[00:00:00] Speaker 00:
And if counsel for Ms.

[00:00:05] Speaker 00:
McClendon will come forward, I understand we have a situation in which, even though the argument has been scheduled and the court issued an order that shortened the argument time in light of the dismissal of the cross-appeal,

[00:00:24] Speaker 00:
We received an untimely motion to submit the case on the briefs, which is denied.

[00:00:31] Speaker 00:
We are here for argument.

[00:00:33] Speaker 00:
We don't expect that counsel are going to submit motions like that at the last minute.

[00:00:38] Speaker 00:
We don't expect that counsel who return acknowledgement of hearing notices will not show up at the argument.

[00:00:45] Speaker 00:
Under the rules, when it's the appellant who doesn't show up, the rule says that we may hear argument from the appellee, since counsel for the appellee has shown up

[00:00:57] Speaker 00:
to the court.

[00:00:58] Speaker 00:
We will exercise our discretion to your argument, and you may proceed.

[00:01:02] Speaker 03:
Thank you, Your Honor.

[00:01:03] Speaker 03:
May I please the court, Michelle Uzzetta, on behalf of the appellee, Ashley Christina McClendon.

[00:01:09] Speaker 03:
The district court's finding that appellant Peter Bresler reasonably should have known of her disability is plausible in light of the record at trial, consistent with guidance from HUD and the Department of Justice, and also mandated by the precedent of this court, including the first appeal in this very case.

[00:01:27] Speaker 03:
As this court recognized in the first appeal, knowledge of a housing applicant's disability can be both actual or constructive.

[00:01:35] Speaker 01:
Ms.

[00:01:35] Speaker 01:
Suzetta, I guess I want to start right on that.

[00:01:38] Speaker 01:
There's everyone citing unpublished decisions kind of back quite a ways.

[00:01:46] Speaker 01:
And I traced it back about as far as it goes where we back through the published decisions.

[00:01:53] Speaker 01:
And it ends with a citation of the statute.

[00:01:56] Speaker 01:
I'd be interested in hearing how you read the statute to create these notice requirements.

[00:02:01] Speaker 01:
And then an unpublished out of circuit district court case.

[00:02:06] Speaker 01:
So can you, I'm not sure that this, that may well be the law, but what's the best source we should find for the constructive notice rule here?

[00:02:21] Speaker 03:
That's a good question, because you're correct that all the cases that were cited to were unpublished cases that cited back to the statute.

[00:02:29] Speaker 03:
I don't know that the statute's particularly clear on that.

[00:02:32] Speaker 03:
I think that the way that the case law developed is based on the fact that the Fair Housing Act is a remedial statute that's supposed to be constructed broadly, so they don't want a situation where

[00:02:43] Speaker 03:
a housing provider has constructive notice or should know of someone's disability.

[00:02:48] Speaker 03:
For example, if someone uses a wheelchair and the disability is obvious, that they should be allowed to say in defense, well, I did not know that the person had a disability.

[00:02:58] Speaker 03:
So I think that's how that snowballed into the case law that has been cited.

[00:03:02] Speaker 01:
Do you know of any, there's some guidance, I understand, that McClennan once cited.

[00:03:06] Speaker 01:
Do you know of any regulation on the matter that would establish that under either of the statutes?

[00:03:12] Speaker 03:
I don't off the top of my head, but I know that there's also guidance materials from HUD and from the Department of Justice about how to process accommodation requests.

[00:03:23] Speaker 03:
and recently in 2020 about specifically how to process requests for assistance animals, which comes into play here.

[00:03:32] Speaker 03:
And I believe in those materials, which are in the record on appeal, they do say that you can, if a disability is obvious, that the obligation to accommodate will kick in regardless of whether an individual expressly states that they have a disability.

[00:03:53] Speaker 03:
So going back to the evidence in this record, we have the rental application that indicated that there was a support animal in the household.

[00:04:03] Speaker 03:
There were also emails from the co-applicant, Sarah Gailey, that used terms like emotional support animal.

[00:04:10] Speaker 03:
Support and service animals are covered by federal American with Disabilities Act laws protecting reasonable accommodation requests.

[00:04:18] Speaker 03:
And also, it is illegal to discriminate against a prospective tenant

[00:04:21] Speaker 03:
on their need for a support or service animal.

[00:04:24] Speaker 03:
And the district court correctly found that this evidence led to only one conclusion, one reasonable conclusion, and that is that someone in the household, and here it was McLendon, required the assistance animal due to a disability-related need.

[00:04:37] Speaker 03:
And this finding is plausible, and we do believe it should not be overturned.

[00:04:42] Speaker 00:
And I have a standard of review for that.

[00:04:44] Speaker 00:
It's clear.

[00:04:46] Speaker 00:
Clearly Ron is yes, your honor.

[00:04:48] Speaker 03:
And then wrestlers actions and testimony also provide further evidence that the district court relied on showing that the

[00:04:56] Speaker 03:
decision was plausible.

[00:04:58] Speaker 03:
Bresla responded to the rental application by writing that it was his policy not to accept dogs, even if service animals, or even if service dogs.

[00:05:08] Speaker 03:
And the term service dog has a long, commonly understood history that's exclusively linked to people with disabilities.

[00:05:15] Speaker 03:
Service dogs are exclusively for people with disabilities.

[00:05:18] Speaker 03:
So that kind of showed his understanding that the application was asking for something other than

[00:05:24] Speaker 03:
just a simple household pet.

[00:05:27] Speaker 03:
And Bresler also testified at deposition that he used that phrase, even if service dogs, to specifically respond to the fact that the application included an emotional support animal and also testified that his use of that phrase was intended to convey that his policy applied even if a person needed an assistance animal due to a disabling condition such as blindness.

[00:05:51] Speaker 01:
What what do we do with a kind of the possible mistake of fact that It wasn't clear who the dog belonged to or who might have had the disability.

[00:06:03] Speaker 01:
Does that matter?

[00:06:04] Speaker 03:
Right.

[00:06:04] Speaker 03:
It doesn't matter for a couple of reasons First because the Fair Housing Act and the district court did point this out in their opinion

[00:06:12] Speaker 03:
permits any aggrieved person who claims to have been injured by a fair housing practice to bring a discrimination suit, and McClendon was such a person, and that's in the supplemental record at page 46.

[00:06:25] Speaker 03:
Also, requests for assistance animals don't have to come from the person with the disability.

[00:06:30] Speaker 03:
It can be made by others residing in the unit with that person, and that is reflected in HUD's FHEO notice at page eight.

[00:06:39] Speaker 03:
It's also included in the supplemental record at page 121.

[00:06:43] Speaker 03:
It's also reflected in the joint statement of the Department of Justice and the Department of Housing and Urban Development Supplemental Rector at 143.

[00:06:52] Speaker 03:
This case is very similar to the 2017 Ninth Circuit case of Oregon Bureau of Labor and Industries versus Chandler Apartments, and I'll refer to that as Chandler Apartments.

[00:07:09] Speaker 03:
In that case, the Ninth Circuit agreed that a housing provider reasonably should have known that fair housing testers were requesting disability accommodations based on statements such as, I have a therapy animal and I have an assistance dog.

[00:07:22] Speaker 03:
And this is comparable to the rental application and the multiple emails that were received by Mr. Bresler from Ms.

[00:07:28] Speaker 03:
Galey.

[00:07:30] Speaker 03:
Additionally, in Chandler Apartments, similar to Mr. Bresler here,

[00:07:34] Speaker 03:
um, there was provided declaration testimony, making it clear that the housing provider understood that the request was for an assistance dog and not just for a household pet.

[00:07:44] Speaker 03:
So we believe that that case is instructive, um, in determining this.

[00:07:49] Speaker 02:
And indeed the statement here is stronger from, from, from Gailey because there's the statement that this is a support animal and it's illegal to discriminate.

[00:07:57] Speaker 03:
Right.

[00:07:57] Speaker 03:
And she also used the term the ADA, which I know, uh, Mr. Bressler takes the fence out, but again,

[00:08:03] Speaker 03:
There's no requirement, and there's case law in the Ninth Circuit on this as well, or at least in our central district, that you don't have to use magic words like the Fair Housing Act or reasonable accommodation.

[00:08:13] Speaker 03:
But here, Gailey did actually use the term reasonable accommodation in reference to the ADA.

[00:08:18] Speaker 00:
Can you address the damages issue?

[00:08:21] Speaker 00:
I understand he didn't object to damages below, but is that something that could be reviewed for plain error?

[00:08:28] Speaker 03:
Um, it, I believe this, this, yes, I believe the standard is clearly erroneous for the damages as well.

[00:08:35] Speaker 00:
Um, it might actually might be higher.

[00:08:37] Speaker 00:
It might be plain error, um, you know, layered on top of that because of the failure to.

[00:08:44] Speaker 00:
object to the amount of damages due to the co-applicant below.

[00:08:48] Speaker 03:
Understood, Your Honor.

[00:08:50] Speaker 03:
Yes, and we believe that there is ample precedent in the Ninth Circuit for finding that that argument is waived.

[00:08:57] Speaker 03:
Mr. Bressler didn't raise any argument or evidence having to do with damages at all.

[00:09:01] Speaker 03:
In fact, he didn't do so on the summary judgment motion in this case either, so there was never any indication that there was any dispute with regard to the amount of damages and

[00:09:12] Speaker 03:
In fact, at trial, our joint statement on disputed and undisputed facts, he didn't put forth any dispute.

[00:09:18] Speaker 03:
It was kind of uncontroverted testimony from both Ms.

[00:09:22] Speaker 03:
McLendon from Ms.

[00:09:23] Speaker 03:
Galey about the difference in the rent, the difference in the security deposit, and also the cost of appliances that would have otherwise been provided at Mr. Bresler's rental unit.

[00:09:36] Speaker 03:
Unless there are any other questions.

[00:09:39] Speaker 00:
all right thank you counsel appreciate your time and apologies for that late motion all right and appreciate your showing up thank you all right thank you the case of McClendon versus Bresler is submitted for decision and with that our calendar for this morning is completely

[00:10:14] Speaker 03:
Hear ye, hear ye.

[00:10:16] Speaker 03:
All persons having had business with the Honorable the United States Court of Appeals for the Ninth Circuit will now depart for this court for this session.

[00:10:23] Speaker 03:
Now stands adjourned.