Wynn v. Monterey Club

• Decision Date: 05 November 1980
• Citation: 168 Cal.Rptr. 878,111 Cal.App.3d 789
• Parties: Robert H. WYNN, Plaintiff and Appellant, v. The MONTEREY CLUB, a partnership et al., Defendants and Respondents. Civ. 58417.
• Court: California Court of Appeals Court of Appeals

Page 878

168 Cal.Rptr. 878

111 Cal.App.3d 789

Robert H. WYNN, Plaintiff and Appellant, v. The MONTEREY CLUB, a partnership et al., Defendants and Respondents.

Civ. 58417.

Court of Appeal, Second District, Division 2, California.

Nov. 5, 1980.

Rehearing Denied Nov. 25, 1980.

Hearing Denied Jan. 28, 1981.

Allan H. Liebert, Los Angeles, for plaintiff and appellant.

Coyle, Marrone & Robinson, and J. Alan Frederick, Los Angeles, for defendants and respondents.

COMPTON, Associate Justice.

Plaintiff in an action captioned "BREACH OF CONTRACT, FRAUD AND NEGLIGENCE" appeals from a summary judgment entered in favor of defendants who are owners and operators of the Rainbow and the Monterey Clubs. The latter are card clubs licensed by the City of Gardena. We reverse.

The allegations in the complaint, the declarations filed in connection with the motion for summary judgment, and matters of which we may take judicial notice reveal the following facts.

The two card clubs in question maintain, on their premises, areas which are furnished with tables and chairs at which patrons are permitted to play certain described card games for money. The management does not participate in the games but collects from each player a rental per half hour based upon the limit and maximum bet for the game in progress. Hence the higher the wagering, the higher the income to the management.

Each of the clubs affords to certain of its patrons the privilege of cashing checks. There is no question but that the prime purpose of the check cashing activity is to obtain funds for gambling.

Plaintiff's wife is a compulsive gambler who apparently attempted unsuccessfully to cure her problem by membership in an organization known as Gamblers Anonymous. It appears that she, as well as her propensities, were known to the defendants. She was afforded check cashing privileges at the club.

During the latter part of 1973, plaintiff's wife suffered heavy losses while gambling at the two clubs. She cashed $1,750 worth of checks which were dishonored because of insufficient funds.

It is conceded that her gambling debts were not chargeable to plaintiff's and wife's community property. The wife's gambling problem, however, did place a severe strain on their marriage.

Plaintiff contacted defendant Lochhead, one of the general partners in the operation of the two clubs, by telephone and discussed the problem of his wife's indebtedness. According to plaintiff an agreement was reached whereby plaintiff would undertake to satisfy his wife's debts to the two clubs in exchange for defendants' promise to deny his wife access to the clubs and deny her any further check cashing privileges.

The telephone conversation was followed by a letter from defendant Lochhead to plaintiff which read as follows:

"Thank you for your call of Friday, December the 14th. (P) Mrs. Wynn is indebted to the Monterey Cafe in the amount of $1750.,-consisting of checks written during the previous thirty days. These checks, as you know, were returned by her bank marked NSF. (P) As I told you over the phone Mrs. Wynn has been barred from both the Monterey and Rainbow Clubs; she will not be allowed to play in any of the games; and she has been denied all check cashing privileges. (P) Your proposed method of repaying the clubs for her bad checks is satisfactory and I very much appreciate your cooperation."

Plaintiff, during the ensuing year, paid the obligation in full. During that period and for approximately another year thereafter the wife apparently refrained from gambling. In May of 1977, however, plaintiff learned that his wife was again gambling and cashing checks at the defendants' clubs. She apparently had suffered losses of approximately $30,000 and had begun to borrow money from friends to cover those losses.

According to plaintiff the marriage was destroyed and he commenced an action for dissolution. He contemporaneously filed the instant action.

The gravamen of plaintiff's complaint against defendants is that defendants, by deliberately or negligently breaching their contract, caused the disruption of the marriage, which resulted in plaintiff suffering physical and emotional distress compensable by way of general and punitive damages.

Defendants interposed general and special demurrers to the complaint. When the trial court overruled the demurrers, defendants petitioned for a writ of mandate which was denied by this court. Defendants then moved for summary judgment which was granted on condition that defendants refund to plaintiff the $1,750 plus interest from December of 1974.

It is apparent from the record that the sole basis for the granting of the summary judgment was the trial court's view that the contract, upon which plaintiff relies, is illegal and unenforceable. If the trial court's conclusion in that regard was in error then summary judgment was improperly granted for the reason that the moving papers expose a number of triable issues of fact. (Code Civ.Proc., § 437c; Hayward Union Etc. School Dist. v. Madrid, 234 Cal.App.2d 100, 44 Cal.Rptr. 268.)

The essential elements of a contract are competent parties, consent, sufficient consideration and a lawful objective. (Civ.Code, § 1550.) Of these four elements, only the one of a lawful objective is at issue here. A contract is illegal if contrary to an express provision of law, public policy or good morals. (Civ.Code, § 1667.)

Defendants' claim of illegality rests on their assertion that they lacked legal authority to bar plaintiff's wife from access to their establishments because of the proscription of Civil Code section 51, ¹ otherwise known as the Unruh Civil Rights Act, and the holdings of the California Supreme Court in Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449; Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969, and In Re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992.

If, however, the defendants had the legal authority, under the circumstances, to bar plaintiff's wife from the premises, they could lawfully contract to exercise that authority for a lawful purpose. Defendants make no contention that they were obligated by any law to afford check cashing privileges to plaintiff's wife. Such privileges are obviously provided as a stimulus to gambling which in turn increases defendants' revenue.

Civil Code section 51, on its face, appears to be aimed at preventing discrimination in public accommodations on the basis of race, sex or religion. In In Re Cox, supra, however, it was held that the Unruh Civil Rights Act prohibits a business establishment from arbitrarily excluding any prospective customer. (Also see, Stoumen v. Reilly, supra.)

Orloff v. Los Angeles Turf Club, supra, which was decided prior to the enactment of Civil Code section 51 as it is now worded, held that places of public entertainment were required to admit any member of the public who did not create a disturbance or commit any unlawful act on the premises. The Orloff case involved a "known gambler" who was barred from the Santa Anita Race Track simply because of his reputation. Similarly, Stoumen v. Reilly, supra, involved the barring of homosexuals from a restaurant and bar.

In Re Cox, supra, recognized, however, the right of a business establishment to adopt reasonable restrictions on its customers when those restrictions are rationally related to the business being conducted or the facilities and services being provided. The Supreme Court in Orloff v. Los Angeles Turf Club, supra, also specifically stated that its decision was not intended to foreclose the possibility that a person once properly ejected from a premises might thereafter be properly denied admission.

Defendants take the position that the wife's conduct in issuing the insufficient funds checks provided legal justification for barring her from the clubs until such time as the debt to them was satisfied. With that position we agree.

On the other hand defendants contend that, once the debt was satisfied, their ability to deny access was terminated. With that position we disagree.

There is nothing in the language or underlying purpose of Civil Code section 51 or the cases interpreting it to indicate that its application or non-application turns on the narrow question of whether the potential customer is indebted to the establishment. The overriding issue is always whether the denial of access to public accommodation is based on race, sex, religion or other arbitrary and unjustified grounds.

Since the factors of race, sex or religion are not here involved the issue narrows to one of arbitrariness.

As stated earlier, defendants concede, and we agree, that the issuing of the insufficient funds checks was legal justification for refusing plaintiff's wife access to the gambling accommodations at least until she satisfied her obligation.

In our opinion, however, there are factors here which transcend the simple fact of the unsatisfied debt. Those factors are that the wife was a compulsive gambler who had manifested a propensity to gamble beyond her means to the extent of committing what was possibly an illegal act, all of which was having a detrimental effect on her own well-being as well as that of her husband, and these factors were all known to the defendants.

These enumerated factors were not dissipated by the mere act of making restitution. They subsisted as justification for continued refusal to admit the wife to the gambling facilities. This conclusion is consistent with the provisions of the Unruh Act and the rule of Orloff v. Los Angeles Turf Club, supra, 36 Cal.2d 734, 227 P.2d 449.

Having concluded that the contract in question is not rendered illegal by any express provision of law, we turn to the issue of whether it is contrary to public policy or morals.

There is nothing immoral in attempting, by lawful means, to prevent an individual from physical or economic self-destruction, or an attempt by lawful means to prevent a person...