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 pre-approved 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, *507without 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 carry-back. 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 “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 non-moving 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 upfront, minus only the closing costs.1 Dono-ghue, the ultimate buyer, prepared an 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.
*508After 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:
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
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 Mattio-li’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 carry-back 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 *509$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.
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 Do-noghue, 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.
. The 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 Do-noghue 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 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.
. Although 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.
. The 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.
. Mattioli himself admitted to hanging up on Coleman.
. The 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.
. Because 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.