Inland Mediation Board v. City of Pomona (158 F. Supp. 2d 1120, 2001)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

COOPER, District Judge.

This action, which arises under federal and state fair housing laws, involves the efforts of a landlord association’s attempt to improve its neighborhood and the legal significance of the assistance offered by the City of Pomona to the association. Of special significance are the actions of the association’s director, who is also a Defendant in this action, and the effect of those actions upon a resident manager, Grace Cross, an African-American who attended an association meeting.

This matter is currently before the Court on two Motions for Summary Judgment filed by Defendant Keagy (docket # 67 and docket # 70, both filed on December 4, 2000), and a Motion for Summary Judgment filed by Defendant City of Pomona (docket # 68, filed December 4, 2000). For the reasons and in the manner set forth below, the Court hereby grants in part and denies in part these Motions. All parties have provided the Court with thorough and excellent briefs in connection with these motions. Therefore, the Court finds the matter suitable for resolution of all issues based on the arguments and authorities in the briefs. The July 30, 2001, hearing is removed from the Court’s calendar.

I. Plaintiffs’ Claims

Plaintiffs Inland Mediation Board (“IMB”) and Grace Cross (“Cross”) set forth a number of causes of action, but the substance of Plaintiffs’ allegations is that Defendants Will Keagy (“Keagy”) and the City of Pomona (“the City”) engaged in unfair housing practices.

Plaintiffs’ first cause of action, alleged against both Keagy and the City, is for violation of the federal Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq. Specifically, Plaintiffs allege violation of six separate provisions of the FHA: 1) Making unavailable dwellings because of a protected status, in violation of 42 U.S.C. § 3604(a); 2) Discriminating in the terms, conditions, and privileges of the rental of a dwelling because of a protected status, in violation of § 3604(b); 3) Making statements, with respect to the rental of a dwelling, that indicate a preference, limitation, or discrimination based on a protected status, in violation of § 3604(c); 4) Misrepresenting the availability of a dwelling for rent because of a protected status, in violation of § 3604(d); 5) Interfering with the enjoyment of rights guaranteed by the FHA, in violation of § 3617; and 6) Failing to affirmatively further the purpose of the FHA in violation of § 3608.

The second cause of action is asserted by Cross against both Keagy and the City. This claim asserts a violation of 42 U.S.C. § 1982, which prohibits discrimination against African-Americans in the rental of housing.

Plaintiffs’ third cause of action is asserted against both Keagy and the City. This claim asserts violations of California fair housing laws. Specifically, Plaintiffs assert the following claims in violation of California’s Fair Employment and Housing Act (“FEHA”), Cal.Govt.Code § 12926, et seq.: 1) discrimination in the rental of housing because of a protected status, in violation of Cal.Govt.Code § 12955(a) and (d); 2) making, printing, or publishing any notice, statement, or advertisement that indicates a preference, limitation, or discrimination based on a protected status, in violation of Cal.Govt.Code § 12955(c); 3) aiding, abetting, inciting, compelling, or coercing the doing of any of the acts declared unlawful in FEHA, in violation of Cal.Govt.Code § 12955(g); and 4) otherwise making unavailable or denying a dwelling based on discrimination because of a protected status, in violation of Cal. Govt.Code § 12955(k).

The fourth cause of action is asserted by Cross against both Keagy and the City. This claim asserts a violation of California’s Unruh Civil Rights Act, Cal.Civ.Code § 51, et seq. Specifically, Cross alleges that Defendants injured her by discriminating against her in the operation of the landlord association because of her protected status.

The fifth cause of action, which asserts violations of California’s Unfair Business Practices law, was previously dismissed with prejudice. When Plaintiffs filed the Third Amended Complaint, they re-alleged this claim in order to properly preserve it for appeal.

The sixth cause of action is asserted by Cross as to Keagy only. Cross asserts a claim of intentional infliction of emotional distress against Keagy based on his actions and comments at an October 1, 1998, association meeting.

The seventh cause of action, which asserts a claim for negligence, was previously dismissed with prejudice. As with the fifth cause of action, when Plaintiffs filed the Third Amended Complaint, they re-alleged this claim in order to properly preserve it for appeal.

Finally, in the eighth cause of action Cross asserts a claim pursuant to 42 U.S.C. § 1983 against both Keagy and the City.

Both Defendants move for summary judgment as to all claims asserted against them.

II. Uncontroverted Facts

A. K-KAPS

Within the City there is a small area, bounded by Karesh, Kingsley, Abby, Pasadena, and St. Paul streets, that is known as the K-KAPS area. As measured by the 1990 United States Census, the minority population of the K-KAPS area is slightly higher than that of the City of Pomona as a whole. The 1990 Census also shows that this area is comprised largely of rental units rather than owner-occupied housing.

For the last nine years Paula Lantz (“Lantz”) has been the Pomona City Council member whose district includes this geographical area. In the early 1990’s, a group of landlords who owned property in this area formed an association that eventually came to be known as K-KAPS. The initial efforts to form this group were taken by Kathryn Layton (“Layton”), who believed that the area had developed problems with drugs and crime. Keagy was a landlord who attended the early meetings of the association. K-KAPS was never incorporated, and it did not have written by-laws.

The goal of K-KAPS was to improve the neighborhood, and the association focused on tenant-screening as the primary vehicle for furthering that goal. In order to help landlords to better select desirable tenants, the association created a tenant screening committee that taught owners and managers how to screen rental applicants. The group also sought increased police presence, increased code enforcement, and increased property management and maintenance.

Lantz testified at her deposition that she did not assist in the founding of K-KAPS. (Lantz Depo. at 50). The uncontroverted evidence establishes, however, that Lantz offered significant assistance to this group throughout the course of its existence. For example, when Lantz became aware in 1992 or 1993 that some of her constituents had formed the association to address problems in the K-KAPS area, she made arrangements for the City to provide a police department representative to speak to the association. She also arranged for meeting space on City property, as well as free parking for those who attended the meetings.

In 1994, Lantz sent a number of letters on City Council letterhead to K-KAPS area apartment owners in an attempt to increase membership in the group and attendance at the group’s meetings. (See Exh. 20). In these letters, Lantz used phrases such as: “I would like to take this opportunity to cordially invite you to attend our next meeting”; “It is time for our K-KAPS group to meet again and forge ahead in addressing our mutual concerns”; “Let’s maintain our attendance and keep working together until we are satisfied that the need for our combined efforts no longer exists”; and “Your attendance will help us in our efforts to resolve the problems that surround us and complicate our lives.” Additionally, Lantz assisted K~ KAPS by typing, copying, and mailing communications to K-KAPS members. Moreover, the City Council paid for the postage. Lantz attended approximately 75% of the K-KAPS meetings from the mid-1990s until the association ceased to meet in 1999.

B. Keagy Becomes Director of K-KAPS

Layton was the director of K-KAPS until the mid-1990s, when Keagy became the director at the request of Lantz. Kea-gy had owned a 12-unit apartment complex in the K-KAPS area from 1982. When asked at his deposition about his duties and responsibilities as director of K-KAPS, Keagy responded, “Nobody ever gave me an agenda or a list of anything. It was up to me what did I see fit to do.” (Keagy Depo. at 121). Keagy set the agenda for the K-KAPS meetings. (Id. at 123). Keagy was not an employee of the City, nor did he receive compensation for his work as the K-KAPS director. As such, the city did not give Keagy any guidelines as to what he could or could not do as K-KAPS director.

Keagy was a particularly vigilant association director. For example, he called apartment owners and advised them to get rid of problem tenants, asked owners why they did not attend the K-KAPS meetings, told building managers to clean up trash, and compiled the “wish well” list. In addition, Keagy advocated that area owners not rent to participants in the Section 8 Prototype, which assists recovering substance abusers, because the program was too risky. Finally, Keagy recommended the use of Darrel Waltman’s security services, even though police assessments indicated that Waltman was running an unethical operation, assaulting people without cause, and conducting unnecessary high-speed chases.

Keagy also sent a number of written communications to K-KAPS members. On June 6, 1996, Keagy sent a letter that accompanied a K-KAPS meeting agenda. In that letter he stated, “Don’t let government regulations and greedy lawyers intimidate you to rent to some one you don’t want to rent to.” A K-KAPS newsletter written by Keagy and dated October 24, 1996, states, “Remember, we, the owners have the final word as to who gets the apartments.... Nobody can force us to rent to someone we don’t want to.” Keagy repeatedly made statements to the effect that owners should not rent to “undesirables,” i.e., individuals who did not pay their rent, who moved owing rent, who damaged the property, who brought crime and drugs into the area, and who intimidated other tenants.

In 1997, Lantz began reviewing the content of the written material submitted by the director of K-KAPS for distribution to K-KAPS members and decided to edit the materials due to the presence of grammatical errors and what she perceived as a negative tone. Keagy was indifferent to Lantz’s edits. (Keagy Depo. at 172: “If they want to change it, I don’t care.”). The agendas that Keagy prepared and that Lantz edited were mailed with the K-KAPS logo at the top, and the Pomona City Hall address at the bottom. These agendas were sent to K-KAPS members in City Council envelopes that listed the return address as the Office of the City Council.

C. Police Booking Photos Disseminated at K-KAPS Meetings

Lantz was present at a K-KAPS meeting where City of Pomona Police Department Booking photos were disseminated; such booking photos were also circulated at more than one K-KAPS meeting. The police helped identify by name those residents of the area who had been investigated or arrested by the police. Keagy advised apartment owners that they should not rent to persons in the photographs, and attempted to obtain more police information on prospective tenants.

On October 21, 1997, Keagy sent a letter to a property owner asking the owner to evict one of his tenants. The tenant’s son was living in her apartment when he was arrested for attempted murder of another K-KAPS resident. Keagy sent a copy of this letter to the police department, and the police department followed up with a similar letter to the property owner calling for the tenant’s eviction. The letter threatened to require an apartment to remain vacant for a period up to one year.

D. October 1,1998, K-KAPS Meeting

Keagy chaired the K-KAPS meetings, which typically began with an opening statement by Lantz. Also in attendance at these meetings were on-duty officers of the Pomona Police Department. One police officer testified that he believed Kea-gy’s conduct and demeanor at the K-KAPS meetings were inappropriate; another testified that Keagy was angry any time there was a problem in the area; yet another stated that Keagy ran the meetings like a dictator. Lantz agreed that the manner in which Keagy conducted the K-KAPS meetings was offensive.

On October 1, 1998, plaintiff Cross, as well as two police officers, attended a K-KAPS meeting at which Keagy stated that he did not rent to Blacks, that Blacks were nothing but trouble, and that if K-KAPS got rid of all the Blacks, the problems relating to drugs, crime, and troublesome tenants would stop. Keagy looked directly at Cross when he made these statements, but he did not speak Cross’s name or gesture toward her. Upon hearing Kea-gy’s statements, Cross became frightened and sat frozen in her chair. Her body clenched and she was visibly shaken. Cross believed that she would be subjected to physical assault by Keagy or by the Pomona police.

After the meeting, Cross asked one of the police officers present if Keagy’s comments represented the attitude that residents of Pomona, in general, had about black people, and the police officer told her to pay no attention to Keagy. According to Lantz, who later discussed Keagy’s comments with him, Keagy did not believe that he had done anything wrong. Lantz continued to assist Keagy in distributing K-KAPS material and in scheduling meeting space for the group, and attended approximately half of the association’s remaining meetings.

E. Effect of Keagy’s Statements on Cross

After the meeting on October 1, Cross expressed to at least one other person that she was upset by Keagy’s comments. She further expressed that she no longer felt safe in Pomona. Following the meeting, Cross suffered from insomnia and headaches. As she had become frightened in Pomona and had begun to fear physical attack, Cross resigned from her job as a resident manager and moved from Pomona to San Bernardino. She subsequently filed a complaint with plaintiff IMB, who undertook an investigation that included sending fair-housing testers to a vacant apartment offered for rent by Keagy.

F. Fair-housing Testers

IMB sent two housing testers to apply for Keagy’s vacant apartment: LH, an African-American single mother of two children, and RR, a Caucasian single mother of two children.

LH contacted Keagy on the morning of October 27,1998, and arranged to view the vacant apartment the next morning. LH arrived and knocked on the door to the vacant apartment, and was eventually greeted by Keagy, who came down from an upstairs apartment. Keagy showed LH the apartment, which was still in need of cleaning. Keagy first informed LH that the $450 monthly rent included all utilities, and then told her that he would require a $300 security deposit, a $20 key deposit, and a $15 credit check fee. LH viewed the laundry area and parking area. Keagy then informed LH that someone had been murdered across the street, and that the retaliation for that murder had resulted in a fire in one of the carports in the alley. Keagy further informed LH that the security deposit would not be returned unless she stayed at least twelve months, and that he would check her history for previous evictions. Finally, Keagy told LH that she would be required to submit to a drug test before she could rent the apartment. LH left the apartment with a rental application.

RR also contacted Keagy on the morning of October 27, 1998, and arranged to view the vacant apartment the next morning. RR arrived and found the door to the apartment open. She called out, and Kea-gy greeted her. Keagy told her that the vacant apartment was unit #2 and that she was welcome to go in and view it. Keagy provided the same information regarding the amounts of the rent, deposits, and fees to RR as he did to LH. Keagy asked if she had been evicted in the past, and she said that she had not. Keagy gave her a rental application, and told her that the most important thing on the application was a question regarding her willingness to submit to a drug test. RR responded that she would be willing to do so, but inquired whether that requirement was legal. Keagy responded that it was. Keagy showed RR the carports and the laundry room. Keagy stated that five years ago the neighborhood was pretty bad, but that he and other owners had gotten together with the City Council to keep out the “undesirables.”

G. Keagy’s Resignation

In May 1999, Keagy resigned as director of K-KAPS. After his resignation, the group met only one other time and then largely ceased to exist.

H. Resources Expended by IMB

IMB diverted human resources to opposing the activities of Keagy and K-KAPS. The following chart illustrates the extent of IMB’s diversion of staff time:

III. Summary Judgment Standard

Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Whether a fact is material is determined by looking to the governing substantive law; if the fact may affect the outcome, it is material. Id. at 248, 106 S.Ct. 2505.

If the moving party meets its initial burden, the “adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere disagreement or the bald assertion that a genuine issue of material fact exists does not preclude a grant of summary judgment. Harper v. Wallingford, 877 F.2d 728 (9th Cir.1989).

The Court construes all evidence and reasonable inferences drawn therefrom in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Brookside Assocs. v. Rifkin, 49 F.3d 490, 492-93 (9th Cir.1995).

IV. Standing

A. Generally

Article III of the Constitution confers jurisdiction in the federal courts over “cases” and “controversies.” The Supreme Court recently observed, “One element of the case or controversy requirement is that [plaintiffs] ... must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Standing is therefore a threshold requirement that must be satisfied by every plaintiff who invokes the jurisdiction of a federal court. See also, Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975).

The standing inquiry in most federal cases involves a determination of whether the plaintiff has met “both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.” Id. First, a plaintiff invoking federal jurisdiction must satisfy the “case or controversy” requirement, which is the “irreducible constitutional minimum,” and is an “essential and unchanging part ... of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In order to satisfy this constitutional requirement, a plaintiff must be able to demonstrate

[first,] an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly traceable to the challenged action of the defendant ...” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

Id. at 560-561, 112 S.Ct. 2130. Each of these elements of Article III standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Bennett v. Spear, 520 U.S. 154, 167-168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing to Lujan, 504 U.S. at 561, 112 S.Ct. 2130).

Aside from the constitutionally imposed requirements of standing to sue in federal court, the federal judiciary has also largely adhered to a set of judicially self-imposed prudential limitations to standing that focus primarily on a concern about the proper limits on federal jurisdiction. See Fair Housing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 74 (3d Cir.1998). The crux of these principles is that even when a plaintiff has alleged injury sufficient to meet the “case or controversy” requirement of Article III, such plaintiff cannot merely rest his claim to relief on the legal rights or interest of other parties, or of some large class of citizens that shares in a generalized grievance. Seldin, 422 U.S. at 499-500, 95 S.Ct. 2197. These prudential limitations therefore prevent the courts from being called upon to decide “abstract questions of wide public significance.... ” Id.

Although a plaintiff invoking the jurisdiction of a federal court will generally have to allege or demonstrate (depending on the stage of the litigation) facts sufficient to establish standing under both Article III and the relevant prudential limitations, Congress intended that standing under the Fair Housing Act be limited only by Article III, and that prudential barriers to standing under the Act may not be erected. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Indeed, the “sole requirement for standing to sue [under the FHA] is the Article III minimum of injury in fact: that the plaintiff allege that as a result of the defendant’s actions he has suffered a ‘distinct and palpable’ injury.” Id. Accordingly, the inquiry into whether an organization has standing to bring suit under the FHA is the same as that for an individual: the plaintiff must have alleged “such a personal stake in the outcome of the controversy” as to warrant his or its presence in federal court Id. at 378-379, 102 S.Ct. 1114.

B. IMB’s Standing

Because this matter is before the Court on a Motion for Summary Judgment, the Court must decide whether IMB has demonstrated, not merely alleged, “distinct and palpable injury” sufficient to satisfy Article Ill’s “case or controversy” standing requirement. See Fair Housing Council, 141 F.3d at 75.

Plaintiff relies heavily on Havens in asserting that it suffered “two distinct but related injuries as a result of the discriminatory housing practices alleged by plaintiffs.” In Havens, a fair housing organization called Housing Opportunities Made Equal (“HOME”) brought suit against Havens Realty Corp., alleging that Havens’ practices of racial “steering” violated the FHA. 455 U.S. at 363, 102 S.Ct. 1114. On defendant Havens’ motion to dismiss, which alleged that HOME did not have standing to prosecute its claim, the Supreme Court held that because HOME had alleged that as a result of the “steering,” its counseling and referral services had been frustrated with a consequent drain on its resources, HOME had sufficiently alleged the injury required for standing under Article III. Id. at 379, 102 S.Ct. 1114. The Court explained,

If, as broadly alleged, [Havens’] practices have perceptibly impaired HOME’S ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.

Id.

While Havens arose on the defendant’s motion to dismiss the complaint for failure to state a claim, the issue of standing before this Court arises from Defendants’ motions for summary judgment. Accordingly, in order to defeat summary judgment, Plaintiff must provide something more than “naked allegations.” Fair Housing Council, 141 F.3d at 76 (citing to Lujan, 504 U.S. at 561, 112 S.Ct. 2130). In this case, Plaintiff IMB has provided evidence of injury that closely mirrors the injury alleged by HOME in Havens. Just as HOME alleged that its activities had been disrupted as a result of defendant Havens’ discriminatory practices, and that such disruption resulted in a drain of the organization’s resources, so, too, has Plaintiff demonstrated that as a result of Defendants’ discriminatory housing practices, Plaintiff was forced to divert funds away from other activities in order to combat Defendants’ actions. Based on the following evidence, the Court finds that Plaintiff IMB has adequately substantiated its allegations that it has suffered an “actual and palpable” injury that would confer standing to bring this action.

Plaintiff alleges that its ability to further its mission was substantially frustrated by Defendants’ allegedly discriminatory conduct. According to Plaintiffs Declaration, IMB’s mission is to identify, investigate, and counteract all forms of discriminatory housing practices. Where such discriminatory practices have “perceptibly impaired [a fair housing organization’s ability to carry out its mission], there can be no question that the organization has suffered an injury in fact.” Havens, 455 U.S. at 379, 102 S.Ct. 1114. The Court finds that Plaintiff has sufficiently demonstrated that its mission was perceptibly impaired.

Plaintiff contends that it has suffered further injury because it has been forced to divert significant resources away from other activities it would normally have undertaken in order to combat Defendants’ alleged conduct. Specifically, Plaintiff alleges that it spent over 112 hours dealing with K-KAPS before this suit was ever filed and that it has devoted in excess of 157 hours since the inception of this litigation.

Defendant Keagy cites Fair Housing Council in support of his contention that Plaintiff has failed to demonstrate a causal nexus between Defendants’ alleged misconduct on one hand and the need for Plaintiff to divert the resources alleged to constitute the actual injury on the other. In Fair Housing Council, plaintiff housing organization argued that it had standing to sue a newspaper for violating the FHA’s prohibition on discriminatory housing advertisements because the organization had diverted resources into implementing a remedial educational campaign. 141 F.3d at 77. Affirming the district court’s grant of summary judgment to defendant newspaper as to the advertising claim, the Third Circuit held, “[ajlthough pressed to do so in discovery and in oral argument before us, the [organization] was unable to establish any connection between the allegedly discriminatory advertisements underlying this suit and the need for implementation of a remedial educational campaign.” Id.

Unlike the plaintiff in Fair Housing Council, however, Plaintiff IMB has established that it devoted approximately 112 hours to various activities conducted in direct response to Defendants’ allegedly discriminatory housing practices. Included within that expenditure of resources are the nearly twenty hours spent by several IMB personnel coordinating or reviewing the fair-housing testing conducted at Kea-gy’s vacant apartment subsequent to the October 1st meeting. Accordingly, while the causal link between the defendant’s allegedly unlawful conduct and plaintiff organization’s remedial measures may have been absent in Fair Housing Council, it is clearly present in this case.

In sum, Plaintiff IMB has satisfied the threshold requirement of demonstrating that it has suffered some distinct and palpable injury as a result of the defendants’ allegedly discriminatory housing practices. From nearly the inaugural meeting of K-KAPS, through the coordination of fair-housing testing after Defendant Keagy made the allegedly unlawful comments on October 1, 1998, Plaintiff was forced to divert resources into countering Defendants’ conduct. The Court accordingly finds that Plaintiff IMB has the requisite standing to assert these claims under the FHA.

C. Cross’s Standing

In order to establish standing under the FHA, a plaintiff need not prove that she was the target of discrimination. To the contrary, any person “harmed by discrimination, whether or not the target of the discrimination, can sue to recover for his or her own injury.” San Pedro Hotel v. City of Los Angeles, 159 F.3d 470, 475 (9th Cir.1998) (citing to Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)). Accordingly, the Court must determine whether Plaintiff Cross has sufficiently demonstrated the sort of “distinct and palpable” injury necessary to confer standing to bring suit under the FHA. See Fair Housing Council, 141 F.3d at 75.

In San Pedro Hotel, two hotel owners (“the Fentises”) brought suit against the City of Los Angeles, alleging that as a result of the City’s discrimination against the mentally ill, the Fentises were injured in that they were prevented from selling a hotel to their intended purchaser, a developer of housing for the mentally disabled. 159 F.3d at 472. Believing that the Fen-tises lacked standing to sue the City for substantive violations of the FHA, the District Court dismissed those portions of the complaint, allowing leave to amend only the allegation of retaliation. Id. at 474. On appeal, the Ninth Circuit reversed the dismissal, holding that in order to establish standing under the Act, the Fentises were required to show only “that the City interfered with the housing rights of the mentally ill and that, as a result, the Fentises suffered an actual injury.” Id. at 475. The court further explained, “As potential sellers of the property who were unable to sell their property to a buyer because of the City’s allegedly improper interference with an HUD loan, the Fentises meet this test.” Id.

In the present case, it is uncontroverted that after witnessing Defendant Keagy’s comments and demeanor at the October 1st meeting, Plaintiff Cross became so emotionally distraught that she felt forced to quit her job as a resident manager and move away from Pomona, suffering both economic and non-economic injury as a result. Non-economic injury can also support standing to sue under the FHA. See Trafficante, 409 U.S. at 208, 93 S.Ct. 364; Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Indeed, the mere “stigmatization” that results from being labeled as a member of an inferior class of citizens has repeatedly been held sufficient to confer standing. See Trafficante, 409 U.S. at 208, 93 S.Ct. 364 (tenants who alleged that building owner’s discriminatory policies “stigmatized” them as residents of a “white ghetto” stated sufficient actual injury); see also Smith v. City of Cleveland Heights, 760 F.2d 720, 722 (6th Cir.1985) (black resident who argued that his city’s discriminatory policy branded him as “less desirable” than whites stated adequate injury)-

In this case, as in Smith, Plaintiff Cross has demonstrated that after witnessing Defendant Keagy’s conduct, as well as Defendant City’s continued assistance to the association after the October 1st meeting, she felt that both her neighborhood and her city had branded her as less desirable than whites. The physical and emotional upset that accompanied the stigma of being considered inferior by the director of Cross’s own neighborhood association, as well as by the city that continued to support the association, are a far cry from the kind of “abstract stigmatic injuries” that have been held insufficient to establish standing. See Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 596 (10th Cir.1996) (citing to Allen v. Wright, 468 U.S. 737, 766, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).

Whether Plaintiff has standing under § 3604(c) is a bit less clear. Subsection (c) makes it unlawful to “make ... any ... statement ... with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference ...” (1996). At least two courts have held that the mere receipt of a statement or advertisement proscribed by § 3604(c) confers the standing required to sue under that section. See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904 (2d Cir.1993); Saunders v. General Services Corp., 659 F.Supp. 1042, 1053 (E.D.Va.1987). Other courts, however, have held that such receipt, by itself, is insufficient to confer standing. See Wilson, 98 F.3d at 595; see also Spann, 899 F.2d at 29 (Ginsburg, J., expressing doubt as to whether Congress intended “to confer a legal right on all individuals to be free from indignation and distress.”). However, even those courts that doubt whether exposure to discriminatory speech, by itself, confers standing, recognize that a plaintiff acquires standing if such speech “deterred her from seeking housing in the advertised property.” Spann, 899 F.2d at 29. Although Plaintiff Cross has not alleged that she was ever interested in living in one of Defendant Keagy’s apartments, she has demonstrated that Keagy’s alleged misconduct and Defendant City’s continued support of the organization were the motivating factors behind Cross’s decision to vacate her apartment in the K-KAPS neighborhood. Accordingly, the Court finds that Plaintiff Cross also has the requisite standing to bring suit under 42 U.S.C. § 3604(c).

V. Agency

Plaintiffs argue that even if Defendant City did not itself commit specific acts in violation of federal and state fair housing and anti-discrimination laws, the City is nonetheless liable for any unlawful acts committed by Defendant Keagy, who, according to Plaintiffs, was an agent of the City during his tenure as director of K-KAPS.

Whether an agency relationship exists for purposes of the Fair Housing Act is determined under federal law in order to “avoid predicating liability for Fair Housing Act violations on the vagaries of state law.” Harris v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir.1999) (citing to Cabrera v. Jakabovitz, 24 F.3d 372, 386 fn. 13 (2d Cir.1994)). In determining whether an agency relationship exists, therefore, courts have generally looked to the definition of “agency” provided by the Restatement (Second) of Agency (1958) (“the Restatement”). See e.g., General Building Contractors Assn. v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (applying Restatement to analysis of similar civil rights action under 42 U.S.C. § 1981). In addition, HUD has promulgated its own definition of “agency,” which closely resembles the Restatement’s definition. See Harris, 183 F.3d at 1054 (applying HUD standard to FHA claim). As it is well established that the question of agency should be submitted to the jury unless the factual record is utterly devoid of support for a finding of agency, see Harris, 183 F.3d at 1054, this Court must determine whether Plaintiffs have provided any evidence upon which a jury could premise a finding that Keagy was, in fact, acting as an agent of the City when he engaged in discriminatory conduct at the October 1st meeting.

According to the Restatement, agency “results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Rest. (2d) of Agency, § 1. In order to satisfy the Restatement definition, Plaintiffs must have produced evidence from which a jury could find: (a) Defendant City, the alleged principal, manifested that Keagy shall act for it; (b) Keagy, the alleged agent, manifested his acceptance of such authority; and (c) both parties understood that the City was to exercise a degree of control over Keagy’s activities when he was acting as the City’s agent. See Cabrera, 24 F.3d at 386 (citing to Rest. (2d) of Agency, § 1 cmt. b). Similarly, in order to satisfy HUD’s definition of agency, a jury must be able to at least infer from the proffered evidence that the City manifested to Keagy that he was “authorized to perform an action on behalf of [the City] regarding any matter related to ... real estate-related transactions.” 24 C.F.R. § 100.20(b).

Plaintiffs correctly note that the City’s vicarious liability may rest upon an actual agency relationship or an apparent agency relationship. See Pinchback v. Armistead Homes Corp., 689 F.Supp. 541, 550-551 (D.Md.1988), vacated in part on other grounds, 907 F.2d 1447 (4th Cir.1990), cert. denied, 498 U.S. 983, 111 S.Ct. 515, 112 L.Ed.2d 527 (1990). Actual agency exists where: (a) a principal manifests to another that the other has the authority to act on the principal’s behalf and subject to the principal’s control; and (b) the other, or agent, consents to act on his principal’s behalf and subject to the principal’s control. See In re Shulman Transport Enterprises, Inc., 744 F.2d 293, 295 (2d Cir.1984); Armistead, 689 F.Supp. 541, 550 (D.Md.1988). Apparent agency, however, unlike actual agency, which exists whether or not the third party knows of or suspects an agency relationship, “depends in large part upon the representations made to the third party and upon the third party’s perception of those representations.” Armistead, 689 F.Supp. at 551 (citing to Williams v. Washington Metro. Area Transit Authority, 721 F.2d 1412, 1416 (D.C.Cir.1983)). Indeed, while an actual agency relationship can exist absent any involvement of a third party, an apparent agency exists only to the extent that a third party reasonably believes the relationship to exist. Id. (citing to Rest. (2d) of Agency, § 8 ant. c).

Contrary to Defendant City’s contention, Plaintiffs have presented evidence from which a jury could reasonably find that the City manifested its desire for — -or authorized — 'Keagy to exercise at least some authority on behalf of the City, and that Keagy accepted the proffered authority, thereby creating an actual agency relationship. For example, Plaintiffs’ evidence indicates that, from early in K-KAPS’ existence, the City took a special interest in assisting the organization’s activities; Paula Lantz attended nearly three quarters of the meetings, arranged for Pomona police to speak at the meetings, personally invited area building owners to meetings, referred to K-KAPS as “our K-KAPS,” printed K-KAPS correspondence on City stationery, and mailed the association’s agendas using City postage. Moreover, Plaintiffs have also provided evidence that when Kathryn Layton stepped down as director of K-KAPS, Paula Lantz specifically asked Keagy to replace Layton. Accordingly, a jury might reasonably conclude that the City authorized Keagy to act on its behalf at the association’s meetings.

Similarly, Plaintiffs have provided evidence that after learning he was not being represented by Defendant City’s counsel in this action, Keagy appeared surprised and stated that he “didn’t do this on his own,” and that he was doing the City a favor by chairing the association. Such evidence could certainly support a finding that Kea-gy accepted the authority to serve as the City’s representative at K-KAPS meetings. Moreover, a jury could also reasonably find that when Lantz, an official representative of the City, asked Keagy to become the director of K-KAPS, the City thereby “authorized” Keagy to act on its behalf in dealings with K-KAPS members within the meaning of 24 C.F.R. § 100.20. Accordingly, as Plaintiffs have met their burden of production on the issue of agency, summary judgment in favor of Defendant City is denied.

VI. First Amendment Protection: The Nature of Keagy’s Speech

Defendants assert that Keagy’s speech at the October 1st meeting was constitutionally protected, and therefore cannot serve as a basis for liability on any of Plaintiffs’ claims. Keagy contends his comments concerning both the desirability of black tenants in general as well as the crime and drug problems associated with African-Americans were merely statements of opinion and are protected as such under the First Amendment. Keagy further claims that his statement that he does not rent to black tenants, although not an opinion, was not the sort of commercial speech that is entitled to less protection under the First Amendment than political or ideological speech. Similarly, Defendant City argues that even if the Court were to find that Keagy was acting as an. agent or representative of the City at K-KAPS meetings, the City cannot be found liable in the present action because Kea-gy’s remarks enjoyed constitutional protection.

The Court has already concluded that there is a triable issue of fact as to whether an agency relationship existed between the defendants when Keagy made his discriminatory comments at the October 1st meeting. Accordingly, the Court must first ask: (a) whether municipal entities are entitled to First Amendment protection; and (b) if not, whether speech by agents or employees of municipal entities is also unprotected when made in the context of the agency relationship. If neither cities nor individuals acting in their capacities as agents of cities are entitled to First Amendment protection, then the Court need not reach the question of whether Keagy’s comments constituted commercial speech.

In Creek v. Village of Westhaven, 80 F.3d 186, 192 (7th Cir.1996), the Court of Appeals recognized that, as the Supreme Court has not expressly addressed the question of whether government entities are entitled to First Amendment protection, it is not “out of the question that a municipality could have First Amendment rights.” Upon further examination, however, the court summarized: “Only a few cases address the question whether municipalities or other state subdivisions or agencies have any First Amendment rights. All but one, and that not a case against a municipality, answer ‘no.’ ” Id. Clearly leaning toward the majority, the Seventh Circuit refused to allow a government defendant to assert the First Amendment as a shield against liability:

We do not think that the county could interpose the First Amendment as a defense. Speech by government ... cannot be equated for all purposes to speech by an individual. It remains an official act, and when its purpose and tendency are, as alleged here, to promote discrimination that violates [federal law], so too does the act. A contrary conclusion would permit government to undermine the duties that [federal law] imposes upon it....

Id. at 194 (emphasis added).

The Fifth Circuit has also held that government entities do not have First Amendment rights. See Muir v. Alabama Educational Television Commn., 688 F.2d 1033, 1041 (5th Cir.1982). Addressing whether a public television station could assert the First Amendment as a defense against civil liability, the court concluded,

Under the existing statutes, public licensees such as ... the University of Houston ... possess the same rights and obligations to make free programming decisions as their private counterparts; however, as state instrumentalities, these public licensees are without the protection of the First Amendment.

Id. (Emphasis added). Similarly, after the 1980 split, the Eleventh Circuit followed its predecessor, holding, “[i]ndeed, the First Amendment protects citizens’ speech only from government regulation; government speech itself is not protected by the First Amendment.” NAACP v. Hunt, 891 F.2d 1555, 1564 (11th Cir.1990) (citing to Columbia Broadcasting System, Inc. v. Democratic Natl. Comm., 412 U.S. 94, 139, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Stewart, J., concurring)).

As the Seventh Circuit noted in Creek, one California court has held that government entities and their employees are entitled to limited protection under the First Amendment. In Nadel v. UC Regents, 28 Cal.App.4th 1251, 1259, 34 Cal.Rptr.2d 188 (1994), the court focused heavily on avoiding a legal rule that would “inhibit the vigor and variety of public debate” (citing to New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Employing a makeshift balancing test, the court weighed: (a) the rights of listeners to receive a broad spectrum of viewpoints; (b) the relative vulnerability of individuals suing the government for defamation vs. that of a public figure bringing suit against a non-government entity; and (c) the argument that the First Amendment simply does not afford government any protection. Id. at 1261-67, 34 Cal.Rptr.2d 188. Applying the three prongs of this test to the facts before it, the court concluded that it is “appropriate to extend the limited First Amendment protection of the New York Times standard to government speech, so that government may be held liable for defamation of a public official or public figure only where there is knowledge of falsity or reckless disregard of the truth.” Id. at 1267, 34 Cal.Rptr.2d 188.

Even Nadel, however, does not help Defendants in the present case. Nadel was only a defamation case and as such did not address whether government entities are entitled to First Amendment protection with respect to suits brought under fair housing and anti-discrimination statutes. The opinion includes nothing that counters the Seventh Circuit’s reasoning that a legal rule permitting the government to invoke the First Amendment as an aid to promote discrimination is unacceptable. Moreover, the protection afforded the government defendant in Nadel was modeled after the limited protection established for public officials and public figures in New York Times. Plaintiff Cross, however, is neither a public official nor a public figure. Indeed, the Supreme Court has expressly stated that private individuals are more vulnerable to injury than their counterparts in public life and are therefore entitled to greater protection. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Accordingly, the holding in Nadel is inapposite to this case.

In sum, the Court concludes that neither Defendant City nor Defendant Keagy when acting in his capacity as the City’s agent — as the jury might find that he was — may impose the First Amendment as a defense against the claims brought by Plaintiffs in this action.

VII. Claims Under Federal Fair Housing Law

A. § 3604(a) — Making Housing Otherwise Unavailable

1. Standard

Section 3604(a) provides:

[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 or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

42 U.S.C. § 3604(a) (emphasis added). Plaintiffs’ claims under this provision are based on the phrase, “otherwise make [housing] unavailable.” Cross asserts that Keagy (and therefore, Keag/s principal, the City) made housing otherwise unavailable to her with his October 1, 1998, statements. IMB asserts that the City otherwise made housing unavailable to others' through its support of K-KAPS.

2. Direct Evidence, Indirect Evidence, and the Prima Facie Case

Defendants argue that Plaintiff has failed to establish a prima facie ease of housing discrimination under § 3604(a). In many instances, to establish a prima facie case of housing discrimination, a plaintiff must show that he or she is a member of a protected class who applied for and was qualified to rent housing and who was rejected; Plaintiff must also show that the housing opportunity remained available. Gilligan v. Jamco Development Corp., 108 F.3d 246 (9th Cir.1997). Neither Plaintiff meets this test.

However, Plaintiffs argue that the burden-shifting scheme is inapplicable to the present motion because it applies only in the absence of direct evidence of discrimination. Plaintiffs have presented direct evidence of discrimination in the form of Keagy’s October 1, 1998, statements. As in employment-discrimination cases, a plaintiff in a housing-discrimination case may establish an inference of discrimination and therefore a triable issue of fact through either direct or indirect evidence. See Fair Housing Congress v. Weber, 993 F.Supp. 1286 (C.D.Cal.1997); Texas v. Crest Asset Management, 85 F.Supp.2d 722 (S.D.Tex.2000); U.S. v. Branella, 972 F.Supp. 294 (D.N.J.1997); Coalition of Bedfordr-Stuyvesant Block Assn., Inc. v. Cuomo, 651 F.Supp. 1202 (E.D.N.Y.1987).

Plaintiffs are not required to establish the elements a prima facie case of housing discrimination in this instance. Plaintiffs have presented direct evidence of discrimination, and, in any event, the elements of the prima facie case as cited by Defendants appear to be inapplicable here. The elements of the prima facie case very clearly address themselves to a classic form of housing discrimination — a plaintiff applies for housing and is refused because of race (or other protected status). For example, the plaintiffs in Gilligan, which set forth the elements of the prima facie case outlined above, were prospective tenants who were denied housing based on the landlord’s policy not to rent to those who received benefits from the Aid to Families with Dependent , Children (AFDC) program. The plaintiffs argued that the purpose or effect of the policy was to discriminate against families with children. In contrast, Plaintiffs here base their claims on the provision of § 3604(a) that prohibits making housing otherwise unavailable and the elements of the prima facie case cited by Defendants simply do not address Plaintiffs’ claim. See Trafficante, 409 U.S. at 212, 93 S.Ct. 364 (1972) (a plaintiff need not be the target of discrimination to suffer cognizable injury under the FHA).

3. Plaintiff Cross’s Claim

Plaintiff Cross has provided direct evidence of discrimination, as well as evidence that she subsequently resigned from her resident manager position and moved away from Pomona as a result of Keagy’s statements. This raises a triable issue of fact as to whether Defendants made housing “otherwise unavailable” to Cross.

4. IMB’s Claim

Plaintiffs make four arguments as to why summary judgment is not appropriate as to IMB’s § 3604(a) claim. IMB’s arguments are based on four sections of the HUD regulation that interprets § 3604(a): a) 24 C.F.R. § 100.70(d)(4); b) § 100.70(a); c) § 100.70(c)(1); and d) § 100.70(d)(2). In relevant part, § 100.70 provides:

(a) It shall be unlawful, because of race, color, religion, sex, handicap, familial status, or national origin, to restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood or development.

(c) Prohibited actions under paragraph (a) of this section, which are generally referred to as unlawful steering practices, include, but are not limited to:

(1) Discouraging any person from inspecting, purchasing or renting a dwelling because of race, color, religion, sex, handicap, familial status, or national origin, or because of the race, color, religion, sex, handicap, familial status, or national origin of persons in a community, neighborhood or development.

(d) Prohibited activities relating to dwellings under paragraph (b) of this section include, but are not limited to:

(2) Employing codes or other devices to segregate or reject applicants, purchasers or renters, refusing to take or to show listings of dwellings in certain ar.eas because of race, color, religion, sex, handicap, familial status, or national origin, or refusing to deal with certain brokers or agents because they or one or more of their clients are of a particular race, color, religion, sex, handicap, familial status, or national origin.

(4) Refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.

24 C.F.R. § 100.70. Each of Plaintiffs’ arguments will be addressed in turn.

a)§ 100.70(d)(4)

Plaintiffs argue that there are triable issues of fact as to whether the City provided municipal services differently because of race. Plaintiffs point to evidence of the City’s involvement with the K-KAPS landlord association in support of this argument. Specifically, Plaintiffs note that the City sponsored a landlord screening service limited only to landlords in the K-KAPS area—an area that is comprised of mostly minority residents. Plaintiffs also point to evidence that the City permitted landlords to review police booking photographs and offered advice on how better to screen prospective tenants in this area. Plaintiffs also note that the City distributed the “wish well” list for use by K-KAPS members and recommended the services of a private security force that was known to the Pomona Police Department for its unlawful conduct. The evidence of record raises an inference that the City provided different services to the K-KAPS area. Because the K-KAPS area is inhabited by predominately minority residents and because the evidence in this case raises a triable issue of fact as to whether Keagy acted in a discriminatory manner, the Court concludes that Plaintiffs have raised a triable issue of fact as to whether the City provided municipal services differently because of race.

b) § 100.70(a)

Plaintiffs argue that there is a triable issue of fact as to whether the City restricted or attempted to restrict a person’s choices in connection with renting a dwelling in a community, neighborhood or development. For the same reasons noted in the previous section as to § 100.70(d)(4), Plaintiffs have raised a triable issue of fact under § 100.70(a) as well.

c) § 100.70(c)(1)

Plaintiffs also argue that the City discouraged individuals from renting a dwelling because of both race and familial status by reporting to the police the identities of children residing in the K-KAPS neighborhood. The identification of the children residing in the K-KAPS neighborhood was done ostensibly to assist the police in enforcing truancy laws. For the reasons discussed above in connection with § 100.70(d)(4), Plaintiffs have also raised a triable issue of fact under § 100.70(c)(1).

d) § 100.70(d)(2)

Finally, Plaintiffs argue that Defendants employed codes or other devices to segregate or reject applicants, purchasers or renters. Plaintiffs have presented evidence that K-KAPS maintained a “wish well” list of former tenants who have been evicted from K-KAPS property. The list was denominated the “wish well” list because landlords were to wish well those on the list, rather than rent apartments to them. In addition to the names of individuals who had been evicted, the list also bore the names of persons whom Keagy deemed to be “problem” or “undesirable” tenants. Keagy was asked at his deposition regarding the “problem” or “undesirable” tenants. At one point, Keagy stated: “It’s not my fault that at the time the majority of the problems were caused by African-Americans.” Plaintiffs have raised a triable issue of fact regarding whether this list is a “code or other device” used to reject potential renters.

5. Defendants’ Arguments

a) Scope of § 8604(a)

In response to IMB’s arguments, Defendants note that otherwise making housing unavailable does not reach every act that might conceivably affect the availability of housing. Defendants cite a number of cases that support the proposition that not every act affecting the availability of housing is actionable. See Jersey Heights Neighborhood Assn. v. Glendening, 174 F.3d 180 (4th Cir.1999) (holding that State’s decision in selecting location for new highway through predominately African-American neighborhood did not “otherwise make [housing] unavailable”); Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 929 F.2d 714 (D.C.Cir.1991) (holding that elevator company’s refusal to service elevators in buildings in predominantly African-American neighborhood did not “otherwise make [housing] unavailable”); Edwards v. Johnston County Health Dept., 885 F.2d 1215 (4th Cir.1989) (holding that county’s actions in issuing permits for establishment of substandard housing for predominately non-white migrant farm workers did not “otherwise make [housing] unavailable”); Mackey v. Nationwide Ins. Cos., 724 F.2d 419 (4th Cir.1984) (holding that an insurer’s refusal to underwrite hazard insurance in a predominately African-American neighborhood did not “otherwise make [housing] unavailable”); Southend Neighborhood Improvement Assn. v. County of St. Clair, 743 F.2d 1207 (7th Cir.1984) (holding that county’s discriminatory maintenance of property purchased by tax deed, which resulted in reduced property value of surrounding homes, was not actionable under § 3604(a)). However, the City’s conduct at issue in this action — tenant screening — is more closely related to, and therefore has a greater effect on, the availability of housing than the conduct at issue in the cases cited by Defendant.

b) Racial Steering

Defendant Keagy also unpersuasively argues that Plaintiffs have not, as required by § 3604(a), raised a triable issue of fact that racial steering occurred. Although Keagy provided substantially the same basic information to both testers, his treatment of the two women was significantly different. Indeed, Keagy provided the African-American tester with certain information that he withheld from the Caucasian tester, and vice-versa.

The information provided LH, the African-American woman, tended to suggest that the apartment was less desirable than it might appear without such information. For example, Keagy told LH that even though the landlords were working to better the neighborhood, the area was still not the best place in which to live. Keagy also described the area as a rough neighborhood, explaining that there had been a murder just down the street, and that the subsequent retaliation for that murder had resulted in a car fire.

Conversely, the information Keagy provided to RR, the Caucasian tester, but withheld from LH, tended to suggest that the apartment was more desirable than it might appear, absent such information. For example, contrary to what he told LH, Keagy informed RR that while the neighborhood might have been bad five years before, he and the other landlords, as well as the City Council, had worked together to keep the “undesirables” away, thereby improving the living atmosphere of the neighborhood. Keagy also informed RR that when landlords have “bad tenants,” they make sure other landlords know about it.

Because the Caucasian tester was provided with information that suggested the apartment was more desirable than was suggested to the African-American tester, the tester evidence presented by Plaintiffs establishes a triable issue of fact regarding racial steering.

c) Continuing Violation

Defendants also argue that IMB’s evidence prior to October 1, 1997, two years before this action’s filing date, is barred by the statute of limitations. IMB argues that the continuing violation doctrine applies, and that the Court may consider all of its evidence. Defendants counter that the continuing violation doctrine does not apply when the discriminatory nature of the act