“Hello World!”
For the most current update, please see: www.stateversusbader.com
Contact Info: djb52@yahoo.com | Tel. 949.933.6916
Press Release: (press-release)
Case Summary:
The State of California Department of Fair Employment & Housing filed a discrimination suit against me on behalf of the non-profit, Fair Housing Council Corporation of Orange County (FHCOC). Without any forewarning, the FHCOC filed a formal complaint with the State in October 2006 after purportedly viewing an 8 word phrase in a rental ad I posted on Craigslist.com. The Council alleged that the phrase violated State & Federal laws against discriminatory advertising on the basis of familial status and demanded $4,000 in damages plus 5 years of continuing landlord education to be taken through the FHCOC and at an additional expense to me. The civil lawsuit was filed by the State of California in OC Superior Court on Nov. 30, 2007 and is seeking ‘unlimited damages’. We are currently in litigation.
The alleged discriminatory phrase I used in the body of the rental ad for my 480 sq. ft. mother-in-law unit located in the back of my home was:
“Well suited for 1 or 2 professional adults” (my-craigslist-ad)
The State formally contends that this phrase is discriminatory on its face and is a violation of State and Federal anti-discrimination laws ‘regardless of the intent of the advertiser and/or past and current rental practices’ and thus warrants legal action.
These two articles written by 17 year LA Times Columnist, Dana Parsons, provide a quick overview on the story:
(LA Times 6-21-07) (LA Times-11-06-07) (d.parsons bio)
My name is Daniel J. Bader. I am a 55 year old homeowner and have been living in Newport Beach, California for 18 years. I hold a MBA in International Marketing from the University of Puget Sound, Tacoma, Washington. I have over 30 years of experience in the computer/software/internet industries and currently have a real estate license. I have been working as a commercial broker focusing exclusively on the restaurant, bar and cafe markets. I am also an entrepreneur and inventor.
I currently own a 1938, 1,227 total square foot cottage which includes an adjoining 480 sq. ft. mother-in-law unit located over the one car garage in the back. I purchased the property in 1999 and have been living in the approximately 720 sq. ft. front unit full time. The rental unit is bordered on both sides by alleyways and leases for $1,950/month. Both units are directly connected via a doorway with only a false wall dividing one from the other.
Moreover, there is no storage or parking for the unit and the monthly gas, electric and cable bills are split evenly between the tenants and myself. We share the same mailbox and address as well as the laundry facilities located in my garage. The building has been periodically used as both a single-family and duplex residence over the years and the City of Newport classifies it as a ‘legal, non-conforming duplex’.
(the rental unit is shown below).
The Fair Housing Council Corporation of OC:
The FHCOC is a private, non-profit organization which receives annual funds through the US Department of Housing & Urban Development (HUD) and whose self-proclaimed mission it is to “Combat Housing Discrimination”. www.fairhousingoc.org. The Corporation is headed up by D. Elizabeth Pierson, Esq., CEO/President and Chief Counsel.
Apparently, the FHCOC routinely operates on a covert basis. Typically the FHCOC contracts out with undercover ‘testers’ who use deception tactics in their effort to entrap landlords who may have a practice of housing discrimination (OC Register Article-1-14-05). There were no ‘testers’ sent out to my home. The FHCOC’s formal Complaint was filed with the State DFEH based solely upon its interpretation of my advertisement.
History:
In June 2006, I posted a couple of rental ads on Craigslist.com (craigslist-ad) which contained the phrase ‘well suited for 1 or 2 professional adults’ in the body of the ad. (www.Craigslist.com)
After viewing my post on 5 separate occasions, the FHCOC filed a formal complaint against me with the State of California DFEH. The FHCOC demanded $4,000 in monetary damages and 5 years of continuing landlord education from me to be taken at the FHCOC training facilities at an additional expense. There was no potential renter or individual who complained about my post. And, obviously, the FHCOC had no interest in renting the unit for itself.
In October 2006, I was served with the Notice of Filing of a Discrimination Complaint. Apparently, the State of California felt that the alleged violation was serious enough to dispatch a State employee, Yvette Salmon, down from Los Angeles to my home in Newport Beach to personally hand-serve the Complaint on me (FHCOC complaint). On its face, the appearance of the Complaint looked just like a lawsuit, but I was assured it was not a suit, but only an administrative action.
There was no formal demand attached to the Complaint and I was urgently requested to immediately respond to schedule a ‘conciliation conference’ to be held at the DFEH office in downtown Los Angeles. Prior to the scheduled conference, at the request of the DFEH, I submitted the following affidavit (bader-affidavit-5-12-07) and the contact information of several witnesses and personal references for investigation.
The Conciliation Conference held at the DFEH:
At that conference which was originally scheduled for May 29, 2007 and continued to June 5, 2007, I was escorted into a small conference room by the 2 DFEH administrators. Once the proceeding began, the lead administrator read the Complaint and Government Code Section 12955 (c) that I had allegedly violated. There was no court reporter, transcriptionist or electronic recording device present in the room.
Anti-Discriminatory Advertising Government Code Section 12955 (c) states,
She read: “It shall be unlawful:
For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability…”
(Unbeknown to me at the time, she stopped reading after this first phrase of the Code and did not read the following second phrase attached to the Section. What I later discovered was that the Code actually has a second phrase attached to it which goes on to state)
“…or an intention to make that preference, limitation, or discrimination.”
(Note: This highly relevant omission infers that there must be situations where the ‘intent’ of a violator is relevant. Therefore, the Legislature must have attached this ‘intent’ phrase to address ambiguous cases - like mine – so as not to prosecute unintended violations that may be unwittingly posted by naive advertisers. Otherwise, what could possibly be the reason for the Legislative body attaching this second phrase to the Government Code 12955?)
After reading the Complaint and Statute to me I was told that they -the 2 State adminstrators- had already determined that the 8 word phrase I used in the body of my ad (Well suited for 1 or 2 professional adults) had violated the Statute even though one of them had conducted a telephonic interview with a former tenant of mine, Darla Walters, who had a 16 year old daughter living with her in my mother-in-law unit.
Moreover, the investigator had called other former and current renters, as well as neighbors of mine, who all testified that I had never shown any discriminatory practice or behavior. The Adminstrator had even interviewed a witness who happened to be renting the unit at the same time my Craigslist ad was running and who had 2 children under the age of 12 staying in the unit.
I was told that the evidence ‘might’ mitigate the damages, but would not vindicate me.
I was also told that based upon the State’s own investigation that they did not believe that I had a pattern or practice of discrimination. This is the DFEH’s summary of the evidence based upon their investigation where I am the “Respondent” (dfeh-evidence-summary-L-Brumfield Investigator ).
I then asked, “so, what does the Fair Housing Council want from me?” I was then told that the FHCOC was demanding $4,000 to cover the ‘out-of-pocket’ expenses that they had purportedly spent conducting an online investigation on me and in mailing out (90) educational flyers into the community (FHCOC’s Direct Mailer 3-fold flyer) (*see more on this purported community service Flyer at the bottom of my Blog).
I was also told that the FHCOC was demanding 5 years of continuing landlord education to be taken through their training facilities and at an additional cost to me. I then asked the Administrator if I could have the FHCOC’s demand in writing and if I could see how they calculated their purported $4,000 in ‘out of pocket’ expenses. I was told, “no, Mr. Bader, you can’t”. I then asked why the aggrieved Complainant (The FHCOC) wasn’t present at the conference and was informed, ‘they don’t have to attend’.
At that time, one of the Adminstrator’s asked if I, “wanted to make a settlement offer?” I replied, “what will happen if I choose not to make an offer?” The Administrator explained, “then we will have to send the Complaint to Legal”. Utterly confused I responded, “but I don’t discriminate and never have.” She said, it doesnt matter, your ad is a violation on it’s face. Then I asked; “well then, why did you ask me to produce documents and witnesses for my defense if you had already pre-determined that I was guilty?” “We are required by Government Code to conduct the investigation,” she explained (dfeh-complaint-investigation). “Mr. Bader, it could get very costly for you as you’ll probably have to hire an attorney and may have to make several time consuming trips up to Los Angeles for hearings,“ she added.
I then asked her; “well, can I at least have a look through the file? I’d like to see the Craigslist ad that I had placed several months ago? “No, you may not, she answered, …that’s confidential.” Holding back my frustration, I then said to the Administrator, “OK, I’ll offer one training class.” With a surprised look on her face, she said, ‘that’s it…no money?” I answered, “no money.”
At that time, both Administrators picked up their files, asked me if I’d like a glass of water and left me alone in the room while they went to telephone the FHCOC with my offer.
Several minutes later they both returned. Before they had a chance to sit down I preempted them with the question, “well, do we have a deal?” She appeared impatient with me and said, “no Mr. Bader, we don’t. Would you like to up your offer?” I said, “I guess that means money?” She replied, “well, that’s typically what they want and would probably satisfy them.” After a few more minutes of what I could only describe as a shakedown, I stood up and excused myself from the meeting. As I was leaving I concluded with, “Thank you ladies, but I don’t think we’ll be doing a deal today.”
Los Angeles Times Contacted:
Later that day, I contacted Mr. Dana Parsons at the Los Angeles Times. Mr. Parsons conducted an investigative interview with the FHCOC and wrote a column on the story in June of 2006 (LA Times column dana-parsons-6-21-07 ) In that story, a Director and Trainer at the FHCOC, Joel Ibanez, when asked by the reporter what exactly was it about my ad that was discriminatory, Mr. Ibanez was quoted in the LA Times article as stating that my ad had:
“sort of implied a preference toward adults” and “it leaned in that direction”.
Ibanez told the reporter that was the justificaton for the Fair Housing Council Corporation filing the formal discrimination complaint with the State of California Department of Fair Employment & Housing and demanding a settlement of $4,000 plus 5 years of continuing education.
National Public Radio Interview (6-22-07): entitled “PROFESSIONAL RENTERS” which aired on the ”As it Happens” program with host Carol Off: (Note: I have alerted NPR that there appears to be a technical problem with both Part 2 and Part 3 clips. I will update the link as soon as I hear back from them. I believe the clip of my interview is in Part 2 or Part 3). You will need Real Player to listen to the interview.
( www.cbc.ca/radioshows/AS_IT_HAPPENS/20070622.shtml )
National Public Radio Follow up Interview (12-21-07) entitled, “Craigslist Discrimination”
My interview begins @ Clip Position - 17:11 - on your Real Player bar
(www.cbc.ca/radioshows/AS_IT_HAPPENS/20071221.shtml )
FHCOC Complaint sent to the DFEH Legal Department for Accusation:
After several failed attempts to negotiate a settlement with the FHCOC, the DFEH sent the Complaint to their legal department for determination which resulted in the DFEH issuing an official “Accusation” against me. (DFEH Accusation accusation-10-11-07)
Once again, I contacted Mr. Parsons at the LA Times who wrote a follow-up column (second LA Times Column-11-06-07). In that article, the DFEH’s Chief Counsel, Paul Ramsey, Esq. emphatically stood by the State’s contention that the phrase I used was discriminatory on it’s face and that I had violated the Statute.
Once I was served with the formal Accusation, I was given the choice to either have the Complaint heard in front of a State Board Fair Housing Committee or I could elect to have it litigated in front of a Jury. I elected the latter even though I was told by the State’s Los Angeles Staff Attorney who is in charge of this Complaint, Ralph Tsong, Esq., that ‘even if I were to win, by law, I could not get reimbursed for my attorney’s fees’. Also, on pages 3 & 4 in the body of the formal ”Accusation” (accusation-10-11-07), Mr. Tsong explicitly warns;
“The potential monetary damages that may be assessed by the Commission against you in a administrative adjudication may include, among other things, actual damages, compensatory damages for emotional distress, and administrative fines or civil penalties. In a housing case, there is no upper limit on the emotional distress damages that may be awarded against you…a Transfer to court may, however, depending on the facts of the case, subject you to unlimited compensatory and/or punitive damages; whereas the Commission may have more limited monetary remedial authority.”
Mr. Tsong also advised me that the LA Times Article interview with the FHCOC which quoted the FHCOC’s Director & Trainer as admitting that my phrase only ”Sort of implied a preference…” would be considered “heresay”and inadmissable at trial. Tsong formally reiterated his contention in a letter to me dated, 12/3/07 (ralph-tsong-12-3-07).
I then asked Tsong, “how can the State ethically pursue this Complaint now that you now that it was frivolous, if not outright fraudulent to begin with?” Tsong replied, “well, it will be an interesting ‘test case’.” Completely befuddled, I exclaimed,“A ‘test’ case? The State of California wants to test this case on me?”
I then asked Tsong, “what jury is going to possibly believe that the Fair Housing Council had $4,000 in purported out of pocket expenses?” “Mr. Bader, he responded, all settlement negotiations are confidential and will not be admissable at trial.”
I then asked him, “now, how can there be settlement negotiations if the accuser’s purported bona-fide expenses amounted to $4,000? There should be nothing to negotiate, right?” Mr. Tsong simply brushed my question aside and said, “maybe you should consult with an attorney, Mr. Bader.”
Rhetorically, I asked, “Mr. Tsong, I am totally confused. From the outset, the State proclaimed that its role is as a ‘neutral party’ in the dispute and only acts as a mediator. But you argue as if you are an adversary?” All I could do was shake my head and say to him, “Mr. Tsong, this is truly unbelievable” and hung up the phone.
State Files Discrimination Lawsuit on 11-30-07:
After 2 LA Times columns and 2 National Public Radio interviews, plus the State’s own admission that they did not believe that I had either a history or practice of discrimination, the State of California Department of Fair Employment & Housing, on behalf of the FHCOC filed a formal lawsuit ( state-of-california-v-bader) in Orange County Superior Court on November 30, 2007.
Interesting to note, I was informed by Mr. Tsong of the filing of lawsuit in a kind of ‘oh, by the way’ notice in the body of a reply letter to me (ralph-tsong-12-3-07) .
On December 28, 2007, I received the formal Lawsuit papers via First Class Mail which included a self-addressed, postage paid envelope by which I could return my notice of acceptance.
Cross-Complaint Filed:
On January 04, 2008, I filed a Cross-Complaint ( cross-complaint) through my good friend and Attorney, Rick Raynsford, Esq. Rick is a OC sole law practioner with 30 years of business litigation and trial experience.
At this time, we are actively seeking a Large Law Firm which has the resources to defend against and prosecute what we feel may be Federal RICO law violations as well as possible Class Action on a national scale. We believe this highly questionable practice may be widespread throughout the US. Rick can be reached at: ”Rick Raynsford” rick@rlrintl.com 949-230-8761 (Attorney’s may find relevant legal filings at the bottom of this Blog)
______________________________________________________________________________________________
Correspondence with various Federal and State Officials
Over the last 15 months I have written numerous multi-page letters which included the LA Times articles to many State and Federal officials asking them to please investigate this practice.
Here are a few of those letters and the responses I have received.
____________________
Elizabeth Pierson, Esq.,
President/CEO & Chief Councel, Fair Housing Council Corporation of Orange County (the aggrieved party)
Letter to Elizabeth Pierson Elizabeth-Pierson reply
Notable Quotes:
excerpts from Ms. Pierson, Esq. in her reply letter to me dated, 7-2-07:
“…I did not demand $3,999.99, the counter (offer) was $3,996.00.”
“Renting any property is a business, no matter how many units you have. Education is the most valuable portion of the settlement agreement because it is preventative, not punitive.”
“I do not intend to debate or discuss whether or not you have refused to rent to children in the past.”
“It is not our intent to cause you great financial harm.”
___________________________________________________________________________________
Governor Arnold Schwarzenegger;(Governor’s office routes my complaint back to DFEH for review)
Letter to Governor Governor-response
Notable Quotes: excerpt taken from his response to my request for an investigation of the Department of Fair Employment & Housing and Fair Housing Council Corporation practices.
“We have directed your correspondence (back) to the Department of Fair Employment & Housing for review and investigation.” ___________________________________________________________________________________
Senator Diane Feinstein; (Sorry, we can’t intercede)
Letter to Senator Feinstein Senator Feinstein Response
Notable Quotes: excerpt taken from Senator Feinstein’s response to my request for an investigation:
“It appears that your case is a legal matter and you need the kind of assistance which can be provided by legal counsel.”
___________________________________________________________________________________
Senator Barbara Boxer: (No response to date)
_________________________________________________________________________________
Attorney General, Edmund Brown Esq., (Sorry, but we represent the State)
Letter to Attorney General Brown Attorney General reply
Here’s A Mind-Boggling Contradiction: Apparently, the State Attorney General and the DFEH/FHCOC read the Code differently. The following document is taken directly from the Attorney General’s website (as of 1-20-08) (attorney-general’s interpretation). Clearly, the Attorney General believes that the Anti-Discriminatory Advertising Code inherently states that a person must have the ‘intent’ to discriminate. Defining what is regarded as unlawful discriminatory advertising, the AG specifically uses the phrase …”if it is done to discriminate.” (http://caag.state.ca.us/publications/womansrights/ch4.htm#1a#1a)
Conversely, the Director of the DFEH, Wanda Kirby and the DFEH’s Chief Counsel, Paul Ramsey, Esq., as well as D. Elizabeth Pierson, Esq., the Chief Counsel/President & CEO of the FHCOC all believe just the opposite. They contend that a violation occurs, “regardless of (the) intent”, of the ad Poster (wanda-kirby 11-20-07). Moreover, they believe that any ad that they interpret as indicating a preference is actionable on its face (elizabeth-pierson, esq 7-2-2007 (pg.2 …your advertisement and on its face it showed a preference).
_______________________________________________________________________________
Secretary of HUD, Alphonso Jackson; Email October 25, 2007 (Sorry, but we can’t intercede)
Notable Quotes: exceprt taken from Secretary Jackson’s reply to my email asking him to please investigate this matter since HUD allocates public funds directly to the Fair Housing Council Corporation of Orange County:
“The FHCOC, the Complainant in this matter, is a private fair housing organization whose mission it is to educate the public about housing discrimination and investigate potential violations of fair housing law.”
A Direct Contradiction with the DFEH
The US Department of Housing & Urban Development is in direct contradiction with the DFEH and FHCOC. This excerpt is taken directly from a specific 1995 HUD Memoradum regarding Guidance Regarding Advertisments (hud-memorandum-regarding-advertising ). In this excerpt from that letter, HUD specifically states that “Advertisments may not state an explicit preference….or state a preference for adults, couples or singles… 
.
The DFEH and the FHCOC contend that an ad only has to ‘imply a preference…
___________________________________________________________________________________
Jeff Jackson, Chief, Program Operations Branch HUD (San Francisco): (We’ll be watching)
Letter from Jeff Jackson, Chief HUD (San Francisco)
Notable Quotes: excerpt taken from Jeff Jackson’s letter noting that HUD has been notified of a violation:
“We encourage you to regularly examine your policies and practices to ensure full compliance with applicable state and federal fair housing laws.”
___________________________________________________________________________________
Director of DFEH, Wanda Kirby: (Sorry, but the law say’s your guilty Regardless of Intent)
Response from DFEH Director, Wanda Kirby 11/20/07
Notable Quotes: excerpt taken from Ms. Kirby’s letter to me regarding my letter to the Governor requesting an investigation of the DFEH & FHCOC.
“A violation occurs when, for example, such an advertisement is published, regardless of the intent of the person making or publishing that advertisment.”
___________________________________________________________________________________
State Assemblyman, Chuck Devore;
Email to Chuck Devores office response from Chuck Devore’s office
___________________________________________________________________________________
US Attorney, Karen P. Hewitt (San Diego): (No response to date from Ms. Hewitt)
Letter to US Attorney Karen Hewitt, Esq ___________________________________________________________________________________
Backgrounds of Officials:
Ralph Tsong, Esq. (State Bar # 212110), Department of Fair Employment & Housing, Staff Counsel. Ralph is the Attorney who signed and filed the Lawsuit on behalf of the State of California and the Fair Housing Council Corporation of Orange County. Ralph was hired by the DFEH in March 2007 and has held 1 new job for each of the past 4 years since his admittance to the Bar. ( tsong-resume.pdf )
___________________________________________________________________________________________
Elizabeth Pierson, Esq.(State Bar # 166221) CEO/President/Chief Counsel, Fair Housing Council Corporation of Orange County. Ms. Pierson is the person who is responsible for the Complaint filed with the State of California, DFEH. Per Ms. Pierson, she bills her time at $350/Hour and is an expert in Discrimination Law.
Ms. Pierson earned her AA Degree from Tallahassee Community College and graduated from Western State University, Fullerton, CA, a non- accredited law school at time of her graduation. She was admitted to State Bar 1993.
___________________________________________________________________________________________
Other Similar Postings found on Craigslist.com
Now, to give you an idea of just how pervasive these types of common phrases are used in rental ads, I spent a couple of hours researching Craigslist and came up with this list found in just the Orange County/ Los Angeles areas within a 7 day period. I saved each ad under the name of the questionable phrase that I found in the body of the ad. All you have to do is go to the Apts for Rent area of Craigslist and type in the keyword/s ‘prefer’, ‘family friendly’, ’singles’, etc. and then scan through the list.
I suspect that there are 1000’s of ads posted everyday on Craigslist.com that contain similar ambiguous phrases like mine. Furthermore, since the FHCOC contends that they do not have to prove ‘intent’ of the advertiser to discriminate, Craigslist is a virtual gold mine for them and some 75+ similar non-profit Fair Housing agencies that are funded by HUD and located throughout the US.
Interesting Discriminatory Advertising Questions:
One last note; so how would the Fair Housing Counsel justify not filing Complaints on ads that are written in Spanish? Or Vietnamese? Or Korean? Certainly those ads could be interpreted as ‘indicating a preference’ for non English speaking renters. And how about the ubiquitously used phrase “family friendly”? Wouldn’t this phrase definitely indicate a preference toward families and discriminatory against single people? Moreover, if you were to use the FHCOC’s own low threshold (“Sort of Implying a preference…”)of what they regard to be discriminatory advertising and which justify a filing a formal Complaint with the State of California then the following ads I quickly found on Craigslist surely would warrant a Complaint:
Thank you for reading my Blog. More updates will be coming soon. Please leave any comments you’d like to make.
I can be reached at
*Note: The FHCOC’s direct mailer flyer is specifically written to solicit business from potential victims, and has nothing to say about educating homeowners/landlords. It reminds one of the plethora of Yellow Page ads placed by lawfirms which specialize in discrimination complaints using Big, Bold phrases and an 800 number to call ( 3-fold direct mailer).
Excerpt Headlines from the FHCOC’s Direct Mail Flyer
“Your Rights Under the Law”
“What Can You Do If You Believe You Have Been Discriminated Against ?”
“DON’T GET LOCKED OUT, KNOW YOUR RIGHTS!”
________________________________________________________________
________________________________________________________________
Legal Documents & Timeline for Interested Attorney’s
State of California Lawsuit (state-of-california-v-bader)
Bader Answer to Complaint (answer1.doc)
Bader Cross-Complaint (cross-complaint)
Timeline of Events (timeline-of-events)
Case Law: This is the Case sited to me by DFEH Staff Counsel, Ralph Tsong, Esq., as legal precedent for bringing the lawsuit (us-court-of-appeals-case-law-jancik-v-hud-1994 ) I can’t find even a ’sort of’ similiarity with my case.
Link: www.lucidcafe.com/library/jancikvhud.html
Recent Communications:
1-17-08 – R. Tsong, Esq., to Bader re: cross-complaint. State threaten’s to file Anti-SLAPP motion (rtsong-anti-slapp-letter-1-17-08)
Posted by danielbader 
