McDonald v. Coldwell Banker ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA MCDONALD; KANYA 
COLEMAN,
Plaintiffs-Appellants,
No. 06-16563
v.
COLDWELL BANKER, Coldwell  D.C. No.
CV-03-03598-JL
Banker Real Estate Corporation
OPINION
FIRST SHASTA REALTY; THOMAS
GALLAGHER; RICHARD MATTIOLI,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
James Larson, Magistrate Judge, Presiding
Argued and Submitted
May 15, 2008—San Francisco, California
Filed September 10, 2008
Before: Diarmuid F. O’Scannlain and
Michael Daly Hawkins, Circuit Judges, and James V. Selna,*
District Judge.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Hawkins
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
12653
12656 MCDONALD v. COLDWELL BANKER
COUNSEL
Steven J. Mehlman, Mehlman & TerBeek LLP, Walnut
Creek, California, argued the cause for the plaintiffs-
appellants and filed briefs; Marc L. Terbeek, and Timothy A.
Walker, Mehlman & TerBeek LLP, Walnut Creek, California,
were on the briefs.
Malcom Sher, Sher & Minnard LLP, Walnut Creek, Califor-
nia, and John A. Schwimmer, Sussman Shank LLP, Portland,
Oregon, argued the cause for the defendants-appellees and
filed briefs; Carla V. Minnard, Sher & Minnard LLP, Walnut
Creek, Califoria, was on the First Shasta, Gallagher & Mat-
tioli brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a potential home buyer has estab-
lished a prima facie claim for discrimination against the sell-
MCDONALD v. COLDWELL BANKER 12657
er’s listing agents, under various federal and state statutes, for
a rejected offer where she and they were of different races.
I
Pamela McDonald, an African-American, sought to buy a
house in the Shasta-Redding, California area for herself and
her children in 2002. Her real estate agent Kanya Coleman,
also an African-American, contacted First Shasta Real Estate
(“First Shasta”), a franchisee of Coldwell Banker Real Estate
(“Coldwell”), and spoke with First Shasta agent Tom Gal-
lagher, a Caucasian, over the phone. They planned to meet to
view homes for sale. Prior to the meeting with Gallagher,
Coleman prepared a pre-approval letter on her stationery con-
firming that McDonald qualified for a real estate loan of up
to $180,000. The approval was “subject to an acceptable
appraisal at or above the purchase price . . . .” McDonald’s
monthly income was approximately $3,000 and she had cash
on hand in the amount of $20,000.
On August 2, 2002, Coleman and McDonald met with Gal-
lagher for the first time. According to both Coleman and
McDonald, Gallagher did not express the same enthusiasm he
had when speaking to Coleman on the phone. Gallagher
showed McDonald a number of listings, including the 2075
Galaxy Way property at issue in this case. After viewing that
house, Coleman and McDonald claim that Gallagher offered
to show them additional properties that he believed might be
more “suitable” for McDonald and her family, but the proper-
ties were “less upscale.” However, it is undisputed that Cole-
man, alone, picked out the houses McDonald looked at.
McDonald particularly liked the Galaxy Way property,
which had been listed for sale at $139,000 for over six weeks
and Coleman drew up an offer. Coleman told Gallagher and
his broker, Richard Mattioli, also Caucasian, that her client
needed to finance one hundred percent of the purchase price,
but in return she was willing to offer more money than the
12658 MCDONALD v. COLDWELL BANKER
seller was asking. McDonald tendered a $1,000 good faith
deposit.
While Coleman was drafting the offer McDonald claims
that Gallagher, noting her use of a walking cane, inquired
about how she “became disabled” and the demographics of
where she lived.
McDonald’s initial offer on the property was for a purchase
price of $153,890, of which $138,501 would be paid directly
to Moore (funded by a pre-approved loan and a $1,000
deposit by McDonald) and $15,389 would be carried by
Moore (secured by a second deed of trust). The offer provided
that McDonald would receive a $4,500 credit at closing. Gal-
lagher and Mattioli experienced doubts about the proposal.
They had not done seller carrybacks for years and felt it was
not necessary in their market.1 They decided to talk it over
with the seller’s agent, David Woodfill, a Caucasian, to see if
he thought the offer was worth presenting to his client, Glenn
Moore, a Caucasian, the owner and seller of the Galaxy Way
property. Woodfill said Moore wanted all cash and was not
interested in “carrying paper.” Both Woodfill and Moore were
also concerned that the McDonald offer would not close
escrow because the property would not appraise for more than
ten percent above the listing price. Woodfill told Gallagher
and Mattioli that the McDonald offer would be unacceptable
to Moore, so they did not present it to Woodfill or Moore in
written form. In any event, Coleman faxed the offer to Wood-
fill without modification, despite having been told that Moore
would not accept the carryback provision. A few days later,
Moore accepted another offer, with no carryback and no
refund of closing costs, at slightly less than the asking price.
The ultimate buyer, John Randall Donoghue, was Caucasian.
1
Contrary to the assertions of the dissent, there is no evidence in the
record to support its contention that a seller carryback is a “condition com-
mon to residential real estate transactions,” especially with respect to the
real estate market at issue here. Dissent at 12665.
MCDONALD v. COLDWELL BANKER 12659
McDonald filed a complaint against Gallagher, Mattioli,
Shasta and Coldwell Banker (collectively “listing agents”),
but not against Woodfill or Moore himself, with the Califor-
nia Department of Fair Employment and Housing (“DFEH”),
which found no evidence of discrimination. Its letter of July
2004 stated:
“Based on the evidence obtained during the investigation,
the DFEH has determined that reasonable cause does not exist
to believe that a discriminatory housing practice has
occurred.”
The U.S. Department of Housing and Urban Development
(“HUD”) through its Office of Fair Housing and Equal
Opportunity, adopted the decision of the DFEH and notified
McDonald that under the provisions of the federal Fair Hous-
ing Act, she had two years after the occurrence or termination
of the alleged discriminatory housing practice to file suit in
federal court. This time limit was tolled during HUD’s inves-
tigation.
McDonald filed her federal lawsuit against the listing
agents for housing discrimination on the basis of race and dis-
ability.2 She asserted claims under California’s Fair Employ-
ment and Housing Act (“FEHA”), California’s Unruh Act
(“Unruh Act”), and the federal Fair Housing Act (“FHA”).
Coleman, as McDonald’s real estate agent, sued the listing
agents under California Business and Professions Code
§ 17200, for the commission she lost as a result of the lost
sale of the property.
The district court granted summary judgment in favor of
the listing agents on all the claims.
2
In her claims before the DFEH and HUD she also alleged discrimina-
tion on the basis of marital and familial status, but dropped those claims
in her federal lawsuit.
12660 MCDONALD v. COLDWELL BANKER
II
A
[1] A prima facie case is established under the FEHA
where the plaintiff shows that she is a member of a protected
class, that she applied and was qualified for a housing accom-
modation, was denied such housing accommodation, and that
similarly situated individuals not in a protected class applied
for and obtained housing, or if “[she] provide[s] other circum-
stantial evidence of discriminatory motive in refusing her the
housing accommodation.” Dep’t of Fair Employment and
Hous. v. Superior Court, 99 Cal. App. 4th 896, 902 (Ct. App.
2002) (citing Gamble v. City of Escondido, 104 F.3d 300,
304-05 (9th Cir. 1997)). A “qualified” purchaser is one who
meets the terms of the seller. See Mitchell v. Shane, 350 F.3d
39, 47-48 (2d Cir. 2003).
In Mitchell, the potential buyer made an offer that required
90 percent financing, which the seller rejected, expressing a
desire to have at most 80 percent financing. Id. at 48. In
response, the potential buyer dropped the financing to 80 per-
cent. Therefore, because the potential buyer met the terms of
the seller, the buyer was “qualified.” Id.[2] Here, the undisputed fact is that the seller refused to
engage in a seller carryback provision. Indeed, the basis of
this refusal was communicated to Coleman, who nevertheless
transmitted the offer in writing, unchanged, to the seller’s
agent, Woodfill. Because neither Coleman nor McDonald
attempted to meet the terms of the seller, they cannot be con-
sidered “qualified” for purposes of establishing a prima facie
case. Moreover, because the McDonald offer included a seller
carryback provision notwithstanding a purchase price ten per-
cent above the list price, she cannot say that she was “simi-
larly situated” to the person who eventually purchased the
house for just under the list price amount. In other words,
Coleman and McDonald have not produced any evidence to
MCDONALD v. COLDWELL BANKER 12661
create a genuine issue of material fact regarding whether or
not they met the terms of the seller or whether the terms were
similar to those met by the ultimate buyer.3
Despite not being similarly situated to the ultimate buyer,
McDonald could also try to establish that there is “circum-
stantial evidence of discriminatory motive in refusing her the
housing accommodation.” Dep’t of Fair Employment and
Hous., 99 Cal. App. 4th at 902. A discriminatory motive
under the FEHA has been defined as something that “moves
the will and induces action.” Caldwell v. Paramount Unified
Sch. Dist., 41 Cal. App. 4th 189, 199 (Ct. App. 1995).
[3] However, despite allegations of awkwardness or lack of
enthusiasm, neither Coleman nor McDonald has produced any
evidence that Gallagher or Mattioli disparaged Coleman or
McDonald on account of their race or that Gallagher or Mat-
tioli treated only African-American or disabled individuals
the way they treated McDonald. Most significantly, there has
been no evidence presented by either Coleman or McDonald
that the ultimate buyer in this case was aided by or was a cus-
tomer of Gallagher or Mattioli. In other words, there is no evi-
dence that any of the listing agents acted with the intent to
3
The dissent attempts to create doubt about whether or not the seller or
the seller’s agent understood that the offer was for $153,890. Dissent at
12665-66. However, there is no doubt that the offer was understood at the
time it was made. Indeed, the size of the McDonald offer is one of the rea-
sons that her’s and Donoghue’s offers cannot be considered similarly situ-
ated. McDonald’s loan was contingent on her purchasing the house for the
fair market value or less; Woodfill, and Moore, were concerned that her
offer was too large and would not close escrow because the property
would not appraise for more than her offer. Curiously, the dissent does not
give any meaningful discussion of either McDonald’s mortgage loan pre-
approval or the prospects of closing escrow, elements of great importance
when determining whether dueling offers with respect to a real estate
transaction are similarly situated.
12662 MCDONALD v. COLDWELL BANKER
secure the purchase of the house by a person who is of a dif-
ferent race than McDonald.4
[4] Because Coleman and McDonald have failed to produce
any evidence establishing that McDonald was “qualified,”
“similarly situated” or that Gallagher or Mattioli had a “dis-
criminatory motive”5 they cannot establish a prima facie case
under FEHA based on either race or disability.6
4
The fact that the ultimate buyer and McDonald are of different races
is not enough to establish a prima facie case of discrimination where there
is no evidence that both of them are clients of the same listing agents.
Without discriminatory, or at the very least, different treatment of two
buyers by the listing agents there can be no foundation for a claim of dis-
crimination. See Dep’t of Fair Employment & Hous., 99 Cal. App. 4th at
902. The dissent’s contrary position, without any citation to legal prece-
dent, would create a prima facie case of discrimination whenever the par-
ties to the litigation are of a different race. Dissent at 12670.
5
The Unruh Civil Rights Act is codified at California Civil Code § 51
and provides that “no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, marital status, or sexual ori-
entation [all persons] are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments
of every kind whatsoever.” Cal. Civ. Code § 51(b). Since there is no evi-
dence of discrimination against McDonald, her Unruh Act claims fail.
Because Coleman’s Unruh Act claim rests on McDonald’s Unruh Act dis-
crimination claim, the lack of any evidence of discrimination is fatal to
that claim as well. See Jackson v. Superior Court, 30 Cal. App. 4th 936,
941(1994) (holding that an African-American investment advisor who
accompanied two clients into a bank could assert a § 51 claim alleging dis-
crimination against the bank based on discrimination directed at his client,
even though the advisor was not an actual customer of the bank).
6
It should be noted that McDonald, who asserts disability by virtue of
her use of a walking cane, has not produced any evidence of being dis-
abled within the meaning of the Unruh Act, which requires any “physio-
logical disease, disorder, condition, cosmetic disfigurement, or anatomical
loss that does both of the following: (A) [a]ffects one or more of the fol-
lowing body systems: neurological, immunological, musculoskeletal, . . .
and (B) [l]imits a major life activity.” See Cal. Gov. Code § 12926(k)(1)(A)-(B) (emphasis added). The only evidence of disability presented
by McDonald is that she uses a cane; this, alone, does not establish that
a “major life activity” has been limited. See 42 U.S.C. § 12102; see also
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-66 (1999) (holding
that to be “disabled” under the Americans with Disability Act (“ADA”)
one must have “limitations that are in fact substantial” and because every
determination of whether an individual is disabled is “case-by-case,” par-
ticularized evidence is needed).
MCDONALD v. COLDWELL BANKER 12663
B
With respect to the FHA claim, the standard of proof and
analysis applied in a disparate treatment case are the same as
those applied in a FEHA case.7 See Gamble, 104 F.3d at 305.
The plaintiff must first establish a prima facie case by show-
ing: (1) she is a member of a protected class; (2) she applied
for a house and was qualified to buy it; (3) the home sale was
denied despite her being qualified; and (4) defendant
approved a home sale for a similarly situated party during a
period relatively near the time plaintiff was denied the house.
Id.[5] For the reasons discussed in the FEHA claim analysis
(1) McDonald was not a qualified buyer within the meaning
of the FHA; and (2) McDonald was not similarly situated to
the party who purchased the home. Thus, McDonald failed to
establish a prima facie FHA claim.
C
Coleman’s unfair competition claim is based on California
Business and Professions Code § 17200, which states that
“unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice . . . .” Cal. Bus.
& Prof. Code § 17200. Because neither Coleman nor McDon-
7
Under FHA, a party can bring either a disparate impact or a disparate
treatment cause of action. Gamble, 104 F.3d at 304-05. Disparate treat-
ment requires some showing of discriminatory intent on the part of the
defendants, whereas to support a disparate impact claim a plaintiff must
establish “ ‘(1) the occurrence of certain outwardly neutral practices, and
(2) a significantly adverse or disproportionate impact on persons of a par-
ticular type produced by the defendant’s facially neutral acts or prac-
tices.’ ” Id. at 306 (quoting Pfaff v. United States Dep’t of Hous. & Urban
Dev., 88 F.3d 739, 745 (9th Cir. 1996)). Here, neither Colman nor
McDonald have produced any evidence indicating that the facially neutral
actions of the defendants have produced a disproportionate impact on
African-American or disabled individuals.
12664 MCDONALD v. COLDWELL BANKER
ald has produced any evidence of fraud or illegal activity, in
order to prevail, Coleman must establish that Gallagher and
Mattioli acted unfairly towards her or McDonald.
[6] An unfair business practice is one that either “offends
an established public policy” or is “immoral, unethical,
oppressive, unscrupulous or substantially injurious to con-
sumers.” People v. Casa Blanca Convalescent Homes, Inc.,
159 Cal. App. 3d 509, 530 (Ct. App. 1984), abrogated on
other grounds Cel-Tech Commc’ns, Inc. v. Los Angeles Cellu-
lar Tel. Co., 20 Cal. 4th 163, 186-87 & n.12 (1999).
[7] Coleman mainly rests her § 17200 claim on alleged dis-
crimination by Gallagher and Mattioli; however, as mentioned
above, there is no evidence which would allow a reasonable
jury to return a verdict in her favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Futhermore, despite
Coleman and McDonald’s characterization of the listing
agents’ actions, they offer no factual evidence upon which a
reasonable jury could return a verdict for them finding that a
failure physically to convey McDonald’s offer was “immoral,
unethical, oppressive or unscrupulous.” Casa Blanca Conva-
lescent Homes, Inc., 159 Cal. App. 3d at 530.
D
Finally, we turn to the question of whether Coldwell
Banker can be held liable under a principal/agent theory.
[8] Generally, a finding of vicarious liability is determined
by traditional common law principles. Meyer v. Holley, 537
U.S. 280, 282 (2003). Because there is no evidence of illegal
conduct on the part of Gallagher, Mattioli or First Shasta,
there is no conduct for which Coldwell could be held vicari-
ously liable.
III
The district court’s grant of summary judgment in favor of
the listing agents on all claims is
MCDONALD v. COLDWELL BANKER 12665
AFFIRMED.
HAWKINS, Circuit Judge, concurring in part, and dissenting
in part:
Pamela McDonald (“McDonald”), an African-American
woman seeking to relocate to a predominately white commu-
nity in another city, asks Kanya Coleman (“Coleman”), her
African-American real estate agent, to present an offer on a
residential property for sale in that community. Coleman testi-
fied, and defendants do not suggest otherwise, that McDonald
was pre-approved for $180,000 financing. Indeed, McDonald
had a steady income of $3,000 per month, in addition to
$20,000 in additional funds on hand. Working through a real
estate agency in the community where the property is located,
they present an offer. The offer is above the asking price, but
contains a condition common to residential real estate transac-
tions: that the bulk of the purchase price be funded with a pre-
approved mortgage and the remainder with a comparatively
small carry-back loan from the seller to the buyer.
The seller, apparently thinking that the carry-back condi-
tion requires him to pay the buyer money, declines the offer.
The local agents never explain to the seller or his agent that
the carry-back is in fact additional money to be paid to him
over time, with market rate interest and secured by the prop-
erty itself. Instead, without ever consulting McDonald or
Coleman, they withdraw the offer. Later, the property is sold
to a non-minority buyer for a price less than the McDonald
offer—in fact, less than that offer even excluding the carry-
back. When the terms of the McDonald offer are presented to
the seller at his deposition, he finds it acceptable and reason-
able and testified he would have followed up on it. When
Coleman described the offer to the seller’s agent, he was puz-
zled why the fully-explained offer—which he considers a
12666 MCDONALD v. COLDWELL BANKER
“good one”—was not submitted to the seller for his consider-
ation.
The majority looks at these facts and concludes it was
appropriate to award the local agents summary judgment on
the grounds that McDonald was not a “qualified buyer”
because she refused to “meet the seller’s terms.” While my
reading of the record is quite different with respect to such
matters as the actual terms of McDonald’s offer, the seller’s
terms, and McDonald’s efforts to adjust her offer, these are
fact intensive questions that are wholly inappropriate for reso-
lution on summary judgment. McDonald is entitled to a jury
trial to determine whether the actions of the local agents were
the result of discriminatory motives or mere bumbling mis-
communication.
In reviewing a summary judgment grant, our task is to
“view the evidence . . . in the light most favorable to the non-
moving party and draw all reasonable inferences in favor of
that party,” Bank of New York v. Fremont General Corp., 523
F.3d 902, 909 (9th Cir. 2008), and then decide whether a
“genuine issue as to any material fact” precludes summary
judgment. Porter v. California Dep’t of Corr., 419 F.3d 885,
891 (9th Cir.2005). Contrary to this duty, the majority has
drawn numerous inferences in favor of the defendants, and
has recast disputed material facts as “undisputed.”
The majority first fails to recognize that McDonald’s offer
is at least equivalent to the ultimate purchase price. In fact,
her offer amounted to at least $138,501 up-front, minus only
the closing costs.1 Donoghue, the ultimate buyer, prepared an
1
The total of $138,501 is the amount reflected in McDonald’s written
offer, which is in the record. The closing costs associated with the
McDonald offer amounted to $4,500 (to be forwarded by the seller); it is
unclear what the total closing costs were for the Donoghue transaction.
Although it is true, as the majority states, that the Donoghue offer did not
include a “refund of closing costs,” the Donoghue offer required the seller
MCDONALD v. COLDWELL BANKER 12667
initial offer of $134,000, minus 50% of the closing costs.
Donoghue ultimately purchased the property for $138,000
(again, minus the seller’s 50% share of the closing costs).
However one slices it, McDonald’s offer surpassed Donog-
hue’s first offer and was at least equivalent to the ultimate
selling price. The alleged defect in the McDonald offer is that
the offer included an additional amount over the $138,501: a
“carryback” of $15,389, which McDonald proposed would be
carried by the seller and secured by a second deed of trust.2
But even if we assume that the seller was completely unwill-
ing to do any financing, McDonald’s offer was still equivalent
to the ultimate selling price.
After ignoring the actual terms of the McDonald offer, the
majority states that the seller “refused to engage in a seller
carryback provision” and that “neither Coleman nor McDon-
ald attempted to meet the terms of the seller.” By my reading,
these statements are flatly contradicted by the record.
In concluding that the seller “refused to engage in a seller
carryback provision,” the majority contradicts the seller’s own
testimony. In fact, the seller’s “refusal” to accept a carryback
was based on his misunderstanding of what was on the table.
The seller apparently believed that the $15,389 carryback was
to be deducted from the $138,501 rather than added to it, and
he was not interested in doing that:
to pay half the closing costs, while the McDonald offer contemplated that
the seller would finance the closing costs but would be repaid pursuant to
the carryback provision. At any rate, no one is arguing that whatever slight
discrepancy there may have been between the closing costs rendered
McDonald unqualified.
2
Although there was some question as to whether the property would
appraise for $153,890, this is a disputed question of fact. At any rate, the
property apparently appraised for $138,000, since this is the amount at
which the property was sold, and McDonald offered that amount up front.
12668 MCDONALD v. COLDWELL BANKER
My understanding was, that we got a full asking
price, and $15,000 had to be carried back out of that
amount. I was not told 153 and 15 out of that; so I
don’t know what that’s going to do to the case, but
that — I mean I’m not stupid. If I get my money,
plus 15,000 in payments . . . I remember full price,
15 carry back. That’s all he said, and I said no. I
can’t afford to take 15 back.
In response to a deposition question describing the essen-
tials of the McDonald offer,3 the seller testified that he would
have considered such an offer both reasonable and acceptable,
and would have wanted to follow up on it. Coleman stated
that when she called the seller’s agent and described the
McDonald offer, he was puzzled why such a good offer was
not submitted to the seller.
Viewing this evidence, as we must, in the light most favor-
able to McDonald and Coleman, the seller did not “refuse[ ]
to engage in a seller carryback provision,” but rather was sim-
ply confused as to its meaning. The evidence suggests that,
had the seller understood that the “carryback” was $15,389
above and beyond the $138,501 cash portion of the offer, he
would have considered the offer.
Even if the seller did have some aversion to receiving an
additional $15,389 through a carryback, there is no evidence
that Coleman and McDonald failed to “attempt[ ] to meet”
such a term. In fact, Coleman testified that she tried to speak
to local agent Mattioli about submitting a revised offer but he
became “hostile.”4
3
The hypothetical offer was described as $137,501 up-front plus a
secured note for an additional $15,389 (at 10% interest), with $4,500 cred-
ited back to non-recurring closing costs. This appears to be exactly the
McDonald-Coleman offer, only absent the additional $1,000 deposit.
4
Mattioli himself admitted to hanging up on Coleman.
MCDONALD v. COLDWELL BANKER 12669
In addition, Woodfill, the seller’s agent, testified that he
doesn’t recall local agent Gallagher going over the terms of
McDonald’s offer with him, but received a call from First
Shasta (Gallagher’s and Mattioli’s office) that the offer had
been withdrawn. Coleman in fact later submitted a written
copy of the offer to Woodfill, but this was after Woodfill was
told that the offer had been withdrawn. Woodfill testified that
it would not have been his policy to resurrect an offer that was
being withdrawn.
There is no evidence in the record that either McDonald or
Coleman ever authorized defendants to withdraw the offer or
that defendants ever advised McDonald or Coleman to make
a revised offer. Nor is there anything in the record to suggest
McDonald would have been unwilling to remove the carry-
back portion of her offer—there is no reason that she would
insist on taking out a $15,389 loan from the seller if she were
aware that the seller would be content to accept only the
$138,000 up front. There is no indication that McDonald was
unwilling to meet the seller’s terms. Again, McDonald’s offer
was almost identical to the offer that was accepted—differing
only in the additional $15,389 McDonald offered to pay by
way of carryback.
In spite of this record, the majority manages to conclude
that “Coleman and McDonald have not produced any evi-
dence to create a genuine issue of material fact regarding
whether or not they met the terms of the seller or that they
were similarly situated to the ultimate buyer.” Summary judg-
ment review does not permit us to pick and choose facts. The
facts of record are clear: McDonald produced a wealth of evi-
dence, including McDonald’s written offer, Donoghue’s first
and second offers, Coleman’s testimony, Woodfill’s testi-
mony, and the seller’s testimony—all of which tend to show
that McDonald was both willing and able to make an accept-
able offer.
12670 MCDONALD v. COLDWELL BANKER
Having produced that evidence, plaintiffs established a
prima facie case, since it is undisputed that Coleman and
McDonald are members of a protected class and Donoghue,
the ultimate buyer, is not. All that is necessary at this stage of
the litigation is that McDonald demonstrate that she is a quali-
fied buyer who was treated differently from a non-minority
buyer. This she has done.5 Because plaintiffs established a
prima facie case under FEHA, their unfair competition claim
also survives summary judgment, since California Business
and Professions Code § 17200 prohibits “unlawful” business
acts and practices.6
Today the majority holds that the evidence McDonald and
Coleman produced is insufficient as a matter of law to estab-
lish a prima facie case under FEHA. The unfortunate result is
that a minority buyer who produces both documentary evi-
dence and record testimony that her offer was equivalent to a
non-minority buyer’s offer can still be denied access to the
trier of fact. If this evidence is insufficient, it is difficult to see
what would be sufficient, short of a defendant’s under-oath
admission that the plaintiff was qualified and was neverthe-
less purposefully discriminated against. No defendant will
ever make such an admission — which is precisely why the
prima facie burden-shifting framework exists. The troubling
and hard to explain result here is certain to leave many minor-
ity buyers without a remedy.
5
The summary judgment grant could, of course, also be upheld if defen-
dants presented a “legitimate reason” for the discrepancy, but the “legiti-
mate reason” proffered is only that the seller was unwilling to engage in
any carryback, which (as discussed) Coleman and McDonald have suffi-
ciently disputed.
6
Because I agree that plaintiffs have failed to show that First Shasta is
either an agent or ostensible agent of Coldwell Banker, I would affirm as
to the summary judgment grant in favor of Coldwell Banker.