Pines v. Tomson

• Citation: 206 Cal.Rptr. 866,160 Cal.App.3d 370
• Parties: , 1984-2 Trade Cases P 66,308 David PINES, George Aronek, d/b/a Grecian Art Tiles and Anti-Defamation League of B'Nai B'Rith, Plaintiffs and Respondents, v. W.R. TOMSON and the Family of Faith Foundation, Defendants and Appellants. Civ. 68622.
• Decision Date: 27 September 1984
• Court: California Court of Appeals

Page 866

206 Cal.Rptr. 866

160 Cal.App.3d 370, 1984-2 Trade Cases P 66,308

David PINES, George Aronek, d/b/a Grecian Art Tiles and Anti-Defamation League of B'Nai B'Rith, Plaintiffs and Respondents, v. W.R. TOMSON and the Family of Faith Foundation, Defendants and Appellants.

Civ. 68622.

Court of Appeal, Second District, Division 3, California.

Sept. 27, 1984.

As Modified Oct. 16, 1984.

Weisz & Weisz, Michael B. Weisz and Richard A. Weisz, Los Angeles, for plaintiffs and respondents.

Llewellyn & Associates, David L. Llewellyn, Jr., Santa Ana, for defendants and appellants.

Gilbert Gaynor and Fred Okrand, Los Angeles, for amicus curiae, ACLU Foundation of Southern Cal.

ARABIAN, Associate Justice.

INTRODUCTION

Plaintiffs and respondents David Pines, George Aronek, doing business under the fictitious name of Grecian Art Tiles, and

Anti-Defamation League of B'nai B'rith ¹ (individually, "Pines," "Aronek," "Grecian Art Tiles" and "the ADL," and collectively, "respondents") brought an action against defendants and appellants W.R. Tomson and the Family of Faith Foundation (individually, "Tomson" and the "Foundation," and collectively, "appellants"), charging violations of three California statutes which prohibit religious discrimination (Civ.Code, §§ 51, 51.5; Bus. & Prof.Code, § 16721; Bus. & Prof.Code, [160 Cal.App.3d 375] § 17200 et seq.). The trial court found for respondents and issued a wide-ranging judgment for injunctive and monetary relief. We affirm in part and reverse in part for the reasons stated below.

FACTS

Since 1976, Tomson and his successor-in-interest, the Foundation, have owned and operated a business telephone directory called the "Christian Yellow Pages" (the "CYP"), which will only accept advertisements placed by a person who affirms orally and in writing that he has accepted Jesus Christ as his personal savior and is a "born-again" Christian. ²

Each CYP directory contains a full page message from the publishers of CYP, denominated "The Christian Yellow Pages Concept," which states:

"The publishers of Christian Yellow Pages hold the Bible to be the Inspired Word of God, the Rule Book for Life which presents Jesus Christ, God's only begotten Son, whose death and bodily resurrection provide forgiveness from sin and eternal life. His indwelling presence through the Holy Spirit gives power and purpose to our living. It is the Christian's duty and privilege to give this message of hope to the whole world until the return of Jesus Christ for the establishment of His Kingdom.

"In publishing the CYP directory we are often asked 'Who is a Christian?' By Christian we mean those who have accepted the fact that Jesus came to this earth--died on the cross of Calvary to pay for OUR sins--was resurrected--and lives NOW in the hearts of those who believe.

"Those whose advertisements appear in the CYP directory have declared orally and in writing that this is their position in Christ--and are standing up and being counted as Christians in our community.

"One of the primary purposes of the CYP directory is to strengthen the Christian community in which it is being published by pointing out some of the many businesses operated by Christians--therefore offering the entire community the opportunity to do business with Christian business people.

"Please recognize the fact that a Christian businessman advertising [sic] in the CYP directory does not mean that all of his employees are Christians--nor does it mean that a Christian employee placing an ad in the directory imply [sic] that his employer is a Christian--so we urge the user to contact the individual Christian listed wherever possible, and if indeed the user is a Christian we urge him to identify himself as a fellow Christian--thereby further uniting the Body of Christ.

"Advertising in the CYP directory does not mean that the advertiser is any cheaper in his prices, nor does it necessarily mean that the quality of his work is any better than his competitor--what it does mean is that his stand in Christ should guarantee that he is doing his "If we have missed you in this edition and you would like to have been included--please forgive us--we tried to contact all Christian people whose names we were able to obtain. Please call or write and you will be contacted before the next edition is published.

level best--that he is honest and fair in his prices--and that the purchaser should be entitled to and receive courteous--considerate and Christian treatment in all transactions.

"Our prayer is that this directory will be accepted in the Spirit in which it has been published. We ask the Christian community to patronize these Christian advertisers--and any other Christian business people that they are able to locate.

"As we have therefore opportunity, let us do good unto all men, especially unto them who are of the household of faith. (Gal: 6:10)"

Tomson was the sole owner of the CYP logo and federally registered trademark until August 15, 1977, when he transferred to the Foundation all of his rights, interests, duties and obligations in the CYP, including the logo, the trademark and the right to receive royalties from the sale of CYP advertisements or listings. Thereafter, on August 29, 1977, the Foundation was incorporated under the laws of California as a non-profit religious corporation, with its "National" or home office in Modesto, California. Tomson is president of the Foundation and a member of its Board of Directors.

The CYP is modeled after the "Yellow Pages" of a telephone company and contains primarily advertisements and listings paid for by business or professional people and offers for sale secular or commercial goods and services. Christian adages and symbols and Biblical quotations occur on most pages of the directories. Each directory is published for one of nine separate geographical regions in the United States and the advertisements and listings are grouped according to region.

The "Contract of Appointment of Regional Director" between Tomson, as the National Director of the CYP, and the CYP Regional Director for the region which includes California, requires that the Regional Director accept orders for advertising space only from persons who qualify as "born-again" Christians.

Respondents Pines and Aronek are partners in Grecian Art Tiles, which imports tiles from Greece, some of which depict Christian images and scenes. On August 15, 1977, Pines and Aronek attempted to place an advertisement of their wares in the CYP. Because they are of the Jewish faith, Pines and Aronek could not and would not sign nor utter the "born-again" Christian oath. For that reason, they were not allowed to place their advertisement in the CYP. Pines and Aronek, joined by the ADL, acting as a private attorney general, brought the instant action against appellants, seeking damages and injunctive relief.

The trial court determined, inter alia, that publication and distribution by Tomson and the Foundation of "The Christian Yellow Pages Concept" in the CYP were acts of discriminatory business conduct on the basis of religion and acts which aid or incite discriminatory business conduct on the basis of religion; that their refusal to accept advertisements or listings from any person who refused to affirm he is a "born-again" Christian was arbitrary and discriminatory business conduct on the basis of religion; that their conduct and activity in producing, publishing and distributing the CYP and soliciting and selling advertisements and listings was secular commercial conduct performed for profit and, thus, the CYP was a "business establishment" within the meaning of Civil Code sections 51, 51.5 and 52; that their conduct in aiding and inciting discriminatory business conduct on the basis of religion violated Civil Code sections 51, 51.5 and 52; that their required exclusion of persons from "business transactions" on the basis of religion, by means of a policy expressed in a written document, violated Business and Professions Code section 16721; that their conduct The trial court's judgment awarded Pines and Aronek $250 each in damages, awarded Pines, Aronek and the ADL costs and reasonable attorneys fees and enjoined appellants from (1) requiring advertisers or listers in the CYP to affirm they are "born-again" Christians, (2) publishing in the CYP any "concept" statement or editorial policy, as exemplified by "The Christian Yellow Pages Concept," supra, and (3) publishing advertisements or material in the CYP which requires direct or indirect identification of the advertisers' or listers' religious affiliation. ³ Appellants timely appealed from the trial court's judgment.

                constituted "unlawful and unfair business practices and unfair competition" which violated Business and Professions Code section 17200 et seq.;   that their discriminatory conduct "is not protected activity under the freedom of speech, press, association, or free exercise of religion provisions of the United States Constitution or the California State Constitution";  and that their discriminatory conduct caused Pines and Aronek to suffer "actual injury and damages in the amount of $250.00."
                

CONTENTIONS

Appellant contends:

I. There is insufficient evidence to support the trial court's determination that appellants' conduct and activities violated California statutory law (Civ.Code, §§ 51, 51.5, 52; Bus. & Prof.Code, §§ 16721, 16750; Bus. & Prof.Code, § 17200 et seq.) because:

A. Respondents lacked standing to sue for alleged violations of "the unfair competition" statute, Business and Professions Code sections 17200 et seq., since they were not competitors of the appellants and did not allege the consuming public has been injured by appellants' conduct.

B. Respondents lacked standing to sue for alleged violations of Business and Professions Code section 16721 since they suffered no demonstrable injury to their "business or property" as required by Business and...