Petition for Writ of Certiorari — Masin v. Drain

er ee

a Supreme Court, U.S,

R5- 98 5 FILED

DEC & {985

JOSEPH F. SPANIOL, JR.

No. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JOSEPH MASIN and EVA MARIA MASIN

Petitioners,

vs.

VINCENT DRAIN and RUTH DRAIN

Respondents.

= _— —_ —" - —_—- <a. — — _—_—

PETITION FOR A WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT, DIVISION SIX

_ _—- —-- nha a aa -s _— ai. ~~ . a>

FRANCES E. KOMOROSKE,

Attorney for Petitioners

A. BARRY CAPPELLO,

Of Counsel

831 State Street

Santa Barbara, CA 93101

(805) 564-2444

December, 1985

QUESTION PRESENTED

How much discrimination is per-

missible under the Federal Fair Housing

Act?

TABLE _OF CONTENTS

QUESTIONS PRESENTED . ....e-.e “i-

TABLE OF CONTENTS oe © eo eo ow @ co Mie

TABLE OF AUTHORITIES ....-e+-e. “iv-

OPINION BELOW . . « « «© © © © © @ « 2

JURISDICTION . . 2. « © © © © © «© «2 2

STATUTORY PROVISION INVOLVED “int ax 2

STATEMENT OF THE CASE ....e« « « 3

REASONS FOR GRANTING THE WRIT... 7

1. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF NATIONAL SIGNIFICANCE

IN THE AREA OF FEDERAL CIVIL

RIGHTS LAW . . «6 © © © © © « « 7

2. THE DECISION BELOW CONFLICTS

WITH THE PRINCIPLES ARTICULATED

BY THIS COURT IN ARLINGTON

HEIGHTS . 2. « «© © © © © © © © « 9

3. THE DECISION BELOW CONFLICTS

WITH THOSE OF THE VAS MAJORITY

OF CIRCUIT COURTS OF APPEAL... ll

4. THE DECISION BELOW SANCTIONS

ILLEGAL DISCRIMINATION,

ENCOURAGES VIOLATIONS OF CIVIL

RIGHTS, AND UNDERMINES THE

POLICIES BEHIND THE FAIR HOUSING

ACT . o . e . . o o . ° . * . . 1 4

afta

TABLE OF CONTEI TS (Cont'd)

5. CERTIORARI SHOULD BE GRANTED TO

UNNECESSARY

LITIGATION AND TO FINALLY

RESOLVE TH'S RECURRING

PROBLEM . . . © © © © © © © @ »«

6. THE DECISION BELOW IS INCORRECT

AND RESULTED IN A MISCARRIAGE

OF JUSTICE ... ++ «2 « «

ee ee ee

Appendix (Opinion and Judgment of

Court of Appeal) .... . . App.

-iii-

15

17

19

TABLE _OF AUTHORITIES

CASES:

Atkins v. Robinson, 733 F.2d 318

(Q4th Cir. 19864) ..«-ec«eeee e

Jordan v. Dellway Villa of Tenn.,

Ltd., 661 F.2d 588 (5th Cir.

1981), cert. denied, 455 U.S.

1008 (1 ,. se

Robinson v. 12 Lofts Realty,

Inc., 610 F.2d 1032 (2nd Cir.

1979) . . >. >. . o . 2 . . - .

Smith v. Sol D. Adler Realty Co.,

436 F.2d 344 (7th Cir. 1971) 12,

United States v. City of Parma,

Ohio, 661 F.2d 562 (6th Cir.

1981), cert. denied, 456 U.S.

926 (1 [a ee @ a ee Ge 8

United States v. Henshaw Bros.,

Inc., 401 F.Supp. 399 (E.D.

Va. 1974) oa >. o o >. _ . - . . >.

United States v. Mitchell, 580 F.2d

789 (Sth Cir. 1978) . «ee 12,

United States v. Pelzer Realty Co.,

Inc., 484 F.2d 438 (5th Cir.

1973), cert, denied, 416 U.S.

936 (19 4) . + . . . . : . . . .

Village of Arlington Heights v.

Metropolitan Housing

Dev. Corp., 429 U.S. 252

(1977) . * . . . . . . . . 9, 10,

12

12

12

14

12

13

13

12

11

TABLE OF AUTHORITIES (Cont'd)

Page

Woods-Drake v. Lundy, 667 F.2d

1198 (Sth Cir. 19862) ...... 13

STATUTES:

26 U.S.C. § 1257(3) . . « 2 © ew @ 2

42 U.8.C. § BOO@R ~« ws ec sneer nic s

42 U.8.C. § S406 .~ we ces waucsee 2

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JOSEPH MASIN and EVA MARIA MASIN

Petitioners,

vs.

VINCENT DRAIN and RUTH DRAIN

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT, DIVISION SIX

Petitioners JOSEPH MASIN and EVA

MARIA MASIN pray that a writ of cer-

tiorari issue to review the judgment and

opinion of the California Court of

Appeal, Second Appellate District,

Division Six entered in this proceeding

on May 29, 1985, review of which was

l.

denied by the Cal.‘ ornia Supreme Court

on September 11, 1985.

OPINION BELOW

The opinion of the Court of Appeal,

unreported, appears in Appendix A. No

Opinion was rendered by the California

Supreme Court in denying the petition

for review.

JURISDICTION

The judgment of the Court of Appeal

was entered on May 29, 1985. A timely

petition for review was denied by the

California Supreme Court on September

ll, 1985. This petition for certiorari

was filed within 90 days of that date.

Jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

STATUTORY PROVISION INVOLVED

United States Code, Title 42:

§ 3604. Discrimination in the sale

or rental of housing

As made applicable by section

803 £42 uSCS § 3603] and except as

exempted by sections 803(b) and 807 [42

uscs §§ 3603{»), 3607], it shall be

unlawful --

(a) To refuse to sell or rent

after the making of a bona fide offer,

or to refuse to negotiate for the sale

or rental of, or otherwise make una-

vailable or deny, a dwelling to any per-

son because of race, color, religion,

sex, or national origin.

STATEMENT OF THE CASE

Petitioners EVA and JOSEPH MASIN are

husband and wife. EVA is a German

national and JOSEPH is a nationalized

U.S. citizen from Czechoslavakia. In

1978, Petitioners decided to move from

Cologne, Germany to Santa Barbara,

California, and retained real estate

brokers to find them a home. The bro-

kers located an estate owned by

Respondent RUTH DRAIN in Montecito, an

exclusive and parochial community out-

side Santa Barbara. RUTH's husband

VINCENT DRAIN acted as his wife's agent

in negotiating the sale of the estate.

Petitioners made an initial offer to

purchase which Respondents rejected as

too low and because Respondents wanted

more information about “the Germans".

The parties later agreed to split the

difference in price, and attorneys were

retained to resolve the tax implications

of the sale.

After these issues were resolved and

sale documents were prepared, the paper-

work was submitted to Respondents for

execution. A delay of several weeks

ensued, during which Petitioners' real

estate ageiits repeatedly contacted

Respondents' agents. Petitioners'

agents were informed that Respondents

were refusing to sell to “those

Germans", but that this did not repre-

sent a civil rights violation because

civil rights “only applies to blacks".

4.

Pare

Petitioners' agents later attempted

to present the offer directly to

Respondents. VINCENT DRAIN refused to

accept it, stating that Respondent would

not sell the estate to '*no0se God damn

Germans" and that Respondents were

removing the residence from the market

for sale that year.

Four days later Respondents sold the

estate to a third party on terms vir-

tually identical to those offered by

Petitioners. Petitioners thereafter

filed suit against Respondents and their

real estate agents for, inter alia,

violating the Federal Fair Housing Act.

A thirteen-day jury trial was pre-

sided over by a retired judge sitting by

designation. Petitioners requested a

jury instruction which provided: "EVA

MASIN's national origin need not be the

sole reason for defendants’ conduct ta

make such conduct illegal if national

5.

origin was an element of that conduct."

The judge refused to give this instruc-

tion, and instead instructed the jury

that: “EVA MASIN' national origin need

not be the sole reason for defendants’

conduct to make such conduct illegal if

national origin was one significant

factor in that conduct." A nine-to-

three jury verdict was rendered in favor

of Respondents.

In their post-trial motions,

Petitioners argued that the jury

instruction represented an improper

interpretation of a federal statute as

the Federal Fair Housing Act provides

that national origin may not play any

role in a decision to refuse to provide

housing. The motions were denied by the

lee wr

1/

trial court and this appeal followed.—

The California Court of Appeal

upheld the trial court. The Court of

Appeal recognized that there is a

distinction between the standard pro-

posed by Petitioners and that adopted by

the trial court, but it characterized

that distinction as one not

“sufficiently significant" to assign

error. The California Supreme Court

apparently agreed with this analysis as

it denied the petition for review.

REASONS FOR GRANTING THE WRIT

1. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF NATIONAL SIGNIFICANCE IN

THE AREA OF FEDERAL CIVIL RIGHTS LAW.

The question presented in this

1. While Petitioners also assigned error

to the improper admission of certain

evidence, it is their position that had

the correct instruction been given, the

admission of that evidence would have

been merely harmless error. Thus, it

cannot be said of this case that the

judgment rests on adequate non-federal

grounds despite the presence of a

substantial federal question.

ts

Petition is simple, yet of nation-wide

significance. Unfortunately, the answer

is not so simple, as evidenced by the

results reached by the various courts,

both federal and state, which have

grappled with the problem.

The issue which this Court is

requested to resolve is whether discri-

mination need only be "a factor" ina

defendant's refusal to provide housing,

or whether it must be "a substantial

factor" before liability can be

2/

imposed .— Petitioners submit that the

distinction between the two standards is

critical because the latter standard

permits "partial discrimination" and

2. A third standard was also discussed

by the California Court of Appeal:

Whether discrimination must be “a moti-

vating factor." Petitioners submit that

“a motivating factor" and “a factor" are

in essence the same standard, and that

they each represent a standard quite

different from that of "a substantial

factor."

Wie

allows a defendant to escape liability

by claiming that even thcugh he was

motivated by bigotry, other factors

contributed more heavily to his decision

and thus were more “significant.”

Whichever standard is ultimately

adopted by this Court will have far-

reaching effects. Not only will there

finally be a uniform standard for appli-

cation of the Fair Housing Act, but that

standard can be extended into related

areas, such as age and employment

discrimination. The result will be a

coherent, consistent administration of

federal civil rights laws from the eli-

tist communities of southern California

across the country to the rural south

and on up to the industrial cities of

the Northeast.

2. THE DECISION BELOW CONFLICTS WITH THE

PRINCIPLES ARTICULATED BY THIS COURT

IN ARLINGTON HEIGHTS.

Nearly ten years ago, this Court ren-

9.

dered its decision in Village of

Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252 (1977).

In discussing the difficulty of deter-

mining whether a legislative body had

been motivated by discrimination, the

Court noted that judicial deference to

legislative decisions is inappropriate

“Cwlhen there is a proof that a discri-

minatory purpose has been a motivating

factor in the decision" (Id., at 265-66,

emphasis added).

This Court has not yet directly faced

the precise issue presented in this

Petition. However, under the reasoning

of Arlington Heights, a plaintiff need

not prove that a defendant's refusal to

sell or rent was based solely on discri-

minatory motives, nor must the plaintiff

show that such motives represented a

“substantial factor" in the defendant's

decision. Instead, the plaintiff need

10.

only demonstrate that discrimination was

“a motivating factor" in order to pre-

vail.

The time is now ripe for this Court

to clarify that the position taken in

Arlington Heights is the law of the

land. If that standard is adopted,

results such as that in the instant

ones. where a trial judge is permitted

to capriciously “shop” for a standard

which appeals to his personal views,

will be avoided. More importantly, ail

will know that discrimination, in what-

ever form and to whatever degree, will

not be tolerated, and the way will

finally be paved for its total eradica-

tion.

3. THE DECISION BELOW CONFLICTS WITH

THOSE OF THE VAST MAJORITY OF CIRCUIT

COURTS OF APPEAL.

Numerous Circuit Courts of Appeal

have followed the lead set by this Court

in Arlington Heights and have held, in

ll.

one form or another, that discrimina-

tion may not be a factor in a refusal to

sell or rent property.2/ Thus, it can

safely be said that this represents the

"majority rule."

In contrast is the Fifth Circuit

Court of Appeal, the only circuit which

has adopted the “substantial factor"

test which was followed by the trial

court in the instant case. This stan-

dard was first enunciated in United

States v. Pelzer Realty Co., Inc., 484

.24 438 (Sth Cir. 1973), cert. denied,

416 U.S. 936 (1974), where it is set out

3. See, e.g., Atkins v. Robinson, 733

F.2d 318 (4th Cir. 1984); United

States v. City of Parma, Ohio, 661 F.2d

56> (6th Cir. I98I)j, Gert. denied, 456

U.S. 926 (1982); Jordan v. Delilwa

Villa of Tenn., Ltd., 661 F.2d 588 (6th

Cir. i981), cert. denied, 455 U.S.

1008 (1982); Robinson v. 12 Lofts

Realty, Inc., 610 F.2d 1032 (2nd Cir.

1575); United States v. Mitchell, 580

F.2d 785 (Sth Cir. 1978); Smith v. Sol

D. Adler Realty Co., 436 F.2d 344 (7th

Cir. 1971).

12.

with no supporting authority (Id., at

443). Significantly, not all decisions

in that circuit have followed it, thus

implying that it may have been either

implicitly disapproved or dictum.

(United States. v¥. Mitchell, supra at

note 3; but see, Woods-Drake v. Lundy,

667 F.2d 1198, 1202 (5th Cir. 1982).

There is thus a square and irrecon-

ciliable conflict between the Fifth

Circuit and every other Circuit which

has considered the issue. Until this

Court definitively states what standard

must be met to establish a violation of

the Act, courts will continue to arbi-

trarily apply whichever test suits their

fancy. Thus, a defendant who commits

the identical act of discrimination in

two jurisdictions will be guilty of

violating federal law in one and will be

absolved in the other, a truly absurd

result.

13.

4. THE DECISION BELOW SANCTIONS ILLEGAL

DISCRIMINATION, ENCOURAGES VIOLATIONS

OF CIVIL RIGHTS, AND UNDERMINES THE

POLICIES BEHIND THE FAIR HOUSING ACT.

The Fair Housing Act states that “it

is the policy of the United States to

provide, within constitutional limita-

tions, for fair housing throughout the

United States" (42 U.S.C. § 3601). The

Act was adopted to implement a policy

“to which Congress has accorded the

highest national priority,” the elimina-

tion of all discrimination (United

States v. Henshaw Bros., Inc., 401

F.Supp. 399, 402 (E.D. Va. 1974)). “All

discrimination" includes “partial

discrimination" (Smith v. Sol D. Adler

Realty Co., supra, at note 3, 349-50).

To require that discrimination be

"significant" before liability can be

imposed subverts the purposes of the

Act; it allows a person who admittedly

is motivated by prejudice to escape

14.

liability if he can show that other fac-

tors also contributed to his decision.

Petitioners respectfully submit that

Congress never intended that the legal

repercussions of bigotry could be so

easily evaded.

5. CERTIORARI SHOULD BE GRANTED TO

DISCOURAGE UNNECESSARY LITIGATION AND

TO FINALLY RESOLVE THIS RECURRING

PROBLEM.

Until this Court adopts a uniform

standard, the Act will continue to be

interpreted in a capricious and

idiosyncratic manner by both federal and

state courts. Some courts will continue

to find that the presence of any amount

of discrimination gives rise to liabi-

lity, even if the defendant proves that

he was also motivated by other, legiti-

mate factors. Other courts will require

that discrimination be the obvious and

exclusive reason for the defendant's

refusal, while still others will require

the trier of fact to “weigh” the discri-

minat. . .o determine whether it is

“significant.”

Even if the Court does not agree with

Petitioners’ position, the issue should

nevertheless be resolved, if for no

other reason than basic principles of

fairness. It is submitted that there

are other attorneys in the country who,

like Petitioners’ counsel, conclude

their clients have a viable claim for

violation of the Act under the “majority

rule." These attorneys and their clients

should be spared the surprise of disco-

vering at trial that a much more

stringent standard of proof must be met,

a standard which is arbitrarily chosen

by a trial judge who believes “some”

discrimination is acceptable so long as

it is not “significant.” Thus, if a

clear, consistent test as to what

constitutes a violation is delineated,

16

needless litigation could be reduced, if

not eliminated entirely.

6. THE DECISION BELOW IS INCORRECT AND

RESULTED IN A MISCARRIAGE OF JUSTICE.

As there was no uniform standard to

provide guidance as to how the Act

should be construed, the trial court in

this action chose to follow the dubious

course set by the Fifth Circuit. In

response to Petitioners’ argument that

the jury instruction represented rever-

sible error, the trial judge justified

his decision on the basis of his per-

sonal views:

“Your argument about the signifi-

cant factor is certainly a highly

debateable [sic] subject but I

am inclined to feel that there is

a lot to be said in support of

the the position taken by the

Circuit Court in stating that the

discrimination must be a signifi-

cant factor. If you stop and

think for a moment that bias is

a human trait that permeates

all of us, it runs all through

society, it’s practicall

Tapoee thie to eliminate Sree

from the whole human context.

Therefore, It seems to be logical

17.

for the Circuit Court to suggest

that in trial to determine the

rights of people, depending on

whether there was bias involved,

the bias must at least be iden-

tifiable and it must be a

substantial or significant

factor in determining the out-

come; otherwise, there would be

no way of detecting this insi-

dious infection called bias that

permeates ail of human life."

This is precisely the type of

reasoning which necessitated the adop-

tion of the Act. While it may be true

that bias is practically impossible to

eliminate from life, that does not

justify a refusal to enforce a law which

was designed to accomplish exactly that.

Had the trial court correctly

construed the Act, Petitioners would

have prevailed. There was evidence,

both direct and circumstantial, which

established that Petitioners' national

origin played a role in Respondents'

refusal to sell. Thus, the jury could

have accepted Petitioners' case in toto

18.

as true, yet still rendered a verdict

for Respondents. It is submitted that

the jury did precisely that, thus impli-

citly sanctioning the violation of

Petitioners' civil rights.

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the

judgment and opinion of the California

Court of Appeal.

Respectfully submitted,

FRANCES E. KOMOROSKE,

Attorney for Petitioners

A. BARRY CAPPELLO,

Of Counsel

19.

es.

APPENDIX

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOSEPH MASIN and EVA 2d Civil No.

MARIA MASIN, husband B-002033

and wife, et al., (Super. Ct. No.

124420)

Plaintiffs and (Santa Barbara

Appellants, County)

Vv.

VINCENT DRAIN and

RUTH DRAIN, husband

and wife, et al.,

Defendants and

Respondents.

i

Joseph Masin and Eva Maria Masin

appeal from a judgment by jury verdict

in favor of Vincent Drain and Ruth

Drain, respondents herein and defendants

in the lower court. The lawsuit

followed a complaint filed by Masins and

their real estate broker, Bob Jones (Bob

A-1

Jones Realty) against Drains and their

real estate broker Arthur Bromfield

(Sears Realty) for housing discrimina-

tion, fraud, breach of contract, and

declaratory relief. At trial, the court

allowed Masins to add an additional

cause of action for conspiracy. The

trial court had previously entered sunm-

mary judgment in favor of defendants on

the causes of action for breach of

contract and declaratory relief which

this court affirmed on appeal in Jones

v. Drain (1983) 149 Cal.App.3d 484 and

Masin v. Drain (1984) 150 Cal.App.3d

7.4.

Appellants allege the trial court

both erroneously instructed the jury on

discrimination as a factor in rejecting

an offer and admitted into evidence a

letter written by Ruth Drain's tax

attorney. We find no error and affirm

the judgment.

SOT RIES Sear See ee

<i ta cits tel, li it ha co ee 7

FACTS

Viewed in the light most favorable to

the judgment, the record reflects that

April 12, 1978, Ruth Drain signed an

exclusive listing agreement with Sears

Realty to sell her Santa Barbara

residence for $775,000, all cash. In

the summer of 1978, Masins made an offer

of $700,000 which Drains refusea.+/

Further negotiations resulted in a pro-

posed option to purchase to be executed

in 1978 but not exercised until after

January 1, 1979, in order to avoid

adverse taxes in 1978. The option price

was to be applied to the purchase price,

and escrow would not open prior to

January 1, 1979.

Mr. Hay testified that he met with

Mrs. Masin and her brokers August 4,

1. Although Mrs. Drain owned the house,

Mr. Drain was included in some

discussions.

1978, to discuss the restructuring of

their offer and that several days later,

after conferring with Masins' attorney,

Anthony Romasanta, received the option

and contract from Romasanta, which he

forwarded to his client. Because Hay

was concerned that the option agreement

might appear a sham to the tax authori-

ties, he also advised the Drains to con-

sult a tax attorney in Texas where they

were living.2/ Additionally, he men-

tioned possible tax problems with the

offer from another party, David Boggs.

The Drains consulted a tax attorney in

Texas who wrote to Hay. Mrs. Drain told

Hay that she was rejecting Masins' offer

for the tax reasons he and her tax

attorney had mentioned.

Hay testified further that he reduced

2. Apparently Mrs. Masin had signed both

the option and the sales contract

attached to it.

to writing August 29, 1978, an oral

offer from David Boggs which Ruth Drain

had accepted August 24. Boggs had

offered the full cash price of $775,000

with an option payment of $100,000 and a

sale delayed to early 1979. Masins'

offer had been $735,000.

The thrust of appellants' evidence at

trial was that Masins' brokers had been

led to believe through Drains' attorney

and brokers that their offer of $735,000

had been accepted and that the Drains

had refused to sell the property to "the

German," Mrs. Masin, for the sole reason

that she was German .2/

DISCUSSION

1. Adequacy Of Instructions Regarding

The Fair Housing Act.

Appellants instituted action for

discrimination pursuant to the Fair

Housing Act, which provides in pertinent

part: "“. . . [I]t shall be

unlawful--(a) to refuse to sell or rent

after the making of a bona fide offer,

or to refuse to negotiate for the sale

3. Appellants have not raised the issue

of substantial evidence but neverthe-

less argue that "all reasonable inferen-

ces lead to the conclusion that the

last-minute sale to Boggs on identical

terms was concocted for the purpose of

selling . . . to a person of national

origin more acceptable to the Drains"

and that there is “overwhelming evidence

in the record that a verdict would have

been rendered in favor of the Masins had

not the improper instruction been

given." Assuming we could reweigh the

evidence, we would refuse to do so on

this selectively designated record.

Suffice it to say that the evidence was

in conflict and there is substantial

evidence in the record before us to sup-

port the judgment.

or rental of, or otherwise make una-

vailable or deny, a dwelling to any per-

son because of race, color, religion,

sex, Or national origin." (42 U.S.C.

§ 3604.) In addition to instructing the

jury in the words of the statute, the

trial court gave the following instruc-

tions: “If you find that after Mrs.

Masin made a bona fide-that is, a good

faith-offer to purchase the property

owned by Mrs. Drain at 830 Picacho Lane

either Vincent Drain or Ruth Drain or

both of them refused to sell or to nego-

tiate for the sale or otherwise made

that property unavailable to Mrs. Masin

because of her national origin, then the

defendant or defendants who did so are

subject to liability for damages

sustained by the plaintiffs. [4] The

mere listing of property for sale does

not obligate the owner to sell the pro-

perty to a prospective purchaser who

A-7

does not offer to buy it on the terms

stated in the listing. Until an offer

conforming to the terms of the listing

is made, the owner may terminate the

listing without liability to any

prospective purchaser. This, however,

does not authorize an owner to refuse to

accept a bona fide offer or to negotiate

with a prospective buyer because of the

national origin of the person making the

offer or seeking to negotiate for the

purchase of the property. [4] In order

to be a violation of the statute I have

read to you, it is not necessary that

refusal of the owner to sell or nego-

tiate for the sale of a dwelling house

because of the national origin of the

prospective buyer be the only reason.

It is a violation of law if national

Origin is one significant factor in

rejecting an offer that meets the terms

on which the owner is willing to sell.

A-8

(Emphasis added.)

Appellants take umbrage with the

underlined portion of the last sentence

in the quoted instruction. They contend

the trial court should have accepted

their version of the instruction which

read, in pertinent part, ". . . make

such conduct illegal if national origin

was an element of that conduct."

(Emphasis added.) The trial court

obtained the phrase “one significant

factor” from United States v. Pelzer

Realty Company, Inc. (5th Cir. 1973) 484

F.2d 438 wherein the court stated: “We

need not and do not find that racial

prejudice dominated Thames‘ mind during

the negotiations. It is enough that

race was one signficiant factor he con-

sidered in his dealings with the men.

Defendants and their attorney con-

tinually reiterated Thames' concern with

his financial investment in the unsold

A-9

houses in Seth Johnson Estates. We do

not doubt that his primary goal was to

make money, not to viclate the Fair

Housing Act. But it is not necessary to

show that Thames intended to deprive

Barnett and Marshall of rights granted

by the Act. A violation occurred

because his words had that effect."

Appellants assert that the phrase

"one significant factor", which has been

repeated consistently in Fifth Circuit

cases is an impermissible standard, and

that the states which comprise that cir-

cuit are not famous for their zealous

protection of civil rights. Instead,

appellants further argue, the trial

court should have adopted, and this

court should espouse, the more "liberal"

phrase, “an element", which appellants

took from Zuch v. Hussey (E.D. Mich.

1975) 394 F.Supp. 1028, 1047.

Appellants' interpretation of the cases

A-10

involving alleged violations of the Fair

Housing Act is misfocused.

Zuch v. Hussey, supra, held that the

Fair Housing Act of 1968 (42 U.S.C.

3601, et seq.) should be liberally

conthe purchaser which the Act protects.

(394 F.Supp. at 1047.) It then cited

Williamson v. Hampton Management Company

(1972) 339 F.Supp. 1146 (I11.) for the

proposition that race need .not be the

sole reason for the decision to refuse

to sell or rent if it is an element in

that decision. That case, however,

cited Smith v. Sol D. Adler Realty

Company (7th Cir. Ill. 1971) 436 F.2d

344 for that proposition and Smith v.

Sol D. Adler Realty Company did not use

the phrase "an element" at all. What

Smith v. Sol D. Adler Realty Company

said was that "{rJjace is an imper-

missible factor in an apartment rental

decision and it cannot be brushed aside

A-11

because it was neither the sole reason

for discrimination nor the total factor

of discrimination. We find no accep-

table place in the law for partial

racial discrimination." (Id., at

349-350, emphasis in the original.)

In order to assay the propriety of

the trial court's choice of phrases, it

is helpful to look to Arlington Heights

v. Metro. Housing Corp. (1977) 429 U.S.

252 where a real estate developer sued a

municipality, alleging that its refusal

to rezone iand on which he intended to

build low-and moderate-income housing

was racially discriminatory in violation

of the Fair Housing Act. The United

States Supreme Court held that when

there is proof that a discriminatory

purpose has been a motivating factor in

a decision of legislators or administra-

tors, judicial deference is no longer

justified, and that proof that a

A-12

rezoning denial was motivated in part by

a racially discriminatory purpose will

not necessarily require invalidation of

the challenged decision, but will shift

the burden of establishing that the same

decision would have resulted. (Id., at

pp. 265-266.)

Cases involving the Fair Housing Act,

as appellants correctly indicate, are

not consistent in their terminology.

Many Fifth Circuit cases continue to use

"a significant factor" or "one signifi-

cant factor", e.g., Woods-Drake v. Lundy

(1982) 667 F.2d 1198 which lists other

cases using that phrase. Other courts

use "a motivating factor" or "competing

consideration", e.g., Atkins v. Robinson

(DCA Va. 1982) 545 F.Supp. 852; United

States v. City of Parma, Ohio (1981) 661

F.2d 562; United States v. City of

Birmingham, Mich. (1982) 538 F.Supp.

819. Still others employ the terms "a

A-13

part", “any part", “a consideration",

“some role", or “an element", e.g.,

Bishop v. Pecsok (Ohio 1976) 431 F.Supp.

34; Jordan v. Dellway Villa of Tenn.,

Ltd. (6th Cir. 1981) 661 F.2d 588;

United States v. Mitchell (5th Cir.

1978) 580 F.2d 789, 791; Zuch v. Hussey,

supra, 394 F.Supp. 1028; Shaw v. Cassar

(E.D. Mich. 1983) 558 F.Supp. 303.

A close reading of the cases cited

reveals that almost all hark back to

Smith v. Sol D. Adler Realty Company,

supra, Or more recently to Arlington

Heights, supra. Moreover, the per-

vasive theme in all the cases (even

those in the suspect Fifth Circuit) is

that race is an impermissible con-

sideration in a real estate transaction

(Moore v. Townsend (7th Cir. 1975) 525

F.2d 482, 485) and that race need not be

the sole motivating factor in a denial

that has discriminatory effect in order

A-14

s

.

i

/

A i Maat

i Nee tt a

ss tk

for plaintiff to succeed in a claim

under the Fair Housing Act (Robinson v.

12 Lofts Realty, Inc. (2nd Cir. N.Y.

1979) 610 F.2d 1032, 1042). A denial

violates the statute if race is even one

of the motivating factors. (Ibid.)

Although we find the phrase "a moti-

vating factor" more consistent with the

United States Supreme Court's holding in

Arlington Heights and preferable to

either "an element" or "one significant

factor", we do not find the distinction

among the three phrases sufficiently

significant to assign eerer to. the trial

court's choice. The trial court fully

and fairly instructed the jury in the

applicable law and the instruction in

question did not lead to a miscarriage

of justice. (Cal. Const., arts. VI,

§ 13; see Henderson v. Harnischfeger

Corp. (1974) 12 Cal.3d 663, 674.)

A-15

2. Admissibility Of The Tax Attorney's

Letter.

During the trial, John Hay read to

the jury the letter written by Drains'

tax attorney, Emery, which advised the

Drains against accepting Masins' offer

because of adverse tax consequences that

year. Hay testified that after

reviewing Masins' offer, he became con-

cerned that it would not solve the tax

problem and that he wrote to the Drains

and advised them to consult a tax

expert. The trial court admitted into

evidence, and allowed to be read to the

jury, both the letter from Hay to Drains

and the letter from Emery to Hay

explaining what he had advised the

Drains. Hay also testified that he

discussed Emery's letter with Mrs.

Drain. The letters were admitted for

the limited purpose of proving that the

letters were sent. Appellants objected

A-16

at —

di wenn

to the Emery letter on the grounds of

relevancy, hearsay, and undue prejudice.

Appellants contend the letter was

inadmissible hearsay and unduly preju-

diced them because a juror stated by

affidavit that members of the jury

referred to that letter as a factual and

accurate interpretation of the tax con-

sequences if Mrs. Drain had accepted

Masins' offer .4/ Appellants raised this

point in their motion for new trial

which the trial court denied.

Hearsay is defined as “evidence of a

statement that was made other than by a

witness while testifying at the hearing

and that is offered to prove the truth

of the matter stated." (Evid. Code

§ 1200, subd. (a).) The Emery letter

was not hearsay. It was not offered to

4. This juror was one of three who did

not join in the verdict for respon-

dents.

A-17

prove that Emery's analysis of the

impact on his clients' taxes if Mrs.

Drain accepted the offer was correct,

but only that she believed that to be

the case and that such statements were

made to her. (Stewart v. Estate of

Bohnert (1980) 101 Cal.App.3d 978, 990.)

As stated in Weathers v. Kaiser

Foundation Hospitals (1971) 5 Cal.3d 98,

109, “‘[tJhere is a well-established

exception or.departure from the hearsay

rule applying to cases in which the very

fact in controversy is whether certain

things were said . ..andmot...

whether these things were true or false,

and in these cases the words .. . are

admissible not as hearsay, but as origi-

nal evidence. [Citations.]" The

letter was highly relevant on the issue

cof whether Mrs. Drain refused to sell

her residence to Masins because of

racial reasons or tax reasons, and even

A-18

svete aes un aa

TONG ee een

listen) nnn

if hearsay, would have been admissible

for the limited purpose for which the

trial court admitted it. "It is well

established that a statement by the

declarant may be admitted if it tends to

show the mental state or attitude of the

person who heard it or read it."

(Stewart v. Estate of Bohnert, supra,

101 Cal.App.3d 978, 990.)

Appellants do not directly claim jury

misconduct but mention it obliquely with

reference to the jury's allegedly con-

sidering the Emery letter for the truth

of the matter stated. Assuming there

was jury misconduct (and we specifically

do not make such a finding), it is not

prejudicial per se. (People v. Sutter

(1982) 134 Cal.App.3d 806, 820.)

Appellants concede in both opening and

reply brief that if the jury was

instructed correctly concerning the

standard for unlawful discrimination,

A-19

the error in admitting the Emery letter

would be at most harmless or nonprejudi-

cial. We find that the jury was

instructed correctly and that error, if

any, in admitting the letter was

harmless.

3. Law Of The Case.

Respondents urge us to find that our

prior decisions in Jones v. Drain,

supra, 149 Cal.App.3d 484 and Masin v.

Drain, supra, 150 Cal.App.3d 714 are law

of the case. In Masin v. Drain, we held

that the Drain property was effectively

removed from the market due to Ruth

Drain's oral acceptance of the Boggs

offer before the receipt of Masins'

offer of August 26 and August 28.

Respondents contend that it therefore

follows that there could be no unlawful

discriminatory refusal to sell to them.

Appellants, on the other hand, argue

that factual differences brought out at

A-20

trial should prevent application of that

doctrine against them but that strict

application of the rule of law of the

case mandates judgment in their favor.

The doctrine of “law of the case"

requires that both trial and reviewing

courts follow principles laid down upon

a former appeal in the same case,

whether the earlier holdings are right

or wrong. (Lindsey v. Meyer (1981) 125

Cal.App.3d 536, 541.) Generally, the

doctrine does not extend to points of

law which might have been but were not

presented and determined in the prior

appeal. (Estate of Horman (1971) 5

Cal.3d 62, 73.) Where, however, a par-

ticular point was essential to the deci-

sion, and the appellate decision could

not have issued without its deter-

mination, the point will be held

impliedly decided, even though not

raised by counsel or expressly mentioned

A-21

in the prior appeals. (Lindsey v.

Meyer, supra, at 541.)

Nevertheless, the doctrine does not

give any conclusive effect to deter-

minations of questions of fact unless

additional evidence presented at the

subsequent proceeding is merely cumula-

tive to evidence of the same class given

on the first appeal. (See Estate of

Baird (1924) 193 Cal. 225, 234, 244,

245; 6 Witkin, Cal. Procedure (2d ed.

1971) Appeal, § 637, p. 4561.)

Because of additional evidence

regarding the early August negotiations,

we examined the issues raised on their

merits instead of applying the law of

the case and, in doing so, have

concluded that our decisions in the

former appeals were correctly deter-

mined. Contrary to appellants’ asser-

tions, the record does not compel us to

find as a matter of law that Masins had

A-22

an oral contract with Drains before Mrs.

Drain accepted the Boggs offer. To

paraphrase the reviewing court in

Duckett v. Silberman (2a Cir. 1978) 568

F.2d 1020, 1024, of crucial signifi-

cance, where credibility as to rejection

of the Masins' offer is an important

factor, we decline to second-guess the

jury in a case which is essentially fac-

tual. They were there. We were not.

4. Attorneys' Fees.

Respondents request attorneys’ fees

for defending this appeal under our

ruling in Jones v. Drain, supra. In

Jones v. Drain, we ruled that Bob Jones

Realty was required to pay the Drains‘

attorneys’ fees since Bob Jones Realty

had requested those fees in its

complaint and allegedly would have been

entitled to them had it prevailed. The

Masins, however, neither pleaded nor

alleged they were entitled to attorneys’

A-23

fees from the Drains since there was no

contract to which they were both parties

which contained a provision for attor-

neys' fees. Therefore, respondents'

request is denied.

The judgment is affirmed, each party

to bear its own fees and costs on

appeal.

NOT TO BE PUBLISHED.

STONE, P.J.

We concur:

GILBERT, J.

ABBE, J.

John W. Holmes, Judge*

Superior Court County of Santa Barbara

Goux, Romasanta & Cappello, A. Barry

Cappello and Frances E. Komoroske for

A-24

Plaintiffs and Appellants.

Simon & Sheridan and Wilfred A.

Hearn, Jr., for Defendants and

Respondents.

*(Retired Judge of the superior court

sitting under assignment by the Chairman

of the Judicial Council.)

A-25

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JOSEPH and EVA MARIA MASIN, Petitioners,

Vv.

VINCENT and RUTH DRAIN, Respondents.

CERTIFICATE OF SERVICE

I hereby certify that on this __ day

of December, 1985, three copies of the

Petition for Writ of Certiorari were

mailed, postage prepaid, to Wilfred A.

Hearn, Jr., Esq., Simon and Sheridan,

2404 Wilshire Boulevard, Ste. 400, Los

Angeles, California, 90057, Counsel for

the Respondents. I further certify that

all parties required to be served have

been served.

FRANCES E. KOMOROSKE

831 State Street

Santa Barbara, CA 93101

Counsel for Petitioners