Gatto v. County of Sonoma, A094976.

• Citation: 120 Cal.Rptr.2d 550,98 Cal.App.4th 744
• Decision Date: 23 May 2002
• Docket Number: No. A094976.,A094976.
• Court: California Court of Appeals
• Parties: Stephen GATTO, Plaintiff and Respondent, v. COUNTY OF SONOMA et al., Defendants and Appellants.

120 Cal.Rptr.2d 550

98 Cal.App.4th 744

Stephen GATTO, Plaintiff and Respondent, v. COUNTY OF SONOMA et al., Defendants and Appellants.

No. A094976.

Court of Appeal, First District, Division 2.

May 23, 2002.

[120 Cal.Rptr.2d 553]

[98 Cal.App.4th 749]

Steven M. Woodside, County Counsel, Gregory T. Dion, Deputy County Counsel, County of Sonoma, Santa Rosa, CA, Attorneys for Appellants.

Joseph J. Wiseman, Law Offices of Joseph J. Wiseman, Petaluma, CA, Harris B. Taback, Law Offices of Harris B. Taback, San Francisco, CA, Attorneys for Respondent.

KLINE, P.J.

Respondent Stephen Gatto was ejected from the Sonoma County Fair (Fair) for refusing to remove a vest he was wearing that bore insignia of the Hell's Angels Motorcycle Club. He commenced this litigation against Sonoma County, Sonoma County Fair and Exposition, Inc., which operates the Fair under contract with the county (collectively appellants), and others involved in the running of the Fair, alleging that enforcement of the Fair's dress code policy denied him rights guaranteed under the Unruh Civil Rights Act (Civ. Code S 51)¹ and article I, section 2 of the California Constitution, which is enforceable through a civil action for damages under section 52.1, subdivision (b).

Determining that Gatto's claims were not time barred, that he was denied equal access to accommodations in violation of the Unruh Civil Rights Act, and that the dress code was unconstitutional, the trial court denied appellants' motion for judgment on the pleadings and entered judgment awarding Gatto damages and attorney fees.

We shall reverse in part and affirm in part. Enforcement of the dress code did not deprive Gatto of full and equal access to accommodations in violation of the Unruh Civil Rights Act. The dress code is, however, void for vagueness and facially overbroad, and its enforcement against Gatto deprived him of a liberty interest in his personal dress and appearance. The trial court therefore correctly found it was unconstitutional and Gatto was entitled to damages and attorney fees.

FACTS AND PROCEEDINGS BELOW

The facts are simple and undisputed. On August 1, 1998, after Gatto purchased a ticket and entered the Fair, City of Santa Rosa Police Officers Badger and Brazis told Gatto the vest he was wearing, which carried the insignia of the Hell's Angels Motorcycle Club, violated the Fair's dress code and instructed him to either remove the vest or leave the fair. When Gatto refused to take off the vest, the officers ordered him to leave and he complied.

The "Policies and Procedures" promulgated by the Fair set forth rules required to be posted at all admission gates. The posted rules stated that "THE FAIR RESERVES THE RIGHT TO DENY ADMISSION TO ANYONE AT ANYTIME. .... [¶] NO `COLORS' ALLOWED (E.G. BANDANAS, HANDKERCHIEFS HANGING FROM POCKETS) TO BE WORN IN A PROVOCATIVE MANNER. [¶] ALL PERSONS SUBJECT TO DRESS CODE & SEARCH." The dress code referred to in the rules stated in material part that "[n]o apparel or accessories intended to provoke, offend or intimidate others will be tolerated, including offensive slogans, insignia or `gang colors.'"²

On January 28, 1999, approximately six months after he was ejected from the Fair, Gatto filed a claim against Sonoma County, the City of Santa Rosa and Officers Badger and Brazis pursuant to the "Government Claims Act."³ (Gov.Code, §§ 910 et seq.) About six months later, on August 19, 1999 Gatto's claim was rejected. The notice of rejection informed Gatto that "[s]ubject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim." The form notice went on to state, however, that "[t]his notice applies only to causes of action arising under California law for which a claim is mandated by the Government Tort Claims Act.... Other causes of action, including those arising under federal law, may have shorter time limitations for filing."

On September 10, 1999, 21 days after his claim was rejected, Gatto filed a complaint against Sonoma County, the City of Santa Rosa and Santa Rosa Police Officers Badger and Brazis. He subsequently amended the complaint to add Sonoma County Fair and Exposition, Inc., as a defendant.

On June 28, 2000, defendants filed a motion for judgment on the pleadings. Ten days later, on July 8, defendants moved to bifurcate trial and stay discovery "on the grounds that it is in the best interests of the parties, and for the sake of judicial economy, to have the legal questions addressed first, prior to conducting any further discovery." Gatto did not oppose the motion, and it was granted. A date for trial on all legal issues and briefing schedule was set for October 23, 2000, defendants' motion for judgment on the pleadings was taken off calendar, all the legal issues raised in that motion were ordered to be addressed at trial on the date set, and all discovery was stayed pending the outcome of that trial.

At hearings held on October 23 and November 3, 2000, after extensive briefing, the court addressed the legal issues raised in defendants' motion for judgment on the pleadings; namely, whether Gatto's complaint stated facts sufficient to constitute causes of action against defendants and whether those causes of action were barred by a one-year statute of limitations.

On December 29, 2000, the trial court found as a matter of law that the complaint "is not time-barred," and "that Sonoma County Fair and Exposition, Inc.'s dress code policy in effect on August 1,1998, was unconstitutional." The court did not, however, explicitly determine whether enforcement of the dress code deprived Gatto of full and free access to accommodations in violation of the Unruh Civil Rights Act. (§ 51, subd. (b).) The court found that the City of Santa Rosa was not a proper defendant, because it did not adopt the dress code policy at issue, and dismissed it from the action. Officers Badger and Brazis were also dismissed from the action, as the court found them entitled to immunity under Government Code sections 820.4 and 820.6. (Dismissal of the city and two officers is not at issue here.) On March 19, 2001, the court entered judgment awarding Gatto damages in the amount of $1,000, the minimum amount then specified for violations of the statutes Gatto invoked (§§ 52, subd. (a) and 52.1, subd. (b)),⁴ and attorney fees and costs in the combined amount of $23,700, as also authorized by statute. (§ 52.1, subd. (h).)

This timely appeal followed.

DISCUSSION

One of the problems in this case, as will be seen, is the failure of the parties and the trial court to fully appreciate that the complaint posits two independent causes of action. The first alleges that "[i]n ordering plaintiff to leave the Sonoma County Fair because he refused to remove his clothing that bore the symbols of the Hells Angels Motorcycle Club, defendants ... denied plaintiff the right to full and equal accommodations, privileges and services guaranteed by California Civil Code Section 51." This claim arises solely under section 51, subdivision (b), the central provision of the Unruh Civil Rights Act. The second cause of action alleges that the same conduct "interfered with and abridged plaintiffs right to free speech guaranteed by Article I, Section 2 of the California Constitution."⁵ This claim, though based on the California Constitution, is enforceable, and Gatto seeks to enforce it, under subdivision (b) of section 52.1. Section 52.1, subdivision (b) provides that an individual whose exercise or enjoyment of rights secured by the state or federal constitution "may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured." Unlike the first cause of action, which is purely statutory, Gatto's second claim is constitutional. The two claims must therefore be analyzed separately. At the time of trial, section 52—which applies to both access to accommodation claims under section 51 and civil actions for denial of constitutional rights under section 52.1 (§§ 52, subds. (a), (b))—created liability for up to a maximum of three times the amount of actual damage suffered by any person denied specified rights "but in no case less than one thousand dollars ($1,000), and any attorney's fees that may be determined by the court in addition thereto...."⁶

Appellants characterize this appeal as presenting but two questions: whether Gatto's complaint was filed after expiration of an applicable time limitation and, if not, whether the conduct complained of denied him any right arising under the California Constitution. In fact, the appeal also presents the question whether Gatto was denied his right to full and equal accommodations under section 51, subdivision (b). If this statutory violation is established, it would be unnecessary for us to address the constitutional question, as constitutional issues ordinarily will be resolved on appeal only if "absolutely necessary" and not if the case can be decided on any other ground. (Palermo v. Stockton Theatres (1948) 32 Cal.2d 53, 65, 195 P.2d 1.)

As the issues presented are all entirely legal in nature, we employ our independent judgment. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960; Diamond Benefits Life Ins. Co. v. Troll (1998) 66 Cal.App.4th 1, 5, 77 Cal.Rptr.2d 581.)

I. The Action is Not Time Barred

Unlike some other anti-discrimination statutes, such as the Fair Employment and Housing Act (see Gov.Code, § 12960), the statutes with which we are concerned do not contain their own statute of limitations. Gatto contends the applicable limitation is therefore the three-year period for "[a]n action upon a liability created by statute, other than a...