Two men living with HIV/AIDS who claimed they werediscriminated against when evicted via the Ellis Act have had their case closedby the California Department of Fair Employment and Housing following a lengthyinvestigation.

The ruling was the third against the pair, who also hadfiled suit in San Francisco Superior Court and filed a complaint with the HumanRights Commission.

James Girard and Brent Gaddy had contacted the Bay AreaReporter in July and said that theireviction was "unfair and another sign of the changing demographics of theCastro, the challenges faced by the disabled, and the lengths some people willtake to displace tenants from their home."

But the new owners of the building say the men have beenunreasonable with their demands and have bent over backward to make theirtransition a reasonable one.

The case illustrates the complexity of tenancy in commonsales, and the use of the Ellis Act in evicting tenants once a building hasbeen sold as a TIC.

"The San Francisco Superior Court and the San FranciscoHuman Rights Commission rejected Gaddy's and Girard's allegations earlier thisyear, and now the state of California's fair housing department has done thesame. That's three-strikes-and-you're-out for their outrageous claims ofdisability discrimination in this case," said Todd Robins, one of the newowners of the building that the two had lived in.

But Girard countered, "We have both felt that it was atravesty, based primarily in greed and disrespect. I think if more people knewjust how the Ellis Act was abused for landlord greed, how the current climateof overpriced housing affects all of us, they'd be more vocal in their callsfor reform."

Susan Sheftel, acting district administrator with the DFEH,stated in an August 31 letter that the agency was closing the case brought byGirard and Gaddy. The agency was unable to conclude that information obtainedduring its investigation "establishes a violation of the statute."

Girard, 39, and his partner, Gaddy, 53, say their evictionexperience adversely effected both their health and their relationship witheach other.

The couple said they first received notice last summer fromthe new owners of the building in which they lived of their intent to removethe property on the 600 block of Castro from the rental market.

"We had lived in the flat for a little over a year atthe time the current owners bought the building," said Girard. "Theprior landlords had pleaded with us to break our lease so that they could sellthe building untenanted, engaging in several aggressive and harassing acts whenwe didn't immediately agree."

A few weeks after the initial notice by the new owners, thetwo say they were told they had 120 days to move out, or to prove theirdisabled status, which they eventually did. Documented disability status wouldentitle them up to a year to move under the Ellis Act provisions.

"When the new landlords moved in, we were given veryshort notice and almost no negotiation before we were served with the 120-daynotice for the Ellis eviction," said Girard.

Robins, who purchased the upstairs flat, and Tim Zambelli, agay man who bought the flat occupied by Girard and Gaddy, said the two had beenliving in the unit for only 11 months. Gaddy said they were paying $2,875 permonth in rent.

Zambelli said that an initial relocation offer of about$12,000 was later increased to $25,000 in cash and 1.5 months rent waiver thattotaled $29,364. That was rejected.

William Weisberg, the attorney representing Girard and Gaddyin June 2005, initially proposed a counteroffer of $85,000 plus free rent,according to a June 6, 2005 letter. On June 22, 2005, Weisberg responded with aproposal of $75,000 plus free rent. Zambelli rejected it.

In late August 2005, Girard and Gaddy say they received aportion of the relocation payment due to disabled persons under Ellis Actprovisions. Ultimately, Girard and Gaddy received a total of $15,000, as requiredunder the Ellis Act.

About a month later they were told by the new owners theywould not be receiving the additional extension of time allocated to thedisabled because they "had not specifically asked for it," accordingto Girard and Gaddy.

In November 2005, Girard and Gaddy say they received anunlawful detainer notice that had been filed in court by the attorneyrepresenting the new owners.

But there is more to the story, as the new owners say theyhad no recourse but to use the Ellis Act to gain possession of the propertythey had paid for.

Robins said, "Although this was a run-of-the-mill ownermove-in eviction, we were forced to use the Ellis Act because a San Franciscojudge ruled last year that the city's owner move-in eviction provision is notavailable to an individual owner who owns less than 50 percent of the entirebuilding."

"When the 120-day notice period [under the Ellis Act]expired in November 2005 and the tenants refused to move out, we filed anunlawful detainer action. Tenants claimed they were entitled to a one-yearextension (under the SF rent ordinance) on grounds of disability, even thoughthey had not expressly requested an extension," said Robins.

The men also alleged discrimination. A San FranciscoSuperior Court judge rejected discrimination allegations, but held that tenantswere entitled to an extension, Robins said.

Robins said, "On November 14, 2005, our unlawfuldetainer case was filed in SF Superior Court. On November 17, 2005, Gaddy andGirard filed their answer to the complaint, asserting as a defense, among otherthings, that we were 'arbitrarily discriminating' against them 'because ofsexual orientation, HIV status and/or disabilities.'"

At the hearing before Superior Court Judge James Warren on December29, 2005, the judge was skeptical of the new owners' argument that the tenantshad failed to follow the proper procedures for obtaining a one-year extensionunder the Ellis Act. But he "expressly rejected the allegations thatdiscrimination played any role in this case," Robins said.

Despite the judge's ruling that the couple did not have torequest an extension due to their disability and the landlords' eventualdropping of the unlawful detainer suit, the action had been registered with thecourt for more than 60 days. Because of that, the unlawful detainer is now apart of the men's rental record permanently, making it nearly impossible forthem to rent in San Francisco, they say.

Although Girard and Gaddy have now successfully relocated,the men said no agreeable settlement terms have been offered to compensate themfor the time, stress, and expense of defending themselves during the evictionprocess.

Girard and Gaddy said an initial, potential settlementasking the landlords to make a donation to an AIDS or eviction defense charitywas at first acceptable. But when the two requested that the donation be madein their names, the landlords refused the settlement.

"[The] tenants voluntarily moved out in April 2006, threemonths before their Ellis Act extension expired. At around the same time, theyfiled discrimination complaints with the state Department of Fair Employmentand Housing claiming that we allegedly denied their request for an extensionand that constituted disability discrimination," Robins said.

"The DFEH investigator assigned to the case soonproposed a settlement whereby the owners would make a modest contribution to anHIV/AIDS related charity in the tenants' name and the tenants would release allclaims. We were willing to agree to the proposal without accepting any fault,but the tenants refused - again demanding $75,000 for themselves,"Robins said.

Girard said that the owners did not agree to make thedonation in their names and asked for $75,000 for each of them, plus a $20,000donation to an AIDS charity.

Girard, who has lived in San Francisco for some time and isa native of San Rafael, was first diagnosed with HIV in 1996. He and Gaddy,also diagnosed with HIV, have been partnered for over four years. Theyregistered as domestic partners at City Hall as soon as they returned toCalifornia in 2004 after meeting in Ft. Lauderdale where they both had livedfor a short time.

Girard said a recent downturn in his health has meant justrecently he began taking an anti-HIV cocktail. "I cannot begin to tell youthe concerns I have of how that overriding, daily stress has affected my immunesystem," he said.

The couple currently is contacting attorneys and plans tofile a lawsuit alleging unlawful eviction, and related health and emotionaldistress charges against the owners of their former residence.

But the new owners say they are, and have always been,sympathetic to people living with HIV/AIDS, and indicate that Gaddy and Girardmay have brought on their own stressful situation when they turned down agenerous offer of a settlement.

"We have always been sympathetic regarding the healthconditions of our former tenants," Zambelli told the B.A.R. "All of us have friends or loved ones who havebeen affected by HIV/AIDS. I offered a very generous relocation settlement fromthe beginning so that all of us could avoid the stress of an eviction. Theirrefusal to accept anything less than an extortionary sum to move out is theonly reason any of us had to go through this."

As far as the former tenants' claim of discrimination, thenew owner of their flat says this particular instance may have created adisservice to those who are really in need.

Zambelli praised the state's finding. "They did exactlywhat they should have and what the HRC and superior court did - find thatthere was no discrimination," said Zambelli. "This case is not aboutdiscrimination, it's about extortion."

"We had no idea the tenants had any claimeddisabilities until a few days before we closed on the house," Zambelliadded. "Mr. Gaddy and Mr. Girard abused legitimate tenant protections inthis city by demanding an exorbitant payoff to move out after living in theunit for only a year. Their current tactic of claiming discrimination isreprehensible and does a disservice to the real victims ofdiscrimination."

"I bought a beautiful home and have every right to livein it. This case has nothing to do with a landlord clearing out his tenants sohe can sell the building and make a huge profit," said Zambelli.

"Allegations that we engaged in some kind of harassmentcampaign are not only false, they are the opposite of the truth," saidRobins. "These guys were incredibly inconsiderate neighbors.

"They kept us up night after night with their loudnoise, despite us practically begging them to stop. My wife and I have aneight-week old baby at home, and the sleep deprivation we're dealing with nowpales in comparison to what Girard and Gaddy put us through when they livedhere," Robins said.

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