations, for fair housing throughout 

the United States.’” City of Edmonds, 514 U.S. at 731 (first 
50 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

quoting Trafficante, 409 U.S. at 209 and then quoting 42

U.S.C. § 3601). Accordingly, although the discrimination 

alleged by the Morrises may have been subtle, we cannot 

“trivialize” the FHA “by construing it to outlaw only the 

most provocative and offensive expressions” of bias. Ragin 

I, 923 F.2d at 999. 

AFFIRMED in part, REVERSED in part, and 

REMANDED.

TASHIMA, Circuit Judge, dissenting in part:

I believe that the district court properly granted the 

motion of the West Hayden Estates First Addition 

Homeowners Association (the HOA) for judgment as a 

matter of law (JMOL) on all the Morrises’ claims because 

the evidence permits only one reasonable conclusion: the 

HOA was concerned about the Morrises’ holiday events 

because of the size and scale of the events, not because of 

the Morrises’ religion. See Morris v. W. Hayden Ests. First 

Addition Homeowners Ass’n, 382 F. Supp. 3d 1093, 1105 

(D. Idaho 2019); see also Reed v. Lieurance, 863 F.3d 1196, 

1211 (9th Cir. 2017) (stating that “[j]udgment as a matter of 

law is appropriate when the evidence presented at trial 

permits only one reasonable conclusion” (quoting Torres v. 

City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008))). 

The HOA consistently expressed concern about the effect 

the events would have on the residential neighborhood: 

hundreds of people arriving every night for multiple nights, 

cars and buses clogging the streets, choirs singing and music 

playing outside the house through speakers, excessive lights, 

a camel, and other animals in the front yard. The primary 

evidence the Morrises proffered to support their claim was 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 51

the January 2015 letter sent by the board, which the district 

court aptly characterized as “the crux of Plaintiffs’ case.” 

Morris, 382 F. Supp. 3d at 1099. The Morrises relied, and 

continue to rely, on both the initial draft of the letter and the 

letter that ultimately was sent to the Morrises.1 As the 

district court reasoned, the letter indicated the HOA Board’s 

intention to be sensitive to religious differences, not a 

religious preference. Id. at 1100-01. The evidence 

unequivocally shows that the HOA did not oppose the 

Morrises’ Christmas programs because of religion but 

because of problems created by the crowds, noise, and traffic 

generated by the events. Thus, there is no evidence to 

support the jury’s findings that the HOA intentionally 

discriminated against the Morrises based on their religion 

during and after the purchase of their home in violation of 

42 U.S.C. § 3604(b), that the HOA’s letter expressed a 

preference that a non-religious person purchase the home in 

violation of § 3604(c), or that the HOA interfered with the 

Morrises’ purchase or enjoyment of their home in violation 

of § 3617. 

Because the evidence is so one-sided, the district court 

also properly granted the HOA’s motion for injunctive relief 

and did not abuse its discretion in alternatively finding that 

the HOA is entitled to a new trial and to remittitur. In all of 

its rulings, the district court carefully and thoroughly 

1 The majority claims that it relies on the draft of the letter “only for 

whatever light it throws on what the jury could have concluded regarding 

the motives behind the letter sent.” Maj. op. at 27 n.5. However, as the 

district court explained, the draft letter was prepared by Larry Strayer, a 

former board member, and was sent without board approval. The letter 

thus “has little if any relevance to the Board’s actual intent; at most, it 

reveals Mr. Strayer’s feelings about Plaintiffs’ Christmas program.” 

Morris, 382 F. Supp. 3d at 1100.
52 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

considered the evidence. The court’s rulings are fully 

supported by the record and the law. For these reasons, I 

respectfully dissent from Sections II(a)(i)(2) and II(c) of the 

majority opinion, reversing the grant of JMOL as to the 

§ 3617 claim and vacating the grant of an injunction.

The statute provides that “[i]t shall be unlawful to coerce, 

intimidate, threaten, or interfere with any person in the 

exercise or enjoyment of . . . any right granted or protected 

by section . . . 3604 . . . of this title.” 42 U.S.C. § 3617. The 

interference thus must be on account of a prohibited ground, 

such as religion. 42 U.S.C. § 3604. Even viewing the 

evidence in the light most favorable to the Morrises, 

Holzhauer v. Golden Gate Bridge Highway & Transp. Dist., 

899 F.3d 844, 847 (9th Cir. 2018), the evidence permits only 

one reasonable conclusion B the board was concerned with 

the disruption caused by holding an event of this size and 

scale in a residential neighborhood, not the Morrises’

religion.

The majority concludes, and I agree, that the January 

2015 letter could not be read as expressing “a preference that 

a non-religious individual purchase Mr. and Mrs. Morris’

home” in violation of § 3604(c). Maj. op. at 40–41. 

Nonetheless, the majority relies on the letter to conclude that 

there is sufficient evidence to support the jury=s finding that 

the Board interfered with the Morrises’ purchase of the home 

on the basis of religion in violation of § 3617. Maj. op. at 

28–29. I disagree that the evidence is sufficient to support 

this finding.

The majority first concludes that “there is evidence that 

the Board ‘threatened, intimidated, or interfered’ with the 

Morrises during the purchase and enjoyment of their home.” 

Maj. op. at 22. The majority relies on the Board=s January 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 53

2015 letter, which stated that the Morrises’ “planned event 

was ‘prohibit[ed]’ by the CC&Rs and would ‘fill [the] 

neighborhood with . . . hundreds of people and possible 

undesirables.’ The letter also warned that the Board did ‘not 

wish to become entwined in any expensive litigation.’” Maj. 

op. at 22–23. This evidence cited by the majority might

support the inference that the board interfered with the 

Morrises’ purchase of their home. However, the inquiry is 

not whether there was any interference, but whether there 

was interference “on account of” a protected ground. 42 

U.S.C. § 3617. None of the statements in the letter cited by 

the majority support the inference that the Board interfered 

with the Morrises’ purchase of their home because of their 

religion. Instead, it was clear that the Board was concerned 

with the scale of the event and the number of people who 

would be attracted to the neighborhood. The Board also was 

concerned that, if they allowed the Morrises to conduct the 

event, which violated the CC&Rs in numerous ways set forth 

in the letter, it might appear to non-Christians that the 

Morrises’ Christian event was being favored, resulting in 

“expensive litigation.” The majority also relies on the 

February 2015 “emergency meeting” called by the board. 

However, the evidence cited by the majority similarly 

showed the Board was not concerned with the Morrises’

religion. Instead, as the majority states, the Board was 

concerned that the program was “an ‘extravagant event 

generating excessive traffic,’” the Morrises “had ‘not 

obtain[ed] the necessary permits,’” the program would 

violate the CC&Rs, and that “allowing such a breach of the 

[rules] in this matter w[ould] ultimately lead to further 

breaches in other areas within the community.” Maj. op. at 

23. Nowhere in this February 2015 meeting is there any 
54 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

indication that the Board interfered with the Morrises on the 

basis of their religion.

Thus, neither the January 2015 letter nor the February 

2015 meeting supports a finding that the Board interfered 

with the Morrises on account of their religion. The 

majority=s conclusion that Athe January 2015 letter and the 

February 2015 meeting could have been construed by the 

jury as ‘threatening, intimidating, or interfering’ with the 

Morrises’ purchase and enjoyment of their home@ ignores 

the requirement that any interference be on account of a 

protected ground. Maj. op. at 23.

The January 2015 letter could not have been construed 

as interfering with the Morrises’ enjoyment of their home on 

account of their religion. The only reference to religion in 

the letter was the statement, “I am somewhat hesitant in 

bringing up the fact that some of our residents are 

non-Christians or of another faith and I don’t even want to 

think of the problems that could bring up.” The rest of the 

letter focused on the numerous concerns raised by the size 

and scope of the proposed event. For example, the draft 

letter, as well as the final version sent to the Morrises, stated 

that “a holiday festival of the magnitude you have described 

as well as what is demonstrated on You Tube is well beyond 

normal residential use,” in violation of Section 5.4.1 of the 

CC&Rs. The letter stated that section 5.4.2 prohibits the use 

of “exterior speakers, bells, whistles or sound devices,” or 

any noise that is offensive or interferes with the quiet 

enjoyment of any neighbor. It further stated that section 

5.4.15 required lighting to be “restrained in its design” and 

that “excessive brightness” should be avoided, advising the 

Morrises that, although “[t]ypical holiday lighting has 

always been allowed,” the Morrises’ design exceeded the 

bounds of section 5.4.15. The letter also stated that the 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 55

vehicular and pedestrian traffic generated by the events 

would inhibit the ability of emergency vehicles to respond to 

medical emergencies, noting that such emergencies occurred 

several times a year due to the high percentage of residents 

over the age of seventy. 

The letter thus indicated that the board had legitimate 

concerns about the event=s impact on the neighborhood. In 

fact, taken in context, the statement actually is an expression 

of the Board’s concern that the “Christmas program, if 

allowed to proceed, would leave non-Christian homeowners 

in the West Hayden Estates with the impression that an 

exception was being made to the CC&Rs [the HOA’s 

declaration establishing covenants, conditions, restrictions, 

and easements] in favor of Christians. Far from being 

intolerant, the January 2015 Letter’s religious reference was 

an attempt to respect religious pluralism.” Morris I, 382 F. 

Supp. 3d at 1100. As the district court explained, “the 

timeframe in which the January 2015 Letter was drafted and 

sent confirms that the Homeowners Association did not 

intend to discriminate against Plaintiffs.” Id. at 1101. The 

board did not send the letter until after Morris told Jennifer 

Scott “that he needed a quick answer regarding whether the 

Board would oppose his Christmas program on the basis that 

it violated the CC & Rs.” Id. Thus, “it is evident that rather 

than attempting to interfere with Plaintiffs’ purchase of the 

home, the Board was in fact acting in a solicitous manner by 

trying to get Plaintiffs the quick answer that Mr. Morris was 

asking for.” Id.

The majority then decides that the Morrises’ claim relies 

principally on a comment by Ron Taylor, Jennifer Scott’s 

successor as president of the board, that “someone in this 

association doesn’t like Christmas.” Maj. op. at 27. This 

random comment does not support a finding that the board 
56 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

violated § 3617. Instead, similar to Mr. Strayer’s initial draft 

of the January 2015 letter, this comment “has little if any 

relevance to the Board’s actual intent.” Morris I, 382 F. 

Supp. 3d at 1100. It merely is an expression of Mr. Taylor=s 

opinion. There is no evidence that this was the position of 

the board.

The majority concludes that Mr. Taylor’s speculative 

remark and the statement in the letter about some residents 

being of a different faith are sufficient evidence to support 

the jury=s conclusion that the board violated § 3617, citing 

the principle that “[a] plaintiff does not have to prove that 

the discriminatory purpose was the sole purpose of the 

challenged action, but only that it was a ‘motivating factor.’” 

Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th 

Cir. 2016) (quoting Arce v. Douglas, 793 F.3d 968, 977 (9th 

Cir. 2015)). Maj. op. at 26B27. I disagree. For the reasons 

set forth above, neither statement supports an inference that 

the Board interfered with the Morrises’ purchase of their 

home on account of religion.2 Moreover, the majority does 

not consider the rest of the language in Avenue 6E.

2 Again, Mr. Taylor’s speculative remark that someone in the HOA does 

not like Christmas is not an expression of the Board’s position. And the 

statement in the January 2015 letter cannot reasonably be construed as 

expressing intolerance for the Morrises’ religion. As the district court 

found, “the plain text” of the letter and “the circumstances in which it 

was sent also demonstrate that the Board did not intend to discriminate 

against Plaintiffs.” Morris, 382 F. Supp. 3d at 1100. The initial draft of 

the letter, which was written by a former, rather than current, board 

member, and not approved by the Board, does not shed any light on the 

Board’s motives, and the letter that was sent showed the Board’s concern 

not to be seen as favoring the Morrises. In fact, the majority’s reliance 

on the letter to support a finding that the Board interfered with the 

Morrises’ purchase of their home on account of religion is inconsistent 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 57

Avenue 6E addressed Equal Protection and Fair Housing 

Act disparate treatment claims against the City of Yuma 

based on the City’s “refusal to rezone land to permit higherdensity development.” Ave. 6E, 818 F.3d at 496. In 

reversing in part the district court’s dismissal under Rule 

12(b)(6) and grant of summary judgment, the court relied on 

Village of Arlington Heights v. Metropolitan Housing 

Development Corporation, 429 U.S. 252 (1977), to 

determine whether, “it is plausible that, in violation of the 

FHA and the Equal Protection Clause, an ‘invidious 

discriminatory purpose was a motivating factor’ behind the 

City=s decision to deny the zoning application.” Id. at 504 

(quoting Arlington Heights, 429 U.S. at 266). Although 

discriminatory intent need not be “‘the sole purpose of the 

challenged action,’” the evidence is not examined in a 

vacuum. Id. (quoting Arce, 793 F.3d at 977). Instead, “[t]he 

court analyzes whether a discriminatory purpose motivated 

the defendant by examining the events leading up to the 

challenged decision and the legislative history behind it, the 

defendant=s departure from normal procedures or substantive 

conclusions, and the historical background of the decision 

and whether it creates a disparate impact.” Id.

Avenue 6E and Arlington Heights do not teach us that, if 

there is one piece of evidence that might be construed as 

supporting the plaintiffs’ position, despite all the evidence 

pointing in the other direction, that is sufficient to establish 

that discriminatory intent was a motivating factor in the 

decision. To the contrary, we are to examine evidence such 

as “the events leading up to the challenged decision and the 

with the majority’s conclusion that the letter does not support a finding 

that the Board preferred that a non-religious person purchase the 

Morrises’ home.
58 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

legislative history behind it, the defendant’s departure from 

normal procedures or substantive conclusions, and the 

historical background of the decision” to determine 

“whether a discriminatory purpose motivated the 

defendant.” Id. “Determining whether invidious 

discriminatory purpose was a motivating factor demands a 

sensitive inquiry into such circumstantial and direct 

evidence of intent as may be available.” Arlington Heights, 

429 U.S. at 266.

Although the situation here does not involve evidence 

such as legislative history or departure from normal 

procedures, there is plenty of “circumstantial and direct 

evidence of intent,” id., that clearly establishes that a 

discriminatory purpose did not motivate the board.

In Mr. Morris’ initial conversation with Ms. Scott, who 

was then president of the HOA, he explained “the whole 

show and what he wanted,” and told her that he had already 

examined the CC&Rs and wanted to meet with the Board. 

After hearing about the program, Ms. Scott invited Mr. 

Morris to a board meeting to explain what he wanted, but he 

did not attend. When Ms. Scott described the Christmas 

program to the Board, “they started asking [her] questions 

about the lights, about the traffic.” The board members 

looked up the event on Facebook and became concerned 

about the lights, the number of attendees, the traffic, and 

possible violations of the CC&Rs. After this meeting, Ms. 

Scott called Mr. Morris and told him that the Board could 

not give him an answer because the members were 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 59

concerned and “wanted to look through the CC&Rs before 

they gave him an answer.”

3

Mr. Morris himself testified that when he and his realtor 

met with the Board on January 27, 2015, the concerns the 

Board raised were traffic and the number of people the event 

would bring to the neighborhood. Similarly, when the board 

called an HOA meeting in February 2015, the Board 

informed the membership that a “potential buyer” wanted 

approval to hold a five- to ten-day holiday event at his home 

that he stated would “produce in excess of 900 additional 

vehicles traveling through the neighborhood with up to 80 

volunteers directing traffic and such.” Mr. Morris further 

“indicated that he will be using a speaker/PA system from 6 

pm - 9 pm nightly.” The Board informed the membership 

that, the prior year, Mr. Morris “incorporated a camel and 

various other amenities to attract attention to his display,”

and that “he plan[ned] to create a much larger event@ when 

he moved to West Hayden Estates. The Board expressed the 

opinion that, “while we encourage holiday decorating and 

community participation, this type of traffic and event is in 

violation of the CCRs for West Hayden Estates.” The Board 

never displayed any concern about the Morrises’ religion. 

At the meeting, the concerns raised by other homeowners 

were about traffic, buses, and the number of people. There 

3 Ms. Scott further testified that she was a Christian, that her husband 

was a pastor, and that she told the Board at this meeting that she had in 

fact gone to the show in 2014, before the Morrises moved to West 

Hayden Estates. As the district court reasoned, the fact that “several 

Board members were practicing Christians,” and that Ms. Scott “is both 

a practicing Christian and married to a Christian minister,” “significantly 

decreases the probability that the Board intended to discriminate against 

[the Morrises] based on a faith shared by both [the Morrises] and several 

Board members.” Morris I, 382 F. Supp. 3d at 1103B04.
60 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

is nothing in the record from which a reasonable juror could 

conclude that the board’s opposition to the event was based 

on anything other than the effect on the neighborhood of the 

buses, crowds, traffic, animals, and noise.4 Finally, the 

timing of the letter indicates that it was sent in response to 

Mr. Morris’ request to know if the Board “would oppose his 

Christmas program on the basis that it violated the CC&Rs,”

and the letter itself shows that the Board was concerned with 

the numerous ways in which the program would violate the 

CC&Rs. Morris, 382 F. Supp. 3d at 1101.

The majority’s conclusion that an “anti-Christian 

purpose was at least a motivating factor in the Board’s 

conduct” can be supported only by taking these two 

statements B Mr. Taylor’s speculative remark and the 

statement in the letter that some of the residents are not 

Christians or of another faith B out of context and ignoring 

all the other evidence. Maj. op. at 29. This reasoning is not 

supported by Avenue 6E and Arlington Heights.

Because I believe the district court properly granted 

JMOL on all of the Morrises’ claims, I conclude that the 

district court did not abuse its discretion in granting the 

HOA’s request for a permanent injunction. See Edmo v. 

Corizon, Inc., 935 F.3d 757, 784 (9th Cir. 2019) (per curiam) 

(“We review for abuse of discretion the district court’s 

decision to grant a permanent injunction.”). I need not repeat 

the court’s careful findings, but, after reviewing the record, 

including Mr. Morris’ own testimony, photos, flyers, the 

Morrises’ Facebook posts, and videos of the event, it is clear 

that the programs violated the CC&Rs in numerous, 

4 This brief summary does not include all the other evidence of the 

numerous ways in which the Christmas program egregiously violated the 

CC&Rs. See Morris I, 382 F. Supp. 3d at 1111B13.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 61

substantial ways that were extremely disruptive to the 

neighborhood and unlike any of the examples to which the 

Morrises compared their events. The district court did not 

abuse its discretion in enjoining the Morrises from holding 

the programs in a manner violating the CC&Rs. I therefore 

dissent from the majority’s decision to vacate the 

injunction.5

Because all of the district court’s rulings are supported 

by the law and the record, I respectfully dissent from the 

majority’s decision to reverse the grant of JMOL as to the 

§ 3617 claim and vacate the injunction. I would affirm the 

district court in full.

5 Although the majority does not address the question of whether 

remittitur was appropriate, Maj. op. at 42 n.11, the district court did not 

abuse its discretion in ordering remittitur. See Oracle Corp. v. SAP AG, 

765 F.3d 1081, 1087 (9th Cir. 2014) (“We review for abuse of discretion 

a remittitur amount set by the district court.”). It is clear that Mr. Morris’

testimony that he wanted closing and moving costs for when he decided 

to move, at some unknown date in the future, is too speculative to support 

the $60,000 award of compensatory damages. See Silver Sage Partners, 

Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 824 (9th Cir. 2001) 

(“‘Although compensatory damages need not be determined with 

certainty, they may not be based upon “mere speculation or guess.’”

(quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 

U.S. 555, 563 (1931))). “The combination of Mr. Morris’ uncertainty, 

and the fact that Mr. Morris was the sole source of evidence supporting 

a projected damages amount” support the district court’s conclusion that 

“the jury’s award of damages was both speculative and not supported by 

the evidence.” Morris I, 382 F. Supp. 3d at 1106. The district court also 

properly concluded that the $15,000 punitive damages award was 

problematic because the Morrises presented no evidence the HOA acted 

with evil intent, nor any evidence of Mr. Morris’ alleged medical 

condition or the extent to which it was aggravated. Id.
62 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

COLLINS, Circuit Judge, concurring in part and dissenting 

in part:

In late 2014, Jeremy and Kristy Morris1 offered to 

purchase a home in the West Hayden Estates First Addition 

neighborhood (“West Hayden Estates”) in Hayden, Idaho. 

Hoping to continue their tradition of hosting an annual 

Christmas celebration outside their home, they inquired of 

the West Hayden Estates First Addition Homeowners 

Association (“HOA”) whether it foresaw any problems with 

doing so. In response, the HOA sent the Morrises a certified 

letter taking the position that such an event would violate the 

West Hayden Estates Covenants, Conditions, Restrictions, 

and Easements (“CC&Rs”) and expressing concerns that the 

proposed event could present “problems” for “some of our 

residents [who] are non-Christians or of another faith” and 

that it would attract “undesirables.” When the Morrises 

expressed offense at this openly discriminatory letter, the 

HOA responded by ginning up opposition among the 

neighborhood to the Morrises. Even before the Morrises 

closed escrow on their new home, the HOA called an 

emergency meeting of the entire HOA, and in advance of the 

meeting, it circulated a misleading letter that misrepresented 

the size and scope of the planned event. The HOA’s efforts 

bore the foreseeable fruit—the HOA members at the meeting 

unanimously opposed the Morrises’ planned Christmas 

event, and the Morrises were met with significant hostility 

after they moved in and proceeded to hold the event anyway. 

Indeed, one neighbor confronted Kristy in her driveway one 

1 To avoid confusion, I refer to the Morrises individually by their first 

names. By contrast, all other individuals are referred to by their last 

names.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 63

evening, telling her that “we have enough guns and 

ammunition that will take care of you.”

The Morrises subsequently filed this suit asserting that 

the HOA’s conduct in connection with their purchase of their 

home violated multiple provisions of the federal Fair 

Housing Act, 42 U.S.C. § 3601, et seq. The jury returned a 

verdict for the Morrises, but the district court granted 

judgment for the HOA as a matter of law. Alternatively, the 

district court conditionally granted a new trial and ordered a 

remittitur of the compensatory and punitive damages 

awards. The Morrises have timely appealed.

I agree with the majority’s conclusions that the district 

court erred in granting judgment as a matter of law on the 

Morrises’ claim under § 818 of the FHA, see 42 U.S.C. 

§ 3617, and that this error prejudicially affected the district 

court’s analysis of the HOA’s counterclaim for injunctive 

relief enforcing the CC&Rs against the Morrises. I therefore 

concur in Parts II(a)(i)(2) and II(c) of the majority opinion. 

However, because the district court also erred by concluding 

that judgment as a matter of law was warranted for the HOA 

on the remaining claims, as well as by conditionally 

awarding the HOA a new trial and remittitur, I respectfully 

dissent in part.

I

A

In October 2014, Jeremy had the idea to celebrate 

Halloween by stationing a cotton-candy machine in front of 

his home in the Grouse Meadows section of Hayden, Idaho 

and providing cotton candy to passing children. The 

Morrises perceived this Halloween event to be a success, and 

Kristy suggested doing something similar for Christmas. 
64 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

The Morrises decided that such an event would be a way to 

“reach[] out to people who typically don’t attend church” 

and to invite them to “celebrate Christmas with us, to 

celebrate the birth of Christ.” Jeremy sought logistical 

assistance from others he knew in a Christian fellowship 

group, and he also talked to his pastor about the idea. After 

speaking with his pastor, Jeremy “came away with an 

impression that, rather than doing like a massive preachy 

thing,” he should start with “little Christian elements” and 

add “more and more every year.” 

Accordingly, the Morrises settled on a plan to decorate 

their Grouse Meadows home with a substantial display of 

Christmas lights and to stand outside with their daughter, 

offering cotton candy, candy canes, and hot chocolate to 

drivers viewing the lights. They posted their planned 

Christmas celebration on Facebook, and more than 200 

families indicated that they planned to attend. A neighboring 

church agreed to offer its parking lot to drivers visiting the 

home, and local police confirmed to the Morrises that their 

planned event would not require any permits. 

Thereafter, the Morrises held their 2014 Christmas event 

for eight days. Each night, they turned on their Christmas 

lights and offered cotton candy and hot chocolate for about 

two hours. The Morrises arranged for a friend to dress up as 

Santa Claus, and they set up a table to accept donations for 

two local charities for children. They also organized the 

singing of Christmas carols, using songs that were “Christian 

based.” Although they did not otherwise have a live nativity 

scene for this 2014 event, the Morrises did incorporate a live 

camel into their Christmas display. About 20 to 25 

volunteers helped the Morrises put on their 2014 Christmas 

event in Grouse Meadows. Kristy estimated that between 20 

and 100 people attended each night, the volunteers who 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 65

assisted suggested that “hundreds” came, and the Facebook 

page indicated that a total of 1,700 people claimed to have 

visited over the eight days. The Morrises received no 

complaints about the event. 

Shortly after Christmas, the Morrises began looking for 

a new home. On New Year’s Eve 2014, they put down an 

offer to purchase the home of Larry and Christina Breazeal 

in the West Hayden Estates neighborhood of Hayden. Larry 

Breazeal was a former president of the HOA, and the 

Breazeals had lived in the neighborhood for approximately 

15 years at that point. On January 6, 2015, the Breazeals 

reached an agreement to sell their home to the Morrises. 

Around the same time, Jeremy began to inquire about 

whether he could host a similar Christmas event in the new 

neighborhood. He reviewed a copy of the West Hayden 

Estates CC&Rs, and concluded that they would not prohibit 

such a Christmas program. 

In early January 2015, Jeremy called Jennifer Scott, who 

was then the president of the HOA, to discuss the matter. 

Jeremy informed Scott that he had contracted to purchase a 

home in the neighborhood and that he was planning to 

continue to host a Christmas program each December after 

he moved in. During the call, Jeremy explained to Scott 

“various details about what that program entailed.” Jeremy 

also explained to Scott the religious motivation behind the 

event. He did not use language suggesting that he was 

asking for permission, and instead he informed her that he 

was “calling to reach out and be neighborly” and to discuss 

certain issues. 

In particular, Jeremy noted that, because the CC&Rs 

prohibited “external speakers,” he would not use that feature 

of the Grouse Meadows 2014 Christmas program at West 
66 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Hayden Estates. Instead, he said that he might “just have 

music inside my home just with the windows down.” 

Jeremy also noted that, at West Hayden Estates, he would 

not have access to a nearby church parking lot to handle 

visitors, and so he suggested that perhaps “shuttles” could be 

used to avoid any safety or logistical issues. Jeremy asked 

for a prompt meeting of the HOA board because, as Scott 

put it, “[h]e wanted to make sure that the board was on the 

same page with him.” Jeremy told Scott that he needed a 

quick response from the HOA board, because he was facing 

a deadline for getting out of the home purchase contract. 

Scott arranged an emergency meeting of the HOA board 

for the next day. Although she recommended that Jeremy 

meet the board himself, he was sick that day and missed the 

meeting. Jeremy asked Scott to call him so that he could join 

the meeting by phone. However, after the meeting began 

and Scott perceived the significant level of concern about 

potential CC&R violations among the board members (many 

of whom had just joined the board), she decided that she 

would not telephonically patch Jeremy into the meeting. 

Jeremy texted Scott while she was in the meeting and he tried 

to call her several times, but she did not answer or respond. 

After the meeting was over, Scott called Jeremy and 

explained that she did not telephonically include him in the 

meeting “because the board was really concerned, and they 

were asking a lot of questions, and they wanted to look 

through the CC&Rs before they gave him an answer.” 

Jeremy got “upset” with Scott during the call, because, as 

Scott later explained, “[h]e just didn’t understand why [she] 

didn’t call him in when [she] told him that [she] would.” 

During the HOA board meeting from which Scott had 

excluded Jeremy, Scott described her understanding of the 

Christmas program. Scott told the board members that the 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 67

Morrises “wanted to continue putting on a [Christmas] light 

show” that “would be held for . . . five days” and that it 

involved volunteers and traffic control in addition to 

providing cotton candy and hot chocolate. Because Scott 

had “liked” and “was following” the Facebook page 

concerning the Morrises’ 2014 event, she was able to pull up 

that page on her phone and show it to the other board 

members. The Facebook page’s report of the large number 

of attendees “drew a lot of concerns” from board members. 

Scott also reported to the board that, on one of the days the 

2014 event was conducted, she personally drove by the 

Morrises’ house in Grouse Meadows about 20 minutes 

before the event was scheduled to start, and she saw “lots of 

cars on the street.” When later asked about the board 

meeting at trial, Scott acknowledged that she “may have 

mentioned something” about “Mr. and Mrs. Morris’s 

Christian faith.” 

After the board meeting, most of the members were able 

to review the CC&Rs, and several of them concluded that a 

program like the 2014 one would violate some of the 

CC&Rs. Given Jeremy’s request for a prompt response, one 

of the board members suggested that Scott write him a letter 

outlining the board’s concerns, and Scott in turn delegated 

the task to Larry Strayer, a former member and president of 

the board who had been at the emergency meeting. 

After drafting the letter, Strayer circulated it to the board 

for comments on the afternoon of January 14, 2015. The 

draft letter stated that the Morrises’ Christmas program 

would violate three CC&Rs: (1) the program would 

constitute a use of the property for a purpose “other than for 

single family residential purposes”; (2) the noise generated 

by the event would constitute a “nuisance”; and (3) the 

Morrises’ Christmas lights would violate a provision 
68 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

requiring exterior lighting to be “restrained” and not to 

involve “excessive brightness.” The letter also expressed 

concern that the traffic generated by the event could impede 

ingress and egress of emergency vehicles that might need to 

get to homes in the neighborhood. The draft letter then 

closed with the following paragraphs:

And finally, I am somewhat hesitant in bring 

up the fact that some of our residents are 

avowed atheists and I don’t even want to 

think of the problems that could bring up.

It is not the intention of the Board to 

discourage you from becoming part of our 

great neighborhood but we do not wish to 

become entwined in any expensive litigation 

to enforce long standing rules and regulations 

and fill our neighborhood with the riff-raff 

you seemed to attract over by WalMart. 

Grouse Meadows indeed!!! We don’t allow 

“those kind” in our neighborhood. 

On the morning of January 15, Pat Keilig, a board 

member, forwarded her comments on the draft letter to Scott, 

the board’s president, and to Ron Taylor, the board’s vicepresident. Keilig stated that she thought the letter was 

“great” and that she “only question[ed] the last line.” She 

thought that “it could end at riff-raff and could then say—

this neighborhood is not Grouse Meadows.” Taylor 

suggested stopping at “long standing rules and regulations” 

(which would remove the reference to “riff-raff” that Keilig 

would have retained) but that the reference to “litigation” 

should also be removed. About 31⁄2 hours later, Keilig 

circulated a revised draft of the letter. She reported that she 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 69

“changed the atheist bit and toned it down but left the 

paragra[p]h in.” 

The next morning, January 16, Keilig mailed the final 

version of the letter to Jeremy, using certified mail with a 

return receipt requested. Keilig stated at trial that, at the time 

she mailed the letter, she thought she had the approval of the 

board to do so, but that she later realized that the letter had 

not actually been “signed off” by the board. The final 

version of the letter was verbatim the same as the original, 

except for the correction of some typographical errors and 

two substantive changes. First, the final letter added the 

following concluding sentence to the prior paragraph about 

ingress and egress of emergency vehicles: “Snow removal at 

that time is also a concern, excess cars on the street would 

hinder that.” Second, the closing two paragraphs were 

revised to read as follows (with the revised language shown 

in boldface type):

And finally, I am somewhat hesitant in 

bringing up the fact that some of our 

residents are non-Christians or of another 

faith and I don’t even want to think of the 

problems that could bring up.

It is not the intention of the Board to 

discourage you from becoming part of our 

great neighborhood but we do not wish to 

become entwined in any expensive litigation 

to enforce long standing rules and regulations 

and fill our neighborhood with the hundreds 

of people and possible undesirables. We 

have worked hard to keep our area 

peaceful, quiet, and clean. Neighbors 

respect the CC&R’s and show common 
70 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

courtesy to those around them. These are 

reasons why people want to live here. 

Board reactions to the letter were mixed. Larry Breazeal 

remarked that he and his wife both viewed the letter as 

“prejudiced against the Morris[es’] Christian religion.” 

Breazeal also stated that Scott called him and was 

“distraught about the letter” because it “included a statement 

that talked about not wanting the Morris family to push their 

religious beliefs on others in the neighborhood.” In her 

conversation with Breazeal, Scott claimed that the board had 

“debated over” that sentence and “had decided to not include 

[it] in the letter.” However, at trial, Scott stated that she did 

not view the letter’s second-to-last paragraph to be 

“discriminatory against Christians.” She testified, though, 

that, had she drafted the letter, she “would have just stuck 

to” the board’s concerns about “the violations of the 

CC&Rs.” Although Taylor’s email commenting on the draft 

letter had said nothing about removing its reference to 

religion, Taylor later claimed at trial that, on the day after he 

sent that email, he complained to Scott about that reference, 

only to be “told that the letter had already been sent.” 

Scott testified that, in the days after Jeremy received the 

letter, he called her at least five times. She said that, in one 

of those conversations, Jeremy complained about what he 

perceived as the escalation inherent in sending a certified 

letter, saying words to the effect, “How dare you send me a 

certified letter. Do you have any idea what certified letters 

mean? Do you know how offensive getting a certified letter 

is?” 

After receiving the letter, Jeremy called Scott again and 

recorded the conversation. During that call, Scott informed 

Jeremy that a majority of the board had concerns about the 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 71

event and wanted to ask him questions. Jeremy asked Scott 

what she told the board regarding the January letter, stating 

that “I’m not meeting with anybody until I know what kind 

of people I’m meeting with. . . . I know you’re a nice person 

but I don’t know who these people are.” Scott indicated that 

the best path forward was for both sides to meet and 

suggested that accommodation was possible if Jeremy could 

help resolve the “biggest issue,” the expected traffic load. 

Later in the call, she stated that “nobody cared about the 

Christmas lights.” 

Over the course of the call, Jeremy expressed frustration 

over the January letter. He asked Scott, “Are they 

apologetic? Do they—do they realize what they did?” Scott 

responded, “Yes.” Jeremy later asked, “Regarding the letter, 

I mean did you tell them—did you say, ‘you guys, this was 

discriminatory language, even if you didn’t intend it this 

way’?” Scott confirmed that she had. In response to Jeremy 

asking whether she informed the board he might sue over the 

letter, Scott reported that she had not, but that she did warn 

the board that the letter “was discriminatory language.” 

Jeremy then informed Scott that he was in contact with a 

“religious liberties organization” and was considering legal 

action against the HOA over the letter. Jeremy told Scott 

that the organization informed him that the HOA had 

violated federal law, and that it was interested in taking his 

case and was “ready to go.” However, he said, “we can all 

walk away from this” if the board accepted his demands. 

Those demands, which he presented as non-negotiable, were 

that the HOA either de-annex his home from the HOA or 

sign a contract exempting him personally from payment of 

HOA dues, exempting his Christmas event from the CC&Rs, 

and requiring the resignation of any board members involved 

in the current dispute. Jeremy told Scott that the board had 
72 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

one week to accept his offer, or else he would file suit against 

the HOA and send a letter to all residents of the development 

informing them of his grievances. Jeremy also threatened to 

share his grievances with the local press and suggested that 

legal costs for the HOA might run as high as $60,000. In 

response to Jeremy’s threats of legal action, Scott assured 

him that “nobody cares that you are a Christian.” In another 

phone call with Jeremy, Scott reportedly indicated that she 

convinced the board to “tone down” the letter between 

drafts. 

On January 27, Jeremy and his realtor met with the full 

board. Although not present in person, Jeremy’s attorney 

also joined the meeting telephonically. The Morrises’ 

realtor described the board members at the meeting as 

“extremely agitated” and “hostile.” In his view, “it wasn’t 

like a productive meeting,” but rather “more of yelling” as 

the board discussed the Morrises’ “Christmas light thing . . . 

and the fact [that the board] didn’t want it in their 

neighborhood.” The realtor described one attendee as “very, 

very angry” and noted that another, Angie Penzkover, “stood 

up and left” approximately “halfway through the meeting.” 

The board members reiterated their concerns about the 

CC&Rs from the letter, in particular the amount of traffic 

and number of people who would attend the event. After 

Jeremy proposed a plan to address the increased traffic load, 

some members of the board indicated that it would 

sufficiently address their traffic concerns. At the meeting, at 

least one member of the board said that he did not believe 

the CC&Rs covered the use of Christmas lights at all. 

In response, Jeremy again proposed that the particular 

home that he sought to buy be de-annexed from the HOA, 

which would eliminate the HOA’s authority over the home 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 73

as well as the Morrises’ obligation to pay dues or fees. 

Jeremy stated that, if the home were de-annexed, he would 

agree not to sue the HOA. The board declined, concluding 

that it lacked any power under the CC&Rs to agree to deannexation. 

About two and a half weeks after the January 27 meeting, 

the board announced that an emergency meeting of the full 

membership of the HOA would be held on February 13, 

2015 at the home of Angie Penzkover (the board member 

who had walked out of the coffee shop meeting). The 

ostensible purpose of that meeting was to explain the 

situation to the membership and solicit the residents’ input. 

At the board’s request, a notice announcing the meeting was 

prepared by the HOA’s management company and was 

distributed to all residents. The notice included the 

following language:

A potential buyer is looking to purchase a 

home within the development. He has 

requested approval to hold a holiday event 

that will last from 5-10 days during the month 

of December. This display/event was held in 

another development last year. In speaking 

with the gentleman, he has indicated that this 

“event” will produce in excess of 900 

additional vehicles traveling through the 

neighborhood with up to 80 volunteers 

directing traffic and such. He has indicated 

that he will be using a speaker/PA system 

from 6 pm – 9 pm nightly. Last year, he 

incorporated a camel and various other 

amenities to attract attention to his display. 

. . .
74 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In the newspaper article that was provided in 

the Spokesman Review of the situation last 

year, he did not obtain the necessary permits 

for such an extravagant event generating 

excessive traffic. His comment to the media 

was that this year, he plans to create a much 

larger event. . . .

It is the Board’s opinion that . . . this type of 

traffic and event is in violation of the CCRs 

for West Hayden Estates. . . .

The board is seeking your opinions on the 

matter as the individual has threatened legal 

action if the board does not permit his 

request. The board is fearful that allowing 

such a breach of the CCRs in this matter will 

ultimately lead to further breaches in other 

areas within the community. . . .

Unfortunately, this may result in a legal 

situation that must be addressed and handled 

immediately. 

A separate sheet announcing the agenda for the meeting 

referenced this item with the following description: 

“Discussion regarding possible litigation that may involve 

additional legal costs and increased assessments.” That 

notice also stated that, because the topic “affects ALL

residents of the West Hayden HOA,” each member should 

“attend or submit” an enclosed “proxy form.” The proxy 

form gave the HOA member the option of either (1) allowing 

the board to cast the member’s vote at the board’s discretion; 

or (2) specifying a vote either “to allow new resident’s 

holiday event and display” or not to allow it. The proxy form 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 75

reiterated, in bolded, underlined large type that used all 

capital letters: “IF YOU CANNOT ATTEND, IT IS 

CRUCIAL THAT YOU RETURN THE PROXY.” 

At the February 13 meeting, approximately 19 

homeowners “were represented,” not counting board 

members. The homeowners in attendance asked about the 

amount of traffic that was anticipated, focusing on the 

number of buses that might be coming and the overall 

number of attendees. At the conclusion of the discussion, 

the vote was unanimous that those in attendance “did not 

want [the Christmas event] to take place.” It is not clear from 

the record whether the board ever formally notified the 

Morrises of the outcome of this meeting.

Believing that the HOA’s written notice announcing the 

February 13 meeting to the membership was “knowingly 

false and misleading,” Jeremy soon sent a letter of his own. 

In that letter, Jeremy alleged that the HOA had discriminated 

against his family, had violated the Fair Housing Act, and 

had refused his attempts to settle the matter amicably. His 

letter also identified several statements made in the board’s 

meeting notice that he considered to be false. In particular, 

he took issue with the board’s characterization of the size 

and duration of the Christmas event, and its assertion that the 

event would violate the CC&Rs. 

B

The Morrises closed escrow on their new home in March 

2015. In September of that year, Scott noticed that Jeremy 

began putting up outside lights in preparation for the 

Christmas event. On October 26, attorneys for the board sent 

a four-page letter to the Morrises instructing them not to hold 

the event. The letter listed the various CC&R provisions the 

board believed the Morrises’ planned event would violate, 
76 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

including provisions prohibiting nuisances, excessive 

lighting, and the keeping of animals. The letter specifically 

asserted that the “exterior lighting you have already installed 

on your home” violated the CC&Rs. The letter further 

argued that the county zoning ordinance and Idaho law 

would independently prohibit the Morrises’ planned event. 

The letter acknowledged that the Morrises hoped to mitigate 

the HOA’s traffic concerns by the use of shuttle buses, but 

the letter claimed that those measures would be inadequate 

because nothing would stop visitors from “simply driving to 

the neighborhood and parking on the streets.” The letter 

warned that unless the Morrises “request[ed] and receive[d] 

written approval” from the board to conduct their Christmas 

event, the board had authorized its attorneys “to file an 

action seeking an injunction to prevent your event from 

occurring and seeking an award of all legal fees and costs 

incurred in that litigation.” The letter concluded by stating 

that, if the Morrises did not reply in writing within 10 days, 

“the Board will assume that you are unwilling to modify 

your plans and legal action will follow.” After receiving the 

letter, the Morrises decided that they “should tell them that 

. . . we’re not backing down if they want to file a lawsuit.” 

After Jeremy contacted the media about the dispute, the 

HOA ended up not pursuing any legal action. 

The Morrises went forward with the planned Christmas 

event, which lasted five days. The Morrises strung up over 

200,000 lights on their home and had roughly 30 volunteers, 

a party bus, a costumed Santa Claus and Mrs. Claus, a 

nativity scene with live animals, and a children’s choir 

performing carols. Several attendees testified that the noise 

was minimal. Indeed, the Morrises’ next-door neighbor 

testified that she could not hear any noise from the event 

when she was in her home. As a general matter, the event 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 77

premises were also cleanly maintained, although on at least 

one occasion a child reportedly urinated on the lawn of one 

of the Morrises’ neighbors and Ron Taylor reported picking 

up “a few cups and some stir sticks” the next morning. 

The 2015 event was also attended by more visitors than 

the one the prior year in Grouse Meadows, although the 

testimony at trial conflicted as to just how many visitors 

attended. One witness testified that between 30 and 50 

people were present on the Morrises’ lawn at any given time, 

whereas another witness estimated that “a couple [of] 

hundred” people were present at “any single time.” The trial 

witnesses also disagreed about how much traffic the event 

generated. The descriptive materials prepared by the 

Morrises to advertise the event stated that “[a]ll vehicles 

must part at Croffoot Park”; that shuttle buses would run 

every 10 minutes between the park and the event; and that 

“NO PARKING [was] permitted on Ferndale Dr. where 

[the] event [was] held.” One witness testified that the event 

nonetheless produced a significant volume of traffic, 

whereas other witnesses testified that the event generated 

minimal excess traffic. Taking “a wild guess,” one witness 

placed the total number of cars driving past the Christmas 

event over the course of a given evening at 50. Witnesses 

also disagreed about how many cars ended up parking in the 

streets of the neighborhood during the event. 

The HOA board pursued no immediate action against the 

Morrises with respect to the 2015 event. Indeed, the board’s 

only response to the 2015 event was in the form of a January 

2016 letter to the Morrises from Taylor, the new president of 

the board. That letter noted that a child had been seen 

urinating in the snow, and it complained about poor trash 

pickup following the event. After reading the January 2016 

letter, Jeremy spoke with Taylor outside the Morrises’ home, 
78 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

again recording the conversation. Jeremy reported to Taylor 

that the Morrises had received threats and harassment, and 

reiterated his view that the board had engaged in 

discrimination against his family. Jeremy asked Taylor, 

“why does everyone keep coming after me?” Taylor replied, 

“Because someone in this association doesn’t like 

Christmas.” 

The Morrises decided to repeat the event in December 

2016. The 2016 event was similar in scope to its 

predecessor. It again included over 200,000 Christmas 

lights, although Jeremy testified that the 2016 event was the 

first time that he left the lights on past 8:30 PM. The 2016 

event featured costumed characters such as Santa Claus, the 

Grinch, Frosty the Snowman, Clifford the Big Red Dog, and 

Roman soldiers; a professional photographer for paid photos 

with Santa; a live nativity scene that included “Dolly” the 

camel; and a petting zoo with a miniature donkey. The 

Morrises also invited live musicians, one of whom used a 

speaker to amplify his performance. Jeremy also stated that, 

in contrast to 2015, he occasionally used a bullhorn to 

amplify his voice. 

Scott testified that the traffic at the 2016 event was 

roughly the same as the year before, although other 

neighbors described the traffic as being slightly lower than 

in 2015. The 2016 event also included about 30 volunteers. 

In 2016, buses were again used to ferry visitors from the 

parking site to the Morrises’ home. Some residents placed 

cones in front of their driveways to prevent visitors parking 

there, and one witness testified that, over the course of the 

week, some residents moved the cones progressively further 

into the street, thereby themselves obstructing traffic. 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 79

The HOA board again took no immediate action in 

response to the 2016 event. It never notified the Morrises 

that they had violated the CC&Rs. 

C

Although the board took no formal action in response to 

the events, the Morrises contended that the board’s early and 

subsequent opposition led to significant hostility in the 

neighborhood. 

In particular, in the leadup to the 2015 event, a West 

Hayden Estates resident named Larry Bird came to the 

Morrises’ house in an agitated state and told Kristy in the 

driveway, “If you think the three-percenters are going to 

protect you, we have enough guns and ammunition that will 

take care of you.” (The “three-percenters” was apparently a 

reference to a militia group that is active in the surrounding 

area.) Jeremy told the board about the threat, but it took no 

action in response. Kristy was sufficiently concerned about 

Bird’s threat that she and the Morrises’ four-year-old 

daughter stayed away from the house during the 2015 event. 

Other expressions of hostility emerged as well. In the 

aftermath of the February 2015 board meeting, Angelene 

Cox, a West Hayden Estates resident who lived adjacent to 

the Morrises, called Scott and asked whether the HOA’s 

complaints about the CC&Rs were genuine. In response, 

Scott told her that, “They just don’t want him there.” Cox 

further reported in an affidavit that “[s]ome neighbors 

openly referred to [the Morrises] as ‘the enemy.’” Jeremy 

also submitted an affidavit asserting that in December 2016, 

a neighbor named “Dolly M.” “placed a rotating laser on a 

swivel in her driveway which directed several laser beams 

through my family’s bedroom window.” He further stated 

that, in January 2017, his family’s Christmas lights were tied 
80 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

to a rope and dragged down the street by a car, although he 

could not identify a culprit. 

Residents also expressed hostility during the Christmas 

programs. One neighbor pretended to be hit by one of the 

Morrises’ buses, “flail[ing] his arms . . . like he was falling 

down” while “a person with a video camera” filmed the 

incident. Thereafter, another neighbor shoved one of the 

Morrises’ volunteers while confronting the bus driver over 

that alleged incident. Other neighbors shouted obscenities 

outside the Morrises’ home during the event. At least one 

resident kicked a visitor’s car while cursing at the Morrises. 

And other residents harassed visitors, shouting obscenities at 

them and telling them they were not welcome in the 

neighborhood. 

The Morrises claimed that the treatment they received 

was not consistent with how other events were handled at 

West Hayden Estates. For example, the HOA hosts an 

annual block party, which involves the complete closure of 

multiple streets within the development. The board has also 

taken no action against an annual Fourth of July party, 

involving allegedly illegal fireworks launched from the 

streets of the development and lasting until after midnight. 

The Breazeals also reported having regularly hosted parties 

to watch football games throughout the football season and 

postseason, with anywhere from 20 to 80 persons in 

attendance and as many as 50 vehicles parked on the 

neighborhood streets. The Breazeals’ football-watching 

parties lasted for over four hours each, but the Breazeals 

reported that they were never contacted by the HOA 

regarding the parties. Larry Breazeal also stated that, during 

his entire tenure as the HOA president, the board had never 

sent a notice of violation of the CC&Rs for events causing a 

nuisance. However, no event appears to have extended over 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 81

multiple days and none replicated the scale of the Morrises’ 

Christmas program.

The Morrises ultimately claimed that the neighborhood 

was no longer hospitable for them. Jeremy testified at trial 

that “I don’t see how I can continue to live in this 

neighborhood,” in light of the alleged discrimination, 

threats, and harassment.

D

In January 2017, the Morrises sued the HOA under the 

Fair Housing Act (“FHA”), which has been classified, as 

amended, to chapter 45 of the unenacted Title 42 of the 

United States Code. See 42 U.S.C. § 3601 et seq. 

In their first cause of action, the Morrises allege that the 

HOA violated § 804(b) and § 804(c) of the FHA. Section 

804(b) makes it unlawful, inter alia, to “discriminate against 

any person in the terms, conditions, or privileges of sale or 

rental of a dwelling . . . because of . . . religion.” 42 U.S.C. 

§ 3604(b). The Morrises alleged that the HOA violated that 

provision when it engaged in “a systematic strategy to . . . 

dissuade the Morris[es] from moving to their home . . . under 

the threat of litigation,” attempted to “dissuad[e]” the 

Breazeals “from selling the property to the Morris family,” 

and “creat[ed] a hostile living environment in an effort to 

discourage the Morris family from continuing to live in the 

association.” Section 804(c) makes it unlawful, inter alia, 

to “make, print, or publish, or cause to be made, printed, or 

published any notice, statement, or advertisement, with 

respect to the sale or rental of a dwelling that indicates any 

preference . . . based on . . . religion.” Id. § 3604(c). The 

Morrises claim that the HOA violated this provision by 

sending its January 16 letter, which the Morrises allege 

“indicated a preference for non-religious homeowners.” 
82 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

The Morrises’ third cause of action alleged a violation of 

§ 818 of the FHA. Section 818 makes it unlawful to “coerce, 

intimidate, threaten, or interfere with any person in the 

exercise or enjoyment of . . . any right granted or protected 

by” § 804 of the FHA. Id. § 3617. The Morrises allege that 

the HOA violated § 818 by “sending a certified letter 

threatening litigation”; “contacting the [Breazeals] and 

attempting to dissuade them from selling to the [Morrises]”; 

and causing the Morrises to “live[] in fear, keep[] their doors 

locked at all times, and obtain[] concealed carry permits for 

protection.”2 

The HOA denied the allegations and counterclaimed 

against the Morrises. In their counterclaim, the HOA alleged 

that the Morrises’ 2015 and 2016 Christmas events violated 

the CC&Rs and it sought an injunction against future such 

events. 

Before trial, the district court denied the HOA’s motion 

for summary judgment on the Morrises’ FHA claims, 

concluding that a reasonable jury could find for the Morrises 

on these claims. The district court specifically stated, “I 

really think that if I were to grant summary judgment [to the 

HOA], I think the Ninth Circuit would reverse me almost 

immediately.” The court explained:

I think the letter—it may well be, you 

know . . . that there was not even the least bit 

of discriminatory intent in writing the letter. 

It may have been an attempt to offer some 

2 The Morrises’ complaint’s second cause of action asserted a state-law 

claim under Idaho Code § 67-5909, but the district court dismissed that 

claim for failure to exhaust state administrative remedies, and the 

Morrises have not appealed that dismissal.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 83

type of conciliation or recognition of 

sensitivity to others’ religious beliefs.

The problem, though, is the summary 

judgment standard, which requires that the 

court construe the evidence and any 

reasonable inference that can be drawn from 

the evidence in a light most favorable to the 

plaintiff.

So the question is whether a jury could, in 

viewing that statement contained in the letter 

and, in particular, coupled with the other 

evidence of statements made about wanting 

to get the plaintiffs out of the neighborhood, 

whether or not a reasonable jury could view 

that as evidencing a discriminatory intent.

And I just have to say: I think they could. 

I’m not saying that they will. I’m not in any 

way suggesting that, at a jury trial, that the 

jury is going to come back and agree with the 

Morrises. I’m just saying that applying the 

summary judgment standard to the facts of 

this case, which is what I have to do, that the 

plaintiffs have presented sufficient evidence 

really in the form of the letter almost by itself. 

But even if I made a statement earlier that the 

letter by itself wasn’t enough, that probably

wasn’t well advised because I think that 

reference to impact upon other—‘others in 

the area that may not be Christian,’ that 

coupled certainly with the statements that—

of kind of personal animus, I think, is enough 
84 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

that a reasonable jury could concluded that 

there was, in fact, a discriminatory motive.

The ensuing jury trial lasted six days. After the Morrises 

rested, the HOA moved for judgment as a matter of law 

under Federal Rule of Civil Procedure 50(a). The district 

court denied the motion, stating “I’ve got some reservations 

about the claims here. However, I think there is enough 

evidence that, if you construe it in a light most favorable to 

the plaintiffs, a reasonable jury could find that each element 

of the claim has been made.” Referring back to its summary 

judgment decision, the district court said, “[T]hat [January 

16] letter is the linchpin, I think, why summary judgment 

was denied and why I’m going to deny the Rule 50 motion 

as well. I think a jury could infer that they were trying to 

prevent someone from purchasing the home and that at least 

part of the motivation was religion.” 

The jury returned a verdict in favor of the Morrises. 

Between announcing that the jury had reached a verdict and 

revealing that verdict, the jury asked the district court 

whether it could award “legal fees” as punitive damages, 

rather than a specific dollar amount. The court stated that 

“there is no evidence as to attorneys’ fees, and . . . the 

instruction tells them what the purpose of punitive damages 

is. And I don’t think it can be tied to anything like attorneys’ 

fees.” The district court therefore instructed the jury that it 

could not award “legal fees” in lieu of a specific punitive 

damages award. 

Approximately 40 minutes after the district court 

informed the jury that it could not award legal fees, the court 

reconvened with the jury present. At that time, the verdict 

was read, and the court announced the jury’s award of 

damages. The jury found the HOA liable to the Morrises on 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 85

all of their claims. It awarded the Morrises $60,000 in 

compensatory damages and $15,000 in punitive damages. 

Following trial, the HOA filed a renewed motion for 

judgment as a matter of law under Rule 50(b). 

Notwithstanding its comments in denying the earlier 

summary judgment motion and Rule 50(a) motion, the 

district court concluded that no reasonable jury could find 

for the Morrises and that the only conclusion permitted by 

the evidence was that the HOA was not liable on any ground. 

The court therefore entered judgment in favor of the HOA 

on each of the Morrises’ claims. Turning to the HOA’s 

counterclaim against the Morrises, the court granted the 

HOA’s request for a permanent injunction against the 

Morrises, barring them from “hosting a Christmas program 

in the West Hayden Estates that violates the CC&Rs in the 

manner described in this decision.” The district court also 

made two alternative rulings. First, in the event that its entry 

of judgment as a matter of law were reversed, the court 

conditionally granted the HOA a new trial. Second, in the 

event that its grant of a new trial were also reversed, the court 

ordered remittitur of the Morrises’ damages to $1 for each of 

their claims and $1 in punitive damages. The Morrises 

timely appealed.

II

Even after a jury has rendered its verdict, a district court 

may enter a contrary judgment as a matter of law if it 

concludes that no reasonable jury could have found for the 

prevailing party based on the admissible evidence in the 

record. FED. R. CIV. P. 50(a), (b). We review the decision 

to enter such an order de novo. Tan Lam v. City of Los 

Banos, 976 F.3d 986, 995 (9th Cir. 2020). We must ask 

“whether the evidence permits only one reasonable 
86 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

conclusion, and that conclusion is contrary to the jury’s 

verdict.” Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th 

Cir. 2006). However, in making that determination, we may 

not reweigh the evidence ourselves, EEOC v. Go Daddy 

Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009), and must 

keep in mind that “[c]redibility determinations, the weighing 

of the evidence, and the drawing of legitimate inferences 

from the facts are jury functions, not those of a judge,” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

I concur in the majority’s opinion to the extent that it 

concludes that the Morrises presented sufficient evidence to 

permit a reasonable jury to find in their favor on their third 

cause of action under § 818 of the FHA. But I believe that 

the district court also erred in entering judgment as a matter 

of law on the Morrises’ claims under § 804(b) and § 804(c), 

and I therefore dissent from the majority’s contrary 

conclusion.

A

In their § 804(b) claim, the Morrises allege that the HOA 

“discriminate[d] against [them] in the terms, conditions, or 

privileges of sale or rental of a dwelling . . . because of . . . 

religion.” 42 U.S.C. § 3604(b). To prevail at trial, the 

Morrises needed to “simply produce direct or circumstantial 

evidence demonstrating that a discriminatory reason more 

likely than not motivated” the HOA and that the HOA’s 

actions “adversely affected the [Morrises] in some way.” 

Pacific Shores Props., LLC v. City of Newport Beach, 730 

F.3d 1142, 1158 (9th Cir. 2013) (quoting McGinest v. GTE 

Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). Here, a 

jury found that the Morrises had carried that burden, and so 

our review is limited to asking whether any reasonable jury 

could so find. FED. R. CIV. P. 50(a). Bearing in mind our 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 87

obligation to construe the evidence in the light most 

favorable to the Morrises, Lytle v. Household Mfg., Inc., 494 

U.S. 545, 554 (1990), I conclude that sufficient evidence was 

presented to allow a reasonable jury to find that the HOA 

had violated § 804(b).

The jury could properly have found that the HOA’s 

actions adversely affected the Morrises based on either of 

two factual predicates. First, the jury could reasonably have 

concluded that, before the Morrises had closed escrow on 

their home, the HOA ginned up significant opposition to the 

Morrises among their neighbors through false and 

misleading communications. Second, the jury could 

reasonably have found that, before the Morrises closed 

escrow, the HOA singled them out for future selective, bythe-book enforcement of the CC&Rs. And on either theory, 

the jury could also reasonably have concluded that the 

HOA’s conduct was motivated by the Morrises’ religion and 

their outward expression of it. I address each of these three 

points in turn.

1

There can be little doubt that an HOA violates § 804(b) 

if, upon learning that a particular family is about to purchase 

a home in the neighborhood, the HOA actively fosters 

significant animosity toward that family in the neighborhood 

and does so based on a protected characteristic, such as 

religion or race. On this record, a jury could reasonably find 

that the HOA did just that.

The HOA made multiple statements to residents of the 

neighborhood that would reasonably be expected to generate 

hostility toward the Morrises in advance of their move to 

West Hayden Estates. The most significant example of this 

was the letter announcing the February 2015 “Emergency 
88 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

Special Meeting” of the full HOA. A reasonable jury could 

conclude that this notice exaggerated the scope of the 

Morrises’ planned event and cast it in a false and unduly 

negative light. For example, the board suggested that the 

program might run as long as ten days, involve three or more 

hours of amplified noise, and flood the neighborhood with 

nearly a thousand new cars. It also stated that the event 

would bring in “up to 80 volunteers,” despite lacking any 

basis for that claim—prior events had at most 48 volunteers. 

The board further attempted to paint the Morrises as lawless, 

suggesting that they refused to obtain necessary permits 

from the county. At the same time, the letter characterized 

Jeremy as litigious and portrayed the board as “fearful” 

victims of his bullying. It cast him as a financial threat to 

the neighborhood through the risk of “additional legal costs” 

resulting in “increased assessments” against everyone in the 

development. 

Moreover, a reasonable jury could conclude that the 

board’s behavior was more consistent with making the 

Morrises unwelcome than with accomplishing its professed 

goal of ensuring compliance with the CC&Rs. The jury 

could determine that, rather than simply taking measures in 

the ordinary course to enforce the CC&Rs, the board 

undertook to foster significant resentment toward the 

Morrises. To take just one example, despite the board 

having authority to act on behalf of the HOA, its notice about 

the February 2015 special meeting asked residents to 

complete a proxy voting form if they could not attend. But 

no vote was needed by the members of the HOA—any 

member of the HOA could have unilaterally enforced the 

CC&Rs against the Morrises. Further, the board’s framing 

of the vote as whether the residents “want[ed] [the Christmas 

event] to take place,” rather than whether the event violated 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 89

the CC&Rs or otherwise warranted action, supports an 

inference that the board was affirmatively acting to generate 

hostility towards the Morrises in the development. The 

board therefore conducted a needless straw poll, 

participation in which it construed as “crucial,” and 

converted the February meeting into a neighborhood 

referendum on the Morrises, whom the HOA members at the 

meeting unanimously spurned. 

The jury could also find that the board’s actions had 

predictable consequences. After arriving in the 

neighborhood, the Morrises were subjected to harassment 

from the other residents, including a death threat from Larry 

Bird. Contrary to the district court’s and majority’s 

dismissal of Bird’s threat, see Opin. at 32–34, Bird’s 

comments represented a genuine threat to the Morrises. Bird 

told Kristy that “we have enough guns and ammunition that 

will take care of you,” and he warned her that he could evade 

protection she might seek. The district court erred in 

dismissing the Morrises’ account of Kristy’s encounter with 

Bird as “embellished,” because courts may not make 

credibility assessments when ruling on a Rule 50(b) motion. 

Go Daddy Software, 581 F.3d at 961. Moreover, there was 

evidence that Bird’s death threat caused the Morrises 

significant fear, including causing them to obtain concealed 

carry permits to protect themselves. And a reasonable jury 

could conclude that there was a causal relation between the 

board’s actions and Bird’s conduct.

Although the district court ultimately excluded the 

evidence of Bird’s threat as irrelevant, that was an abuse of 

discretion. See Hoffman v. Construction Protective Servs., 

Inc., 541 F.3d 1175, 1178 (9th Cir. 2008). The district court 

concluded that the evidence was irrelevant because it viewed 

the Morrises as attempting to impose liability on the HOA 
90 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

for the threat itself. The court therefore found it dispositive 

that “West Hayden could not be liable for conduct by nonparty homeowners.” But that decision is legally erroneous 

when applied to this theory of liability, viz., that the HOA 

ginned up neighborhood resentment toward the Morrises. 

On that understanding, Bird’s threat is directly relevant as a 

foreseeable consequence of the HOA’s conduct in violation 

of § 804(b). It is probative of, among other things, the 

foreseeably harmful nature of the adverse action itself as 

well as the measure of damages suffered by the Morrises. 

And both of those items are material to the § 804(b) claim. 

Under this theory of § 804(b) liability, then, the Bird 

evidence is clearly relevant, see FED. R. EVID. 401, and the 

district court abused its discretion by excluding it.

Other instances of harassment were less extreme, but still 

troubling. At least some residents of the neighborhood 

referred to the Morrises as “the enemy.” One neighbor set 

up a laser pointer to shine through the windows of the 

Morrises’ home and prevent them from sleeping. Others 

vandalized the Morrises’ Christmas lights, or feigned injury 

to harm the Morrises’ reputation. And still others shouted 

obscenities at the Morrises and their visitors repeatedly. On 

at least one occasion, the harassment escalated into physical 

confrontation, when a neighbor shoved one of the Morrises’ 

volunteers at the Christmas event. Contrary to what the 

district court thought, it is not dispositive that the offenders 

were not subject to the HOA’s control and were not agents

of the HOA. In the context of this case, a jury could draw a 

reasonable inference that the HOA’s ginning up of hostility 

towards the Morrises was a causal factor that foreseeably 

contributed to the level of animosity later directed toward the 

Morrises among their neighbors. 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 91

2

An HOA would likewise violate § 804(b) if, upon 

learning that a specific family was about to buy a home in 

their development, the HOA decided to single them out for 

an unprecedented level of by-the-book enforcement of the 

CCRs and did so based on a protected characteristic such as 

religion or race. Once again, a reasonable jury could 

conclude that the HOA here did just that.

As an initial matter, the Morrises put forward substantial 

evidence of the HOA’s history of lax enforcement of the 

CC&Rs. For example, the HOA itself hosts an annual block 

party in the neighborhood, involving the closure of multiple 

streets for significant periods of time. Similarly, the HOA 

permits an annual Fourth of July party, involving the launch 

of significant numbers of allegedly illegal fireworks over a 

period of several hours. The Fourth of July party continues, 

seemingly without disruption by the HOA, even though it 

extends at times beyond midnight and even though it has 

been interrupted by police who have issued warnings to the 

hosts. The Fourth of July events would have given rise to 

potential violations of multiple CC&R provisions, including 

§ 5.1.17’s prohibition on violations of state and local law, 

§ 5.4.2’s prohibition on “noise or other nuisance[s],” and 

§ 5.4.9’s prohibition on “unsafe or hazardous” activities. A 

jury could similarly find that the HOA has permitted 

individual residents to host large events that violated the 

terms of the CC&Rs. The Breazeals, prior to selling their 

home, would host weekly parties during football season 

involving as many as 80 guests and up to 50 vehicles parked 

along the roads of the neighborhood. And the Breazeals’ 

football parties would have implicated both § 5.1.4’s 

parking regulations and § 5.4.2’s bar on nuisances. None of 
92 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

the other events prompted so much as a warning by the 

HOA.

A reasonable jury could find that, in contrast to this 

history of lax enforcement, the HOA decided, prior to the 

sale of the Breazeals’ home to the Morrises, to review the 

Morrises’ anticipated compliance with the CC&Rs with a 

hyper-rigidity that reflected differential, if not pretextual, 

adverse treatment. Indeed, such an inference is supported by 

the fact that, for example, several members of the HOA 

board themselves clearly thought that the HOA’s objection 

to the planned Christmas lights was bogus.3

3

There was also sufficient evidence for the jury to find for 

the Morrises on the second element of their § 804(b) claim—

viz., that the HOA’s adverse actions against them were 

motivated in part by the Morrises’ religion. Pacific Shores, 

730 F.3d at 1158.

3 The majority concludes that, because the HOA ultimately did not bring 

an enforcement action against the Morrises (at least not until the 

Morrises first sued the HOA), the Morrises were not sufficiently 

“adversely affected” by the HOA’s conduct. See Opin. at 17–18. That 

is wrong. A reasonable jury could conclude that, even before the 

Morrises closed escrow on their home, the HOA had decided to take a 

much stricter approach towards enforcing the CC&Rs against them and 

that this selectively tougher approach was reflected in distinctive 

procedural hassles “that were contrary to the [HOA’s] established policy 

and practice.” Harris v. Itzhaki, 183 F.3d 1043, 1052 (1999). As our 

decision in Harris confirms, the fact that these differential processes did 

not result in an actual enforcement lawsuit does not mean that they did 

not constitute an adverse effect. See id. at 1049, 1052 (landlord’s service 

of three-day eviction notices, in departure from established practice, 

resulted in adverse effects even though the landlord did not follow 

through with eviction).
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 93

First, the Morrises provided evidence that the HOA was 

aware of their faith at the time it was making the relevant 

pre-sale decisions. In the initial conversations with Scott, 

Jeremy informed her of his religious beliefs and the religious 

motivation for the program. Scott confirmed that she passed 

that information along to the remainder of the board. 

Statements by board members suggested that they were 

hostile to the Morrises’ outward displays of their religion. 

For instance, board members expressed distaste at the idea 

of the Morrises “push[ing] their religious beliefs” on the 

community. Moreover, two separate presidents of the HOA 

made statements suggesting that members of the HOA board 

had acted with a religious animus: Scott remarked that 

members of the HOA board “just don’t want [Jeremy] there” 

and Taylor commented that “someone in this association 

doesn’t like Christmas.” The jury therefore had evidence 

that the HOA board was aware of the Morrises’ religion and 

had evidence from members of the HOA board itself that the 

Morrises’ religion may have motivated the HOA’s conduct.

Second, the board’s January 16 letter provides further 

evidence of religious animus. The initial draft of the letter 

referred to those who would visit the Morrises’ Christmas 

program as “riff-raff” and “those kind.” The draft likewise 

suggested that the presence of “avowed atheists” in the 

subdivision made the Morrises’ expression of faith 

undesirable. The final letter continued to refer to potential 

adverse reaction to a religiously motivated Christmas 

program and it described potential visitors to that program 

as “undesirables.” A reasonable jury could read this 

language in the letter as indicating a hostility by the HOA 

toward Christians who outwardly express and celebrate their 

religion, which would include the Morrises and many of 

those likely to attend the Morrises’ event. The majority 
94 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

reads the letter differently, arguing that “the concern 

expressed regarding ‘undesirables’ was that ‘hundreds’ of 

non-resident visitors driving through the neighborhood 

might include unruly individuals.” Opin. at 40. But 

requiring the Morrises to show that there is no alternative 

way to read the letter, as the majority does, is precisely the 

opposite of how we are supposed to review Rule 50(b) 

motions. See Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 150–51 (2000).

Third, the HOA board itself disclaimed caring about 

many of the CC&R violations it later suggested were so 

damaging. For example, in her call with Jeremy, Scott stated 

outright that “nobody cared about the Christmas lights.” 

That sentiment was echoed at the later meeting with the 

board, where Taylor told Jeremy that he did not think the 

CC&Rs regulated Christmas lights at all. And similar issues 

arise with respect to the board’s focus on traffic, which 

several members indicated would be obviated by the 

Morrises’ proposed traffic plan. These considerations 

provide further circumstantial support to a reasonable and 

permissible inference that the board’s conduct was 

motivated by, or even a pretext for, religious-based 

discrimination.

Taken together, there is an ample evidentiary basis in the 

record for a reasonable jury to conclude that the HOA’s 

adverse actions against the Morrises were motivated at least 

in part by the Morrises’ religion. Accordingly, I would 

reverse the district court’s entry of judgment as a matter of 

law on the § 804(b) claim.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 95

B

The district court also determined that the HOA was 

entitled to judgment as a matter of law on the Morrises’ 

§ 804(c) claims. Construing the evidence in the light most 

favorable to the Morrises, see Barnard v. Theobald, 721 F.3d 

1069, 1075 (9th Cir. 2013), I conclude that the jury’s verdict 

was permissible in light of the evidence, and that the district 

court’s grant of judgment as a matter of law should therefore 

be reversed.

Proving a violation of § 804(c) requires showing that the 

defendant “ma[d]e, print[ed], or publish[ed]” a “notice, 

statement, or advertisement”; that the publication was “with 

respect to the sale or rental of a dwelling”; and that the 

publication indicated “any preference, limitation, or 

discrimination based on . . . religion.” 42 U.S.C. § 3604(c). 

It is undisputed that the HOA’s letter to the Morrises was a 

“notice, statement, or advertisement” “ma[d]e, print[ed] or 

publish[ed]” by the HOA, or that it was “with respect to the 

sale or rental of a dwelling.” See id. Thus, the question here 

is whether the jury could have reasonably concluded that the 

letter “indicate[d] a preference, limitation or discrimination” 

based on religion. Id. The answer to that question is yes.

The January 16 letter contained multiple statements that 

could be construed by a reasonable jury as indicating a 

“preference, limitation, or discrimination based on . . . 

religion.” 42 U.S.C. § 3604(c). The letter explicitly 

expressed concerns about the interaction between the 

Morrises’ public profession of their Christian faith and the 

views of “non-Christians or [those] of another faith.” Read 

in light of the board’s statements that it worried about the 

Morrises pressing their beliefs on others in the 

neighborhood, a reasonable jury could have concluded that 
96 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

the letter expressed the board’s preference for a purchaser 

who did not outwardly express his religious beliefs. Cf. 

Masterpiece Cakeshop, Ltd. v. Colorado C. R. Comm’n, 584 

U.S. 617, 634 (2018) (finding “clear and impermissible 

hostility toward . . . sincere religious beliefs” in the context 

of a Free Exercise Clause claim where state actors “endorsed 

the view that religious beliefs cannot legitimately be carried 

into the public sphere”). 

The board’s letter also referred to the people the 

Morrises’ Christmas program would attract as 

“undesirables.” Given that the primary visitors to the event 

would presumably be other Christians wishing to join a 

public celebration of Christmas, a reasonable jury could 

have concluded that that language expressed a view that such 

religiously active and publicly expressive Christians were 

“undesirable.” The majority claims that “undesirables” is 

instead best read to refer to “unruly individuals,” see Opin. 

at 40, but that sort of weighing of circumstantial inferences 

is inconsistent with the standards applicable to review of jury 

verdicts under Rule 50. Barnard, 721 F.3d at 1075.

The district court’s analysis of the letter reflected an even 

more egregiously impermissible weighing of the inferences. 

The district court simply adopted wholesale the HOA’s 

reading of the letter, notwithstanding the reasonable 

inferences to the contrary. Thus, the district court ignored 

the letter’s troubling reference to the Morrises’ public 

display of their Christian faith, instead pointing to the fact 

that the letter also included a disclaimer that stated, “It is not 

the intention of the Board to discourage you from becoming 

part of our great neighborhood.” The district court likewise 

tendentiously read the letter as merely reflecting an innocent 

goal of achieving religious pluralism. But appending “I am 

not discriminating” to the end of an otherwise discriminatory 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 97

statement does not preclude a jury from drawing a 

reasonable inference of discrimination. 

Because a reasonable jury, construing the evidence in the 

light most favorable to the Morrises, could have concluded 

that the HOA expressed a “preference, limitation, or 

discrimination” against the Morrises’ religion, I would 

reverse the district court’s grant of judgment as a matter of 

law to the HOA on the Morrises’ § 804(c) claim.

III

A district court “may grant a new trial, even though the 

verdict is supported by substantial evidence, if the verdict is 

contrary to the clear weight of the evidence, or is based upon 

evidence which is false, or to prevent, in the sound discretion 

of the trial judge, a miscarriage of justice.” Hanson v. Shell 

Oil Co., 541 F.2d 1352, 1359 (9th Cir. 1976) (internal 

citations and quotations omitted). The district court’s 

decision to conditionally grant a new trial under Federal 

Rule of Civil Procedure 59 is subject to review for abuse of 

discretion. Experience Hendrix L.L.C. v. 

Hendrixlicensing.com Ltd, 762 F.3d 829, 845 (9th Cir. 

2014).

Our standard for reviewing alleged abuses of a district 

court’s discretion follows a two-step framework. First, we 

review de novo whether the district court identified and 

applied the correct legal rule. United States v. Hinkson, 585 

F.3d 1247, 1261–62 (9th Cir. 2009). If it failed to do so, it 

abused its discretion and our review ends. Id. at 1262. If, 

however, the district court applied the correct legal rule, we 

review its analysis to determine whether it was “illogical”, 

“implausible”, or “without support in inferences that may be 

drawn from the facts in the record.” Id. (internal quotation 

omitted). In conducting this review, we do not ourselves 
98 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

enjoy a similar authority to reweigh the evidence or assess 

the credibility of witnesses. Kode v. Carlson, 596 F.3d 608, 

612 (9th Cir. 2010). We are bound to uphold the district 

court’s assessment unless it is clearly erroneous. Hinkson, 

585 F.3d at 1259–60. In my view, the district court’s new 

trial order was an abuse of discretion under these standards.

One of the grounds given by the district court in granting 

a new trial was its belief that, “despite the Court’s 

instructions,” the jury “undoubtedly considered” the “threats 

made to the [Morrises] and the Christmas program 

attendees,” including Bird’s “death threat,” that the court had 

initially allowed but then ordered stricken. This reasoning is 

flatly at odds with the strong presumption that juries obey 

curative instructions given at trial. Greer v. Miller, 483 U.S. 

756, 766 n.8 (1987). But more importantly, it is predicated 

on a fundamental error: as I have explained, the district court 

abused its discretion in striking that evidence in the first 

place. See supra at 89–90. The district court’s mishandling 

of this evidence taints its overall assessment of the case, 

requiring that its new trial order be set aside.

The district court also justified its grant of a new trial 

based on its across-the-board assertion that all of the HOA’s 

witnesses were credible and all of the Morrises’ witnesses 

were not. On that basis, the court presumably concluded that 

the jury’s verdict was “contrary to the clear weight of the 

evidence,” Hanson, 541 F.3d at 1359, thereby warranting a 

new trial. In my view, the court’s reasoning on this score 

was “illogical” and cannot stand. Hinkson, 585 F.3d at 1262.

The district court’s order indicates that it made classwide judgments as to the credibility of each side’s witnesses 

based on its assessment of a single witness for each side—

namely, Jeremy for the Morrises, and Scott for the HOA. 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 99

Thus, after finding Jeremy “not credible” and Scott 

“convincing and credible,” the court announced that its 

“evaluation of their respective testimony is representative of 

its evaluation of the witnesses in the case more broadly.” 

Given the more nuanced record in this case, this unexplained 

class-wide approach to witness credibility was an abuse of 

discretion. As the above detailed description of the trial 

record makes clear, there were stronger and weaker aspects 

to the testimony of particular witnesses for each side. Given 

that context, a simplistic wholesale rejection of all of one 

side’s witnesses and evidence based on little more than a 

wholesale rejection of one of that side’s witnesses—coupled 

with an equally blunderbuss mirror-image acceptance of the 

entirety of the other side’s testimony—is a clear abuse of 

discretion. 

Accordingly, I would reverse the district court’s decision 

to award the HOA a new trial under Rule 59.

IV

In appropriate cases, the district court possesses a limited 

authority to require the plaintiff to make a choice between 

accepting an award of lower damages or receiving an order 

for a new trial. Fenner v. Dependable Trucking Co., 716 

F.2d 598, 603 (9th Cir. 1983). Such a “remittitur” order is 

ordinarily appropriate when “there is no evidence that 

passion and prejudice affected the liability finding,” 

Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 

(9th Cir. 1987) (emphasis added), but the jury’s assessment 

of damages is “grossly excessive or monstrous, clearly not 

supported by the evidence, or only based on speculation or 

guesswork,” Los Angeles Mem’l Coliseum Comm’n v. 

National Football League, 791 F.2d 1356, 1360 (9th Cir. 

1986) (simplified). 
100 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

In determining whether a remittitur is proper under these 

standards, the district court is bound to construe the evidence 

in the light most favorable to the prevailing party. Fenner, 

716 F.2d at 603. Where the district court has ordered a 

remittitur, we review its decision for abuse of discretion. 

Kode, 596 F.3d at 613. We review both the underlying 

decision to grant a remittitur, id., as well as the money 

damages offered in the remittitur order. See D & S Redi-Mix 

v. Sierra Redi-Mix and Contracting Co., 692 F.2d 1245, 

1249 (9th Cir. 1982). 

Here, the district court ordered remittitur on two 

grounds. First, it considered the jury’s award of damages to 

be purely speculative. Second, it concluded that the jury 

improperly used its punitive damages award to grant the 

Morrises their legal fees. I would reverse the district court 

as to both grounds.

A

The district court concluded that the jury’s award of 

$60,000 in compensatory damages to the Morrises was “not 

supported by the evidence and [was] based on speculation.” 

In particular, it noted that Jeremy was “the sole source of 

support” for the $60,000 figure and that he expressed that he 

was not “positive of that number.” Because the damages 

were to compensate for a future event, i.e., the costs of the 

Morrises’ expected future move out of West Hayden Estates, 

and because Jeremy was not absolutely certain of their value, 

the district court concluded that the award of compensatory 

damages “was both speculative and not supported by the 

evidence.” I disagree.

As an initial matter, this is not a case in which the jury 

awarded compensatory damages that exceeded the 

maximum value sustainable by the evidence produced at 
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 101

trial. See D & S Redi-Mix, 692 F.2d at 1249. Jeremy 

testified that he estimated that his family’s damages would 

be between $60,000 and $80,000, and the jury chose to 

award the lowest amount in that range. A remittitur all the 

way down to a nominal award of $1 would therefore be 

warranted only if Jeremy’s testimony of damages was 

insufficient to support any damages at all. The district court 

thought that was the case here, but that is clearly wrong.

A plaintiff is not required to prove compensatory 

damages with absolute certainty. Rather, he or she need only 

put forward relatively certain evidence of the scope of the 

harm suffered. See Story Parchment Co. v. Paterson 

Parchment Paper Co., 282 U.S. 555, 563 (1931). The 

Morrises’ evidence in this case, although limited, satisfied 

that requirement. 

Jeremy testified that he anticipated the costs associated 

with moving out of West Hayden Estates would be between 

$60,000 and $80,000. He clearly articulated his basis for 

calculating that value: it was the sum of “closing costs, plus 

moving, cleaning, and so on.” Moreover, there was an ample 

foundation for Jeremy to estimate that value. He had 

purchased and moved into the home roughly four years prior, 

so he would have had personal knowledge of the fair market 

value of the house and of the transaction costs associated 

with a move. He provided a standard and reliable basis for 

his estimate of the closing costs, namely, six percent of the 

sale price of the home. And he was not required to present 

a precise itemized account of damages. See Anderson v. 

Mount Clemens Pottery Co., 328 U.S. 680, 688 (1946) 

(“[T]he rule that precludes the recovery of uncertain and 

speculative damages . . . applies only to situations where the 

fact of damage is itself uncertain.”). Because Jeremy was 

able to provide testimony estimating his damages within a 
102 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

reasonable degree of certainty, there was no basis for the 

district court to conclude that the Morrises had suffered a 

total failure of proof on the measure of their damages. See 

Holland Livestock Ranch v. United States, 655 F.2d 1002, 

1006 (9th Cir. 1981) (“Once injury has been proven, the fact 

that damages are not susceptible to precise measurement 

does not preclude recovery.”).

The district court’s emphasis on the fact that the damages 

were based on a future contingent event was likewise 

misplaced. This is not a situation where future damages are 

uncertain and speculative because the plaintiff has 

introduced no evidence whether the plaintiff’s anticipated 

contingency would come to pass. See Silver Sage Partners, 

Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 824 (9th 

Cir. 2001). To be sure, Story Parchment makes clear that 

damages may not be awarded where the fact of damage 

itself—entirely apart from the quantum of damage—is 

uncertain. Story Parchment, 282 U.S. at 562–63. But here, 

it was clear from the record that the Morrises’ choice of 

home was contingent upon their ability to host their 

Christmas event. Had they known, prior to moving in, that 

they could not host the event, it is unlikely that they would 

have chosen this home. This, coupled with Jeremy’s 

unrebutted testimony that they planned to move, was 

sufficient to create a “reasonable certainty” of the existence 

of future monetary harm to support compensatory damages 

under this theory. Accordingly, because the district court 

erred in concluding that the jury’s award of compensatory 

damages was totally unsupported by the evidence, I would 

reverse its order of remittitur.
MORRIS V. W. HAYDEN ESTATES FIRST ADD. 103

B

The district court also erred in remitting the jury’s award 

of $15,000 in punitive damages to $1. If the jury’s award of 

compensatory damages here is upheld, the amount of 

punitive damages awarded would be well within permissible 

bounds. See State Farm Mut. Auto. Ins. Co. v. Campbell, 

538 U.S. 408, 425 (2003). Nonetheless, the district court 

concluded that the punitive damage award should be 

remitted to $1, because “the evidence in this case uniformly 

supports the Homeowners Association’s version of events,” 

and there was no “evidence suggesting that the Homeowners 

Association acted with an evil motive or was reckless or 

callous with respect to Plaintiff’s rights.” The district court 

concluded instead that the jury was likely attempting to 

smuggle an award of legal fees to the Morrises under the 

guise of an award of punitive damages. Each of these 

arguments fails.

The district court’s conclusions that “the evidence . . . 

uniformly supports the Homeowners Association’s version 

of events” and that there was no evidence of the HOA’s 

malign intent are mistaken for all of the reasons that I have 

previously explained. 

Moreover, the district court’s conclusion that the jury 

likely defied the court’s express instruction not to use 

punitive damages to award attorneys’ fees was wholly 

speculative and unsupported by the trial record. As 

previously noted, there is a strong presumption that juries 

follow instructions given at trial, see supra at 98, and there 

is no basis in the record for finding that that presumption was 

rebutted here. The district court noted that the jury 

announced its verdict “[w]ithin minutes” of being told that it 

could not award legal fees, but that does not provide a 
104 MORRIS V. W. HAYDEN ESTATES FIRST ADD.

sufficient basis for concluding that the jury’s modest 

punitive damages award was an illegal award of fees in 

direct violation of the jury’s instructions. 

V

For the foregoing reasons, I would reverse the district 

court’s entry of judgment as a matter of law, its grant of a 

new trial, and its order of conditional remittitur, and I would 

remand with instructions to enter judgment on the jury’s 

verdict and to re-examine the counterclaim in light of the 

jury’s findings. To the extent that the majority does 

otherwise, I respectfully dissent.