Metropolitan News-Enterprise


Tuesday, September 7, 2004


Page 1


C.A.: Barring Depressed Homeowners’ Dog Violated FEHA


By KENNETH OFGANG, Staff Writer/Appellate Courts


A condominium association violated the Fair Employment and Housing Act by barring a dog whose companionship alleviated the depression suffered by her disabled owners, the Third District Court of Appeal has ruled.

In an opinion by Justice Harry Hull, filed Aug. 25 and certified Friday for publication, the justices reinstated a ruling of the Fair Employment and Housing Commission that had been thrown out by a Placer Superior Court judge.

The commission’s ruling, Hull said, was supported by substantial medical evidence and was consistent with the law, which requires among other things that  landlords and homeowner associations “make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.”

Limits of Ruling

The justice noted that each claim for reasonable accommodation must be decided on its specific facts, and emphasized that the court was not holding that all disabled persons are entitled to have dogs in their residences.

The commission ordered remedial measures, including $12,500 in emotional distress damages, in response to a complaint brought by Abdelfatah “Ed” Elebiari and his wife Jayne against the Auburn Woods I Homeowners Association.

The Elebiaris testified that they purchased a condominium at Auburn Woods in 1998. Although the covenants, conditions, and restrictions said residents could not own pets except for birds and up to two cats, and explicitly excluded dogs, they acknowledged that they brought home a small terrier in April 1999.

They kept the dog for two months, then sent it to a friend’s house after the property manager threatened them with fines. In subsequent correspondence with management, and in an appearance before the condo board, Jayne Elebiari explained that she and her husband had been diagnosed with depression and other medical conditions and that caring for the dog gave them something enjoyable to do.

The couple’s psychiatrist and another doctor confirmed that both homeowners suffered from depression and other medical problems—Ed Elibiari had suffered brain damage as a result of a serious auto accident and received Social Security disability benefits—and recommended that they be allowed to keep the dog.

While their complaint was being investigated, the Elibiaris sold their unit and moved to Oklahoma. The Department of Fair Employment and Housing issued an accusation in February 2002.

The administrative law judge, after a lengthy hearing, largely ruled in favor of the complainants. The Fair Employment and Housing Commission adopted the ALJ’s proposed decision, but Superior Court Judge John L. Cosgrove, granting the association a writ of administrative mandate, held that the Elibaris supplied insufficient medical evidence and failed to show that reasonable accommodation required that they be allowed a dog.

The judge also held that the commission erred in granting emotional distress damages without a finding that a reasonable person would have suffered such damages as a result of not being allowed to keep a dog at his or her home.

Cosgrove was wrong on all of those issues, Hull wrote for the Court of Appeal.

Association on Notice

By the time the Elibaris complained to the Department of Fair Employment and Housing, Hull said, the association was on notice of their diagnoses and that their psychiatrist had found the dog’s companionship to be therapeutic.

 An attorney representing the couple at the time had offered to supply further medical documentation, but the association apparently did not take him up on the offer, the justice noted. Subsequent correspondence focused primarily on whether they needed a dog, not on whether they were disabled, Hull explained.

 “Under these circumstances, it is disingenuous (at best) for Auburn Woods now to call these disabilities into question,” the jurist wrote.

The justice rejected the association’s claim that it offered reasonable accommodation when it pointed out that the rules allowed cats. Jayne Elibiari told the association’s board she was allergic to cats, Hull noted.

In an unpublished portion of the opinion, Hull said that the commission used the correct standard in granting emotional distress damages. In discrimination cases, the justice explained, the victim is entitled to damages for the emotional distress he or she actually suffered, regardless of whether the tortfeasor’s conduct would have distressed a hypothetical reasonable person.

The case is Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission (Elibiari), 04 S.O.S. 4893.


Copyright 2004, Metropolitan News Company