Brennon B. v. Superior Court of Contra Costa Cnty.

• Citation: 57 Cal.App.5th 367,271 Cal.Rptr.3d 320
• Decision Date: 13 November 2020
• Docket Number: A157026
• Court: California Court of Appeals
• Parties: BRENNON B., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; West Contra Costa Unified School District et al., Real Parties in Interest.

57 Cal.App.5th 367

271 Cal.Rptr.3d 320

BRENNON B., Petitioner,

v.The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;

West Contra Costa Unified School District et al., Real Parties in Interest.

A157026

Court of Appeal, First District, Division 1, California.

Filed November 13, 2020

Liberty Law Office and Micha Star Liberty for Petitioner.

Consumer Attorneys of California and Alan Charles Dell'Ario as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Edington Schirmer & Murphy, Timothy Patrick Murphy and Cody Lee Saal for Real Party in Interest.

Sue Ann Salmon, Dannis Woliver Kelley, and David A. Obrand ; The Education Legal Alliance of the California School Boards Association and Kathryn Elizabeth Meola, as Amicus Curiae on behalf of Real Party in Interest.

Banke, J.

INTRODUCTION

We are asked to decide two issues: (1) whether a public school district is a business establishment for purposes of the Unruh Civil Rights Act ( Civ. Code, § 51 ), and (2) even if a school district is not a business establishment, whether it can nevertheless be sued under the Unruh Act where, as here, the alleged discriminatory conduct is actionable under the Americans With Disabilities Act (ADA) ( 42 U.S.C. § 12101 et seq. ). Both are issues of first impression in the California appellate courts.

Our Supreme Court has examined the meaning of the term "business establishment" as used in the Unruh Act in a number of cases. However, the defendant in each was a private entity. Thus, the court has had no occasion to consider whether a government entity, and specifically an agent of the state performing a state constitutional obligation, such as a public school district, is a business establishment within the meaning of the Act.¹

We have therefore followed the analytical template our high court has employed in deciding whether a private entity is a business establishment for purposes of the Act, examining the historical genesis of the Act and the Act's limited legislative history, and canvassing the court's decisions and considering the scholarly articles to which the court has regularly cited, as well as other pertinent authorities. This multi-pronged inquiry leads us to conclude public school districts are not business establishments under the Unruh Act.

We further conclude the Unruh Act imposes liability only on business establishments and therefore reject petitioner's alternative assertion that, even if a public school district is not a business establishment, it may nevertheless be held liable under the Act where, as here, the alleged discriminatory conduct is actionable under the ADA. Reading the language on which petitioner predicates his assertion in context, and in light of its legislative history and our high court's decisions discussing it, we conclude this language makes explicit that any violation of the ADA by a business establishment is also a violation of the Unruh Act.

In reaching these conclusions, we are by no means suggesting our public school districts are not subject to stringent anti-discrimination laws. They are. These include the panoply of antidiscrimination statutes set forth in the Education Code and applicable to all schools receiving any form of state funding or assistance ( Ed. Code, § 200 et seq. ) and the comprehensive antidiscrimination provisions set forth in the Government Code and applicable to all government entities ( Gov. Code, § 11135 ), as well as federal constitutional mandates (actionable under 42 U.S.C. § 1983 ), and statutes such as Title IX of the Education Amendments of 1972 ( 20 U.S.C. § 1681 et seq. ), Title II of the ADA ( 42 U.S.C. § 12131 et seq. ), and section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 794 ).

We thus conclude the trial court did not err in sustaining the school district's demurrer to petitioner's cause of action under the Unruh Act without leave to amend, and therefore deny his petition for a writ of mandate ( Code Civ. Proc., § 1085 ) challenging that ruling.

DISCUSSION²

Historical Background of the Unruh Act

"The general policy embodied in [Civil Code] section 51 can be traced to the early common law doctrine that required a few, particularly vital, public enterprises—such as privately owned toll bridges, ferryboats, and inns—to serve all members of the public without arbitrary discrimination. (See generally, Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250 [(Tobriner & Grodin)].) After the United States Supreme Court, in the Civil Rights Cases (1883) 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 ..., invalidated the first federal public accommodation statute, California joined a number of other states in enacting its own initial public accommodation statute, the statutory predecessor of the current version of [Civil Code] section 51. (Stats. 1897, ch. 108, § 2, p. 137.)" ( Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 607–608, 42 Cal.Rptr.2d 50, 896 P.2d 776 ( Warfield ).)

Given the issues before us, it bears making more than passing reference to the Civil Rights Cases. These cases arose under a federal statute that prohibited private citizens from discriminating on the basis of race in operating or providing " ‘accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement.’ " ( Civil Rights Cases, supra, 109 U.S. at p. 9, 3 S.Ct. 18.) Any person violating this prohibition was subject to a civil penalty enforceable in a legal action by the aggrieved person and to criminal prosecution. ( Ibid. ) The United States Supreme Court invalidated the statute.

The court first concluded the statute could not be sustained under the Fourteenth Amendment because the statutory prohibition was divorced from state action and was directed at conduct by private persons. ( Civil Rights Cases, supra, 109 U.S. at pp. 10–20, 3 S.Ct. 18.) "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment." ( Id. at p. 11, 3 S.Ct. 18.) The court next considered whether the statute could be sustained under the Thirteenth Amendment as "necessary and proper" to enforce the constitutional prohibition of slavery. ( Id. at pp. 20–24, 3 S.Ct. 18.) The court concluded "the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation" could not "be justly regarded as imposing any badge of slavery or servitude upon the applicant." Rather, said the court, it was an act "inflicting an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws." ( Id. at p. 24, 3 S.Ct. 18.)

As our Supreme Court has since observed, many states, including California, enacted the state laws necessary to replace the invalidated federal statute that had endeavored to prohibit discriminatory conduct by private persons in the operation and provision of public accommodations, conveyances and places of amusement. (E.g., Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, 686, 72 Cal.Rptr.2d 410, 952 P.2d 218 ( Curran ); Warfield, supra, 10 Cal.4th at p. 607, 42 Cal.Rptr.2d 50, 896 P.2d 776.) Thus, the nomenclature "public accommodation" statutes. (See Curran, at pp. 686–687, 72 Cal.Rptr.2d 410, 952 P.2d 218 ; Warfield, at pp. 607–608, 42 Cal.Rptr.2d 50, 896 P.2d 776 ; see generally Horowitz, The 1959 California Equal Rights in "Business Establishments" Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 263 (Horowitz).³ )

" ‘Expanding upon the limited category of "public service enterprises" to which the early common law doctrine applied,’ "⁴ California's " ‘1897 statute, as amended in 1919 and 1923, provided that "[a]ll citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, public conveyances and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens." (Stats.1923, ch. 235, § 1, p. 485.)’ "⁵ ( Curran, supra, 17 Cal.4th at pp. 686–687, 72 Cal.Rptr.2d 410, 952 P.2d 218, quoting Warfield, supra, 10 Cal.4th at pp. 607–608, 42 Cal.Rptr.2d 50, 896 P.2d 776 ; see generally Horowitz, supra, 33 So.Cal.L.Rev. at p. 261 [prior to 1959, there were "a few areas in which California law prohibited racial discrimination by private persons: e.g., the Legislature had, in 1893 and 1897, enacted what eventually became Civil Code Sections 51 – 54, prohibiting such discrimination by operators of places of ‘public accommodation,’ amusement,’ and entertainment,’ " fn. & italics omitted].)

Thus, nothing in the historical context from which the Unruh Act emerged suggests the state's earlier public accommodation statutes were enacted to reach "state action." And there is much authority to the contrary—that these statutes were enacted to secure within our state law the prohibition against discrimination by privately owned services and enterprises the United States Supreme Court referenced in the Civil Rights Cases and which the common law had already begun to recognize through the public service doctrine. (See Curran, supra, 17 Cal.4th at pp. 686–687, 72 Cal.Rptr.2d 410, 952 P.2d 218 ; Warfield, supra, 10 Cal.4th at pp. 607–608, 42 Cal.Rptr.2d 50, 896 P.2d 776 ; see also Horowitz, supra , 33 So.Cal.L.Rev. at p. 281 ["[i]t was clear that in [former] [Civil Code] Sections 51 and 52 the Legislature enacted a principle creating a right not to be discriminated against on grounds of race in some, but not all, relationships between private persons"].)

Enactment of the...