decedent under the California survival statutes. Neal v. Farmers Ins. Exchange, 21 Cal. 3d 910, 920 n.3, 148 Cal. Rptr. 389, 582 P.2d 980 (1978).
Following the Robertson analysis, the Court must now decide whether the state-law limitation on the recovery of all emotional distress damages is inconsistent with federal law, in this case, the FHA. 436 U.S. at 588-89. The Ninth Circuit has expressed no view as to whether the remedies authorized by California's survival statute are too limited to be considered consistent with civil rights laws. See Smith v. City of Fontana, 818 F.2d 1411, 1417 n.8 (9th Cir. 1987).
For the reasons set forth below, the Court finds that the California survival statute's limitation on post-mortem emotional distress damages conflicts with the FHA, and that therefore, the Ambruster children's claim for emotional distress damages survives their mother's death.
Allowing survival of emotional distress damages furthers the policies underlying the FHA. The federal civil rights laws seek to provide for compensation of victims of housing discrimination and to deter other persons from violating the law. See Robertson, 436 U.S. at 590-2 (Section 1983); McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879, 884-5, 130 L. Ed. 2d 852 (Title VII and Age Discrimination in Employment Act). The FHA, at 42 U.S.C. § 3613(c), entitles the original plaintiff in a private action for violation of the provisions of the Act to seek an award of "actual and punitive damages." This includes damages for emotional distress, humiliation, and mental anguish. Seaton v. Sky Realty Co., 491 F.2d 634, 636-37 (7th Cir. 1974); Steele v. Title Realty Co., 478 F.2d 380, 384 (10th Cir. 1973).
Emotional distress damages often represent a large proportion of the monetary damages available to a FHA plaintiff. Economic damages, such as moving costs and increased rent, usually amount to a small sum. Indeed, housing discrimination has been likened to a "dignitary tort," such as defamation or infliction of emotional distress. Curtis v. Loether, 415 U.S. 189, 196 n.10, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974). "Although there are many kinds of injuries for which fair housing plaintiffs may receive compensation, the injury for which substantial damages are most frequently awarded is emotional suffering." John Hammell, Housing Discrimination, in 9 Civil Rights Litigation and Attorney Fees Annual Handbook, 274 (National Lawyers Guild Civil Liberties Committee, 1993). Most of the actual damages awarded in Title VIII cases have been to compensate the plaintiff for nonmonetary injuries such as humiliation, embarrassment, and emotional distress. Robert G. Schwemm, Housing Discrimination Law and Litigation § 25.3(2)(b) "Direct Court Actions" at 25-20, 25-20 n. 84 (1996)(citing cases where emotional distress damages constituted majority of award). In the present case, Mrs. Ambruster's attorney has stated that the Plaintiff has no economic damages, as she remained in her apartment and incurred no moving costs or increases in rent.
Exclusion of emotional distress damages upon a plaintiff's death could seriously dilute the potency of an FHA claim made by a terminally ill and elderly plaintiff. Because the litigation process can easily outlast the longevity of such plaintiffs, eliminating emotional distress damages can seriously undermine value of housing discrimination laws as those laws pertain to that group. Likewise, their successors will lose a key incentive to enforce their predecessors' rights under the FHA.
Although no federal cases examine the issue of survival of emotional distress damages under the FHA in particular, in other types of civil rights cases, the courts have almost always allowed emotional distress damages to survive the death of the plaintiff. The federal district courts that have examined whether emotional distress damages survive in 43 USC § 1983 actions have held that the California survival statute which does not provide recovery for emotional distress damages is inconsistent with the goals of § 1983. Guyton v. Phillips, 532 F. Supp. 1154, 1166 (N.D. Cal. 1981); Williams v. City of Oakland, 915 F. Supp. 1074 (N.D. Cal. 1996)(plaintiff's heirs could bring emotional distress damages because California survival statute was inconsistent with Section 1983 civil rights claim); see also County of Los Angeles v. Superior Court, 96 D.A.R. 13947 (Cal. Ct. App. Nov. 22, 1996).
Defendants argue that because plenty of relief is available to Plaintiff in the form of punitive damages, economic damages and injunctive remedies, the purposes of the Federal Fair Housing Act will be served, despite the lack of emotional distress damages. They contend that economic and punitive damages will compensate the injured party and that injunctive relief will deter future violations.
The availability of punitive damages does not make up for the elimination of emotional distress damages. Punitive damages are only available in a subset of private FHA actions. A plaintiff seeking punitive damages must show the defendants acted "wantonly and wilfully, or were motivated in their actions by ill will, malice, or a desire to injure the plaintiffs." Jeanty v. McKey & Poague, Inc., 496 F.2d 1119, PINCITE (7th Cir. 1974).
Injunctive and declaratory relief may serve the purpose of deterring future violations, but where an FHA plaintiff has died, would fail to provide any relief directly to the successors who have maintained the original plaintiff's case, thus diminishing their incentive to sustain the discrimination claim. Furthermore, injunctive relief is discretionary with the court, and is not routinely granted in every fair housing case.
Accordingly, the Court holds that under the FHA, a claim for emotional distress damages survives the death of a plaintiff. The inclusion of emotional distress damages furthers the legislative goals of compensating victims and deterring violations.
The motion to substitute successors in interest for the deceased plaintiff is GRANTED. The successors in interest, Pat Forward and Christopher Ambruster, are GRANTED leave to file a First Amended Complaint, as lodged with the Court for the present motion. The First Amended Complaint shall be deemed filed and served on the date of this Order. Defendants shall plead in response to the First Amended Complaint within twenty (20) days of the date of this Order.
IT IS SO ORDERED.
United States District Judge
© 1992-2004 VersusLaw Inc.