Vaughn v. Hugo Neu Proler International

• Decision Date: 25 September 1990
• Citation: 273 Cal.Rptr. 426,223 Cal.App.3d 1612
• Court: California Court of Appeals Court of Appeals
• Parties: Grace VAUGHN, Plaintiff and Appellant, v. HUGO NEU PROLER INTERNATIONAL, a California partnership; Proler International Corp., a Delaware corporation; Neil Kerney; Jack Fletcher, as individuals; and Does I through XX, inclusive, Defendants and Respondents. Civ. B044910.

Page 426

273 Cal.Rptr. 426

223 Cal.App.3d 1612

Grace VAUGHN, Plaintiff and Appellant, v. HUGO NEU PROLER INTERNATIONAL, a California partnership; Proler International Corp., a Delaware corporation; Neil Kerney; Jack Fletcher, as individuals; and Does I through XX, inclusive, Defendants and Respondents.

Civ. B044910.

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

Sept. 25, 1990.

Certified for Partial Publication ^*

Review Denied Dec. 13, 1990.

Sievers, Haigh & Minsky, Larry Minsky, Long Beach, for plaintiff and appellant.

Hill, Farrer & Burrill, Jonathan M. Brandler, Neil D. Martin, Los Angeles, Ondrea Dae Hidley, Sunland, for defendants and respondents.

TURNER, Associate Justice.

I. PROCEDURAL HISTORY

On April 19, 1989, Plaintiff, Grace Vaughn, filed a complaint for damages and injunctive relief against defendants Hugo Neu Proler International (Neu), Proler International Corporation, Neil Kerney and Jack Fletcher (Fletcher). The complaint alleged causes of action for violation of the Unruh Civil Rights Act (Civ.Code, § 51 et seq.) ¹ (first), intentional and negligent interference with prospective business advantage (second and third), intentional infliction of emotional distress (fourth), negligent infliction of emotional distress (fifth) and civil conspiracy (sixth).

Defendants filed special demurrers to the first and fourth causes of action and general demurrers to all causes of action. The trial court sustained all the demurrers on the grounds stated in the demurrers. Plaintiff chose not to amend the complaint and stipulated to a dismissal of the action pursuant to Code of Civil Procedure section 581 subdivision (f)(2). Plaintiff filed a timely notice of appeal from the order granting dismissal. We affirm the dismissal of the cause of action for intentional infliction of emotional distress in the fourth cause of action but reverse the dismissal of all other causes of action. In the published portion of this opinion, we discuss the correctness of the trial court's order sustaining a demurrer to plaintiff's cause of action premised on the Unruh Civil Rights Act.

II. FACTS

Pursuant to settled case law, we assume the truth of all properly pleaded material allegations of the complaint. (Phillips v. Desert Hospital Dist. (1988) 210 Cal.App.3d 1060, 1065, 243 Cal.Rptr. 196.) Plaintiff alleged that she was in the business of procuring and selling scrap metal to various scrap metal processing and distribution centers. Plaintiff entered into various oral agreements with third parties to assist her in procuring and selling scrap metal. Defendants were aware of the agreements.

The complaint further alleged that all defendants owned and operated a scrap metal processing and distribution facility on Terminal Island. On May 29, 1985, plaintiff filed a lawsuit (Los Angeles Superior Court case no. C549491) against Neu in which it was alleged that she and other females were not permitted to enter defendants' business in order to assist in the unloading of scrap metal although men were permitted to do so. The suit sought relief under the Unruh Civil Rights Act based on Neu's discrimination against plaintiff because she was a woman. That gender discrimination action was resolved in April, 1986.

Following settlement of that lawsuit, defendants sporadically allowed plaintiff access to unwanted scrap metal at the Terminal Island facility. Defendants had scrap metal which they could not use and allowed other scrap metal dealers to enter their premises to remove the unwanted scrap metal. Eventually, in February, 1989, plaintiff and persons acting on her behalf were refused access to the property to pick up the unwanted scrap metal. Defendants also refused to purchase scrap metal from plaintiff or her assistants. Persons other than plaintiff and her assistants were allowed free egress and ingress onto defendants' property to pick up discarded scrap metal. Persons other than plaintiff and her assistants were also allowed to pick up abandoned metal from surrounding areas and from the truck beds of other scrap metal sellers. Defendants prohibited plaintiff from entering adjoining property to pick up discarded scrap metal.

On January 20, 1989, while plaintiff was on the property adjoining defendants' premises, defendants advised the Port of Los Angeles Police Department that plaintiff was trespassing and requested that she be arrested. Nearly one month later on February 15, 1989, one of plaintiff's assistants was injured by Fletcher who was acting on behalf of the other defendants. Fletcher struck and grabbed plaintiff's assistant as he attempted to procure unwanted scrap metal from the property next to defendant's scrap metal business. Plaintiff alleged that defendants' actions were taken in retaliation for the underlying gender discrimination lawsuit filed in May 1985 by her against Neu which had been settled.

III. DISCUSSION

A. Standard of Review

In this appeal, plaintiff challenges the trial court's order sustaining the special and general demurrers. Where a plaintiff is given the opportunity to amend the complaint and chooses not to do so, an appellate court is required to construe the complaint strictly and to presume that the plaintiff has stated as strong a case as possible. (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681.) A judgment of dismissal must be affirmed if the complaint is objectionable on any ground raised by the demurrer. (Ibid.)

B. The First Cause of Action Under the Unruh Civil Rights Act

Plaintiff contends that the trial court abused its discretion in sustaining general and special demurrers to her first cause of action for violation of the Unruh Civil Rights Act (§ 51 et seq.). For the reasons stated below, we conclude that both demurrers should have been overruled.

1. General Demurrer

Defendants contend that since plaintiff was not a member of a class when she filed the lawsuit in this case she has no claim under the act. They claim that they are free to discriminate against any "individual." Section 51 provides in part: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever." The Supreme Court has held that the conduct that is enumerated in section 51 is illustrative rather than restrictive. (In re Cox (1970) 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992.) Both the language of the statute and its history "disclose a clear and large design to interdict all arbitrary discrimination by a business enterprise." (Ibid.) ² "The act protects all persons from arbitrary discrimination...." (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795, 191 Cal.Rptr. 320, 662 P.2d 427.) It is not limited to a category of "protected classes." (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730, 180 Cal.Rptr. 496, 640 P.2d 115.) The statutory right afforded "all persons" by section 51 is of an individual nature. (Id. at p. 738, 180 Cal.Rptr. 496, 640 P.2d 115.) Section 51 was derived "from the common law doctrine which imposed upon certain enterprises affected with a public interest ' "the duty to serve all customers on reasonable terms without discrimination." ' [Citation.] Under this common law principle, each member of the public, as an individual, possessed the right to obtain services of such enterprises. [Citations.] p The rights afforded by the Unruh Act similarly are enjoyed by all persons, as individuals." (Ibid.)

Defendants urge this court to narrowly construe the language in Cox and Marina Point which hold business establishments cannot discriminate against classes of persons to mean that the statute is limited to persons who have been identified as members of a particular class. Such a construction would be inconsistent with the express language of the statute which does not limit the application of the statute to identifiable members of a particular class but includes "all persons." There are also numerous cases which have upheld the rights of an individual to be free from discrimination by business establishments. For example, in Orloff v. Los Angeles Turf Club, Inc. (1951) 36 Cal.2d 734, 737-739, 227 P.2d 449, a case interpreting pre-Unruh Act civil rights statutes, the Supreme Court concluded that a person who had been convicted of gambling could not be excluded from a race track because of his allegedly immoral character. In Leach v. Drummond Medical Group, Inc. (1983) 144 Cal.App.3d 362, 370-372, 192 Cal.Rptr. 650, the Court of Appeal determined that a person who filed a complaint with a state agency against a medical group could not be denied access to the medical facility in retaliation for having filed the complaint. In Winchell v. English (1976) 62 Cal.App.3d 125, 128-130, 133 Cal.Rptr. 20, the court held that a person who associated with Blacks could not be discriminated against because of that association. In the case of In re Cox, supra, 3 Cal.3d at pp. 210-216, 90 Cal.Rptr. 24, 474 P.2d 992, the Supreme Court held that a person who associated with a "hippie" could not be excluded from a shopping center due to that association.

Furthermore, the act is to be liberally construed with a view to effecting its object and to promote justice. (§ 4; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, 219 Cal.Rptr. 133, 707 P.2d 195.) Allowing defendants to discriminate against plaintiff because she had previously filed a gender discrimination lawsuit would be contrary to the primary purpose of the act which "is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act." (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733, ...