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Tony Clemons v. Keller Williams Realty

March 23, 2012


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge


Presently before the court are: 1) Defendants M.D. Webb & Associates & Jeff Book's Motion to Dismiss First Amended Complaint; 2) Defendants Litton Loan Servicing, L.P. & HSBC Bank USA, N.A.'s Motion to Dismiss First Amended Complaint; 3) Plaintiff Tony Clemons' Motion to Continue Trial Date and All Related Pretrial Dates; and 4) Defendants Litton Loan Servicing, L.P. & HSBC Bank USA, N.A.'s Motion to Withdraw as Counsel. Having reviewed the parties' moving papers, the court denies both Motions to Dismiss, grants the Motions to Continue and Withdraw as Counsel, and adopts the following Order.


Plaintiff Tony Clemons ("Clemons") first filed suit against some of the current Defendants in California state court on December 23, 2010. Those Defendants removed the action to federal court on March 30, 2011. On October 28, 2011, the court granted Clemons' unopposed Motion for leave to file a First Amended Complaint ("FAC"). Clemons filed his FAC on November 14, 2011, adding Defendants Jeff Book ("Book"), M.D. Webb & Associates ("Webb"), Litton Loan Servicing, L.P. ("Litton"), and Alice McHugh ("McHugh"), who Clemons learned of through the initial Defendants' Federal Rule of Civil Procedure 26(a)(1) disclosures. Defendants McHugh and HSBC Bank USA, N.A. ("HSBC") each filed answers to the FAC in December 2011. Defendants Book and Webb, and Litton and HSBC, (collectively, "moving Defendants") then filed their respective Motions to Dismiss in January 2012. Also in January 2012, Clemons filed his Motion to Continue, and Litton and HSBC filed their Motion to Withdraw as Counsel.

In his FAC, Clemons alleges four causes of action: 1) race discrimination in violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12900 et seq.; 2) race discrimination in violation of the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.; 3) race discrimination in violation of equal rights under the law, 42 U.S.C. § 1981; and 4) intentional interference with prospective economic relations.

As alleged in the FAC, Clemons is "by race and appearance an African American male," and a U.S. military veteran. In July 2009, Clemons submitted an offer to purchase a home in Los Angeles, California with a $289,000 listing price. Clemons had been pre- approved for a $300,000 loan by the U.S. Department of Veterans Affairs ("VA"). Clemons submitted the offer through his realtor, Michael Hamilton ("Hamilton"), "who is also an African American" and employed by "a predominantly African American real estate firm." Clemons and Hamilton then "came into contact" with Defendants Paul Azdril ("Azdril") and McHugh, the selling agents of the property, employed by Defendant Lucky Cats, Inc. ("Lucky Cats"). (FAC ¶¶ 4, 19-23.)

From July to August 2009, Clemons and Hamilton submitted five offers on the home. Defendants "ignored or refused" each of the offers. At some point during "negotiations," Clemons learned "that the property needed certain repairs, which [Clemons] would be unable to perform under the terms and conditions of the VA loan." Specifically, the VA loan "required that repairs be made by the seller prior to purchase." Therefore, on August 2, 2009, Clemons increased his offer by $2,500 to cover the cost of repairs - for a total offer of $281,500. On August 5, 2009, "Azdril responded that the seller did not want to make the repairs to the property and rejected [the offer]." On August 6, 2009, Clemons emailed a letter to Defendant Anna Shady ("Shady"), "the Regional Operations Manager of Keller Williams Realty" ("Keller"), identifying himself as an "African American male." Shady responded that she would work "with the Market Center owned by Lucky Cats, Inc. to follow-up with [Clemons'] previous offers." (FAC ¶¶ 24-28.)

Around the same time, however, Defendants reduced the listing price of the home from $289,000 to $259,000 - $22,500 less than Clemons' August 2, 2009 offer. Clemons then submitted two or three more offers on the home, adjusted to the new listing price.

Defendants refused the offers "with little or no explanation." In November 2009, Defendants sold the home "to two persons with Hispanic last names for $264,000" - $17,500 less than Clemons' August 2, 2009 offer. The buyers "financed the purchase with an FHA mortgage that required repairs similar to the repairs that had been required by [Clemons'] VA mortgage." Clemons therefore contends that Defendants unlawfully rejected his purchase offers "because of discrimination based on his race," and that Defendants Keller, Lucky Cats, Shady, Azdril, and Rick Cunningham interfered with his "prospective economic relations" with property owner HSBC.



Federal Rule of Civil Procedure 12(b)(6) requires courts to dismiss claims for which no relief can be granted. When considering a 12(b)(6) motion, "all allegations of material fact are accepted as true and should be construed in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In Ashcroft v. Iqbal, the Supreme Court explained that a court should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. 1937, 1950 (2009). Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." (internal quotation marks omitted)); Mejia v. EMC Mortgage Corp., No. CV 09-4701, 2011 WL 2470060, at *5 (C.D. Cal. June 16, 2011) ("The standards for pleading discrimination claims are no higher than the relaxed notice pleading standard of Fed. R. of Civ. Pro. 8(a)." (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), and Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062 (9th Cir. 2004))).


Absent "circumstantial evidence of discriminatory motive," a plaintiff establishes a prima facie FEHA case by showing that: 1) "she is a member of a protected class"; 2) "she applied and was qualified for a housing accommodation"; 3) "she was denied such housing accommodation"; and 4) "similarly situated individuals not in a protected class applied for and obtained housing." McDonald v. Coldwell Banker, 543 F.3d 498, 503 (9th Cir. 2008). The standard is the same for Clemons' FHA claim. See id. at 505 & n.7 ("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."). Similarly, the elements of a ยง 1981 claim are: "(1) plaintiff is a member of a protected class; (2) plaintiff attempted to contract ...

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