Anti-Discrimination Laws in Action: Fair Housing in

Eviction DefenseNisha Vyas, Western Center on Law and Poverty

Scott Chang, Housing Rights Center

Lucia Choi, Disability Rights California

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Land Acknowledgement / Native-Land.ca

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Roadmap

• Evictions, Housing Insecurity, and COVID-19’s Impact

• Overview of Fair Housing Laws

• Using Administrative Complaints

• Reasonable Accommodation Requests

• Affirmative Litigation and Unlawful Detainers

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Populations facing housing insecurity in California before COVID-19

• Low income women, especially women of color

• Single parent families

• Domestic violence survivors

• Children

• Seniors

• Immigrants, esp., undocumented & mixed status households

• Veterans

• People with disabilities

• Transgender & nonbinaryyouth & adults

• Black and Brown families

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The pandemic’s impact on housing insecurity

Communities of color:

- are under the most economic stress from COVID-related job losses, - have fewer resources to weather the COVID-19 crisis, and - are less able to qualify for financial relief.

“This triple jeopardy harms families already in a precarious financial situation and greatly weakens the economic and social base of neighborhoods.”

[Paul Ong et al., Neighborhood Inequality in Shelter-in-Place Burden: Impacts of COVID-19 in Los Angeles, UCLA Ctr. for Neighborhood Knowledge, 8 (Apr. 2020).]

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The pandemic’s impact on housing insecurity (cont’d)

Traditionally marginalized & vulnerable populations at heightened risk:

• People with disabilities have historically higher rates of unemployment than the general population

• LGBTQ people are at high risk of eviction and homelessness

• Undocumented immigrants do not qualify for unemployment insurance or receive stimulus checks

• Households with children among the most vulnerable to eviction due to inability to pay rent.

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The threat of mass evictions

Risk of deepening segregation

Accelerate displacement

Permanent loss of affordable, rent stabilized units

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Overview of Fair Housing Laws

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Fair Housing Laws

• Intended to address both individual discrimination cases and systemic discrimination

• Broad standing

• Intentional discrimination and disparate impact

• Full range of remedies – injunctive relief, compensatory and punitive damages

• Testing and fair housing organizations

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Fair Housing Act – Protected Classes

• Race, color, religion, sex, national origin, familial status (children under the age of 18, pregnant, or becoming a legal custodian), and disability

42 U.S.C. §§ 3601-3619

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Fair Employment and Housing Act –Protected Classes

• Race • Color • Ancestry • Religion • Sex • Gender • Sexual Harassment • Sexual Orientation • Gender Identity •Gender Expression • National Origin • Source of Income (incl. Section 8)• Marital Status • Familial Status (children under the age of 18, pregnant, or becoming a legal custodian) • Disability (mental and/or physical) • Medical Condition • Military or Veteran • Genetic Information

Cal. Gov. Code §§ 12927‐12956.2

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Polling Question #1

Which of the following are a protected class under California’s Fair Employment and Housing Act?”

A. Gender Expression

B. Source of Income

C. Military service /veteran status

D. Genetic Information

E. All of the above

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Unruh Civil Rights Act – Protected Classes

• Full and equal accommodations, advantages, facilities, privileges, or services in all business establishments

• Intentional discrimination in housing

• Additional Protected Classes:

- Primary Language

- Immigration Status

- Age

- Citizenship

Civ. Code § 51

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Unlawful Housing Practices -Evictions• Failure to make reasonable accommodations

• Evicting based on a protected class

• Harassing based on a protected class

• Failing or delaying maintenance or repairs based on a protected class

• Limiting the use of privileges, services or facilities

• Steering based on a protected class

• Discriminatory statements

24 CFR §§ 100.60-100.600; 2 CCR §§ 12005-12271

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HUD/DFEH Complaints

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HUD/DFEH Complaint

• Alternative to private lawsuits

• Can represent complainants

• One year deadline to file

• Compensatory damages, injunctive or equitable relief, and civil penalties in the public interest

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DFEH Complaint – Staying Power

• Cal. Gov. Code Sec. 12974. Civil Action for Temporary or preliminary relief; • Whenever a complaint is filed [and] the department concludes on the basis of a preliminary investigation

that prompt judicial action is necessary to carry out the purposes of this part, the director or their authorized representative may bring a civil action for appropriate temporary or preliminary relief pending final disposition of such complaint.

• Cal. Gov. Code Sec. 12983. Actions to Enjoin property owner from taking further action regarding property

• The department at any time after a complaint is filed with it and it has been determined that probable cause exists for believing that the allegations of the complaint are true and constitute a violation of this part, may bring an action in the superior court to enjoin the owner of the property from taking further action with respect to the rental, lease, or sale of the property, as well as to require compliance with Section 12956, until the department has completed its investigation and made its determination; but a temporary restraining order obtained under this section shall not, in any event, be in effect for more than 20 days

• Cal. Gov. Code Sec. 12956. Retention of Records upon notice of complaint• Upon notice that a verified complaint against it has been filed under this part, any owner of housing

accommodations shall maintain and preserve any and all rental records or any other written materials relevant to the complaint,

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Reasonable Accommodations: A Tool in

Housing Advocacy

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Disability Discrimination = Defense to Unlawful Detainer• Disability: protected class under Federal Fair Housing Act and CA’s FEHA

• Discrimination = affirmative defense to unlawful detainer • Defense/Answer: By serving defendant with the notice to quit or filing the complaint,

plaintiff is arbitrarily discriminating against the defendant in violation of the Constitution or the laws of the United States or California

• Abstract Inv. Co. v. Hutchinson (1962) 204 Cal.App.2d 242; Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 721.

• Includes denying reasonable accommodations • Defense/Answer: Defendant is a qualified tenant with a disability. Defendant asserts

that Plaintiff(s) were at all times aware of tenant’s disabilities. Accommodation is necessary to afford Defendant equal opportunity to use and enjoy its home. Tenant requested but Plaintiff failed to provide a reasonable accommodation in violation of the Fair Housing Act 42 U.S.C. §3604, California Fair Employment & Housing Act Cal. Gov. Code §12900 et. seq. Rehabilitation Act §504 of 1973. 42 U.S.C. §12104 seq. (Americans with Disabilities Act).

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Reasonable Accommodation

• A change in rules, policies, or practices that may be necessary to afford a

person with a disability equal opportunity to use and enjoy a dwelling

• Housing providers must grant reasonable accommodations for people with

disabilities. 42 U.S.C. § 3604(f)(3); Cal. Gov’t Code § 12927(c)(11)

• Examples:

• Ability to pay rent on the 5th of the month instead of the 1st because disability-related

income received later in the month

• Accommodation for tenant with hoarding and cluttering who failed their unit inspection

in subsidized housing

• Second chance for tenant who violated their lease by yelling at other tenants, when

the event was related to a mental health disability

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Method and Timing of Request

• Reasonable accommodations do not need to made in a particular manner or at a particular time. It can be made orally, but better to request in writing.

• Can be requested at any time, including during litigation, at or after trial

• 2 CCR Section 12176(c)(3)

• No “Magic Words” • “[t]he statute does not require the [disabled individual] to speak any

magic words before he is subject to its protections. The [individual] need not mention the ADA or even the term ‘accommodation.’” Prillman v. United Airlines, Inc., (1997) 53 Cal. App. 4th 935

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Elements

• Tenant has a disability

• The accommodation must be necessary because of the disability

• “nexus”

• An accommodation is “necessary” when it affirmatively enhances the tenant’s quality of life by ameliorating the effects of the disability. Bronkv. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)

• The accommodation must not create an undue burden, fundamental alteration, or a direct threat to health and safety

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Disability Definition(s)

• Federal• A physical or mental impairment or condition that substantially limits

one ore more major life activities

• A record of having such impairment or being regarded as having such an impairment

• See 42 U.S.C. § 3602(h)

• California • Broader than federal definition

• For example, includes “medical condition,” uses “limits” instead of “substantially limits”

• See Gov Code § 12926

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Exceptions: Undue Burden and Fundamental Alteration

• Once the person with a disability has established the existence of a disability and the need for an accommodation, then the landlord must grant the accommodation UNLESS:

• It would create an undue administrative or financial burden or

• It would fundamentally alter the service that the landlord provides

• “Accommodations need not be free of all possible cost to the landlord.” Giebler v. M & B Associates, 343 F.3d 1143, 1146-1147 (9th Cir. 2003)

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Exception: Direct Threat

• The Landlord does not have to provide the requested accommodation if doing so would “constitute a direct threat to the health or safety of others (i.e. a significant risk of bodily harm) or would cause substantial physical damage to the property of others, and such risks cannot be sufficiently mitigated or eliminated by another reasonable accommodation.” 2 CCR 12179(a)(5); see also 42 U.S.C. §3604(f)(9)

• Must be based on objective evidence, not speculation or stereotypes

• Must look at nature, duration, severity of risk of injury; probability injury will occur; whether accommodations would sufficiently mitigate risk

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Interactive Process

• If the landlord believes that the requested accommodation would create an undue burden, fundamental alteration, or direct threat, the landlord must engage in an interactive process with the tenant to explore whether an alternative accommodation would meet the person’s needs

• Primary consideration should be given to the RA request as made by the person with a disability

• Joint Statement of HUD and DOJ: Reasonable Accommodations Under the Fair Housing Act, May 17, 2004. http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (pg 7, question 7)

• Auburn Woods I Homeowners Ass’n v. Fair Employment and Housing Comm’n, 121 Cal. App. 4th 1578, 1598, 18 Cal. Rptr. 3d 669, 688 (3d Dist. 2004).

• Landlord may request information/documentation to demonstrate the existence of a disability, the need for the accommodation, and/or the relationship between the disability and accommodation in certain circumstances.

• Unless the disability and need for accommodation is obvious

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Drafting a Reasonable Accommodation Request: Checklist • Citation to the relevant statutes and regulations

• Statement that LL is a covered entity

• Description of a client’s disability – not necessary to state specific diagnoses, medications, treatment regimen

• Description of the requested accommodation

• Description of why the client needs the accommodation, and why the disability can be accommodated by the request

• Explanation of why the requested accommodation would not create an undue burden or fundamental alteration

• Reminder of the LL’s obligation to engage in the interactive process

• Request for a response by a particulate date

• Tip: Do not phrase the request as a settlement offer. Be clear that this is a request for an RA under fair housing laws

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Affirmative Litigation and Unlawful Detainers

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Evictions and Affirmative Litigation

• Evictions and threats of eviction may be basis of affirmative litigation.

Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1223 (11th Cir. 2016); Martinez v. Optimus Props., LLC, No. 2:16-cv-08598-SVW-MRW, 2017 U.S. Dist. LEXIS 135395, at *9 (C.D. Cal. Mar. 14, 2017)

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Strategic Considerations

• Anti-injunction Act: Federal court cannot enjoin proceedings in state court. Ortiz v. California, 785 F. App'x 477, 477 (9th Cir. 2019)

• Win the race to the courthouse – file first in federal court and then file TRO. Johnson v. Macy, No. CV 15-7165 FMO (ASx), 2015 U.S. Dist. LEXIS 174780, at *13 (C.D. Cal. Oct. 23, 2015)

• Letter to counsel after filing

• OR could defend unlawful detainers to obtain evidence to support fair housing claims

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Collateral Estoppel

• Re-litigation is collaterally estopped when:

• The issue decided in a prior adjudication is identical with that presented in the action in question;

• There was a final judgment on the merits not just based on a technical or formal defects; and

• The party against whom the plea is asserted was a party or in privity with a party to the prior adjudication.

Clemmer v. Hartford Ins. Co. (Cal. 1978) 22 Cal. 3d 865.

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Collateral Estoppel

• Factors:

• length of the "summary" unlawful detainer hearing

• scope of discovery by the parties

• quality of the evidence

• general character of the action

• comprehensive superior court record replete with precise findings of fact

Wood v. Herson (1974) 39 Cal.App.3d 737

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Fair Housing and Collateral Estoppel

• Insufficient record of full and fair adversary hearing on discrimination defense precludes collateral estoppel or res judicata. Stein v. Braum Inv. & Dev., Inc., 244 F. App'x 816, 819 (9th Cir. 2007)

• Offensive Use of Collateral Estoppel. McAlister v. Essex Prop. Trust , 504 F. Supp. 2d 903, 906 (C.D. Cal. 2007)

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