U.S. v. California Mobile Home Park Management Co., 95-55599

• Decision Date: 27 February 1997
• Docket Number: No. 95-55599,95-55599
• Parties: , 20 A.D.D. 658, 10 NDLR P 276, 97 Cal. Daily Op. Serv. 1414, 97 Daily Journal D.A.R. 2088 UNITED STATES of America, Plaintiff, and Elayne Cohen-Strong, Intervenor-Appellant, v. CALIFORNIA MOBILE HOME PARK MANAGEMENT COMPANY; Brian M. Dougher, dba: Costa Mesa Mobile Estates, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1374

107 F.3d 1374

36 Fed.R.Serv.3d 1176, 20 A.D.D. 658,

10 NDLR P 276,

97 Cal. Daily Op. Serv. 1414,

97 Daily Journal D.A.R. 2088

UNITED STATES of America, Plaintiff and Elayne Cohen-Strong, Intervenor-Appellant, v. CALIFORNIA MOBILE HOME PARK MANAGEMENT COMPANY; Brian M Dougher, dba: Costa Mesa Mobile Estates Defendants-Appellees.

No. 95-55599.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 1996.

Decided Feb. 27, 1997.

Christopher Brancart and Elizabeth Brancart, Pescadero, CA; John P. Relman, Washington Lawyers' Committee for Civil Rights & Urban Affairs, Washington, DC; Timothy C. Hester, Caroline M. Brown, Covington &

Burling, Washington, DC, for the intervenor-appellant

Daniel L. Rasmussen, Jeffrey K. Brown, Payne & Fears, Irvine, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-91-04528-R.

Before: BRUNETTI, TROTT and THOMAS, Circuit Judges.

BRUNETTI, Circuit Judge:

The United States filed a civil rights complaint on behalf of Elayne Cohen-Strong, which the district court dismissed. The district court then denied Cohen-Strong's post-judgment motion to intervene, and in a prior appeal we reversed both the dismissal and the denial of intervention and remanded the case to the district court. On remand the district court did not allow Cohen-Strong to file a new complaint demanding a jury trial. It later held a one-day bench trial and entered judgment for defendants. We hold that the district court erred in not allowing Cohen-Strong to file a demand for a jury trial, but that because no reasonable jury could find for Cohen-Strong, the denial was harmless error.

FACTS AND PROCEEDINGS BELOW

This is an action under Title VIII of the Civil Rights Act of 1968 ("Fair Housing Act" or "FHA"), amended by 42 U.S.C. §§ 3601-3631 (1988), originally brought by the United States on behalf of appellant Elayne Cohen-Strong ("Cohen-Strong"), a mother of a handicapped child and a resident of the Costa Mesa Mobile Estates. Cohen-Strong alleges that she was discriminated against on the basis of handicap when appellees Brian Dougher ("Dougher") and the California Mobile Home Park Management Company ("California Mobile Home"), which Dougher owns and operates, failed to make a reasonable accommodation under Section 804 of the FHA. Specifically, Cohen-Strong alleges that California Mobile Home failed to waive guest and parking fees for her daughter's babysitter in the amount of $175. Cohen-Strong argues that the fees assessed constituted a financial burden such that California Mobile Home was required to waive the fees to allow her to employ a babysitter for her daughter. A more complete description of the underlying facts can be found in the "Background and Procedural History" as stated in the first appeal in this case. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1415 (9th Cir.1994) [hereinafter California Mobile Home I ].

In California Mobile Home I, this court held that: (1) Cohen-Strong was entitled to intervene as of right and substitute herself for the United States on appeal, and (2) the FHA may require California Mobile Home to waive the fees. On the fee waiver issue, this court suggested five factors that, among other things, should be examined by the district court on remand. Id. at 1418.

On remand, Cohen-Strong filed a new motion for leave to intervene before the district court that would permit her to proceed alongside the United States as plaintiff. Cohen-Strong also lodged a complaint in intervention as required by Federal Rule of Civil Procedure 24(c). The complaint echoed the Government's claim of discrimination under the FHA, but also included supplemental state law claims and demanded a jury trial.

The district court confused its ruling on Cohen-Strong's motion to intervene making it unclear whether it was allowing her to intervene or to be substituted in the action. First, it stated that Cohen-Strong's "motion to intervene is granted." In the next sentence, however, the court ruled that "Cohen-Strong is substituted for the United States of America." When Cohen-Strong's attorney inquired if he should prepare a complaint, the court said: "No. She is substituted for the United States of America. I have a complaint on file. That's what she wanted to do before the Court of Appeals, and that's what the Court of Appeals ordered me to do." One week after being substituted as plaintiff, Cohen-Strong moved to file a first amended complaint, in which she again pled violation of supplemental state law claims and again demanded a jury trial. This motion was denied. The United States moved

                for reconsideration of the court's order dismissing it from the case, and that motion, too, was denied.  In February 1995, the district court held a one-day bench trial and ruled for the defendants.  In its findings of fact and conclusions of law, the court ruled that "a waiver of the guest and parking fees at issue was not necessary to afford Ms. Cohen-Strong equal opportunity to use and enjoy her dwelling at Costa Mesa Estates."   Cohen-Strong now complains that the district court erred by denying her right to a jury trial and that the judgment of the district court must be reversed because a reasonable jury could have found in her favor
                

DISCUSSION

I. Right to a Jury Trial

There is no question that the FHA entitles Cohen-Strong to a jury trial for her discrimination claim. See Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1008-09, 39 L.Ed.2d 260 (1974). The question presented in this case is whether Cohen-Strong waived her right to a jury trial by waiting three years after the action began to demand it. Entitlement to a jury trial in federal court is a question of law reviewed de novo. KLK, Inc. v. United States Dep't of Interior, 35 F.3d 454, 455 (9th Cir.1994). The unconstitutional denial of a jury trial must be reversed unless the error is harmless. Fuller v. City of Oakland, 47 F.3d 1522, 1533 (9th Cir.1995).

The district court ruled that Cohen-Strong waived her right to a jury trial. Defendants offer three justifications for the district court's decision. First, they argue that Cohen-Strong is a substituted party bound by the United States' failure to demand a jury trial in its original complaint. Second, they argue that even if Cohen-Strong is an intervenor-plaintiff, she cannot demand a jury trial three years after the United States filed this action on her behalf. Third, defendants argue that Cohen-Strong waived her right to a jury trial when she participated in the bench trial without objection. We will address each argument in turn.

A. Cohen-Strong's Status on Remand

The district court erred by treating Cohen-Strong as a substituted party rather than as an intervening party. In California Mobile Home I, we noted that the district court's acceptance of Cohen-Strong's notice of appeal, and its failure to rule on Cohen-Strong's motion to intervene, "effectively constituted a denial of that motion." 29 F.3d at 1416. We then reversed the district court's denial, holding that "[u]nder the Fair Housing Act, a plaintiff is entitled to intervene as of right and to substitute herself for the United States on appeal." Id.

The district court interpreted this language to mean that Cohen-Strong was to be substituted for the United States on remand. This interpretation is contrary to the express language of our opinion, which held that she was entitled to substitute herself for the United States on appeal. In other words, this court decided that she would be substituted for the United States for purposes of the appeal (because the United States had chosen not to participate in the appeal), but that the FHA entitled her to intervene in the case on remand. As we often do, we concluded California Mobile Home I by stating: "we reverse and remand to the district court for proceedings consistent with this opinion." Id. at 1418. In light of our reversal of the district court's denial of Cohen-Strong's motion to intervene, the district court was clearly required to grant Cohen-Strong's motion to intervene on remand. Its failure to do so was error.

Further indicating the district court's error in denying Cohen-Strong's motion to intervene is the fact that this court's ruling in California Mobile Home I was based on the FHA, which provides: "Any aggrieved person with respect to the issues to be determined in a civil action under this subsection may intervene as of right in that civil action." 42 U.S.C. § 3612(o)(2). Thus, the plain language of the statute relied upon by this court indicates that Cohen-Strong's right was to intervene, not to be substituted for the United States. Finally, Cohen-Strong has never filed a motion to be substituted for the United States. Rule 25 ¹ allows for "Substitution of Parties" only upon death, incompetence, or transfer of interest. None of these circumstances applies to Cohen-Strong's claim, and thus, she is not qualified for substitution under Rule 25.

For the reasons stated above, Cohen-Strong is properly an intervenor-plaintiff in the action, and we now turn to the question whether, as an intervenor-plaintiff, Cohen-Strong was entitled to demand a jury trial three years after the action was commenced by the United States.

B. Timeliness of Intervenor's Demand for Jury Trial

Although it acknowledges that we "must indulge every reasonable presumption against the waiver of the jury trial," United States v. Nordbrock, 941 F.2d 947, 949-50 (9th Cir.1991), California Mobile Home argues that Rule 38 precludes Cohen-Strong's current demand for a jury trial. We disagree.

A demand for a jury trial must be made within ten days of the last pleading directed to a jury triable issue. Fed.R.Civ.P. 38(b). Failure to follow this procedure constitutes a waiver of the right to demand a jury trial. Fed.R.Civ.P. 38(d...