Author: Stuart E. Fagan

The Unruh Civil Rights Act (“Unruh Act”) stands as a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” The Unruh Act, like the common law principles upon which it was partially based, imposes a compulsory duty upon business establishments (including apartment complexes) to serve all persons without arbitrary discrimination. The Unruh Act thus serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.

The Unruh Act provides in pertinent portion at Cal. Civ. Code §51:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments or every kind whatsoever.” Although not specifically enumerated in Cal. Civ. Code §51, the Unruh Act also protects from discrimination on the basis of age and familial status. Cal. Civ. Code §51.2(a) (age); Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 124 (Cal. 1982) (familial status).

The Unruh Act makes it unlawful for a business establishment to deny, discriminate, or make a distinction contrary to the Unruh Civil Rights Act. The law is rather straightforward: if a business opens its doors to the public, then it cannot unlawfully discriminate against its potential customers. Thus an apartment complex which forbids children from playing outside denies families with children the full and equal advantages, facilities, or privileges of living in that apartment complex in violation of the Unruh Civil Rights Act.

Of note, Cal. Civil Code §52 does not focus on the reason for the prohibited behavior. Rather, it simply bans the denial, aiding or inciting a denial, or making of any discrimination or distinction contrary to the Unruh Civil Rights Act. The key word–“contrary” means that Civil Code §52 is violated if the defendant engaged in “willful, affirmative misconduct” that is contrary to a person’s rights to the full and complete access to the business. Consequently, the California Supreme Court has declared that only intentional discrimination–in contradistinction from discriminatory effect discrimination–is actionable under the Unruh Act:

“[T]he [Unruh] Act was passed in 1959 and its predecessor in 1897, long before the disparate impact theory was recognized by the federal courts. On the contrary, the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation.”

The California Supreme Court continued:

“Section 52 states: ‘Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction, or restriction on account of sex, color, race . . . contrary to the provisions of section 51 . . . , is liable for each and every such offense . . . .’”

It concluded:

“In summary, we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.”

Thus “intentional discrimination” in the context of the Unruh Act means: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, . . .”

At the end of the day, if your landlord is forbidding your children to play outside at your apartment complex because of the fact that they are children, then your landlord is likely violating the Unruh Act. Renters have rights. The Unruh Act contains some of those rights. If you’d like to discuss your rights as a renter, then give us a call, whether you are in San Diego, Los Angeles, Sacramento, or anywhere in the State of California, we are here to help.

What’s up with all the dogs everywhere these days? You see them in the malls (that’s where people shopped before Amazon), in stores (that’s where people shop who don’t shop on Amazon), and even on planes. Don’t get me wrong, I like dogs. In fact, we even entered our dog in the Wienershcnitzel Wiener Nationals one year in San Diego. Our dog ran in one of the two heats for wiener dogs named “Oscar.” I’ll admit, up until they announced that there were two heats for dogs named “Oscar,” I thought the name was original. But once our Oscar started to run the wrong way in the race, I was actually content to leave the venue as quickly as possible. I would say that I crossed that off of my bucket list, but it was never on the bucket list in the first place. But it was a rather unique event, and if you are in San Diego when it is run, it is probably worth the time. But don’t put it on your bucket list . . . at least not if your dog is named “Oscar.”

One of the problems with the prevalence of dogs everywhere is that it gives a bad name to true service dogs and emotional support animals. As one disgruntled homeowner once put it, “Pay a few $’s on the internet and ‘Presto’ a service dog is born . . . I could ‘certify’ my ceramic toy with THAT process.” I get it. In fact, it kind of makes you wonder if Tom Hanks would have been able to certify Wilson and take it with him on a plane (not that there is some prohibition against volleyballs on planes, but I’m just saying).

Speaking of planes, passengers on planes have tried to take on board with them “service” peacocks, pigs, cats, monkeys, horses, and even a turkey! (It is unclear if the turkey was flying around Thanksgiving.) The point is that service animals have gotten out of hand. But the problem with trying to solve the problem is that people who genuinely need service dogs and emotional support animals are likely to be discarded with all the phonies. And therein lies the problem: how do you tell a genuine need from a phony need?

The answer is a doctor’s note, right? Genuine claims surely would be recognized by doctors, right? Yet one website announces, “ESA [emotional support animal] letters only $22 each. Same day delivery included.” The website guarantees “official medical signed.” It then touts, “An Emotional Support Animal (ESA) letter from a licensed therapist is all you need to gain legal access to airline cabins and pet restricted housing without extra fees and deposits.” What? You’re not satisfied with a licensed therapist signing the ESA? Then pay a little more and get a medical doctor to sign the ESA. Hey, what’s a few bucks? Think of all the money you will be saving when your dog is flying free of charge! Pet fees at your apartment complex? Forget about it; you’ve got an ESA!

In the end, the system is being abused. And when it is abused, people with a genuine need for an emotional support animal or a service dog are sadly lumped in with all the people who want to bring “service” animals on board an airplane or those who want to live an apartment complex with their “service” monkeys. In a future post I’ll talk about what you should do if you have a genuine need for a service dog or an emotional support animal. Until then, please, remember that not everyone who has a service animal or an emotional support animal is abusing the system.

Yes, renters have rights under the law to protect them from their landlords. Renters’ rights against housing discrimination from landlords are derived from both the State of California and the federal government. As renters, families with children are entitled to be treated in the same way that adult-only renters are treated. For example, if a single adult is allowed to be in the common areas of an apartment complex reading a book, then a child also should be permitted to read a book in the common areas of an apartment complex. Apartment managers cannot treat tenants differently because of the fact that one is an adult and another is under 18 years of age. In other words, there cannot be two sets of rules: one set of rules for adult tenants and another set of rules for children or families with children. One rule that often brings confusion is an apartment rule that permits adults to swim in the pool, but limits which children can swim and when. Many apartment complexes insist that children may only swim with adult supervision. These swimming pool rules have been found to be illegal in many cases. In the end, if you believe that your landlord is discriminating against you or your children, then it may be time that you find a lawyer to fight for your renters’ rights.

“We know through painful experience that freedom is never voluntarily given by the oppressor, it must be demanded by the oppressed.” ~Martin Luther King Jr.

Most rarely give much thought to families with children being oppressed in this country. But families with children are all too often oppressed by their landlords. When Congress added familial status as a protected class in 1988 to the Fair Housing Act, it did so after HUD studies showed that 25% of apartment complexes banned children altogether. Another 50% of apartments imposed other limitations on families with children, such as compelling them to live in certain portions of the apartment complex or limiting the number or age of children allowed. Not surprisingly, after familial status was added as a protected class, discrimination against families with children continued, and it has become more and more subtle as the years have gone by. Put simply, discrimination against families with children in the housing arena is an ongoing concern.

How is a family with children supposed to know if it is being discriminated against by its landlord? Let’s look at some of the potential indicators from the time a person first inquires about the rental up through the end of the tenancy. Some of these indicators will be obvious, while some are surprising.

Available Units

When potential tenants visit an apartment complex for a first time, they typically are told about all the available units. But when families with children visit an apartment complex, they sometimes are intentionally shown only some of the available units, and some are told that they can only have a downstairs unit because of the noise concerns. That’s illegal. Families with children can live in any available unit: upstairs or downstairs. The choice is theirs; not management’s.

“Who is Going to be Living with You?”

Speaking of visiting an apartment complex for the first time, managers occasionally like to inquire about how many children will be living at the apartment and what are the ages of those children. It seems reasonable, right? But these questions can be disguised attempts to discriminate against families with children, for some apartment complexes want nothing to do with young children. Briefly stated, the topics of discussion between a manager and prospective tenants speak volumes about what management deems as preferred tenants. Conversations initiated by management about children should be viewed with a grain of suspicion.

Occupancy Restrictions

Occupancy restrictions also are often used as smokescreens to discriminate against families with children. If there is an occupancy restriction, then you want to see if it is actually in writing. Or is it only mentioned when families with children show up? I handled a case where the landlord only mentioned his occupancy restrictions when families with children were interested in his rental units. Such treatment is discriminatory. Next, are the occupancy restrictions enforced uniformly and fairly. This can take some work to find out, but it is obviously a gold mine of evidence. For example, if there are four college students in a one-bedroom unit, but a mother and father and their two children are not allowed to rent a one-bedroom unit because it violates the landlord’s occupancy restrictions, then there is a problem. Occupancy restrictions have to be enforced uniformly, not only against families with children.

Leases, Rules, and Regulations

Rental documentation, along with the rules and regulations for apartment complexes, often contains provisions dealing with supervision of children. In a recent case that my firm handled, Roman v. MSL Capital, LLC, Case No. EDCV-17-2066-JGP (SPx) (C.D. Cal. Nov. 5, 2018), the district court ruled that the landlord’s publishing of an adult supervision rule violated two different sections of the Fair Housing Act, in addition to two sections of California’s Fair Employment and Housing Act. The district court stated, “The [adult supervsion] rule explicitly burdened families that included children, requiring parents to be present and supervising children in areas outside of their apartment, a burden not placed on families without children or on single adults living in the Complex.” Put simply, if a lease or rules and regulations contain an adult supervision rule, then discrimination is in the air.

Repair Requests

Another indicator of potential discrimination against families with children can be found in the response time to repair requests. If a landlord takes a week or so to fix a family with children’s repair requests, but does same day or next day repairs for adult-only households, then this can be an indicator of discriminatory treatment. Obviously, it can be difficult to find out how long it takes management to respond to repair requests, but with a little asking around, one can typically get a sense for the presence of discriminatory treatment.

Late Rental Payments

In a typical apartment complex, rent is due on the 1st of the month and late a few days later. But how that is enforced is typically indicative of whether management discriminates against certain protected classes. For example, I recently was investigating a case and in the process I was talking with adults from several different households who lived at the complex without any children. Time and again they told me that the manager was completely understandable if you had to be late. “Don’t worry about it; just pay when you can,” the manager told them. None of them was ever charged a late fee for being late. But when I talked to adults who had children, I immediately heard a different story. “Oh, if you’re late, then they always charge you a late fee.” Put simply, the way management treats people who are late on their rent can reveal proof of discrimination against families with children.

Bikes, Scooters, and Toys

One former client of mine once told me about buying her eight-year old son a bike for Christmas when they lived at an apartment complex. Her son was so excited when he got the bike on Christmas morning that they promptly went out into the common area of the complex so he could ride his new bike on Christmas morning. Before long, the manager came out and told the young boy that he was not allowed to ride his bike at the complex.

Was that discrimination? While the rules and regulations of the apartment complex stated that there was no bike riding (or scooter riding or playing with toys, for that matter), adults customarily rode their bikes on and off the property without any warnings. Put simply, sometimes rules that on their face apply to everybody simply are not enforced fairly. This is often the case with rules about bike riding. In a nutshell, unfair enforcement of neutral rules results in unlawful discrimination.

Visits to Check the Condition of the Apartment

California law is specific as to when a landlord may enter into a tenant’s apartment. Going into a tenant’s apartment for an “annual lender inspection” simply doesn’t make the list. Yet families with children are occasionally asked to give management access to their apartments for such inspections. In reality, management secretly wants to go into the tenants’ apartment to snoop around to see if families with children have caused any damage to the unit. Security deposits, quite frankly, are designed to protect landlords in the case of damage to the unit. Excess damage, moreover, can be recovered in civil lawsuits. But accessing apartments rented by families with children for such reasons may be an indicator that families with children are being subjected to discriminatory treatment in violation of the Fair Housing Act.

Noise Complaints

One of the most common ploys of landlords is to accuse families with children of being too noisy, so that they can evict them. All too often the manager knows where to go if he or she needs to find a tenant to complain about noise. Children often are noisy when they play, so it is not hard for a manager to find the habitual complainer at the complex and simply ask that person to file a written complaint about the noise. The manager then serves a warning notice (or two or three) on the family with children about the noise complaints that the manager has received. Before you know it, the family with children is receiving a Three-Day Notice to Quit.

How do you prove discrimination in that situation? First, you want to look at how other people creating noise have been treated. This takes some effort. But as you ask around, you often will learn that certain tenants have had loud music blaring with regularity, and management has done nothing but ask the tenants to turn down the music. You may learn of tenants who have thrown loud parties to which the police were summoned, yet seemingly there were no consequences for the loud party. How management responds to those noise complaints is often indicative of whether all noise deemed excessive is prohibited, or only noise by children. Next, look at the timing of the service of the warning notices. Did the warning notice come shortly after the parents complained about their children not being able to ride their bikes, etc.? Put simply, managers often retaliate against tenants who complain about unfair treatment.

At the end of the day, proving familial status discrimination can be laborious. But when my firm has been able to bring about change that liberates families with children, it is a joyous event. For over 20 years, I have been fighting on behalf of tenants whose rights have been violated under the Fair Housing Act and related state laws, including the Fair Employment and Housing Act. So If I can answer any questions, please, do not hesitate to contact me at (858) 220-9601.

Whenever I review a tenant’s rental agreement (or a lease) for potential concerns over discriminatory treatment, one of the first things that I look for is whether it contains an adult supervision rule. What is an adult supervision rule? Simply put, it is a rule contained within the rental agreement (or lease) that states something like, “All children under 16 years of age must be supervised by an adult at all times.” As you might expect, not all adult supervision rules are worded alike. Some forbid children under 16 from playing outside unsupervised, while others forbid children under 14 or 12 from playing outside unsupervised. While adult supervision rules are often like the tip of the iceberg when it comes to discrimination, you have to ask yourself: What is right about an adult supervision rule? At the heart of the matter is a landlord’s desire that parents supervise or watch over their children while they are outside in the common areas of an apartment complex. That sounds logical enough, doesn’t it? For who wants a bunch of screaming kids running around an apartment complex unsupervised? No one. So a rule that appears to try to stop that type of behavior can seem like a good thing, right?

But the problem with adult supervision rules is that they are sort of like large fishing nets: they catch everything. So I’ve seen situations where adult supervision rules have forbid children from sitting in their doorways reading books. Adult supervision rules have been used to stop children from writing with sidewalk chalk right in front of their own apartments. (Newsflash: sidewalk chalk actually comes off as soon as water is poured onto it.) Adult supervision rules have been used to forbid young teenagers from sitting in the common areas of apartment complexes with their friends after school. In a case I recently tried, one mother was told that she could not allow her son to play outside in the common areas just outside of their apartment while she cooked their dinner. Put simply, while adult supervision rules, at first blush, seem like they are aimed at true problems, the reality is that they are frequently used to force children (16 and under, in most cases) to go inside. With child obesity rates continuing to climb, the last place that most children need to be is sitting on a couch in front of a TV or a video. What is more, social skills are thwarted when children are forbidden from congregating with one another. In the end, while there is a time and a place for children to be supervised by an adult, it surely isn’t 24/7.