McDonald v. Coldwell Banker

543 F.3d 498, 2008 U.S. App. LEXIS 19247, 2008 WL 4149145

Opinions

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge HAWKINS.

O’SCANNLAIN, Circuit Judge:

We must decide whether a potential home buyer has established a prima facie claim for discrimination against the seller’s listing agents, under various federal and state statutes, for a rejected offer where she and they were of different races.

I

Pamela McDonald, an African-American, sought to buy a house in the Shasta-Redding, California area for herself and her children in 2002. Her real estate agent Kanya Coleman, also an African-American, contacted First Shasta Real Estate (“First Shasta”), a franchisee of Cold-well Banker Real Estate (“Coldwell”), and spoke with First Shasta agent Tom Gallagher, a Caucasian, over the phone. They planned to meet to view homes for sale. Prior to the meeting with Gallagher, Coleman prepared a pre-approval letter on her stationery confirming that McDonald qualified for a real estate loan of up to $180,000. The approval was “subject to an acceptable appraisal at or above the purchase price.... ” McDonald’s monthly income was approximately $3,000 and she had cash on hand in the amount of $20,000.

On August 2, 2002, Coleman and McDonald met with Gallagher for the first time. According to both Coleman and McDonald, Gallagher did not express the same enthusiasm he had when speaking to Coleman on the phone. Gallagher showed McDonald a number of listings, including the 2075 Galaxy Way property at issue in this case. After viewing that house, Coleman and McDonald claim that Gallagher offered to show them additional properties that he believed might be more “suitable” for McDonald and her family, but the properties were “less upscale.” However, it is undisputed that Coleman, alone, picked out the houses McDonald looked at.

McDonald particularly liked the Galaxy Way property, which had been listed for sale at $139,000 for over six weeks and Coleman drew up an offer. Coleman told Gallagher and his broker, Richard Mattioli, also Caucasian, that her client needed to finance one hundred percent of the purchase price, but in return she was willing to offer more money than the seller was asking. McDonald tendered a $1,000 good faith deposit.

While Coleman was drafting the offer McDonald claims that Gallagher, noting her use of a walking cane, inquired about how she “became disabled” and the demographics of where she lived.

McDonald’s initial offer on the property was for a purchase price of $153,890, of which $138,501 would be paid directly to Moore (funded by a pre-approved loan and a $1,000 deposit by McDonald) and $15,389 would be carried by Moore (secured by a second deed of trust). The offer provided that McDonald would receive a $4,500 credit at closing. Gallagher and Mattioli experienced doubts about the proposal. They had not done seller carrybacks for years and felt it was not necessary in their market.¹ They decided to talk it over with the seller’s agent, David Woodfill, a Caucasian, to see if he thought the offer was worth presenting to his client, Glenn Moore, a Caucasian, the owner and seller of the Galaxy Way property. Woodfill said Moore wanted all cash and was not interested in “carrying paper.” Both Woodfill and Moore were also concerned that the McDonald offer would not close escrow because the property would not appraise for more than ten percent above the listing price. Woodfill told Gallagher and Mattioli that the McDonald offer would be unacceptable to Moore, so they did not present it to Woodfill or Moore in written form. In any event, Coleman faxed the offer to Woodfill without modification, despite having been told that Moore would not accept the carryback provision. A few days later, Moore accepted another offer, with no carryback and no refund of closing costs, at slightly less than the asking price. The ultimate buyer, John Randall Donoghue, was Caucasian.

McDonald filed a complaint against Gallagher, Mattioli, Shasta and Coldwell Banker (collectively “listing agents”), but not against Woodfill or Moore himself, with the California Department of Fair Employment and Housing (“DFEH”), which found no evidence of discrimination. Its letter of July 2004 stated:

“Based on the evidence obtained during the investigation, the DFEH has determined that reasonable cause does not exist to believe that a discriminatory housing practice has occurred.”

The U.S. Department of Housing and Urban Development (“HUD”) through its Office of Fair Housing and Equal Opportunity, adopted the decision of the DFEH and notified McDonald that under the provisions of the federal Fair Housing Act, she had two years after the occurrence or termination of the alleged discriminatory housing practice to file suit in federal court. This time limit was tolled during HUD’s investigation.

McDonald filed her federal lawsuit against the listing agents for housing discrimination on the basis of race and disability.² She asserted claims under California’s Fair Employment and Housing Act (“FEHA”), California’s Unruh Act (“Unruh Act”), and the federal Fair Housing Act (“FHA”). Coleman, as McDonald’s real estate agent, sued the listing agents under California Business and Professions Code § 17200, for the commission she lost as a result of the lost sale of the property.

The district court granted summary judgment in favor of the listing agents on all the claims.

II

A

A prima facie case is established under the FEHA where the plaintiff shows that she is a member of a protected class, that she applied and was qualified for a housing accommodation, was denied such housing accommodation, and that similarly situated individuals not in a protected class applied for and obtained housing, or if “[she] provide[s] other circumstantial evidence of discriminatory motive in refusing her the housing accommodation.” Dep’t of Fair Employment and Hous. v. Superior Court, 99 Cal.App.4th 896, 902, 121 Cal.Rptr.2d 615 (Ct.App.2002) (citing Gamble v. City of Escondido, 104 F.3d 300, 304-05 (9th Cir.1997)). A “qualified” purchaser is one who meets the terms of the seller. See Mitchell v. Shane, 350 F.3d 39, 47-48 (2d Cir.2003).

In Mitchell, the potential buyer made an offer that required 90 percent financing, which the seller rejected, expressing a desire to have at most 80 percent financing. Id. at 48. In response, the potential buyer dropped the financing to 80 percent. Therefore, because the potential buyer met the terms of the seller, the buyer was “qualified.” Id.

Here, the undisputed fact is that the seller refused to engage in a seller carryback provision. Indeed, the basis of this refusal was communicated to Coleman, who nevertheless transmitted the offer in writing, unchanged, to the seller’s agent, Woodfill. Because neither Coleman nor McDonald attempted to meet the terms of the seller, they cannot be considered “qualified” for purposes of establishing a prima facie case. Moreover, because the McDonald offer included a seller carryback provision notwithstanding a purchase price ten percent above the list price, she cannot say that she was “similarly situated” to the person who eventually purchased the house for just under the list price amount. In other words, Coleman and McDonald have not produced any evidence to create a genuine issue of material fact regarding whether or not they met the terms of the seller or whether the terms were similar to those met by the ultimate buyer.³

Despite not being similarly situated to the ultimate buyer, McDonald could also try to establish that there is “circumstantial evidence of discriminatory motive in refusing her the housing accommodation.” Dep’t of Fair Employment and Hous., 99 Cal.App.4th at 902, 121 Cal.Rptr.2d 615. A discriminatory motive under the FEHA has been defined as something that “moves the will and induces action.” Caldwell v. Paramount Unified Sch. Dist., 41 Cal.App.4th 189, 199, 48 Cal.Rptr.2d 448 (Ct.App.1995).

However, despite allegations of awkwardness or lack of enthusiasm, neither Coleman nor McDonald has produced any evidence that Gallagher or Mattioli disparaged Coleman or McDonald on account of their race or that Gallagher or Mattioli treated only African-American or disabled individuals the way they treated McDonald. Most significantly, there has been no evidence presented by either Coleman or McDonald that the ultimate buyer in this case was aided by or was a customer of Gallagher or Mattioli. In other words, there is no evidence that any of the listing agents acted with the intent to secure the purchase of the house by a person who is of a different race than McDonald.⁴

Because Coleman and McDonald have failed to produce any evidence establishing that McDonald was “qualified,” “similarly situated” or that Gallagher or Mattioli had a “discriminatory motive”⁵ they cannot establish a prima facie case under FEHA based on either race or disability.⁶

B

With respect to the FHA claim, the standard of proof and analysis applied in a disparate treatment ease are the same as those applied in a FEHA case.⁷ See Gamble, 104 F.3d at 305. The plaintiff must first establish a prima facie case by showing: (1) she is a member of a protected class; (2) she applied for a house and was qualified to buy it; (3) the home sale was denied despite her being qualified; and (4) defendant approved a home sale for a similarly situated party during a period relatively near the time plaintiff was denied the house. Id.

For the reasons discussed in the FEHA claim analysis (1) McDonald was not a qualified buyer within the meaning of the FHA; and (2) McDonald was not similarly situated to the party who purchased the home. Thus, McDonald failed to establish a prima facie FHA claim.

C

Coleman’s unfair competition claim is based on California Business and Professions Code § 17200, which states that “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice....” Cal. Bus. & Prof.Code § 17200. Because neither Coleman nor McDonald has produced any evidence of fraud or illegal activity, in order to prevail, Coleman must establish that Gallagher and Mattioli acted unfairly towards her or McDonald.

An unfair business practice is one that either “offends an established public policy” or is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530, 206 Cal.Rptr. 164 (Ct.App.1984), abrogated on other grounds Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 186-87 & n. 12, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999).

Coleman mainly rests her § 17200 claim on alleged discrimination by Gallagher and Mattioli; however, as mentioned above, there is no evidence which would allow a reasonable jury to return a verdict in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, despite Coleman and McDonald’s characterization of the listing agents’ actions, they offer no factual evidence upon which a reasonable jury could return a verdict for them finding that a failure physically to convey McDonald’s offer was “immoral, unethical, oppressive or unscrupulous.” Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d at 530, 206 Cal.Rptr. 164.

D

Finally, we turn to the question of whether Coldwell Banker can be held liable under a principal/agent theory.

Generally, a finding of vicarious liability is determined by traditional common law principles. Meyer v. Holley, 537 U.S. 280, 282, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). Because there is no evidence of illegal conduct on the part of Gallagher, Mattioli or First Shasta, there is no conduct for which Coldwell could be held vicariously liable.

Ill

The district court’s grant of summary judgment in favor of the listing agents on all claims is

AFFIRMED.

1 . Contrary to the assertions of the dissent, there is no evidence in the record to support its contention that a seller carryback is a "condition common to residential real estate transactions,” especially with respect to the real estate market at issue here. Dissent at 12665.

2 . In her claims before the DFEH and HUD she also alleged discrimination on the basis of marital and familial status, but dropped those claims in her federal lawsuit.

3 . The dissent attempts to create doubt about whether or not the seller or the seller’s agent understood that the offer was for $153,890. Dissent at 12665-66. However, there is no doubt that the offer was understood at the time it was made. Indeed, the size of the McDonald offer is one of the reasons that her’s and Donoghue’s offers cannot be considered similarly situated. McDonald’s loan was contingent on her purchasing the house for the fair market value or less; Woodfill, and Moore, were concerned that her offer was too large and would not close escrow because the property would not appraise for more than her offer. Curiously, the dissent does not give any meaningful discussion of either McDonald's mortgage loan pre-approval or the prospects of closing escrow, elements of great importance when determining whether dueling offers with respect to a real estate transaction are similarly situated.

4 . The fact that the ultimate buyer and McDonald are of different races is not enough to establish a prima facie case of discrimination where there is no evidence that both of them are clients of the same listing agents. Without discriminatory, or at the very least, different treatment of two buyers by the listing agents there can be no foundation for a claim of discrimination. See Dep’t of Fair Employment & Hous., 99 Cal.App.4th at 902, 121 Cal.Rptr.2d 615. The dissent's contrary position, without any citation to legal precedent, would create a prima facie case of discrimination whenever the parties to the litigation are of a different race. Dissent at 12670.

5 . The Unruh Civil Rights Act is codified at California Civil Code § 51 and provides that “no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation [all persons] are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ.Code § 51(b). Since there is no evidence of discrimination against McDonald, her Unruh Act claims fail. Because Coleman’s Unruh Act claim rests on McDonald’s Unruh Act discrimination claim, the lack of any evidence of discrimination is fatal to that claim as well. See Jackson v. Superior Court, 30 Cal.App.4th 936, 941, 36 Cal.Rptr.2d 207(1994) (holding that an African-American investment advisor who accompanied two clients into a bank could assert a § 51 claim alleging discrimination against the bank based on discrimination directed at his client, even though the advisor was not an actual customer of the bank).

6 . It should be noted that McDonald, who asserts disability by virtue of her use of a walking cane, has not produced any evidence of being disabled within the meaning of the Un-ruh Act, which requires any "physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) [ajffects one or more of the following body systems: neurological, immunological, musculoskeletal, ... and (B) limits a major life activity.” See Cal. Gov.Code § 12926(k)(l)(A)-(B) (emphasis added). The only evidence of disability presented by McDonald is that she uses a cane; this, alone, does not establish that a "major life activity” has been limited. See 42 U.S.C. § 12102; see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-66, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (holding that to be "disabled” under the Americans with Disability Act ("ADA”) one must have "limitations that are in fact substantial” and because every determination of whether an individual is disabled is "case-by-case,” particularized evidence is needed).

7 .Under FHA, a party can bring either a disparate impact or a disparate treatment cause of action. Gamble, 104 F.3d at 304-05. Disparate treatment requires some showing of discriminatory intent on the part of the defendants, whereas to support a disparate impact claim a plaintiff must establish '“(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices.’ ” Id. at 306 (quoting Pfaff v. United States Dep’t of Hous. & Urban Dev., 88 F.3d 739, 745 (9th Cir.1996)). Here, neither Colman nor McDonald have produced any evidence indicating that the facially neutral actions of the defendants have produced a disproportionate impact on African-American or disabled individuals.