Consumers Union of U.S., Inc. v. Fisher Development, Inc.

• Decision Date: 28 March 1989
• Docket Number: No. A035787,A035787
• Citation: 257 Cal.Rptr. 151,208 Cal.App.3d 1433
• Court: California Court of Appeals Court of Appeals
• Parties: CONSUMERS UNION OF UNITED STATES, INC., Plaintiff and Appellant, v. FISHER DEVELOPMENT, INC., et al., Defendants and Respondents.

Page 151

257 Cal.Rptr. 151

208 Cal.App.3d 1433

CONSUMERS UNION OF UNITED STATES, INC., Plaintiff and Appellant, v. FISHER DEVELOPMENT, INC., et al., Defendants and Respondents.

No. A035787.

Court of Appeal, First District, Division 3, California.

March 28, 1989.

As Modified April 12, 1989.

Review Denied June 21, 1989.

Elizabeth D. Laporte, Turner & Brorby, Nettie Y. Hoge, Consumers Union of U.S., Inc., San Francisco, for plaintiff and appellant.

Stewart Stone, Jr., Steinhart & Falconer, San Francisco, L. Lawrence Berheim, Senniff, Bernheim, Emery & Kelly, Santa Rosa, for defendants and respondents.

BARRY-DEAL, Associate Justice.

Consumers Union of United States, Inc., appeals ¹ from a judgment of dismissal by the Sonoma County Superior Court entered after the court sustained the demurrer of respondents Fisher Development, Inc. (Fisher), and Creekside Village Homeowners Association (the Homeowners Association), without leave to amend. Because the trial court erred in sustaining the demurrer on the ground of no standing, we reverse the judgment.

I

Appellant is a nonprofit membership organization which publishes books and reports aimed at informing and educating the public on facts about consumer goods and services as well as financial matters of interest to consumers. It brought the instant lawsuit under Business and Professions Code section 17200 et seq. and the Unruh Civil Rights Act (Civ.Code, §§ 51, 51.2, 51.3 and 52, and other sections not relevant here, hereinafter referred to as the Unruh Act). The lawsuit alleges that the Creekside Village residential subdivision development (Creekside) in Sonoma County has been illegally discriminating on the basis of age and against families with children; and it seeks injunctive relief to halt such discrimination.

Creekside was developed by respondent Fisher in 1980 pursuant to permit from the County of Sonoma in an area of the county specifically zoned for planned adult or retirement communities. Currently operated and maintained by respondent Homeowners Association, Creekside consists of 313 single-family, detached, two-bedroom, two-bath homes. According to advertising literature published by Fisher, Creekside is "a planned community nestled in California's idyllic wine country, a place for adults over age 45 ready to savor the best of the good life." The development covers 91 acres, a third of which consist of open spaces described as "meticulously landscaped parks and unspoiled natural areas, ... 29 acres of parks and verdant hillsides," with a creek "lined with hiking and walking trails, tempting for brisk morning walks or leisurely sunset strolls." The development also offers a recreation center, tennis courts, a swimming pool, and an indoor-outdoor spa which all "bring the luxuries of resort-living close to home." Other amenities are advertised as being in the town of Sonoma, "minutes away by foot, bicycle or by car...."

In 1981, Fisher recorded a declaration of covenants, conditions, and restrictions on Creekside which provided that no one could "occupy any part of the subject property" unless he or she had attained the age of 45 years, or else was the spouse of such a person; that no one under the age of 18 could live in any dwelling in the development except as guests for periods of time not to exceed 60 days a year; and that such "underaged guests" were limited to 2 at a given time. In 1984, in response to the decision of the California Supreme Court in O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, and the state Legislature's amendment of the Unruh Act in Civil Code section 51.2, the Homeowners Association decided to change the occupancy restrictions at Creekside by raising the minimum age from 45 years to 55 years, and by changing the spousal exception to include a "cohabitant" or "a person who resides with and provides primary physical or economic support to" a 55-year-old resident, so long as said "cohabitant" is over the age of 18.

Appellant brought suit on December 23, 1985, alleging that Creekside failed to qualify as a "senior citizen housing development" within the meaning of Civil Code sections 51.2 and 51.3, and that it was therefore in violation of the provisions of the Unruh Act forbidding age discrimination in housing. Appellant's applications for a temporary restraining order and for a preliminary injunction to suspend respondents' enforcement of the age restrictions were denied. In denying the motion for a preliminary injunction, the trial court found on the basis of the evidence presented that Creekside "is a business establishment designed to meet the physical and social needs of senior citizens within the meaning of Civil Code Section 51.2."

Thereafter, on February 5, 1986, respondents filed a demurrer to the complaint on the grounds that appellant did not have standing to bring the suit under either the Unruh Act or the provisions of Business and Professions Code section 17200 et seq. On May 2, 1986, the trial court sustained respondents' demurrer without leave to amend. This appeal followed the dismissal of the complaint pursuant to the sustaining of the demurrer.

II

In its complaint, appellant alleged that it had standing under Business and Professions Code section 17200 et seq. to seek injunctive relief against respondents' alleged violations of the Unruh Act. In sustaining respondents' demurrer to the complaint without leave to amend, the trial court ruled that appellant was not entitled to invoke the standing provisions of the Business and Professions Code in order to bring suit to enforce the Unruh Act because appellant was not a "person aggrieved" by the alleged unlawful discrimination, as required by the standing provisions of the Unruh Act found at Civil Code section 52, subdivision (c). Appellant argues that this ruling was erroneous. We agree with appellant.

The Unruh Act deals generally with discrimination in accommodations and services. Civil Code section 51.2 extends the general ban on discrimination found in section 51 to discrimination on the basis of age. ² Under Civil Code section 52, subdivision (a), actions for triple damages may be brought for specific violations of the provisions of the Unruh Act which result in actual damages to any person denied the rights set forth in the act. In addition, the statute provides that civil actions for injunctive or other preventive relief may be brought by "the Attorney General, any district attorney or city attorney, or any person aggrieved " where there is "a pattern or practice of resistance to the full enjoyment of any of the rights" secured by the act. ³ (Civ.Code, § 52, subd. (c), emphasis added.)

Although appellant brought its complaint to enjoin respondents' alleged violations of the Unruh Act, it did not cite the standing provisions of that statute. Rather, it brought its action "[p]ursuant to" the provisions of Business and Professions Code section 17200 et seq., referred to as the "unfair competition statute." This act defines "unfair competition" to "mean and include unlawful, unfair or fraudulent business practice" as well as "unfair, deceptive, untrue or misleading advertising." (Bus. & Prof.Code, § 17200.) The operative language appears in section 17203, which states: "Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter...."

Under Business and Professions Code section 17204, actions for such an injunction may be prosecuted by the Attorney General, any district attorney, city attorneys of cities having a population in excess of 750,000, "or by any person acting for the interests of itself, its members or the general public." (Emphasis added.) The word "person" expressly includes corporations, associations, and other organizations. (Bus. & Prof.Code, § 17201.) Finally, Business and Professions Code section 17205 provides that "[u]nless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this state."

The Supreme Court has repeatedly given the broadest possible definition to the term "unfair competition." Thus, in People v. McKale (1979) 25 Cal.3d 626, 159 Cal.Rptr. 811, 602 P.2d 731, Justice Clark, writing for a unanimous court, stated: "Unfair competition is defined to include 'unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.' (Bus. & Prof.Code, § 17200.) California courts have consistently interpreted such language broadly. An 'unlawful business activity' includes ' "anything that can properly be called a business practice and that at the same time is forbidden by law." ' [Citation.] The Legislature 'intended ... to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.' [Citation.]" (People v. McKale, supra, 25 Cal.3d at pp. 631-632, 159 Cal.Rptr. 811, 602 P.2d 731.)

More recently the Supreme Court again reiterated that, as used in this statute, "[t]he term 'unfair competition' receives a broad definition.... 'Historically, the tort of unfair business competition required a competitive injury. However, the language of section 17200 ... "demonstrates a clear design to protect consumers as well as competitors by its final clause, permitting inter alia, any member of the public to sue on his [or her] own behalf or on behalf of the public generally." [Citation.] Thus, section 17200 is not confined to anticompetitive business practice but is equally directed toward " 'the right of the public to protection from fraud and deceit.' " [Citation...