Plaintiffs Gabriel and Luminita Roman sued BRE Properties, Inc. for housing discrimination, claiming that BRE discriminated against them for refusing to show Mr. Roman an apartment immediately when he visited the BRE leasing office and refusing to accept a Section 8 voucher as payment. The trial court granted summary judgment, ruling that plaintiffs had not substantiated their claims with admissible evidence. It awarded costs to BRE. Plaintiffs appealed and Horvitz & Levy LLP was retained to represent BRE on appeal.
In a published opinion, the California Court of Appeal (Second Appellate District, Division Seven) affirmed the judgment. It found that plaintiffs failed to present evidence that Mr. Roman was disabled. It rejected plaintiffs’ argument that they could rely on hearsay statements that Mrs. Roman told BRE that Mr. Roman was disabled. It also refused to consider evidence that plaintiffs had submitted to the trial court requesting an accommodation, which was neither part of the summary judgment record nor disclosed to BRE.
The Court of Appeal reversed the cost award and remanded the matter back to the trial court for further proceedings. Based on the recent Supreme Court decision in Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, the Court of Appeal held that BRE was not entitled to costs as a matter of right under FEHA, but could be entitled to costs if the trial court found that plaintiffs’ action was frivolous. It remanded the case to the trial court to decide that issue. It rejected BRE’s argument that BRE was entitled to costs as a matter of right under plaintiffs’ non-FEHA claims, finding that the other claims were intertwined with FEHA, and awarding costs under those causes of action would therefore undermine the goals of FEHA.