The opinion
Filed 9/24/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
WILFERT WILLIAMS, C086487
Plaintiff and Appellant, (Super. Ct. No.
34201700211485CUOEGDS)
v.
SACRAMENTO RIVER CATS BASEBALL CLUB,
LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, David I.
Brown, Judge. Affirmed.
Law Offices of Jean Schaefer and Jean Schaefer; and The Rosa Law Group and
Andrea Rosa for Plaintiff and Appellant.
Murphy, Pearson, Bradley, & Feeney, William A. Munoz and Nathan T. Jackson
for Defendant and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts I, IIB, and IIC of the discussion.
1
Plaintiff Wilfert Williams sued defendant Sacramento River Cats Baseball Club,
LLC in a common law tort action for failing to hire him due to his race. His complaint
also alleged discrimination under the Unruh1 and Ralph2 Civil Rights Acts and that
defendant engaged in unfair business practices under Business and Professions Code
section 17200.3 The trial court dismissed plaintiff’s complaint after sustaining
defendant’s demurrer. Plaintiff stipulated the dismissal be entered without leave to
amend.
Defendant asserts as a threshold matter that plaintiff lacks standing in this appeal
given his stipulation in the trial court was tantamount to a nonappealable consent
judgment and in any event, his causes of action fail on the merits. In the unpublished
portion of this opinion, we reject defendant’s contention that plaintiff lacks standing to
appeal but agree the trial court properly dismissed plaintiff’s causes of action for
discrimination under the Unruh and Ralph Civil Rights Acts and for unfair business
practices.
In the published portion of this opinion, we address plaintiff’s common law failure
to hire claim. Central to that claim is the applicability of Tameny. (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167 (Tameny).) While we agree with the parties that
failing to hire a prospective employee based on race violates public policy, specifically
the Government Code as well as our state Constitution, that prospective employee’s
remedies are grounded in the Fair Employment and Housing Act4 (the Act). Tameny on
1 Civil Code section 51.
2 Civil Code section 51.7.
3 The complaint also named the office of the commissioner of baseball, doing
business as Major League Baseball, and Robert Manfred, Jr., as defendants for the unfair
business practices cause of action. Those defendants are not parties to this appeal.
4 Government Code section 12900 et seq.
2
the other hand requires “the prior existence of an employment relationship” between the
parties upon which to predicate a tort duty of care. (Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 900.) Because defendant did not owe plaintiff any
duty, plaintiff cannot bring a failure to hire claim against defendant in a common law tort
action and must instead proceed under the Act. Accordingly, we affirm the judgment of
dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
I
Factual Allegations
From April 2014 through July 2015, plaintiff catered meals to the visiting and
home team players at Raley Field, home of defendant’s minor league baseball team. He
was hired by the visitor clubhouse manager, Wayne Brown, and the home clubhouse
manager to do so. He also helped Brown with meal preparation during that time. While
assisting Brown, the job of assistant visitor clubhouse manager became available and
plaintiff applied for the job. Brown recommended plaintiff to both defendant’s human
resources director and to the baseball operations and public relations coordinator, Daniel
Emmons. Plaintiff was never interviewed for the position even though he was already
performing some of the tasks of assistant clubhouse manager and had experience running
his own catering business. Instead, defendant hired a Caucasian teenager who was still in
high school and did not meet any of the qualifications for the job.
In June 2015, while plaintiff helped Brown in the visitor clubhouse as Brown’s
guest, plaintiff witnessed a visiting team’s trainer and coach berate, intimidate, assault,
and swear at Brown, who is African American, “as if he were a slave or servant, not an
employee.” “Plaintiff could do nothing but stand by and endure the harassing conduct,
based on the threat that either [the trainer] or [the coach] would turn their wrath on him,
the only other African American present.” Emmons was present and observed the
3
harassing conduct but failed to stop it and appeared to condone the conduct by siding
with the visiting trainer and coach.
II
Legal Proceedings
Plaintiff’s operative complaint alleged three causes of action. The first was a
common law tort action for “Failure to Hire” based on “Race Discrimination in Violation
of Public Policy” as articulated by the Act under Government Code section 12940,
subdivision (a), which prohibits prospective employers from refusing to hire individuals
based on race. The second cause of action was for violation of the Unruh and Ralph Civil
Rights Acts based on the conduct of the visiting trainer and coach while plaintiff was in
the visiting clubhouse with Brown. The third cause of action was for unfair business
practices based on defendant’s conduct of underpaying Brown, who in turn had to
underpay plaintiff for his catering work, which served to transfer costs so defendant could
spend money otherwise earmarked for the visiting clubhouse on other operations. This
conduct, plaintiff alleged, provided defendant with an unfair competitive advantage and
with illegal profits.
Defendant demurred to the operative complaint arguing plaintiff’s first cause of
action failed because California law does not recognize a cause of action for failure to
hire in violation of public policy. The second cause of action failed, defendant argued,
because the conduct plaintiff complains of was not prohibited by the Ralph Civil Rights
Act and also because the Unruh Civil Rights Act did not recognize “ ‘environmental’ ”
claims, where the complained of conduct is directed at someone other than the
complaining party. As to the third cause of action, defendant argued plaintiff failed to
allege an injury in fact or a causal relationship between its conduct and plaintiff’s harm.
Defendant further argued that, to the extent plaintiff’s claim was derivative of his first
cause of action, it failed because plaintiff’s first cause of action was meritless.
4
The trial court issued a tentative ruling sustaining defendant’s demurrer as to all
causes of action. In its reasoning, the court stated the demurrer was sustained with leave
to amend; however, the court’s ruling provides: “Parties stipulated and the Court
accepted that the Demurrer to the [operative] Complaint be sustained WITHOUT leave to
amend.” When making its decision to sustain the demurrer, the court reasoned plaintiff
did not state a cause of action for failure to hire because California does not recognize a
common law cause of action for failure to hire in violation of public policy. Further, to
the extent plaintiff alleged a statutory claim under the Act, he failed to do so because he
failed to allege he exhausted his administrative remedies. As to plaintiff’s second cause
of action, the court found he did not state a cause of action under the Unruh Civil Rights
Act because he failed to allege that he was the victim of the discriminatory conduct. This
cause of action also failed under the Ralph Civil Rights Act because plaintiff did not
allege he was the victim of violence. Finally, plaintiff failed to state a cause of action for
unfair business practices because plaintiff did not show he was defendant’s employee or
that he was directly injured by defendant. Further, the cause of action failed as a
derivative claim of plaintiff’s Tameny cause of action because that cause of action failed
as well.
The judgment of dismissal provides that “The Court, having sustained
[defendant’s] demurrer to all causes of action alleged in [plaintiff’s complaint] without
leave to amend, based on a stipulation of the Parties, hereby” dismisses the case in its
entirety. As a result, plaintiff’s entire case was dismissed.
Plaintiff appeals.
DISCUSSION
I
Plaintiff Has Standing To Appeal
As a preliminary matter, defendant urges us to dismiss plaintiff’s appeal arguing it
is the product of a nonappealable consent judgment because plaintiff requested the trial
5
court sustain the demurrer without leave to amend when the court was willing to grant
plaintiff leave to amend. We disagree.
“ “It is an elementary and fundamental rule of appellate procedure that a judgment
or order will not be disturbed on an appeal prosecuted by a party who consented to it.’ ”
(Brooms v. Brooms (1957) 151 Cal.App.2d 351, 352.) Similarly, if a party stipulates to a
demurrer without leave to amend and judgment is subsequently entered upon that
stipulation, that party may not then appeal the adverse judgment. (Linder v. Russian
Health Baths (1955) 131 Cal.App.2d 621, 621-622; Christina v. R. Z. Adams Co., Inc.
(1936) 16 Cal.App.2d 139, 140.) An exception to this rule exists, however, when the
dismissal is made solely for the purpose of expediting an appeal. (Building Industry
Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817; Flowers v. Prasad (2015) 238
Cal.App.4th 930, 936, & fn. 3.)
Defendant concedes plaintiff did not stipulate to the demurrer itself and instead
stipulated that leave to amend be denied. Indeed, the court’s order sustaining defendant’s
demurrer makes clear that the demurrer was not a consent judgment but the product of
the court’s analysis of highly contested issues. In fact, the order grants leave to amend
throughout the analysis and indicates leave to amend was denied by stipulation only once
it provided its ruling. This indicates the denial of leave to amend, and thus the dismissal,
was not for the purpose of resolving the case but instead to expedite an appeal. While,
plaintiff did not designate the reporter’s transcript on appeal and we cannot examine it to
corroborate the trial court’s order and judgment, the record as it stands is sufficient for us
to conclude the judgment was entered as a means to hasten appeal and not to fully and
finally settle the dispute.
Defendant’s attempt to distinguish this case from Norgart is unavailing. (Norgart
v. Upjohn Co. (1999) 21 Cal.4th 383.) There, our Supreme Court concluded it had
jurisdiction over an appeal when the stipulation indicated both parties agreed to dismissal
to expedite an appeal. (Id. at pp. 401-402.) The stipulation provided that both parties
6
were free to “ ‘assert the same legal arguments and objections before the Court of Appeal
as were made’ ” in the trial court. (Id. at p. 394.) While the stipulation here does not
provide as detailed a recitation as that in Norgart, our Supreme Court did not indicate that
such a recitation was necessary. Instead, it confirmed the exception to the long-held rule
defendant seeks to prevail upon and stated, “ ‘Although a consent . . . judgment is not
normally appealable, an exception is recognized when “consent was merely given to
facilitate an appeal following adverse determination of a critical issue.” ’ [Citation.] For,
in the words of Building Industry Assn. itself, ‘it is “wasteful of trial court time” to
require the plaintiff to undergo [further court proceedings] merely to obtain an appealable
judgment.’ ” (Id. at p. 400.) It held that on the record before it, “ ‘consent was given
only pro forma to facilitate an appeal, and with the understanding’ on the part of [both
parties and the trial court], that the [losing party] ‘did not thereby intend to abandon [its]
right to be heard on the appeal in opposition to the judgment [and] order.’ ” (Id. at
p. 402.) The court confined its analysis to the record to determine the understanding of
the parties, it did not announce that specific language or procedures were required for a
party to reserve its appellate rights after receiving an adverse ruling. (Ibid.)
Defendant concedes plaintiff did not stipulate to the demurrer, thus it understood
that plaintiff did not consent to the outcome that his suit be dismissed. Further, the trial
court performed an in-depth analysis of the merits of plaintiff’s claims, indicating it too
understood plaintiff not to stipulate to dismissal. Given this record, “[w]e should
‘construe the stipulation according to the intention and understanding of the parties at the
time, and give it effect accordingly.’ ” (Norgart v. Upjohn Co., supra, 21 Cal.4th at
p. 402.) Accordingly, plaintiff has standing to appeal the dismissal of his suit.
II
Demurrer Standard Of Review
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title
Ins. Co. v. Comerica Bank -- California (1994) 27 Cal.App.4th 800, 807.) We review de
7
novo the dismissal of a civil action after a demurrer is sustained without leave to amend.
(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) In doing so, “we
determine whether the complaint states facts sufficient to constitute a cause of action.”
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions of fact or
law.’ ” (Ibid.) “Further, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.” (Ibid.) We will affirm if any proper ground for
sustaining the demurrer exists. (Cantu, at p. 880, fn. 10.)
On appeal, a plaintiff bears the burden of demonstrating that the trial court
erroneously sustained the demurrer as a matter of law. (Rakestraw v. California
Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) To establish that a cause of action
has been adequately pled, a plaintiff must demonstrate he or she has alleged “facts
sufficient to establish every element of that cause of action.” (Cantu v. Resolution Trust
Corp., supra, 4 Cal.App.4th at p. 879.) If the complaint fails to plead, or if the defendant
negates, any essential element of a particular cause of action, this court should affirm the
sustaining of a demurrer. (Id. at p. 880.)
A
Plaintiff Failed To State A Cause Of Action Under Tameny
Plaintiff contends the trial court erred by sustaining defendant’s demurrer to his
failure to hire cause of action because the reasoning of Tameny, recognizing a tort action
for wrongful termination in violation of public policy, extends to failure to hire claims.
We disagree.
In Tameny, the plaintiff alleged his former employer had discharged him because
he refused to participate in an illegal scheme to fix retail gasoline prices. (Tameny,
supra, 27 Cal.3d at p. 169.) Our Supreme Court held these allegations supported a tort
action for wrongful discharge. (Id. at p. 178.) In doing so, it concluded that an
employer’s obligation to refrain from discharging an employee who refuses to commit a
8
criminal act does not depend on any express or implied promises set forth in the
employment contract, but rather reflects a duty imposed by law on all employers in order
to implement the fundamental public policy embodied in the penal statutes. (Id. at
p. 176.) Thus, “ ‘where the employer’s motivation for [a] discharge contravenes some
substantial public policy principle, then the employer may be held liable to the employee
for damages . . . .’ ” (Id. at p. 177.)
Following Tameny, our Supreme Court provided guidance in Stevenson on how to
determine whether an employer’s conduct contravened a substantial public policy giving
rise to a wrongful termination cause of action. (Stevenson v. Superior Court (1997) 16
Cal.4th 880, 894 [A tortious discharge claim requires that the employee be discharged in
violation of a policy that is: “(1) delineated in either constitutional or statutory
provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than
serving merely the interests of the individual; (3) well established at the time of
discharge; and (4) substantial and fundamental”].) It is upon the factors announced in
Stevenson that plaintiff focuses his argument. Defendant, however, concedes that failing
to hire a prospective employee based on race violates public policy, and we agree. (See
Cal. Const., art. I, § 8 [“A person may not be disqualified from entering or pursuing a
business, profession, vocation, or employment because of sex, race, creed, color, or
national or ethnic origin”]; see also Gov. Code, § 12940, subd. (a).) Instead, it focuses on
the relationship between the parties and whether an employment relationship existed
giving rise to a duty not to violate public policy. We find defendant’s inquiry much more
relevant to the issue presented in this case.
We note our Supreme Court concluded in Tameny that the duty to comport with
“fundamental public policies embodied in the state’s penal statutes” applied to “all
employers,” which taken in isolation seems to apply the duty to those offering
employment. (Tameny, supra, 27 Cal.3d at p. 176.) The reasoning underlying this
conclusion, however, makes clear the employer’s duty is owed to their employees after
9
having entered an employer-employee relationship. Our Supreme Court characterized
the duty as ex delicto, meaning it evolved “from a breach of duty growing out of the
contract . . . .” (Ibid.) In saying so, the court relied on Sloane, one of the original
California cases recognizing that a wrongful act committed in the course of a contractual
relationship gives rise to both tort and contractual relief. (Tameny, at pp. 175-176.) In
Sloane, our Supreme Court held a plaintiff who was wrongfully ejected from a train
before her destination “could either bring an action simply for the breach of contract, or
she could sue . . . in tort for [defendant’s] violation of the duty . . . which it assumed upon
entering into such a contract.” (Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668,
677.)
Moreover, our Supreme Court in Miklosy, a case involving wrongful termination
claims against the University of California and the employees’ supervisors, stated that as
it pertained to the supervisors, “Plaintiffs . . . overlook the fact that a Tameny action for
wrongful discharge can only be asserted against an employer. . . . This conclusion flows
logically from our reasoning in Tameny. [¶] The tort we recognized in Tameny, and
reaffirmed in Gantt, is premised on the wrongful termination of an employment
relationship. If an employer terminates an employment relationship for a reason that
contravenes some fundamental public policy, then the employer breaches a general duty
imposed by law upon all employers and the employee’s remedy therefore sounds in tort.
[Citation.] In that case, the various terms of the employment relationship are not the
source of the employee’s legal rights; rather, tort law is the source of the employee’s
legal rights, and the employment relationship is merely the medium through which the
tort is inflicted. [Citation.] Nevertheless, the breach of the employment relationship is an
indispensable element of the tort, because it serves factually as the instrument of injury.
Thus, there can be no Tameny cause of action without the prior existence of an
employment relationship between the parties.” (Miklosy v. Regents of University of
California, supra, 44 Cal.4th at p. 900, italics omitted.)
10
Subsequent cases have complied with this basic principle and declined to extend
Tameny claims to independent contractors (see Sistare-Meyer v. Young Men’s Christian
Assn. (1997) 58 Cal.App.4th 10, 14, 16-17; Harris v. Atlantic Richfield Co. (1993) 14
Cal.App.4th 70, 75, 80-82; Abrahamson v. NME Hospitals, Inc. (1987) 195 Cal.App.3d
1325, 1328-1329), and those seeking renewal of employment contracts (see Touchstone
Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 678, 682; Daly v.
Exxon Corp. (1997) 55 Cal.App.4th 39, 45). Similarly, courts have recognized the
claim’s applicability to employees who have experienced adverse employment actions,
such as demotions or suspensions. (See Andersen v. Pacific Bell (1988) 204 Cal.App.3d
277, 283; Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1562,
abrogated on other grounds in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1093.)
Thus, before we can determine whether a duty was breached per the Stevenson
factors, we must first determine whether a duty was owed. To do so, we must determine
whether plaintiff was defendant’s employee. (Miklosy v. Regents of University of
California, supra, 44 Cal.4th at p. 900.) Plaintiff does not argue he was defendant’s
employee but concedes he was a job applicant. Because plaintiff was not an employee,
defendant did not owe him a duty; thus, plaintiff’s Tameny claim must fail.
This does not mean that plaintiff is without recourse. Not only does it violate
public policy to fail to hire a prospective employee based on race, it violates the law.
(Cal. Const., art. I, § 8; Gov. Code, § 12940, subd. (a).) The employer, however, has not
committed a tort against the prospective employee because it owed no duty to that
person. (Miklosy v. Regents of University of California, supra, 44 Cal.4th at p. 900.)
Instead, plaintiff must proceed under the Act, which provides a statutory cause of action.
(Gov. Code, § 12940.)
Accordingly, the trial court properly sustained defendant’s demurrer to the first
cause of action.
11
B
Plaintiff Failed To State A Cause Of Action Under
The Unruh And Ralph Civil Rights Acts
Plaintiff contends the trial court erred by dismissing his cause of action under the
Unruh and Ralph Civil Rights Acts. He argues witnessing the visiting coach’s and
trainer’s treatment of Brown in the visiting clubhouse in front of Emmons, defendant’s
supervising employee, violated both acts. Defendant argues his claim must fail under the
Unruh Civil Rights Act because he was not the direct victim of the conduct and under the
Ralph Civil Rights Act because he did not allege the aggressors committed or threatened
to commit a violent act. We agree with defendant.
1
Unruh Civil Rights Act
The Unruh Civil Rights Act provides in pertinent part: “All persons within the
jurisdiction of this state are free and equal, and no matter what their sex, race, color, . . .
are entitled to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.” (Civ. Code, § 51,
subd. (b).) “[T]he state Legislature has specifically conferred standing to sue under the
Unruh [Civil Rights Act] upon the victims of the discriminatory practices . . . .”
(Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d
1377, 1386.) Thus, a plaintiff must allege that his or her civil rights were personally
violated. (Id. at p. 1384.) A plaintiff who alleges mere knowledge or awareness of
discriminatory conduct lacks standing. (Surrey v. TrueBeginnings, LLC (2008) 168
Cal.App.4th 414, 419-420.)
In Osborne, the court held that a plaintiff has standing under the Unruh Civil
Rights Act “as long as the plaintiff alleges facts showing that he or she has directly
experienced a denial of rights as defined [under that act]. In addition, when a[n] . . .
individual has standing to sue under [the Unruh Civil Rights Act], any person ‘associated
12
with’ that individual [citation] has standing if the associated person has also directly
experienced the discriminatory conduct.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th
1118, 1122.)
Osborne involved four plaintiffs, including a paraplegic individual with a service
dog, who attempted to rent a hotel room. (Osborne v. Yasmeh, supra, 1 Cal.App.5th at
p. 1121.) The hotel refused to rent the plaintiffs a room unless they paid a $300
nonrefundable cleaning fee for the dog, in addition to the $80 charge for the hotel room.
After plaintiffs left without paying the fee or checking into the hotel they sued the hotel
for a violation of the Unruh Civil Rights Act. (Ibid.) The Osborne court held that it was
enough the paraplegic individual and his family were asked to pay the discriminatory fee
to confer standing upon them. (Id. at p. 1122.) Indeed, “[t]he history of the Unruh Civil
Rights Act and the cases interpreting it make clear that when a person presents himself or
herself to a business establishment, and is personally discriminated against based on one
of the characteristics articulated in [Civil Code] section 51, he or she has suffered a
discriminatory act and therefore has standing under the Unruh Civil Rights Act. And
when such discrimination occurs, a person has standing under [Civil Code] section 51.5 if
he or she is ‘associated with’ the [person discriminated against] and has also personally
experienced the discrimination.” (Osborne, at pp. 1133-1134.)
Plaintiff’s complaint alleged that Brown was berated, intimidated, assaulted, and
sworn at by a visiting coach and trainer “as if he were a slave or servant, not an
employee” while Emmons was present to witness it. It further alleged that “[p]laintiff
could do nothing but stand by and endure the harassing conduct, based on the threat that
either [the trainer] or [the coach] would turn their wrath on him, the only other African
American present.” The complaint did not allege that any of this conduct was directed at
plaintiff only that he witnessed it being directed at Brown. It further did not allege that
plaintiff was treated differently in any way because of his association with Brown, only
that he was made to witness the conduct. Because plaintiff’s complaint did not allege
13
personal discrimination or discrimination by association, he has failed to state a cause of
action under the Unruh Civil Rights Act. Because we conclude defendant’s demurrer
was properly sustained on this ground, we need not determine whether defendant’s other
arguments regarding the failings of plaintiff’s pleading pertinent to the Unruh Civil
Rights Act have merit.
2
Ralph Civil Rights Act
“ ‘The Legislature’s focused effort to combat discriminatory and pernicious
conduct often referred to as hate crimes began with the 1976 enactment of Civil Code
section 51.7, commonly referred to as the “Ralph Civil Rights Act” or the “Ralph Act.” ’
[Citation.] The Ralph Act broadly provides that all persons ‘have the right to be free
from any violence, or intimidation by threat of violence, committed against their persons
or property’ because of, among other things, the person’s race, religion, national origin,
sex, sexual orientation, or position in a labor dispute.” (Saheli v. White Memorial
Medical Center (2018) 21 Cal.App.5th 308, 321.) “[A] plaintiff must establish the
defendant threatened or committed violent acts against the plaintiff or [his or her]
property, and a motivating reason for doing so was a prohibited discriminatory
motive . . . .” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.)
“ ‘[T]he plain meaning of the word “violence” ’ . . . ‘clearly involves some physical,
destructive act.’ ” (Campbell v. Feld Entertainment, Inc. (N.D.Cal. 2014) 75 F.Supp.3d
1193, 1205, 1208 [throwing sticks at activist’s camera atop a wall not violence where one
of the sticks ricocheted off a pillar and hit the activist standing behind the wall].)
Plaintiff’s complaint did not allege any specific violent conduct directed at him or
even Brown. Instead, plaintiff uses the vague terms of berated, assaulted, and intimidated
to describe the visiting team coach’s and trainer’s conduct, and gives us no clue as to
what occurred in the visitor clubhouse, let alone whether it constituted violence. Further,
plaintiff’s complaint is silent as to whether any conduct on behalf of the visiting coach
14
and trainer was physical in nature. Given the vagueness of plaintiff’s complaint, he has
failed to state a cause of action under the Ralph Civil Rights Act.
C
Plaintiff Failed To State A Cause Of Action For Unfair Business Practices
Plaintiff contends he stated a cause of action for unfair business practices because
he suffered economic loss when defendant violated the Act by failing to hire him based
on his race. The problem with plaintiff’s argument is that this was not the basis for the
unfair business practices claim contained in his complaint and argued to the trial court.
His complaint alleged defendant reaped illegal profits by underpaying Brown who in turn
had to underpay him for his catering services.5 While plaintiff would ordinarily be able
to argue for amendment as he appears to do in his appellate briefing, he stipulated that
leave to amend be denied, preferring instead to proceed to appeal on the facts as alleged
in the complaint. “The failure to amend and state a cause of action against defendant is
an admission that plaintiff has stated the case as strongly as he can and there are no facts
that could be alleged to cure the defect.” (Cano v. Glover (2006) 143 Cal.App.4th 326,
330.) Thus, plaintiff forfeited his argument that the unfair business practices cause of
action could rest on the River Cat’s violation of the Act.
Plaintiff does not argue on appeal that the facts as stated in the complaint are
sufficient to state a cause of action, except to say the trial court erred by rejecting his
Tameny cause of action as the basis for the unfair business practices cause of action. As
discussed, plaintiff cannot bring a failure to hire cause of action under Tameny; thus, his
derivative unfair business practices cause of action must also fail because plaintiff has not
identified any unlawful, unfair, or fraudulent conduct. (See AMN Healthcare, Inc. v. Aya
5 The complaint does not appear to allege plaintiff’s Tameny cause of action
provided the basis for the unfair business practices cause of action; however, the trial
court found that to the extent plaintiff made such an argument, it failed for the same
reasons his Tameny cause of action failed.
15
Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950 [“Because all of AMN’s other
claims fail as a matter of law, as discussed ante, so too must its derivative [unfair
business practices] claim”].) Accordingly, the trial court properly sustained defendant’s
demurrer to the third cause of action.
DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(2).)
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Krause, J.
16