Swann v. Burkett

• Decision Date: 19 November 1962
• Citation: 26 Cal.Rptr. 286,209 Cal.App.2d 685
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene M. SWANN, Cherie A. Swann, Plaintiffs and Appellants, v. Eugene H. BURKETT, Aline B. Burkett and Robert H. Burkett, Defendants and Respondents. Civ. 20464.

Page 286

26 Cal.Rptr. 286

209 Cal.App.2d 685

Eugene M. SWANN, Cherie A. Swann, Plaintiffs and Appellants, v. Eugene H. BURKETT, Aline B. Burkett and Robert H. Burkett, Defendants and Respondents.

Civ. 20464.

District Court of Appeal, First District, Division 1, California.

Nov. 19, 1962.

Hearing Denied Jan. 16, 1963.

Geoffrey C. Hazard, Berkeley, Reeser, Farrow, Barton & Barton, Oakland, for appellants.

Howard W. Wayne, Berkeley, for respondents.

BRAY, Presiding Justice.

Appeal certified to this court by the Appellate Department of the Alameda County Superior Court.

QUESTION PRESENTED.

Is a person renting the units in a 'triplex' dwelling operating a 'business establishment' within the meaning of the Unruh Civil Rights Act (Civ.Code, § 51)?

RECORD.

Plaintiffs, husband and wife, brought suit in the Municipal Court of the Berkeley-Albany Judicial District under the Unruh Act to recover damages, alleging that defendants were the owners of a triplex dwelling in Berkeley and that defendants had refused to rent one of its units to plaintiffs for the sole reason that plaintiffs are Negroes. The trial was before the court without a jury. The evidence showed that defendants, who owned and lived in their own home in another location, owned two pieces of property in Berkeley, one consisting of a triplex and a rear garden cottage on Benvenue Street, and the other consisting of two units and a rear garden cottage on Hillegass Avenue. Both properties consist of living units and are considered 'income property.' Defendants maintain no office, and employ no persons to assist them in the rental or maintenance of these properties.

On completion of plaintiffs' case, defendants moved for a nonsuit on the ground pertinent here, that the activities conducted by defendants in connection with the triplex did not constitute a 'business establishment' within the meaning of Civil Code section 51. The motion was granted. Plaintiffs appealed to the Appellate Department of the Superior Court. That court held that defendants' activities constituted the conducting of a 'business establishment' and reversed the judgment. The appellate department on its own motion then certified the action to this court ¹ stating the question to be determined to be: 'Is an apartment building operated by its owner to produce income, and not used or occupied by him for any personal purpose, included within the term 'business establishment of every kind whatsoever' * * *' as used in section 51? As the building in question here is a triplex and there seems to be a distinction between an apartment building and a triplex, it may be that the appellate department made the question too broad in applying the question to 'an apartment building.' We desire to and will limit the question to the situation here; namely, a triplex within the provisions of section 51. We understand a triplex to be a structure consisting of three separate units or flats, complete in themselves and rented separately. Quite often one of the units is occupied by the owner.

'BUSINESS ESTABLISHMENT.'

The portion of section 51 pertinent here reads: 'All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.'

Section 52 makes liable for the actual damages plus $250 any person who denies or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of race, color, etc., contrary to the provisions of section 51.

The above language was placed in section 51 by amendment in 1959 (Stats.1959, ch. 1866, § 1, p. 4424). Since that time four cases have considered the section.

The first case is Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 20 Cal.Rptr. 609, 370 P.2d 313. There the defendant Poppy Construction Co. was engaged in the developing, building and selling of tract homes, which it advertised for sale to the public. The plaintiffs, Negroes, sued the defendant company and its employee in two causes of action, one claiming a violation of the Unruh Act, the other claiming a violation of the Hawkins Act (Health & Saf. Code § 35720, which makes it unlawful for the owner of housing accommodations which were 'publicly assisted,' as there set forth, to discriminate against any person because of race, etc., in connection with the rental or sale of the housing accommodation). The trial court sustained a demurrer without leave to amend to the first court (the Unruh count). In reversing, the Supreme Court held, 'It is clear that defendants operated 'business establishments' within the meaning of the term as used in the Unruh Act.' (P. 469, 20 Cal.Rptr. p. 612, 370 P.2d p. 316.)

The second case is Lee v. O'Hara (1962) 57 Cal.2d 476, 20 Cal.Rptr. 617, 370 P.2d 321. There the defendants were licensed real estate brokers who, the complaint alleged, were 'retained in that capacity to rent certain described premises to any member of the public ready, willing, and able to rent such premises upon the terms offered. In February 1961 plaintiff [a Negro] requested defendants to procure possession of the premises for him upon the offered terms, and defendants refused to rent to plaintiff solely because of his race.' (P. 477, 20 Cal.Rptr. p. 617, 370 P.2d p. 321.) In reversing the trial court's action in sustaining a demurrer without leave to amend to the complaint alleging the above matter, the Supreme Court said, 'The office which a real estate broker is required by law to maintain at a specified location, and from which his business must be transacted, is a business establishment within the meaning of the Unruh Act.' (P. 478, 20 Cal.Rptr. p. 618, 370 P.2d p. 322.)

The third case is Vargas v. Hampson (1962) 57 Cal.2d 479, 20 Cal.Rptr. 618, 370 P.2d 322. There it was alleged in the complaint that the defendant, a real estate broker, was engaged in that capacity in connection with the sale of real property in a tract development, and that the defendant refused to sell real property in the tract to the plaintiffs, who were Mexican. The Supreme Court held that the complaint stated a cause of action against the defendant for violation of the Unruh Act. However, the complaint was ambiguous and uncertain in some respects, and the trial court had sustained a special demurrer on those grounds as well as on general grounds, but with leave to amend. Because of the plaintiffs' refusal to amend to clear up the uncertainties and ambiguities the Supreme Court affirmed the judgment of the trial court based upon the sustaining of the special demurrer. ²

The first case, then, dealt with persons engaged in building, developing and selling tract homes, the second and third with real estate brokers in the business of selling and renting homes.

A fourth case, Abstract Investment Co. v. Hutchinson (1962) 204 A.C.A. 271, 22 Cal.Rptr. 309, was an action of eviction, in which the tenant set up the defense that he was being evicted solely because he was a Negro. In holding that the trial court erroneously excluded evidence in support of this defense the court discussed Burks, supra, and stated that the interdictions of the Unruh Act applied to the business of renting housing accommodations and that the renting of the premises on a month to month tenancy constituted a 'business.' The court declined to determine whether the owner was operating a 'business establishment' for the reason that the record was not sufficient to enable it to do so, and that moreover, a determination of whether the owner had violated the Unruh Act was not necessary to the court's decision.

The history of sections 51 and 52 is interesting. In 1893 the Legislature enacted a statute (Stats.1893, ch. 185, p. 220) which made it 'unlawful for * * * the proprietor * * * of any opera house, theater, melodeon, museum, circus, caravan, race course, fair, or other place of public amusement or entertainment, to refuse admittance to any person * * *' except that persons under the influence of liquor, guilty of boisterous conduct, or of lewd or immoral character, could be excluded. It provided that any person refused admission 'to any place of amusement' contrary to this act, would recover from the proprietor his actual damages plus $100.

The penalty provision of this act became section 54, Civil Code (Stats.1905, ch. 413 § 4, p. 554), and the other provision became section 53 (Stats.1905, ch. 413, § 3). In 1897 (Stats.1897, ch. 108, p. 137) the Legislature provided 'That all citizens * * * shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable to all citizens.' It then provided that any person denying to any citizen 'except for reasons applicable alike to every race or color' any of the accommodations and facilities above stated, or who made any discrimination therein because of color or race, would be liable in damages in an amount not less than $50.

In 1905 (Stats.1905, ch. 413, § 1, p. 553) the first portion of this statute became section 51 and the second portion became section 52 (ch. 413, § 2). In 1919 (Stats.1919, ch. 210, § 1, p. 309) 'public conveyances' was added to section 51. In 1923 (Stats.1923, ch. 235, §§ 1, 2, p. 485) there was added 'places where ice cream or soft drinks of any kind are sold for consumption on the premises' to both sections 51 and 52.

By Statutes 1959, chapter 1866, page 4424, sections 51 and 52 were amended to read as hereinbefore set forth, and sections 53 and 54 were repealed. It will be noted that prior to 1959 the only places as to which...