Koire v. Metro Car Wash

• Decision Date: 17 October 1985
• Citation: 40 Cal.3d 24,219 Cal.Rptr. 133,707 P.2d 195
• Court: California Supreme Court
• Parties: , 707 P.2d 195, 54 USLW 2227 Dennis KOIRE, Plaintiff and Appellant, v. METRO CAR WASH et al., Defendants and Respondents. L.A. 32052.

Page 133

219 Cal.Rptr. 133

40 Cal.3d 24, 707 P.2d 195, 54 USLW 2227

Dennis KOIRE, Plaintiff and Appellant, v. METRO CAR WASH et al., Defendants and Respondents.

L.A. 32052.

Supreme Court of California.

Oct. 17, 1985.

Ronald R. Talmo, Wallin, Roseman & Talmo, Tustin, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen. and Marian M. Johnston, Deputy Atty. Gen. as Amici Curiae on behalf of plaintiff and appellant.

William A. Woodyard, Anaheim, for respondent Metro Car Wash.

William A. Elliott, Santa Ana, for respondent State College Car Wash.

BIRD, Chief Justice.

Does the Unruh Civil Rights Act (Civ.Code, § 51) ¹ prohibit sex-based price discounts?

I.

In the spring of 1979, plaintiff sought to have his car washed at several car washes located in Orange County. He visited the car washes on "Ladies' Day" and asked to be charged the same discount prices as were offered to females. ² These businesses refused his request. ³

Plaintiff also visited several bars which offered admission discounts to women, including a nightclub, Jezebel's. At trial, plaintiff testified that he heard a radio advertisement for Jezebel's. The ad publicized an event scheduled for the following weekend to celebrate the first opportunity for young adults aged 18 to 21 to patronize the establishment. The ad stated that all "girls" aged 18 to 21 would be admitted free. Plaintiff, 18 years old at the time, went to Jezebel's and requested free admission which was refused.

Jezebel's owner and manager testified that there had been no such advertisement and promotional discount as described by plaintiff. However, the nightclub does have a regular "Ladies' Night." Women are admitted free but men must pay a $2 cover charge.

Plaintiff filed suit against numerous car washes and bars, claiming that their sex-based price discounts violated the Unruh Civil Rights Act (hereafter the Unruh Act or the Act.) ⁴ He sought statutory damages and an injunction. He eventually went to trial against seven car washes and Jezebel's.

The trial court granted judgment for defendants on all causes of action. The court found that the sex-based price discounts did not violate the Unruh Act. Plaintiff appeals. ⁶

II.

The language of the Unruh Act is clear and unambiguous: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever...." The Act is to be given a liberal construction with a view to effectuating its purposes. (Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 113, 180 P.2d 321; Winchell v. English (1976) 62 Cal.App.3d 125, 128, 133 Cal.Rptr. 20.)

The parties do not dispute that defendants are business establishments to which the Unruh Act applies. (See generally, In re Cox (1970) 3 Cal.3d 205, 212-213, 90 Cal.Rptr. 24, 474 P.2d 922; 34 Ops.Cal.Atty.Gen. 230, 231-232 (1959).) Nor can there be any dispute that the Act applies to classifications based on sex. Although the list of classes enumerated in the Act has been held to be illustrative rather than exhaustive (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 725, 180 Cal.Rptr. 496, 640 P.2d 115 [hereafter Marina Point ]; In re Cox, supra, 3 Cal.3d at p. 216, 90 Cal.Rptr. 24, 474 P.2d 992; Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292, 200 Cal.Rptr. 217; Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733, 195 Cal.Rptr. 325), the inclusion of "sex" in the list clearly covers discrimination based on sex. (See, e.g., Easebe Enterprises, Inc. v. Alcoholic Bev. etc. Appeals Bd. (1983) 141 Cal.App.3d 981, 986 & fn. 4, 190 Cal.Rptr. 678; Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 28-29, 140 Cal.Rptr. 555.)

Defendants argue that the Unruh Act prohibits only the exclusion of a member of a protected class from a business establishment. They claim the law allows discrimination based on admission prices and services. Defendants also argue that the Unruh Act prohibits only arbitrary discrimination and that the sex-based price discounts at issue here fall within recognized exceptions to the Act. In addition, defendants argue that the sex-based discounts did not violate the Act because they did not injure plaintiff. Finally, they contend that a prohibition on sex-based discounts will mean an end to all promotional discounts.

Defendants' first contention, that the Act prohibits only the exclusion of prospective patrons from business establishments, is without merit. The Act guarantees "full and equal accommodations, advantages, facilities, privileges, or services ...." ( § 51.) The scope of the statute clearly is not limited to exclusionary practices. The Legislature's choice of terms evidences concern not only with access to business establishments, but with equal treatment of patrons in all aspects of the business.

Courts have repeatedly held that the Unruh Act is applicable where unequal treatment is the result of a business practice. Several early cases found violations of this Act and its predecessor when blacks were allowed to enter business establishments but were restricted to certain portions of the premises. (See, e.g., Jones v. Kehrlein (1920) 49 Cal.App. 646, 651, 194 P. 55 [black ticketholders admitted to theatre but restricted to seating in segregated section]; Suttles v. Hollywood Turf Club (1941) 45 Cal.App.2d 283, 287, 114 P.2d 27 [black ticketholders admitted to racetrack but denied clubhouse seating].) In People v. McKale (1979) 25 Cal.3d 626, 159 Cal.Rptr. 811, 602 P.2d 731, the plaintiff alleged "a pattern of discriminative conduct" by defendant mobilehome park against applicants and tenants, "varying from instances of abusive language ... to discriminative sales and leasing policies." This court concluded that such discrimination was "clearly unlawful" under the Unruh Act and held that plaintiff had adequately stated a cause of action. (Id., at p. 637, 159 Cal.Rptr. 811, 602 P.2d 731.)

In Hutson v. The Owl Drug Co. (1926) 79 Cal.App. 390, 249 P. 524, a black plaintiff was allowed to sit at a soda fountain, but the employee "placed [her order] amongst dirty dishes on the counter." (Id., at p. 392, 249 P. 524.) Another employee then struck the plaintiff and threw a cup of coffee on her. (Ibid.) The court held that the plaintiff "was not accorded the same accommodations, advantages, facilities and privileges" due persons of all races. (Id., at p. 393, 249 P. 524.)

In 59 Ops.Cal.Atty.Gen. 70 (1976), the Attorney General opined that differential treatment of students by fast food outlets and convenience stores violated the Unruh Act. The opinion disapproved of a variety of discriminatory practices, including limiting the number of student patrons, restricting students to certain hours or portions of the premises, or levying a minimum charge on student purchases. (Id., at p. 70.) "Any business restrictions of the type enumerated ... would appear to be arbitrary and unlawful." (Ibid.) While opinions of the Attorney General are not controlling authority, they are entitled to consideration. (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 751-752, 100 Cal.Rptr. 290, 493 P.2d 1154; Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 699, 163 Cal.Rptr. 464.) In this instance, the Attorney General's interpretation of the Act is correct.

Contrary to defendants' assertions, the scope of the Unruh Act is not narrowly limited to practices which totally exclude classes or individuals from business establishments. The Act's proscription is broad enough to include within its scope discrimination in the form of sex-based price discounts.

Defendants' primary argument is that sex-based price discounts do not constitute "arbitrary" discrimination. Although the Unruh Act proscribes "any form of arbitrary discrimination" (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 794, 191 Cal.Rptr. 320, 662 P.2d 427), certain types of discrimination have been denominated "reasonable" and, therefore, not arbitrary. For example, the Act does not prevent a business enterprise from promulgating "reasonable deportment regulations." (Ibid.; Marina Point, supra, 30 Cal.3d at pp. 725, 738-739, 180 Cal.Rptr. 496, 640 P.2d 115; Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 741, 227 P.2d 449.) " ' "[A]n entrepreneur need not tolerate customers who damage property, injure others or otherwise disrupt his business." ' " (O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at p. 794, 191 Cal.Rptr. 302, 662 P.2d 427; Marina Point, supra, 30 Cal.3d at p. 737, 180 Cal.Rptr. 496, 640 P.2d 115; In re Cox, supra, 3 Cal.3d at p. 217, 90 Cal.Rptr. 24, 474 P.2d 992.)

In certain contexts, it has been said that the Act is inapplicable to discrimination between patrons based on the "nature of the business enterprise and of the facilities provided." (O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at p. 794, 191 Cal.Rptr. 302, 662 P.2d 427; see Marina Point, supra, 30 Cal.3d at p. 741, 180 Cal.Rptr. 496, 640 P.2d 115; Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, 796-798, 168 Cal.Rptr. 878.) However, few cases have held discriminatory treatment to be nonarbitrary based solely on the special nature of the business establishment.

One such case is Wynn v. Monterey Club, supra, 111 Cal.App.3d 789, 168 Cal.Rptr. 878. In Wynn, the Court of Appeal held that excluding an individual woman from a gambling club did not violate the Unruh Act when she was "a compulsive gambler who had manifested a propensity to gamble beyond her means to the extent of committing what was possibly an illegal act, all of which was having a detrimental effect on her own well-being as well as that of her husband, and these factors were all known to the defendants." (Id., at p. 797, ...