                                                                          FILED
                           NOT FOR PUBLICATION                                NOV 02 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICARDO GOMEZ, an individual,                   No. 13-56084

              Plaintiff - Appellant,            D.C. No. 2:12-cv-10456-RGK-SH

 v.
                                                MEMORANDUM*
QUICKEN LOANS, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted June 5, 2015
                              Pasadena, California

Before: M. SMITH and N. R. SMITH, Circuit Judges, and LEFKOW,** Senior
District Judge.

      Ricardo Gomez, an individual with a disability who derives part of his

income from Social Security Disability Insurance (SSDI), a public assistance


      *
             This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

      **      The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
program, appeals from the district court’s order dismissing his complaint for

failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).1 We

reverse in part, affirm in part, and remand.

      Gomez claims that Quicken Loans, Inc. (Quicken)’s request for “medical

proof of his current and future disability” as a condition to approving his mortgage

loans violated (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA); (2) the

Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. (ECOA); (3) the Fair

Employment and Housing Act, Cal. Gov’t. Code. § 12900 et seq. (FEHA); and (4)

the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (Unruh). The FHA, FEHA,

and Unruh each make it illegal for an entity to discriminate against an individual in

the housing or credit transaction context because of a disability. The ECOA and

FEHA further prohibit discrimination on the basis of whether an individual

receives income from public assistance. See 15 U.S.C. § 1691(a)(2); Cal. Gov’t

Code §§ 12955(a), 12927(h), (i).

      Gomez pursued two theories of discrimination liability; namely, that

Quicken purposefully treated him unfairly because of his disability and source of



      1
        Gomez also seeks review of the district court’s denial of his Motion to
Alter Judgment pursuant to Federal Rules of Civil Procedure 59(e) and 60(b).
Because we reverse in part the district court’s judgment and grant leave to amend,
we do not reach this issue.

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income (disparate treatment), and that Quicken had a neutral business policy that

resulted in his being treated unfairly because of his disability and source of income

(disparate impact). The district court dismissed Gomez’s claims, citing 15 U.S.C.

§ 1691(b)(2) of the ECOA, and reasoning that “information related to the source of

current and future income is material to Defendant’s legitimate and non-

discriminatory need to evaluate Plaintiff’s creditworthiness.”

       “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A court must accept all well-pled facts as true and

construe facts “in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd., v.

Behrens, 546 F.3d 580, 588 (9th Cir. 2008). An affirmative defense cannot serve as

a basis for dismissal unless it is obvious on the face of the complaint. See Rivera v.

Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013).

       Although information about an individual’s receipt of disability income may

serve a legitimate purpose, the statutes do not insulate all behavior related to the

evaluation of creditworthiness from judicial review. Section 1691(b)(2) of the

ECOA, for example, on which the district court relied, merely allows a lender to

inquire into the source of an applicant’s disability income, not the medical reason


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for it. See Al-Nashiri v. MacDonald, 741 F.3d 1002, 1009 (9th Cir. 2013) (the plain

meaning of the statute controls “unless its application leads to unreasonable or

impracticable results”). Gomez alleges that Quicken treated individuals receiving

disability income with special scrutiny by requiring them to divulge medical

information in order to obtain mortgage loans. In other words, disabled individuals

like Gomez were subject to the presumption that their SSDI award letters were

insufficient evidence of income and asked to meet a higher standard of proof than

other applicants. Drawing all reasonable inferences in Gomez’s favor, as we must

at the pleading stage, such a presumption gives rise to a plausible inference of

intentional discrimination. Indeed, underwriting materials published by Fannie

Mae emphasize that SSDI income is “considered stable, predictable, and likely to

continue” and that a lender “is not expected to request additional documentation

from the borrower.” Selling Guide: Fannie Mae Single Family § B3-3.2-01 at 276

(Dec. 30, 2009).

      Even if the purpose of Quicken’s policy is benign, Gomez has stated a claim

for disparate treatment because he has pled the existence of a facially

discriminatory policy. To be facially discriminatory, a policy must “explicitly

classif[y] or distinguish[] among persons by reference to criteria . . . which have

been determined improper bases for differentiation.” De la Cruz v. Tormey, 582


                                           4
F.2d 45, 49 (9th Cir. 1978); see Cmty. House, Inc., v. City of Boise, 490 F.3d 1041,

1048 (9th Cir. 2006) (“A facially discriminatory policy is one which on its face

applies less favorably to a protected group.”). Here, Gomez’s amended complaint

alleges that disabled individuals receiving SSDI must disclose medical information

about their disabilities to qualify for a loan. In contrast, no other applicant is

required to reveal such sensitive information. As such, by its terms, the policy

applies less favorably to a protected group of which Gomez is a part. That Gomez

ultimately received the loan does not change this conclusion.

      However, Gomez fails to state a claim for relief under an alternate theory of

disparate impact. To make a prima facie case of disparate impact, the complaint

must allege “(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 neutral acts or practices.” The Comm. Concerning

Cmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009). While

Gomez has satisfied the second element, the complaint fails to state how Quicken’s

practices were “outwardly neutral.” Gomez failed to expressly allege, for example,

that Quicken applied a uniform standard of assessing creditworthiness that resulted

in a discriminatory impact. Gomez need not state the precise contours of




                                            5
Quicken’s policy at the pleading stage, but he must allege how the challenged

policy could be facially neutral.

      Notwithstanding this shortcoming in the pleadings, the district court erred by

dismissing Gomez’s disparate impact claim with prejudice. “Dismissal without

leave to amend is proper only if it is clear, upon de novo review, that the complaint

could not be saved by any amendment.” MHC Fin. Ltd. P'ship v. City of San

Rafael, 714 F.3d 1118, 1132-33 (9th Cir. 2013); see also Fed. R. Civ. P. 15(a)(2).

As this deficiency is curable by amendment, Gomez should be granted leave to

amend the complaint.

      Each party shall bear its own costs on appeal.

      REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.




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