Opinion
NOT TO BE PUBLISHED
San Francisco County Super Ct. No. CGC-05-438885
Kline, P.J.
John Doe appeals from a judgment of dismissal following nonsuit and other trial court orders. He urges a number of grounds for reversing the lower court’s orders. We affirm.
STATEMENT OF THE CASE AND FACTS
On October 27, 2006, appellant filed a second amended complaint against WCP I, LLC (WCP), alleging disability and source of income discrimination based on the landlord’s refusal to rent to tenants under section 8 of the United States Housing Act of 1937 (section 8 housing assistance program). (See, 42 U.S.C. § 1437f; 24 C.F.R. 982.1 et seq.) The complaint alleged that appellant is disabled and received a national section 8 voucher from the Cambridge Housing Authority, that he had requested to rent from WCP’s leasing office on several dates since June 2004 and was told WCP does not take section 8 vouchers, and that he filled out a rental application and was told by various agents, as well as in a letter from WCP’s attorney, that WCP does not rent to anyone under section 8. It further alleged that discrimination against section 8, described as “de facto discrimination against disabled and minority members, who constitute the bulk of voucher holders,” is barred by San Francisco Police Code section 3304, subdivisions (a) and (d), the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.), the Fair Housing Amendments Act (FHAA) (42 U.S.C. §§ 3601-3619, 3631; Civil Code sections 51-53, 54.1-54.8, and other laws. Appellant alleged that WCP’s refusal was pursuant to a general policy of always refusing section 8 vouchers, and he sought to represent the class of persons with section 8 vouchers wishing to use them with WCP.
The complaint also alleged claims against Sequoia Equities, but only the claims against WCP are at issue here.
WCP demurred, arguing that there is no legal requirement for a landlord to accept section 8 tenants and appellant failed to allege facts going beyond WCP’s refusal to enter into a section 8 contract. The trial court overruled the demurrer by order filed February 13, 2007.
The trial court heard motions in limine on October 30, 2007, and, among other things, granted WCP’s motions to prohibit appellant from introducing documents other than those produced at deposition, evidence regarding damages, evidence regarding disability other than what was produced at deposition, and evidence regarding disability discrimination. On November 1, the jury was empanelled and appellant gave his opening statement. WCP moved for a nonsuit, arguing that appellant admitted in his opening statement that his claim accrued in January 2004, so that his suit was barred by the one-year statute of limitations, and that appellant would not be able to provide evidence to support his claims. Appellant had no witnesses present because his service of a subpoena on one of WCP’s employees, Sally Phoung, was quashed and he had not subpoenaed other witnesses, and the court found that the other evidence he intended to present was hearsay. The court granted the motion for nonsuit on the grounds that the claim was barred by the statute of limitations and that appellant did not have any evidence to support his claims of discrimination based on source of income or disability in that he had no witnesses to present, had no documentary evidence that would survive a hearsay objection, and his own testimony was not sufficient to sustain his burden of proof. The court’s order of dismissal was filed on December 7, 2007, and notice of entry of judgment was filed on January 7, 2008.
Appellant filed a motion for new trial on January 23, 2008, which was denied by order filed on February 13, 2008. Appellant’s motion to disallow costs was granted in part and denied in part by order of February 14, 2008.
On March 21, 2008, appellant filed a notice of appeal from the orders of December 7, 2007, February 13, 2008, and February 14, 2008.
DISCUSSION
I.
Before addressing the merits of the appeal, respondent raises the procedural arguments that appellant’s notice of appeal was not timely filed, the record is insufficient to permit review, and appellant’s opening brief does not sufficiently identify the issues raised.
Appellant’s March 21, 2008 notice of appeal was not filed within 60 days of the January 7, 2008 notice of entry of judgment, as required by rule 8.104 of the California Rules of Court. Although time to appeal is extended by the filing of a valid motion for new trial (rule 8.108), respondent contends appellant’s motion for new trial was not valid because it did not state the ground upon which it was based. Accordingly, respondent urges this appeal is untimely.
Code of Civil Procedure section 657 sets forth the grounds upon which a new trial may be sought: “1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury.... [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.”
Respondent is correct that the new trial motion did not specifically state which of these grounds it was based upon. Appellant’s arguments regarding the trial court’s application of the statute of limitations and ruling on the witness appellant attempted to subpoena, however, clearly invoke the “error of law” basis for a new trial motion. Indeed, respondent stated in its opposition to the new trial motion, “It is apparent that Doe is proceeding under [Code of Civil Procedure] section 657[, subdivision] 7, as he fails to specify the ground and no other ground in Section 657 appears applicable under Doe’s moving papers.” Appellant’s reply confirmed that he was relying upon section 657, subdivision 7, although it stated he was also relying upon section 657, subdivision 1, with respect to a contention not relevant to this appeal.
Respondent relies upon the statement in Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 726, that “[a] new trial can only be granted if the request for relief conforms to the statutory procedures.” Shapiro goes on to explain that “when a party brings a timely posttrial motion, the trial court has broad discretion to determine the relief being requested.” (Id. at p. 727 [affirming trial court’s decision to treat motions to set aside judgment and for partial judgment notwithstanding the verdict as motion for new trial].) Here, appellant filed a motion for a new trial, and the defense and court understood the grounds he invoked and treated the motion as valid. We see no reason to do otherwise.
Respondent next argues that the notice of appeal and opening brief do not make clear what specific legal or factual issues appellant seeks to appeal. The printed portion of the notice of appeal states: “Plaintiff appeals this Court’s attached Orders to superior court, appellate division.” Handwritten notations following “Orders,” add “of 2/14/08, 2/13/08, 12/7/07, and oral orders on 10/29/07, 10/30/07, 10/31/07 & 11/1/07.” The superior court clerk’s notice of filing of the notice of appeal states that “a notice of appeal was filed in the above entitled action on 3/21/08 from the orders of 2/14/08, 2/13/08 and 12/07/07.”
The written orders corresponding to the dates above are the December 7, 2007 Order of Dismissal after Motion for Non-Suit and Judgment of Dismissal after Nonsuit, the February 13, 2008 Order Denying Doe’s Motion for New Trial and to Set Aside Judgment, and the February 14, 2008 Order Granting in Part and Denying in Part Doe’s Motion to Disallow Costs. The record does not further clarify the oral orders appellant intended to reference, although the court ruled on motions in limine on October 30, and on November 1 granted the motion to quash service of subpoena on a defense witness and the motion for nonsuit. In any event, it is apparent that appellant is appealing the trial court’s judgment of dismissal following nonsuit and the postjudgment orders denying his motion for new trial and granting in part and denying in part his motion to disallow costs.
As to the specific issues raised on appeal, appellant’s opening brief plainly presents arguments that the trial court erred in ruling that a landlord’s refusing all section 8 tenants can never constitute disability discrimination; in granting nonsuit due to appellant’s failure to properly subpoena WCP’s employee; in finding appellant’s claims barred by the statute of limitations; and in precluding appellant from introducing evidence of damages. It is difficult to understand respondent’s confusion about what issues are involved in the appeal. As respondent subsequently states, it is “apparent” that appellant is challenging the trial court’s decision to grant nonsuit at the conclusion of appellant’s opening statement.
Respondent is correct on one procedural point. Although appellant states in the portion of his brief describing the nature of the appeal that he “seeks re-assignment to a different trial judge,” his brief includes no argument on this point whatsoever. Accordingly, we treat this issue as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 794-785.) Similarly, while appellant’s notice of appeal lists the order granting in part and denying in part his motion to disallow costs, his brief does not raise any issue concerning that order, nor does it directly challenge the court’s order denying appellant’s motion for a new trial.
II.
“A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. ([Campbell v. General Motors Corp. (1982) 32 Cal.3d 112,] 117-118; Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395.) [¶] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled,... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....” ‘ (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118, quoting Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583; accord, Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d at p. 395; Estate of Lances (1932) 216 Cal. 397, 400.)” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)
“The granting of a motion for nonsuit is authorized by Code of Civil Procedure [section] 581c at any time after plaintiff has completed his opening statement. ‘Such judgment will be affirmed if from all the facts alleged in the complaint and stated by counsel and all the favorable inferences to be deduced therefrom, it is plainly apparent that a case cannot be maintained by the plaintiff.’ (Paul v. Layne & Bowler Corp. [(1937)] 9 Cal.2d 561, 564.)” (Gallegos v. Union-Tribune Publishing Co. (1961) 195 Cal.App.2d 791, 796.) “ ‘[T]he granting of a nonsuit after an opening statement is a disfavored practice; it will be upheld only when it is clear that counsel has undertaken to state all of the facts which he expects to prove and it is plainly evident that those facts will not constitute a cause of action.’ (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 509; see also Gallegos v. Union-Tribune Publishing Co.[, supra, ] 195 Cal.App.2d [at p.] 796.)” (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799.)
“In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ (Mason v. Peaslee (1959) 173 Cal.App.2d 587, 588; accord, Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 699; Hughes v. Oreb (1951) 36 Cal.2d 854, 857.) [¶] Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ....’ (Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105; accord, Campbell v. Security Pac. Nat. Bank (1976) 62 Cal.App.3d 379, 384-385; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 415.)” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)
A.
Appellant characterizes the trial court as having concluded that a landlord’s refusal to rent to any section 8 tenants can never constitute disability discrimination. He argues this conclusion was erroneous because a landlord should be required to accept section 8 as a reasonable accommodation and because, since so many section 8 voucher holders are minorities or disabled, categorical refusal to accept section 8 rentals amounts to discrimination on these bases.
The trial court found, in response to WCP’s motion in limine to exclude evidence regarding disability discrimination, that appellant’s second amended complaint “fail[ed] to allege any facts constituting actionable discrimination based on disability.” WCP argued that appellant could not show he was discriminated against because his complaint alleged that all prospective section 8 tenants were treated exactly the same. As indicated above, the complaint alleged that WCP’s “act of refusing section 8 vouchers was done pursuant to a general policy to always refuse section 8 vouchers. Plaintiff seeks to represent the class of persons with section 8 voucher wishing to use them with [WCP] or inquiring from [WCP] whether it will accept said vouchers.”
“No landlord is required by law to accept Section 8 tenants.” (Salute v. Stratford Greens Garden Apartments (2d Cir. 1998) 136 F.3d 293, 295 (Salute).) Appellant argues, however, that a landlord should be required to accept a tenant under section 8 as a reasonable accommodation for the tenant’s disability.
Salute refused to find such a requirement under the FHAA (42 U.S.C. § 3604(f)(3)(b)): “We think that the voluntariness provision of Section 8 reflects a congressional intent that the burdens of Section 8 participation are substantial enough that participation should not be forced on landlords, either as an accommodation to handicap or otherwise.” (Salute, supra, 136 F.3d at p. 300.) Salute viewed the plaintiffs’ request for accommodation as addressing their economic status rather than their disabilities and concluded, “Congress could not have intended the FHAA to require reasonable accommodations for those with handicaps every time a neutral policy imposes an adverse impact on individuals who are poor. The FHAA does not elevate the rights of the handicapped poor over the rights of the non-handicapped poor. Economic discrimination—such as the refusal to accept Section 8 tenants—is not cognizable as a failure to make reasonable accommodations.” (Salute, at p. 302.) Appellant urges us to follow the dissent in Salute, which argued that waiver of a policy against accepting section 8 tenants might be a necessary and reasonable accommodation where the tenants’ inability to work (and consequent eligibility for the section 8 program) was due to their disabilities and the burden on the landlord was reasonable (in that case, because the landlord had not evicted tenants who became section 8 recipients while living in the apartments). (Salute, at pp. 307-311 (dis. opn. of Calabresi, J.).)
In Giebeler v. M&B Associates (9th Cir. 2003) 343 F.3d 1143 (Giebeler), the Ninth Circuit took issue with some of Salute’s reasoning. Giebeler noted that Salute had been decided before the United States Supreme Court decision in U.S. Airways v. Barnett (2002) 535 U.S. 391, which Giebeler described as holding that “accommodation requirements (1) do sometimes require preferring disabled individuals over others who are otherwise similarly situated but are not disabled; and (2) are not limited only to lowering barriers created by the disability itself. Limiting accommodation to those ‘rules, policies, etc. that hurt handicapped people by reason of their handicap,’ Hemisphere [Building Co. v. Village of Richton Park (7th Cir. 1999)] 171 F.3d [437], 440, or requiring that accommodations be ‘framed by the nature of the particular handicap,’ Salute, 136 F.3d at 301, because ‘[t]he FHAA does not elevate the rights of the handicapped poor over the rights of the non-handicapped poor,’ id. at 302, contradicts both principles embraced by Barnett.” (Giebeler, supra, 343 F.3d at p. 1154, fn. omitted.)
Giebeler involved a plaintiff who became disabled, stopped being able to earn his income, and therefore was unable to meet the financial qualifications for an apartment he sought to rent. Although his mother met those requirements and sought to rent the apartment for her son, the landlord refused the rental on the basis of a policy against permitting cosigners. Giebeler held that the FHAA required the landlord to assess the individual proposed financial arrangement rather than “inflexibly” relying upon its policy forbidding cosigners. (Giebeler, supra, 343 F.3d at pp. 1144-1145.) Although Giebeler did not address any issue involving section 8, its reasoning is consistent with a view that a policy against accepting section 8 tenants does not necessarily protect a landlord against liability for a claim of discrimination based on its refusal to accept a specific section 8 tenant in certain circumstances.
Appellant, however, did not allege any act of discrimination specific to himself. Rather, his complaint plainly alleged discrimination based on the theory that a policy of refusing to accept section 8 tenants itself constitutes disability discrimination. Appellant cites no case law supporting this view and we are aware of none.
B.
Appellant argues the trial court erred in granting nonsuit based on the lack of evidence to support his claims. Although the preceding discussion would make it unnecessary to address this contention with respect to appellant’s discrimination claims, it remains relevant to the nonsuit on appellant’s claim that refusal to rent under section 8 violated the San Francisco Police Code’s prohibition of discrimination in rental of housing on the basis of “source of income.” The trial court, apparently, concluded that appellant would not be able to produce admissible evidence that WCP refused to rent him an apartment under section 8. As discussed above, the trial court took this action after quashing service on the one witness appellant had attempted to subpoena, determining that appellant had not subpoenaed any other witnesses, and determining that the other evidence appellant sought to present was inadmissible hearsay.
Section 3304 of article 33 of the San Francisco Police Code, entitled “Housing,” provides:
Appellant argues that WCP employee Sally Phoung was properly served with a subpoena and, because she did not appear, he should have been allowed to introduce her deposition, which he says demonstrated that Phoung worked for WCP and had “corporate authority to deny section 8 applications.” He also contends he did not need to introduce testimony from WCP employees because he could testify that he applied for a rental and did not receive an acceptance within a reasonable time and, if it was necessary for him to prove someone with corporate authority rejected his application, he could do so by testifying that he saw the employees who rejected his application working in WCP’s leasing office.
Appellant cites no authority for his contention that the trial court erred in quashing service of the subpoena on Phoung. Although he complains that the court acted on the basis of a declaration by Phoung that is not a part of the record, his description of how the subpoena was served is consistent with the description of the contents of Phoung’s declaration. WCP’s attorney referred to the declaration as stating that Phoung found the subpoena in an envelope with her name written on it that had been left at her office. Appellant told the court he gave the subpoena to a security guard in front of the leasing office and watched the guard put it in a “slot” in the leasing office door. Code of Civil Procedure section 1987 requires personal service of a subpoena. (In re Abrams (1980) 108 Cal.App.3d 685, 687.) Appellant’s own description demonstrates that Phoung was not personally served.
Appellant’s argument that he could demonstrate with his own testimony that he was told his application for rental would be rejected because WCP would not accept section 8 tenants is based on the theory that his testimony would provide admissible evidence of party admissions by an agent. “Evidence Code section 1222 sets out the hearsay exception for an authorized admission: ‘Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and [¶] (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.’ For purposes of this exception, the authority of a declarant employee to make a statement for an employer can be implied as well as express. (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570.) The determination generally ‘requires an examination of the nature of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement.’ (Ibid.)” (O’Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388, 1403.)
Appellant’s suggestion that he could establish the requisite authority by testifying that he saw the employees working in WCP’s leasing office falls far short of what would be necessary to meet the requirements of Evidence Code section 1222. His proposed testimony that he applied to rent an apartment and never received an acceptance fails to address the critical question of why his application was not accepted. And while appellant told the trial court he wanted to offer a letter from WCP’s attorney, he offers no suggestion how he could have authenticated the proposed evidence.
In short, appellant offers no authority to support his argument that the trial court erred in granting nonsuit based on the lack of evidence to support his claims. Accordingly, we find no error on this ground. This conclusion makes it unnecessary for us to address appellant’s additional contentions that the court erred in finding his claim barred by the statute of limitations and in precluding him from presenting evidence of damages.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
“(a) Prohibited Activity. [¶] It shall be unlawful for any person to do any of the following acts wholly or partially because of a person’s actual or perceived race, color, ancestry, national origin, place of birth, sex, age, religion, creed, disability, sexual orientation, gender identity, source of income, weight, or height:
“(1) To interrupt, terminate, or fail or refuse to initiate or conduct any transaction in real property, including but not limited to the rental thereof; to require different terms for such transaction; or falsely to represent that an interest in real property is not available for transaction;
“(2) To include in the terms or conditions of a transaction in real property any clause, condition or restriction;
“(3) To refuse to lend money, guarantee the loan of money, accept a deed of trust or mortgage, or otherwise refuse to make available funds for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property;
“(4) To refuse or restrict facilities, services, repairs or improvements for any tenant or lessee;
“(5) To make, print, publish, advertise or disseminate in any way, or cause to be made, printed or published, advertised or disseminated in any way, any notice, statement or advertisement with respect to a transaction or proposed transaction in real property, or with respect to financing related to any such transaction, which unlawfully indicates preference, limitation or discrimination based on race, color, ancestry, national origin, place of birth, sex, age, religion, creed, disability, sexual orientation, gender identity, source of income, weight, or height.
“For purposes of this Subsection (a), ‘source of income’ means all lawful sources of income or rental assistance from any federal, State, local, or nonprofit-administered benefit or subsidy program. ‘Source of income’ also means a rental assistance program, homeless assistance program, security deposit assistance program or housing subsidy program. ‘Source of income’ includes any requirement of any such program or source of income, or rental assistance.”