Since a prevailing defendant cannot recover attorney's fees and costs in the Ninth Circuit, the prudent, least expensive economic course is to capitulate. It is cheaper to settle than to fight even when you are right. Lawyers should be immediately telling their housing provider clients of this rule, at the outset of the filing of a complaint. Immediately.
The park cannot get attorney's fees even if respondent prevails. If defense costs are projected to exceed settlement, consideration of settlement must be discussed immediately. Despite the egregious abuse of unbridled prosecutorial "discretion."
Example? True story: A 55+ park is targeted by DFEH because of improper classified advertising of a "for sale" mobilehome. The ad WAS illegal. BUT park did NOT place it. A realtor for a tenant did. Park is sued anyway. A "slam dunk" for the park owner. What would you do?
Consider that even groundless claims may best settle because to be accused is to suffer an expensive assault. Successfully defending is without possibility of reimbursement for defendant's attorney's fees and costs in the Ninth Circuit (only complainants and the government can recover), and leaves the park with no remedy except malicious prosecution. So, proving a point, by fighting and winning, may be way more expensive than to settle false claims early. Under our system, if the claimant succeeds, attorney's fees and costs are awarded. If the landlord succeeds, no attorney's fees and costs are allowed. It is a one-way street unless the claim is frivolous. This is construed to bar in fact, prevailing defendants' awards. It is no standard at all.
Hence, the analysis is whether it is less expensive to settle than costs to defend. Too, settlement proposals seem to be crafted so as to be sure settling is less than the costs for defense fees in weak cases. A defendant has no choice. Equally of concern are counsel who seem to delay in bringing this reality to the attention of their property management clients.
The question is why counsel do not immediately advise their clients that settling early is prudent, and should be considered immediately. Even if you prevail, you lose. Only the government and the lawyers make out okay. The ultimate victim is ignored as well: tenant interests are sacrifice because the costs of settlement are passed on to the consumer. Affordable housing becomes no longer affordable if needless costs drive up rents.
TWO MORE EXAMPLES?
In February, 2019, two settlements were announced in housing discrimination cases. Each settles the cases rather than the choice to defend through judgment.
In one case, the landlord's family agreed to pay $16,000 to settle claims that they engaged in a campaign of harassment against a resident, the partner, and two children based on national origin.
The DFEH complaint (which any tenant can file for free, with assistance of the DFEH or HUD to prepare and draft it) said a lengthy pattern of harassing, discriminatory, and threatening behavior occurred. The harassment included verbal attacks like "I hate _______," and authored insulting written notes. The landlords also were charged with opening mail and destroying household plants, and displaying threatening gestures.
The residents will receive just $16,000, and the property management will attend anti-discrimination education (typical, and sometimes provided by the fair housing agency that assisted or tested in the bringing or preparation for the complaint) , and distribute fair housing brochures to the tenants. COMMENT: If the case were clear, the settlement demand would have been multiples of this proposal. It reflects a weak case, with valid defenses, which would have been more expensive to prove than to settle for the housing provider. No one can put on a trial, with witnesses, for $16,000. So settlement is a relative bargain for the landlords.
In another case decided in February, the claim was brought and settled for $16,000 based on "familial status discrimination."
The property manager did not consider children (under the age of 18 years) to be appropriate residents. Specifically, the manager was alleged to have stated that the apartment home might be overcrowded with four people, that neighbors might have issues with noise because of kids, and that the building was for "business people." This is reminiscent of the claims of past years, where advertising illegally sought to attract "mature" adults.
After its investigation, DFEH found probable cause to believe discrimination took place and a civil complaint was filed in California state court. The case settled prior to trial, with the defendant agreeing to pay $12,500 to the family and $3,500 to DFEH for litigation costs. Again, this is less than the cost of a successful defense.
Let's avoid these claims in the first instance. Remember that property owners must treat children in the same manner as if "little adults" in fair housing matters, in "familial status" parks. There is absolutely no preference allowed when it comes to any protected status. This means no difference in applications, conditions, terms, standards, or rules, not even as to infants, based on safety (deemed to be a parental function), even if the unit is on the edge of a cliff or adjacent to gang hang-outs, marijuana users, sex offenders, or vicious pit bull emotional support animals.
What is the occupancy rule?
When it comes to occupancy, the rule of thumb is 2 persons per bedroom under HUD standards. But in California, the rule is two person per bedroom plus one additional person. This rule is flexible and may be different case-by-case depending on the size of the unit. This occupancy limit rule does not apply to "older persons" (55+) housing, which exempts familial status and allows for discrimination against children.
It is right there in the Mobilehome Residency Law (Civil Code section 798.76). Read it!