ASHLEY MCCLENDON V. PETER BRESLER

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2022
• Docket: 22-55068
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ASHLEY CHRISTINA MCCLENDON, No. 22-55068

Plaintiff-Appellant, D.C. No. 2:20-cv-07758-RGK-GJS v.

PETER BRESLER, as an Individual and as MEMORANDUM* the Trustee of the Bressler Trust,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted November 14, 2022 Pasadena, California

Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Ashley McClendon appeals the district court’s grant of partial summary

judgment and judgment in favor of Peter Bresler following a bench trial. Bresler

denied McClendon’s rental application because of his “no dogs” policy, even after

it was disclosed that McClendon’s dog was “a verified emotional support animal

covered . . . as a reasonable accommodation.” McClendon alleges that Bresler

discriminated against her based on her disability in violation of the Fair Housing

Act (“FHA”), 42 U.S.C. §§ 3604(f)(3), 3604(c), and California’s Fair Employment

and Housing Act (“FEHA”), Cal. Gov’t. Code §§ 12927(c)(1), 12955(c).

McClendon also asserts a related claim of negligence. The district court found that

Bresler did not violate the FHA or FEHA. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part, and reverse and remand in part.

1. The district court erred in granting partial summary judgment on

McClendon’s reasonable accommodation claims under the FHA and FEHA

because there is a triable issue of fact as to whether Bresler reasonably should have

known of McClendon’s disability. To prevail on a reasonable accommodation

claim under the FHA, 42 U.S.C. § 3604(f)(3), a plaintiff must prove: (1) the

plaintiff or his associate has a disability within the meaning of 42 U.S.C. §

3602(h); (2) the defendant knew or should reasonably be expected to have known

of the disability; (3) an accommodation may be necessary to afford the disabled

person an equal opportunity to use and enjoy the dwelling; (4) the requested

2 accommodation is reasonable; and (5) the defendant refused to make the requested

accommodation. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453

F.3d 1175, 1179 (9th Cir. 2006).

Only the second prong—whether Bresler knew or reasonably should have

been expected to know of McClendon’s disability—is in dispute. A genuine issue

of material fact exists as to whether Bresler knew or reasonably should have been

expected to know of McClendon’s disability when he failed to make a reasonable

accommodation for her support dog, which precludes summary judgment.

Knowledge of a housing applicant’s disability status can be actual or

constructive, and a “prospective tenant who requests accommodation[s] for a

service animal need not affirmatively identify his or her disability to trigger FHA

protection.” Or. Bureau of Lab. and Indus. ex rel. Fair Hous. Council of Or. v.

Chandler Apartments, LLC, 702 Fed. Appx. 544, 547 (9th Cir. July 26, 2017). For

example, statements such as “I have a therapy animal” or “I have an assistance

dog” should reasonably place a building manager on notice of the individuals’

disability statuses. Id.

Here, although McClendon never affirmatively identified her disability, her

co-applicant Sarah Gailey’s use of the terms “verified support animal,” “reasonable

accommodation,” and “discriminat[ion]” in her emails to Bresler, and Bresler’s use

of the phrase “service dog” are evidence that Bresler should have known of

3 McClendon’s disability status, which he disputes with contrary evidence. And the

fact that McClendon’s co-applicant Gailey, and not McClendon herself, made

these statements is of no import because the FHA permits any “aggrieved person”

who “claims to have been injured by a discriminatory housing practice” to bring a

housing discrimination suit. 42 U.S.C. §§ 3602(i); 3613(a). Here, McClendon

claims such injury when Bresler denied her and Gailey’s housing application

because of McClendon’s support animal.

Because the district court erred in granting partial summary judgment on

McClendon’s reasonable accommodation claims, we must also reverse and remand

on McClendon’s negligence claim. A landlord owes “the general public a duty to

operate the management of the subject property in a manner that [is] free from

unlawful discrimination.” Hous. Rts. Ctr. v. Snow, No. 05-cv-4644-SGL(JTL),

2007 WL 91148, at *3 (E.D. Cal. Jan. 3, 2007). Consequently, a landlord’s failure

to comply with the FHA’s reasonable accommodation requirement constitutes a

breach of the duty not to discriminate in the rental of a dwelling. S. Cal. Hous. Rts.

Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1069 (C.D.

Cal. 2005). Therefore, a question of fact remains as to whether Bresler acted

negligently toward McClendon by failing to reasonably accommodate her service

dog in violation of the FHA.

4 2. The district court did not clearly err when it concluded that Bresler’s

statement—“[m]y policy has been not to accept dogs, even if service dogs”—did

not indicate an impermissible preference based on disability in violation of the

FHA and FEHA. It is unlawful to “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 . . . handicap.” 42

U.S.C. § 3604(c); see also Cal. Gov’t Code § 12955(c). A statement violates

§ 3604(c) if an ordinary reader would interpret the statement as indicating a

preference for or against a protected group. Iniestra v. Cliff Warren Invs., Inc., 886

F. Supp. 2d 1161, 1169 (C.D. Cal. 2012) (citing United States v. Hunter, 459 F.2d

205, 215 (4th Cir. 1972)).

We agree with the district court that an “ordinary reader would not readily

assume that by preferring a renter without a dog, [Bresler] also implicitly

suggest[ed] that he prefers a renter without a handicap.” Bresler’s policy “not to

accept dogs, even if service dogs” reasonably indicates that he has a preference

against dogs, but not necessarily renters with disabilities who use support animals.

As the district court reasoned, finding that Bresler’s statement indicated a

preference for renters without a disability is “too tenuous” an assumption.

According, we REVERSE the district court’s partial grant of summary

judgment on McClendon’s reasonable accommodation claims and negligence

5 claim and REMAND to the district court for proceedings consistent with this

memorandum. We AFFIRM the district court’s conclusion that Bresler’s

statement did not indicate an impermissible preference in violation of the FHA or

FEHA. Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.