Reasonable Accommodation and Unlawful Detainer Defense · Title: Reasonable Accommodation and...

Reasonable Accommodation and Unlawful Detainer Defense

Jeremy Bergstrom, National Center on Poverty Law, Chicago, IL Carolyn Gold, Justice and Diversity Center, San Francisco, CA Erin Katayama, Homeless Advocacy Project of the Justice and Diversity Center,

San Francisco, CA

This session will cover how to use reasonable accommodation as a defense in an unlawful detainer. It will include strategies for asking for reasonable accommodations, working with clients with no insight into their disability, motion practice related to the defense, jury instructions, and use of experts.

Une, Brandon 1l,1612015For Educational Use Only

Bhogaita v. Aftamonte Heights Condominium Ass'n, lnc., 765 F.3d 1277 (2014)

765F3dt277United States Court of Appeals,

Eleventh Circuit.

Ajit BHOGAITA, plainriff-Appellee,

v.

AITAMONTE HEIGIITS CONDOMINIUM ASS'N, INC., Defendant-Appellant.

Nos. 13-rz625,Lg-Lg9r4. I Aug. 27,2o:.4.

Synopsis

Background: Condominium resident who suffered from post-traumatic stress disorder (PTSD) brought action againstcondominium association, alleging it violated the Federal Housing Act (FHA) and Florida Fair Housing Act by enforcing itspet weight policy and demanding he remove his emotional support dog from his condominium. Following partial grant ofsummary judgment in resident's favor, 2012WL 65627 66, and jury hial, the United States District Court for the Middle Districtof Florida, No. 6: I l-+v-O1637-GAP-DAB, Gregory A. Presnell, J., entered judgment on jury verdict in resident's favor, deniedassociation's motion forjudgment as amatterof law,2013 WL 2371243,and awardedresident attomey fees,20l3 WL 3836763.Association appealed.

Holdings: on consolidated appeals, the court of Appeals, Dubina, circuit Judge, held that:

I I ] association constructively denied resident's requested accommodation;

[2] evidence supported jury's finding that resident had a disability;

[3] evidence was sufficient to support jury's conclusion that requested accommodation was necessary;

[4] jury instruction on failure-to-accommodate claim was not overbroad;

[5] allowing resident's dog to remain in courtroom as demonstrative exhibit \ryas not abuse of discretion; and

[6] resident was a prevailing party entitled to attomey fees and costs.

Affirmed.

West Headnotes (25)

lU Federal Courts S* Summary judgment

Federal Courts @ Summary judgment

Court of Appeals reviews a district court's grant of summary judgment de novo, viewing the record and drawing allfactual inferences in a light most favorable to the nonmoving party. Fed,Rules Civ.Proc.Rule 56(a), 28 U.S.C.A.

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49 NDLR P 141,25 Fla. L. Weekly Fed. C 329

Cascs that cite this headnote

12t Federal Courts &* Taking caso or question frorn jury; judgment as a natter of law

Court of Appeals reviews the denial of judgment as a matter of law de novo, and disturbs a jury's verdict only whenthere is no material conflict in the evidence, such that no reasonable person could agree to the verdict reached.

Cases that cite this headnote

tr'ederal Courts & Instructions

Court of Appeals reviews jury instructions de novo to determine whether they misstate the law or mislead the jury tothe prejudice of the objecting party, but gives the district court wide discretion as to the style and wording employed.

Cases that citc this headnote

Federal Courts @ Instructions

Court of Appeals reverses based on jury instructions only where it is left with a substantial and ineradicable doubtas to whether the district court properly guided the jury.


Federal Courts &* Reception of Evidence

Court of Appeals reviews evidentiary rulings for abuse of discretion.


Federal Courts S- Costs and attorney fees

Court of Appeals reviews an award of attomey fees and costs for an abuse of discretion, examining underlyingquestions of law de novo and those of fact for clear error.

Cases that cite thìs headnote

Civil Rights 6* Housing

The Fair Housing Act (FHA) and the Florida Fair Housing Act are substantively identical, and therefore the same legalanalysis applies to each. Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A, $ 3604(Ð(3XB); West's F.S,A. $ 760.23(9Xb).


Civil Rights &* Discrirnination by reason of handicap, disability, or illness

To prevail on a failure-to-accommodate claim under the Fair Housing Act (FHA), one must prove that ( I ) he is disabledwithin the meaning of the FHA, (2) he requested a reasonable accommodation, (3) the requested accommodation was

necessary to afford him an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the

accommodation. Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A. S 3604(Ð(3XB).

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141, 25 Fla. L.

I Cases that cite this headnote

191 Civit Rights ** Condominiums and cooperative apartments; colnmon interest comrnunities

Civil Rights ** Discrimination by reason of handicap, disability, or illness

Condominium association constructively denied resident's requested accommodation of keeping an emotional

support dog to alleviate his post-traumatic stress disorder (PTSD) symptoms, so as to support resident's failure-to-accommodate claim under the Fair Housing Act (FHA); in six months following resident's request, association had notresponded except to request additional information and to indicate that if he failed to provide information, association

would file for arbitration, and association was not undertaking meaningful review, given that doctor's letters provided

to association before its second request for information contained the information needed to make a determination.Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A. $ 3604(ÍX3XB).



t10l Civil Rights &' Discrimination by reason of handicap, disability, or illness

The Fair Housing Act (FHA) does not demand that housing providers immediately grant all requests foraccommodation; once a provider knows of an individual's request for accommodation, the provider has an opportunityto make a final decision, which necessarily includes the ability to conduct a meaningful review to determine whetherthe FHA requires the requested accommodation. Fair Housing Act, $ 804(f)(3XB),42 U.S.C.A. $ 3604(Ð(3XB).


ll I I Civil Rights &. Discrimiuation by reason of handicap, disability, or illness

The failure to make a timely determination after meaningful review amounts to constructive denial of a requested

accommodation, as an indeterminate delay has the same effect as an outright denial, for purposes of a failure-to-accommodate claim under the Fair Housing Act (FHA). Fair Housing Act, $ 804(f)(3XB), 42 U.S.C,A. $ 3604(Ð(3XB).


Il2l Civil Rights 6* Discrimination by reason of handicap, disabilìty, or illness

That it is incumbent upon a skeptical housing provider to request documentation or open a dialogue in response

to an accommodation request under the Fair Housing Act (FHA), rather than immediately refusing a requested

accommodation, does not entitle a provider to extraneous information. Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A.

$ 3604(Ð(3XB).


tl3ì Civil Rights @ Discrimination by reason of handicap, disability, or illness

Generally, housing providers need only the information necessary to apprise them of the disability and the desire

and possible need for an accommodation, for purposes of determining whether to grant a requested accommodationpursuant to the Fair Housing Act (FHA). Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A. $ 3604(Ð(3XB).

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49 NDLR P 141,25 Fla. L, Weekly Fed. C 329


It4l Civil Rights #* Property and housing

Evidence was sufficient to support jury's finding that condominium resident, who suffered from post-traumatic stress

disorder (PTSD), had a disability within meaning of the Fair Housing Act (FHA); resident's testimony revealed hisbelief that his colleagues persecuted him, which made it practically impossible for him to work outside his home, anddoctor's letters stated that resident's condition limited his ability to work directly with other people, indicating thatresident was unable to work in a broad class ofjobs. Civil Rights Act of 1968, $ 802(h), 42 U.S.C.A. $ 3602(h).


tlsl Civil Rights ,Á}* Property ancl lrousing

Evidence was sufficient to support jury's conclusion that requested accommodation by condominium resident, whosuffered from post-traumatic stress disorder (PTSD), seeking to keep his emotional support dog that exceededcondominium association's pet weight policy, was necessary under the Fair Housing Act (FHA); letters from resident'sdoctor stated that dog assisted resident in coping with his disability and ameliorated his psychiatric symptoms and thatwithout the dog, resident's social interactions would be so overwhelming that he would be unable to perform work ofany kind. Fair Housing Act, g 804(f)(3XB), 42 U.S.C.A. $ 3604(Ð(3XB).


Il6l civil Rights #* Discrirnination by reason of handicap, disability, or illness

Under the Fair Housing Act (FHA), a comparator, for purposes of showing that a requested accommodation wasnecessary to afford claimant equal opportunity to use and enjoy dwelling, is a person without a disability, and an

accommodation extends an equal opportunity when it addresses the needs the disability creates; thus, a necessaryaccommodation is one that alleviates the effects of a disability. Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A. g

3604(Ð(3XB).


IlTl Federal Civil Procedure Q{" Construction and Effect of Charge as a Whole

Federal Courts ó* Instructions

Court of Appeals examines jury instructions in context, considering the allegations of the complaint, the evidencepresented, and the arguments of counsel when determining whether the jury understood the issues or was misled; so

long as the instructions, taken together, properly express the law applicable to the case, there is no enor even thoughan isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to criticism.


tlSl Civil Rights &. Property and housiug

District court's inclusion of "interacting with others and essential capabilities necessary for working in a broad class

of jobs" in its jury instruction for "major life activities" on condominium resident's failure-to-accommodate claimunder the Fair Housing Act (FHA) was not overbroad; court listed activities as an illustration of what it meant to be of

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Bhogaita v. Altamonte Heights Condominium Ass'n, Inc., 765 F.3d 1277 (20141

central importance to daily life, as distinguished from tasks associated with a particular job, directed jury's attention toissues before it by clariffing that resident alleged his impairment substantially limited his ability to work and interactwith others, and did not tell jury it could or should consider the other activities listed. Fair Housing Act, $ S04(f)(3)(B),42 u.S.C.A. $ 3604(Ð(3XB).


141,25 Fla. L. Weekly Fed.

tl9ì Civil Rights S+ Property and housing

Even if district court's inclusion of "interacting with others" in its jury instruction for "major life activities" oncondominium resident's failure-to-accommodate claim under the Fair Housing Act (FHA) was overbroad, it did notprejudice condominium association, as would warrant reversal; in closing argument, resident's counsel focused onresident's ability to interact with others as it related to working, rather than as an independent activity, and district courtdevoted l3 lines of text in jury instructions to impairment substantially limiting one's ability to work. Fair HousingAct, $ 804(f)(3XB),42 U.S.C.A. $ 3604(Ð(3XB).


]201 Civil Rights #* Discrimination by leason of handicap, disability, or illness

An accommodation's necessity, for purposes of the Fair Housing Act (FHA), requires only proof the accommodationaddresses the needs created by the handicap. Fair Housing Act, $ 804(f)(3)(b),42 U.S.C.A. S 3604(Ð(3Xb).


I2ll CivilRights @ Property and housing

Jury instruction that condominium association was unaware of resident's asserted need for an accommodationunder the Fair Housing Act (FHA) \Mas not warranted, where doctor's letters submitted by resident to association

demonstrated resident's need for accommodation. Fair Housing Act, $ 804(f)(3XB), 42 U.S.C.A. $ 3604(Ð(3XB).

Cases that cite this head¡ote


I22l Evidence ** Tendency to mislead or confuse

District court did not abuse its discretion by allowing condominium resident's dog to remain in courtroom as ademonstrative exhibit during his testimony, in resident's action alleging condominium association violated the FairHousing Act (FHA) by demanding that he remove his dog from the condominium, absent evidence that decisionrested on clearly erroneous fact-finding, an errant conclusion of law, or an improper application of law to fact. FairHousing Act, $ 804(QQ)þ),42 U.S.C.A. g 3604(Ð(3Xb).


I23l Federal Courts @ Admission or exclusion in general

A district court abuses its discretion to admit relevant evidence when its decision rests on a clearly erroneous fact-finding, an errant conclusion of law, or an improper application of law to fact.


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Bhogaita v. Altamonte Heights Condominium Ass'n, lnc., 765 F.3d 1277 (2014l'

I24l Civil Rights ** Results of litigation; prcvailingparties

In condominium resident's action alleging that condominium association violated the Fair Housing Act (FHA) bydemanding that he remove his emotional support dog, resident was a "prevailing party," within meaning of the FHA,and thus was entitled to reasonable attomey fees and costs, where jury awarded him $5,000 in compensatory damages.

Fair Housing Act, g 813(c)(2),42 U.S.C.A. g 3613(cX2).


P 141,25 Fla. L. Weekly Fed.

I25l Civil Rights &. Results of litigation; pr.evailing parties

A "prevailin9 parly:' within meaning of Fair Housing Act (FHA) provision allowing prevailing party to recoverreasonable attorney fees and costs, is one who has been awarded some relief. Fair Housing Act, $ 813(c)(2),42U.S.C.A. g 3613(c)(2).


Attorneys and Law Firms

*1280 Matthew W. Dietz, The Law Office of Matthew W. Dietz, Miami, FL, Aaron Carler Bates, Matthew Scott Mokwa,The Maher Law Firm, PA, Winter Park, FL, for PlaintifÈAppellee.

Scott Allan Cole, Kathryn L. Smith, Cole Scott & Kissane, PA, Miami, FL, Gregory Ackerman, Robert Alden Swift, Cole Scott& Kissane, PA, Orlando, FL, for Defendant-Appellant.

Appeals from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:l l-cv-O1637-GAP-DAB.

Before ED CARNES, Chief Judge, *1281 DUBINA, and SILER, *

Circuit Judges.

Opinion

DUBINA, Circuit Judge:

Appellee Ajit Bhogaita persuaded a jury that Appellant Altamonte Heights Condominium Association, Inc., ("the Association ')violated the disability provisions of the Federal and Florida Fair Housing Acts,42 U.S.C. $ 3604(Ð(3Xb) ("FHA") and Fla.

Stat. $ 760.23(9)(b), respectively, when it enforced its pet weight policy and demanded Bhogaita remove his emotional supportdog from his condominium. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than

$100,000 in attorneys'fees. The Association appealed both the judgment entered on the jury's verdict and the award of attorneys'

fees. We consolidated the appeals and now affirm.

I. BACKGROUND

A. Factual HìsloryThe Association is a non-profit homeowner's association for a condominium complex located in Altamonte Springs, Florida.Bhogaita is a United States Air Force veteran who suffers from post-traumatic stress disorder ("PTSD") that developed aftera sexual assault he endured druing his military service.

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Bhogaita v. Altamonte Heights Condominium Ass'n, Inc., 765 F.3d,1277 (20141

NDLR P 141,25 Fla.

In 2001, Bhogaita bought a condominium unit managed by the Association and subject to its rules. Among those rules, theAssociation prohibited occupants from keeping dogs weighing more than twenty-five pounds. In 2008, Bhogaita acquired a

dog, Kane, that exceeded the weight limit. Though no medical professional prescribed the dog initially, Bhogaita's psychiatricsymptoms improved with Kane's presence, so much so that Bhogaita began to rely on the dog to help him manage his condition.He kept the dog for the next two years.

On May 4,2010, the Association demanded that Bhogaita remove Kane from his unit, pursuant to the weight limit. Bhogaitaresponded by providing the first of three letters ùom Dr. Shih-Tzung Li, his treating psychiatrist, explaining that the dog wasan emotional support animal. The first letter, written on May 7, read in relevant part:

Due to mental illness, Mr. Bhogaita has certain limitations regarding social interaction and copingwith stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability to liveindependently and to frrlly use and enjoy the dwelling unit, I am prescribing an emotional support animalthat will assist Mr. Bhogaita in coping with his disability.

(R. 36-6 at 2.¡ I ln the second letter, sent days later, Dr. Li added specific information about the dog. He wrote that Bhogaita "hasa therapeutic relationship with this specific dog, Kane. As an emotional support animal, Kane serves to ameliorate otherwisedifficult to manage day to day psychiatric symptoms in Mr. Bhogaita." (R. 36-6 at 3.)

In July, the Association responded by sending Bhogaita its first request for additional information regarding his disability andthe need for accommodation. Specifically, it asked him:

l. What is the exact nature of your impairment? How does it substantially limit a major life activity?

*1282 2. How long have you been receiving treatment for this specific impairment?

3. How many sessions have you had with Dr. Li?

4. V/hat specific training has your dog received?

5. V/hy does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy your dwelling?

(R. 36-7 at 2 (numbering added).)

Bhogaita responded later that month by providing a third letter from Dr. Li, in which the doctor indicated the nature and cause

of the disability for the first time: He was treating Bhogaita for "Anxiety related to military trauma." (R. 36-6 at 4.) Dr. Liexplained further:

... [Bhogaita's condition] limits his ability to work directly with other people, a major life activity. Currently he has beenhired to perform technical support work from home. He is able to work with the assistance of his emotional support animal.Otherwise his social interactions would be so overwhelming that he would be unable to perform work of any kind.

I am familiar with the therapeutic benefits of assistance animals for people with disabilities such as that experienced by Mr.Bhogaita. Upon request, I would be happy to answer other questions,you may have conceming my recornmendation that Mr.Bhogaita have an emotional support animal. Should you have additional questions, please do not hesitate to contact me.

(R. 36-6 at 4.)

ed. C 329

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49 NDLR P 141,25 Fla. L. Weekty Fed.Shortly thereafter, Bhogaita also sent a response to the Association in which he answered the Association's questions in tum.Bhogaita identified his diagnosis and incorporated by reference Dr. Li's third letter to explain how his PTSD "affects majorlife activities." (R. 35-5 at 17.) He also claimed an additional disability related to five knee surgeries and two separate kneeinjuries arising from his military service and stated that Kane "provides mobility assistance to compensate" for those injuries.(R. 3s-s at 17.)

After receiving Dr. Li's three letters and leaming of Bhogaita's knee problems, the Association sent Bhogaita a second requestfor information on August 17,2010. The Association's second letter stated, in relevant part:

1. Please list each individual disabitity that you feel your pet is required for in order for you to offset the effects ofthoseindividual disabilities. Originally you claimed one disability, now you are claiming another disability. Please list all relateddisabilities.

2. Please provide documentation from a medical professional(s) that clearly supports that you have any of the disabilitiesnoted above, disabilities that substantially limit a major life activity, and that you are in need of a trqined "support animal "that exceeds the 25 poundweight limitþr that disability. Please include contactphysician information as well. (Note: Youhave already provided documentation regarding your claim related to mental health issues; however, your psychiatrist hasnot indicated that you need an oversized pet for this disability. This should be clarified by him if you want the exceptionfor this particular condition considered.)

3 ' Ifyou add names of any additional medical professional(s) from your original submission only of Dr. Li, please include howmany sessions you have had with those additional *1283 physicians similar to the information you provided regardingyour sessions with Dr. Li.

4. Please provide all information related to the professional training your pet has successfully completed regarding theassistance you claim he/she is required to offer you as a support animal. This requested information shall include the typeof training the pet received specifrc to the disability, the dates of training, the location of training, names and contact nameof the trainer(s), and copies of any certificates of successful completion.

(R. 36_8 at 2-3 (numbering added).)

Nearly two and a half months passed, during which time Bhogaita did not respond. On November 3, 2010, the Association senta third request for information, this time requesting a sworn statement from Dr. Li to include "specific facts":

l. "[D]etail[ing] the exact nature of [Bhogaita's] alleged mental disability',;

2. Listing the treatment he was receiving, including "a list of all medications, the number of counseling session per week, etc.";

3. Explaining "how the diagnosis was made";

4. Listing "the total number of hours and sessions of mental health treatment ... received from the psychiatrist";

5. Disclosing how long Dr. Li had been treating Bhogaita as well as how long Bhogaita had been in treatment generally;

6. Answering whether Bhogaita's "condition is permanent or temporary";

7. Listing treatments "prescribed ... moving forward";

8. Describing "how the mental disability substantially limits [Bhogaita's] major life activities"; and


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9. Explaining why a smaller dog would not sufficiently provide Bhogaita "an equal opportunity to enjoy his unit."

(R. 35-5 at 24.) Additionally, the Association sought documentation on "the individualized training" the dog received, includingdates, contact information for the trainer, and copies of any certifications. (R. 35-5 at 24.) That letter went on to state thatBhogaita was to respond by December 6, and if he did not, the letter would "serye as the Association's formal demand for[Bhogaita] to remove any dogs over 25 lbs from [his] unit no later than December 10, 2010." (R. 35-5 at 25.) If Bhogaita failedto comply, the Association said it would "be forced to file for Arbitration." (R. 35-5 at 25.) It instructed Bhogaita, "PLEASEGOVERN YOURSELF ACCORDINGLY." (R.35-5 at 25.)

Rather than responding, Bhogaita filed a complaint with the United States Department of Housing and Urban Development("HUD") and the Florida Commission on Human Relations ("the Commission"). He claimed that the Association's conductamounted to a failure to make a reasonable accommodation in violation of the disability provisions of the Federal and FloridaFair Housing Acts. In January 2011, HUD and the Commission issued findings of cause against the Association. Accordingly,the Association agreed to allow Bhogaita to keep Kane.

B. Procedural HistoryIn October 20 I I , Bhogaita brought suit. On the Association's motion, the district court dismissed Bhogaita's claim of disabilitydiscrimination brought under 42 U.S.C. $ 3604(Ð(2), while his reasonable accommodation claim, under $ 360a(f(3) andanalogous Florida law, survived,

"1284 After discovery, the parties filed cross motions for summary judgment. Though the district court denied theAssociation's motion for summary judgment, it granted Bhogaita's motion in part, finding that Dr. Li's letters supplied "sufficientinformation," and concluding that the Association's indeterminate delay, evidenced by escalating requests for information,amounted to a constructive denial of Bhogaita's request. Bhogctila v. Allamonte fleighx Condo. Ass'n, Inc., No. 6: I l_cv-1637,2012WL 6562766, at *7 (M.D.Fla. Dec. 17,2012). The district court reasoned that the demand that Bhogaita remove his dog"if he did not provide [the Association] with information it was not entitled to receive" amounted, as a matter of law, to aconstructive denial of the request for accommodation, 1d. Accordingly, the district court granted summary judgment in favorof Bhogaita on the refusal to accommodate element only.

A two-day jury trial followed. Because of the partial grant of summary judgment, the jury did not consider whether the

Association had refused Bhogaita's request for accommodation. After presentation of the evidence, the jury retumed a verdictin favor of Bhogaita: It found that Bhogaita was disabled and requested an accommodation for his disability, that the

accommodation was necessary and reasonable, and that Bhogaita suffered damages because of the Association's refusal toaccommodate. It awarded Bhogaita $5,000 in compensatory damages but declined to award punitive damages.

There were a number of post-trial motions. The district court denied the Association's motions for judgment as a matter of lawand for a new trial, where the Association raised the same arguments it raises here. The district court also denied Bhogaita'smotion for apermanent injunction, as the Association had already agreed to allow Kane to remain. Finally, the court ordered the

Association to pay $127,5 l2 in attorneys' fees, almost $70,000 less than the sum Bhogaita's lawyers sought. The Associationtimely appealed.

II.ISSUES

(l) Whether the district court properly granted partial summary judgment to Bhogaita on the refusal-to-accommodate element.

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(2) Whether there was sufficient evidence for the jury to find that Bhogaita has a disability that substantially limits a majorlife activity.

(3) Whether there was sufficient evidence to support the conclusion that Bhogaita's requested accommodation was necessary.

(4) v/hether the district court erred in its jury instructions with respect to the FHA.

(5) V/hether the district court abused its discretion in allowing Bhogaita's dog to remain in the courtroom as a demonstrativeexhibit.

(6) Whether the district court erred in its award of attomeys' fees.

14'l, 25 Fla. L. Weekly Fed.

III. STANDARDS OF REVIE\il

tll I2l "Wereviewadishictcourt'sgrantofsummaryjudgment denovo,viewingtherecordanddrawingallfactualinferencesin a light most favorable to" the nonmoving p arty. Mazzeo v. Color ResoluÍions Int'\, LLC,746F.3d 1264,1266 (11th Cir.20l4);see also Sntbeqm Television Corp. v. Nielsen Media Research, Inc,,71l F.3d 1264,1270 (l lrh Cir.2013) (applying the samestandard when reviewing a partial grant of summary judgment). A court must grant summary judgment "if the movant showsthat there is no genuine dispute as to any material fact and the *1285 movant is entitled to judgment as a matter of law."Fed'R.Civ.P. 56(a). Likewise, we review the denial ofjudgment as a matter of law de novo, and disturb the jury's verdict onlywhen there is no material conflict in the evidence, such that no reasonable person could agree to the verdict reached. Gotdsmithv. Bagby Elevator Co.,513 F.3d 1261, 1275 (llth Cir.2008).

t3l t4l Ourreview ofjury instructions is simultaneously de novo anddeferential. Id. af 1276. "W'e review jury instructions denovo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party" but give the districtcourt "wide discretion as to the style and wording employed." Id. We "reverse only where we are left with a substantial andineradicable doubt as to whether" the district court properly guided the jury. State Farnt Fire & Cas. Co. v. Silver Star Health& Relteb.,739 F.3d 579, 585 (l lth Cir'.2013) (intemal quotation marks omitted).

tsl 16ì We review evidentiary rulings for abuse of discretion. Fid. Interior Constt'., Inc. v. Se. Carpenters Reg'l Council ofthe United Bhd. oJ' Carpenters & Joiners of Am., 675 F.3d 1250, 1258 ( I I th Cir.20l2). Likewise, "[w]e review the award ofattorney's fees and costs for an abuse ofdiscretion," examining underlying questions oflaw de novo andthose offact for clearenor. Goldsmfth, 513 F.3d aT 1276.

IV. DISCUSSION

I7l The FHA prohibits discriminating against a person on the basis of a "handicap ,"2 or a disability, by refusing to makereasonable accommodations when necessary to afford the person equal opportunity to use and enjoy a dwelling. Fair HousingAmendments Act of 1988, Pub.L. No. 100-430, $ 6, 102 Stat. 1619 (codified at 42 U.S.C, $ 3604(Ð(3XB)). The FHA and theFlorida Fair Housing Act are substantively identical, and therefore the same legal analysis applies to each. Loren v. Sasser,309 F.3d 1296,1299 n. 9 (11rh CTr,2002).

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181 A successful failure-to-accommodate claim has four elements. To prevail, one must prove that (l) he is disabled withinthe meaning of the FHA, (2) he requested a reasonable accommodation, (3) the requested accommodation was necessary toafford him an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the accommodation. Schwarzt,. Citl oÍ'Treasure Island,544 F.3d 1201, 1218-19 (l lth Cir.2008).

A. Bhogaita wus entitled lo partíal summary judgmenl on lhe refusøl-lo-accommodate elemenL

l9l tl0l The Association argues the district court erred when it granted partial summary judgment, precluding the jury fromconsidering whether the Association denied Bhogaita's requested accommodation. The FHA does not demand that housingproviders immediately grant all *1286 requests for accommodation. Sch,¡varz,544 F.3d at 1219 (" '[T]he duty to make areasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodationmade.' " (quoting Princlable v. Ass'u of Apt. Owners, 304 F.Supp.2cl 1245, 1258 (D.l{aw.2003), qffd sub nom. DuBois v. Ass'nqf Apl. Ou'ners,453 F.3d 1175 (9th Cir.2005))). Once a provider knows of an individual's request for accommodation, theprovider has " 'an opportunity to make a final decision ..., which necessarily includes the ability to conduct a meaningful review'" to determine whether the FHA requires the requested accommodation. 1d. (quoting Prindable,304 F.Supp.2d at 1258).

llll The failure to make a timely determination after meaningful review amounts to constructive denial of a requestedaccommodation, "as an indeterminate delay has the same effect as an outright denial." Groome Res. Ltd. v. Pqrish ofJe/ferson,

234F'3d 192, 199 (5th Cir.2000). The Joint Statement of two federal agencies3 counsels similarly: "An undue delay inresponding to a reasonable accommodation request may" constitute a failure to accommodate. Department of Justice andHUD, Joint Statement on Reasonable Accommodations at I I (May 17,2004), available ø/ www.hud. gov/offices/ftreolliúarylhuddojstatement.pdf (last visited August 7, 2014) (.,Joint Statement,').

Bhogaita requested an accommodation in May 2010. More than six months later, when he filed a complaint with HUD andthe Commission, the Association had not responded to his request except to request additional information and to indicatethat if Bhogaita failed to provide that information, the Association would file for arbitration. The Association insists that itsdeliberative process was ongoing and that its requests were only meant to help it discern whether Bhogaita had a disabilityrequiring accommodation. To assess whether the partial grant of summary judgment was eror, we ask whether a reasonable factfinder could have concluded-based on the record evidence-that the Association was still undertaking meaningful review.

We answer that question in the negative. The Association produced no evidence at the summary judgment stage to supportits contention that it had not constructively denied Bhogaita's request. Neither Bhogaita's silence in the face of requests forinformation the Association already had nor his failure to provide information irrelevant to the Association's determination cansupport an inference that the Association's delay reflected an attempt at meaningful review.

Dr. Li's three letters,4 all submitted to the Association before its August 17 letter, contained the information the Association

needed to make a determination: They described the nature and cause of Bhogaita's PTSD diagnosis, 5 stated that Bhogaita*1287 was substantially impaired in the major life activity of working, and explained that the dog alleviated Bhogaita's

symptoms. Though Dr. Li's letters identified a cognizable disability and explained the necessity of accommodation, the August17 request sought the same information already provided. Bhogaita's failure to respond to that request cannot support theAssociation's position because the Association possessed all the information essential to its determination.

1l2l Il3ì Likewise, Bhogaita's failure to respond to the November 3 request for information cannot support an inferencethat the Association was still undertaking meaningful review. That it is "incumbent upon" a skeptical defendant "to requestdocumentation or open a dialogue" rather than immediately refusing a requested accommodat ion, Jankowski Lee & Associqtes v.

Cisneros, 9l F.3d 891 , 895 (7th Cir. 1996), does not entitle a defendant to extraneous information. Generally, housing providers

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need only the information necessary to apprise them of the disability and the desire and possible need for an accommodation. Seøe.9., Colu,ell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir.2010) (holding in a reasonable accommodation claim brought underthe ADA that employers need "enough information to know of both the disability and desire for an accommodation" (internalquotation marks omitted)); Joint Statement at l4 (counseling that, "[i]n most cases, an individual's medical records or detailedinformation about the nature of a person's disability is not necessary for" determining whether an accommodation is required).

The Association's critical inquiries were whether Bhogaita's PTSD amounted to a quali$ing disability and whetler Kane'spresence alleviated the effects of the disorder. Cf. Sc'hwarz, 544 F.3d at 1226 (holding that an accommodation is necessaryunder the FHA when it addresses the needs the disability creates). The November 3 letter requested, in addition to the pertinentinformation it already had thanks to Dr. Li's letters: "additional information regarding Bhogaita's treatment, medications, andthe number of counseling sessions he attended per week; details about how the diagnosis was made; whether the conditionwas permanent or temporary; and 'details of the prescribed treatment moving forward.' " Bhogaita, 2012 WL 65627 66, at *7

(quoting R. 35-5 at24).The requested information exceeded that essential for the Associations'critical inquiries. On the recordbefore it, the dishict court was correct in declining to hold Bhogaita's silence in the face of the last two letters against him andin determining that the Association had not pointed to evidence from which a jury could find that the Association had deniedhis request for a reasonable accommodation.

B. Bhogaíta olfered suf/ìcíent evìdence to show he has a disabìtity w¡th¡n the meaníng of the FHA,ll4l A person has a disability under the FHA if, among other things, he has "a physical or mental impairment which

substantially limits one or more of such person's major life activities." 42 U.S.C. g 3602(h). The parties agree that Bhogaitasuffers from a physical or mental impairment, and they agree that working is a major life activity. They depart company,however, on whether Bhogaita's impairment substantially limited his ability to work. When considering what it means for animpairment to limit subsøntially *1288 one's ability to work, we frnd cases interpreting and applying the ADA relevant.

When interpreting the pre-ADAAA definition of "disability," a definition virtually identical to the FHA's definition of"handicap," the Supreme Court of the United States concluded that an impairment substantially limits one's ability to workonly where it renders a person "unable to work in a broad class of jobs." Sutton v. United Air Lines, Lnc.,527 U.S. 471,491,119 S.Ct. 2139,2151, 144 L.Ed.2d 450 (1999). We apply the same interpretation here because of the similarity betrveen thepreamendment ADA and the FHA. Compare 42lJ.S.C. 12102(2)(A) (2003) (defining disability, with respect to an individual,as "a physical or mental impairment that substantially limits one or more of the major life activities of such an individual")with 42 U.S.C. $ 3602(hxl) (defining "handicap" as "a physical or mental impairment which substantially limits one or moreof such person's major life activities").

Bhogaita presented ample evidence at trial to show that his PTSD left him unable to work in a broad class ofjobs. Bhogaita'sown testimony revealed his belief that colleagues persecuted him, a belief that made it practically impossible for him to workoutside his home. Dr. Li's letters stated that Bhogaita's condition "limits his ability to work directly with other people" and thatsocial interactions had the tendency to be so overwhelming for Bhogaita, they could possibly render him "unable to performwork of any kind." For one to gain remuneration of any sort one must engage, at a minimum, with either a superior or a customer,and most jobs require much more. To note that the cloistered laboratory scientist occasionally presents his research to othersand that the warehouse stocker takes some direction from supply managers is to acknowledge that the sales clerk, the teacher,and the construction foreman, for example, interact significantly and almost constantly. Certainly jobs requiring significantsocial interaction amount to a broad class.

Viewing the evidence in the light most favorable to the jury's verdict and drawing all inferences in its favor, a reasonable jurycould agree to the verdict reached. See Goldsruith, 513 F.3d at 1275 ("V/e will reverse only if the facts and inferences pointoverwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict." (intemal quotation

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Bhogaita v. Altamonte Heights condominium Ass'n, lnc., 765 F.3d 1277 (2ol4l49 NDLR P 141,2s Fta, L. Weökiü Föd.marks omitte d)); Chaney v. Ciry of Orlctndo, 483 F .3d l22l , 1228 (l I th Cir.2007) (explaining that when considering a renewedmotion for judgment as a matter of law, the court does not review the jury's findings except to consider whether there wassufficient evidence to support them). The district court did not err in denying judgment as a matter of law on the disabilityelement.

C. Bhogaìta produced evídence supporlíng lhe conclusion that the requesled accommodation ítas necessary.

t15l t16l A successful FHA accommodation claim requires that the accommodation sought be "necessary to afford [theclaimantl equal opportunity to use and enjoy" the relevant dwelling. 42 U.S.C. g 3604(Ð(3XB). "The word 'equal' is a relativeterm that requires a comparator to have meaning." Schtvarz, 544 F.3d at 1226. Under the FHA, the comparator is a personwithout a disability, and an accommodation extends an equal opportunity when it addresses the needs the disability creates..Id. Thus, a "necessary" accommodation is one that alleviates the effects of a disability . Id. Thejury was properly instructedto that effect' (R. l3l at 9 (explaining that to prove necessity, Bhogaita had to "show, at a minimum, that the accommodationaffirmatively enhances *1289 [his] quality of life by ameliorating (or reducing) the effects of his disability").)

Some other arrangement, such as having a lighter-weight dog permitted by the Association's policy, might similarly alleviateBhogaita's symptoms, and evidence of such could be relevant to the reasonableness determination, which asks whetherthe requested accommodation "is both efficacious and proportional to the costs to implement it." Oconontr¡woc ResidentiqlPrograms v. CitV o/'Milw'aukee. 300 F.3d 7'15,784 (7th Cir.2002). It is not, however, relevant to the necessity determination,which asks whether the requested accommodation ameliorates the disability's effects. Schw,arz, 544 F .3d at l226.Both necessityand reasonableness are required, id. at l2l 8-19, but in this appeal, the Association does not raise the issue ofreasonableness withrespect to Bhogaita's requested accommodation. For that reason, we do not engage in the "highly fact-specific" reasonablenessinquiry, which would require a balancing of the parties'needs. Oconomowoc, 300 F.3d at784. The question we address is adifferent, more limited one: whether Bhogaita offered sufficient evidence that having the dog would affrrmatively enhance hisquality of life by ameliorating the effects of his disability.

Bhogaita produced evidence from which a reasonable fact finder could conclude that his dog alleviated the effects ofhis PTSD. Specifically, Dr. Li's letters said that Kane assists Bhogaita "in coping with his disability," (R. 3G6), and"ameliorate[s]" Bhogaita's "psychiatric symptoms," (R. 36-7), and that without the dog, Bhogaita's "social interactions wouldbe so overwhelming that he would be unable to perform work of any kind." (R. 4Ç6 at2.) In sum, the letters directly supportthe jury's verdict: The requested "accommodation was necessary to afford [Bhogaita] an opportunity to use and enjoy thedwelling." (R. 13l at l.)

D. The jary ínstructions do not wafianl revetsøL.

The Association argues that the district court erred in its jury instructions, identiffing in one case language that it should nothave included and in another language the Association says it should have. Neither amounts to reversible error.

tlTl We examine jury instructions in context, considering "the allegations of the complaint, the evidence presented, and thearguments of counsel when determining whether the jury understood the issues or was misled." Gowski v. Peake,682 F.3d1299' l3l5 (l lth Cft.2012). So long as the "instructions, taken together, properly express the law applicable to the case, thereis no error even though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to criticism." s/ø/eFarnt Fire & Cas. Co., 739 F.3d at 585 (intemal quotation marks omitted).

tl8l First, the court's instruction on "major life activities" was not overbroad in listing, among other examples, "interactingwith others and essential capabilities necessary for working in a broad class ofjobs" to explain that term. Considering the recordas a whole, the instruction was sound. The court listed ten activities not as a comprehensive anthology but as an illushation

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49 NIJLI-< P 141,25 Fla. L, Weekly Fedof what it meant to be "of central imr130 at 8.) It then directed the jury's attention to the issues before it by clariffing that Bhogaita "alleged that his impairmentsubstantially limited [his] ability to work and interact with others." (R. 130 at 8.) The court did not tell the jury it could orshould consider the other activities listed.

*1290 tlgl Moreover, even if we assumed the inclusion of "interacting with others" in the instructions was technicallyincorrect, there was unlikely any prejudice to the Association. Badger v. So. Farm Bureau Life Ins. Cr¡., 612 F.3d 1334, 1339(l lth Cir'2010) ("V/e will not disturb ajury's verdict unless the charge, taken as a whole, is enoneous and prejudicial." (internalquotation marks omitted)). In closing argument, Bhogaita's counsel focused on Bhogaita's ability to interact with others as itrelated to his working, rather than as an independent activity. The court devoted thirteen lines oftext in its jury instructionsto what it meant for an impairment to limit substantially one's ability to work and never mentioned interacting with othersseparately from working with others. "Our practice is not to niþick the instructions for mino r defects." Morgan v. Family DoltarStores, Inc., 551F.3d 1233, 1283 (l lth Cir,2008). Reversing based on the inclusion of "interacting with others" would requireone to assume that the jury concluded that Bhogaita's PTSD substantially impaired his ability to interact with others but not hisability to work in a broad range ofjobs, such as those requiring significant social interaction. That is a speculative assumptionand, based on the evidence and argument, an unlikely one. Therefore, the instruction does not warrant reversal.

l20l Nor does the court's refusal to give the Association's requested necessity instruction require reversal. The Associationinsists the instruction was incomplete because it did not refer to Bhogaita's "use[ ] and enjoy[ment]" of his unit. (R. l2l at2.)But establishing an accommodation's necessity requires only proof the accommodation "address[es] the needs created by thehandicap," Schwarz,544 F.3d at 1226, and the instruction given properly expressed that principle. (R. 130 at 9 ("To prove thatthe desired accommodation is necessary, [Bhogaita] must show, at a minimum, that the accommodation would affirmativelyenhance [his] quality of life by ameliorating (or reducing) the effects of his disability.").) It affirmatively required the jury tofind "an identifiable relationship, or nexus, between the requested accommodation and [Bhogaita's] disability." (R. 130 at 9.)

I2ll Moreover, based on the contents ofthe letters the Association concedes it received from Bhogaita and Dr. Li, no reasonablefact finder could conclude that the Association was unaware of Bhogaita's asserted need for an accommodation. Because nothingsupported the Association's theory it lacked knowledge, it was not error for the court to refuse to instruct the jury on that theory.Ad-Vantoge Tel. Directory Consult(tnÍs, Inc. v. GTE Directr¡rias Corp., 849 F.2d 1336, 1349 (llth Cir.1987) (holding that atrial court must instruct the jury on a litigant's theory of the case only if the litigant makes a proper request and "there is anycompetent evidence to support the theory').

E. In allowing the dog to remain ín the courtroom, the court díd not abuse íts discrelìonl22l I23l The Association insists the dog's presence in the courtroom and at Bhogaita's side during his testimony was unfairly

prejudicial, as it suggested that Bhogaita required the dog at all times, and that this prejudicial effect substantially outweighedany probative value the dog may have had. See Fed.R.Evid. 403 þermitting courts to "exclude relevant evidence" if the dangerof"unfair prejudice" substantially outweighs its probative value). The district court hearing this case concluded otherwise, butthat is the nature of the broad discretion granted to trial courts determining evidentiary matters. *1291 Gray ex rel. Alexanderv. Bo,stic, 720 F.3d 887, 893 (l lth Cir,20l3) (explaining that the abuse of discretion standard implies a range of choices). Andthis discretion is particularly broad with respect to Rule 403 determinations. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.379, 384-85, 128 S.Ct. I140, I 145, 170 L.Ed.2d I (2003). A district court abuses its discretion to admit relevant evidencewhen its decision rests on a clearly erroneous fact-finding, "an errant conclusion of law, or an improper application of law tofiact." Fid. InÍerior Constr., Inc., 675 F.3d at 1258 (intemal quotation marks omitted). Nothing suggests that the district court'sdecision allowing the dog to remain present as a demonstrative exhibit rested on any of the three.

P 141,central importance to daily life as distinguished from tasks associated with a particular job." (R.

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F. The district court dìd nol err ín awardíng attorneys,fees.

I24l t25l The FHA allows a prevailing party to recover reasonable attomeys' fees and costs. 42 U.S.C. g 36I3(c)(2). "[A]'prevailing party' is one who has been awarded some relief." Buckhannon Bd. & Care lIome, Inc. v. W. Va. Dep't of Ilealth &I-Iumctn Res., 532 U.S. 598, 603,121S.Ct. 1835, 1839, 149 L.Ed.2d 855 (2001). Bhogaita's award of $5,000 in compensatorydamages represents relief, and, despite the Association's insistence otherwise, was not nominal. See Farrar v. Hobby,506 U.S.103, 108, I I3 S.Ct. 566,57l, l2l L.Ed.zd 494 (1992) (noting that an award of one dollar was nominal); Black's Lqw Dictionary447 (9th ed.2009) (defining "nominal damages" as "[a] trifling sum awarded when a legal injury is suffered but there is nosubstantial loss or injury to be compensated"). Thus, he is entitled to reasonable fees and costs. \Ve do not consider whether theamount of fees awarded was an abuse of discretion, as the Association contends only that Bhogaita should have been awardedno fees at all.

Because we conclude from the record that there is no merit to any of the arguments the Association makes in this appeal, weaffirm the judgment entered on the jury's verdict and the district court's order awarding Bhogaita attorneys' fees.

AFFIRMED.

Parallel Citations

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Footnotes* Honorable Eugerre E. Siler, Jr., United States Circuit Judge for the Sixth Circuit Court of Appeals sitting by designation.

I Document and page numbers in record citations refer to the document and page numbers assigned by the electronic filing systemin the district court.

2 The FHA refers to discrimination based on "handicap" rather than disability. 42 U.S.C. $ 3604(f). Disability scholars, however,generally prefer the term "disability" to handicap, and the Americans with Disabilities Act, Pub.L. No. 10l-336, 104 Stat. 327(1990)(codifiedasamendedat42U.S.C.$$ 12101-12213)C'ADA"),reflectsthatpreference.Forthisreason,wetreatthetermsinterchangeably and elect to use "disability" and the prefened possessive construction. See Giebcler v. M & B Assocs.,343 F.3d1143, 1146 n' 2 (9th Cir.2003) (using the terms interchangeably and stating the same rationale for doing so); Michelle A. Travis,Impuinnent us Protected Slutus: A New (Jnitersatit¡'.þr Di.rabititt,Rights,46 GA, L. REV. 937 (2012) (referring throughout topersons "with disabilities" rather than "disabled persons").

3 Though the Joint Statement is a policy statement, rather than an authoritative interpretation ofFHA and therefore does "not warrantChevron-style deference," Christensen v. Harri,s Cnry,, 529 U.S. 576. 587,120 S.Ct. 1655, 1662 63, 146L.Ed.2dó21 (2000), it isnonetheless " 'entitled to respect' " to the extent it has the " 'power to persuade.' " /d. (quoting Skidmore v. Stuift & Co.,323 [J.5.t34,140,65 S.Ct. t6t,164.89 L.Ed. t24 (t944)).

4 Though the Association offered evidence at trial suggesting that the letters were copied-and-pasted form letters, a fact that mighthave created a credibility question, it produced no such evidence at the summary judgment stage.

5 It is of no moment that Bhogaita's own July letter to the Association mentioned his knee problems for the first time and withoutsupporting medical documentation. If the Association had all the essential information to make a determination regarding onedisabling condition-PTsD-it did not need proof of an additional disability.

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Olivia Jenq (SBNl64l35)945 Taraval Street, Suite 258San Francisco, CA 94116Tel: 41 5-680-852 IFax: 1-888-865-1810

Attomey for Defendant, Janice Milliken

SUPERIOR COURT OF THE STATE OF'CALIFORNIACITY & COUNTY OF SAN FRANCISCO

LIMITED JURISDICTION

JAMES BONG ENTERPRISES, INC.

Plaintiff,

v.

JANICE MILLIKEN

Defendant.

PRELIMINARY STATEMENT

This case is an action in unlawful detainer in which the sole ground alleged in the 3-Day

Notice to Pay Rent or Quit was the non-payment of August 2010 rent. The defendant sent in

her August 2010 payment on September 3,2010 because she was unable to keep track of dates,

as a result of her disability.

STATEMENT OF THE FACTS

In December 2007, defendant sustained serious injuries to her knee, legs, neck, spin, and

head in an accident. She was under the care of psychiatrist, orthopedic surgeon, head and neck

surgeon, dentist, osteopathic physician, acupuncturist, as well as underwent physical therapy for

18 months.

In January 2008, after multiple tests and brain/spine MRIs, she was instructed by San

CaseNo.: CUD-11-636778

DEFENDANT'S SUPPLEMENTALTRIAL BRIEF:TIMING OF'REASONABLEACCOMMODATION REQUEST

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Francisco General Hospital's Chief Surgeon to schedule a surgery. She did not proceed because

she was unemployed, without health insurance coverage, and her savings had been depleted by

mounting medical bills.

To this date, she continues to suffer from memory lapses, depression, anxiety, upset,

disorientation, lingering headache, debilitating pain, and tiredness. She often has difficulty

keeping balance and her legs, feet, and ankles swell up easily, making it difficult to leave her

apartment. Her health problem and mental impairment make it very difficult to work as a

free-lance consultant because she often cannot keep track of dates and details. This mental

impairment also caused her to miss her rent due date from time to time.

The 3-Day Notice to Pay Rent or Quit was served on the defendant on March 31,2011,

specifying the non-payment of August 2010 rent as the sole ground. This was the first time the

defendant became aware that plaintiff had probably recorded her rent payments wrong, as she

was sure that she had made 12 rcnt payments in 2010.

In the first week of June, as soon as her counsel was able to reconstruct her 2010-2011

payment records and examine her 2 checks meant for March and April rent which were retumed

by plaintiff it became clear that plaintiff must have recorded her payment meant for August

2010 as September payment, as a result of her paying the rent late.

On June 8,2011, defendant served a letter on plaintiff requesting reasonable

accommodation pursuant to Fair Housing Amendments Act (FHAA), 42 U.S.C. $ 3601 et seq.

(1995) and Giebeler v. Associates ABL,No. 00-17508; Docket No. CV-98-20405-RMW 19th Cir.

2003). Given defendant's difficulty in keeping track of rent due dates as a direct result of her

disability, defendant requested to have her sister, who has been paying her rent since September

2010, become the guarantor or cosigner of her lease and wire transfer the rent payment directly

to the plaintiff s account on the due date each month. The plaintiff did not respond to this

request. Plaintiff was put on further notice of defendant's disability when defendant's answer

listed her affirmative defenses. On August 15, defendant again requested the above reasonable

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accommodation and offered to pay all the rent to bring her account up to date. This request was

rejected by the plaintiff on August 15, claiming that the request was made after the service of 3-

Day Notice to Pay Rent or Quit, hence too late.

In this case, defendant's disability impaired her ability to keep track of rent due dates and

her late payment of her August 2010 rent flowed directly from her disability. Under the law, the

plaintiff is required to take reasonable steps to accommodate her disability.

This brief addresses the issue of whether a request for reasonable accommodation made

after the 3-day Notice to pay Rent or Quit had expired was made too late and hence relieve

plaintiff his obligation to provide reasonable accommodation.

F'AIR HOUSING ACT DOES NOT REQUIRE THAT A REQUEST BEMADE IN A PARTICULAR MANNER OR AT A PARTICULAR TIME

The Department of Justice ("DOJ") and the Department of Housing and Urban

Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Acl

Contrary to plaintiff s argument that the request must be made prior to the 3-Day Notice, DOJ

and HUD in their "Joint Statement of the Department of Housing and Urban Development and

the Department of Justice -- Reasonable Accommodations under the Fair Housing Act", made

it abundantly clear that the Fair Housing Act does not require that a request be made in a

particular mønner or at a parliculør tíme (see attached on page 10. The complete 15-page

document can be found at http://www.hud.gov/offrces/ftreo/librar.v/huddojstatement.pdÐ

CASE LAW IS CLEAR THAT LANDLORD'S DUTY OX'REASONABLE ACCOMMODATION EXISTS THROUGHTIME OF' RECOVERY OF' POSSESSION

Plaintiff s argument's that a reasonable accommodation request must be made prior to thr

service of 3-Day Notice is also unsupported by case law. A long line of cases had made it

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abundantly clear that, in the eviction context, a tenant may request an accommodation before

trial, at trial or up until he or she is actually evicted.

ln Boston Housing Authority v. Bridgewaters,452 Mass. 833 (2009), the court held that

the tenant meets his obligation to request an accommodation by making such request to the judge

at eviction trial. At his trial, Bridgewaters made the judge aware of his disability, testifying

about his mental disability, and his subsequent treatment program.

The court held that the tenant fulfilled the notice requirement of a reasonable

accommodation request by apprising the judge of his need for an accoÍrmodation. By opposing

his eviction, asking to remain in his apartment, and stating that he was being successfully treated

for his disabilities, the tenant indicated that the relief he sought was that the landlord depart from

its eviction policy and reinstate his tenancy. Combined with tenant's assertions at trial that he

was mentally disabled and had been successfully treated subsequently, the court finds this

amounted to a timely request for an accommodation.

ln Douglas v. Kriegsfeld Corporation, SS4 A.2d ll09 (D.C. Cir. 2005), the court finds

that a reasonable accommodation defense is available at any time before a judgment of

possession is entered. ln Douglas, the landlord of Section 8 housing served the tenant with a

thirty-day notice to "cure or quit" for violation of her lease covenant to "maintain the apartment

in clean and sanitary condition" on August 23,2001. The tenant neither cleaned up nor vacated

the premises, and the landlord accordingly filed an action for possession on November 30, 2001.

of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under

the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder,';that

affected the tenant's ability to keep the apartment "safe and sanitary. Counsel added: The

On February 5,2002, counsel for the tenant sent a letter to the Director of the

"District of Columbia Government is prepared to assist her with cleaning the apartment."

never took action.

On February 20,2002, counsel for the tenant wrote to the landlord requesting a

reasonable accommodation in which the counsel explained the basis for accommodation but did

not describe the type of accommodation sought and what the District of Columbia government

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would offer. Evidence showed that landlord's counsel-who has acknowledged receipt-never

responded to this letter. One of the stated reasons the trial court rejected the tenant's disability

discrimination defense was that the request for reasonable accommodation came several months

after the landlord had served the thirty-day notice to cure or quit and filed the lawsuit, hence the

request was made too late.

On the issue of timing, the Douglas court found the trial court had erred and opined:

ccur at entirey evict riminationperiod to cure orof the As anøhle accommodatíon" defense ís

t of possession has beendefense are met. The trial court

er the Fair Housing Act that anse will be limely untíl the proverbial

løst minute," [emphasis added]

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In Housing Authority of Bangor v. Maheux, 7 48 A.2d 47 4, 47 6 (Me. 2000), the

landlord notified Maheux that her lease was being terminated on the grounds that the thrgatening

conduct of her son seriously disrupted the right of other tenants to the quiet enjoyment of their

homes. Thereafter, landlord filed a complaint for forcible entry and detainer against the tenant

Maheux. Maheux asserted an affirmative defense that landlord was obligated to make a

"reasonable accommodation" for her family in light of her son's diagnosed "Oppositional Defiant

Disorder." A judgment was entered against the tenant, and the tenant filed a motion for relief

from judgment and for stay of issuance of writ. On appeal, the court ruled in favor of the tenant

and held thatthe løndlord ís under duty to accommodøte untíl evictìon wrít ß æsøed[emphasis

addedl

It should be noted that, in this instant case, plaintiff has thus far failed to provide a single

citation to this court to support his position that areasonable accommodation request must be

made before a notice is served or during the pendency of said notice.

Guidance from the case law is abundantly clear: the reasonable accommodation request

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can be made anytime before the actual execution of the writ and that the jury's job is to determi

whether the landlord discriminated against the tenant when the request was made even if made

after the expiration of the notice.

DEFENDANT WOULD PREVAIL IN FEDERAL LAWSUITBASED ON PLAINTIFX''S FAIR HOUSING ACT VIOLATION

Should the court denies defendant the right to present evidence of her disability and her

request for reasonable accommodation at trial, the following anomaly would result: plaintiff is

successful in evicting defendant and she loses her home, but she could file a complaint in F

Court alleging a violation of the Fair Housing Act and be compensated for the loss of her home.

That loss would be the difference between her rent-controlled rent and the market rent for as lo

as the tenant would have stayed in the unit. As a result, by failing to allow defendant to present

her affirmative defense of Fair Housing Act violation, this court would expose plaintiff to

hundreds of thousands of dollars in damages in a federal lawsuit.

CONCLUSION

There can be no doubt that, under the Federal and State Fair Housing Acts and the legal

precedents, even though plaintiff only became aware of defendant's disabilities upon the receipt

of her initial request for a reasonable accommodation after the 3-Day Notice was served, the

to comply with the FHAA still exists, and the plaintiff has a present obligation to the tenant.

At this trial, the facts surrounding defendant's disability, her repeated requests for a

reasonable accommodation and the denial thereof, are all relevant to defendant's affirmative

defenses of discrimination and retaliation, and must be allowed into evidence to be evaluated by

the jury.

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At the close of the trial, defendant will ask the court for jury instructions on Fair

Housing Act, disabilities, and reasonable accommodation. "[T]he question of what constitutes a

reasonable accommodation . . . 'requires a fact-specific, individualized analysis of the disabled

individual's circumstances and the [possible reasonable] accommodations."' McGary v. City of

Portland, at 1270.

Dated: August 20,2011

Olivia Jenq, Attorney for Defendant

-7-

ln case you haven't seen this article from the California Apartment Association Network News that isposted on its website ( http://www.caanet.orq/ ). The article might be useful someday to show to arecalcitrant land lord.

CAA Network News

What Are the Most Common Reasonable Accommodation Requests?

ln most cases, housing providers are legally required to grant accommodations for disabled tenants. Anaccommodation request can be denied if granting the accommodation would cause an undue financial oradministrative burden for the housing provider, or would fundamentally alter their business.

According to the Housing Rights Center, here are the most common requests from tenants.

Service and Support AnimalsWhile housing providers can establish a "no-pet policy" for their properties, tenants with disabilities whorequire the use of a service or emotional support animal for medical purposes, are entitled to anexception to the rule.

Unit TransfersTenants with disabilities can request to be transferred to another available unit of equal value, if thetransfer is medically necessary. For instance, a tenant with a worsening physical disability should beallowed to transfer from their third-floor unit to a similar ground floor unit due to difficulties climbing thestairs.

CaregiversTenants with disabilities may find it medically necessary to have a24-hour caregiver live in their unit. Arequest to have a live-in caregiver must be granted unless it poses an undue financial or administrativeburden, or fundamentally alters the housing provider's business. Housing providers cannot require that acaregiver be added to the lease, and in most cases, a rent increase is not permissible.

RentMany disabled tenants receive socialsecurity income as their primary money source, and socialsecuritychecks often arrive on the third day of the month or later. Monthly rent is usually due on the first day ofthe month. Disabled tenants may request that the housing provider accommodate their disability bymoving their rent due date to coincide with their social security check. This would allow them to avoidpaying costly late fees every month and/or be in constant risk of eviction.

lnformation forthis afticle is f¡om The Housing Rights Center ("HRC") lA/1 IW.HOUSTNGRTGHTSCENTER.ORG whichis the nation's largest nonprofit fair housing organization based in Los Angetes. The Catifomia Apartment Associationwotks with HRC to inform rental property owners of impoftant fair housing rssues.

Gharf llajor Fair Housing Laws Gompared

ComponartFah Høsing Acf(Iile\4ll of $eGivil Rights

futof 1968. asamendedlFaü Employmart and lbusing AdIFEHAI

Unruh Civil R¡ghts Acû Civil Code$$ 5å5â3

Gorerage: Prohib'ts d¡scrim¡næion in the sale,rental, lease, or negot¡æions forhousing accommodations and interms, conditions, privileges, servicesor facil¡ties in oorinect¡on wiü|hous¡ng, based on:¡ Race. Cdoro Religion. Sex. National Origin. Fàm¡l¡al Ståtus. Disability (includes mental

di=biliÇ. ¿koholism, drugaddiction not resulting fromcurrent abuse of controlledsubstances.) (42 U.S.C. 5 3602,subd. (h); 42 U.S.C. 5 3604.)

Similar to federal law; fuur additionalprotected bases: marilal slat is, ancesùy,sexual orientation and source of income.(Gov. Code, S 12955.)

. 'Sex' indudes a person's gender.Gov. Gode g 12926(ù proh¡bitsdiscrimination agaínst transgenderedpeople ¡n housing per Iâe GenderNon-Dissimît?ø,tîon Act of 2Ut3-

. Expresslyprovidesthatdiscrimination índudes harassment,and also includes a perceÉion tfi¿t aperson hæ a prüected characteristicor that à person ¡s assoc¡ated wltf¡another individual who has, or whois perceived to have, any of thesecharaderistics. (Gov. Code g 72927,g¡bd. (c) (1), 12955, suM. (o)).

. Prohibits the use of a financial or¡ncome sndard in tñe rental ofhousing that Ëils to åccourit for theaggregate lncome of personsres¡d¡ng togetfler or propodng toreskle togetfier on úte same Þsis asthe åggregate ¡ncome of marriedpersorìs res¡ding bgetñer orpmposing to res¡de together, (Gov.Code 5 12955, suM. (n)).

o Prohibits the use of a fina¡rcial orincome standard in assessingeligibility for the rental of housingthãt is not based on the portion ofthe rerlt to be paid by tf¡e tenant ¡n

¡nsbnces where üte tenant rec€iv6a govemmerÊ rent srbsidy (Gov.fì^dâ Ã I tO<t orlv{. lnìì.

Unruh proh¡b¡E dÍscrim¡nation bybusiness establishments based onsex, Erce, color, religion, ancefy,national orig¡n, disab¡lity, medicalcondÌtion and arbitraryd¡scr¡m¡nation against o,tñer, non-enumerated dasses based onperson characteristics (e.9,, sexualorientat¡on, age, etc.).

Unruh (Civ. Code 5 51) isincorporated irto the FEHA, forpurposes of housing disffimination,through Govemrnent Code I12955, subdivision (d).

The Civil RÍghB Act of 2005dan'fied that people are protectedfuom discrimination by businessestablidrments regardless of treirsexual orientat¡on, gender ¡dent¡tyor marital stahrs. CV¡l Code gsl(exs)

. Prohibits persons from discriminating againstind¡viduals w¡th disâbilitiês ¡n hous¡ngacrommodations offered fur rent, lease, orcompensation (Civ.Code 5 54.1, subd.(bx1)).

. Indudes prov¡gon that Ít shall be deemed adenial of equal access to housingaccommodations to deny indivíduals who areblind, vis¡¡ally impa¡red, hearing ¡mpðíred, orotherwise disaHe the right to use üre serviceof a guide dog, signa¡ dog or service dog, orthe r¡ght to keep such dogs on theirpremises (Ov. Code 5 54.1, subd. (bX6XA).

¡ Èohibits reñrsa! to rent to ¡ndividual with adisab¡lity on tñe basis that the ¡nd¡v¡dual witha disability ¡s partially or wholly dependentupon t}te income of his or her spouse, if thespouse is a party to the reñtal agreement(Gv. Code 51.1, subd. (bX7)).

. Provides that v¡sûally ¡mpaired, hearinglmpaired, other individuals with a disability,and persons authôrized to tra¡n gu¡de, signâland serv¡ce dogs for indMduals with ad¡sability may Þke sudì dogs to housingaocommodations fur the Flrpose of trainingthem. Requiresthatsucfi dogs beon a leashand tagged as a guide, signal orservíce dog.(Gv. Code g 54.1, srbd. (c)). Althot¡gh noe)ûra charge or se@rity depos¡t may bechargred for such dogs, individuals will belíade fur any damagæ done to the premis€sby his or herdog. (cv. Code ! 54.2, subds(a) and (b)).

Proh¡bits interference wilú r¡gttts of an individualwith a disbility under sections 54, g'1, and54.2 (Civ. Code 5 54.3, subd. (a)).

Prohbib

. Intentionaldiscrimination(42 U,S.c. 5 36Oa¡

. Aórerse impact (by judicialinterpr€fation: æ, e.9., Keilllv. votæ (9ü cir. 1988) 858 F.2d467).

. Intenbonaldisoimination(Gov. C.ode g 12955.8, s¡bd. (a).)

r Adverse impad(Gov. Code 5 12955.8, s¡bd. (b):)

Intentional discri mination q!y.See fb¡ns v. GplÞl GrottdtIrrvæþß (1991) 52 øl 3d L742-

Civil Code Section g is silerìt on whetñer adverseimpact da¡ms are induded.

Ghart llajor Fair Housing Laws Gompared

Componat Fair Housing Act(l-tüe Vlll of fte GMI Rigl"¡bAet of l9ôE. æ amendedl

Fair Emfloyment and llousing Ac{fFEHAI

Unruh CÍvilRigtrbAd CMI Gode SS 5&543

Exemflion forSmall llousingPlwirhlg:

D¡scrim¡nation prcvisions (exceptadvertis¡ng requirements) do notapply to:

1) Any single famíly house sold orrented by olner, provided orvnerdoes not ovìrn more than three suchhouses at one time, E¡gl sale orrental does not use serv¡ces of a realestate broker or agent;

2) rooms or units ín oìflner-ocanpied livlng guarters intended forand occupied by no more than ñourfamilies living indeændendy of meanatàs- l42U.-S-C- A 36f)3 lbì-l

D¡sûim¡natlon prov¡dons (qceptadvertbing requirements) do not apply toownenocolpied s¡nglefamily houses that¡ent to only one noomer or boarder. (Gov.Code 5 12927 subd. (c).)

DiscrimÌnation provlslons applyonly to obusiness establishments.'See DFFH v. Baker, (1999) FEHCDec. No 99-14

D¡scrim¡nation pro\r¡sions do not apply to singlefamily residences in wh¡dt the occupants rent,lease, or fumish for compensation only one rroom.

ExemSiuforRd¡g¡ousOrgÐizdion

Allours rellglous orgÈn¡ation to userelþious preference ¡n non-commercial housing, unlessmembersfì¡p ín the religion isresùicted on account of race, color,or national origin. (42 U.S.C. 5 3607lâì \

Same as federal l¿w (Gov. @de, 51295s.4)

Discrimination provisions applyonly to 'business establlshmenB.'*e DFEH v. Èlcer, (1999) FEHCDec. No 99-14

No specific exemption.

FmilidStaû¡s:

Prohlbits fam ilÍal statusdiscriminât¡on. (Gov. Code 5 12955,)

Proh¡b¡ts fam¡l¡al #ùrs d¡scriminat¡on(Gv. Code 59 51 and 51.2. srbd. (a))æ, Marina Po¡nt Limited v. Wolî*n,(1982) 30 Ø72L

N/A

lJ",5ee. n.g., -U¡1i1çsl-Ð14lÊÅ v.Ëg$1-hgrn*&.J11¡-rggç,¡!ç:U!,,{..;jgÐ.,955 Iì.?d 914, $1914th Cir.tçgz) tdiscusiins;;il;;. iüîü"s"{r" $ 3üû?{hi für,,eurrçnt, iilegat use *doradejiction to a contrclled substancc".¡

lü. Perssns rvho mecl the dcli¡rition oldisahility for ¡luqposes of re*eiving Supplem*ntalSecurity Incn¡rre {"SSl") nr Social tiecurity Oisahilitl; lnsurance ("SSl-}1"} benefits innlost c¿¡ses meel ihc definition of disaliiliry un<Jer rhã Fair Housing Act, aithough theçûnvefse ntay nol bt: tme. See e.g., Çjeyglgl4 v. ilçligy h{a$agnlte$t Sys-te . ., 526t l.S. ?ç5, 7q7 {Ç99) (noting that $Sl}l pravidcs hs-netit$ tn a pcfsr}n with a clisability sosevere that shc is uilablc to dç her ¡rrn:vi*.rrrs wtirk anrl c¿Lnnol eirguge iri any t¡ther ki¡rcl i.¡{'sub¡stanti*i gainlul rvork wher*ou o p*ruon pursuing an actio¡r fbi iisability discrirninationtrllder thc .4nrel'icans with Dísabi!iti*s ,4,c:t r¡lay stíïlr a clairii that "rvith n reasr,nableacearnmodåtion" she could peribnn the essentiai functiq:ns of the"joh¡.

5/t s/ú4

http, /l www Justrce .gov / cr+ /housi trr g /Joitnlstc{fetma,1p

TJ.S. DEPARTMENT OF HOUSil\G AND

OFF'ICE OF FAIR HOUSING AND EQUALOPPORTUNITY

URBAI\ DEVELOPMENT

JOINT STATEMENT OX'THE DEPARTMENT OX'HOUSING AND URBAN DEVELOPMENT

AND THE DEPARTMENT OF JUSTICDREASONABLE ACCOMMODATIONS UNDE R THE

FAIN HOUSING ÀCT

Introducti.g""[

The Department of Justice ("DOJ") and the Department of Housing and Urban Development("HUD") are jointly responsible for enforcing the federal Fair Housing Acto (the "Act"), whichprohibits discrìmination in housing on the basis of race, color, religion, sex, national origin,familial status, and disability.ø oire type of disability discriminat-ion prohibited by the Ãci is ttrerefusal to make reasonable accommodations in rules, policies, pradicés, or services when suchaccommodations may be necessarv touse and enjoy a dweiling.¡31Hun *¿housing providers have violated the Adisabilities. This Statement provides technical assistance regarding the rights and obligations ofpersons with disabilities and housing providers under the Act relating to reasonableaccommodations.0

Ouestions ¡nd Answers

1. \ilhat types of discrimination against persons with disabilities does the Act prohibit?

The Act prohibits housing providers from discriminating against applicants or residents becauseof their disability or the disability of anyone as ¡ociated with themo and from treating personswith disabilities less favorably than others because of their disability. The Act also makes it

I4rashington, D.C.May 14, 2004

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The term "major life activity" means those activities that are of central importance to daily life,such as seeing, hearing,.walking, breathing, performing manual tasks, caring for one's self,leaming, and speaking.löl This list of major life activities is not exhaustive. See e.g., Bragdon v.Abbott, 524 U.S. 624,691-92 (l99S)ftolding that for certain individuals reproduction is a majorlife activity).

4. Does the Act protect juvenÍle offenders, sex offenders, persons who illegally usecontrolled substances, and pcrsons with disabÍlities who pose a significant danger toothers?

No, juvenile offenders and sex offenders, by virtue of that status, are not persons with disabilitiesprotected by the Act. Similarly, while the Act does protect persons who are recovering fromsubstance abuse, it does gg! protect persons who are cunently engaging in the current illegal useof controlleu r"oo"xilìä!

Protect Per

Additionally, the Act does not protect an individual with a disability whose tenancy wouldconstitute a "direct threat" to the health or safety of other individuals or result in substantialphysical damage to the property of others unless the threat can be eliminated or significantlyreduced by reasonable accommodation.

5. How can a housing provider determine if an individual poses a direct threat?

The Act does not allow for exclusion of individuals based upon fear, speculation, or stereotypeabout a particular disability or persons with disabilities in general. A determination that anindividual poses a direct threat must rely on an individualiied assessment that is based onreliable objective evidence (e,g., current conduct, or a recent history of overt acts). Theassessment must consider: (l) the nature, duration, and severity of the risk of injury; (2) theprobability that injury will actually occur; and (3) whether there are any reasonableaccommodations that will eliminate the direct threat. Consequently, in evaluating a recent historyof overt acts, a provider must take into account whether the individual has received interveningtreatment or medication that has eliminated the direct threat (i.e., asignificant risk of substantialharm). In such a situation, the provider may request that the individual dooument how thecircumstances have changed so that he no longer poses a direct threat. A provider may alsoobtain satisfactory assurances that the individual will not pose a direct threat during the tenancy.The housing provider must have reliable, objective evidence thataperson with a disability posesa direct threat before excluding him from housing on that basis.

Example 1: A housing provider requires all persons applying to rent an apartment to completean application that includes information on the applicant's current place of residence. On herapplication to rent an apartment, a woman notes that she currently resides in Cambridge House.The manager of the apartment complex knows that Cambridge House is a group home forwomen receiving treatment for alcoholism. Based solely on that information and his personalbelief that alcoholics are likely to cause disturbances and damage property, the manager rejectsthe applicant. The rejection is unlawful because it is based on a generalized stereotype related toa disability rather than an individualized assessment of any threat to other persons or the propertyof others based on reliable, objective evidence about the applicant's recent past conduct. The

hlill:ji{¡ll ¡rt'trt'iili:t i¡iíii'¡iot lirnt ti¡is ii¡,1iiir'iiiri.iiiiei',i,ii-v iir,iir riili, i -tliliii;;;i:ri:r [-,l,st:r'l ui: lri;;

¿k¡ctl¡ttetrfe" iniposing clif'lirent le¿ge tenus. ot rÐquit'irìf¿ ir lìighcr süßì.ìrify cleposit. Ílon,ever. thr:¡Iìalllisþier cüLtì[tr ltavc cliccksei this ¿rpplicât1t's ¡eli:rt:rlr:esl io t]r* santq: cìxtf,nt ¿1nd in the sanrç¡'tlilruleï as lt¿ u'<:uld havc chce.:kcd ;lny othcr ilpplic¡ri¡t':; :r*tur*riürls, I{::;ucti ;r r*{i:rcrice clreckreveal*rl otr.i*ctivr i:vídenr:o shorvirrg that this a¡r¡rlicant hnd ¡:osccl a c1ìrect threat to persons or¡trer¡tcr(.y in thc ri:te¡it ¡rast anrf th* dirq:ct thrcnt ha<i gt¡t brc¡,:limi¡iatrtl" th* nlrìn¿tgÈr r:ould tÏ"ri:¡rharal r*jeeted lhe ap¡:licairf trass..d cn ¿li.crrcX thrcat.

J{sxulrgl[* ?: Jurnr:s X, a fenarrt ¿rtr, the l]h"rily (]¡ks apnrtrn*nt ctlirr¡ll*x, is ârr€stecl ibr Llrreat*nir.ghis r:tighlxi'lvhil<: l:r'anrlì*Ì"rin¡l ¿r b¡rsq:b¡rll tral. 'l'Ìrc Fih;lcly û¿lks' k:as* agrecntrnt r:o¡ltains ir t*r¡n,1,,''l¡|r¡íio,.. ú:^.r,,r,1., fì',..., ;1,.,,.",.r -,-l-,- ...Ì ; rl -- ' l- -.¡ t1i --r-- r-b-.-t, -r - -.^i-,¡'i¡rrt¡j I'L't¡1.!1rc; IrL:l¡r. lrÀl Çìur{.L.¡X¡¡1F1, './IUlUi.lluL: ¿iìL;-¡fl15L i}tl.{Ç¿ t\ìiittttil!'.$. i)rtitl{y L}'¡lii^} lUllliìillìallÍlÌ{ßr inl'estigafes tlie incielenl ¿nd lenrns 1}raî Jarrrr:t '{ Thrç:ntened lh* r¡thç:r resietenÌ u,ith

otl ltis tlue¿rt. Feillo'',ving ßhacly Oaks' starrclareT Fr¿rrtiec slf slri+:tly ernforciirg its "nr.r thîe*ts"p*liey, thc Shacly Oaks r*ntal rnün*rgor issr¡es "larr'lrs X * ilt)-ciay noti{)e to rlulit, r,vhich is thc tirstsl';¡r in tTrc q::viq:tie¡tt ¡tr(lcçlìs. James X's altcr"nr:y coutnets n^haely {}¿tks'r"untai mtrnagcr'âlr(i*;upiainr ihtti Juincs X has ;r ¡rs-yr;hiatrìc disaliìlity tttal r:ausr:s hir;ir t+ be ¡rhysi*alì3' yi¡1'r,,,t lr,hç:uli* slÜ¡ts tukiri¿¿ liis ¡rrcs+i'il;*cl rr¡s<JìcatÍon. ídllgp.r:s{in¡t ttrlaf }ris q;lienl rs,ili nL}t posÐ }r dir*cT lll1'catio eithsrs if prrop*r safcguards arç taken, th,c attor¡l*y rccprßstl) that tlie xfit1tñl rìtnTlagiÐÌ"grant .ÌarncsX an cxerrptior¡ to th* ,'nû thr.e¡ìts" poliey íì¡ ¿t reüsoÌlable ae*ummelclatisur trnscet r¡n Jam*s X'sdisability. 'I"Ìte Shaetry CIüks ¡ent¿rl mannger neeci cnly grant thu reaso¡u¡bie åÇcdlrlltilodation ifJamøs X's ntto¡ney câr1 ¡:ruvirli: ,lalisfbetory a.s¡iul;iûÐc thnt.lanrcrvr X r.vill rt:c<:lve appÌoprirltÞcùr"uiscling and perioclic ¡neclic¿rfiotl n1(u1i!$t';tr¡¡ ,";o lhaï he rvill rio longel pûse a elir*ct threat

unt'r'ilJiog, to coturseling *r suhlnil L(i ¿uly ty¡rr.:.oi'pcriurlìr lntinilcuin.g tç¡ ensurs thai hetakt:* his ple rneriication, rhe r*ntal mrau:rgrl'mûy g(¡ ii¡*.v¿*<i r,vitir tire evistiolÌprocerdirrgo $ince .lalnss X pontiu¡,rçs kl pose ¿¡ ¿lireet tli.r*al to the health or sälùty ololherr{:siclt:nts.

6. wfuaÉ ìs â I'f-easr¡wérå¡[a: ¡¡¿,:q:r¡r¡altr¡¡{.1¡rfÂq}¡r'o f'eir." ¡aru"nl*sq:s cl," dkc rt¿:r.?

À "rr,:asûrlflbå* ¿rreom¡r{ldaJìon" i* a ehrru¡¡c, s:xor.4'rtíûil, ûr neliuril.r"ncut tL} a m1*. ¡roliey, ¡rractice,rl¡ scÌ.\'ic.É that ntey bc ur:c*s:¡¿lry Ibr n Ìlcrsort rvitir ll elis;rbility tt¡ lr¡lr,'e air *qri;rl ûpporhulity to use;trttl *ttiily a r{vrelling, iur:ltu.lin¡¡ ¡lub{ìc ¿ì¡rd q:ûitr¡ur}r¡ u$ìc rìÍ}ßri(:iì. I;,i¡rce ruk:l, poli*i*s, practicee,¡¡tld ît;lvit.,r:¡i ¡.r¡¡ty 1¡*r,,0 rr riil.ilrcrri" *fJrct {)Jt lir-,iiti{}lt}; r,,,itl¡ diii¿¡l:íiities thau *t

^¡¡þ;r!.'11{:'rsût1s,

{Jpflt.t1-i1.11}ily ttl usr} anel r:njoy a dry¡-rlling. 't'he .Aci unizlc.*u; it r¡ill¡.wfill tr¡ rcfil.';<t fo irlakc re¿lssula.b.le

Íllx*pnpüe f-t.d hlr*gil.tfy.(tr*virl.r:r h¡rs ø noiic_v rif'1lr*vidin¡' ¡¡n¡¡¡r,¡;.1xtrf par.kiltyls;nnr,er;îoei:sirlcrrTs. -¡! reE;irlcnf witÌr a nrobility trnpairtrrcrrt, whr; is çr-rf¡l¡fanlionly liinit*cl in h*:r ability to

walk, requests an assigned accessible parking space close to the entrance to her unit as areasonable accommodation. There are available parking spaces near the enhance to her unit thatare accessible, but those spaces are available to all residents on a first come, first served basis.The provider must make an exception to its policy of not providing assigned parking spaces toaccommodate this resident.

Example 2: A housing provider has a policy of requiring tenants to come to the rental office inperson to pay their rent. A tenant has a mental disability that makes her afraid to leave her unit.Because of her disability, she requests that she be permitted to have a friend mail her rentpayment to the rental offtce as a reasonable accommodation. The provider must make anexception to its payment policy to accommodate this tenant.

Example 3: A housing provider has a "no pets" policy. A tenant who is deaf requests that theprovider allow him to keep a dog in his unit as a reasonable accommodation. The tenant explainsthat the dog is an assistance animal that will alert him to several sounds, including knocks at thedoor, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway.The housing providet must make an exception to its "no pets" policy to accommodate this tenant.

7. Are there any instances when a provider can deny a request for a reason¡bleaccommodation without violating the Act?

Yes. A housing provider can deny a request for a reasonable accommodation if the request wasnot made by or on behalf of a person with a disability or if there is no disabilþ-related need forthe accommodation. In addition, a request for a reasonable accommodation may be denied ifproviding the accommodation is not reasonable - i.e.,if itwould impose an undue financial andadministrative burden on the housing provider or it would fundamentally alter the nature of theprovider's operations. The determination of undue financial and administrative burden must bemade on a case-by-case basis involving various factors, such as the cost of the requestedaccommodation, the financial resources of the provider, the benefits that the accommodationwould provide to the requester, and the availability of alternative accommodations that wouldeffectively meet the requesterrs di sability-related needs.

When a housing provider refuses a requested accommodation because it is not reasonable, theprovider should discuss with the requester whether there is an alternative accommodation thatwould effectively address the requester's disabilþ-related needs without a fundamentalalteration to the provider's operations and without imposing an undue financial andadministrative burden. If an altemative accommodation would effectively meet the requester'sdisability-related needs and is reasonable, the provider must grant it. An interactive process inwhich the housing provider and the requester discuss the requester's disability-related need forthe requested accommodation and possible alternative accommodations is helpful to allconcerned because it often results in an effective accommodation for the requester that does notpose an undue financial and administrative burden for the provider.

Example: As a result of a disability, a tenant is physically unable to open the dumpster placed inthe parking lot by his housing provider for trash collection. The tenant requests that the housingprovider send a maintenance staffperson to his apartment on a daily basis to collect his trash and

cost of the reasonable accommodation, the benefits to the requester of the requestedaccommodation, and the availability of other, less expensive altemative accommodations thatwould effectively meet the applicant or resident's disability-related needs must be considered indetermining whether a requested accommodation poses an undue financial and administrativeburden.

10. What happens if no agreement can be reached through the interactive process?

A failwe to reach an agreement on an accommodation request is in effect a decision by theprovider not to grant the requested accommodation. If the individual who was denied anaccommodation files a Fair Housing Act complaint to challenge that decision, then the agency orcourt receiving the complaint will review the evidence in light of applicable law and decide if thehousing provider violated that law. For more information about the complaint process, seequestion 19 below.

ll. May a housing provider charge an extra fee or require an additional deposit fromapplicants or resÍdents with disabitities as a condition of granting a reasonableaccommodation?

No. Housing providers may not require persons with disabilities to pay extra fees or deposits as acondition of receiving a reasonable accommodation.

Example 1: A man who is substantially limited in his ability to walk uses a motorized scooterfor mobility purposes. He applies to live in an assisted living facility that has a policy prohibitingthe use of motorized vehicles in buildings and elsewhere on the premises, It would be areasonable accommodation for the facility to make an exception to this policy to permit the manto use his motorized scooter on the premises for mobility purposes. Since allowing the man touse his scooter in the buildings and elsewhere on the premises is a reasonable accommodation,the facility may not condition his use of the scooter on payment of a fee or deposit or on arequirement that he obtain liability insurance relating to the use of the scooter. However, sincethe Fair Housing Act does not protect any person with a disability who poses a direct threat tothe person or property of others, the man must operate his motorized scooter in a responsiblemrmner that does not pose a significant risk to the safety of other persons and does not causedamage to other persons'property. If the individual's use of the scooter causes damage to his unitor the common axeas, the housing provider may charge him for the cost of repairing the damage(or deduct it from the standard security deposit imposed on all tenants), if it is the provider'spractice to assess tenants for any damage they cause to the premises.

Example 2: Because of his disability, an applicant with a hearing impairment needs to keep anassistance animal in his unit as a reasonable accommodation. The housing provider may notrequire the applicant to pay a fee or a security deposit as a condition of allowing the applicant tokeep the assistance animal. However, if a tenant's assistance animal causes damage to theapplicant's unit or the common areas of the dwelling, the housing provider may charge the tenantfor the cost of repairing the damage (or deduct it from the standard secwity deposit imposed onall tenants), if it is the provider's practice to assess tenants for any damage they cause to thepremises.

lã. lVhcn en{T hctY sh*uld sn i¡rdÍvídual request årn açË$ü¡n¡qrtla*icn?

Un<ier the Acto a resident *r an applicânt for housing rnakes a reasonablc {rccomrnôdatiqin requcstrvhðnet'er she m*kes clear to the housing provirlcr that she is reiluesting ¡m sxrr:ption. change, oradjustmcnt to a rulc. policy, practicc, or ser¿ice bcc¿nlsc ol.her disability. Shc should cxplaiirwhat type olaccornmodation she is requestiirg and, if the neeti for the accclmmodation is notreadily apparcnl or net known to the picruiderì explain the rclationship bctwcen the requcstcdaccommod¿tion and her clisability.

.{n applicant or resident is not *rrtitied ta reeeive a rsasonabls âÇcûmmodniion nnless shsreeil¡csls one. However, thc Fair Ilousing Acl does not require that a request be rn;rdc in an,¡r'ài"rrl^' -^,-¡l-..-l^..-,1 ¡ ',r I t'l'. t , - --tt r .ry(r¿r'!\¡rc{'r ¡¿r.:rI¡rul ur d[ il lrirlttÇUllll ttlllU. }1 l]Uf${)lt \.V¡ll! ¿:L (ll5¿lûl¡lly ¡te$(l llUt pûl'SU¡tiftly nlAK() lllgreasonable acco¡tulodation request; the t"qu*.t can bc mnde by a lamily n",*rnh*r or someonecise who is acting on her behalf. Â,n indiviclual rnaking a reasonab!e accorîrrnodation requçstdoes not nced to nlcntion The Act or use the words "rcãsonablc accornmodalit¡n." Ilowever, therequeslcr must rnakc the request in a manncr thatr a ,**ronubl* f*rron would undersland to'ü;t:qT*:l lor an exccption. change, or atljustmcnt to a rulc, policy, practice, or scrir)e because cf atlisability.

Álthough a reasonable accomrnodation request can be made orally or in writing, it is usuallyhelplul for both thc residcnt ancl thc housing provider il'thc rcqucst is rnade ;n writing. This willhelp prevenl misuntlerstandings regarding tittut i* U-i"g;;q";;;;,;r *h*rtr*r the re{uest wasmady' To f'acilitate the processing and consideration oitthe iequcst, rcsidents or prospcctivercsidetlts rnay wish to check witl^r a housing provicler in advance to determine if the provitler has;t prcfct'ciit:* tvgitrdirtg llrç i¡r¿r¡rrre¡' in wiiicñ ,h* ,*qu*s, is ¡nar'Íc" llow*ver, housing pr"uiAcrs

-

rnttst give appropriate co¡rsidcratiolr to reasonablc aceomnrodation requests even if the rçquestermakes the request orally or docs not use the provider's preferred I'ernns or proccdures for *ut*;ngsuclr requests.

Exn_mple: A tenant in a large apartment building ruakcs arr oral rcquest that she bu assigned a¡nailbcrx in a lo*ation that she ean easily acre$$ b**a,r** af a phSrsical disability th¿t limits herability tc rea*h ancl bsnd, The pravideir,vaulcl pr*f'cl'that the tcnant r¡¡nkc fhe acconrmodalionr*qucst on å prc-printed funn, but the tenant fails ta c*mplete the fonrt. The provider mustconsider the rcasonatrle aceonlnloclation requûst even tlrough the tenant i.voulel not use theprovi<ier's designated form.

13" þIa¡st * h*unírlg pnol'ielen ado¡rt fi¡¡'smaå pr***daeres f*r pr**essåÌåg requests for areasÕnaLtle accçnrrn*dafåon? ,

No- The ¡\¡:t does not requir* t:hnt a housing pr*vid*r arl*pt any farma! prcceclures far reasonableaccotrunr.¡rlation requests. Ilowever, having fo¡mal pr.rce,lures may aici ir:dividuals r¡¿itirdisabilíries in rnaking requests for reasanablç accornmodaticns ðnd måy aid hcurirrg provirlers inassessing thos* requests so that there wq \yr ¡¡risuncl<¡rslalrrtrings as tr¡ th* n¿rturç üf thc request,ancl,intheeverrtCIfiatsreiisputes,providerecordstoslr*wthattherequestsrccoivedprÕp9fe onsicieration,

A provider may not refuse a request, however, because the individual making the request did notfollow any formal procedures that the provider has adopted. If a provider adopts formalprocedures for processing reasonable accommodation requests, the provider should ensure thatthe procedures, including any forms used, do not seek information that is not necessary toevaluate if a reasonable accommodation may be needed to afford a person with a disability equalopportunity to use and enjoy a dwelling. See Questions 16 - 18, which discuss the disability-related information that a provider may and may not request for the purposes of evaluating areasonable accommodation request.

14. Is a housing provider obtigated to provide a reasonable accommodation to a resident orapplicant if an accommodation has not been requested?

No. A housing provider is only obligated to provide a reasonable accornmodation to a resident orapplicant if a request for the accommodation has been made, A provider has notice that areasonable accommodation request has been made if a person, her family member, or someoneacting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, orservice because of a disability, even if the words "reasonable accommodation" are not used aspart ofthe request.

15. What if a housing provider fails to act promptly on a reasonable accommodationrequest?

A provider has an obligation to provide prompt responses to reasonable accommodationrequests. An undue delay in responding to a reasonable accommodation request may be deemedto be a failure to provide a reasonable accommodation.

16. rilhat inquiries, if any, may a housing provider make of current or potential residentsregarding the existence of a disability when they have not asked for an accommodation?

Under the Fair Housing Act, it is usually unlawful for a housing provider to (l) ask if anapplicant for a dwelling has a disability or if a person intending to reside in a dwelling or anyoneassociated with an applicant or resident has a disability, or (2) ask about the nature or severity ofsuch persons'disabilities. Housing providers may, however, make the following inquiries,provided these inquiries are made of all applicants, including those with and without disabilities:

. An inquiry into an applicant's ability to meet the requirements of tenancy;

. An inquiry to determine if an applicant is a cunent ittegal abuser or addict of a controlledsubstance;

. An inquiry to determine if an applicant qualifies for a dwelling legally available only topersons with a disability or to persons with a particular type of disability; and

. An inquiry to determine if an applicant qualifies for housing that is legally available on apriority basis to persons with disabilities or to persons with a particular disability.

Example 1: A housing provider offers accessible units to persons with disabilities needing thefeatures of these units on a priority basis. The provider may ask applicants if they have adisability and if, in light of their disability, they will benefit from the features of the units.

I ì {lr.: ¡:r'tt*.'icL:i rTrrîì¡ r¡l,l l¡lli;.;tJ}pli¿';ì:ltl; il tlrcy l¡irv; r,l}1,'l Ii,[,c: qìt ¡lil',':;ir.;il cl rr:f¡;lil!in lts. If'th* a¡>plir:mll's dìsabililv ¡nql Ih* ¡r¡rùs1 {'r¡rlht: ¡r.:r:cssihlr fr-'nlrrn:s iur: *qrf ronr{ilvó1lrp¿u:clllt, thc prervidrr miìy re:tluest reliablc i¡llon¡r¿tioir/doE:u¡nentatiûn'ul trlir: eïisabìlity-rclrted¡ient,l fbr ¿.i¡: **csssit¡l* unit,

Ðs.aln¡:åe 2; .A liousi¡rg pror,'írf*r'o¡rerates hcusiug that ís leg*lly li¡.nit*d tii ¡:ersons wilh eh.¡ouicrncntat illness"'I"lie pr*vittrÈr rlliìr,/ ask *ppli*ants fbl inlìrr'*ltrtiun nt:erJi:e{ t* ck:terrni¡r*. if tbeS' h;rvr":¡r llr¿:ntaì clisahilill'thirt wor¡Ll iluali{9 tho¡n t¡u thc }rousin¡¡, lli¡rs,*verr" in â}ris cirer¡lnstatrce, tht:i1tçvl(lù.f iil$)r 1p1[ us]i;ti-:plicarri¡; ìl'cþ.o,r'hi¡v* *th*r typr::i oì'¿rhyuicaì úr'rncrrial im¡railrnents^ lt itíli rtol ruaelily apparcnt 'ihat ¿r¡r tepplic;anf has; a c,]rrlrnie rrren!:*l r.iisability" th* provider ffiay ree;nerstrt:lia[:l* inftir:¡r¿r1.ion/rlocurnull¿rtion r¡f tht: nir:¡lt.ill rnisalriìit;y n¡r,¡clrreì ït.l e¡rinTily fiir thn lror.lsiu¡1,

ln s$¡ne inst$nu*s, n provider miry nho ¡'equÐ.t't çr:i't*¡ìn i¡rf*'rnlatíon nt:*ut;ln appli*arlt's rrr ã.

resíc{r:ìrt's eiisabì}ity if l}r: n1r¡rììçìnnt <ir r*sirlc:;lt lrìquc:ìl9i il r+:it¡rcLulhlriÌ aü{r(.}ìnnìor]ntion" Seç;

Çtiestionu 17 rÍ:(i 18 'belc¡w"

åT" ú åq $'q¡ xe, üå"amy, rals¡v éq Érç¡¡,t $"{e ñ"n, a p*xxora wÅTÅlt3IÀ .l us å { f.'y ttll.* .{s t'o:i¡l.ll:nÉitn¡g ûR(: 't{}{ $et'l

Â. proVicTtr is e¡ltitlecì to ot¡tain i¡rhrrinatiE:n that i¡i neçBssåry ti¡ ei¡aluârt* iI a r:equesteef reasc¡n¿lble:*'r:ecrnnt¿:E'latiorT rnay bo rlcs.:ossaiy broaris* ola elisability. ål'n prrrurn's disa'bility is ot:vi.ous, oreitheru'i¡* known tri the: proviek:r. a.neì .ii'the ne*¡.1 {'oc th* reelueitccl ;lc;eE¡mitr*dation is also rcariitryf1pp¿trÐnt t¡r k:lcwn. then lhe provicnei'nriry uru{ rcr}ui,s{ a,t¡' iule.litiurn¿l i¡lå<¡r'rn¿lticn ¡¡tx¡ut lhr:teeluesteÌ''s disability or thc c{is*bilily-r'*later:l ¡leeci t'oi'the ;rccornmocÌ.a1.lc¡n.

i.f ihr ruqüe${ed,*; eïisability is known rir rcadily $ppr{.i'Êfi$ ti¡ thc prr:r,id*c, but the no*cl fìrr the¿tE:cEl¡at¡¡q":*J;¡{i*n is nnt r*adi13, apparent *r kncwn, lh* pr.or,,iclcr rï}¿iy reque:.;t *n}y inÍÌirmation th¿rtis nr:uessnry to cvalu¡rt* th* elisahility-relnt*el ncrcl {ì:r ttl¡r açrüomlrnùdation.

-ÑtJxæxlnpå* X: ,4n applicant vuil.h an *k¡vi<l¡"rs rnobility irn¡rairm*nt rvh* rc¡lularly usÐs â r¡¡alleey tc

{)1c}t¡ asni¡:ln h*i.u ¡ra.rk T}ct-¡r"¿ílt iijr j);nr t*i'rlrr, ll;u salrilit_y{i.e', rr:l¿rlrt{ rrutl li>r t ¡rreb*lh readily r*ltt, {lt* 3:grvitl.*l Â}.;riy ¡i{¡t rr:qriiri". t}rø: i*:*m.t viql,) any ;riïr{itionalítrlì¡i xrictic¡n t. her r.lisatriìily or thc n*rcl fbl' lh.* rcqe ei aec elatic¡¡r,

i.et kt:t:yt ¿ttt it:;siËtiLr t:e <1.*Sl in his ¡¡¡rit *vclr r.he rn¡¿h lli<: ¡rrr;vid*r h¿¡,u; rr "r1tÌ p*f.s" 't'heil¡E.rli*anÍ's elísa[rílitv ís r,;:ailiÌy ir.'¿:¡rarcnt [llt fh* nt:e.rr{ I'i;r ¿tn assinl.airür]: g¡iilî¿lï rbvíous 1¿l

r I i salri å il.y- r. ç:lai.t:ú ¡ r seel fi¡r tf i r: ei e r ¡.1.

cxittcl¡.ry* stl'lÊ,'r' ìtrapilii:n:ent.

18. If a disability is not obvious, what kinds of information may a housing provider requestfrom the person with a disability in support of a requested accommodation?

A housing provider may not ordinarily inquire as to the nature and severity of an individual'sdisability (see Answer 16, above). However, in response to a request for a reasonableaccommodation, a housing provider may request reliable disability-related information that (1) isnecessary to verify that the person meets the Act's definition of disability (i,e., has a physical ormental impairment that substantially limits one or more major life activities), (2) describes theneeded accommodation, and (3) shows the relationship between the person's disability and theneed for the requested accommodation. Depending on the individual's circumstances,information verifying that the person meets the Act's definition of disability can usually beprovided by the individual himself or herself (e.g., proof that an individual under 65 year_s-.of agereceives Supplemental Security Income or Social Security Disability Insurance benefits@

or a credible statement by the individual). A doctor or other medical professional, a peer supportgroup, a non-medical service agency, or a reliable third party who is in a position to know aboutthe individual's disability may also provide verification of a disability. In most cases, anindividual's medical records or detailed information about the nature of a person's disability isnot necessary for this inquiry.

Once a housing provider has established that a person meets the Act's definition of disability, theprovider's request for documentation should seek only the information that is necessa¡y toevaluate if the reasonable accommodation is needed because of a disability. Such informationmust be kept confidential and must not be shared with other persons unless they need theinformation to make or assess a decision to grant or deny a reasonable accommodation request orunless disclosure is requíred by law (e.g., acourt-issued subpoena requiring discloswe).

19.If a person believes she has been unlawfully denied a reason¡ble accommodation, whatshould that person do if she wishes to challenge that denial under the Act?

When a person with a disability believes that she has been subjected to a discriminatory housingpractice, including a provider's wrongful denial of a request for reasonable accommodation, shemay file a complaint with HUD within one yeax after the alleged denial or may file a lawsuit infederal district court within two years of the alleged denial. If a complaint is filed with HUD,HUD will investigate the complaint at no cost to the person with a disability.

There a¡e several ways that a person may file a complaint with HUD:

. By placing a toll-free call to l-800-669-9777 or TTY l-800-927-9275;

. By completing the "on-line" complaint form available on the HUD internet site:www.hud.gov: or

. By mailing a completed complaint form or letter to:

Office of Fair Housing and Equal OpportunityDepartment of Housing & Urban Development

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"from the definition of 'handicap'contained in the Fair Housing Amendments Act of1988"). This document uses the term "disability," which is more generally accepted.

3. 42 u.s.c. $ 3604(Ð(3XB).

4. Housing providers that receive federal fînancial assistance are also subject to therequirements of Section 504 of the Rehabilitation Act of 1973. 29 U.S.C, $ 794. Section504, and its implementing regulations at 24 C.F.R. Part 8, prohibit discrimination basedon disability and require recipients of federal financial assistance to provide reasonableaccommodations to applicants and residents with disabilities. Although Section 504imposes greater obligations than the Fair Housing Act, (e.g., providing and paying forreasonable accommodations that involve structural modifications to units or public andcommon areas), the principles discussed in this Statement regarding reasonableaccommodation under the Fair Housing Act generally apply to requests for reasonableacçommodatíons to rules, policies, practices, and services under Section 504.,See U.S.Department of Housing and Urban Development, Offrce of Public and Indian Housing,Notice PIH 2002-01(HA) http://www.hud. sov/offices/fheo/disabilities/PlH02-0l.pdf and"Section 504: Frequently Asked Questions,"fu mrov.hud.go"y-l-o-ff:csp

5. The Fair Housing Act's protection against disability discrimination covers not onlyhome seekers with disabilities but also buyers and renters without disabilities who live orare associated with individuals with disabilities 42 u.s,c. g 3604(Ð(lXB),42 u.s.c. $3604(Ð(1XC),42 U.S.C. g 3604(Ð(2)(B),42U.S,c. $ (Ð(2XC). See also H.R. Rep. 100-7ll -24 (reprinted in 1988 U.S.C.A.N.2173,2184-35) ("The Committee intends theseprovisions to prohibit not only discrimination against the primary purchaser or namedlessee, but also to prohibit denials of housing opportunities to applicants because theyhave children, parents, friends, spouses, roommates, patients, subtenants or otherassociates who have disabilities,"). Accord: Preamble to Proposed HUD RulesImplementing the Fair Housing Act, 53 Fed. Reg. 45001 (Nov. 7, 1988) (citing HouseReport).

6. 42 U.S'C. $ 3604(Ð(3XB).HUD regulations pertaining to reasonable accommodationsmay be found at 24 C.F.R. $ 100.204

7. This Statement does not address the principles relating to reasonable modifications.For further information see the HUD regulations at 24 C.p.R. $ 100.203. This statementalso does not address the additional requirements imposed on recipients of Federalfinancial assistance pursuant to Section 504, as explained in the Introduction.

8' The Supreme Court has questioned but has not yet ruled on whether "working" is to beconsidered a major life activity. See Toyota Motor Mfg. Kentucky. Inc. v. Williams, 122s. ct. 681, 692, 693 (2002). If it is a major activity, the court has noted that a claimantwould be required to show an inability to work in a "broad range ofjobs" rather than aspecifïc job. ,See Sutton v. United Airlines. Inc .,527 U.S. 470, 492 (lg9g).

Government Code g 12926. 1 provides:

(a) The law of this state in the area of disabilities provides protections independent from those

in the federal Americans with Disabilities Act of 1990 (Public Law l0l-336). Although the federal

act provides a floor of protection, this state's law has always, even prior to passage of the federal act,

afforded additional protections.

(b) The law of this state contains broad definitions of physical disability, mental disability,

and medical condition. It is the intent of the Legislature that the definitions of physical disability

and mental disability be construed so that applicants and employees are protected ûom

discrimination due to an actual or perceived physical or mental impairment that is disabling,

potentially disabling, or perceived as disabling or potentially disabling.

(c) Physical and mental disabilities include, but are not limited to, chronic or episodic

conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression,

bipolar disorder, multiple sclerosis, and heart disease. ln addition, the Legislature has determined

that the definitions of "physical disability" and "mental disability" under the law of this state

require a "limitation" upon a major life activity, but do not require, as does the Americans with

Disabilities Act of 1990, a "substantial limitation." This distinction is intended to result in

broader coverage under the law ofthis state than under that federal act.

Under the law of this state, "working" is a major life activity, regardless of whether the

actual or perceived working limitation implicates a particular employment or a class or broad

range of employments."

DEFENDANT'S PROPOSED JURY INSTRUCTION

Disability Defined

Authorities: Government Code $12926. I

To est¡blish an affirmative defenæ based on failurc to providc a reasonablo acoommodation,

landlords knsw of their disabilafford equal opporhrnrty to use and cqioy the property;

Afürmative Defcnso: Reasonable Accommodation

rcquested an accommodation that was roasonable in light ofthe disabilitios; and the landlords rcfr¡sed to makc such an aooommodatíon.

ofthc disabilþ may be ncccesary to

The law requires landlordb tomtke rcæonable accommodations fortenants with e,qual access to housing. There mustbe a relati hymptoms of the disability andthe aocom . A hndlord's failure to reasonabiyaccommodate a disabled tenant prohíbits the landlord ûom evicting theteRant

A request for reasonablc aooommodation san be made at any timeduring the eviction proccss, cven after the orpir*ion of the notice. Forexample, reasonable aooommodations oan inolude: (l) changes to polioies,practioas, or procedures; or (2) physical ohanges to the te,nanfs unit orcommon arcas. Each request for areasonable agcommodation is ftct-specificand must be evaluated by the landlord on a case-by-case basis,

An accommodation is unreason¿ble where it oarscs an undue ftrancialor adminisüative burden on the landlord or wherc it would reçire afr¡ndamental alteration of the landlord's sen¡ices æ a housing providcr. Thelaw talces into account that the landlord may havc to bear some cost to providean accommodation.

When a tenant requests an accommodatiort the landlord is requiredtoengage in an interaotive procoss with ttre tenant to dstermine the cxistence of thedisabilþ and the reasonablenoss of the request.

'Affirmative Dofsnso: Reasonable Accommodation

"Handicap" or "disabilþ,, means, with respect to apcrson:

SPECIAL INSTRUCTION.IHNDICAP/DISABILITY DEFINEI)

Ø a¡ccord ofhaving suoh impairment;(3) being regarded as-having such impalrment.

Itdajor life activities shâll be broadly consEr¡ed and include physical, mental, and sooialætivities and working.

ormeiúal imnairment uñiah lirnib

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.20

FAIRHOUSING ACT

The Fair Housing Act is a broad remedial statute setting forth numerous rights on behalf

of residential tonants. Congress specihcally intended that the protections afforded tenants under

the Fair Housing Act apply to local land use and health and safety laws or regulations, including

any applicable laws and rcgulations promulgated by the City and County of San Francisco as set

forth in health, fire and/or safety codes.

AUTHONTY: Fair Housing Acl" 42 U.S.C. $ 3604

PROPOSED BY:

GIVENASPROPOSED

GIVENASMODIFIED

GIVEN ON COURT'S OWN MOTION

REFUSED

IWITHDRAWN

Defendant

DEFENDANT'S PROPOSED JIJRY INSTRUCTIONS

29.

Judge ofthe Superior Court

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"Handicap" or "disability" means, with respect to a person:

DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 21

(l)

(2)(3)

a physical or mental impairment which substantially limits one or more of such person'smajor life activities;a record of having such impairment;being regardèd as having such impairment.

HANDICAP/DISABILITY DEFINEI)

AUTHORITY: Fair Housing Act 42 U.S.C. g 3604

PROPOSED BY:

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REFUSED

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DEFENDANT'S PROPOSED JURY INSTRUCTIONS

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Landlords are prohibited from discriminating against tenants on the basis ofthe tenant handicap(disability).

AUTHORITY: Fair Housing Act" 42 U.S.C. $ 3604


PROPOSED BY:

GIVENASPROPOSED

GIVEN AS MODIFIED


REFUSED

WITHDRAWN

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Judge the Superior

DBFENDANT'S PROPOSED JIJRY INSTRUCÎIONS

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A landlord is obligaæd to make reasonable accommodations for the tenant when thetenant is disabled or when the landlord thinks that the tenant is disabled,

AUTHORITY: Fair Housing Ac\ 42 U.S.C. $ 3604

DEX'ENDANT'S PROPOSED JURY INSTRUCTION NO.23

PROPOSED BY:

GIVEN AS PROPOSED

GIVEN AS MODIFIED

GIVEN ON COURTS OWN MOTION

REFUSED

WITHDRAWN

Judge ofthe Superior Court

DEFENDANT'S PROPOSED JURY INSTRUCT¡ONS

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REASONABLE ACCOMODATION

If you fìnd that the plaintiffis trying to evict the defendant for conduct that flowed fiom

any of the defendant's disabilities, then you must decide whether the plaintifftook reasonable

steps to accommodate the disabilities.

If you find that the landlord did not take reæonable steps to accommodate the

defendant's disabilities, you must enterjudgment for the defendant.

AUTHORITY: Fair Housing Act, 42 U.S.C. g 3604

PROPOSED BY:

GIVENASPROPOSED

GIVEN AS MODIFIED


REFUSED

IüITHDRAWN

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DEFBNDANT'S PROPOSED JI'RY INSTRUCT¡ONS

33 1i

1 MOTION FOR LEAVE TO AMEND DEENDANT’S ANSWER

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ERIN KATAYAMA (SBN 287203) HOMELESS ADVOCACY PROJECT/ JUSTICE & DIVRSITY CENTER 125 Hyde Street San Francisco, CA 94102 (415) 865-9227 Attorneys for Defendant, xx

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

COURT OF LIMITED JURISDICTION

CCC, Plaintiff, v.

XX, and Does 1 to 5, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CUD-

NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE AMENDED ANSWER Date: Time: 9:30 AM Dept: 501

TO PLAINTIFF CARITAS MANAGEMENT CORPORATION AND PLAINTIFF’S

ATTORNEY OF RECORD:

PLEASE TAKE NOTICE that on _____________________ at 9:30 a.m. or as soon

thereafter as the matter may be heard in the Law and Motion Department of the above-entitled

Court, Room 501, 400 McAllister Street, San Francisco, California, Defendant xx will move this

Court for an order permitting Defendants to file an amended answer which is attached hereto as

Exhibit A and a copy of which is served herewith. This motion will be made upon the ground

that it is in furtherance of justice to allow the filing of such amended answer, and will be based

upon this notice, the attached memorandum of points and authorities, all papers and records on


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file herein, the declaration of Erin Katayama, and evidence both oral and documentary, as it may

be presented at the hearing of this motion.

Dated: January 30, 2014

Erin Katayama ATTORNEY FOR DEFENDANT

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Through this motion, Defendant seeks to file his proposed amended answer pursuant to

California Code of Civil Procedure, Section 473, which authorizes the trial court to allow

substantive amendments at its discretion. The proposed Amended Answer, attached hereto as

Exhibit A, clarifies and expands upon defenses.

Defendants make this motion in order to add defenses based on information gleaned from

examination of the factual record produced during discovery, continued investigations and

discussions with the client, her doctors, social workers, household members and neighbors, and

receipt of Defendant’s medical records.

II. STATEMENT OF FACTS

The Plaintiff filed the summons & complaint on August 16, 2013 for an action based on

nuisance. The allegations in the notice attached to the complaint took place in February 2013.

(Declaration of Erin Katayama, Exhibit B, paragraphs 4-6). Upon receipt of the summons &

complaint defendants XX and XX went to the EDC and filed an answer as pro per defendants on

August 21, 2013. (Exhibit B, paragraph 5).

Defendants XX and XX came to the Homeless Advocacy Project on the 23rd of September to

look for assistance. Attorney Erin Katayama signed on to represent the three defendants on

September 27, 2013. (Exhibit B, paragraphs 6-7). Ms. XX failed to mention her disability until


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approximately the fourth meeting with her attorney. Once she opened up about it, it became clear

that Ms. XX has a long history of mental illness that affect her day-to-day functioning. (Exhibit

B, paragraph 8).

Ms. XX had no idea that a defense of reasonable accommodation was available to her and did

not know anything about Department of Housing and Urban Development (“HUD”) policies.

(Exhibit B, paragraph 9).

On or about October 30th, 2013, and November 7, 2013 the Homeless Advocacy Project

(HAP) office sent a reasonable accommodation request to Plaintiff’s attorney. (see Exhibit B,

paragraph 10; Exhibit C, Reasonable Accommodation Request). On or about December 30,

2013, Plaintiff sent to Ms. XX a denial of her request for a reasonable accommodation. (Exhibit

B, paragraph 11; Exhibit D, Plaintiff’s denial letter. Ms. XX informed HAP about the letter and

brought it to our office on or about __________. (Exhibit E, paragraph ______).

From October 30, 2013 to current, attorneys Erin Katayama and Michael Spalding have been

doing research into HUD policies, on-site investigations at the subject premises, interviews with

household members, doctors, and social workers, and requesting and reviewing Ms. XX’s

medical records. (Exhibit B, paragraph 12; Exhibit E, paragraph ___).

No trial date has been set in this action. Plaintiff has filed a Motion for Summary Judgment

that is set to be heard in Department 501 on February 6, 2014.

III. ARGUMENT

a. LEAVE TO AMEND SHOULD BE LIBERALLY GRANTED TO CORRECT A MISTAKE IN THE INITIAL ANSWER

California Civil Code, Section 473 authorizes the court, if in furtherance of justice, to

allow amendments to any pleadings to correct a mistake. (See, Board of Trustees of Leland

Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 115 (6th Dist.) The purpose of

this law is to allow the correction of errors or omissions. Webster v. Freeman (1938) 27

Cal.App.2d 5. Errors or omissions for the purpose of this law can be “ambiguities, [amend]

insufficiencies, eliminate surplusage (sic), or explain mistaken statements, particularly with

respect to statements shown to be the result of excusable inadvertence . . . . “ Bank of America

National Trust & Savings Association v. Lamb Finance Co. (1956) 145 Cal.App.2d 702 (2d


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Dist.) (ruling that because the court’s purpose is to ascertain the truth and facts and make a

determination accordingly, it is proper to allow leave to amend when there are clear

insufficiencies in the initial pleading).

On the attachment to Defendant’s original answer, they inadvertently omitted several key

defenses on the “Attachment 3k” including: (the additions are noted in bold; See Exhibit A for

amended answer in its entirety).

3E – retaliation because Defendant “requested an application to add grandson to the lease”

EF – Plaintiff is arbitrarily discriminating against Defendant because of disability.

3J – (2) Plaintiff has failed to provide Defendant with a reasonable

accommodation.

3K – (3) Plaintiff has failed to exercise its discretion in evicting Defendant as required by HUD policy.

California Code of Civil Procedure, Section 576 provides that, “Any Judge, at any time

before or after commencement of trial, in the furtherance of justice . . . may allow the

amendment of any pleading . . . “ Courts should “exercise liberality” in permitting amendments

at any stage of the proceeding. (See, e.g., Hulsey v. Koehler (1990) 218 Cal.App.3d 1150;

Klopstock v. Superior Court (1941) 17Cal.2d 13, 19.) This discretion should particularly be

exercised when allowing amendments to answers if a defendant denied leave to amend is

significantly deprived of a defense. Dunzweiler v. Superior Court (1968) 267 Cal.App.2d 569,

576. Here, Ms. XX’s and her daughters have a clear defense of failure to provide a reasonable

accommodation and disability discrimination. The reasonable accommodation request was made

and denied well after Defendants filed their pro per answer, and after Ms. XX and her daughters

obtained an attorney. Also, at the time of filing their original answer, Ms. XX and her daughters

were not aware that the housing provider has a duty to exercise discretion when it comes to

evicting or denying /granting reasonable accommodations to tenants in HUD subsidized housing.

Finally, through no fault of Defendants, much of the evidence to support these defenses did not

come to light and did not become available until well after the Defendants filed their original


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answer. Therefore, the Court should allow Ms. XX and her daughters to amend their answer to

include the above-mentioned defenses.

b. PLAINTIFF HAS FAILED TO PROVIDE MS. xx WITH A REASONABLE ACCOMMODAITON FOR HER DISABILITIES

Under Federal and State fair housing laws, landlords must make reasonable

accommodations of tenant’s disabilities in their policies, rules and practices. 42 U.S.C. Section

3604(f)(3)(B). In order to assert the defense to eviction that plaintiff has failed to provide a

reasonable accommodation, defendant must show that: (1) she is a disabled person under the law,

(2) that defendant requested that plaintiff accommodate her disability and that (5) plaintiff

refused to accommodate her. See e.g., United States v. California Mobile Home Park Mgmt. Co.

107 D.3d 1374, 1380 (9th Cir.1997).

1. Fair Housing Law applies to both parties

The Fair Housing Amendment’s Act of 1988 (FHA) is the primary federal statute that

protects people with disabilities on housing issues. If the housing receives any type of

government funding, Section 504 of the Rehabilitation Act of 1973 and the Americans with

Disabilities Act also apply.

The subject premises (Betel Apartments) is managed by the Plaintiff. The Department of

Housing and Urban Development (“HUD”) subsidizes the rent paid by the Defendants for rental

of the premises. Therefore, as government funded housing Plaintiff is subject to Fair Housing

laws. 42 U.S.C. Section 3603 (a).

2. Ms. XX is disabled and her disabilities contributed to the incidents

alleged in the notice to quit.

Ms. XX mental disability is well documented. Her psychiatric social worker described

Ms. XX as having Major Depression, Post Traumatic Stress Disorder, and Attention Deficit

Hyperactive Disorder since at least 2006 (See Exhibit I). Currently, Ms. xx a variety of

medications for treating these conditions. (See Exhibit G).

Ms. xx medical condition has a history of impacting her parenting and ability to control

her son. (Exhibit A & D). At times, she left most of the parenting responsibility, including

bathing and diapering to her husband or mother because she was in such severe depression she


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could not get out of bed or bathe herself. (Exhibit A & D). OO describes her mother’s disability

as “making it hard for her to communicate things and focus on issues” and says “her thoughts are

scattered”, and explains that she has seen “her brother take advantage of her on several

occasions”. (Exhibit B, paragraphs 38-40).

Ms. xx mental health background combined with her son’s severe behavioral issues,

contributed to the state of affairs that resulted in the alleged criminal activity at issue here.

Specifically, Ms. xx was not capable of being a source of stability and support for her son

(Exhibit D, declaration of social worker, paragraph 5), and his disability exacerbated his own

and her mental health issues. As her son’s disabilities and misbehavior disrupted the family unit,

Ms. xx psychological state deteriorated. RR, a Mental Health Specialist has worked with at-risk

Latino population for 15 years. Ms. RR believes that “given the stigma associated with

acknowledging mental health issues in the Latino community, one could argue that this made

Ms. xx a likelier target for abuse.” (See Exhibit E, Letter from Lupe Rodriguez). Ms. RR

further hypothesized that Ms. xx inability to remain firm on keeping her son out of her home and

stand up to her son more likely comes from a place of a “male-aggression” dominated household

where the women in the household felt powerless, and that the women “acted out of fear for their

own personal safety and out of fear of being ostracized by their own community”...a fear that

was made more complicated by Ms. xx history of sexual trauma and abuse. (Exhibit E, Letter

from RR).

3. Ms. xx requested a reasonable accommodation from the Plaintiff and the request was denied.

By offering to permanently ban her son from the premises, Ms. xx has proposed a

reasonable accommodation to the Plaintiff. The proposed reasonable accommodation would (1)

allow Ms. xx, her daughters, and grandson to remain in possession of the premises, and (2)

would require (and allow) Ms. xx to continue working on her own mental health conditions now

that her son is out of the picture. (See Exhibits H and I, Ms. xx request for reasonable

accommodation, and supplement). In addition, this accommodation is an opportunity for Ms.

xx and her daughters to finally experience a form of stability that she has never experienced, and

an opportunity to control her own household without being under the constant control and fear of

Christopher. Most importantly, Ms. xx and her daughters will not be victims of the

consequences that her son’s behavior might cause. To demonstrate her commitment to this plan,


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Ms. xx even proposed to permanently ban her son’s baby’s mother from visiting the premises so

that he will not have any incentive to come to the premises once he is eventually released from

prison. Ms. xx is willing to visit with that particular grandson away from the premises for this

purpose.

Despite a solid plan and reasonable proposal, the Plaintiff denied Ms. xx request. On

December 30, 2013, the Plaintiff issued a formal denial of Ms. xx request. (See Exhibit J,

Plaintiff’s denial of Ms. xx reasonable accommodation).

4. Ms. xx request was reasonable and necessary because of her disability. With her son incarcerated, Ms. xx has gained the opportunity to focus on her own mental

health without the frequent setbacks caused by her son’s conduct. This period of uninterrupted

recovery will improve her capacity to keep her son from the premises after his release from State

prison. It is perfectly reasonable for the Plaintiff to provide Ms. xx with this time to heal while

her son is incapable of coming onto the premises. It is a solution that will prevent an innocent

mother, two daughters, and grandson from becoming homeless – all because one son with

behavioral disabilities was able to take advantage of his mentally disabled mother. Defendants

will present testimony from Ms. xx doctor indicating his believe that her son took advantage of

Ms. xx disability, and that she has made significant progress since her son has been away. Even

Ms. xx daughters have noticed a marked improvement in their mother since her son has been

away. (See Exhibit B, paragraph 41).

A housing provider has a duty to make reasonable efforts to accommodate a tenant’s

mental disability before the provider evicts the tenant. Roe v. Housing Authority of the City of

Boulder, 909 F.Supp. 814 (D. Colo. 1995); Roe v. Sugar River Mills Assoc., 820 F.Supp. 6363

(D.N.H. 1993). In Roe v. Sugar River, the tenant had used obscene and offensive language and

threatened physical violence. Yet, the court held that the landlord must first made reasonable

accommodations to minimize or eliminate the impact of the tenant’s disability before evicting

the tenant. Here, Ms. xx is not requesting to keep her son on the premises so that he can work on

his mental health. Rather, her request accepts responsibility for the fact that her own mental

health deficiencies have contributed to her son’s behavior and prays for an opportunity to both

work on her deficiencies and move forward without her son.

The requested accommodation is not only reasonable but it has already shown to be

effective. Due to the fact that her son has been gone since he was arrested in February 2013, Ms.


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xx (and her daughters) have been able to live in peace, free of incidents in the building, and has

been able to make progress in her mental health treatment. Allowing Ms. xx and her daughters

to stay in their housing is a reasonable accommodation with little to no cost to the Plaintiff, nor is

it unduly burdensome. Defendants have not and do not jeopardize the safety of the community,

nor are they a direct threat to the community.

Plaintiff has failed to demonstrate that accepting Ms.xx’s request for a reasonable

accommodation proposes an undue hardship.

5. Fair Housing Act Does Not Require That a Request be Made in a Particular Manner or at Particular Time

The Department of Justice (“JOD”) and the Department of Housing and Urban

Development (“HUD”) are jointly responsible for enforcing the federal Fair Housing Act.

Contrary to plaintiff’s assertion that Ms. xx submitted “ … the request a reasonable

accommodation more than 60 days after filing an answer to the complaint.” (See Exhibit J,

Denial of Reasonable Accommodation), DOJ and HUD in their “Joint Statement of the

Department of Housing and Urban Development and the Department of Justice – Reasonable

Accommodations under the Fair Housing Act”, made it abundantly clear that the Fair Housing

Act does not require that a request be made in a particular manner or at a particular time (see

Exhibit P, page __. The complete 15-page document can be found at

http://www.hud.gov/offices/fheo/library/huddojstatement.pdf). Therefore, under the Fair

Housing Act standards, Ms. xx request for a reasonable accommodation is timely.

6. Case Law is Clear that Landlord’s Duty of Reasonable Accommodations Exists Through Time of Recovery of Possession

In the eviction context, a tenant may request a reasonable accommodation before trial, at

trial, or up until he or she is actually evicted. In Boston Housing Authority v. Bridgewaters, 452

Mass. 833 (2009), the Court held that the tenant meets his obligation to request an

accommodation by making such request to the judge at eviction trial. At his trial, Bridgewaters

made the judge aware of his disability, testifying about his mental disability, and his subsequent

treatment program. The Court held that the tenant fulfilled the notice requirement of a reasonable


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accommodation request by apprising the judge of his need for an accommodation. Combined

with tenant’s assertions at trial that he was mentally disabled and had been successfully treated

subsequently, the Court found that this amounted to a timely request for an accommodation.

The Court in Housing Authority of Bangor v. Maheux, 748 A.2d 474, 476 (Me. 2000),

ruled that “the landlord is under a duty to accommodate until eviction writ is issued.” In

Housing Authority of Bangor, a mother was being evicted because her son seriously disrupted

the right of other tenant’s right of quiet enjoyment. A judgment was issued against the tenant,

and the tenant filed a motion for relief from judgment and for a stay of issuance of writ. On

appeal, the Court ruled in favor of the tenant and held that the landlord is under duty to

accommodate until eviction writ is issued. [emphasis added].

Guidance from case law is abundantly clear: the reasonable accommodation request can

be made any time before the actual execution of the writ and that the jury’s job is to determine

whether the landlord discriminated against the tenant when the request was made, even if made


At the close of trial, defendant will ask the Court for Jury instructions on Fair Housing

Act, disabilities, and reasonable accommodation. “[T]he question of what constitutes a

reasonable accommodation … ‘requires a fact-specific, individualized analysis of the disabled

individual’s circumstances and the [possible reasonable] accommodations.’” McGary v. City of

Portland, at 1270.

c. THE COURT CAN GRANT LEAVE TO AMEND A PLEADING ABSENT A SHOWING OF PRJUDICE TO THE ADVERSE PARTY

Absent a showing of prejudice to the adverse party, the court may grant to leave to amend

a pleading. Price v. Maason-McDuffee Co. (1942) 50 Cal.App.2d 320 (1st Dist.).

In Price the court analyzed whether, in granting defendants’ motion for leave to amend

their answer, the plaintiffs suffered prejudice. Defendants in Price requested leave to amend their

answer to due to the defective form of their initial denials from “mistake, inadvertence, and

excusable neglect”. The mistake, inadvertence and excusable neglect was due to their initial

answer being imperfect in form as to the allegations of fraud due to the previous understanding

that the allegations of fraud had been sufficiently denied. Id. at 325.


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The Court found that the plaintiff produced the same evidence they would have had the

denials been legally sufficient. The leave to amend was granted and affirmed by the appellate

court because the plaintiffs were unable to show that they suffered any prejudice as the result of

the amended answer. (See also, Atkinson v. Elk Corp. (2003) 109.App.4th, 739, 760, (1st Dist.)

(court denied Defendant’s argument that Plaintiff should not be allowed to amend the complaint

on the ground that Plaintiff was simply trying to “circumvent” the trial court ruling, because

Defendant did not show prejudice by the amendment). In the present case, the Plaintiff will not

be prejudiced if Defendants are permitted to amend their answer to include the above-mentioned

defenses. Plaintiff has not yet set the trial date and the discovery cut-off has not expired.

CONCLUSION

In the instant case, no trial date has been set. Furthermore, Defendant will suffer significant

prejudice to their case if not permitted to amend their answer. For the reasons discussed above,

Defendants respectfully seek leave of this Court to file the proposed Amended Answer.

Dated: January 30, 2014 _____________________ ERIN KATAYAMA Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S SECOND MOTION IN LIMINE

Attorney for Defendant

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

Plaintiff,

v.

Defendants.

)) ) ) ) ) ) ) ) ) ) ) )

CASE NO. DEFENDANT’S SECOND MOTION IN LIMINE TO INCLUDE EVIDENCE RELATED TO AN ADDITIONAL AFFIRMATIVE DEFENSE; MEMORANDUM OF POINTS AND AUTHORITIES Date: April 13, 2009 Time: Dept.:

To Plaintiff and its Counsel:

Defendant respectfully moves this Court to allow the trier of fact to hear all of the

following matters ["And," in a series, includes "and/or."]:

Mention, discussion, testimony and any and all direct and indirect references to

evidence of and any conduct or actions evidencing defendant’s disability, his request for a

reasonable accommodation and plaintiff’s response to that request, as well as, evidence that

supports defendant’s affirmative defense of disability discrimination and plaintiff’s failure to

provide a reasonable accommodation of that disability.

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POINTS AND AUTHORITIES

I. PROCEDURAL HISTORY

Defendant filed his answer to plaintiff’s complaint on February 23, 2009. At the time he

responded he was not represented by counsel. The initial trial date in this action was Monday

March 16, 2009. On Thursday March 12, 2009, defendant was diagnosed with a mental health

disability by a licensed medical care provider. On Friday March 13, 2009, Defendant made a

request for a reasonable accommodation based on a treatment plan developed by his medical

provider that in her professional opinion would allow the defendant to remain in his housing and

address the concerns of his landlord. On Friday March 13, 2009, the time period allowed for

amending an answer by right had run. On March 18, 2009 defendant requested that plaintiff

stipulate to allowing Defendant to amend his answer. Plaintiff denied this request. On March

19, 2009 and April 2, 2009 Defendant appeared on the law and motion ex parte calendar for an

order shortening time on a motion for leave to amend defendant’s answer to include defendant’s

affirmative defense of disability discrimination and plaintiff’s failure to provide a reasonable

accommodation of that disability. Specifically X sought the following affirmative defense be

added to the Answer:

3f. Plaintiff is arbitrarily discriminating against Defendant because of disability. 3i(2). Defendant informed Plaintiff of his disability on March 13, 2009 and requested a reasonable accommodation. Plaintiff failed to reasonably accommodate defendant’s disability. In so doing, Plaintiff has violated federal, state, and local law pertaining to disability discrimination.1

On both occasions the order shorting time were denied because there was not time to set the

hearing before the trial date. On April 3, 2009, Plaintiff’s counsel was personally served

defendant’s motion for leave to amend defendant’s answer to include defendant’s affirmative

defense of disability discrimination and plaintiff’s failure to provide a reasonable

accommodation of that disability. On April 6, 2009 Defendant requested a reasonable

1 In addition, and consistent with this X First Amended Answer would check box 3f.

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accommodation from Department 206 of the Superior Court of a trial protective date in two

weeks to allow time for defendant’s motion for leave to amend answer be heard. This request

was denied. Defendant intends to request that the answer be amended as to conform to proof

upon concluding the presentation of his case.

II. LEGAL ARGUMENT

California has a liberal public policy favoring the broad exercise of a court’s discretion to

permit amendment of pleadings. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760; Mabie

v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Code of Civil Procedure Section 473 provides in

pertinent part that this Court has the authority to allow a party, “upon any terms as may be just,

an amendment to any pleading or proceeding.” (Cal. Code Civ.Proc § 473(a)(1).) Further, Code

of Civil Procedure Section 470 states “where the variance is not material, as provided in Section

469, the court may direct the fact to be found according to the evidence, or may order an

immediate amendment, without costs.” (Cal. Code Civ.Proc § 470.) Under Code of Civil

Procedure Section 469, “[n]o variance between the allegation in a pleading and the proof is to be

deemed material, unless it has actually misled the adverse party to his prejudice in maintaining

his action or defense upon the merits.” (Cal. Code Civ.Proc § 469.)

Defendant’s Narcissistic Personality Disorder is a disability/handicap that substantially

limits at least one of his major life activities and which qualifies his for protection within the

meaning of the California Fair Employment and Housing Act (“FEHA”) and the Federal Fair

Housing Act (“FHA”). (California Government Code § 12926.1(c); 42 U.S.C. § 3601 et seq; In

re Marriage of James and Christine C. (2008) 158 Cal.App.4th 1261, 1273; Auburn Woods I

Homeowners Association v. Fair Employment and Housing Commission (2004) 121 Cal.App.4th

1578, 1592.) Therefore, the defendant is deemed a “protected tenant” under both California and

Federal law.

When a disabled tenant requests a reasonable accommodation, a landlord is legally

required to actually respond thereto. As the Court explained in Auburn Woods I, supra, 121

Cal.App.4th at 1598, “[t]his obligation to ‘open a dialogue’ with a party requesting a reasonable

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accommodation is part of the interactive process in which each party seeks and shares

information.” Moreover, “if a landlord is skeptical of a tenant’s alleged disability or the

landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request

documentation or open a dialogue.” (Ibid.) The Court concluded that a landlord “could not

simply sit back and deny a request for reasonable accommodation because it did not think

sufficient information had been presented or because it did not think the [tenant] had spoken the

‘magic words’ required to claim the protections of FEHA.”2 (Ibid.) In this case, Plaintiff

violated the rule articulated in Auburn Woods I when it failed to open a dialogue regarding

Defendant’s request for a reasonable accommodation.

FHA imposes the same obligation on a landlord. A violation of the FHA occurs when a

disabled resident is denied a reasonable accommodation. (Dubois v. Association of Apartment

Owners of 2987 Kalakaua (9th Cir. 2006) 453 F. 3d 1175, 1179.) The Ninth Circuit recently

reiterated its position that “[w]e have repeatedly interpreted this language [FHA] as imposing an

affirmative duty on landlords and public agencies to reasonably accommodate the needs of

disabled individuals.” (McGary v. City of Portland (2004) 386 F.3d 1259, 1261) (citations

omitted)

Further, defendant’s request for Reasonable Accommodation was timely and Plaintiff’s

duty to make a reasonable accommodation continues to exist. In Radeki v. Joura, 114 F.3d 115

(8th Cir. 1997), the tenant told the landlords that he was “ill” and needed more time to prepare

for repairs and pest extermination in his apartment. The tenant had not cooperated with the

landlords in allowing them access to his unit for repairs and for the elimination of cockroaches

and mice. It was not until months later that the landlords were put on notice that the tenant

suffered from severe depression. The court held that even though the landlords were not aware

of the nature and extent of the tenant's disability when they served the notice, at the time they

were made aware of the disability, they should have made a reasonable accommodation for the

tenant's disabilities. Id. at 117. In this case, Defendant made a request for Reasonable

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Accommodation on March 13, 2009 the same day he received written confirmation of his

disability from a licensed health care professional and the day after he was diagnosed. Thus,

when plaintiff became aware of defendant’s disability and of his request for a reasonable

accommodation, the duty to comply with the FHA still existed. This duty continues to exist and

the plaintiff here has a present obligation to the tenant. Therefore, defendant’s request is timely.

III. EVIDENCE OF DISABILITY AND DEFENDANT’S REQUEST FOR A REASONABLE ACCOMMODATION SHOULD BE ALLOWED

The Evidence Code of California defines admissible evidence as that which is relevant.

Cal. Ev. Code §350. According to the Code, “Relevant evidence means evidence, including

evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in

reason to prove or disprove any disputed fact that is of consequence to the determination of the

action.” Cal. Ev. Code §210. In this case, the Court should exercise its discretion to allow

evidence regarding defendant’s disability, his request for a reasonable accommodation and

plaintiff’s response to this request as it is relevant to both the incident alleged in the three day

notice to quit and defendant’s ability to raise a disability defense under both Federal and State

law. First, Defendant’s medical provider developed a reasonable accommodation and treatment

plan that in her professional opinion would allow the defendant to remain in his housing and

address the concerns of his landlord. Thus, there is a relationship between defendant’s disability

and plaintiff’s allegations. Second, while defendant’s request for a reasonable accommodation

was timely under Federal law, its timing also precluded it from being included in defendant’s in

pro per answer. Finally, excluding this evidence will deny this disabled defendant the

opportunity to exercise his Federally and State protected rights.

Therefore, evidence of defendant’s disability, his request for a reasonable

accommodation and plaintiff’s response to this request defendant’s disability, as well as any

evidence which supports defendant’s affirmative defense of disability discrimination and

plaintiff’s failure to provide a reasonable accommodation of that disability should be allowed as

//

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it is directly related to allegations raised in plaintiff’s pleadings and essential to protect this

disabled defendant’s Federally and State guaranteed rights.

Dated: April 20, 2009 Respectfully submitted,

________________________


1

Law Office of ________________________________________________________________

June 8, 2011 Via Hand Delivery Re: vs. ; CUD- Dear Mr. :

This letter finds its purpose in requesting reasonable accommodation for my client, pursuant to Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601 et seq. (1995) and Giebeler v. Associates ABL, No. 00-17508; Docket No. CV-98-20405-RMW (9th Cir. 2003)

My client suffered cumulative injuries from a series of 5 car- and biking-accidents during 1998 to 2008 and was under the care of psychiatrist, orthopedic surgeon, neurosurgeons, dentist, osteopathic physician, acupuncturist, as well as underwent physical therapy for 18 months. In 2008, after reviewing the result of various tests and MRIs of the injuries to her neck and head, she was instructed to schedule a surgery with the SFGH Neurosurgery Department. She was unemployed and had neither health insurance coverage nor funds to pay for the surgery. Hence her injuries remain untreated. To this date, she continues to suffer from memory lapses, depression, disorientation, debilitating pain, chronic headache, anxiety, and tiredness. Her physical and mental impairment renders her incapable of keeping track of dates and details to pay her rent on time.

To ensure that my client’s rent is paid on time, it is requested that her financially-secure sister, , who has assumed the financial responsibility to pay for all my client’s expenses and has been making the rent payment on behalf of my client consistently since September 2010, to become her payee and to wire transfer the rent payment directly to your client’s account each month on the due date. She would, therefore, become the guarantor or cosigner of my client’s lease.

In Giebeler v. Associates ABL, No. 00-17508; Docket No. CV-98-20405-RMW (9th Cir. 2003), the Ninth Circuit analyzed whether the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601 et seq. (1995), requires the apartment owners reasonably to accommodate a tenant’s disability which resulted in the lack of income stream by assessing individually the risk of nonpayment created by his specific proposed financial arrangement. The Ninth Circuit concluded that the statute does so require.

The Giebeler case bears striking resemblance to my client’s situation. Mr. Giebeler was too ill to work due to AIDS and hence lacks an income stream. His mother, who has the financial means, offered to co-sign his lease and was turned down by the building management, citing a policy against cosigners.

In Giebeler, the Ninth Circuit made it abundantly clear that “[t]he FHAA's definition of prohibited discrimination encompasses "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §3604(f)(3)(B). Thus, the FHAA "imposes an affirmative duty upon landlords reasonably to accommodate the needs of handicapped persons," United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994) ("Mobile I"), not only with regard to the physical accommodations, see 42 U.S.C. § 3604(f)(3)(A) and (C), but also with regard to the administrative policies governing rentals.”

2

New subsection 804(f)(3)(B) makes it illegal to refuse to make reasonable

accommodation in rules, policies, practices, or services if necessary to permit a person with handicaps equal opportunity to use and enjoy a dwelling.

The FHAA defines "handicap" as "a physical or mental impairment which substantially

limits one or more of such person's major life activities." 42 U.S.C. § 3602(h)(1). My client’s impaired mental condition clearly qualifies as a "physical or mental impairment" for the purposes of the FHAA. 24 C.F.R. § 100.201(a)(2). Reasonable accommodation of her handicap is imperative to afford her an equal opportunity to use and enjoy the dwelling.

I’d recommend that you provide the requested reasonable accommodation. Should we

fail to prevail at jury trial on reasonable accommodation, we will file for Petition for Relief of Forfeiture as it would be extreme hardship for my client to lose her home of the last 19 years in her impaired mental and physical condition.

In light of the fact that my client meets all the requirements under CCP §1179, had made 12 rent payments in 2010 to fulfill her rent obligation, and is entitled to reasonable accommodation under FHAA, I strongly recommend that your client provides the requested reasonable accommodation to add as the guarantor/payee for my client’s lease.

If you have any questions, I may be reached at (415). Sincerely . Attorney for Defendant, Cc: client

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Attorney for Defendant,


CITY & COUNTY OF SAN FRANCISCO LIMITED JURISDICTION

.

Plaintiff,

v.

Defendant.

)))))))))))

Case No.: CUD- DEFENDANT’S SUPPLEMENTAL TRIAL BRIEF: TIMING OF REASONABLE ACCOMMODATION REQUEST

PRELIMINARY STATEMENT

This case is an action in unlawful detainer in which the sole ground alleged in the 3-Day

Notice to Pay Rent or Quit was the non-payment of August 2010 rent. The defendant sent in

her August 2010 payment on September 3, 2010 because she was unable to keep track of dates,

as a result of her disability.

STATEMENT OF THE FACTS

In December 2007, defendant sustained serious injuries to her knee, legs, neck, spin, and

head in an accident. She was under the care of psychiatrist, orthopedic surgeon, head and neck

surgeon, dentist, osteopathic physician, acupuncturist, as well as underwent physical therapy for

18 months.

In January 2008, after multiple tests and brain/spine MRIs, she was instructed by San Francisco General Hospital’s Chief Surgeon to schedule a surgery. She did not proceed because she was unemployed, without health insurance coverage, and her savings had been depleted by mounting medical bills.

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To this date, she continues to suffer from memory lapses, depression, anxiety, upset,

disorientation, lingering headache, debilitating pain, and tiredness. She often has difficulty keeping balance and her legs, feet, and ankles swell up easily, making it difficult to leave her apartment. Her health problem and mental impairment make it very difficult to work as a free-lance consultant because she often cannot keep track of dates and details. This mental impairment also caused her to miss her rent due date from time to time.

The 3-Day Notice to Pay Rent or Quit was served on the defendant on March 31, 2011,

specifying the non-payment of August 2010 rent as the sole ground. This was the first time the

defendant became aware that plaintiff had probably recorded her rent payments wrong, as she

was sure that she had made 12 rent payments in 2010.

In the first week of June, as soon as her counsel was able to reconstruct her 2010-2011

payment records and examine her 2 checks meant for March and April rent which were returned

by plaintiff, it became clear that plaintiff must have recorded her payment meant for August

2010 as September payment, as a result of her paying the rent late.

On June 8, 2011, defendant served a letter on plaintiff requesting reasonable

accommodation pursuant to Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601 et seq.

(1995) and Giebeler v. Associates ABL, No. 00-17508; Docket No. CV-98-20405-RMW (9th Cir.

2003). Given defendant’s difficulty in keeping track of rent due dates as a direct result of her

disability, defendant requested to have her sister, who has been paying her rent since September

2010, become the guarantor or cosigner of her lease and wire transfer the rent payment directly

to the plaintiff’s account on the due date each month. The plaintiff did not respond to this

request. Plaintiff was put on further notice of defendant's disability when defendant's answer

listed her affirmative defenses. On August 15, defendant again requested the above reasonable

accommodation and offered to pay all the rent to bring her account up to date. This request was

rejected by the plaintiff on August 15, claiming that the request was made after the service of 3-

Day Notice to Pay Rent or Quit, hence too late.

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In this case, defendant’s disability impaired her ability to keep track of rent due dates and

her late payment of her August 2010 rent flowed directly from her disability. Under the law, the

plaintiff is required to take reasonable steps to accommodate her disability.

This brief addresses the issue of whether a request for reasonable accommodation made

after the 3-day Notice to pay Rent or Quit had expired was made too late and hence relieve

plaintiff his obligation to provide reasonable accommodation.

FAIR HOUSING ACT DOES NOT REQUIRE THAT A REQUEST BE MADE IN A PARTICULAR MANNER OR AT A PARTICULAR TIME

The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act. Contrary to plaintiff’s argument that the request must be made prior to the 3-Day Notice, DOJ and HUD in their “Joint Statement of the Department of Housing and Urban Development and the Department of Justice -- Reasonable Accommodations under the Fair Housing Act”, made it abundantly clear that the Fair Housing Act does not require that a request be made in a particular manner or at a particular time (see attached on page 10. The complete 15-page document can be found at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf)

CASE LAW IS CLEAR THAT LANDLORD'S DUTY OF REASONABLE ACCOMMODATION EXISTS THROUGH TIME OF RECOVERY OF POSSESSION

Plaintiff’s argument’s that a reasonable accommodation request must be made prior to the

service of 3-Day Notice is also unsupported by case law. A long line of cases had made it

abundantly clear that, in the eviction context, a tenant may request an accommodation before

trial, at trial or up until he or she is actually evicted.

In Boston Housing Authority v. Bridgewaters, 452 Mass. 833 (2009), the court held that

the tenant meets his obligation to request an accommodation by making such request to the judge

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at eviction trial. At his trial, Bridgewaters made the judge aware of his disability, testifying

about his mental disability, and his subsequent treatment program.

The court held that the tenant fulfilled the notice requirement of a reasonable

accommodation request by apprising the judge of his need for an accommodation. By opposing

his eviction, asking to remain in his apartment, and stating that he was being successfully treated

for his disabilities, the tenant indicated that the relief he sought was that the landlord depart from

its eviction policy and reinstate his tenancy. Combined with tenant’s assertions at trial that he

was mentally disabled and had been successfully treated subsequently, the court finds this

amounted to a timely request for an accommodation.

In Douglas v. Kriegsfeld Corporation, 884 A.2d 1109 (D.C. Cir. 2005), the court finds

that a reasonable accommodation defense is available at any time before a judgment of

possession is entered. In Douglas, the landlord of Section 8 housing served the tenant with a

thirty-day notice to “cure or quit” for violation of her lease covenant to “maintain the apartment

in clean and sanitary condition” on August 23, 2001. The tenant neither cleaned up nor vacated

the premises, and the landlord accordingly filed an action for possession on November 30, 2001.

On February 5, 2002, counsel for the tenant sent a letter to the Director of the Department

of Consumer and Regulatory Affairs (DCRA) “requesting a reasonable accommodation under

the Federal Fair Housing Act” for a “disability (mental),” namely a “mood disorder,” that

affected the tenant's ability to keep the apartment “safe and sanitary. Counsel added: The

“District of Columbia Government is prepared to assist her with cleaning the apartment.” DCRA

never took action.

On February 20, 2002, counsel for the tenant wrote to the landlord requesting a

reasonable accommodation in which the counsel explained the basis for accommodation but did

not describe the type of accommodation sought and what the District of Columbia government

would offer. Evidence showed that landlord's counsel-who has acknowledged receipt-never

responded to this letter. One of the stated reasons the trial court rejected the tenant's disability

discrimination defense was that the request for reasonable accommodation came several months

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after the landlord had served the thirty-day notice to cure or quit and filed the lawsuit, hence the

request was made too late.

On the issue of timing, the Douglas court found the trial court had erred and opined:

“[A] discriminatory denial can occur at any time during the entire period before a tenant is “actually evicted”; actionable discrimination is not limited to the shorter cure period specified in a notice to cure or quit, or to any other period short of the eviction order itself. As a general rule, therefore, a “reasonable accommodation” defense is available at any time before a judgment of possession has been entered, if the other requirements of the defense are met. The trial court did not apply this general rule under the Fair Housing Act that a reasonable accommodation defense will be timely until the proverbial last minute.” [emphasis added]

In Housing Authority of Bangor v. Maheux, 748 A.2d 474, 476 (Me. 2000), the landlord notified Maheux that her lease was being terminated on the grounds that the threatening conduct of her son seriously disrupted the right of other tenants to the quiet enjoyment of their homes. Thereafter, landlord filed a complaint for forcible entry and detainer against the tenant Maheux. Maheux asserted an affirmative defense that landlord was obligated to make a "reasonable accommodation" for her family in light of her son's diagnosed "Oppositional Defiant Disorder." A judgment was entered against the tenant, and the tenant filed a motion for relief from judgment and for stay of issuance of writ. On appeal, the court ruled in favor of the tenant and held that the landlord is under duty to accommodate until eviction writ is issued.[emphasis added]

It should be noted that, in this instant case, plaintiff has thus far failed to provide a single citation to this court to support his position that a reasonable accommodation request must be made before a notice is served or during the pendency of said notice.

Guidance from the case law is abundantly clear: the reasonable accommodation request can be made anytime before the actual execution of the writ and that the jury's job is to determine whether the landlord discriminated against the tenant when the request was made even if made

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DEFENDANT WOULD PREVAIL IN FEDERAL LAWSUIT BASED ON PLAINTIFF’S FAIR HOUSING ACT VIOLATION

Should the court denies defendant the right to present evidence of her disability and her

request for reasonable accommodation at trial, the following anomaly would result: plaintiff is successful in evicting defendant and she loses her home, but she could file a complaint in Federal Court alleging a violation of the Fair Housing Act and be compensated for the loss of her home. That loss would be the difference between her rent-controlled rent and the market rent for as long as the tenant would have stayed in the unit. As a result, by failing to allow defendant to present her affirmative defense of Fair Housing Act violation, this court would expose plaintiff to hundreds of thousands of dollars in damages in a federal lawsuit.

CONCLUSION There can be no doubt that, under the Federal and State Fair Housing Acts and the legal precedents, even though plaintiff only became aware of defendant’s disabilities upon the receipt of her initial request for a reasonable accommodation after the 3-Day Notice was served, the duty to comply with the FHAA still exists, and the plaintiff has a present obligation to the tenant. At this trial, the facts surrounding defendant's disability, her repeated requests for a reasonable accommodation and the denial thereof, are all relevant to defendant's affirmative defenses of discrimination and retaliation, and must be allowed into evidence to be evaluated by the jury.

At the close of the trial, defendant will ask the court for jury instructions on Fair

Housing Act, disabilities, and reasonable accommodation. "[T]he question of what constitutes a

reasonable accommodation . . . 'requires a fact-specific, individualized analysis of the disabled

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individual's circumstances and the [possible reasonable] accommodations.'" McGary v. City of

Portland, at 1270.

Dated: August 20, 2011


NOTICE OF MOTION AND MOTION FOR ORDER CONTINUING TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF. IN

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Attorney for Defendant _______________


IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

_______________, Plaintiff

v.

_______________, Defendant.

Case No:

EMERGENCY MOTION FOR ORDER CONTINUING TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF MICHAEL W. BLACKSBURG IN SUPPORT THEREOF TRIAL DATE: OCTOBER 30, 2006

TO EACH PARTY AND ATTORNEY OF RECORD:

This motion is made on the following grounds:

1. Defendant _______________ obtained the aid of her legal counsel, on Friday,

October 27, 2006, a few days before trial.

2. Defendant _______________ is defending this Unlawful Detainer action on the

grounds, inter alia, that she requested a reasonable accommodation of her disabilities

and Plaintiff _______________, her landlord, failed to provide said accommodation.

One of element of her affirmative defense is a showing that she is disabled and her

treating physician, Dr. , is on holiday until Monday, November 6, 2006,

which means that subpoenaing his testimony is not possible until Monday, November

6, with his appearance reasonably ascertained the following week.

3. Dr. testimony is critical because he is _______________’s treating

psychiatrist and is the only person able to testify about her medical disabilities, how

her disabilities relate to the occurrence of the landlord’s three day notice, and her

ability to maintain the apartment with the help of her current in-home caretakers.


SUPPORT THEREOF 2

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This motion is based upon this Notice and on the accompanying supporting

Memorandum of Points and Authorities and Declaration of Esq. (“

Declaration”), served and filed herewith, and on the records and files in this action, and on any

evidence that may be presented at the hearing of the motion.

Respectfully submitted, Dated: November 2, 2006

_________________________________________ Attorney for _______________


SUPPORT THEREOF 3

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS

I. INTRODUCTION

Defendant _______________ (“_______________”) is a tenant at 3839A Judah Street,

San Francisco, California (the “Premises”). In the present action, Plaintiff, _______________

(“_______________”), is seeking possession of _______________’s apartment pursuant to a

Three Day Notice to Vacate (the “Notice to Vacate”). The Notice to Vacate alleges that

_______________ “created a substantial interference with the comfort, safety and enjoyment of

the other tenants in the building … by causing noxious orders [sic] and fumes from garbage, cat

feces and cat urine and other substances,” and the “the substances which cause the orders [sic]

are a health hazard.”

_______________ is not being evicted because she was unable to pay the rent.

_______________ has chronic physical and mental disabilities that affect her ability to act with

the normal speed of the average person. She requested a reasonable accommodation of her

disabilities in the form of more time to clean her apartment.

_______________’s attorney, Michael W. Blacksburg, became attorney of record on

Friday, October 27, 2006, one business day before the trial date, October 30, 2006. See

Declaration of Michael W. Blacksburg. Mr. Blacksburg immediately began reviewing

documents and preparing _______________’s defense. On Monday, October 31, 2006, Mr.

Blacksburg learned the name of _______________’s treating psychiatrist, Dr. Krause, and

learned on Wednesday, November 1, 2006 that Dr. Krause is on holiday and not able to be

contacted until Monday, November 6, 2006.

The nuisance complained of at _______________’s home has been abated since

September 13, 2006 and therefore, there is not exigency in removing _______________ from the

property. See Declaration of Marie Needels, RN, Adult Protective Services (to be hand

delivered upon signature).


SUPPORT THEREOF 4

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II. LEGAL ANALYSIS

Good cause exists for the Court to grant a continuance of trial in this matter. California

Rule of Court Rule 375 states that a moving party must provide an affirmative showing of good

cause for the Court to grant a trial continuance.

Good cause exists to continue the trial because _______________’s defenses under the

Federal Fair Housing Amendments Act and California’s Fair Employment and Housing Act is

dependent upon Dr. Krause’s medical testimony and he is unavailable to testimony before

November 7, 2006 (if he’s willing to testify on one day’s notice, which is highly unlikely).

Under Federal and state fair housing laws, landlords must make reasonable

accommodations of tenant’s disabilities in their policies, rules and practices. 42 U.S.C.

§3604(f)(3)(B). In order to assert the defense to eviction that plaintiff has failed to provide a

reasonable accommodation, defendant must show that, inter alia, she is a disabled person under

the law. See e.g., United states v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380

(9th Cir.1997).

Under Radecki v. Joura, (114 F.3d 115) a tenant may give notice of her disability up to

the date of eviction and still avail herself of the protections provided by Fair Housing laws.

a. Fair Housing law applies.

_______________ has been diagnosed with serious physical and mental health

disabilities, and has been under a doctor’s care for many years. She receives Supplemental

Security Income benefits based on her disabilities from the Social Security Administration. See

Exhibit A to Declaration of Michael W. Blacksburg, attachment. Therefore she is a disabled

individual who is protected by Fair Housing laws. 42 U.S.C. §3602(h)(1).

b. Defendant informally requested a reasonable accommodation and the request

was denied.

Plaintiff has been on notice that defendant has disabilities both, orally by

_______________ and formally by Mr. Blacksburg.


SUPPORT THEREOF 5

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c. _______________’s request was reasonable and necessary because of her

disability.

Under Federal law, a housing provider has a duty to make reasonable efforts to

accommodate a tenant’s disabilities before the provider evicts the tenant. Roe v. Housing

Authority of the City of Boulder, 909 F.Supp. 814 (D. Colo. 1995); Roe v. Sugar River Mills

Assoc., 820 F.Supp. 6363 (D.N.H. 1993). In Roe v. Sugar River, the tenant had used obscene and

offensive language and had threatened physical violence. Yet, the court held that the landlord

must first make reasonable accommodations to minimize or eliminate the impact of the tenant’s

disability before evicting the tenant.

_______________ made numerous requests for accommodation, by verbally asking for

help and through letters. Dr. Krause will provide testimony at trial that due to the introduction of

weekly cleaners, there is a very low likelihood that _______________’s home might begin

creating the odors it is complained of creating. Allowing _______________ to stay in her

housing is therefore a reasonable accommodation with no burden on plaintiff. A landlord may be

required to shoulder some costs of accommodating disabled tenants, as long as the cost is not

unduly burdensome. United States v. California Mobile Home Park, 29 F.3d 1413, 1416-17.

For the foregoing reason, this motion should be granted.

III. CONCLUSION

_______________ must be provided the opportunity to put forward her defense of

reasonable accommodation at trial, and, she will show that as a disabled individual protected by

Fair Housing laws, she requested a reasonable accommodation and it was denied. For the reasons

stated above, _______________ respectfully requests that the Court continue this trial to

November 13, 2006.

Dated: November 2, 2006 LAW OFFICE OF MICHAEL W. BLACKSBURG


SUPPORT THEREOF 6

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_________________________________________ Michael W. Blacksburg Attorney for _______________ DECLARATION OF MICHAEL W. BLACKSBURG

I, MICHAEL W. BLACKSBURG, hereby declare as follows:

1. I am a solo practicing attorney in San Francisco, California.

2. On Thursday, October 26, 2006, I volunteered through the Courthouse Project

(sponsored by the Superior Court and Volunteer Legal Services Program) in a “Limited Scope

Representation” capacity, pro bono, to aid Ms. _______________ during her mandatory

settlement conference related to the unlawful detainer action filed against her by her landlord Mr.

_______________. The matter could not be successfully settled.

3. The following morning, I received a phone call from Volunteer Legal Services

Program to determine if I was willing to continue to work with _______________, pro bono, in

the hopes of settling this matter before trial. I agreed and mailed a Substitution of Attorney to

the Superior Court and served opposing counsel, Mr. Henry Shain, Esq.

4. From Friday, October 27, 2006 through Sunday, October 29, 2006, I prepared the

preliminary documents required for Monday’s appearance, including Motions in Limine, Voir

Dire Questions, Proposed Jury Instructions, a Trial Brief and a Statement of the Case.

5. On Monday, October 30, 2006, _______________ substituted his attorney and

Mr. Daniel Piccinini, Esq. substituted in as legal counsel. Unfortunately, the case could not be

resolved to either parties’ satisfaction and I began preparing _______________’s defense.

6. On Tuesday, October 31, 2006, I formally requested a reasonable accommodation

on behalf of _______________. See letter attached hereto as Exhibit A to Daniel Piccinini,

dated October 31, 2006.


SUPPORT THEREOF 7

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7. _______________’s prime defense to this action is that she is diagnosed with

numerous physical and mental disabilities that, under Federal and California law, would require

the landlord to make reasonable accommodations of her disabilities. _______________

contends that no such accommodations were made.

8. As her attorney, I was able to find that her treating psychiatrist is a Dr. Krause,

MD, located in Novato, California. I obtained his telephone number and learned that Dr. Krause

is on holiday until Monday, November 6, 2006.

9. I am unable to subpoena Dr. Krause until Monday, November 6, 2006,

conditional upon learning of his prime address. Even when I do subpoena him to testify to

_______________’s disabilities, he will most likely need one week to prepare his calendar to

come to San Francisco to testify.

10. _______________’s defense of reasonable accommodation is dependent upon Dr.

Krause’s testimony on _______________’s disabilities, how said disabilities manifest

themselves in connection with her maintaining her home and what, in his professional opinion, a

reasonable accommodation might be.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed on November 2, 2006, at San Francisco, California.

_________________________________________ Michael W. Blacksburg, Esq.

Defending Unlawful Detainers with Reasonable Accommodation Requests

Carolyn Gold, Esq. – Justice & Diversity CenterErin Katayama, Esq. – Homeless Advocacy Project

Jeremy Bergstrom, Esq. – Sargent Shriver National Center on Poverty Law

Session Overview1. An Overview of Reasonable Accommodations

2. Private Housing / Affirmative Requests for Accommodations

3. Making the Request for an Accommodation

4. The Interactive Process

5. Using the Defense to Defeat an Unlawful Detainer

Part 1An Overview of Reasonable Accommodations

Part 1 Overview1.The Laws Relating to Disability Discrimination

2.What is a Disability?

3.What is an Accommodation?

4.Exceptions

The Laws Relating to Disability Discrimination

• Fair Housing Act, 42 U.S.C § 3601 et seq.

• Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

• Section 504 of the 1973 Rehabilitation Act, 29 U.S.C. § 701 et seq.

• California Fair Employment and Housing Act, Cal. Gov. Code §

12940 et seq.FEHA is to be construed liberally and may be interpreted to provide greater protections than Federal Law. Auburn Woods I Homeowner’s Ass’n v. FEHC, 18 Cal.Rptr.3d 669, 677-78, 121 Cal.App.4th 1578 (2004).

Disability Defined

An individual has a disability if that person has:

• a physical or mental impairment that limits one or more life activities, or

• a history of such impairment, or

• is regarded as having such impairment

● 42 U.S.C. § 3602 (h)● Cal. Gov’t Code § 12926

Disability Defined (continued)

In response to U.S. Supreme Court caselaw narrowing the scope of the definition of disability, Congress passed the ADA Amendments Act of 2008.

• The ADAAA states that the “definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”

o 42 U.S.C. § 12102(4)(a)

Accommodation Defined

An accommodation is a change to a rule, policy, practice, service or procedure when such accommodations are necessary to afford a disabled person equal opportunity to use or enjoy the dwelling or program.

• 42 U.S.C. § 3604(f)(3)(B)• See Cal. Gov’t Code § 12927(c)(1)

There Are ExceptionsA landlord will not be required to accommodate if the tenancy would:• “constitute a direct threat to the health and safety of other

individuals” or

• whose tenancy would result in substantial physical damage to the property of others.”

o 42 U.S.C. § 3604(f)(9)o “Direct threat” can be succesfful even when there is no evidence of actual

harm to other tenantso Potential for harm seems fairly direct

Direct Threat Cases• Foster v. Tinnea-705 So. 2d 782 (La App., Dec. 1997) -

tenant who chased children with knife and made inappropriate sexual comments considered a direct threat

• Arnold Murray Construction, LLC v. Hicks 621 N.W. 2d 171,173 (S.D. 2001)- nudity in front of residents, verbal attacks and misogynist signs in window= direct threat

Still Requires a Reasonable Accommodation Analysis

• Landlord must show that no reasonable accommodation will eliminate or “acceptably minimize” the risk posed by the tenant.

• Roe V. Housing Authority 909 F. Supp 814, 822 (D. Colo. 1995)

Part 2• Private Housing

• Affirmative Requests for Reasonable Accommodations

The Fair Housing Act applies to anyone, including private landlords, who refuses to provide reasonable accommodations. 42 U.S.C. §3604(f)

o Courts have held the FHA applies to individuals, corporations, associations, lenders, private property owners, housing managers, homeowners and condominium associations, lenders, real estate agents, and brokerage services.

o Sometimes called the Fair Housing Amendments Act of 1988: Amends Title VIII of the Civil Rights Act of 1968 (Fair Housing Act).

• Section 504 of the Rehabilitation Act does not apply to private landlords, including landlords accepting a Housing Choice Voucher, but it does apply to private owners of Project-Based Section 8 housing.

• So, private landlords do not have to pay for reasonable modifications.

o Exemptions to FHA

• 42 U.S.C. § 3603(b)• 24 C.F.R. § 100.10

o Owner-occupied buildings that have four or fewer dwelling units

o A single family home rented by an owner if the owner

• does not own more than three single family homes

• has not sold a similar home within the past 24 months

• does not use a real estate agent or use discriminatory advertisements

Examples of Affirmative Requests for AccommodationsRemember that a tenant may request an accommodation in rules, policies, practices, or services.

o Facilitating move to an available first floor unit after tenant becomes disabledo Providing assistance in reading or completing a lease or other documents

related to tenancyo Providing an assigned parking spot close to tenant’s entrance, or a mailbox low

enough to access without reaching upo Allowing a motorized scooter on premiseso Changing manner of tendering rent payments, such as mail vs. hand delivery;

payment of rent by a date each month that would otherwise be “late” when it corresponds to receipt of disability benefits

o Allowing a service animal without requiring a pet fee or deposit, even when it would otherwise violate a pet policy (prohibits pets or pets above a certain weight, etc.)

o Accommodating a tenant who cannot lift trash into a dumpstero Permitting changes to guest policies to allow for home health services

• Reasonable modifications 42 U.S.C. 3604(f)(3)(A)

o A private owner must allow a disabled tenant to make reasonable modifications to the unit, such as grab bars.

o In private housing, the landlord can require the tenant to pay for it, and to restore the unit to its original condition upon vacating.• (cf. Section 504 requires owners of federally assisted housing to pay)

o Landlords do not have to agree to a “fundamental alteration” that changes the essential nature of the facilities.

• Be aware that state or local laws may make up for exemptions and/or bolster protections.

Part 3Making the Request for an

Accommodation

Part 3 Overview1.When?

2.How?

3.No magic words are necessary

When Should the Request be Made?

A request for a reasonable accommodation can be at any time, up to the entry of judgment for possession.• Douglas v. Kriegsfeld, 884 A.2d 1109, 1121 (D.C. COA 2005)

However, the sooner a request is made, the better.• A request made during the notice period should function to

stay the filing of the UD case while the landlord evaluates the request.

• Courts have ordered LL’s to cease eviction proceedings even when no specific accommodation is requested, but where access to services may allow a tenant to alter behavior or pinpoint other types of accommodations that will allow the tenant to comply with the lease.

• Court vacated an order evicting a resident with severe migraine headaches and PTSD from a federally subsidized housing facility, remanding the case for a determination whether the management company accommodated her disability finding that management knew of her disability and knew they caused her disruptive conduct, not providing enough R.A.

• The fact that, “ A tenant does not request a specific or suitable accommodation does not relieve a LL from making one.” Cobble Hill Apts. Co. v. McLaughlin, 1999 Mass. App. Div. 166 (Mass App. Div. 1999)

Requests may not be necessary

How?

Best practice is in writing, but this is not necessary.

The request should include the following:

• A statement that the tenant has a disability.

• A description of the requested accommodation.

• A statement that the disability can be accommodated by the request.

However, no magic words are necessary.

Prillman v. United Airlines, Inc., (1997) 53 Cal. App. 4th 935, states that:

• “[t]he statute does not require the [disabled individual] to speak any magic words before he is subject to its protections. The [individual] need not mention the ADA or even the term ‘accommodation.’”

Some potential pitfallsHow much information should be given?

Accommodation requests have been construed as an offer of settlement.

Part 4The Interactive Process

Part 4 Overview1.What happens next?

2.Dealing with requests for more information.

3.What if the requested accommodation is too

burdensome?

What Happens Next?

Once a request is made, a landlord has a few options:• grant the request

• deny the request

• ask for more information

• do nothingo if a landlord fails to respond or delays in responding, it could be

considered a denial of the request.

Dealing with Requests for More Information

What information is a landlord entitled to?

• If a person’s disability is obvious and the need for an accommodation is readily apparent or known, a landlord may not request more information.

• If a person’s disability is obvious but the need for an accommodation is not, a landlord may only ask for information related to the need for an accommodation, not the disability itself.

If a Disability Is Not ObviousIf an individual’s disability is not obvious, then a landlord may request “reliable disability-related information that:

1) is necessary to determine that the person meets the Act’s definition of disability . . .

2) describes the needed accommodation, and

3) shows the relationship between the person’s disability and the need for the requested accommodation.”

o Joint Statement of HUD and DOJ, Reasonable Accommodations Under the Fair Housing Act

CaselawBhogaita v. Altamonte Heights Condominium Assoc., “Housing providers need only the information necessary to apprise

them of the disability and the desire and possible need for an accommodation. Housing provider is not entitled to extraneous

medical information.”

• The complex was found to have violated FHA in delaying response to request for support animal based on a doctor’s letter that dog assisted resident in coping with his disability.

• LL’s request for irrelevant and intrusive information regarding a tenants disability in response to a request for RA is a constructive denial of the request.

Disability Not Obvious (continued)According the Joint Statement, the disabled individual can usually provide the information necessary to determine that she is disabled according to the Act. Other sources of verification include:

● proof that an individual is on SSI or SSDI● a doctor or other medical professional● a peer support group● a non-medical service agency● a reliable third party who is in a position to know about the

individual’s disability.

Disability Not Obvious (continued)“In most cases, an individual’s medical records or detailed information about the nature of a person’s

disability is not necessary for this inquiry.”

Repeated requests for more detailed information, when the requestor already has sufficient information to evaluate the request, have been construed as a denial of the request.

● See Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277 (11th Cir. 2014).

What if a request is too burdensome?

Even if the request imposes an excessive burden, a landlord is required to engage in the interactive process in order to determine if a different, less burdensome accommodation would suffice.

Landlord’s Failure to Respond to RA Request

1. Not an absolute defense 2. Delay in offering R.A. is left to trier of fact3. LL’s burden. “If a LL is skeptical of a tenant’s alleged

disability to provide an accommodation, it is incumbent upon LL to request accommodation documentation or open a dialogue.”

Auburn Woods 121 Cal. App.

Part 5Using the Defense to Defeat an Unlawful Detainer

Part 5 Overview1.What must be proven to prevail at trial

2.Necessity

3.Reasonableness

4.Jury Instructions

5.Additional Strategies

6.Tips for specific types of cases

What must be proven to prevail at trial

In order for the defense to be successful, the tenant must show:

1) she has a disability

2) the landlord knew of the disability

3) the accommodation is necessary

4) the landlord refused to grant the accommodation

Necessity

An accommodation is “necessary” when an an exception to a rule, policy or practice is needed in order to afford a disabled person an equal opportunity to use and enjoy the housing of his or her choice.

● There must be a nexus between the requested accommodation and the individual’s disability.

Necessity (continued)“Without a causal link between [a landlord’s] policy and [a tenant’s] injury, there can be no obligation on the part of [landlords] to make a reasonable accommodation.”

● U.S. v. California Mobile Home Park Management Co., (1997 9th Cir.) 107 F.3d 1374, 1381.

However, accommodations must be made for the practical impacts of a disability, not just the physical manifestations of the disability itself.

● See U.S. Airways v. Barnett, (2002) 535 U.S. 391.

Necessity (continued)

This can be proven by “showing that the desired accommodation will affirmatively enhance a disabled [tenant’s] quality of life by ameliorating the effects of the disability.”

● Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001).

ReasonablenessA requested accommodation is not reasonable if it causes an undue financial or administrative burden, or if it fundamentally alters the nature of the program.

• Courts will often consider:o the benefits to the tenant v. costs to the landlordo the financial resources of the landlordo whether a less expensive alternative is available

Often, there will be some financial burden or cost placed on the landlord.

Reasonableness (continued)Whose burden is it?● Giebler points out that there are two, slightly different analyses,

one borrowed from the Rehabilitation Act context and the other from the ADA employment context.

● Under each, however, the initial burden is placed on the requestor to show that accommodation is either possible or reasonable in the run of cases.

● The burden then shifts to the other party to show the accommodation is unreasonable or cause undue hardship.

Tips for Specific Types of Cases

Hoarding

• Hoarding Is a disability as defined in the DSM5 manual.

• A landlord can be required to give a tenant time to clean the unit or get help to clean the unit even if a health or safety code violation has been issued.

Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. App. 2005)

Tips for Specific Types of Cases (continued)Violence or Nuisance Post Notice Conduct

a. Object. Irrelevant as not contained in the notice

b. If Plaintiff seeks to amend to add allegations, object because it raises a new cause of action and not based on same “general set of facts” of the notice or complaint.

c. If Granted, ask for continuance to conduct discovery.

If there is a plan in place to mitigate the alleged behavior, a landlord is still required to attempt an If raised by other side be prepared to counter:

Additional Strategies

File a Motion for Summary Judgment for failing to engage in the interactive process.

File an affirmative case for discrimination in state or federal court and request a stay of the UD action.

Jury Instructions

See course materials.

Part 6Practicalities to Think About

• Federal or state court

• Federal law / state law / local ordinanceso California Fair Employment and Housing Acto In Chicago, a tenant could be covered by federal law, Illinois Human

Rights Act, Cook County Human Rights Ordinance, Chicago Fair Housing Ordinance

o Consider:• Applicability (definition of “disability” and prohibitions)• Procedure (complaint, investigation, prosecution)• Enforcement (monetary damages, injunctive relief)

• Simultaneous complaints? o Sometimes, but be aware that an adjudicated affirmative defense may

preclude an affirmative suit.

• Preclusion – an individual may not re-litigate issues when a court has rendered a decision.

• Claim preclusion – res judicatao A federal court will dismiss a claim that is raised or that should have been

raised in a prior state or federal court proceeding. 28 U.S.C. § 1738. o Final state court judgments preclude federal 1983 claims, Migra v. Warren City

School Board of Education, 465 U.S. 75, and state court cases affirming administrative decisions, Kremer v. Chemical Construction Corporation, 456 U.S. 461, (1982). Unreviewed admin decisions – more complicated analysis.

• Issue preclusion – Collateral estoppelo Prevents re-litigating an issue in a prior state or federal court proceeding o Highly fact-specific; focus is on whether process provided a full & fair

opportunity to litigate and whether burden of proof was the same. Generally speaking, federal courts give state agencies the same preclusive effect as state courts would. University of Tennessee v. Elliott, 478 U.S. 788 (1986), Kremerat 481-482.

Representing clients with little insight into their disability

o Be well aware of professional responsibility (ethical) considerations• These may define what “putting the client’s interests first” looks like

o Stay confident, be yourself, gain trust

o Before asking a client about his/her own disabilities, explain how some people with a disability may have additional defenses, give examples

o Consider avoiding the word “disability” at first, and instead naming specific examples . Follow up with “Have you ever had any treatment or diagnoses or anything that might help provide you with a defense?”

o Ask if the client will allow you speak with family, service providers

o Be aware of confidentiality laws; seek client’s express permission to disclose; disclose as little as necessary, especially in filed documents

Contact InfoCary GoldSupervising Attorney, Justice & Diversity [email protected] | 415-782-8972

Erin KatayamaAttorney, Justice & Diversity [email protected] | 415-865-9227

Jeremy BergstromSenior Staff Attorney, Sargent Shiver National Center for Poverty [email protected] | 312-368-2677