Stearns v. Fair Employment Practice Com.

• Decision Date: 02 December 1971
• Citation: 98 Cal.Rptr. 467,6 Cal.3d 205
• Court: California Supreme Court
• Parties: , 490 P.2d 1155 Val STEARNS, Plaintiff and Appellant, v. FAIR EMPLOYMENT PRACTICE COMMISSION, Defendant and Respondent; Ernest COOPER, Real Party in Interest and Respondent. L.A. 29891. In Bank

Page 467

98 Cal.Rptr. 467

6 Cal.3d 205, 490 P.2d 1155

Val STEARNS, Plaintiff and Appellant, v. FAIR EMPLOYMENT PRACTICE COMMISSION, Defendant and Respondent Ernest COOPER, Real Party in Interest and Respondent.

L.A. 29891.

Supreme Court of California,

In Bank.

Dec. 2, 1971.

Hecker & Kenealy and Ronald A. Hecker, Hollywood, for plaintiff and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Robert H. O'Brien and Andrea Sheridan Ordin, Deputy Attys. Gen., for defendant and respondent.

No appearance for real party in interest and respondent.

TOBRINER, Associate Justice.

When Ernest Cooper, a Negro, sought to rent an apartment from Val Stearns, Stearns required Cooper to complete a credit application and submit to a credit investigation before the apartment could be rented. Three hours after Stearns dealt with Cooper, a Caucasian sought the same apartment. Stearns solicited an immediate deposit but required no credit check, offering the Caucasian occupancy as soon as the apartment could be cleaned. On the basis of these facts, the Fair Employment Practice Commission (FEPC) found that Stearns discriminated against Cooper on the grounds of race. Stearns challenged the commission's findings by petition in the superior court for a writ of mandate. He charged that the commission lacked evidence on which to find discrimination, and that the commission produced a material variance between the accusation it issued against Stearns and the decision which it rendered against him. The superior court denied the writ and Stearns appeals.

We conclude that the superior court properly denied the writ of mandate. Sufficient evidence supported the commission's ruling that Stearns pursued a discriminatory rental practice. No variance bifurcated the accusation and the commission's ruling; even if such a variance occurred, it occasioned no prejudice to Stearns. Finally, again assuming the presence of the variance, we cannot disturb the results of an administrative proceeding on that ground if such a variance would not constitute reversible error in a judicial trial.

In August 1968 Ernest Cooper, searching for an apartment in Los Angeles, obtained the assistance of an unofficial neighborhood fair housing organization. ¹ Two volunteers from the housing group accompanied Cooper, who ultimately selected a vacant apartment that met his requirements. One of the volunteers then called the owner, Val Stearns, and represented to Stearns that he was interested in the apartment for a friend. Stearns responded that the apartment was available, setting an appointment to meet the prospective tenant two days later at the volunteer's place of business.

Accordingly Cooper, Stearns, and the fair housing volunteer met on August 20. Declaring at the outset that Cooper would be required to complete a credit application, Stearns proceeded to fill out the application by asking questions of Cooper. Cooper answered all interrogation without hesitation; Stearns raised no question about Cooper's financial ability to pay the $105 monthly rent. Stearns then indicated that he would check out the credit application; yet when Cooper asked if he could leave a deposit, Stearns replied that he should not do so. To Cooper's question whether he could make a deposit of any kind, Stearns responded negatively, stating clearly that before he could consider renting the apartment, he would be compelled to investigate the credit application carefully and thoroughly. In response to a query, Stearns said he did not know how long the credit check would take. Thereafter, at no subsequent time did Stearns either apprise Cooper of the results of the credit check or offer to rent the apartment to him.

On August 19th, the day before the Cooper-Stearns meeting, two white men, Nelson and Kiedaisch, working with the fair housing group, visited the vacant apartment and made an appointment with Stearns. When they subsequently met with Stearns, about three hours after Cooper's meeting, Nelson represented to Stearns that he desired to rent the vacant apartment and to move into it by the coming weekend. Stearns immediately indicated that since the apartment could be cleaned in the interim there would be no problem in Nelson's occupancy of the apartment by that time. When Nelson asked if he could leave a deposit, Stearns suggested that he write a check immediately for the required amount. Nelson stated he was not completely certain about the apartment, requesting some further time to consider the matter. Stearns suggested that Nelson nonetheless give him the deposit, promising to return the check to Nelson if he decided not to take the apartment.

When Nelson indicated again that he would write the deposit check, Stearns departed, soon returning with a lease and a credit application. Nelson asked Stearns if the credit application would cause a delay in moving into the premises, to which Stearns replied, 'No, this is something for our files.' Stearns indicated that Nelson could bring back the completed application later, and take occupancy that weekend. During the conversation, Stearns at no time either indicated that Nelson could not move in until the credit application had been checked or suggested that the references in the application would be checked at all. ²

Upon learning of Nelson's experiences with Stearns, Cooper sought the assistance of the FEPC. ³ Alleging that he had 'been denied the right to rent an apartment,' Cooper filed a complaint before the commission on August 21. Under FEPC practices, the area supervisor consulted with Stearns in the hope of obtaining immediate relief. When Stearns refused to hold the apartment for Cooper pending completion of the credit check, the commission issued a formal accusation directed against him.

The accusation alleged, in relevant part:

'III. That on or about August 20, 1968, Ernest Cooper applied for the rental of an apartment unit in the aforesaid apartment complex * * *; that said apartment complex contained a vacant unit that was advertised for rental; that respondent (Stearns), without good cause, refused to rent the apartment to the complainant (Cooper). * * *

'VI. That respondent has pursued a rental practice that is discriminatory to persons of the Negro race; that said discrimination has tended to foment domestic strife and unrest, deprive the State and respondent of the fullest utilization of their capacities for development and advance, and substantially and adversely affects the interests of the public in general; that the correction and elimination of discrimination based on race, religion, color, national origin or ancestry is necessary to protect the public welfare, prosperity, health and peace of the people of the State of California.'

An administrative hearing officer heard this accusation on March 5, 1969, and continued the case for presentation of the defense on April 30, 1969. On August 8, 1969, the FEPC adopted the proposed decision of the hearing officer. In so doing the commission found that '(a)lthough it was not established that respondent at any time overtly refused to rent the apartment to complainant, it was established that respondent * * * subjected complainant to application and investigation processes * * * which were not undertaken by him in regard to a white person in apparently similar circumstances. * * *' The commission concluded that Stearns violated Health and Safety Code, section 35720, subdivision 6, ⁴ but found no violation of section 35720, subdivision 5, ⁵ and ordered Stearns to cease discrimination and pay $250 damages to Cooper.

We cannot accept Stearns' contention that the finding of discrimination is not supported by substantial evidence. Under a writ of mandate to review the findings of a state-wide administrative agency that lacks judicial power under the state Constitution, the superior court reviews the evidence on which the agency based its determination. (Code Civ.Proc. § 1094.5; see Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242.) In the instant case the superior court received into evidence and examined the record of the administrative proceedings, and, in denying the writ of mandate, concluded that the evidence supported the findings of the commission.

The record discloses substantial evidence to uphold the superior court's judgment sustaining the commission's finding of discrimination. (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.) The record clearly shows that within a time-span of three hours, Stearns refused to rent an apartment to a black man until a credit investigation had been conducted, and yet offered the same leasehold to a white man without even receiving a completed credit application form. The record also shows that Stearns refused a black man's offer to secure the leasehold with a deposit, while twice soliciting such a deposit from a white man. On the basis of these facts, the court could find that Stearns discriminated on racial grounds by erecting a bureaucratic barrier to the black man's occupancy of the apartment that had not been constructed for the white man. Since such a procedure could be used completely to discourage black applicants, or at least to delay their applications until an eligible white applicant could be found to fill the vacancy, the court could justifiably conclude that Stearns' behavior constituted discrimination in housing prohibited by Health and Safety Code, section 35720, subdivision 6. (Cf. Thomas v. Goulis (1966) 64 Cal.2d 884, 50 Cal.Rptr. 910, 413 P.2d 854; Hutson v. Owl Drug Co. (1926) 79 Cal.App. 390, 249 P. 524; Piluso v. Spencer (1918) 36 Cal.App. 416, 172 P. 412.)

We turn now to the alleged variance. Courts traditionally define a variance as a failure of the proof to correspond to the pleadings. (See Lavely v. Nonemaker (1931) 212 Cal. 380, 385, 298 P. 976; 3 Witkin, Cal. Procedure (2d ed. 1971) § 1056, at p. 2631.) Measured even by this strict...