Two men living with HIV/AIDS who claimed they were discriminated against when evicted via the Ellis Act have had their case closed by the California Department of Fair Employment and Housing following a lengthy investigation.

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

Now they say their only recourse is to get an attorney to represent them.

James Girard and Brent Gaddy had contacted the Bay Area Reporter in July and said that their eviction was "unfair and another sign of the changing demographics of the Castro, the challenges faced by the disabled, and the lengths some people will take to displace tenants from their home."

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

The case illustrates the complexity of tenancy in common sales, and the use of the Ellis Act in evicting tenants once a building has been sold as a TIC.

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

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

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

Girard, 39, and his partner, Gaddy, 53, say their eviction experience adversely effected both their health and their relationship with each other.

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

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

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

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

That is only their half of the story, according to the new owners, who purchased the building as a tenancy in common.

Robins, who purchased the upstairs flat, and Tim Zambelli, a gay man who bought the flat occupied by Girard and Gaddy, said the two had been living in the unit for only 11 months. Gaddy said they were paying $2,875 per month in rent.

"There was no disclosure by prior owners regarding any disability until days before we closed on the property," Robins said.

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 that totaled $29,364. That was rejected.

William Weisberg, the attorney representing Girard and Gaddy in 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 a proposal of $75,000 plus free rent. Zambelli rejected it.

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

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

In November 2005, Girard and Gaddy say they received an unlawful detainer notice that had been filed in court by the attorney representing the new owners.

More to the story

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

Robins said, "Although this was a run-of-the-mill owner move-in eviction, we were forced to use the Ellis Act because a San Francisco judge ruled last year that the city's owner move-in eviction provision is not available to an individual owner who owns less than 50 percent of the entire building."

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

The men also alleged discrimination. A San Francisco Superior Court judge rejected discrimination allegations, but held that tenants were entitled to an extension, Robins said.

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

At the hearing before Superior Court Judge James Warren on December 29, 2005, the judge was skeptical of the new owners' argument that the tenants had failed to follow the proper procedures for obtaining a one-year extension under the Ellis Act. But he "expressly rejected the allegations that discrimination played any role in this case," Robins said.

Despite the judge's ruling that the couple did not have to request an extension due to their disability and the landlords' eventual dropping of the unlawful detainer suit, the action had been registered with the court for more than 60 days. Because of that, the unlawful detainer is now a part of the men's rental record permanently, making it nearly impossible for them 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 them for the time, stress, and expense of defending themselves during the eviction process.

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

Not true, say Robins and Zambelli.

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

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

Zambelli confirmed the proposal from the mediator.

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

Girard, who has lived in San Francisco for some time and is a 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. They registered as domestic partners at City Hall as soon as they returned to California in 2004 after meeting in Ft. Lauderdale where they both had lived for a short time.

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

The couple currently is contacting attorneys and plans to file a lawsuit alleging unlawful eviction, and related health and emotional distress 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 Girard may have brought on their own stressful situation when they turned down a generous offer of a settlement.

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

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

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

"We had no idea the tenants had any claimed disabilities until a few days before we closed on the house," Zambelli added. "Mr. Gaddy and Mr. Girard abused legitimate tenant protections in this city by demanding an exorbitant payoff to move out after living in the unit for only a year. Their current tactic of claiming discrimination is reprehensible and does a disservice to the real victims of discrimination."

Zambelli said he moved across the country to live in the Castro.

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

Girard and Gaddy's charges that they were harassed by the new owners centered around specific instances of garbage cans being placed in front of their doors and notes telling them when and when not to have sex. But those charges are false say the new owners, and whatever the case, they say, they too, were affected by the situation.

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

"They kept us up night after night with their loud noise, despite us practically begging them to stop. My wife and I have an eight-week old baby at home, and the sleep deprivation we're dealing with now pales in comparison to what Girard and Gaddy put us through when they lived here," Robins said.