Judge Randolph M. Hammock, Case Number: 23STCV01872, Date: 2025-02-28 Tentative Ruling

Plaintiff has submitted objections to portions the declarations of Emerson J. Tabone and Tim Sauer. The court need not rule on these objections because they are not material to the disposition of the motion. (CCP § 437c(q) [“the court need rule only on those objections to evidence that it deems material to its disposition of the motion”].)

Plaintiff objects to Defendant’s opposition as untimely. Defendant filed and served its opposition on February 13, 2025. Relying on the amendment to the summary judgment statute which took effect January 1, 2025, Plaintiff contends that Defendant’s opposition was five days late.

Code of Civil Procedure Section 437(b)(2), as it existed at the time Plaintiff filed the motion, required that papers opposing a motion for summary judgment be filed 14-days before the hearing. Effective January 1, 2025, papers opposing a motion for summary judgment now must be filed and served 20-days before the hearing. (Id.)

This court is unaware of any authority holding or suggesting that the statute’s new deadlines should apply “retroactively.” Because Plaintiff filed this motion before the new deadlines took effect, the previous statute and its deadlines should govern for all filings, including the opposition. Therefore, this court considers the opposition to be timely filed under the old statute.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

Where a plaintiff moves for summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 CA4th 1282, 1287, 44 CR2d 335, 337 (citing text) (disapproved on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 107 CR2d 841)). This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. At that point, the burden shifts to defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1)).

In analyzing motions for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Plaintiff moves for Summary Adjudication of the Second, Fourth, and Fifth Causes of Action. Plaintiff is a resident of the State of California and a recipient of Section 8 vouchers. (Compl. ¶ 9.) Plaintiff brings this action against various owners or managers of rental units in Los Angeles, including Defendant Sauer Properties. (Id. ¶ 25.)

In early 2021, Plaintiff lived in North Hollywood “subject to a HAP contract.” (Id. ¶ 44.) “After a series of frightening events in his neighborhood, including a break-in and robbery of his apartment, Plaintiff requested, and was issued, approval for an emergency transfer so that he could relocate to a safer area.” (Id.) While searching for a new home on January 21, 2022, Plaintiff visited the website of Defendant Sauer Properties. (Id. ¶ 163.) Defendant’s website stated it did not accept section 8 vouchers. (Id. ¶ 160, 163.)

Based on the that representation, Plaintiff alleges “it was the policy and practice of Defendant Sauer Properties and its agents and employees not to rent to Section 8 recipients. As the result of this policy and practice, Plaintiff was prevented and deterred from submitting applications for any units offered by Sauer Properties on the Website.” (Id. ¶ 164.) Plaintiff asserts causes of action against Defendant Sauer violations of (1) Fair Employment and Housing Act, Cal. Gov’t Code § 12955 subdivs. (a), (d), (g) and (k); (2) Fair Employment and Housing Act, Cal. Gov’t Code § 12955 subdiv. (c); (3) Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.; (4) Negligence, Cal. Civil Code §1714; and (5) Los Angeles Municipal Code, Chapter IV, Article 5.6.1.

For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on…source of income…”

For the purposes of this section, “source of income” means “lawful, verifiable income paid directly to a tenant, or to a representative of a tenant, or paid to a housing owner or landlord on behalf of a tenant, including federal, state, or local public assistance, and federal, state, or local housing subsidies, including, but not limited to, federal housing assistance vouchers issued under Section 8 of the United States Housing Act of 1937 (42 U.S.C. Sec. 1437f).” (§ 12955, subdivision (p)(1).)

The court notes here that in addition to a cause of action under 12955, Plaintiff also asserts causes of action under the Los Angeles Municipal Code (Fifth Cause of Action) and for general negligence (Fourth Cause of Action.) The parties effectively address these three causes of action together, and it appears a violation of one means a violation of all three. Thus, while the court directs its analysis to section 12955, these causes of action “live and die” together. Thus, the following analysis applies to each cause of action.

Plaintiff presents the following evidence. Plaintiff has participated in the Section 8 program since 2011. (SSUMF 3.) On or about January 27, 2022, while searching for a new rental unit, Plaintiff visited Defendant’s website, https://sauerproperties.com. (SSUMF 29.) Defendant was responsible for the content posted on the website. (SSUMF 12.)

The website provided a list of “Minimum rental requirements” which stated “No: Section 8.” (SSUMF 30.) Defendant’s online rental application also stated “No: Section 8.” (SSUMF 32.) As a result, Plaintiff attests that he was discouraged and deterred from submitting a rental application. (SSUMF 32.)

Here, considering this evidence, Plaintiff has established that Defendant “ma[de], print[ed], or publish[ed]” a statement on its website indicating that it would not accept Section 8 vouchers. (Gov. Code § 12955, subdivision (c).) Plaintiff has therefore met his burden to establish all elements of a section 12955 violation.

First, Defendant argues that it does not discriminate against Section 8 Vouchers. Defendant presents evidence that it has Section 8 tenants at its properties. (SSADMF 1-5.) It contends that if Plaintiff had submitted an application (or otherwise contacted Defendant), he would have learned that Defendant accepts Section 8 tenants. (SSADMF 12.) Defendant also notes that it has removed the subject language from its website. (SSADMF 11.)

However, this evidence and argument is inapposite as to whether a section 12955 violation occurred. All that matters for purposes of this section is that Defendant “ma[de], print[ed], or publish[ed]” a statement on its website indicating that it would not accept Section 8 vouchers. (Gov. Code § 12955, subdivision (c).) There is no requirement that Plaintiff contact Defendant to verify the accuracy of information on its website.

Second, Defendant argues that section 12955, at least as applied to this case, is an unlawful “ex post facto law.” The California Constitution, Article 1, Section 9, provides that “[a] bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” (Cal. Const., Art. 1, § 9.) This clause “prohibits laws which ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’” (Hipsher v. Los Angeles Cnty. Emps. Ret. Ass'n (2020) 58 Cal. App. 5th 671, 696–97.)

Defendant asserts, and the parties generally agree, that it was not unlawful to discriminate on the basis of Section 8 until 2020 when the statue was amended. They also agree that Defendant posted the offending language on its website prior to that time. Thus, the argument goes, the law is ex post facto because it challenges past conduct.

Here, however, the statute did not attempt to penalize past conduct. Rather, it was a forward-looking prohibition on discrimination against section 8 tenants. Defendant is in violation of the statute because it maintained the offending language on its website after the statute was passed—not for anything it did prior.

Even assuming the law can be construed as ex post facto, the prohibition against ex post facto laws applies in the civil context only in “limited circumstances.” (Hipsher, supra, 58 Cal. App. 5th at 696097.) It may be implicated where “the effect of a statute is to impose punishment that is criminal in nature.” (Roman Cath. Bishop of Oakland v. Superior Ct. (2005) 128 Cal. App. 4th 1155, 1162.) Courts “will find an ex post facto violation if the statutory scheme is so punitive in purpose or effect that it negates the Legislature's intentions. This requires the ‘clearest proof,’ however.” (Hipsher, supra, 58 Cal. App. 5th at 697.)

Here, the court sees little indication—and certainly not the “clearest proof”—that section 12955 is criminal or punitive in nature. Rather, this section serves to eliminate discrimination in housing, with an eye toward protecting those deemed at risk. Congress established Section 8 for “the purpose of aiding low-income families in obtaining a decent place to live.” (Reilly v. Marin Hous. Auth. (2020) 10 Cal. 5th 583, 594 [citing 42 U.S.C § 1437f(a)].) Consistent with that objective, the California legislature amended section 12955 to ban discrimination on the basis of the receipt of section 8 vouchers. The purpose is to protect section 8 recipients—not to punish landlords. Therefore, section 12955 does not invoke the ex post facto clause.

Finally, Defendant argues Plaintiff’s evidence is insufficient because a “significant number” of Plaintiff’s undisputed facts are based solely on his own declaration. (Opp. 8: 4.) CCP section 437c(e) provides that “summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (CCP § 437c(e).)

Here, Plaintiff has provided competent evidence, both in the form of his declaration and other supporting evidence, to establish all elements of his claims. Based on the nature of the claims, nothing more is required, and Plaintiff has met his burden. Defendant, in turn, has failed to establish a triable issue on any material fact.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.