Koebke v. Bernardo Heights Country Club
| Decision Date | 08 March 2004 |
| Docket Number | No. D041058.,D041058. |
| Citation | 116 Cal.App.4th 791,10 Cal.Rptr.3d 757 |
| Court | California Court of Appeals Court of Appeals |
| Parties | B. Birgit KOEBKE et al., Plaintiffs and Appellants, v. BERNARDO HEIGHTS COUNTRY CLUB, Defendant and Respondent. |
Kondrick, San Diego, for Plaintiffs and Appellants.
Jordan C. Budd for ACLU Foundation of San Diego & Imperial Counties; James D. Esseks, New York, NY, and Romana Mancini for ACLU Foundation Lesbian & Gay Rights Project; Miranda D. Junowicz and Steven C. Sheinberg for Anti-Defamation League; Nancy-Hogshead Makar for Women's Sports Foundation; Nancy M. Solomon for California Women's Law Center; and Shannon Minter and Courtney Joslin for National Center for Lesbian Rights as Amici Curiae on behalf of Plaintiffs and Appellants.
Morrison & Foerster, John R. Shiner, Los Angeles, and Rick Bergstrom, San Diego, for Defendant and Respondent.
On this appeal from an order granting summary judgment, we must decide whether the defendant Bernardo Heights Country Club (BHCC) engaged in discrimination under the Unruh Civil Rights Act (hereafter Unruh) (Civ.Code, § 51)1 or the San Diego Municipal Code based upon gender, sexual orientation or marital status against plaintiffs B. Birgit Koebke and Kendall E. French (together sometimes, plaintiffs), a lesbian couple who are registered domestic partners, when it refused to grant the same membership privileges at its golf and country club to plaintiffs that it grants to married, heterosexual couples. We further must decide whether, even if BHCC's membership bylaws on their face were not discriminatory, Koebke and French have nevertheless raised a triable issue fact that BHCC applied these bylaws in a discriminatory manner. Specifically, Koebke and French assert that their evidence established a triable issue of fact that the BHCC granted unmarried, heterosexual couples family membership privileges, while denying those same privileges to them.
We conclude that BHCC's policies, as written, do not discriminate on the basis of gender or sexual orientation, only marital status. We further conclude, applying the principles of the California Supreme Court's decision in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873 (Harris), that Unruh does not preclude a country club from limiting membership benefits based upon marital status. We therefore uphold the court's summary adjudication of those claims and that portion of the judgment entered in BHCC's favor.
However, we also conclude that Koebke and French presented sufficient evidence to raise a triable issue of material fact on their claim that BHCC applied its membership bylaws in a discriminatory manner by granting unmarried, heterosexual couples family membership privileges, while denying those same privileges to them, and we therefore reverse the judgment entered in favor of BHCC as to this claim.
In 1987, Koebke purchased a membership in BHCC. Such memberships, while issued to an individual, are for the member and his or her "family." This entitles a "member's legal spouse and unmarried sons and daughters under the age of twenty-two (22) residing with them" to use BHCC's facilities, including its golf course, without having to pay any additional fees for the spouse or children. By contrast, guests of a member are not allowed to play golf more than six times a year, more than once every two months, and must pay a green fee of between $40 and $75 dollars each time they use the course. Further, a membership may only be transferred to a legal spouse or child upon the member's death.
BHCC refused to recognize French as a family member within its membership bylaws and informed Koebke and French that the only way French could have full member benefits was for her to purchase an additional membership. According to Koebke and French, BHCC at the same time allowed unmarried, heterosexual couples to enjoy family membership benefits, and allowed other members to play golf with individuals who were not within the definition of a family member under the membership rules. Koebke and French also contend that they were subjected to hostility and harassment at BHCC because of their sexual orientation and sex.
In May 2001, Koebke and French filed a complaint, which they amended twice.2 The complaint set forth five causes of action: (1) violation of Unruh by discriminating against Koebke and French on the basis of their sexual orientation,3 marital status and gender; (2) violation of San Diego Municipal Code section 52.9601 et seq. by discriminating against them on the basis of their sexual orientation; (3) violation of section 53 by imposing discriminatory restrictions on the use or transfer of real property; (4) fraud and misrepresentation; and (5) declaratory relief seeking a declaration that certain BHCC bylaws and policies were void and that certain actions by BHCC violated its own bylaws.
BHCC brought a motion for summary judgment, asserting that it treated individuals differently based not upon their sex or sexual orientation, but on the basis of their marital status, which it argued was lawful. Koebke and French opposed the motion, asserting that Unruh prohibited marital status discrimination and that they were actually discriminated against based upon their sexual orientation, sex and marital status. The court granted BHCC's motion, finding as a matter of law that BHCC did not provide membership privileges to Koebke and French that were different than those provided to other unmarried couples.
On this appeal Koebke and French assert that the court erred in granting BHCC's motion for summary judgment because (1) triable issues of fact exist as to whether they were discriminated against on the basis of their sexual orientation and gender because BHCC enforced its membership bylaws in a discriminatory manner; and (2) even assuming BHCC applied its membership policies in a manner that treated all unmarried couples the same, as written, they discriminated against Koebke and French on the basis of marital status, sexual orientation and gender. For the reasons discussed below, we reverse that portion of the judgment entered in favor of BHCC on Koebke and French's claim that BHCC granted unmarried, heterosexual couples family membership privileges, while denying those same privileges to them, and therefore we reverse the judgment entered in favor of BHCC as to this claim.
In discussing the factual background of this case, we must view the evidence in the light most favorable to the losing parties (here Koebke and French), resolving any evidentiary doubts or ambiguities in their favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143 (Saelzler).)
Koebke and French, who are lesbians, have been domestic partners for over 10 years, have entered into a "Statement of Domestic Partnership," and have registered with the state as domestic partners.4 They are executors and sole beneficiaries of each other's wills, have executed estate planning documents and durable powers of attorney allowing for health care decisions and management of their assets by one another, have agreed to common ownership of their real property, have committed to "sharing with one another the joys and difficulties" of life as each other's family, and would legally marry one another if they could.
BHCC is a social and recreational club located in San Diego that is owned by its approximately 350 "regular" or equity members. Each member has an equal ownership interest in all of the real property and other assets of BHCC and is liable to it for capital and operational assessments as well as dues and other charges. The facilities at BHCC include a golf course, driving range, putting greens, clubhouse, restaurant, bars, meeting facilities, and pro shop.
All memberships at BHCC are for a member and his or her "family." Junior executive (those under age 35) and regular members are entitled to play golf without limitation and without paying green fees. Further, according to BHCC's bylaws, "Membership entitlements extend to [a] member's legal spouse and unmarried sons and daughters under the age of twenty-two (22) residing with them." (Italics added.) All other individuals are treated as "guests" of a member. Guests are limited to playing golf at BHCC six times in any one year and not more than once every two months. Further, guests must pay a green fee of between $40 and $75 every time they play golf.
The bylaws also provide that "[i]n the event of the death of a sole owner of a Regular membership ... not survived by a spouse, son or daughter, the membership shall terminate," along with all property rights that belong to members. If, however, the member was married or had children, "[t]he legal representative of such person ... may ... transfer such membership to the spouse ... or a son or daughter of the decedent, without payment of any transfer fee to [BHCC]," provided the transferee is accepted for membership.
In 1987, Koebke purchased a membership in BHCC. Koebke originally joined as a junior executive member and in 1991 converted to a regular membership. The purchase price of a regular membership was $18,000. Members were also required to pay monthly dues and quarterly minimum food charges.
On several occasions, Koebke requested through BHCC's board of directors that she and French be given the same membership privileges as married couples. Koebke and French also thereafter provided BHCC with a copy of their statement of domestic partnership. However, BHCC refused Koebke's request. BHCC informed Koebke that the only way that she could enjoy "spousal" membership privileges was if she married...
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