ASHLEY MCCLENDON V. PETER BRESLER

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHLEY CHRISTINA MCCLENDON, No. 22-55068
Plaintiff-Appellant, D.C. No.
2:20-cv-07758-RGK-GJS
v.
PETER BRESLER, as an Individual and as MEMORANDUM*
the Trustee of the Bressler Trust,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted November 14, 2022
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Ashley McClendon appeals the district court’s grant of partial summary
judgment and judgment in favor of Peter Bresler following a bench trial. Bresler
denied McClendon’s rental application because of his “no dogs” policy, even after
it was disclosed that McClendon’s dog was “a verified emotional support animal
covered . . . as a reasonable accommodation.” McClendon alleges that Bresler
discriminated against her based on her disability in violation of the Fair Housing
Act (“FHA”), 42 U.S.C. §§ 3604(f)(3), 3604(c), and California’s Fair Employment
and Housing Act (“FEHA”), Cal. Gov’t. Code §§ 12927(c)(1), 12955(c).
McClendon also asserts a related claim of negligence. The district court found that
Bresler did not violate the FHA or FEHA. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm in part, and reverse and remand in part.
1. The district court erred in granting partial summary judgment on
McClendon’s reasonable accommodation claims under the FHA and FEHA
because there is a triable issue of fact as to whether Bresler reasonably should have
known of McClendon’s disability. To prevail on a reasonable accommodation
claim under the FHA, 42 U.S.C. § 3604(f)(3), a plaintiff must prove: (1) the
plaintiff or his associate has a disability within the meaning of 42 U.S.C. §
3602(h); (2) the defendant knew or should reasonably be expected to have known
of the disability; (3) an accommodation may be necessary to afford the disabled
person an equal opportunity to use and enjoy the dwelling; (4) the requested
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accommodation is reasonable; and (5) the defendant refused to make the requested
accommodation. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453
F.3d 1175, 1179 (9th Cir. 2006).
Only the second prong—whether Bresler knew or reasonably should have
been expected to know of McClendon’s disability—is in dispute. A genuine issue
of material fact exists as to whether Bresler knew or reasonably should have been
expected to know of McClendon’s disability when he failed to make a reasonable
accommodation for her support dog, which precludes summary judgment.
Knowledge of a housing applicant’s disability status can be actual or
constructive, and a “prospective tenant who requests accommodation[s] for a
service animal need not affirmatively identify his or her disability to trigger FHA
protection.” Or. Bureau of Lab. and Indus. ex rel. Fair Hous. Council of Or. v.
Chandler Apartments, LLC, 702 Fed. Appx. 544, 547 (9th Cir. July 26, 2017). For
example, statements such as “I have a therapy animal” or “I have an assistance
dog” should reasonably place a building manager on notice of the individuals’
disability statuses. Id.Here, although McClendon never affirmatively identified her disability, her
co-applicant Sarah Gailey’s use of the terms “verified support animal,” “reasonable
accommodation,” and “discriminat[ion]” in her emails to Bresler, and Bresler’s use
of the phrase “service dog” are evidence that Bresler should have known of
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McClendon’s disability status, which he disputes with contrary evidence. And the
fact that McClendon’s co-applicant Gailey, and not McClendon herself, made
these statements is of no import because the FHA permits any “aggrieved person”
who “claims to have been injured by a discriminatory housing practice” to bring a
housing discrimination suit. 42 U.S.C. §§ 3602(i); 3613(a). Here, McClendon
claims such injury when Bresler denied her and Gailey’s housing application
because of McClendon’s support animal.
Because the district court erred in granting partial summary judgment on
McClendon’s reasonable accommodation claims, we must also reverse and remand
on McClendon’s negligence claim. A landlord owes “the general public a duty to
operate the management of the subject property in a manner that [is] free from
unlawful discrimination.” Hous. Rts. Ctr. v. Snow, No. 05-cv-4644-SGL(JTL),
2007 WL 91148, at *3 (E.D. Cal. Jan. 3, 2007). Consequently, a landlord’s failure
to comply with the FHA’s reasonable accommodation requirement constitutes a
breach of the duty not to discriminate in the rental of a dwelling. S. Cal. Hous. Rts.
Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1069 (C.D.
Cal. 2005). Therefore, a question of fact remains as to whether Bresler acted
negligently toward McClendon by failing to reasonably accommodate her service
dog in violation of the FHA.
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2. The district court did not clearly err when it concluded that Bresler’s
statement—“[m]y policy has been not to accept dogs, even if service dogs”—did
not indicate an impermissible preference based on disability in violation of the
FHA and FEHA. It is unlawful to “make, print, or publish . . . any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling that
indicates any preference, limitation, or discrimination based on . . . handicap.” 42
U.S.C. § 3604(c); see also Cal. Gov’t Code § 12955(c). A statement violates
§ 3604(c) if an ordinary reader would interpret the statement as indicating a
preference for or against a protected group. Iniestra v. Cliff Warren Invs., Inc., 886
F. Supp. 2d 1161, 1169 (C.D. Cal. 2012) (citing United States v. Hunter, 459 F.2d
205, 215 (4th Cir. 1972)).
We agree with the district court that an “ordinary reader would not readily
assume that by preferring a renter without a dog, [Bresler] also implicitly
suggest[ed] that he prefers a renter without a handicap.” Bresler’s policy “not to
accept dogs, even if service dogs” reasonably indicates that he has a preference
against dogs, but not necessarily renters with disabilities who use support animals.
As the district court reasoned, finding that Bresler’s statement indicated a
preference for renters without a disability is “too tenuous” an assumption.
According, we REVERSE the district court’s partial grant of summary
judgment on McClendon’s reasonable accommodation claims and negligence
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claim and REMAND to the district court for proceedings consistent with this
memorandum. We AFFIRM the district court’s conclusion that Bresler’s
statement did not indicate an impermissible preference in violation of the FHA or
FEHA. Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
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