Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC336513. David L. Mining, Judge.
Law Offices of Zamos & Okojie and Jerome Zamos for Plaintiff and Appellant.
Dempsey & Johnson, Stephen C. Johnson and Rebecca Asuan-O’Brien for Defendants and Respondents.
WOODS, J.
SUMMARY
The trial court granted the defendants’ motion for judgment in a nonjury trial pursuant to Code of Civil Procedure section 631.8 and then entered an order awarding costs and attorney fees. The plaintiff appeals. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
In July 2005, Fair Housing Council of the San Fernando Valley (FHC) and Christopher Miller filed a complaint against Voleti Properties, L.P., Positive Investments, Inc., dba South Beach Apartments, Choudary D. Voleti, Rao R. Yalamanchili, and Victor Nunez (collectively, the Owner Defendants) and Gerardo Hasbun and Madelina Hasbun, “for damages as a result of discriminatory housing practices based upon race and color; negligence; and declaratory and injunctive relief.” According to the complaint, FHC is “a nonprofit corporation whose mission is eliminating racial discrimination in housing. It receives and investigates complaints of discrimination in the San Fernando Valley area of Los Angeles County, California, provides counciling [sic] to persons who believe they have been discriminated against, and educates property owners and the public about federal and state fair housing law.” Miller is “an adult African American resident of the County of Los Angeles” who submitted an apartment application to Voleti in response to a newspaper advertisement circulated in fall and winter of 2004. “[D]espite the availability of the units being advertised to persons of other races,” Miller’s application was denied.
FHC and Miller alleged Voleti owned the apartment complex known as South Beach Apartments and located at 6833 Sepulveda Boulevard in Van Nuys “(hereinafter referred to as ‘THE RESIDENTIAL PROPERTY’],” where Gerardo Hasbun and Madelina Hasbun were the Site Managers. “Plaintiffs are informed and based upon such information believe that Defendants are, and at all relevant times to this action [sic], providers of residential apartment dwelling complexes similar to THE RESIDENTIAL PROPERTY which are marketed within the State of California for tenants in need of or desiring apartment-style housing.” (Paragraph 15.)
According to the complaint, all of the defendants “acted as managers, agents, owners and proprietors of THE RESIDENTIAL PROPERTY when refusing and denying to members of the African American race the same benefits of full and equal accommodations, advantages, facilities, privileges, or services afforded members of other racial and ethnic groups who occupy or seek to occupy apartments within THE RESIDENTIAL PROPERTY.”
“[A]t some time after Owner Defendants acquired title to THE RESIDENTIAL PROPERTY in September of 2004” and assigned management of “the property” to Managing Defendants and their Site Managers, they adopted a policy designed to discourage African Americans from renting and occupying apartments within the South Beach Apartments. They also began a program of insulting and harassing African American tenants who were already occupying apartments “within THE RESIDENTIAL PROPERTY.” “[A]fter acquiring THE RESIDENTIAL PROPERTY in September of 2004,” the Managing Defendants and Site Managers (with the Owner Defendants’ apparent knowledge) “adopted new rules for African American tenants which were not enforced against tenants who were members of other racial and ethnic groups [including ‘white citizen’ tenants] and other groups.”
In late 2004, FHC began receiving complaints from existing and prospective African American tenants which were “consistent with a pattern of open hostility toward African Americans by Defendants after they assumed control over the operation and management of THE RESIDENTIAL PROPERTY in September 2004.” When one of the current African American tenants attempted to complain to the Defendants about the racially discriminatory practices of the newly appointed Site Managers, “the Owner Defendants and Managing Agents’ response included a four letter Anglo Saxon verb describing an illegal sex act performed without the consent of a king.”
“In response to complaints it was receiving from African America[n] existing and prospective tenants of THE RESIDENTIAL PROPERTY in late 2004 and early 2005,” FHC assigned investigators to conduct tests in order to determine whether a pattern of unlawful discriminatory conduct did in fact exist. During the course of its investigation, FHC determined that when African American testers made inquiries concerning the availability of apartment units “in THE RESIDENTIAL PROPERTY,” they were advised that there were no vacancies at the same time testers who were members of other racial and ethnic groups were told vacancies were available for immediate occupancy. The results of FHC’s investigations conducted by testers were consistent with complaints received from Miller in December 2004.
FHC alleged it had suffered damages “as a result of the conduct of [the Defendants] described herein because their discriminatory practices at THE RESIDENTIAL PROPERTY are frustrating [FHC’s] efforts to establish and maintain equal access to housing in the San Fernando Valley . . . .” FHC has also suffered damages, it alleged, “because it has been required to devote its limited resources to identifying, verifying and counteracting the unlawful discriminatory practices at THE RESIDENTIAL PROPERTY.” These allegations as well as further references to “THE RESIDENTIAL PROPERTY” were incorporated into all three causes of action of the complaint.
The defendants answered and attempted to conduct discovery, serving both Miller and FHC with form and special interrogatories, requests for admission and requests for production of documents. The plaintiffs objected to every request, and the defendants filed motions to compel. In particular, the plaintiffs refused to produce any investigative reports and supporting documents generated by FHC in connection with its investigation on the basis of attorney-client privilege and the work-product doctrine. Eventually, FHC prepared a privilege log identifying two on-site test reports prepared by Eugene Hernandez and two prepared by Anson Jackson. When efforts to obtain their depositions were unsuccessful, defendants moved to compel Hernandez’s and Jackson’s attendance at deposition or, in the alternative sought evidentiary and monetary sanctions. Plaintiffs did not file opposition. FHC made two others available for deposition (Sharon Kinlaw and Diana Bruno), but they had no personal knowledge of practices at “the residential property” and refused to produce the reports of FHC’s testers who had allegedly told them of the Defendants’ practices. After several continued hearing dates, the trial court allowed FHC to introduce two on-site test reports it produced and call four witnesses (Kinlaw, Bruno, Jackson and Hernandez). The court ordered Jackson and Hernandez to appear for deposition.
Plaintiffs’ counsel acknowledged having lost contact with Miller, and the trial court entered judgment against him. (Miller is not a party to this appeal.)
It appears from the record FHC said defense counsel had agreed to allow it to dismiss the complaint in exchange for a waiver of costs; without the waiver of costs, FHC withdrew its dismissal.
The matter was tried to the court on June 13, 2007. In its statement of decision, the trial court explained why the testimony of Jackson, an African American man who acted as a tester for FHC, and Hernandez, a Hispanic man who also acted as a tester, failed to demonstrate the housing discrimination alleged in the complaint.
Thereafter, on September 18, 2007, after considering the moving and opposing papers and hearing the parties’ argument, the trial court granted the defendants’ motion for attorney fees in the amount of $125,000 and awarded costs in the amount of $10,105.73. Although Miller “almost immediately was unavailable,” FHC’s counsel argued that it was not frivolous for FHC to proceed under Havens Realty Corp. v. Coleman (1982) 455 U.S. 363, and Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386. The trial court responded: “We had tester reports which weren’t given to the defense until this court ordered them to be given. There were two of them. I heard testimony. There were numerous mistakes in those reports. And . . . the amount of rent that was charged, . . . it was an issue of African Americans and Hispanics, the balance there. [¶] And . . . in some instances the African Americans got a break, and in some instances the Hispanics got a break. There was a discrepancy on the date of the report. There was a discrepancy between answers to interrogatories and information contained on the reports. [¶] No, sir. I admire the work that you are doing, but in this case I do find that . . . this case was unreasonable, frivolous, meritless and vexatious. Not so much vexatious, but unreasonable, frivolous and meritless.”
FHC appeals from the judgment and subsequently entered order granting defendants their attorney fees and costs.
DISCUSSION
In its opening brief, FHC argues the trial court failed to recognize the difference between FHC’s institutional claims and Miller’s individual claims and, as a result, improperly restricted FHC’s claim for relief to “the residential property” defined in the complaint. According to FHC, federal courts “have consistently held that Havens Realty Corp. v. Coleman, supra, 455 U.S. 363, supports a damage claim by a fair housing organization based upon a showing that the organization allocated its resources investigating a defendant’s alleged discriminatory actions,” but the trial court refused to allow its Hispanic tester (Hernandez) to testify “that at 6919 [Sepulveda, an “adjacent property” it said Respondents managed] he was told that Respondents had been engaged in a program of evicting all black tenants from their properties.” FHC misses the point.
As the trial court explained, Havens is a “standing” case; the trial court did not conclude FHC lacked standing to proceed. The record contradicts FHC’s characterization of events and ignores the basis for the trial court’s evidentiary and discovery rulings as well as the applicable standard of review. FHC maintained “this lawsuit specifically only deals with one building, period.” Moreover, the trial court specifically noted multiple credibility problems with Hernandez’s testimony in any event as well as the inconsistencies between his testimony and Jackson’s. It follows that FHC has failed to demonstrate prejudicial error in this regard.
To the extent FHC objects to the award of attorneys’ fees against it for bringing a frivolous lawsuit, the minute order refers to the court’s comments in the reporter’s transcript, but FHC did not include this portion of the reporter’s transcript in the appellate record. Respondents, however, moved to augment the record and did provide the transcript which supports the trial court’s finding. FHC fails to demonstrate prejudicial error here as well.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs of appeal.
We concur: PERLUSS, P.J. ZELON, J.