Case Name: Christopher Bonhage, et al. v. Hiral Rawson, et al.
Case No.: 2014-1-CV-271558

This is a housing discrimination action brought by Plaintiffs Christopher Bonhage (“Bonhage”) and Brittany Collins (“Collins”) (collectively “Plaintiffs”) against defendant Hiral Hansapriya Rawson (“Rawson”), individually and as a trustee of The Hiral Hansapriya Rawson Living Trust, U/A Dated November 1, 2010, and against Murahari Amarnath (“Amarnath”), Eunice Foster (“Foster”), Stanford Real Estate Networks, LLC dba Amar Realtor, and Silicon Valley Real Estate Corporation dba Keller Williams Palo Alto (collectively “Broker Defendants”). The original complaint in this action was filed October 6, 2014.

The operative Fifth Amended Complaint (“5AC”), filed September 5, 2018, originally asserted twelve causes of action: (1) invasion of privacy under the California Constitution, article I, section 1; (2) housing discrimination in violation of Government Code section 12955, subdivision (a); (3) interference with fair housing rights in violation of Government Code section 12995.7 (alleged against Rawson only); (4) retaliation in violation of Government Code section 12955, subdivision (f) (alleged against Rawson only); (5) making discriminatory statements in violation of Government Code section 12955, subdivision (c); (6) discrimination by a person whose business involves real estate transactions in violation of Government Code section 12955, subdivision (i); (7) aiding and abetting discrimination in violation of Government Code section 12955, subdivision (g); (8) housing discrimination in violation of Civil Code section 51; (9) unlawful business practices in violation of Business and Professions Code section 17200; (10) negligence per se; (11) negligent supervision; and (12) vicarious liability.

The Broker Defendants filed their answer to the 5AC on October 4, 2018.

Defendant Rawson demurred to the 5AC’s tenth, eleventh and twelfth causes of action. On Dec. 11, 2018 the Court (Hon. Zayner), noting that no party had contested the tentative ruling or appeared at the hearing, adopted as the final order the tentative ruling stating that the demurrer to the tenth and eleventh causes of action was sustained with 10 days’ leave to amend and the demurrer to the twelfth cause of action was sustained without leave to amend, with the Court noting that vicarious liability is not an independent cause of action. This order eliminated the twelfth cause of action as alleged against all Defendants (as no such independent claim exists) and, because Plaintiffs did not amend within the 10 days allowed, the tenth and eleventh causes of action have been abandoned by Plaintiffs. The demurrer order made clear that, as then alleged in the 5AC, both the tenth and eleventh causes of action failed to state sufficient facts to support the claims. The Court noted that, as to the tenth cause of action, there is no claim for negligence per se discrimination as a matter of law (discrimination being an intentional act) and that Plaintiffs had failed to adequately allege any duty of care or any ultimate facts regarding how the alleged want of care caused their damages. As to the eleventh cause of action, the Court noted there was no authority for Plaintiffs’ position that a negligent supervision claim could be based on a vicarious liability theory.

Defendant Rawson then filed her original answer to the 5AC on March 14, 2019.

Currently before the Court are two separate motions for summary judgment/adjudication by Defendant Rawson and by the Broker Defendants, filed on March 28, and March 29, 2019 respectively. Almost two weeks after Rawson’s motion was filed, on April 11, 2019, Rawson filed a motion to amend her answer to the 5AC to include additional affirmative defense and include additional facts in support of defenses already asserted. The motion to amend admitted that the motivation for seeking leave to amend was because the already filed MSJ relied in part on defenses and facts not asserted in the operative answer. This Court granted that motion on June 4, 2019. The original hearing date for both motions was June 13, 2019. Both motions were continued to June 20, 2019 on the Courts own motion.

As an initial matter the Court notes that both of Plaintiffs’ oppositions to these motions were late-filed on May 31, 2019. “A trial court has broad discretion to under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765. CCP §437c(b)(2) “forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and case law has been strict in requiring good cause to be shown before late filed [opposition] papers will be accepted” in a summary judgment proceeding. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) The Court has exercised its discretion to consider both of Plaintiffs’ oppositions, although it notes that Plaintiff’s late opposition to the Broker Defendants motion fails to comply with the page limits set forth Rule of Court 3.1113(d) (stating that in a motion for summary judgment/adjudication, no opening or responding memorandum may exceed 20 pages.) The Court notes that no application for prior leave of court to file a longer memorandum pursuant to Rule of Court 3.1113(e) was made by Plaintiffs’ counsel.

Plaintiffs’ unauthorized “supplemental” memorandum in opposition to Defendant Rawson’s motion, filed without prior leave of court on June 4, 2019 at 6:57 PM, has not been considered by the Court.

As a second initial matter the Court finds Plaintiffs’ broad argument that both motions must be denied for improper service to be unpersuasive. The service of both motions was timely under CCP §12c and §437c(a)(2). Defendant Rawson’s motion was properly served on Plaintiffs by personal service on March 29, 2019. The Broker Defendants’ motion was properly served via electronic service on March 28, 2019. Plaintiffs’ argument that electronic service of both motions was mandatory is mistaken. Local (General) Rule 6B became effective on April 29, 2019 and did not apply to the filing of either motion here. Plaintiff Counsels’ argument that the personal service of the Rawson motion should somehow be considered defective because counsel were present in their office during business hours on March 29 is unpersuasive. The Court notes that Plaintiff Counsel Castaneda admits in his declaration that he was aware that documents were delivered that day as he remotely unlocked the office door to allow the process server access to the office. No notice of unavailability for March 28 or 29 was filed by Plaintiffs’ Counsel.

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

With their late-filed opposition to the Rawson motion Plaintiffs’ filed a request for the Court to take judicial notice of three documents (exhibits 1-3) pursuant to Evidence Code §§452(d) and 453. Notice of exhibits 1 and 2 is DENIED as neither document is relevant to the material issues before the Court. Notice of exhibit 3, Rawson’s original answer to the 5AC, is GRANTED pursuant to §452(d) only.

Defendants’ motions for summary judgment/adjudication
The pleadings limit the issues presented for summary judgment or adjudication and such a motion my not be granted or denied based on issues not raised by the operative pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The Court’s June 4, 2019 order granting Rawson’s motion for leave to amend allowed Rawson to assert the added affirmative defenses and additional facts in support of defenses from that point forward and at trial, but it did not and could not retroactively “cure” the already filed MSJ to the extent it made arguments beyond the scope of Rawson’s original answer to the 5AC, the operative answer when the MSJ was filed..

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Rule of Court 3.1350(b) states in pertinent part, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Court’s emphasis.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

The Court cannot evaluate credibility in ruling on summary judgment or summary adjudication. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 881.)

1) Defendant Rawson’s motion
Defendant Rawson’s motion is considered one for summary judgment only, as she has failed to comply with Rule of Court 3.1350(b). Rawson’s Notice of Motion at pp. 2:8-3:6 lists several arguments/grounds for summary adjudication in the alternative that are not “repeated, verbatim,” or at all in Rawson’s separate statement. Rawson’s statement is also not in the format required by Rule of Court 3.1350(h).

As a motion for summary judgment only Rawson’s motion must be denied if there are triable issues remaining as to any of the nine remaining causes of action alleged against Rawson in the 5AC. The Court concludes that there are triable issues remaining and therefore Rawson’s motion for summary judgment only is DENIED. While an analysis of each cause of action is not required on a motion for summary judgment only, at a minimum triable issues remain as to the several of the FEHA-based causes of action as alleged against Rawson.

Plaintiff’s second cause of action alleges a violation of Gov. Code §12955 (see 5AC at 79.) Under Government Code §12955, it is unlawful “[f]or the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.” (Gov. Code, §12955(a).) The California Supreme Court has stated that the prohibition against discrimination on the basis of “marital status,” prohibits a landlord from asking prospective tenants if they are married or refusing to rent to them because they are (or are not) married. (Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143.)

There are two separate theories by which a plaintiff may prove a claim for housing discrimination in violation of the FEHA: by showing that there was disparate treatment (see Gov. Code § 12955.8(a)), or by showing a disparate impact (see Gov. Code § 12955.8(b)). (Sizemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1423.) Plaintiffs’ second cause of action is expressly based on § 12955(a). Conceptually the theory of “disparate treatment is the most easily understood type of discrimination.” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 658, fn. 3.) It simply means that a person is treated less favorably than others because of a protected characteristic. (Id.) An intent to discriminate may be established by direct or circumstantial evidence. (Gov. Code, § 12955.8(a).) Additionally, a person intends to discriminate if familial status “is a motivating factor in committing a discriminatory housing practice even though other factors may have also motivated the practice.” (Id.) As explained by the California Supreme Court, in cases that involve mixed motives, the trier of fact must determine whether discrimination was “a substantial motivating factor/reason” for the adverse action. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

In discrimination cases, usually in the employment context (where the test originates), “California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case of discrimination. Second, if the plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer’s proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

Again a discrimination case may be built on direct or circumstantial evidence, or both. (Morgan v. Regents of University of California (2001) 88 Cal.App.4th 52, 67.) Direct evidence of discrimination takes a case out of the McDonnell Douglas framework. (See Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1144, citing Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121; Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 68 [direct evidence of discrimination renders the shifting burdens of McDonnell Douglas inapplicable].) Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 67.)

Plaintiffs have not presented any direct evidence from which it could be determined that Rawson acted with “discriminatory animus” without inference or presumption. However, the Court cannot conclude that it would be impossible for a finder of fact to reasonably infer from Rawson’s statements about preferring to rent to a “family” and her decision to seek further tenant applications rather than providing a definitive answer as to whether she would rent the house to Plaintiffs after they were the only ones to initially apply to do so that discrimination against Plaintiffs was a substantial motivating factor on her behavior. “If triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer’s adverse employment action, even if the employer’s professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1186; See also Nazir v United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283 [Because proof of discriminatory intent often depends on inferences rather than direct evidence, very little evidence of this intent is necessary to defeat summary judgment, i.e., a judge should not grant summary judgment unless the evidence cannot support any reasonable inference for the plaintiff.])

Given that triable issues remain as to the discrimination claim as alleged against Rawson, triable issues also remain as to the fourth cause of action for retaliation, as the addition of arguably more onerous lease terms (that tenants would now be responsible for pool maintenance, etc.) after Plaintiffs complained of discrimination could be considered retaliation for those complaints, even though Rawson argues that the additional terms were added by her attorney and that she had no involvement with the further attempted lease negotiations. Triable issues also remain as to the fifth cause of action (Making Discriminatory Statements) as, again, a finder of fact might reasonably infer that Rawson’s stated preference for a “family” as tenants implied a bias against unmarried/unrelated tenants. As the Court cannot weigh credibility in ruling on summary judgment, Plaintiffs’ opposing declarations constitute evidence presenting triable issues of material fact as to these claims.

The Court notes that Defendant Rawson submitted objections to Plaintiffs’ evidence with her Reply. These objections do not comply with Rule of Court 3.1354, which requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule. As Defendant Rawson’s objections do not comply with the Rule 3.1354 the Court will not rule on them. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)

Plaintiff’s objections to Rawson’s evidence were submitted in the proper format with separate proposed orders. The Court’s rulings on those objections will be made in those separate orders.

2) Broker Defendants Motion
The Broker Defendants MSJ is GRANTED as follows:

As noted above, Plaintiffs’ argument the both motions must be denied for improper service is rejected as the Court finds service was proper. Their further argument that the Broker Defendants’ motion must be denied in its entirety for lack of any admissible evidence is entirely unpersuasive and Plaintiffs’ objections to the declaration of Defense Counsel R. Jeremie Ginelli and the attached exhibits are OVERRULED. Plaintiffs have failed to identify any authority that supports their specific argument that only an attorney who personally attends a deposition can authenticate marked excerpts from the transcript of such a deposition presented as exhibits in support of a motion.

Plaintiffs’ argument that the Broker Defendants’ Notice of Motion fails to comply with Rule of Court 3.1350(b) is incorrect as a matter of law. The Notice’s reference to “each individual claim” in the alternative request for summary adjudication is adequate as Plaintiffs know very well which causes of action in the 5AC are alleged against the Broker Defendants (all but the third and fourth) and each of these is listed in the Separate Statement in support of the motion. The Broker Defendants’ Notice of Motion (unlike Rawson’s) does not list additional arguments for summary adjudication that are not “repeated, verbatim” in the Separate Statement as required by Rule of Court 3.1350(b).

Finally Plaintiff’s argument that any motion for summary judgment is somehow required to address any discovery responses by the opposing party is incorrect. The Broker Defendants motion is not made on the express basis that Plaintiffs do not possess and cannot reasonably obtain necessary evidence to support claims against them, it is made on the basis that “one or more of the elements of each of the causes of action cannot be separately established.” (Broker Defendants’ Notice of Motion at p. 2:12.)

The Broker Defendants have met their initial burden to establish through admissible evidence (the Ginelli declaration and its attached exhibits) that they are entitled to summary judgment on the basis that “one or more of the elements of each of the causes of action cannot be separately established.” They have met their initial burden to show that none of their alleged conduct (as opposed to Rawson’s alleged conduct) can be construed as an actionable invasion of privacy even if it is assumed for purposes of argument that Hill v. Nat’l Collegiate Ath. Ass’n (1994) 7 Cal.4th 1, is applicable in these circumstances, as “[a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Id. at p. 37.)

The Broker Defendants have also met their initial burden to show that Plaintiffs’ FEHA claims fail as alleged against them as a matter of law as they do not qualify as “owners” of the property for purposes of the statue under the facts alleged as they did not own the property or have the right to determine whom to rent the property to, only Rawson did. They have also met their initial burden to establish that they did not make or publish any discriminatory statements. (See Broker Defendants’ UMF nos. 25-27, undisputed by Plaintiffs, establishing that Afsin Bubul rather than the Broker Defendants, posted an advertisement for the property on Craigslist.com with language referring to a “family.”)

In addition the Broker Defendants have met their initial burden to show that the eighth cause of action for violation of the Unruh Act fails as alleged against them as they did not have the independent authority to rent the subject property to Plaintiffs. As a result they have also met their burden to show that they are entitled to judgment on the ninth cause of action for unfair business practices, which is entirely dependent on the preceding causes of action alleged against them.

As explained above, the twelfth cause of action was previously eliminated on demurrer and Plaintiffs’ failure to amend the tenth and eleventh causes of action within the time allowed after the Court determined that they both failed to states causes of action as alleged in the 5AC means those claims are no longer at issue. Even if the eleventh cause of action were still at issue it fails as alleged in the 5AC against the Broker Defendants because it is entirely dependent on the preceding claims to establish injury proximately caused by the alleged negligent supervision.

When the burden shifts to Plaintiffs on the Broker Defendants’ motion Plaintiffs are unable to raise any triable issues of material fact. The brief filed by Plaintiffs in opposition to this motion appears to be the result of a poorly executed attempt by Plaintiffs’ counsel to repurpose their brief filled in opposition to Rawson’s motion as the basis of a brief opposing this motion. Apart from the initial arguments of improper service, lack of supporting evidence, etc. the bulk of the brief (from p. 4:10 [“III. Substantive Challenges”] forward) does not specifically address the arguments made by the Broker Defendants, let alone refute them, and it largely fails to even reference them as opposed to Rawson. (See, for example, Opp. at p. 8:15-16 [“Rawson’s admission]; p. 9:4 [“Rawson argues”]; p. 9:16 [“Rawson’s own expert admits”]; p. 10:1 [“Her housing expert”]; p. 11:1 [“Next, Rawson argues”]; p. 11:24 [“Second, Rawson attacks”]; p. 12:7 [“Rawson contends”]; p. 12:19 [“Rawson’s argument ignores”]; p.12:28 [“Rawson argues”]; p. 13:4 [“Rawson ignores”]; p. 13:25 [“Here, Rawson cannot rely”]; p. 14:5 [“Rawson’s countervailing interest argument”]; p. 16:24 [“Rawson is likely to argue”]; p. 19:7 [“Moving Parties proffered legitimate reasons for her actions” Court’s emphasis]; p. 19:18-19 [“her proffered reasons for preferring a family were a mere pretext”]; p. 20:23 [“Despite Rawson’s statement . . . she is of course aware”].)

Plaintiffs also fail to submit any evidence in opposition to this motion that raises any triable issues of material fact as to the Broker Defendants’ liability. Plaintiffs have submitted three declarations in opposition to the Broker Defendants’ motion. The Declaration of Plaintiff Counsel Castaneda purportedly submitted in opposition to this motion states (at ¶1) that the declaration is “submitted in support of plaintiffs’ opposition to Hiral Nasapriya Rawson’s motion for summary judgment or in the alternative, summary adjudication.” The rest of the declaration only addresses the (incorrect) argument that the Broker Defendants were somehow required to address Plaintiffs’ discovery responses by stating (at ¶ 2) “Defendants propounded and Plaintiffs responded to form interrogatories, requests for admission, and document production.” The virtually identical declarations submitted by both Plaintiffs fail to raise any triable issues as to the claims alleged against the Broker Defendants. Neither declaration can be reasonably construed as evidence that “would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Madden, supra, 165 Cal.App.4th at p. 1272.)

The Court notes that the Broker Defendants have submitted evidentiary objections to the declarations submitted by Plaintiffs in opposition to this motion. As these objections do not comply with Rule of Court 3.1354, which (as already explained above) requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule, the Court will not rule on the objections. Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)