FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA MCDONALD; KANYA 

COLEMAN,

Plaintiffs-Appellants, No. 06-16563

v. D.C. No.

COLDWELL BANKER, Coldwell  CV-03-03598-JL

Banker Real Estate Corporation OPINION FIRST SHASTA REALTY; THOMAS

GALLAGHER; RICHARD MATTIOLI,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

James Larson, Magistrate Judge, Presiding

Argued and Submitted

May 15, 2008—San Francisco, California

Filed September 10, 2008

Before: Diarmuid F. O’Scannlain and

Michael Daly Hawkins, Circuit Judges, and James V. Selna,*

District Judge.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Hawkins

*The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation. 

12653
COUNSEL

Steven J. Mehlman, Mehlman & TerBeek LLP, Walnut

Creek, California, argued the cause for the plaintiffsappellants and filed briefs; Marc L. Terbeek, and Timothy A.

Walker, Mehlman & TerBeek LLP, Walnut Creek, California,

were on the briefs. 

Malcom Sher, Sher & Minnard LLP, Walnut Creek, California, and John A. Schwimmer, Sussman Shank LLP, Portland,

Oregon, argued the cause for the defendants-appellees and

filed briefs; Carla V. Minnard, Sher & Minnard LLP, Walnut

Creek, Califoria, was on the First Shasta, Gallagher & Mattioli brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a potential home buyer has established a prima facie claim for discrimination against the sell12656 MCDONALD v. COLDWELL BANKER
er’s listing agents, under various federal and state statutes, for

a rejected offer where she and they were of different races.

I

Pamela McDonald, an African-American, sought to buy a

house in the Shasta-Redding, California area for herself and

her children in 2002. Her real estate agent Kanya Coleman,

also an African-American, contacted First Shasta Real Estate

(“First Shasta”), a franchisee of Coldwell Banker Real Estate

(“Coldwell”), and spoke with First Shasta agent Tom Gallagher, a Caucasian, over the phone. They planned to meet to

view homes for sale. Prior to the meeting with Gallagher,

Coleman prepared a pre-approval letter on her stationery confirming that McDonald qualified for a real estate loan of up

to $180,000. The approval was “subject to an acceptable

appraisal at or above the purchase price . . . .” McDonald’s

monthly income was approximately $3,000 and she had cash

on hand in the amount of $20,000. 

On August 2, 2002, Coleman and McDonald met with Gallagher for the first time. According to both Coleman and

McDonald, Gallagher did not express the same enthusiasm he

had when speaking to Coleman on the phone. Gallagher

showed McDonald a number of listings, including the 2075

Galaxy Way property at issue in this case. After viewing that

house, Coleman and McDonald claim that Gallagher offered

to show them additional properties that he believed might be

more “suitable” for McDonald and her family, but the properties were “less upscale.” However, it is undisputed that Coleman, alone, picked out the houses McDonald looked at. 

McDonald particularly liked the Galaxy Way property,

which had been listed for sale at $139,000 for over six weeks

and Coleman drew up an offer. Coleman told Gallagher and

his broker, Richard Mattioli, also Caucasian, that her client

needed to finance one hundred percent of the purchase price,

but in return she was willing to offer more money than the

MCDONALD v. COLDWELL BANKER 12657
seller was asking. McDonald tendered a $1,000 good faith

deposit. 

While Coleman was drafting the offer McDonald claims

that Gallagher, noting her use of a walking cane, inquired

about how she “became disabled” and the demographics of

where she lived. 

McDonald’s initial offer on the property was for a purchase

price of $153,890, of which $138,501 would be paid directly

to Moore (funded by a pre-approved loan and a $1,000

deposit by McDonald) and $15,389 would be carried by

Moore (secured by a second deed of trust). The offer provided

that McDonald would receive a $4,500 credit at closing. Gallagher and Mattioli experienced doubts about the proposal.

They had not done seller carrybacks for years and felt it was

not necessary in their market.1 They decided to talk it over

with the seller’s agent, David Woodfill, a Caucasian, to see if

he thought the offer was worth presenting to his client, Glenn

Moore, a Caucasian, the owner and seller of the Galaxy Way

property. Woodfill said Moore wanted all cash and was not

interested in “carrying paper.” Both Woodfill and Moore were

also concerned that the McDonald offer would not close

escrow because the property would not appraise for more than

ten percent above the listing price. Woodfill told Gallagher

and Mattioli that the McDonald offer would be unacceptable

to Moore, so they did not present it to Woodfill or Moore in

written form. In any event, Coleman faxed the offer to Woodfill without modification, despite having been told that Moore

would not accept the carryback provision. A few days later,

Moore accepted another offer, with no carryback and no

refund of closing costs, at slightly less than the asking price.

The ultimate buyer, John Randall Donoghue, was Caucasian.

1Contrary to the assertions of the dissent, there is no evidence in the

record to support its contention that a seller carryback is a “condition common to residential real estate transactions,” especially with respect to the

real estate market at issue here. Dissent at 12665. 

12658 MCDONALD v. COLDWELL BANKER
McDonald filed a complaint against Gallagher, Mattioli,

Shasta and Coldwell Banker (collectively “listing agents”),

but not against Woodfill or Moore himself, with the California Department of Fair Employment and Housing (“DFEH”),

which found no evidence of discrimination. Its letter of July

2004 stated: 

“Based on the evidence obtained during the investigation,

the DFEH has determined that reasonable cause does not exist

to believe that a discriminatory housing practice has

occurred.” 

The U.S. Department of Housing and Urban Development

(“HUD”) through its Office of Fair Housing and Equal

Opportunity, adopted the decision of the DFEH and notified

McDonald that under the provisions of the federal Fair Housing Act, she had two years after the occurrence or termination

of the alleged discriminatory housing practice to file suit in

federal court. This time limit was tolled during HUD’s investigation. 

McDonald filed her federal lawsuit against the listing

agents for housing discrimination on the basis of race and disability.2

 She asserted claims under California’s Fair Employment and Housing Act (“FEHA”), California’s Unruh Act

(“Unruh Act”), and the federal Fair Housing Act (“FHA”).

Coleman, as McDonald’s real estate agent, sued the listing

agents under California Business and Professions Code

§ 17200, for the commission she lost as a result of the lost

sale of the property. 

The district court granted summary judgment in favor of

the listing agents on all the claims.

2

In her claims before the DFEH and HUD she also alleged discrimination on the basis of marital and familial status, but dropped those claims

in her federal lawsuit. 

MCDONALD v. COLDWELL BANKER 12659
II

A

[1] A prima facie case is established under the FEHA

where the plaintiff shows that she is a member of a protected

class, that she applied and was qualified for a housing accommodation, was denied such housing accommodation, and that

similarly situated individuals not in a protected class applied

for and obtained housing, or if “[she] provide[s] other circumstantial evidence of discriminatory motive in refusing her the

housing accommodation.” Dep’t of Fair Employment and

Hous. v. Superior Court, 99 Cal. App. 4th 896, 902 (Ct. App.

2002) (citing Gamble v. City of Escondido, 104 F.3d 300,

304-05 (9th Cir. 1997)). A “qualified” purchaser is one who

meets the terms of the seller. See Mitchell v. Shane, 350 F.3d

39, 47-48 (2d Cir. 2003). 

In Mitchell, the potential buyer made an offer that required

90 percent financing, which the seller rejected, expressing a

desire to have at most 80 percent financing. Id. at 48. In

response, the potential buyer dropped the financing to 80 percent. Therefore, because the potential buyer met the terms of

the seller, the buyer was “qualified.” Id.

[2] Here, the undisputed fact is that the seller refused to

engage in a seller carryback provision. Indeed, the basis of

this refusal was communicated to Coleman, who nevertheless

transmitted the offer in writing, unchanged, to the seller’s

agent, Woodfill. Because neither Coleman nor McDonald

attempted to meet the terms of the seller, they cannot be considered “qualified” for purposes of establishing a prima facie

case. Moreover, because the McDonald offer included a seller

carryback provision notwithstanding a purchase price ten percent above the list price, she cannot say that she was “similarly situated” to the person who eventually purchased the

house for just under the list price amount. In other words,

Coleman and McDonald have not produced any evidence to

12660 MCDONALD v. COLDWELL BANKER
create a genuine issue of material fact regarding whether or

not they met the terms of the seller or whether the terms were

similar to those met by the ultimate buyer.3

Despite not being similarly situated to the ultimate buyer,

McDonald could also try to establish that there is “circumstantial evidence of discriminatory motive in refusing her the

housing accommodation.” Dep’t of Fair Employment and

Hous., 99 Cal. App. 4th at 902. A discriminatory motive

under the FEHA has been defined as something that “moves

the will and induces action.” Caldwell v. Paramount Unified

Sch. Dist., 41 Cal. App. 4th 189, 199 (Ct. App. 1995). 

[3] However, despite allegations of awkwardness or lack of

enthusiasm, neither Coleman nor McDonald has produced any

evidence that Gallagher or Mattioli disparaged Coleman or

McDonald on account of their race or that Gallagher or Mattioli treated only African-American or disabled individuals

the way they treated McDonald. Most significantly, there has

been no evidence presented by either Coleman or McDonald

that the ultimate buyer in this case was aided by or was a customer of Gallagher or Mattioli. In other words, there is no evidence that any of the listing agents acted with the intent to

3The dissent attempts to create doubt about whether or not the seller or

the seller’s agent understood that the offer was for $153,890. Dissent at

12665-66. However, there is no doubt that the offer was understood at the

time it was made. Indeed, the size of the McDonald offer is one of the reasons that her’s and Donoghue’s offers cannot be considered similarly situated. McDonald’s loan was contingent on her purchasing the house for the

fair market value or less; Woodfill, and Moore, were concerned that her

offer was too large and would not close escrow because the property

would not appraise for more than her offer. Curiously, the dissent does not

give any meaningful discussion of either McDonald’s mortgage loan preapproval or the prospects of closing escrow, elements of great importance

when determining whether dueling offers with respect to a real estate

transaction are similarly situated. 

MCDONALD v. COLDWELL BANKER 12661
secure the purchase of the house by a person who is of a different race than McDonald.4

[4] Because Coleman and McDonald have failed to produce

any evidence establishing that McDonald was “qualified,”

“similarly situated” or that Gallagher or Mattioli had a “discriminatory motive”

5

 they cannot establish a prima facie case

under FEHA based on either race or disability.6

4The fact that the ultimate buyer and McDonald are of different races

is not enough to establish a prima facie case of discrimination where there

is no evidence that both of them are clients of the same listing agents.

Without discriminatory, or at the very least, different treatment of two

buyers by the listing agents there can be no foundation for a claim of discrimination. See Dep’t of Fair Employment & Hous., 99 Cal. App. 4th at

902. The dissent’s contrary position, without any citation to legal precedent, would create a prima facie case of discrimination whenever the parties to the litigation are of a different race. Dissent at 12670. 

5The Unruh Civil Rights Act is codified at California Civil Code § 51

and provides that “no matter what their sex, race, color, religion, ancestry,

national origin, disability, medical condition, marital status, or sexual orientation [all persons] are entitled to the full and equal accommodations,

advantages, facilities, privileges, or services in all business establishments

of every kind whatsoever.” Cal. Civ. Code § 51(b). Since there is no evidence of discrimination against McDonald, her Unruh Act claims fail.

Because Coleman’s Unruh Act claim rests on McDonald’s Unruh Act discrimination claim, the lack of any evidence of discrimination is fatal to

that claim as well. See Jackson v. Superior Court, 30 Cal. App. 4th 936,

941(1994) (holding that an African-American investment advisor who

accompanied two clients into a bank could assert a § 51 claim alleging discrimination against the bank based on discrimination directed at his client,

even though the advisor was not an actual customer of the bank). 

6

It should be noted that McDonald, who asserts disability by virtue of

her use of a walking cane, has not produced any evidence of being disabled within the meaning of the Unruh Act, which requires any “physiological disease, disorder, condition, cosmetic disfigurement, or anatomical

loss that does both of the following: (A) [a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, . . .

and (B) [l]imits a major life activity.” See Cal. Gov. Code § 12926

(k)(1)(A)-(B) (emphasis added). The only evidence of disability presented

by McDonald is that she uses a cane; this, alone, does not establish that

a “major life activity” has been limited. See 42 U.S.C. § 12102; see also

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-66 (1999) (holding

that to be “disabled” under the Americans with Disability Act (“ADA”)

one must have “limitations that are in fact substantial” and because every

determination of whether an individual is disabled is “case-by-case,” particularized evidence is needed). 

12662 MCDONALD v. COLDWELL BANKER
B

With respect to the FHA claim, the standard of proof and

analysis applied in a disparate treatment case are the same as

those applied in a FEHA case.7See Gamble, 104 F.3d at 305.

The plaintiff must first establish a prima facie case by showing: (1) she is a member of a protected class; (2) she applied

for a house and was qualified to buy it; (3) the home sale was

denied despite her being qualified; and (4) defendant

approved a home sale for a similarly situated party during a

period relatively near the time plaintiff was denied the house.

Id.

[5] For the reasons discussed in the FEHA claim analysis

(1) McDonald was not a qualified buyer within the meaning

of the FHA; and (2) McDonald was not similarly situated to

the party who purchased the home. Thus, McDonald failed to

establish a prima facie FHA claim.

C

Coleman’s unfair competition claim is based on California

Business and Professions Code § 17200, which states that

“unfair competition shall mean and include any unlawful,

unfair or fraudulent business act or practice . . . .” Cal. Bus.

& Prof. Code § 17200. Because neither Coleman nor McDon7Under FHA, a party can bring either a disparate impact or a disparate

treatment cause of action. Gamble, 104 F.3d at 304-05. Disparate treatment requires some showing of discriminatory intent on the part of the

defendants, whereas to support a disparate impact claim a plaintiff must

establish “ ‘(1) the occurrence of certain outwardly neutral practices, and

(2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.’ ” Id. at 306 (quoting Pfaff v. United States Dep’t of Hous. & Urban

Dev., 88 F.3d 739, 745 (9th Cir. 1996)). Here, neither Colman nor

McDonald have produced any evidence indicating that the facially neutral

actions of the defendants have produced a disproportionate impact on

African-American or disabled individuals. 

MCDONALD v. COLDWELL BANKER 12663
ald has produced any evidence of fraud or illegal activity, in

order to prevail, Coleman must establish that Gallagher and

Mattioli acted unfairly towards her or McDonald. 

[6] An unfair business practice is one that either “offends

an established public policy” or is “immoral, unethical,

oppressive, unscrupulous or substantially injurious to consumers.” People v. Casa Blanca Convalescent Homes, Inc.,

159 Cal. App. 3d 509, 530 (Ct. App. 1984), abrogated on

other grounds Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 186-87 & n.12 (1999). 

[7] Coleman mainly rests her § 17200 claim on alleged discrimination by Gallagher and Mattioli; however, as mentioned

above, there is no evidence which would allow a reasonable

jury to return a verdict in her favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Futhermore, despite

Coleman and McDonald’s characterization of the listing

agents’ actions, they offer no factual evidence upon which a

reasonable jury could return a verdict for them finding that a

failure physically to convey McDonald’s offer was “immoral,

unethical, oppressive or unscrupulous.” Casa Blanca Convalescent Homes, Inc., 159 Cal. App. 3d at 530.

D

Finally, we turn to the question of whether Coldwell

Banker can be held liable under a principal/agent theory. 

[8] Generally, a finding of vicarious liability is determined

by traditional common law principles. Meyer v. Holley, 537

U.S. 280, 282 (2003). Because there is no evidence of illegal

conduct on the part of Gallagher, Mattioli or First Shasta,

there is no conduct for which Coldwell could be held vicariously liable.

III

The district court’s grant of summary judgment in favor of

the listing agents on all claims is 

12664 MCDONALD v. COLDWELL BANKER
AFFIRMED.

HAWKINS, Circuit Judge, concurring in part, and dissenting

in part: 

Pamela McDonald (“McDonald”), an African-American

woman seeking to relocate to a predominately white community in another city, asks Kanya Coleman (“Coleman”), her

African-American real estate agent, to present an offer on a

residential property for sale in that community. Coleman testified, and defendants do not suggest otherwise, that McDonald

was pre-approved for $180,000 financing. Indeed, McDonald

had a steady income of $3,000 per month, in addition to

$20,000 in additional funds on hand. Working through a real

estate agency in the community where the property is located,

they present an offer. The offer is above the asking price, but

contains a condition common to residential real estate transactions: that the bulk of the purchase price be funded with a preapproved mortgage and the remainder with a comparatively

small carry-back loan from the seller to the buyer. 

The seller, apparently thinking that the carry-back condition requires him to pay the buyer money, declines the offer.

The local agents never explain to the seller or his agent that

the carry-back is in fact additional money to be paid to him

over time, with market rate interest and secured by the property itself. Instead, without ever consulting McDonald or

Coleman, they withdraw the offer. Later, the property is sold

to a non-minority buyer for a price less than the McDonald

offer—in fact, less than that offer even excluding the carryback. When the terms of the McDonald offer are presented to

the seller at his deposition, he finds it acceptable and reasonable and testified he would have followed up on it. When

Coleman described the offer to the seller’s agent, he was puzzled why the fully-explained offer—which he considers a

MCDONALD v. COLDWELL BANKER 12665
“good one”—was not submitted to the seller for his consideration. 

The majority looks at these facts and concludes it was

appropriate to award the local agents summary judgment on

the grounds that McDonald was not a “qualified buyer”

because she refused to “meet the seller’s terms.” While my

reading of the record is quite different with respect to such

matters as the actual terms of McDonald’s offer, the seller’s

terms, and McDonald’s efforts to adjust her offer, these are

fact intensive questions that are wholly inappropriate for resolution on summary judgment. McDonald is entitled to a jury

trial to determine whether the actions of the local agents were

the result of discriminatory motives or mere bumbling miscommunication. 

In reviewing a summary judgment grant, our task is to

“view the evidence . . . in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of

that party,” Bank of New York v. Fremont General Corp., 523

F.3d 902, 909 (9th Cir. 2008), and then decide whether a

“genuine issue as to any material fact” precludes summary

judgment. Porter v. California Dep’t of Corr., 419 F.3d 885,

891 (9th Cir.2005). Contrary to this duty, the majority has

drawn numerous inferences in favor of the defendants, and

has recast disputed material facts as “undisputed.” 

The majority first fails to recognize that McDonald’s offer

is at least equivalent to the ultimate purchase price. In fact,

her offer amounted to at least $138,501 up-front, minus only

the closing costs.1 Donoghue, the ultimate buyer, prepared an

1The total of $138,501 is the amount reflected in McDonald’s written

offer, which is in the record. The closing costs associated with the

McDonald offer amounted to $4,500 (to be forwarded by the seller); it is

unclear what the total closing costs were for the Donoghue transaction.

Although it is true, as the majority states, that the Donoghue offer did not

include a “refund of closing costs,” the Donoghue offer required the seller

12666 MCDONALD v. COLDWELL BANKER
initial offer of $134,000, minus 50% of the closing costs.

Donoghue ultimately purchased the property for $138,000

(again, minus the seller’s 50% share of the closing costs).

However one slices it, McDonald’s offer surpassed Donoghue’s first offer and was at least equivalent to the ultimate

selling price. The alleged defect in the McDonald offer is that

the offer included an additional amount over the $138,501: a

“carryback” of $15,389, which McDonald proposed would be

carried by the seller and secured by a second deed of trust.2

But even if we assume that the seller was completely unwilling to do any financing, McDonald’s offer was still equivalent

to the ultimate selling price. 

After ignoring the actual terms of the McDonald offer, the

majority states that the seller “refused to engage in a seller

carryback provision” and that “neither Coleman nor McDonald attempted to meet the terms of the seller.” By my reading,

these statements are flatly contradicted by the record. 

In concluding that the seller “refused to engage in a seller

carryback provision,” the majority contradicts the seller’s own

testimony. In fact, the seller’s “refusal” to accept a carryback

was based on his misunderstanding of what was on the table.

The seller apparently believed that the $15,389 carryback was

to be deducted from the $138,501 rather than added to it, and

he was not interested in doing that: 

to pay half the closing costs, while the McDonald offer contemplated that

the seller would finance the closing costs but would be repaid pursuant to

the carryback provision. At any rate, no one is arguing that whatever slight

discrepancy there may have been between the closing costs rendered

McDonald unqualified. 

2Although there was some question as to whether the property would

appraise for $153,890, this is a disputed question of fact. At any rate, the

property apparently appraised for $138,000, since this is the amount at

which the property was sold, and McDonald offered that amount up front.

MCDONALD v. COLDWELL BANKER 12667
My understanding was, that we got a full asking

price, and $15,000 had to be carried back out of that

amount. I was not told 153 and 15 out of that; so I

don’t know what that’s going to do to the case, but

that — I mean I’m not stupid. If I get my money,

plus 15,000 in payments . . . I remember full price,

15 carry back. That’s all he said, and I said no. I

can’t afford to take 15 back. 

In response to a deposition question describing the essentials of the McDonald offer,3

 the seller testified that he would

have considered such an offer both reasonable and acceptable,

and would have wanted to follow up on it. Coleman stated

that when she called the seller’s agent and described the

McDonald offer, he was puzzled why such a good offer was

not submitted to the seller. 

Viewing this evidence, as we must, in the light most favorable to McDonald and Coleman, the seller did not “refuse[ ]

to engage in a seller carryback provision,” but rather was simply confused as to its meaning. The evidence suggests that,

had the seller understood that the “carryback” was $15,389

above and beyond the $138,501 cash portion of the offer, he

would have considered the offer. 

Even if the seller did have some aversion to receiving an

additional $15,389 through a carryback, there is no evidence

that Coleman and McDonald failed to “attempt[ ] to meet”

such a term. In fact, Coleman testified that she tried to speak

to local agent Mattioli about submitting a revised offer but he

became “hostile.”

4

3The hypothetical offer was described as $137,501 up-front plus a

secured note for an additional $15,389 (at 10% interest), with $4,500 credited back to non-recurring closing costs. This appears to be exactly the

McDonald-Coleman offer, only absent the additional $1,000 deposit. 

4Mattioli himself admitted to hanging up on Coleman. 

12668 MCDONALD v. COLDWELL BANKER
In addition, Woodfill, the seller’s agent, testified that he

doesn’t recall local agent Gallagher going over the terms of

McDonald’s offer with him, but received a call from First

Shasta (Gallagher’s and Mattioli’s office) that the offer had

been withdrawn. Coleman in fact later submitted a written

copy of the offer to Woodfill, but this was after Woodfill was

told that the offer had been withdrawn. Woodfill testified that

it would not have been his policy to resurrect an offer that was

being withdrawn. 

There is no evidence in the record that either McDonald or

Coleman ever authorized defendants to withdraw the offer or

that defendants ever advised McDonald or Coleman to make

a revised offer. Nor is there anything in the record to suggest

McDonald would have been unwilling to remove the carryback portion of her offer—there is no reason that she would

insist on taking out a $15,389 loan from the seller if she were

aware that the seller would be content to accept only the

$138,000 up front. There is no indication that McDonald was

unwilling to meet the seller’s terms. Again, McDonald’s offer

was almost identical to the offer that was accepted—differing

only in the additional $15,389 McDonald offered to pay by

way of carryback. 

In spite of this record, the majority manages to conclude

that “Coleman and McDonald have not produced any evidence to create a genuine issue of material fact regarding

whether or not they met the terms of the seller or that they

were similarly situated to the ultimate buyer.” Summary judgment review does not permit us to pick and choose facts. The

facts of record are clear: McDonald produced a wealth of evidence, including McDonald’s written offer, Donoghue’s first

and second offers, Coleman’s testimony, Woodfill’s testimony, and the seller’s testimony—all of which tend to show

that McDonald was both willing and able to make an acceptable offer. 

MCDONALD v. COLDWELL BANKER 12669
Having produced that evidence, plaintiffs established a

prima facie case, since it is undisputed that Coleman and

McDonald are members of a protected class and Donoghue,

the ultimate buyer, is not. All that is necessary at this stage of

the litigation is that McDonald demonstrate that she is a qualified buyer who was treated differently from a non-minority

buyer. This she has done.5 Because plaintiffs established a

prima facie case under FEHA, their unfair competition claim

also survives summary judgment, since California Business

and Professions Code § 17200 prohibits “unlawful” business

acts and practices.6

Today the majority holds that the evidence McDonald and

Coleman produced is insufficient as a matter of law to establish a prima facie case under FEHA. The unfortunate result is

that a minority buyer who produces both documentary evidence and record testimony that her offer was equivalent to a

non-minority buyer’s offer can still be denied access to the

trier of fact. If this evidence is insufficient, it is difficult to see

what would be sufficient, short of a defendant’s under-oath

admission that the plaintiff was qualified and was nevertheless purposefully discriminated against. No defendant will

ever make such an admission — which is precisely why the

prima facie burden-shifting framework exists. The troubling

and hard to explain result here is certain to leave many minority buyers without a remedy. 

5The summary judgment grant could, of course, also be upheld if defendants presented a “legitimate reason” for the discrepancy, but the “legitimate reason” proffered is only that the seller was unwilling to engage in

any carryback, which (as discussed) Coleman and McDonald have sufficiently disputed. 

6Because I agree that plaintiffs have failed to show that First Shasta is

either an agent or ostensible agent of Coldwell Banker, I would affirm as

to the summary judgment grant in favor of Coldwell Banker. 

12670 MCDONALD v. COLDWELL BANKER