Roman v. BRE Props., Inc.

Decision Date17 June 2015
Docket NumberB246841
Citation188 Cal.Rptr.3d 537,237 Cal.App.4th 1040
CourtCalifornia Court of Appeals Court of Appeals
PartiesGabriel L. ROMAN et al., Plaintiffs and Appellants, v. BRE PROPERTIES, INC. et al., Defendants and Respondents.

Gabriel L. Roman and Luminita Roman, in pro. per., for Plaintiffs and Appellants.

Horvitz & Levy, Peter Abrahams and Julie L. Woods, Encino, for Defendants and Respondents, BRE Properties, Inc. and BRE Villa Azure, LLC.



Gabriel L. Roman and his live-in caregiver and former wife, Luminita Roman, representing themselves in this court as they did in the trial court, appeal from the judgment entered after the court granted summary judgment in favor of BRE Properties, Inc. and BRE Villa Azure, LLC (collectively BRE) terminating the Romans' lawsuit alleging BRE had engaged in disability discrimination when the Romans attempted to view available units at the Villa Azure apartment complex. The Romans contend the trial court improperly sustained BRE's objections to significant portions of their evidentiary presentation and erred in granting summary judgment because they had demonstrated the existence of triable issues of material fact as to their claims for housing discrimination and failure to accommodate Gabriel Roman's disabilities. They also contend the trial court abused its discretion in awarding BRE costs. We affirm the order granting summary judgment but reverse and remand the order awarding costs for further proceedings in light of the Supreme Court's recent decision in Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, 186 Cal.Rptr.3d 826, 347 P.3d 976 (Williams ).

1. The Romans' Visit to the Villa Azure Apartment Complex

On November 2, 2009, shortly before 3:00 p.m., the Romans went to the 624–unit Villa Azure apartment complex without an appointment with the goal of inspecting a two-bedroom apartment that Ms. Roman had seen advertised online for a monthly rent of $1,499.1 Before traveling to the apartment complex, Ms. Roman had spoken by telephone with Melissa Salguero, an employee in the leasing office, who told her the leasing agents were fully booked for that day and, if she elected to come without an appointment in any event, she risked not being able to see an apartment. Ms. Roman responded that she and Mr. Roman would take their chances.

Once the Romans were at the apartment complex, Ms. Roman was told by Salguero the leasing agents were busy with clients and no one was available to show her an apartment at that time. Ms. Roman asked Salguero if Salguero could show the Romans the two-bedroom unit, and Salguero said she could not. After waiting for some period, Ms. Roman approached leasing agent Brian Metran, who was then sitting at his desk without a client present. Exactly what occurred from this point forward is disputed, but the parties agree the Romans left without seeing any apartments, never returned to the Villa Azure complex and never submitted a rental application (although the following day Ms. Roman apparently made an appointment to view an apartment on Nov. 5, 2009, an appointment she did not keep).

According to the Romans, Ms. Roman initially asked to see the general manager, and Metran told her he was not there. She then said to Metran they were there to see the two-bedroom units for rent. Metran replied they would have to make an appointment and return another day, explaining the company's policy was not to show apartments to walk-ins. Ms. Roman asked Metran to waive the policy as a reasonable accommodation because Mr. Roman was emotionally disabled and they could not know whether he would feel well enough to be able to return at a specified future time. Metran explained he was not authorized to waive the policy. Ms. Roman then suggested, rather than try to convince her why he could not show them the $1,499 per month apartment, he actually show it to them. Metran replied the $1,499 apartments were all taken. Asked about other two-bedroom apartments, Metran said there were no two-bedroom apartments available at any price at that time. Ms. Roman asked Metran for his name and to confirm in writing that there were no $1,499 per month units available, which he did. The Romans then left.

According to BRE, Metran agreed to speak to Ms. Roman, but cautioned he had several upcoming appointments and other guests waiting to see him in the lobby. Although he was alone at his desk when Ms. Roman approached, he was inputting customer information into his BRE computer from a showing he had just completed. When asked about the $1,499 per month apartment, Metran told Ms. Roman none was available. He also told Ms. Roman he would be happy to show her apartments later that day if she was willing to wait and suggested, as an alternative, she schedule an appointment for another day. Ms. Roman, however, insisted on being shown apartments immediately, ahead of scheduled appointments and other prospective applicants because Mr. Roman was “handicapped.” In his declaration in support of summary judgment, Metran stated Ms. Roman did not explain the nature of Mr. Roman's disability and he did not suspect Mr. Roman was disabled prior to Ms. Roman's comment.

2. The Romans' Lawsuit for Disability Discrimination

On September 6, 2011 the Romans sued BRE for injunctive and declaratory relief and damages, alleging disability discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12955 ), the Unruh Civil Rights Act (Civ.Code, § 51 ), Civil Code section 54, commonly called the Disabled Persons Act (DPA), and Business and Professions Code section 17200(UCL), as well as negligence (based on the duty to operate rental premises in a manner that was free of discrimination and to train employees to fulfill that duty).2 With respect to the Romans' standing to allege violations of the statutes cited, the complaint alleged Mr. Roman is a “qualified person with a disability, as defined within the meaning of California Government Code, § 12955.3 and Ms. Roman his live-in caregiver and former wife. The complaint elaborated, “Gabriel L. Roman is emotionally and physically disabled. One of his diagnoses is major depression

, also as a result of a car accident from January 2009, [he] sustained a herniated disc [causing him] excruciating low back and right leg pain, for which he had undergone spine surgery since, on July 30, 2010.” The complaint further alleged Mr. Roman has a voucher for rental assistance through the federal government's Section 8 housing program, which allows him and his caregiver to rent a two-bedroom apartment with the local housing authority paying costs in excess of 40 percent of Mr. Roman's adjusted monthly income.

In addition to reciting the events of November 2, 2009, the complaint alleged that approximately a month earlier Ms. Roman had been advised by BRE employees or its agents that BRE did not accept section 8 housing vouchers at any of their rental properties. Ms. Roman thereafter spoke to individuals in BRE's legal department, including General Counsel Kerry Fanwick, and asked if an exception to the policy against accepting section 8 vouchers could be made as a reasonable accommodation for Mr. Roman's disability. The Romans allege Ms. Roman was told by Mary Finley (a nonlawyer manager of risk and legal affairs) such an exception would be made but she was advised not to discuss the section 8 voucher with the on-site leasing agents when she and Mr. Roman went to see units. Finley said the legal department would make sure the voucher was accepted once the Romans found a unit they wanted to rent.

The day after the Romans' unsuccessful visit to Villa Azure, Ms. Roman sent an e-mail to Fanwick complaining about the discrimination they had encountered. During the following week Ms. Roman, Fanwick and Finley exchanged a series of telephone calls and e-mails in which BRE again insisted no two-bedroom apartments had been available at Villa Azure on November 2, 2009 and denied there had ever been an agreement to accept Mr. Roman's Section 8 vouchers as an accommodation for his disability.

3. BRE's Motion for Summary Judgment
a. The moving papers

Prior to June 8, 2012, when BRE moved for summary judgment, the Romans had refused to respond to any discovery propounded by BRE and did not appear for their depositions. In its moving papers BRE argued Ms. Roman lacked standing to assert claims relating to disability discrimination, there was no evidence Mr. Roman was disabled within the meaning of the statutes asserted as the bases for his claims, the Romans' demand to be seen immediately was not a reasonable or necessary accommodation and acceptance of Section 8 housing vouchers is not required as a reasonable accommodation for a disability. BRE also asserted there is no reasonable accommodation requirement under the Unruh Civil Rights Act and no cause of action for negligent failure to provide reasonable accommodation. In addition, BRE contended the Romans could not prove causation or damages because any injury suffered was the result of the unavailability of two-bedroom apartments at a price the Romans were willing to pay and not the alleged failure to accommodate Mr. Roman's disability.

In support of its motion BRE presented evidence of rent rolls, which it asserted demonstrated there were no two-bedroom apartments available to rent for $1,499 during the period November 2 through November 5, 2009. BRE also submitted declarations from Metran and Finley concerning their respective interactions with the Romans.

b. The Romans' opposition papers

In opposition the Romans submitted their own declarations, which essentially repeated the description of events from their perspective as alleged in the complaint.3 In their memorandum of points and authorities the Romans in part argued that Ms. Roman, as Mr. Roman's live-in caregiver, had standing under Government Code section 12955, subdivision (m),...

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