Marsh v. Edwards Theatres Circuit, Inc.
| Decision Date | 16 December 1976 |
| Citation | 134 Cal.Rptr. 844,64 Cal.App.3d 881 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert L. MARSH, Jr., Plaintiff, Appellant and Respondent, v. EDWARDS THEATRES CIRCUIT, INC., a corporation, dba Edwards Newport Cinema, Defendants, Respondents and Appellants. Civ. 47770. |
Nichols & Rose, Mason H. Rose, Patricia L. Riley, Los Angeles, for plaintiff, appellant and respondent.
Davidson & Davidson, Harold W. Davidson, Alhambra, for defendants, respondents and appellants.
Fred Okrand, Jill Jakes, Mary Ellen Gale, Los Angeles, Gary D. Sowards, Santa Monica, amicus curiae, ACLU Foundation of Southern California.
Plaintiff is a quadraplegic confined to a wheelchair. He commenced this action against the defendant, an owner and operator of a chain of motion picture theatres, alleging that the latter unlawfully discriminated against him because of his physical handicap by denying him admission to its Newport Cinema Theatre.
The complaint alleged that defendant's conduct violated various provisions of the United States Constitution as well as federal and state statutes. The prayer was for compensatory, statutory and punitive damages and an injunction against future violations.
The case was tried, and properly so, on the basis of California statutory law. Defendant's business is a private venture. No public funds are involved nor is there any governmental action or participation in the maintenance or operation of defendant's theatres. Furthermore, in this case, defendant did not seek to invoke state action in the form of judicial process against the plaintiff. The court was not asked to enforce a discriminatory state law nor to lend judicial assistance to discrimination by a private person. (Cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603; Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131; see also Diamond v. Bland, 11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460; Newby v. Alto Riviera Apartments, 60 Cal.App.3d 288, 131 Cal.Rptr. 547.)
Federal anti-discrimination statutes are no broader in application to the circumstances here involved than are the California statutes. Federal law in a manner similar to California law, generally prohibits discrimination on the basis of race, color, religion or national origin in public accommodations. (See 42 U.S.C.A., § 2000a et seq.; 42 U.S.C.A., § 1983.)
Hence plaintiff, if he is to prevail, must establish that defendant's conduct violated those statutes by which California, under its police power, has barred certain forms of discrimination by privately operated business accommodations. Our resolution of this case is based on an interpretation of those statutes.
In the court below the jury returned a verdict in favor of the plaintiff declaring that defendant had discriminated against him but awarding plaintiff no damages of any kind. The trial judge denied plaintiff's request for an injunction but did award the plaintiff $250 statutory damages pursuant to Civil Code section 52. 1
Plaintiff appeals from that portion of the judgment which makes no award for compensatory or punitive damages and denies injunctive relief. Defendant cross-appeals from the judgment with respect to the finding of discrimination, the award of $250 statutory damages and the award of costs to plaintiff.
There is no significant dispute as to the facts. On April 21, 1972, the plaintiff accompanied by his father and mother arrived at the Newport Cinema Theatre in the City of Newport Beach. The theatre had been built in 1968 in conformance with then applicable building laws. It contained no special facilities for persons in wheelchairs.
The theatre manager, who was acting as box office cashier, informed plaintiff's father that plaintiff would have to leave his wheelchair and occupy a regular seat since the fire regulations prohibited anyone from sitting in the aisles. As an alternative, the manager offered plaintiff a space in front of the regular seats a short distance from the screen.
Plaintiff was unwilling to risk injury by being lifted from his wheelchair into a theatre seat and did not wish to be placed near the screen. He left the theatre with feelings of frustration and humiliation. Beyond being upset, he suffered no monetary loss or physical harm as a result of the incident.
Plaintiff advances a number of claims of error in procedural and evidentiary rulings. The significance of these contentions, however, is totally dependent on the determination of the correctness of his basic premise which is that defendant in constructing and maintaining a building without the modifications necessary to accommodate persons suffering from physical handicaps, violated those laws which prohibit discrimination by operators of public accommodations such as theatres.
The question then is--does California law which prohibits discrimination against the physically handicapped in access to public accommodations require the operator of such accommodations, absent specific legislation mandating it, to make structural modifications in order to facilitate access. Under the present state of the law the answer is 'No.'
In 1968, the Legislature had enacted Civil Code sections 54.1 and 54.3.
'(a) Blind persons, visually handicapped persons, and other physically disabled persons shall be entitled to Full and equal access, as other members of the general public, to accommodations, advantages, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats or any other public conveyances or modes of transportation, hotels, lodging places, places of public accommodation, amusement or resort, and other places to which the general public is invited, Subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.' (Emphasis added.)
Civil Code section 54.3 provided:
'Any person or persons, firm or corporation who denies or interferes with admitance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of a totally or partially blind person or other disabled person under Sections 54, 54.1 and 54.2 shall be guilty of a misdemeanor.'
Under these provisions discrimination against handicapped persons was declared to be a crime. The effect of such declaration was to invoke the threat of criminal prosecution as a deterrent to such discrimination while at the same time vesting the public prosecutor with the responsibility for determining whether or not in each case access was equally available to all members of the public and whether a particular denial of access was based on legally established conditions and limitations.
These statutes created no private cause of action. This conclusion is compelled by the fact that in 1974 the Legislature did enact Civil Code section 55 which provides a private remedy as follows:
Concern about the effect of the design and construction of buildings and sidewalks on the ability of handicapped persons to have access to and use Public buildings led in 1968 to the enactment of Government Code section 4450. That section provided for the establishment of standards for buildings constructed with Public funds. These standards which were to adhere to the American Standards Association specifications were designed to insure such accessibility.
Effective July 1, 1970, public accommodations and facilities thereafter constructed with Private funds were with certain limited exceptions required to conform to the above referenced standards. (Health & Saf.Code, §§ 19995, 19956.)
Health and Safety Code section 19959 enacted in 1971 provided a limitation to the standards set out in Government Code section 4450 and Health and Safety Code section 19955, as follows:
Present public accommodation laws prohibit gross and invidious discrimination. They do not impose affirmative duties of the type which plaintiff seeks to impose. Government Code section 4450 and Health and Safety Code sections 19955, 19956, 19959 make clear the legislative intent. That intent is that affirmative conduct is required only when directed by those sections dealing with construction of new facilities or with the repair and alteration of existing facilities.
This court is not insensitive to the hardships suffered by persons who are afflicted with the wide range of physical disabilities that exist in our society. Many of these disabilities are suffered by persons who served their country in one or more of the three recent debilitating wars in which this country has been involved. Our society's traditional concern for the less fortunate among us requires that we take all appropriate measures to lessen the burden of handicapped persons.
The varied and distinctive nature of the numerous handicaps...
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