McClain v. City of South Pasadena
| Decision Date | 22 November 1957 |
| Citation | 155 Cal.App.2d 423,318 P.2d 199 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Susan McCLAIN, by her guardian ad litem, Mildred McClain Johnson, Plaintiff and Appellant, v. CITY OF SOUTH PASADENA, Frank Clough, individually, and as City Manager; Don Dollison, individually, and as assistant City Manager; Joseph C. Partsch, individually, as Mayor, and as a member of the City Council of South Pasadena; Clarence Stanyer, Roy L. Anderson, Verne E. Robinson and Selmer I. Snortum, members of the City Council of South Pasadena; Robert Seiler, individually, and as Superintendent of the Department of Recreation of South Pasadena; Neil Cornell, individually, and as an employee of South Pasadena; Donald Skraba, individually, and as an employee of South Pasadena; Cathi McColgan, individually, and as an employee of South Pasadena, Defendants and Respondents. Civ. 22181. |
A. L. Wirin and Hugh R. Manes, Los Angeles, for appellant.
Braeme E. Gigas, City Atty., South Pasadena, and Dunlap, Holmes, Ross & Woodson, Pasadena, for respondents.
Plaintiff, a Negro, brought this suit for damages and an injunction against the city of South Pasadena and officers and employees thereof on the alleged ground she had been unlawfully excluded from the municipal plunge on August 2, 1955 because of her race. The complaint alleges 'plaintiff now brings this action under Sections 51, 52 and 53 of the Civil Code.' The prayer is for $1,000 damages against each defendant and for an injunction restraining defendants from excluding plaintiff from the South Pasadena municipal plunge.
Defendants admitted plaintiff had been excluded from the plunge but alleged the exclusion was solely on the ground she was a nonresident of South Pasadena and that one of the requirements for admission to the plunge was that admittees be residents of South Pasadena.
The cause was tried by the court without a jury. At the trial plaintiff moved for judgment on the pleadings on the ground the regulation excluding nonresidents from the plunge is unlawful. The motion was denied. Judgment was for defendants. Plaintiff appeals.
On August 2, 1955 South Pasadena was a city of the fifth class located in the County of Los Angeles with a population of about 19,000. 1 At that time there apparently were no Negroes residing within the city.
Since 1939 the city has owned and operated through its Department of Recreation a municipal plunge. An admission fee is charged. In 1942 the Recreation Commission adopted this regulation:
'The use of the pool and the recreational facilities adjacent thereto is limited to residents of the City of South Pasadena.' 2
The regulation was adopted due to the fact that so many nonresidents were making use of the plunge that residents of South Pasadena had difficulty in obtaining entrance to it.
The plunge is 50 by 100 feet and has a comfortable capacity of about 350 simultaneous users. In June 1955 there were about 6,000 users; in July, about 14,000. The peak usage is in the month of August. In August 1955 over 15,000 users, or about 500 a day, were recorded. It is the only municipally owned plunge in South Pasadena.
In the afternoon of August 2, 1955 John H. Abbott, a Caucasian residing in the city of Los Angeles, took his two daughters and plaintiff, a 9-year-old Negro girl, also a resident of Los Angeles, to the plunge. He purchased and received four tickets of admission. At this point the cashier, defendant McColgan, noticed plaintiff and asked Abbott if she was in his party. He said, 'Yes.' McColgan told him, 'We couldn't let them in because we have a policy that we reserve the right of use of the pool to residents.' She testified she knew plaintiff was not a resident because at that time there were no Negro families living in South Pasadena. She then called the assistant manager, defendant Skraba. Skraba asked Abbott if he were a resident of South Pasadena and Abbott said, 'No.' Skraba said, 'Therefore, according to our policy, you must be excluded because you are non-resident.' Abbott, his two children, and plaintiff were denied admission to the plunge.
Dr. Martin, a member of the Recreation Commission from 1941 to 1944, testified the plunge was the only one of any size in the vicinity and that when it was newly built it attracted so many nonresidents that residents of South Pasadena had difficulty in obtaining entrance to the use of the facilities. Consequently, the Recreation Commission approved the regulation restricting use of the plunge to residents of South Pasadena.
Skraba testified he worked as a lifeguard and assistant plunge manager during the summer seasons for the years 1953 through 1955 and that he was instructed by the superintendent of the Department of Recreation, defendant Seiler, and the manager of the plunge, defendant Cornell, that the city had a regulation limiting use of the plunge to residents of the city; he was not instructed to exclude from the plunge any person on the ground of race, color, or creed. He testified the regulation was invoked in 1955 to exclude nonresident Caucasians.
The plunge is open from about the middle of June through September for use by residents of South Pasadena on Monday through Saturday from 10:00 to 12:00 and from 1:00 to 5:00; Monday, Wednesday, and Friday evenings from 7:00 to 10:00; and Sundays from 1:00 to 5:00. Occasionally at other hours the plunge has been rented to various organizations without restriction as to race, color, or creed. There was testimony by a Mr. Acorn, who made arrangements with the Recreation Department for rental of the plunge by the churches of South Pasadena in 1955, that no restriction was made with regard to the use of the plunge by members of the Negro race or any other race, color, or creed who might be using it as a part of his group. In 1955 the plunge was rented to a Japanese Buddhist organization and no restriction was specified by South Pasadena as to the use of the plunge by members of the organization with respect to race, color, or creed.
There was much evidence from past and present city officials that South Pasadena has never adopted a regulation, rule, policy, or schedule of any kind limiting, restricting, or excluding Negroes from any recreation facility owned or operated by the city because of race or color.
There was no evidence that any Negro resident of South Pasadena was denied admission to the plunge at any time since it was built.
The court found: 1. On August 2, 1955 there was in existence a regulation of the city of South Pasadena and its Department of Recreation requiring persons who used the plunge to be residents of the city, and on that day McColgan and Skraba knew of the regulation. 2. The plunge was the only such facility publicly owned and operated in and by the city; the plunge was of such size and capacity, the city was so populated, and the seasonal use of the plunge was of such extent and character that the regulation was reasonably justified to assure the orderly use of the plunge and its maximum usefulness. 3. Plaintiff was not a resident of South Pasadena and she was denied permission to use the plunge solely because of the regulation and not on account of her race or color. 4. At no time did South Pasadena, its Department or Recreation, or any of its officers or employees adopt or issue any regulation, rule, policy, custom, or usage which prohibited persons of Negro extraction from use of public recreation facilities on account of their race or color. 5. Persons of Negro extraction have always been permitted to use the public recreational facilities of South Pasadena on the same basis as persons of all other races and colors. 6. Plaintiff did not sustain any embarrassment, humiliation, chagrin, mental anguish, hurt feelings, or physical or mental suffering because of any act, conduct, practice, or omission on the part of defendants. 7. Injunctive relief is not necessary or proper. 8. Plaintiff has not been damaged at all by reason of any regulation, rule, act, or omission of any defendant. The court concluded plaintiff was lawfully denied permission to use the plunge on the occasion alleged and she was not on that occasion denied any right, privilege, or immunity, or deprived of due process of law or the equal protection of the laws.
It is asserted the court erred in denying plaintiff's motion for judgment on the pleadings. A plaintiff may recover judgment on a motion for judgment on the pleadings only if his complaint states facts sufficient to constitute a cause of action and the answer neither raises a material issue not states a defense. Barasch v. Epstein, 147 Cal.App.2d 439, 440, 305 P.2d 283. The complaint alleged that the regulation of South Pasadena prohibited entry into or use of the plunge by all persons of Negro extraction and that plaintiff was excluded solely because she is a Negro. The answer denied these allegations and alleged that in addition to a ticket of admission another requirement to gain admission to the plunge was that persons be residents of South Pasadena. The complaint alleged and the answer denied that Abbott purchased four tickets of admission including one for plaintiff. The answer alleged plaintiff was denied entrance to the plunge solely on the ground she was a nonresident of South Pasadena; to wit, a resident of Los Angeles. The answer alleged, 'Persons of negro extraction have always been permitted and are now permitted to use, and have used, the public recreational facilities of the City on the same basis as persons of all other races and colors.' Every allegation affirmatively pleaded in the answer must be deemed true. Cuneo v. Lawson, 203 Cal. 190, 193, 263 P. 530. Issues of fact were raised. The motion for judgment on the pleadings was properly denied.
It is next asserted the finding that plaintiff was not denied admission to the...
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