Starkman v. Mann Theatres Corp.

• Decision Date: 27 February 1991
• Docket Number: No. B047058,B047058
• Citation: 227 Cal.App.3d 1491,278 Cal.Rptr. 543
• Court: California Court of Appeals Court of Appeals
• Parties: Isaac STARKMAN, Plaintiff and Appellant, v. MANN THEATRES CORPORATION, Etc., Defendant and Respondent. Civ.

Page 543

278 Cal.Rptr. 543

227 Cal.App.3d 1491

Isaac STARKMAN, Plaintiff and Appellant, v. MANN THEATRES CORPORATION, Etc., Defendant and Respondent.

Civ. No. B047058.

Court of Appeal, Second District, Division 5, California.

Feb. 27, 1991.

Raiskin & Revitz and Steven J. Revitz, Los Angeles, for plaintiff and appellant.

O'Melveny & Myers, Richard N. Fisher and Renee P. Turkell, Los Angeles, for defendant and respondent.

ASHBY, Associate Justice.

For decades, Americans have gone to the movies expecting popcorn and discount tickets for senior citizens and children. This suit challenges a theater's right to offer these price discounts.

FACTS

Plaintiff Isaac Starkman went with his wife and two children to the Mann's National Theatre in Westwood, California, owned by defendant Mann Theatres Corporation. ¹ Plaintiff paid the $6.00 general admission price for his ticket as he did not qualify for either the senior citizen discount (60 years and older) or the discount for children (12 years of age or under). ²

Plaintiff brought this suit alleging the theater's pricing policy denied him equal protection under the Unruh Civil Rights Act. (Civ.Code, § 51.) Thereafter, defendant brought a motion for summary adjudication of issues alleging the price discounts did not violate the Unruh Act. Defendant supported its motion with a declaration from its Director of Operations. The director stated that defendant, in a prior corporate form, offered discountsto children and senior citizens since the early 1920's; that these discounts were a uniform fixture in the motion picture industry as well as other public amusement businesses. He further stated: "[t]his industry tradition is rooted in the belief that the theatrical exhibition of motion pictures is a family-oriented business and the belief that children and senior citizens are worthy of a discount because they generally have less discretionary disposable income and limited earning opportunities, and tend to be economically dependent (either upon fixed incomes or upon parents)." His declaration revealed that defendant strongly preferred to continue these discounts because "(a) we continue to believe that it is a socially responsible practice which emphasizes the family-oriented nature of our business, benefits disadvantaged age groups, and promotes public good will; and (b) we believe that these discounts are so well-established that the public expects them and takes them for granted to the point that their elimination would be regarded by our customers as venal and mean-spirited, and would subject our business to adverse public reaction, resentment, hostility and ill will." In discussing defendant's pricing policies, he noted that the price for the full price ticket was first determined; the price for senior and children discount tickets was then set at one-half of the full priced ticket. He noted the cost of full-price admissions was based solely upon what the market would bear and the full price ticket did not attempt to recoup any moneys potentially lost from the sale of discount tickets.

In response, plaintiff argued defendant's pricing policies were arbitrary and capricious. In support of this position, plaintiff submitted the declaration of defendant's ex-employee who had been a cashier and usher for approximately three years. The ex-employee declared that in his observations, "in probably 90% of the cases, [tickets The court granted defendant's motion for summary adjudication of issues finding that the discounting of admission fees for children aged 12 and younger and for senior citizens aged 60 and older did not constitute unreasonable, arbitrary or invidious discrimination and therefore did not violate the Unruh Act. Plaintiff appeals from the judgment entered in favor of defendant. ³

                at defendant's theater] were purchased by adults."   Plaintiff also submitted the declaration and resume of Robert Avery, Associate Professor of Consumer Economics and Housing at Cornell University, along with an article Avery co-authored for the Federal Reserve Bulletin, entitled "Financial Characteristics of High-Income Families."   Avery attested that the conclusions in the article were accurate as based upon an accurate survey of the American population.  In summarizing the article, Avery stated:  "First, the use of debt, in terms of both incidents and payments levels, is highest for families whose heads are 25-54 years of age and lowest among families with heads 55 years of age and older.  Second, about 43 percent of the high-income families headed by persons aged 65 years or more had a net worth of at least one million dollars.  Third, except for young households, the distribution of families across the various levels of wealth does not appear to be strongly related to age."
                

DISCUSSION

SUMMARY JUDGMENT

In the hearing below the court ruled upon defendant's motion for summary adjudication of issues finding that defendant's pricing policy did not violate the Unruh Act (Civ.Code, § 51). Matters summarily adjudicated utilize the same procedural rules as summary judgment motions. "Summary judgments look behind the pleadings to determine if the claims or defenses of a party are sham or without any evidence to support the claim." (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 976, 243 Cal.Rptr. 277.) The proponent of the summary judgment must establish that, based upon the declarations presented (Code Civ.Proc., § 437c, subd. (c)) and those matters of which courts can take judicial notice (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689; McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 794, 168 Cal.Rptr. 89), there are no triable issues of fact. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Admissible evidence includes facts presented upon declaration of persons with personal knowledge, and those attested to by experts. (Code Civ.Proc., § 437c, subd (d); Evid.Code, § 801; see, e.g., Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172-173, 158 Cal.Rptr. 587.) In addition, the court may consider those facts and propositions of generalized knowledge which are so universally known they cannot reasonably be disputed. (Evid.Code, § 451, subd. (f).)

"We recognize that summary judgment procedures are viewed as 'drastic' [citations]; however, the purpose of a summary judgment is to expedite litigation by avoiding needless trials' [citation]. If there are no triable issues, summary judgment is appropriate." (Burton v. Security Pacific Nat. Bank, supra, 197 Cal.App.3d at pp. 976-977, 243 Cal.Rptr. 277.)

UNRUH ACT

The issue before us is whether the Unruh Act prohibits a movie theater from offering discount tickets to senior citizens and children. Plaintiff's argument is that basing prices upon age classifications violates the Act.

The Unruh Act, California Civil Code section 51, ⁴ bars business establishments from "engaging in 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.) Although the act makes specific references to "particular bases of discrimination--'sex, color, race, religion, ancestry or national origin' [or blindness or other physical disability]--[these categories are] illustrative rather than restrictive." (Id.) "The Act is to be given a liberal construction with a view to effectuating its purposes." (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, 219 Cal.Rptr. 133, 707 P.2d 195.) Thus, even though the Act does not delineate "age" as a category, it may be applicable in situations in which business establishments make classifications based upon age. (See, e.g., O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115.)

Neither party suggests theaters are not business establishments within the act. (Jones v. Kehrlein (1920) 49 Cal.App. 646, 194 P. 55.) The parties also recognize that the Unruh Act is designed to address concerns "not only with access to business establishments, but with equal treatment of patrons in all aspects of the business." (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 29, 219 Cal.Rptr. 133, 707 P.2d 195.) Thus, in the proper situation, the Act could be applicable to businesses who discriminate by offering price discounts to certain classes of individuals. (See, e.g., Id.)

Before we discuss the facts before us, it is necessary to determine the level of scrutiny to be applied. Under the United States Constitution, no state may deny equal protection of the laws to any person. Distinctions based upon race, alienage, national origin, and gender all receive heightened standards of review because classifications based upon these factors "are so seldom relevant to the achievement of any legitimate state interest" (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313) or "generally provides no sensible ground for differential treatment." (Id.) On the other hand, the United States Supreme Court has refused to apply a heightened level of examination to age-based discrimination because persons in this classification have not been subjected to a history of discrimination on the basis of stereotyped characteristics. (Id. at p. 441, 105 S.Ct. at p. 3255.)

The California Supreme Court appears to use different tests in determining when a private person or entity can legally discriminate under the Unruh Act. In In re Cox (1970) 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992, the court indicated that the Unruh Act's "broad interdiction ... is not absolute; [business enterprises] may establish reasonable regulations that are rationally related to the services performed and facilities provided." (Emphasis added.) Thus, if it is factually determined to be reasonable,...