Unreported / Non-Citable
Background
Pro se plaintiff Kai Lu sued MidPen Housing Corporation in the Northern District of California, seeking damages and injunctive relief for alleged housing discrimination. Lu asserts retaliation and failure-to-accommodate claims under the Fair Housing Act and a retaliation claim under Section 504 of the Rehabilitation Act. The conduct alleged occurred between March 2022 and July 2022, but Lu filed this action on January 28, 2026. The court applied a two-year limitations period to the Fair Housing Act claims, citing 42 U.S.C. § 3613(a)(1)(A), and a three-year period to the Rehabilitation Act claims, citing Ninth Circuit authority applying the period for California Government Code section 11135 to similar claims.
The court had already dismissed Lu's first amended complaint as untimely, explaining that without knowing when HUD resolved her administrative complaint it could not tell whether the claims expired before suit. MidPen then moved under Rule 12(b)(6) to dismiss the second amended complaint, again on timeliness grounds. The court accepted well-pleaded facts as true but not conclusory allegations. It granted MidPen's request for judicial notice of related state court records, limited to their existence and contents. The question was whether any tolling theory made the claims timely.
The Court’s Holding
The court granted the motion, concluding that the untimeliness of the Fair Housing Act and Rehabilitation Act claims is apparent on the face of the second amended complaint. Absent a tolling exception all claims were time-barred, and Lu offered three, none of which succeeded at the pleading stage.
First, Lu sought tolling while a HUD administrative complaint was pending. She attached a screenshot of a file purportedly showing a HUD complaint filed on June 1, 2023, but did not allege when HUD resolved it. As in the earlier order, the court therefore could not determine whether the claims expired before suit, so timeliness was not plausibly shown. Second, Lu argued that the Fair Housing Act claims reflected a continuing violation lasting to an unspecified date. The court found no support in the allegations and noted that the pleading added no new facts undermining its earlier conclusion that the limitations period began to run in July 2022. Third, Lu invoked equitable tolling, stating that she diligently pursued relief. The court held that filing the HUD complaint and appealing a state court unlawful detainer judgment did not plausibly warrant tolling, because the HUD resolution date was still missing and the unlawful detainer action involved issues distinct from her federal claims.
The dismissal is without prejudice and with leave to amend. Any amended complaint is due within 35 days of the order, and Lu should file one only if it cures the timeliness problems. If she files a third amended complaint that does not cure them, or files none, the court stated it will dismiss her claims with prejudice. That is a warning about future action, not a present dismissal with prejudice.
Key Takeaways
- A court may dismiss under Rule 12(b)(6) as time-barred when untimeliness is apparent on the face of the complaint, as here, where conduct alleged through July 2022 preceded a January 2026 filing by more than three years.
- A plaintiff relying on tolling during a HUD proceeding must plead when that proceeding ended; alleging only a filing date does not let the court decide whether the limitations period expired.
- A continuing violation theory requires factual allegations of conduct extending beyond the original period; a bare assertion of an unspecified end date was not enough.
- Appealing a state unlawful detainer judgment did not support equitable tolling of the federal housing claims because that case involved distinct issues.
- This is a dismissal without prejudice with leave to amend, not a final judgment, and the court has warned that failure to cure the timeliness defects will lead to dismissal with prejudice.
Why It Matters
The order shows how a court tests tolling at the pleading stage for a self-represented plaintiff. Its focus is missing facts, especially the date HUD resolved the administrative complaint, which the court flagged in its earlier order and Lu again did not supply. A plaintiff relying on administrative or equitable tolling should plead the dates and circumstances that make the claims timely.
This is an unreported district court order with no binding precedential effect. It does not decide whether tolling would apply if the missing facts were alleged. What remains open is whether Lu files, within 35 days, a third amended complaint that cures the timeliness defects.