Halet v. Wend Inv. Co.

• Decision Date: 26 March 1982
• Docket Number: Nos. 80-5329,80-5556,s. 80-5329
• Citation: 672 F.2d 1305
• Parties: Sander Michael HALET, by his father, next of friend and guardian ad litem Robert Michael Halet, Robert Michael Halet, on behalf of themselves and all other persons similarly situated, and the Children Project, a Church of Life Program, an unincorporated non-profit organization, Plaintiffs-Appellants, v. WEND INVESTMENT CO., et al., Los Angeles County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1305

672 F.2d 1305

Sander Michael HALET, by his father, next of friend and guardian ad litem Robert Michael Halet, Robert Michael Halet, on behalf of themselves and all other persons similarly situated, and the Children Project, a Church of Life Program, an unincorporated non-profit organization Plaintiffs-Appellants, v. WEND INVESTMENT CO., et al., Los Angeles County, Defendants-Appellees.

Nos. 80-5329, 80-5556.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1981.

Decided Jan. 25, 1982.

As Amended March 26, 1982.

Marshall A. Lerner, Los Angeles, Cal., for plaintiffs-appellants.

Mary F. Wawro, Bruce Warner, Schwartz, Alschuler & Grossman, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before CHOY and ANDERSON, Circuit Judges, and KEEP, ^* District Judge.

CHOY, Circuit Judge:

Robert Halet applied for an apartment in a complex owned by the Wend Investment Company in Marina del Rey. His application was denied because Wend had an adults-only rental policy and Halet had a child in his household. Halet brought this suit against Wend and Los Angeles County, which leases the land to Wend, charging that the adults-only rental policy violated his right to live with his family and was racially discriminatory. ¹ Specifically, he claimed that the County and Wend violated the fourteenth amendment, Civil Rights statutes, 42 U.S.C. §§ 1981, 1982, 1983, and 2000d, and the Fair Housing Act, 42 U.S.C. § 3604. He sought a declaratory judgment that the rental policy was unlawful and an injunction prohibiting such a policy.

The district court dismissed Wend on the grounds that the case was moot and that Halet failed to state a claim upon which relief could be granted. The district court dismissed the County of Los Angeles on the grounds that there was no invidious discrimination and that the complaint failed to allege sufficient facts to show state action. Finally, the district court denied Halet's request for attorney's fees.

I Mootness

After Halet filed his complaint, the City of Los Angeles adopted an ordinance prohibiting adults-only rental policies. Wend then announced a new policy under which it would rent to households with minor children. Although the complex that is the subject of this suit is not located in the city of Los Angeles, Wend has a complex in the city and stated that it wanted to maintain a uniform policy for all of its complexes.

The voluntary cessation of allegedly illegal conduct does not ordinarily make a case moot. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); TRW, Inc. v. FTC, 647 F.2d 942, 953 (9th Cir. 1981). Such circumstances Similarly, in Concentrated Phosphate a new regulation made it uneconomical for the defendants to continue their alleged violations for which they had formed an association. They disbanded and said they would not engage in future joint operations. The Court held that such a statement standing alone "cannot suffice to satisfy the heavy burden of persuasion" resting on those claiming mootness. Concentrated Phosphate, 393 U.S. at 203, 89 S.Ct. at 364.

may make a case moot, however, if it is absolutely clear that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely eradicated the effects of the violation. County of Los Angeles, 440 U.S. at 631, 99 S.Ct. at 1383; Lodge 1380, Brotherhood of Railway Clerks, etc. v. Dennis, 625 F.2d 819, 822 (9th Cir. 1980). The defendant bears a heavy burden to demonstrate mootness. County of Los Angeles, 440 U.S. at 631, 99 S.Ct. at 1383; Concentrated Phosphate, 393 U.S. at 203, 89 S.Ct. at 364; TRW, Inc., 647 F.2d at 953. But see Halvonik v. Reagan, 457 F.2d 311, 313 (9th Cir. 1972). A promise to refrain from future violations likewise is not sufficient to establish mootness. United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). In Grant, the government sued three corporations and an individual who was director of all three for violations of the Clayton Act. The individual resigned and the companies told the Court that they had no intention to revive the interlocks. The Court held, however, that because the companies were free to return to their old ways and because of the public interest in having the legality of the practice settled, the case was not moot. 345 U.S. at 632, 73 S.Ct. at 897. Further, it held that the defendants' representations of intent were not sufficient to moot the case. Id. at 633, 73 S.Ct. at 897.

This court cannot rely on Wend's statement alone. Wend could revert to an adults-only policy in the future, and Wend has not demonstrated that there is no reasonable expectation of such an occurrence. Moreover, it is not clear that Wend's new policy has completely eradicated the effect of Wend's adults-only policy. Accordingly, Wend has not demonstrated that the case is moot.

II Standing

The County asserts that Halet, who is white, does not have standing to challenge racial discrimination against Blacks and Hispanics. The district court did not dismiss any claims on this basis, but this court can affirm the dismissal on any ground fairly presented in the record. Shipley v. United States, 608 F.2d 770, 773-74 (9th Cir. 1979).

The standing requirements of Article III are only that the party be injured by the challenged conduct. However, the Supreme Court has further limited standing, as a prudential matter, requiring that a party assert its own rights and interests not those of third parties. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1974). The Court has waived this standing requirement in some discrimination cases where it appears that a white person is the only effective adversary. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1952). Here, however, Halet is not the only effective adversary; he is in no better position to bring this action than a black person denied an apartment because of minor children.

Thus, Halet does not have standing to assert his racial discrimination claims under the fourteenth amendment, or under §§ 1981, 1982, 1983 and 2000d. The dismissal of Halet's claims under §§ 1981, 1982 and 2000d is therefore not erroneous because §§ 1981 and 1982 are limited to the protection against racial discrimination. See Patterson v. American Tobacco Co., 535 F.2d 257, 270 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976) Halet does, however, have standing to raise a racial discrimination claim under the Fair Housing Act. Congress expanded standing under that Act to the full extent of Article III. The Supreme Court, in Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 103 n.9, 99 S.Ct. 1601, 1607-08, 1609-10 n.9 (1979), held that a plaintiff who has suffered an actual injury is permitted to prove that the rights of another are infringed. ³ Here, Halet claims that he was denied an apartment because of a policy that allegedly infringes on the rights of Blacks and Hispanics. Under Gladstone this is sufficient to support Halet's standing under the Act.

(§ 1981). Also § 2000d is limited by its terms to types of discrimination not present in this case. ²

III Failure to State a Claim

Although Halet lacked standing to raise racial discrimination claims under § 1983 and the fourteenth amendment, he clearly has standing to challenge the adults-only policy under § 1983 and the fourteenth amendment on the grounds that it violates his right to raise a family and discriminates against families with children. We must now proceed to consider whether the district court's dismissal of Wend for failure to state a claim, and its dismissal of Los Angeles County on the grounds that the complaint was insufficient to show state action and that there was no invidious discrimination, were correct.

A dismissal for failure to state a claim upon which relief can be granted is a ruling on a question of law and as such is freely reviewable by this court. Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 579 (9th Cir. 1981). Such a dismissal cannot be upheld unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved. Beneficial Life Insurance Co. v. Knobelauch, 653 F.2d 393, 395 (9th Cir. 1981). On a motion to dismiss, the court presumes that the facts alleged by the plaintiff are true. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972); Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir. 1980).

A. Family Rights

"Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (quoting Cleveland Board of Education v. Lafleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974)). Halet contends that the adults-only policy infringed this due process right and discriminated against families with children in violation of the equal protection clause.

1. State Action

To maintain an action under the fourteenth amendment or § 1983, Halet must show state involvement. The under-color-of-state-law requirement of § 1983 is equivalent to the state action requirement of the fourteenth amendment. Arnold v Halet's complaint alleged that the County leased the land to Wend. In Halet's opposition to the motion to dismiss he offered to amend...