Archibald v. Cinerama Hawaiian Hotels, Inc.

• Decision Date: 06 September 1977
• Citation: 140 Cal.Rptr. 599,73 Cal.App.3d 152
• Court: California Court of Appeals Court of Appeals
• Parties: Marybelle ARCHIBALD, on behalf of herself and others similarly situated, Plaintiff and Appellant, v. CINERAMA HOTELS et al., Defendants and Respondents. Civ. 16378.

Page 599

140 Cal.Rptr. 599

73 Cal.App.3d 152

Marybelle ARCHIBALD, on behalf of herself and others similarly situated, Plaintiff and Appellant, v. CINERAMA HOTELS et al., Defendants and Respondents.

Civ. 16378.

Court of Appeal, Third District, California.

Sept. 6, 1977.

Hearing Denied Nov. 3, 1977.

Friedman, Collard & Poswell, Peter E. Mills, Sacramento, for plaintiff and appellant.

Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Swerdlow, Glikbarg & Shimer, Beverly Hills, McCutchen, Doyle, Brown & Enersen, San Francisco, Munger, Tolles & Rickershauser, Gibson, Dunn & Crutcher, Argue, Freston & Myers, Los Angeles, Brobeck, Phleger & Harrison, San Francisco, Carlsmith, Carlsmith, Wichman & Case, Honolulu, Hawaii, Hardy, Erick & Brown, Sacramento, Daniel A. Curry, Honolulu, Hawaii, for defendants and respondents.

REGAN, Associate Justice.

This is a plaintiff's appeal from a judgment of dismissal entered upon an order sustaining demurrers without leave to amend. The first amended complaint, to which the demurrers were sustained, is for breach of an innkeeper's duty. It contains three causes of action. It asserts a class action by plaintiff as a member of a class of persons who are citizens and residents of California and who have been guests of hotels and motels in Hawaii which are owned or operated by a multitude of named defendants who do business in California. Also included is a named travel agency and several other fictitiously named travel agencies who make reservations for California visitors at such hotels.

The first cause of action alleges that the rate charged to plaintiff for rooms in the hotels is higher than a so-called 'Kamaaina' (local resident) rate, which is offered or available to residents of Hawaii. It is alleged that this is 'unlawfully discriminatory.' The second cause of action alleges a conspiracy among defendants in furtherance of the discriminatory acts described in the first cause of action. The third cause of action alleges that defendants 'violated certain laws, statutes, rules and regulations and the policies of the State of California and engaged in unfair and deceptive acts and practices and principals (sic) contrary to the public policies of the State of California.' ¹

The demurrers to all the causes of action were sustained on the ground that none set forth facts sufficient to constitute a cause of action.

Plaintiff contends that each of her three causes of action is viable in the face of general demurrers and that the trial court therefore erred. In appraising the merits of plaintiff's contentions we are mindful of the fact the trial court allowed plaintiff an opportunity to amend her complaint further, but she notified the court she did not wish to do so. Under such circumstances, in determining whether or not the trial court abused its discretion in sustaining the demurrers, it must be presumed by us that plaintiff has stated her case as strongly as it can be stated, and all ambiguities and uncertainties will be resolved against her. (Wilson v. Loew's, Inc. (1956) 142 Cal.App.2d 183, 196, 298 P.2d 152; Sierra Investment Corp. v. County of Sacramento (1967) 252 Cal.App.2d 339, 341, 60 Cal.Rptr. 519.)

The First Cause of Action

Plaintiff contends the first cause of action is good since it alleges a breach of the common law duties of an innkeeper not to discriminate; and also, impliedly if not directly, by alleging 'unlawful discrimination' it has alleged violations of constitutional rights under equal protection, privileges and immunities, and commerce clauses of the United States Constitution. To bolster these contentions, plaintiff has prepared a selective dissertation on the common law duties of an innkeeper, a short treatise on the economic doctrine of laissez-faire as it relates to the modern emphasis on equality of contract between providers and consumers, a discussion of certain state equal rights legislation pertaining to places of accommodation of travelers, a discussion of certain constitutional rights as they may pertain to residents versus travelers or nonresidents and an exposition of the assertedly illusory distinction between 'discount' and 'overcharges' pertaining to hotels. Plaintiff's efforts have left us unpersuaded that the trial court erred.

It is alleged in the first cause of action that the rates charged plaintiff and members of her class are higher than those charged to residents of the State of Hawaii. It is not alleged that the rates charged Californians are different than the rates charged any person or class of persons from anywhere else in the world, nor is it alleged that the rates charged plaintiff are unreasonable or excessive. While the complaint categorizes the rate charged her and other nonresidents as a 'surcharge' which is 'discriminatory', the 'preferential treatment' described in the complaint consists of a discount known as the 'Kamaaina rate', and is so designated in the complaint. This is an unspecified rate presumably lower than the regular rate paid by all nonresidents and is illustrated by advertisements in the yellow pages of the telephone book placed by certain hotels such as 'Ask about our Kamaaina rates' or 'Kamaaina discounts.'

Plaintiff has based her case in large part on the common law pertaining to innkeepers. She asserts there was, and is, a duty to charge exactly the same rates to everyone. Reliance is placed by plaintiff principally on text-book authority that innkeepers must provided lodging for All at a Reasonable price and that all should be served equally and without discrimination. (See Beale, The Law of Innkeepers and Hotels Including Other Public Houses, Theatres, Sleeping Cars (1906) §§ 52--55, pp. 36--38; Sherry, The Law of Innkeepers--For Hotels, Motels, Restaurants, and Clubs (1972) at pp. 23--24, 34.) However, looking at plaintiff's authorities, including cases citted and with her text-book references, we observe that the concern of the common law was and is limited to assuring each traveler freedom from unreasonably high rates. Since travel upon the highway at night was hazardous and there was little choice of lodging for the night, the common law approved restrictions upon innkeepers to insure a charge of 'reasonable value' for services, to prevent them from extorting exorbitant rates. (See, e.g., Munn v. Illinois (1877) 94 U.S. 113, 125, 134, 24 L.Ed. 77, 84, 87.)

We have found no authority holding that the offering of a discount to certain clients, patrons or customers based on an attempt to attract their business is unlawful under the common law, whether the discount be for salesmen, clergymen, armed services personnel, or local residents. In fact it has been indicated in court decisions that even the common law duty to charge reasonable value for services is inapplicable where the guest is not one who might be stranded on a road in the neighttime or might otherwise be at the mercy of a single innkeeper, but rather is one who has made an advance reservation, thereby agreeing to a price before arrival. (Baldwin v. Webb (1904) 121 Ga. 416, 49 S.E. 265, 266; Kemper v. Asher's Adm'x (1938) 272 Ky. 461, 114 S.W.2d 525, 527; Roche v. Road Driver's Ass'n. of New York (1905) 96 N.Y.S. 205, 206; Cf. Magee v. Pacific Improvement Co. (1893) 98 Cal. 678, 680, 33 P. 772.)

Insofar as text authorities are concerned, those favored most by plaintiff recognize an innkeeper's freedom or common law right to make any reasonable charge, allowing him to frame his own schedule of rates, provided they are 'reasonable.' (Beale, Op. cit. supra, §§ 241, 243, pp. 168--169, 170; Sherry, op. cit. supra, at pp. 433--435.)

All of the textual authorities and the case law cited by plaintiff, and other authorities we have examined, indicate to us that the common law was and is concerned with assuring that travelers will be received on a basis of equality in the sense that no one will be excluded by the device of demanding unreasonable rates or payment. We do not perceive that the common law is concerned with rates as such, except that they not be unreasonable; nor is it concerned with charges Lower than reasonable charges, or discounts to induce patronage from certain groups or classes. The case before us does not present any compelling or even rational reason for us to either enlarge or depart from common law principles or concerns as to innkeepers. ²

It should be added that plaintiff's reliance on Neptune City v. Avon-By-The-Sea (1972) 61 N.J. 296, 294 A.2d 47, is misplaced. The Court in Neptune held the state could not abdicate its obligation to permit equal access to public trust (beach) lands for all state residents by permitting a beach municipality to grant preferences to residents of the municipality. At issue in Neptune was a beach user fee system under which residents of the municipality could purchase season badges entitling them to use the beach all season, but nonresidents were only permitted to purchase daily badges. (See 294 A.2d at pp. 50, 54--55.) The Neptune decision is clearly distinguishable. The public trust doctrine applicable to beaches owned by the sovereign does not apply to hotels located on land which is privately owned. Although hotel owners have certain common law obligations to travelers, hotels are by no means owned in public trust like public beaches. Moreover, Neptune did not concern itself with any question of equal access for nonstate residents.

There is no legitimate constitutional law issue here. Plaintiff attempts to bring into play the equal protection clause, commerce clause, and the privileges and immunities clause of the United States Constitution and the so-called constitution 'right to travel'. These constitutional provisions and rights apply only to state action, or to acts by individuals abridging rights pursuant to specific state laws so that to a significant extent the state has become involved as a governmental entity. (16 Am.Jur.2d, Constitutional Law, § 491, pp....