Lawrence Salisbury v. City of Santa Monica ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE SALISBURY, No. 20-55039
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-08247-
CJC-E
CITY OF SANTA MONICA,
Defendant-Appellee.
OPINION
On Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 11, 2020
Pasadena, California
Filed April 16, 2021
Before: Carlos T. Bea, Amul R. Thapar *, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Bea
*
The Honorable Amul R. Thapar, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 SALISBURY V. CITY OF SANTA MONICA
SUMMARY **
Fair Housing
Affirming the district court’s summary judgment in
favor of the City of Santa Monica, the panel held that the
Fair Housing Amendments Act of 1988 does not require
landlords to accommodate the disability of an individual
who neither entered into a lease nor paid rent in exchange
for the right to occupy the premises.
Plaintiff lived with his father in a mobile home on land
rented from the City of Santa Monica. Upon his father’s
death, plaintiff refused to vacate the mobile home park, and
he asked the City to accommodate his disability by waiving
park rules to allow him to store his vehicle immediately next
to his mobile home.
The panel held that, by its plain language, the FHAA
does not apply to claims by plaintiffs who never themselves
or through an associate entered into a lease or paid rent to
the defendant landlord. As to occupants requesting
accommodation, the FHAA’s disability discrimination
provisions apply only to cases involving a “sale” or “rental”
for which the landlord accepted consideration in exchange
for granting the right to occupy the premises. Applying a
federal standard, rather than California landlord-tenant law,
the panel concluded that because plaintiff never provided
consideration in exchange for the right to occupy a space in
the mobile home park, the FHAA did not apply to his claim
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SALISBURY V. CITY OF SANTA MONICA 3
for relief, and the City was not obligated to provide, offer, or
discuss an accommodation.
COUNSEL
Frances M. Campbell (argued) and Nima Farahani,
Campbell & Farahani LLP, Sherman Oaks, California, for
Plaintiff-Appellant.
Michelle M. Hugard (argued), Deputy City Attorney; Lance
S. Gams, Chief Deputy City Attorney; George S. Cardona,
Interim City Attorney; City Attorney’s Office, Santa
Monica, California; for Defendant-Appellee.
OPINION
BEA, Circuit Judge:
Lawrence Salisbury suffers from serious spinal
conditions that make it painful to walk. 1 Salisbury lived for
many years with his elderly father, James, in a mobile home
on rented land in the Mountain View Mobilehome Park (“the
Park”), which the City of Santa Monica (“the City”)
purchased in 2000 to provide housing for low-income
persons. It is undisputed that Salisbury never signed a lease
for the land nor successfully paid rent to Park management,
1
This case is an appeal from summary judgment. In reviewing a
grant of summary judgment, “we assume the version of the material facts
asserted by the non-moving party.” Carrillo v. Cty. of Los Angeles,
798 F.3d 1210, 1218 (9th Cir. 2015) (quoting Mattos v. Agarano,
661 F.3d 433, 439 (9th Cir. 2011)).
4 SALISBURY V. CITY OF SANTA MONICA
or indeed, to anyone, in exchange for the right to reside in
the Park.
Upon James’s death, Salisbury refused repeated
demands to vacate the Park and sued the City for wrongful
eviction in California Superior Court based on several
theories of state law implied tenancy. The state court
granted summary judgment to the City after determining
Salisbury failed to follow procedural claims requirements
for suing a municipal defendant. Soon thereafter, Salisbury
requested that the City accommodate his disability by
waiving Park rules to allow him to store his vehicle
immediately next to his mobile home rather than the parking
area designated for the unit for which he claimed the right to
inhabit. The City denied the request because Salisbury was
not an authorized tenant of the Park. Salisbury then brought
a claim of disability discrimination in federal court. The
district court granted summary judgment to the City after
concluding that, under California law, Salisbury was indeed
not authorized to reside in the Park.
The question presented in this appeal is whether the Fair
Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C.
§ 3601 et seq., requires landlords to accommodate the
disability of an individual who neither entered into a lease
nor paid rent in exchange for the right to occupy the
premises. We conclude the FHAA applies to rentals only
when the rental arrangement is supported by adequate
consideration and therefore affirm the judgment of the
district court.
I. BACKGROUND
This housing dispute dates back to 1974, when James
purchased a mobile home and signed a month-to-month
lease for Spot 57 in the Park, then under private ownership.
SALISBURY V. CITY OF SANTA MONICA 5
The original lease listed James and Salisbury’s older brother,
Russell, as the only adult occupants of the mobile home.
Salisbury and his younger sister, Monique, both teenagers at
the time, moved in with James and Russell soon after
execution of the lease. Salisbury maintains that he resided
continuously in the Park from the 1970s until the present
day, decades after Russell and Monique moved out of the
mobile home.
It is undisputed, however, that Salisbury’s name never
appeared on any leases signed by his father for residency in
the Park. In 1988, James signed a new month-to-month lease
that expressly prohibited subletting or assignment without
the Park’s consent and stated that he was the only occupant
of Spot 57. In 1990, James signed a resident update form
confirming he was the only resident of Spot 57, aside from a
cat named Spike. In 2000, the City purchased the Park,
classified it as an affordable housing project, and imposed
new maximum income and household size restrictions for
Park tenants. Existing tenants were exempted from the
maximum income restriction on the condition that they sign
an estoppel certificate stating the number of persons in their
household and promise thereafter not to increase the
household’s size. 2 James signed an estoppel certificate
declaring, under penalty of perjury, that he was the only
resident of Spot 57. In 2005, James recertified his
2
Estoppel certificates are commonly used by the buyer of a
commercial property with residential tenants to confirm the seller’s
representations as to tenancies and to “serve as a record of each tenant’s
statements or representations in case disputes should arise between the
purchaser, as the new owner of the property, and a particular tenant.”
Miller & Starr, Cal. Real Estate Forms § 1:64 (2d ed. 2020 update). The
estoppel certificate prevents the tenant from later asserting facts or
claims different from those recited in the certificate based on the reliance
of the buyer on the certification and the representations made therein.
6 SALISBURY V. CITY OF SANTA MONICA
compliance with the household size restriction by declaring
that he continued to live alone.
It is also undisputed that James paid rent to Park
management exclusively in his own name before and after
the City’s acquisition of the Park. In the mid-2000s, James
asked the City to include Russell’s initials on several rent
invoices for unknown reasons. In addition, the City agreed
to include Salisbury’s initials on several rent invoices sent to
Spot 57 from 2008 to 2010. Notwithstanding the inclusion
of their initials on rent invoices, neither Salisbury nor
Russell ever paid rent on James’s behalf.
The City first contested Salisbury’s presence in 2011
when other residents complained that Salisbury had violated
Park rules by bringing a large dog into the Park. James told
the City’s property managers that Salisbury had lived in the
Park “since 1975” and that the dog was a service animal.
The City noted it had no record of Salisbury’s residence in
that Park and instructed Salisbury to apply for residence
either as an income-restricted tenant or as a live-in caregiver
for James. Salisbury submitted an incomplete application
for residency and ignored the City’s request to provide
missing financial information required to determine whether
Salisbury qualified for residency in the Park as a low-income
tenant. 3 Meanwhile, Salisbury acquired title to James’s
mobile home without notifying the City (in its capacity as
the owner of the land) as required to initiate a new lease
3
Salisbury does not claim that the City discriminated against him
based on disability when it required him to complete the standard
residential application process as a condition of being offered a lease for
Spot 57. Nor does Salisbury claim his disability prevented him from
completing the application, or that the City refused to grant an
accommodation that would have allowed him to complete the
application.
SALISBURY V. CITY OF SANTA MONICA 7
under Park rules and California’s Mobilehome Residency
Law, Cal. Civ. Code § 798.74.
James died in April 2013. The City subsequently refused
to accept rent checks drawn by Salisbury against James’s
bank account and repeatedly demanded Salisbury vacate
Spot 57 within sixty days. Salisbury sued the City in
California Superior Court in July 2013 for wrongful eviction
and related tort and contract theories. As noted above, the
court granted summary judgment for the City in January
2015 after concluding Salisbury failed to comply with
procedural requirements for claims against a municipal
defendant.
Thereafter, the City renewed its demand that Salisbury
vacate Spot 57 and began to cite Salisbury for violating
traffic rules by improperly parking his personal vehicle on
neighboring mobile home sites and in common
thoroughfares. Under Park rules, all personal vehicles must
be registered with management and parked in assigned
spaces. The City attempted to enforce these rules by
blocking access to vacant lots with bollards but never towed
Salisbury’s vehicle nor collected any of the fines attached to
the citations.
Salisbury responded to the City’s renewed order to
vacate in August 2015 by requesting a parking
accommodation under the FHAA. In a brief letter, Salisbury
informed the City he suffered from spondylolisthesis, spinal
osteoarthritis, and disc degenerative disease, all of which
made it painful to walk. Accordingly, Salisbury requested
the City “remove the barriers to the space next to my unit . . .
or that you remove the barriers that have been put in front of
my trailer [in the thoroughfare] to prevent me from parking
there.” The City ignored Salisbury’s initial request and
subsequent requests made as late as December 2016.
8 SALISBURY V. CITY OF SANTA MONICA
Salisbury continued to receive citations until July 2018,
when the City sold the Park to a private holding company.
The Park’s new owner has executed a lease with Salisbury,
accepted payment of rent, and granted his requested parking
accommodation.
This lawsuit began in September 2018 when Salisbury
sued the City and related entities under the FHAA in the U.S.
District Court for the District of Central California. The
complaint alleged that the City discriminated against
Salisbury based on disability by refusing to grant the
requested parking accommodation and sought compensatory
damages, punitive damages, equitable relief, and attorneys’
fees and costs. See 42 U.S.C. §§ 3604(f)(2)–(3), 3613(a),
(c).
Salisbury has never claimed that he entered into a lease
with the City or that the City accepted rent from him prior to
the sale of the Park. Instead, Salisbury has maintained that
California law somehow established a landlord-tenant
relationship between himself and the City prior to the
accommodation request in one of three ways. First, because
the Park’s prior owners had consented to his residency in the
Park as a teenager in the 1970s; second, because the City’s
failure to initiate unlawful detainer proceedings after
discovering Salisbury lived in the Park in 2011 created a
tenancy at will; or third, because California’s Mobilehome
Residency Law barred the City from treating Salisbury as a
non-tenant because the City failed to offer him a lease when
he acquired title to James’s mobile home in 2012. See Cal.
Civ. Code §§ 798.74(c), 798.75(d).
After several hearings and the completion of discovery,
the district court granted the City’s motion for summary
judgment. The court began by holding that under the FHAA,
“[a] landlord has no obligation to provide reasonable
SALISBURY V. CITY OF SANTA MONICA 9
accommodations to a resident [who] illegally occupies a
dwelling.” To prove the City violated its duty to
accommodate under the FHAA, therefore, Salisbury bore the
burden of proving he lawfully resided in the Park at the time
of the accommodation request. Applying California law, the
court concluded Salisbury presented insufficient evidence to
establish a landlord-tenant relationship with the City under
any of the state law theories noted above.
Salisbury timely appealed, arguing the FHAA prohibits
discrimination against “any person” without regard to the
existence of a tenancy, that the district court ignored
evidence creating triable issues of fact as to the formation of
an implied tenancy under California law, and that the City’s
repeated refusals to engage in an “interactive process” after
the initial request for accommodation were standalone
violations of the FHAA. Jurisdiction is proper. See
28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review grants of summary judgment de novo.
Dubois v. Ass’n of Apt. Owners of 2987 Kalakaua, 453 F.3d
1175, 1178 (9th Cir. 2006). Summary judgment is
appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Salisbury brought his disability discrimination claim
under 42 U.S.C. § 3604(f)(2) and (f)(3)(B), which prohibit
“a refusal to make reasonable accommodations . . . when
such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling.” We
have previously interpreted this language to determine
10 SALISBURY V. CITY OF SANTA MONICA
whether a landlord subject to the FHAA’s duty of reasonable
accommodation fell short of his statutory obligations. In so
doing, we have held a failure-to-accommodate plaintiff must
show: 1) the existence of a covered handicap; 2) the
defendant’s knowledge or constructive knowledge of that
handicap; 3) that an accommodation “may be necessary”;
4) that the accommodation is reasonable; and 5) that the
defendant refused to make the necessary and reasonable
accommodation upon request. Howard v. HMK Holdings,
LLC, 988 F.3d 1185, 1189–90 (9th Cir. 2021) (quoting
Dubois, 453 F.3d at 1179). In these cases, the existence of a
tenancy was undisputed.
This case, by contrast, presents a threshold question of
first impression in this circuit: Whether the FHAA applies
at all to claims by plaintiffs who never themselves or through
an associate entered into a lease or paid rent to the defendant
landlord. The district court found the FHAA presupposed
the existence of a valid tenancy as a necessary precondition
to applying the statute’s duty of reasonable accommodation
and determined Salisbury failed to establish an express or
implied landlord-tenant relationship under California law.
We agree with the district court that Salisbury’s claim falls
outside the FHAA’s domain, but for a different, yet allied
reason. We hold that, as to occupants requesting
accommodation, the FHAA’s disability discrimination
provisions apply only to cases involving a “sale” or “rental”
for which the landlord accepted consideration in exchange
for granting the right to occupy the premises.
A. The FHAA’s “Sale” or “Rental” Requirement
“As usual, we start with the statutory text.” Tanzin v.
Tanvir, 141 S. Ct. 486, 489 (2020); United States ex rel.
Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1128
(9th Cir. 2015) (en banc). The FHAA makes it unlawful:
SALISBURY V. CITY OF SANTA MONICA 11
To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a
handicap . . . [and]
To discriminate against any person in the
terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of
services or facilities in connection with such
dwelling, because of a handicap[.]
42 U.S.C. § 3604(f)(1)–(2). Discriminatory conduct
includes “a refusal to permit . . . reasonable modifications of
existing premises,” “a refusal to make reasonable
accommodations . . . necessary to afford such person equal
opportunity to use and enjoy a dwelling,” and “a failure to
design and construct [covered multifamily] dwellings” in a
manner accessible to the handicapped. Id. § 3604(f)(3)(A)–
(C).
“It is a fundamental canon that where the ‘statutory text
is plain and unambiguous,’ a court ‘must apply the statute
according to its terms.’” Wheeler v. City of Santa Clara,
894 F.3d 1046, 1054 (9th Cir. 2018) (quoting Carcieri v.
Salazar, 555 U.S. 379, 387 (2009)). The relevant operative
language of the FHAA bars discrimination “in the sale or
rental” of a dwelling, “in the terms, conditions, or privileges
of sale or rental of a dwelling,” and “in the provision of
services or facilities in connection with such dwelling.”
42 U.S.C. § 3604(f)(1)–(2) (emphases added). The
preposition “in” limits the scope of the preceding term
“[w]ithin the limits or bounds of” the “place or thing” that
follows. Oxford English Dictionary (2d ed. 1989); see also
Simonoff v. Expedia, Inc., 643 F.3d 1202, 1206 (9th Cir.
2011) (“The word ‘in’ means to ‘express[] relation of
12 SALISBURY V. CITY OF SANTA MONICA
presence, existence, situation, inclusion . . . ; inclosed or
surround by limits, as in a room.’” (citation omitted)). The
prohibitions and duties enumerated in the following
subsection, 42 U.S.C. § 3604(f)(3), modify the meaning of
“[t]o discriminate” in the preceding subsections and are
subject to the same “sale” or “rental” limitation.
By its plain language, therefore, the FHAA applies only
in cases involving a “sale or “rental” of a dwelling to a buyer
or tenant. There is no doubt that the FHAA bars a wide range
of discrimination “against any person” and plays an
important role in securing equal housing opportunity for
handicapped persons. But the statute by its terms regulates
only sellers and renters, not every owner of any roof and
parcel in the land. When discerning the limits of a statute’s
domain, no less than when interpreting its substantive
requirements, we must presume “the legislature says in a
statute what it means and means in a statute what it says
there.” Hartpence, 792 F.3d at 1128 (quoting BedRoc Ltd.
v. United States, 541 U.S. 176, 183 (2004)); see generally
Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev.
533 (1983).
Salisbury reads the FHAA quite differently. In his view,
the FHAA covers “any person” denied a reasonable housing
accommodation without regard for how that person came to
occupy the premises in question. Salisbury argues we must
set aside plain meaning in favor of a more expansive reading
because courts are bound to give the FHAA a “generous
construction” that accomplishes the statute’s underlying
purpose. United States v. Cal. Mobile Home Park Mgmt.
Co., 29 F.3d 1413, 1416 (9th Cir. 1994) (quoting Trafficante
v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972)). We
disagree with Salisbury’s conception of the judicial power.
SALISBURY V. CITY OF SANTA MONICA 13
Federal judges undertake to apply the law as it is written,
not to devise alternative language that might accomplish
Congress’s asserted purpose more effectively. “Our task is
to apply the text, not to improve upon it.” Pavelic & LeFlore
v. Marvel Ent. Grp., 493 U.S. 120, 126 (1989); see also
Mertens v. Hewitt Assocs., 508 U.S. 248, 261 (1993)
(“[V]ague notions of a statute’s ‘basic purpose’ are []
inadequate to overcome the words of its text regarding the
specific issue under consideration.”). Settled principles of
statutory interpretation place it beyond dispute that the
“generous spirit” with which our court interprets the FHAA,
Mobile Home, 29 F.3d at 1416, is not a license to ignore the
text. Where, as here, the plain meaning of a statute indicates
a particular result, the “judicial inquiry is complete.”
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002)
(quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–
54 (1992)); see also CVS Health Corp. v. Vividus, LLC,
878 F.3d 703, 706 (9th Cir. 2017) (“If the language has a
plain meaning or is unambiguous, the statutory
interpretation inquiry ends there.” (citing Hartpence,
792 F.3d at 1128)).
B. Meaning of “Rental” under 42 U.S.C. § 3602(e)
To determine whether Salisbury’s claim involves a
“rental” covered by the FHAA, we turn next to the proof
required to establish a landlord-tenant relationship within the
terms of the statute. The district court applied California law
to reject the various state law theories under which Salisbury
argued the City somehow inherited or acquiesced in an
implied tenancy. We do not pass on the issues of California
landlord-tenant law discussed in the decision below,
however, because we conclude application of the FHAA
does not turn on the law of the state in which the violation
allegedly occurred. Instead, we apply a federal standard
14 SALISBURY V. CITY OF SANTA MONICA
derived from the FHAA’s text and “common-law
foundations.” Bank of Am. Corp. v. City of Miami, 137 S.
Ct. 1296, 1306 (2017) (quoting Anza v. Ideal Steel Supply
Corp., 547 U.S. 451, 457 (2006)).
When interpreting a statutory term, we first give effect
to statutory definitions and then to the term’s “ordinary,
contemporary, common meaning.” Perrin v. United States,
444 U.S. 37, 42 (1979). The FHAA defines “[t]o rent” as
“to lease, to sublease, to let and otherwise to grant for a
consideration the right to occupy premises not owned by the
occupant.” 42 U.S.C. § 3602(e) (emphasis added).
“[L]ease,” “sublease,” and “let” are not further defined by
the statute, but each term had a settled ordinary meaning
when Congress enacted the FHAA: “[a] contract between
parties, by which the one conveys lands or tenements to the
other . . . usually in consideration of rent or other periodical
compensation.” Lease, Oxford English Dictionary (2d ed.
1989); see also Let (“To grant the temporary possession and
use of . . . to another in consideration of rent or hire.”);
Sublease (“A lease granted by one who is a lessee or
tenant.”). The FHAA’s definition of “[t]o rent” captures
these meanings in the catch-all phrase “otherwise to grant
for a consideration the right to occupy premises not owned
by the occupant.”
We hold the FHAA applies to rentals only when the
landlord or his designee has received consideration in
exchange for granting the right to occupy the premises.
Consideration is not further defined by the statute, but this
term, also, bore a well-established meaning among the states
at the time of the FHAA’s enactment. The most common
form of consideration for a lease is periodic rent. See
Consideration, Oxford English Dictionary (2d ed. 1989)
(“Anything regarded as recompense or equivalent for what
SALISBURY V. CITY OF SANTA MONICA 15
one does or undertakes for another’s benefit.”). The term is
somewhat broader, however, and may include other forms of
remuneration. See, e.g., Dixon v. Hallmark Cos., 627 F.3d
849, 858 (11th Cir. 2010) (maintaining an apartment
building may serve as consideration for the right to occupy
an apartment). For our purposes, it suffices to say
“consideration” as used in the FHAA means a performance
consisting of “an act other than a promise, or a forbearance,
or the creation, modification, or destruction of a legal
relation.” Restatement (Second) of Contracts § 71(3)(a)–
(c); accord Consideration, Black’s Law Dictionary (2d ed.
1910) (“Any benefit conferred, or agreed to be conferred,
upon the promisor . . . to which the promisor [i]s not lawfully
entitled, or any [new] prejudice suffered.” (citing, inter alia,
Cal. Civ. Code § 1605)). 4
C. Application to Salisbury’s Claim
The FHAA’s predicate “sale” or “rental” requirement
makes short work of Salisbury’s refusal to accommodate
claim. As the district court correctly noted, Salisbury
conceded that he resided in Spot 57 despite never having
4
Because the FHAA clearly requires “consideration” to establish a
rental, we need not pass on whether the district court properly analyzed
California property law in the decision below. We note, however, that
the district court should not have applied contemporary state law without
first considering whether a federal common law rule is appropriate in
this context. Although “the existence of related federal statutes” does
not “automatically show that Congress intended courts to create federal
common-law rules,” Atherton v. FDIC, 519 U.S. 213, 218 (1997), federal
rules may be appropriate when the statutory scheme “evidences a distinct
need for nationwide legal standards,” Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 98 (1991). Our court has previously noted that the nuances
of contemporary state and local law may frustrate the nationwide
objectives of the FHAA. See Wheeler, 894 F.3d at 1056 (applying
uniform federal common law rule to survivorship of FHAA claims).
16 SALISBURY V. CITY OF SANTA MONICA
entered into a lease to live in the Park and never having paid
rent to the City. The record is also devoid of any evidence
that Salisbury performed any act or forbearance other than
the payment of rent capable of serving as consideration for a
valid tenancy. Because Salisbury never provided
consideration in exchange for the right to occupy Spot 57,
the FHAA was inapplicable to his claim for relief; the City
was not obligated to provide, offer, or discuss an
accommodation.
Notably, Salisbury never claimed the City refused to
offer him an equal opportunity to apply for a rental. The
FHAA bars landlords from refusing to rent or sell an
otherwise available premises based on the disability of the
prospective renter or buyer prior to an exchange of
consideration. See 42 U.S.C. § 3604(f)(1). Landlords may
deny prospective tenants for failing to comply with generally
applicable rules for obtaining a lease but must offer
reasonable accommodations when necessary to allow a
disabled person equal opportunity to reside in the premises.
Id. § 3604(f)(3)(b); see Giebeler v. M&B Assocs., 343 F.3d
1143, 1148–59 (9th Cir. 2003) (concluding a landlord
violated the FHAA by refusing to make reasonable
exception to a general rule prohibiting cosigners). By
contrast here, Salisbury’s accommodation claim
presupposed a tenancy because he already occupied Spot 57
when he requested an accommodation. Salisbury never
claimed the City refused to offer him a lease because of his
disability. Neither is there any evidence in the record that
Salisbury failed to complete an application because the City
failed to accommodate aspects of his disability that
prevented him from obtaining and filing the necessary
paperwork.
SALISBURY V. CITY OF SANTA MONICA 17
Instead, Salisbury argues the district court’s conclusion
that Salisbury lacked a valid tenancy rests on a
misapplication of California law. Citing several state cases,
Salisbury argues the City inherited an implied tenancy from
the Park’s prior owners, and, in any event, was barred from
treating him as a non-tenant by its failure to file an unlawful
detainer proceeding and by operation of local rent control
laws. None of these state law issues are relevant to whether
Salisbury provided the “consideration” required to establish
that he had a “rental” under the FHAA. Rather, it is
“consideration” as understood at the time of the FHAA’s
enactment that triggers application of the statute to a
“rental.” Salisbury failed to provide evidence of such
consideration in this case.
The parties also dispute whether Salisbury’s requested
accommodation was “necessary” or “reasonable” under
federal law. See United States v. Cal. Mobile Home Park
Mgmt. Co., 107 F.3d 1374, 1381 (9th Cir. 1997) (suggesting
parking accommodations for handicapped tenants may be
“necessary” and “reasonable”); cf. Howard, 988 F.3d at
1190 (“Necessary suggests something that cannot be done
without.” (citation and quotation marks omitted)); Giebeler,
343 F.3d at 1157 (“[A]n accommodation is reasonable under
the FHAA when it imposes no fundamental alteration in the
nature of the program or undue financial or administrative
burdens.” (citation and quotation marks omitted)). Whether
Salisbury’s requested accommodation was “necessary” and
“reasonable” is immaterial, however, because the City was
not obligated to make any accommodations absent its
acceptance of consideration from Salisbury in exchange for
the right to occupy Spot 57.
Finally, Salisbury argues the City’s repeated refusals to
engage in an “interactive process” to ascertain the precise
18 SALISBURY V. CITY OF SANTA MONICA
scope of the accommodation required to ensure equal
opportunity for use and enjoyment of Spot 57 constituted
standalone violations of the FHAA. The district court did
not separately address this argument. However, during the
pendency of this appeal, our court has definitively rejected
the “interactive process” theory as a separate, “standalone”
font of FHAA liability. Howard, 988 F.3d at 1192 (“[W]e
hold that there is no ‘standalone’ liability under the FHAA
for a landlord’s failure to engage in an ‘interactive process’
with a tenant.”). In any event, Salisbury’s “interactive
process” theory would fail for the same reason as his primary
failure to accommodate claim—in the absence of a tenancy
supported by consideration, the City was not obligated by
the FHAA to discuss the requested accommodation. 5
IV. CONCLUSION
Salisbury failed to establish that the FHAA applies to his
discrimination claim. We therefore AFFIRM the judgment
of the district court.
5
Because the court affirms the judgment below, we have no
occasion to rule on Salisbury’s request that this case be remanded to a
different district judge to preserve the appearance of justice. See, e.g.,
Disability Rights Mont., Inc. v. Batista, 930 F.3d 1090, 1100 (9th Cir.
2019). We note, however, that the hearing excerpts cited by Salisbury
to buttress allegations of closedmindedness on the part of Judge Carney
fall short of demonstrating impropriety by a country mile. Indeed, the
record shows the contrary is true. Judge Carney was signally patient and
thorough in his detailed perusal of Salisbury’s claims.