The opinion
Filed 11/13/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BRENNON B.,
Petitioner,
v.
THE SUPERIOR COURT OF A157026
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No.
WEST CONTRA COSTA UNIFIED MSC1601005)
SCHOOL DISTRICT et al.
Real Parties in Interest.
INTRODUCTION
We are asked to decide two issues: (1) whether a public school district
is a business establishment for purposes of the Unruh Civil Rights Act (Civ.
Code, § 51), and (2) even if a school district is not a business establishment,
whether it can nevertheless be sued under the Unruh Act where, as here, the
alleged discriminatory conduct is actionable under the Americans With
Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.). Both are issues of first
impression in the California appellate courts.
Our Supreme Court has examined the meaning of the term “business
establishment” as used in the Unruh Act in a number of cases. However, the
defendant in each was a private entity. Thus, the court has had no occasion
to consider whether a government entity, and specifically an agent of the
1
state performing a state constitutional obligation, such as a public school
district, is a business establishment within the meaning of the Act.1
We have therefore followed the analytical template our high court has
employed in deciding whether a private entity is a business establishment for
purposes of the Act, examining the historical genesis of the Act and the Act’s
limited legislative history, and canvassing the court’s decisions and
considering the scholarly articles to which the court has regularly cited, as
well as other pertinent authorities. This multi-pronged inquiry leads us to
conclude public school districts are not business establishments under the
Unruh Act.
We further conclude the Unruh Act imposes liability only on business
establishments and therefore reject petitioner’s alternative assertion that,
even if a public school district is not a business establishment, it may
nevertheless be held liable under the Act where, as here, the alleged
discriminatory conduct is actionable under the ADA. Reading the language
on which petitioner predicates his assertion in context, and in light of its
legislative history and our high court’s decisions discussing it, we conclude
this language makes explicit that any violation of the ADA by a business
establishment is also a violation of the Unruh Act.
1 “Public education is an obligation which the State assumed by the
adoption of the Constitution. [Citations.] . . . ‘[M]anagement and control of
the public schools [is] a matter of state[, not local,] care and supervision. . . .’
[Citations.] . . . Local districts are the State’s agents for local operation of the
common school system. . . .” (Butt v. State of California (1992) 4 Cal.4th 668,
680–681.) “The Constitution has always vested ‘plenary’ power over
education not in the districts, but in the State, through its Legislature, which
may create, dissolve, combine, modify, and regulate local districts at
pleasure.” (Id. at p. 688; accord Wells v. One2One Learning Foundation (2006)
39 Cal.4th 1164, 1195.)
2
In reaching these conclusions, we are by no means suggesting our
public school districts are not subject to stringent anti-discrimination laws.
They are. These include the panoply of antidiscrimination statutes set forth
in the Education Code and applicable to all schools receiving any form of
state funding or assistance (Ed. Code, § 200 et seq.) and the comprehensive
antidiscrimination provisions set forth in the Government Code and
applicable to all government entities (Gov. Code, § 11135), as well as federal
constitutional mandates (actionable under 42 U.S.C. § 1983), and statutes
such as Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et
seq.), Title II of the ADA (42 U.S.C. § 12131 et seq.), and section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794).
We thus conclude the trial court did not err in sustaining the school
district’s demurrer to petitioner’s cause of action under the Unruh Act
without leave to amend, and therefore deny his petition for a writ of mandate
(Code Civ. Proc., § 1085) challenging that ruling.
DISCUSSION2
Historical Background of the Unruh Act
“The general policy embodied in [Civil Code] section 51 can be traced to
the early common law doctrine that required a few, particularly vital, public
enterprises—such as privately owned toll bridges, ferryboats, and inns—to
serve all members of the public without arbitrary discrimination. (See
generally, Tobriner & Grodin, The Individual and the Public Service
Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250
[(Tobriner & Grodin)].) After the United States Supreme Court, in the Civil
2 Given the issues before us, we need not discuss the specific factual
and procedural background of this case. Suffice it to say petitioner, who
suffers from autism, has alleged, among other things, that he has been the
victim of disability discrimination at the hands of school personnel.
3
Rights Cases (1883) 109 U.S. 3 . . . , invalidated the first federal public
accommodation statute, California joined a number of other states in
enacting its own initial public accommodation statute, the statutory
predecessor of the current version of [Civil Code] section 51. (Stats. 1897, ch.
108, § 2, p. 137.)” (Warfield v. Peninsula Golf & Country Club (1995)
10 Cal.4th 594, 607–608 (Warfield).)
Given the issues before us, it bears making more than passing
reference to the Civil Rights Cases. These cases arose under a federal statute
that prohibited private citizens from discriminating on the basis of race in
operating or providing “ ‘accommodations, advantages, facilities, and
privileges of inns, public conveyances on land or water, theatres, and other
places of public amusement.’ ” (Civil Rights Cases, supra, 109 U.S. at p. 9.)
Any person violating this prohibition was subject to a civil penalty
enforceable in a legal action by the aggrieved person and to criminal
prosecution. (Ibid.) The United States Supreme Court invalidated the
statute.
The court first concluded the statute could not be sustained under the
Fourteenth Amendment because the statutory prohibition was divorced from
state action and was directed at conduct by private persons. (Civil Rights
Cases, supra, 109 U.S. at pp. 10–20.) “It is State action of a particular
character that is prohibited. Individual invasion of individual rights is not
the subject matter of the amendment.” (Id. at p. 11.) The court next
considered whether the statute could be sustained under the Thirteenth
Amendment as “necessary and proper” to enforce the constitutional
prohibition of slavery. (Id. at pp. 20–24.) The court concluded “the act of a
mere individual, the owner of the inn, the public conveyance or place of
amusement, refusing the accommodation” could not “be justly regarded as
4
imposing any badge of slavery or servitude upon the applicant.” Rather, said
the court, it was an act “inflicting an ordinary civil injury, properly cognizable
by the laws of the State, and presumably subject to redress by those laws.”
(Id. at p. 24.)
As our Supreme Court has since observed, many states, including
California, enacted the state laws necessary to replace the invalidated federal
statute that had endeavored to prohibit discriminatory conduct by private
persons in the operation and provision of public accommodations,
conveyances and places of amusement. (E.g., Curran v. Mount Diablo
Council of the Boy Scouts (1998) 17 Cal.4th 670, 686 (Curran); Warfield,
supra, 10 Cal.4th at p. 607.) Thus, the nomenclature “public accommodation”
statutes. (See Curran, at pp. 686–687; Warfield, at pp. 607–608; see
generally Horowitz, The 1959 California Equal Rights in “Business
Establishments” Statute—A Problem in Statutory Application (1960)
33 So.Cal.L.Rev. 260, 263 (Horowitz)3.)
“ ‘Expanding upon the limited category of “public service enterprises” to
which the early common law doctrine applied,’ ”4 California’s “ ‘1897 statute,
3 Our Supreme Court has cited to this scholarly article in each of its
principle decisions addressing whether the defendant was a business
establishment under the Act. (E.g., Curran, supra, 17 Cal.4th at p. 687, fn.
13; Warfield, supra, 10 Cal.4th at p. 608, fn. 8; Isbister v. Boys’ Club of Santa
Cruz (1985) 40 Cal.3d 72, 81 (Isbister) [describing Horowitz as “the principal
commentator on the Unruh Act”]; O’Connor v. Village Green Owners Assn.
(1983) 33 Cal.3d 790, 796 (O’Connor); Burks v. Poppy Construction Co. (1962)
57 Cal.2d 463, 469 (Burks).)
4 The “public service doctrine” imposed on occupations and enterprises
“providing a particular product or service to the community . . . attached to
them certain obligations,” including “the duty to serve all customers on
reasonable terms without discrimination.” (Tobriner & Grodin, supra,
55 Cal.L.Rev. at p. 1250.) Such occupations and enterprises included that of
“blacksmith, food seller, veterinarian, and tailor, as well as those of common
5
as amended in 1919 and 1923, provided that “[a]ll citizens within the
jurisdiction of this state are entitled to the full and equal accommodations,
advantages, facilities and privileges of inns, restaurants, hotels, eating
houses, places where ice cream or soft drinks of any kind are sold for
consumption on the premises, barber shops, bath houses, theaters, skating
rinks, public conveyances and all other places of public accommodation or
amusement, subject only to the conditions and limitations established by law,
and applicable alike to all citizens.” (Stats.1923, ch. 235, § 1, p. 485.)’ ”5
(Curran, supra, 17 Cal.4th at pp. 686–687, quoting Warfield, supra,
10 Cal.4th at pp. 607–608; see generally Horowitz, supra, 33 So.Cal.L.Rev. at
p. 261 [prior to 1959, there were “a few areas in which California law
prohibited racial discrimination by private persons: e.g., the Legislature had,
in 1893 and 1897, enacted what eventually became Civil Code Sections 51–
54, prohibiting such discrimination by operators of places of ‘public
accommodation,’ ‘amusement,’ and ‘entertainment,’ ” fn. & italics omitted].)
Thus, nothing in the historical context from which the Unruh Act
emerged suggests the state’s earlier public accommodation statutes were
enacted to reach “state action.” And there is much authority to the
carrier and innkeeper.” (Ibid., fns. omitted; see Warfield, supra, 10 Cal.4th at
p. 607; Horowitz, supra, 33 So.Cal.L.Rev. at p. 280.)
5 The original 1897 statute was uncodified (Stats. 1897, ch. 108, § 1,
p. 137), but “was virtually identical” to section 51 as first enacted. (Horowitz,
supra, 33 So.Cal.L.Rev. at p. 263.) The uncodified statute provided in
pertinent part: “[A]ll citizens within the jurisdiction of this State 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 alike to all citizens.” (Stats. 1897, ch. 108, § 1, p. 137; see
Curran, supra, 17 Cal.4th at p. 704 (conc. opn. of Mosk, J.).)
6
contrary—that these statutes were enacted to secure within our state law the
prohibition against discrimination by privately owned services and
enterprises the United States Supreme Court referenced in the Civil Rights
Cases and which the common law had already begun to recognize through the
public service doctrine. (See Curran, supra, 17 Cal.4th at pp. 686–687;
Warfield, supra, 10 Cal.4th at pp. 607–608; see also Horowitz, supra,
33 So.Cal.L.Rev. at p. 281 [“[i]t was clear that in [former] [Civil Code]
Sections 51 and 52 the Legislature enacted a principle creating a right not to
be discriminated against on grounds of race in some, but not all, relationships
between private persons”].)
Enactment of the Unruh Act
“ ‘In 1959, in apparent response to a number of appellate court
decisions that had concluded that the then-existing public accommodation
statute did not apply to the refusal of a private cemetery, a dentist’s office,
and a private school to make their facilities available to African–American
patrons (see Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d
328. . . ; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833 . . . ; Reed v.
Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887. . . [(Reed)]),
the Legislature undertook, through enactment of the Unruh Civil Rights Act,
to revise and expand the scope of the then-existing version of [Civil Code]
section 51.’ ” (Curran, supra, 17 Cal.4th at p. 687, quoting Warfield, supra,
10 Cal.4th at p. 608.)
Given the issues before us, we again pause briefly to more fully
describe Reed. In that case, a private school refused to admit a five-year-old
prospective student because of her race, and she sued for damages under the
state’s public accommodation law. After suffering a nonsuit, she appealed to
the superior court appellate division. (Reed, supra, 169 Cal.App.2d Supp. at
7
p. 888.) The court concluded, on comparing the enterprises enumerated in
the statute, that the private school was “not a place of public accommodation
or amusement” within the meaning of the statute. (Id. at p. 890; Id. at p. 889
[“The settled rule of law is that the expression ‘all other places’ means all
other places of a like nature to those enumerated.”].)
The court also contrasted the private school with the state public school
system, pointing out the latter secured the educational rights of all students,
including the plaintiff (Reed, supra, 169 Cal.App.2d Supp at pp. 888–889) and
that “racial discrimination in public education is unconstitutional.” (Id. at
p. 890, citing Brown v. Board of Education of Topeka (1954) 347 U.S. 483
(Brown).) The court additionally rejected the plaintiff’s invitation to
conclude, solely on the basis of “public policy,” that the public accommodation
statute applied “to a matter of private relationship such as that here before
us, since the defendant school has no monopoly and since the Legislature has
specifically declared the public policy of the state in regard to discrimination
in particular locations and it is the office of the Legislature and not of this
court to make any additional enumerations which may be desirable.”6 (Reed,
at pp. 891–892.)
6 The court’s reference to a “monopoly” referred to cases such James v.
Marinship Corp. (1944) 25 Cal.2d 721, 724, 745, in which our high court
upheld a preliminary injunction prohibiting a shipbuilder from discharging
African American employees based on a closed shop agreement with a closed
union that discriminated on the basis of race. “Where a union has, as in this
case, attained a monopoly of the supply of labor by means of closed shop
agreements and other forms of collective labor action, such a union occupies a
quasi public position similar to that of a public service business and it has
certain corresponding obligations. It may no longer claim the same freedom
from legal restraint enjoyed by golf clubs or fraternal associations. Its
asserted right to choose its own members does not merely relate to social
relations; it affects the fundamental right to work for a living.” (Id. at
p. 731.) “The discriminatory practices involved in this case are, moreover,
8
As initially introduced, the legislation “ ‘proposed to revise the first
paragraph of [the then existing] [Civil Code] section 51 to provide: “All
citizens within the jurisdiction of this State, no matter what their race, color,
religion, ancestry, or national origin, are entitled to the full and equal
admittance, accommodations, advantages, facilities, membership, and
privileges in, or accorded by, all public or private groups, organizations,
associations, business establishments, schools, and public facilities; to
purchase real property; and to obtain the services of any professional person,
group or association.’ [Citation.] Thereafter, the bill underwent a series of
amendments in both houses of the Legislature.’ ” (Curran, supra, 17 Cal.4th
at p. 687, italics omitted, quoting Warfield, supra, 10 Cal.4th at p. 608.)
These amendments, chronicled by Professor Horowitz, are of significant
interest, given the issues before us. (See Curran, supra, 17 Cal.4th at p. 687,
fn. 13, quoting Warfield, supra, 10 Cal.4th at p. 608, fn. 8 [“ ‘The complete
contrary to the public policy of the United States and this state. The United
States Constitution has long prohibited governmental action discriminating
against persons because of race or color. (5th, 14th, and 15th Amendments.)”
(James v. Marinship Corp., at p. 739.) “Although the constitutional
provisions have been said to apply to state action rather than to private
action, they nevertheless evidence a definite national policy against
discrimination because of race or color. Defendants contend that ‘individual
invasion of individual rights’ can be prohibited only by a statute of the state,
and they point out that California statutes forbidding racial discrimination
by private persons relate only to certain specifically enumerated businesses
such as inns, restaurants, and the like, but not to labor unions. (Civ. Code,
§§ 51–52.) It has been said, however, that such statutes, to the extent that
they embrace public service businesses, are merely declaratory of the
common law. [Citations.] . . . Where, as here, a labor union has attained a
monopoly of the labor supply through closed shop agreements, such a union,
like a public service business, may not unreasonably discriminate against
Negro workers for the sole reason that they are colored persons.” (Id. at
p. 740; see Tobriner & Grodin, supra, 55 Cal.L.Rev. at pp. 1256–1258.)
9
progression of the bill through the Legislature is set forth in detail in
Horowitz[, supra,] 33 So.Cal.L.Rev. [at pp.] 265–270.’ ”].)
Two months after it was introduced, the bill was amended on March 24,
1959, as follows (new language italicized and some also bolded for emphasis):
“ ‘All citizens within the jurisdiction of this State, no matter what their
race, color, religion, ancestry, or national origin, are entitled to the full
and equal admittance, accommodations, advantages, facilities,
membership, and privileges in, or accorded by, all public or private
groups, organizations, associations, business establishments, schools,
and public facilities, except those institutions organized primarily
for the purpose of, and which practice, the furthering of a
specific sectarian religious belief or a specific national culture,
and which limit their membership or affiliations to only those
persons with a corresponding religious belief or national
derivation; to purchase real property; and to obtain the services of any
professional person, group or association.’ ” (Horowitz, supra,
33 So.Cal.L.Rev. at p. 266 & fn. 32.)
A week later, on March 30, the legislation was again amended to read
(new language italicized and some also bolded for emphasis):
“ ‘. . . All citizens 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 admittance, accommodations,
advantages, facilities, membership, privileges, services or benefits set
out, but not limited, by this section:
‘(a) To all business establishments of every kind whatsoever;
‘(b) To all schools of every kind whatsoever, except those schools
organized for the purpose of, and which practice, the furthering
of a specific sectarian religious belief;
‘(c) To the benefits administered or offered by any organization or
institution receiving any tax advantage or exemption, or receiving any
form of assistance from the Federal Government, or the State of
California, or any municipality or any political subdivision of either;
‘(d) To membership in any and all business or professional
organizations formed or maintained primarily for the protection or
advancement of the business or professional interests of the members;
‘(e) To obtain the services of any professional person, group or
association licensed or certified by the State of California, any
10
municipality or political subdivision or agency of either.’ ” (Horowitz,
supra, 33 So.Cal.L.Rev. at pp. 266–267 & fn. 33.)
A month later, on April 24, the bill was further amended (new language
italicized and some also bolded for emphasis):
“ ‘. . . All citizens 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 admittance, accommodations,
advantages, facilities, membership, privileges, services or benefits set
out, but not limited, by this section:
‘(a) To all business establishments of every kind whatsoever;
‘(b) To all schools of every kind whatsoever, except those
schools organized for the purpose of, and which practice, the
furthering of a specific sectarian religious belief, insofar as the
facilities of any such school so organized and following such
practice are made available primarily to persons who subscribe
to such belief[;]
‘(c) To the charitable benefits administered or offered by any
organization or institution receiving any tax advantage or exemption,
or receiving any form of assistance from the Federal Government, or
the State of California, or any municipality or any political subdivision
of either;
‘(d) To membership in any and all business or professional
organizations formed or maintained primarily for the protection or
advancement of the business or professional interests of the members;
‘(e) To obtain the services of any professional person, group or
association licensed or certified by the State of California, any
municipality or political subdivision or agency of either.’ ” (Horowitz,
supra, 33 So.Cal.L.Rev. at pp. 267–268 & fn. 34.)
Two weeks later, on May 12, the legislation was amended yet again
(new language italicized and some bolded for emphasis):
“ ‘. . . All citizens 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 admittance, accommodations,
advantages, facilities, membership, privileges, services or benefits set
out, . . . by this section:
‘(a) To all business establishments of every kind whatsoever;
11
‘(b) To all schools which primarily offer business or vocational
training . . . ;
‘(c) To the charitable benefits administered or offered by any
organization or institution receiving any direct subvention . . . from the
Federal Government, or the State of California, or any municipality or
any political subdivision of either;
‘(d) . . . In any and all business or professional organizations formed or
maintained by licensees of the State of California primarily for the
protection or advancement of the business or professional interests of
the members;
‘(e) . . . From any professional person, group or association licensed or
certified by the State of California, any municipality or political
subdivision or agency of either.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at
p. 268 & fn. 35.)
A month later, on June 11, the legislation was amended by way of
significant deletions (bold added for emphasis):
“ ‘. . . All citizens 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 admittance, accommodations,
advantages, facilities, membership, privileges, services or benefits set
out by this section:
‘(a) To all business establishments of every kind whatsoever;
‘(b) To all schools which primarily offer business or vocational
training[.]’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 269 & fn. 36.)
Four days later, on June 15, the bill was amended one last time to read
as enacted (new language italicized):
“ ‘. . . This section shall be known, and may be cited, as the Unruh Civil
Rights Act.
‘. . . All citizens 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.’ ” (Horowitz, supra,
33 So.Cal.L.Rev. at pp. 269–270 & fn. 37.)
12
Petitioner urges us to conclude that a public school district is a
business establishment under the Unruh Act because prior versions of the
legislation referred to “schools.” However, in Warfield, our Supreme Court
expressly rejected such a construction of the Act, as we discuss in more detail
infra. (Warfield, supra, 10 Cal.4th at pp. 614–615.)
Moreover, the prior versions of the bill reflect a progressive narrowing
of the legislation’s applicability to “schools.” Although the legislation as
introduced referred to “ ‘schools,’ ” the first round of amendments excepted
schools “ ‘organized primarily for the purpose of, and which practice, the
furthering of a specific sectarian religious belief or a specific national culture,
and which limit[ed] their membership or affiliations to only those persons
with a corresponding religious belief or national derivation.’ ” (Horowitz,
supra, 33 So.Cal.L.Rev. at p. 266 & fn. 32.) In the next round of
amendments, the exception for schools furthering a national culture was
eliminated. (Id. at pp. 266–267 & fn. 33.) And in subsequent amendments,
the exception for religious schools was eliminated and only schools that
“ ‘primarily offer[ed] business or vocational training’ ” were included. (Id. at
p. 268 & fn. 35, italics omitted.) Thus, the category of schools to which the
penultimate version of the legislation applied would not have included any
public grammar schools or even public secondary schools. While the latter
may offer some business or vocational training, the primary responsibility of
both primary and secondary public schools is basic educational instruction.
(See Ed. Code, §§ 51210, subd. (a) [enumerating required course of study for
grades 1 through 6], 51220 [enumerating areas of study for grades 7 through
12]; see also 56 Cal.Jur.3d Schools §§ 237 [overview of required courses of
study for grades 1 through 6], 238 [overview of required courses of study for
grades 7 through 12].)
13
Nor can we overlook that the state’s public accommodation laws, the
immediate predecessors of the Unruh Act, were enacted in response to the
Civil Rights Cases—that is, they were enacted to prohibit discriminatory
conduct by individual proprietors and private entities offering goods and
services to the general public. Federal anti-discrimination legislation could
reach state action, but it could not, according to the United States Supreme
Court, reach discriminatory conduct by private persons or entities. (See
Horowitz, supra, 33 So.Cal.L.Rev. at p. 260 [“Broadly speaking, the
delineation of governmental policy with respect to racial discrimination by a
private person (as distinguished from discrimination by a governmental
entity, such as a state) in his relationships with other private persons is left,
in the federal system, to the states.”].)
Indeed, by the time the Unruh Act was enacted, the United States
Supreme Court had already held racial discrimination in the public schools
unconstitutional and repudiated the pernicious notion that segregated
schools provided a separate but equal education. (Brown, supra, 347 U.S. at
p. 495.) Thus, while there was a pressing need for state legislation to
prohibit discrimination by private schools, and particularly vocational and
technical schools that offered a path to employment, charged tuition, and
offered their services to the general public, there was not a correlative need
with respect to state public school systems.7
We also observe that the only specific references to government entities
in any version of the legislation served to describe other enumerated private
7 We fully appreciate that many states ignored Brown and it has taken
decades and tireless effort to enforce its mandate. This has not been due to
any lack of clarity as to the applicability of federal law to state public school
districts, however, but rather to the sheer recalcitrance of states to comply
with this law.
14
entities and organizations that would be required by the law to provide “ ‘full
and equal admittance, accommodations, advantages, facilities, membership,
privileges, services or benefits’ ” to the state’s citizens. (Horowitz, supra,
33 So.Cal.L.Rev. at pp. 266–267, fn. 33, italics omitted.) The first such
reference was in connection with “ ‘the benefits administered or offered by
any organization or institution’ ” that claimed any tax advantage or received
any form of assistance provided by “ ‘the Federal Government, or the State of
California, or any municipality or any political subdivision of either.’ ” (Id. at
p. 267 & fn. 33, italics omitted.) The second was to “ ‘the services of any
professional person, group or association licensed or certified by the State of
California, any municipality or political subdivision or agency of either.’ ”
(Ibid., italics omitted.) In short, the pending legislation, at certain points,
described individuals and nongovernment entities availing themselves of
federal or state tax advantages or economic assistance, or the benefits
conferred by state or local licensing laws.
Thus, there is nothing in the legislative history of the Unruh Act, itself,
that suggests the Act was intended to reach discriminatory conduct by state
agents, such as public school districts, and, again, there is much to indicate
otherwise. (See Horowitz, supra, 33 So.Cal.L.Rev. at p. 262 [enactment of the
new “[Civil Code] [s]ections 51 and 52, referring to ‘business establishments,’
result[ed] in California now expressing its policy against racial and other
discrimination in this general area of relationships between private persons
in a way which is unique among the states—i.e., without the use of the word
‘public,’ and with the use of the words ‘business’ and ‘establishments’ ”].)
Supreme Court Precedent
Our Supreme Court has grappled with the meaning of the term
“business establishment” as used in the Unruh Act in a number of cases.
15
One of the earliest was Burks, supra, 57 Cal.2d 463. “In Burks, the
plaintiffs claimed that the defendants, a company and one of its employees
who were engaged in developing, building, and selling a tract of houses, were
violating the Unruh Civil Rights Act by allegedly refusing to sell homes in
the tract to African–American customers on the same conditions offered to
other customers. In discussing the scope of the statute, the court stated:
‘The Legislature used the words “all” and “of every kind whatsoever” in
referring to business establishments covered by the Unruh Act . . . , and the
inclusion of these words, without any exception and without specification of
particular kind of enterprises, leaves no doubt that the term “business
establishments” was used in the broadest sense reasonably possible. The
word “business” embraces everything about which one can be employed, and
it is often synonymous with “calling, occupations, or trade, engaged in for the
purpose of making a livelihood or gain.” [Citations.] The word
“establishment,” as broadly defined, includes not only a fixed location, such
as the “place where one is permanently fixed for residence or business,” but
also a permanent “commercial force or organization” or “a permanent settled
position (as in life or business).” [Citations.] [Thus, it was] clear that
defendants operated “business establishments” within the meaning of the
term as used in the Unruh Act.’ ” (Warfield, supra, 10 Cal.4th at pp. 609–610,
quoting Burks, supra, 57 Cal.2d at pp. 468–469, italics omitted.)
In addition to concluding the construction company was a business
establishment under the Unruh Act, the court in Burks also rejected the
company’s due process challenge to the statute, stating: “Discrimination on
the basis of race or color is contrary to the public policy of the United States
and of this state. Although the antidiscrimination provisions of the federal
Constitution relate to state rather than private action, they nevertheless
16
evidence a definite national policy against discrimination. [Citation.] The
Legislature in the exercise of the police power may in appropriate
circumstances prohibit private persons or organizations from violating this
policy. . . . [¶] For more than 50 years prior to the enactment of the Unruh
Act, sections 51 and 52 of the Civil Code contained provisions prohibiting
discrimination in places of ‘public accommodation and amusement.’ The
constitutionality of this legislation was upheld in Piluso v. Spencer (1918),
36 Cal.App. 416, 419 . . . , and there is no valid reason why the extension of
the prohibition against discrimination to ‘all business establishments,’
including those dealing with housing, would be violative of due process.
Discrimination in housing leads to lack of adequate housing for minority
groups [citation], and inadequate housing conditions contribute to disease,
crime, and immorality. Under the police power reasonable restrictions may
be placed upon the conduct of any business and the use of any property
[citations], and the restriction here imposed in furtherance of the policy
against discrimination is reasonable.” (Burks, supra, 57 Cal.2d at p. 471.)
In O’Connor, the court considered whether a nonprofit condominium
association that adopted age-restrictive covenants was a business
establishment under the Unruh Act. (O’Connor, supra, 33 Cal.3d at pp. 792,
796.) The court concluded it was, explaining: “Although our cases so far
have all dealt with profit-making entities, we see no reason to insist that
profit-seeking be the sine qua non for coverage under the act. Nothing in the
language or history of [the Act] calls for excluding an organization from its
scope simply because it is nonprofit. [Citation.] Indeed, hospitals are often
nonprofit organizations, and they are clearly business establishments to the
extent that they employ a vast array of persons, care for an extensive
physical plant and charge substantial fees to those who use the facilities.
17
The Village Green Owners Association has sufficient businesslike attributes
to fall within the scope of the act’s reference to ‘business establishments of
every kind whatsoever.’ Contrary to the association’s attempt to characterize
itself as but an organization that ‘mows lawns’ for owners, the association in
reality has a far broader and more businesslike purpose. The association,
through a board of directors, is charged with employing a professional
property management firm, with obtaining insurance for the benefit of all
owners and with maintaining and repairing all common areas and facilities of
the 629–unit project. It is also charged with establishing and collecting
assessments from all owners to pay for its undertakings and with adopting
and enforcing rules and regulations for the common good. In brief, the
association performs all the customary business functions which in the
traditional landlord-tenant relationship rest on the landlord’s shoulders. A
theme running throughout the description of the association’s powers and
duties is that its overall function is to protect and enhance the project’s
economic value. Consistent with the Legislature’s intent to use the term
‘business establishments’ in the broadest sense reasonably possible [citation],
we conclude that the Village Green Owners Association is a business
establishment within the meaning of the act.” (Id. at p. 796.)
In Isbister, the court considered whether a local Boys’ Club, a private
charitable organization, was, in operating a “community recreational
facility,” a business establishment under the Unruh Act. (Isbister, supra,
40 Cal.3d at p. 76.) The court concluded it was. (Ibid.)
The court commenced its opinion by stating: “The Act is this state’s
bulwark against arbitrary discrimination in places of public accommodation.
Absent the principle it codifies, thousands of facilities in private ownership,
but otherwise open to the public, would be free under state law to exclude
18
people for invidious reasons like sex, religion, age, and even race. The
Legislature’s desire to banish such practices from California’s community life
has led this court to interpret the Act’s coverage ‘in the broadest sense
reasonably possible.’ ” (Isbister, supra, 40 Cal.3d at pp. 75–76, quoting
Burks, supra, 57 Cal.2d at p. 468.)
The court went on to explain why the Boys’ Club came within the
bounds of the Unruh Act. The court first summarized the historical
derivation of the Act, concluding that given “the Act’s ancestry, its phrase
‘business establishments,’ clearly includes at least those facilities subject to
the predecessor statute—i.e., ‘places of public accommodation or
amusement.’ ” (Isbister, supra, 40 Cal.3d at p. 79.) The court then pointed
out “[c]ourts in other jurisdictions ha[d] consistently held that broad-based
nonprofit community service organizations like the Boys’ Club are ‘public
accommodations’ covered by statutes analogous to California’s pre-1959 civil
rights law. For example, in language similar to our prior law, title II of the
federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.) grants ‘all
persons’ the right to ‘full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or
segregation on the ground of race, color, religion, or national origin.’ A ‘place
of public accommodation’ includes, among other specified facilities, ‘any
motion picture house, theater, concert hall, sports arena, stadium or other
place of exhibition or entertainment.’ (Id., § 2000a(b)(3). . . .) Title II has
been applied to private, nonprofit recreational organizations which offer
memberships to the public at large and exclude only a particular class of
19
persons protected by the statute.”8 (Isbister, at pp. 79–80, italics & fn.
omitted.)
The court thus concluded “[t]he club certainly qualifies as a ‘place of
amusement.’ Indeed, its primary function is to operate a permanent physical
plant offering established recreational facilities which patrons may use at
their convenience during the hours the Club is open.” (Isbister, supra,
40 Cal.3d at p. 81.) Moreover, “the emphasis is on drop-in use of the Club’s
facilities, thus minimizing any sense of social cohesiveness, shared identity,
or continuity. Boys who join the Club have no power in its affairs and no
control over who else may be members. A fee, though not a large one, is
charged for the annually renewable membership. Thus, the Club provides an
atmosphere deemed characteristic of a ‘public accommodation’ by the
principal commentator on the Unruh Act; relations with and among its
members are of a kind which take place more or less in ‘public view,’ and are
of a ‘relatively nongratuitous, noncontinuous, nonpersonal, and nonsocial
sort.’ ” (Ibid., quoting Horowitz, supra, 33 So.Cal.L.Rev. at pp. 260, 287, 288.)
8 The definitional provisions of Title II describe every conceivable kind
of “public accommodation,” that is, every kind of privately owned enterprise
that offers goods and services to the general public. (Id., § 2000, subds. (b) &
(c).) However, “a private club or other establishment not in fact open to the
public” is expressly excluded. (Id., subd. (e).) We also note the federal courts
have held public schools, in performing educational functions, are not places
of public accommodation under Title II. (E.g., Carroll v. Millersville
University of PA (E.D. Pa., June 6, 2019, No. 16-1406) 2019 WL 2423268, *5–
7; Alja-lz v. Ramsey (W.D. Ky., Sept. 12, 2017, No. 3:14-CV-618-DJH) 2017
WL 6485803, *12; Gilmore v. Amityville Union Free School Dist. (E.D.N.Y.
2004) 305 F.Supp.2d 271, 279; see Gallegos Adams County School District (D.
Colo. 2017) 2017 WL 4236320, fn. 4 [while not deciding issue given rulings on
other issues, court nevertheless observes “courts in other jurisdictions find
unequivocally that public schools are not places of public accommodation
under Title II”].)
20
The court rejected the club’s claim that because it collected only a small
annual membership fee from patrons and had “no economic function,” it was
too “removed from the commercial world” to be subject to the Act. (Isbister,
supra, 40 Cal.3d at p. 82.) The court pointed out the club had, “[o]f course,”
some “ ‘businesslike attributes,’ ” as it employed “a substantial paid staff” and
owned and operated “ ‘an extensive physical plant.’ ” (Id. at p. 82.) But, said
the court, it “need not rely exclusively on the Club’s functional similarity to a
commercial business. As we have seen, the Unruh Act replaced a statute
governing all ‘places of public accommodation or amusement’ and was
intended at a minimum to continue the coverage of ‘public accommodations.’
The Santa Cruz Boys’ Club, as a public recreational facility, fits within that
category. In these circumstances, the fact that its purposes and operations
are not strictly commercial does not bar a conclusion that it is a ‘business
establishment’ to which the Act applies.” (Id. at p. 83, fn. omitted.)
In Warfield, the court considered whether a members-only golf and
country club was a business establishment under the Unruh Act, and
concluded it was. (Warfield, supra, 10 Cal.4th at pp. 598–599.)
The court first rejected, however, the plaintiff’s assertion the court’s
earlier cases had “establish[ed] that the Legislature’s adoption of the phrase
‘all business establishments of every kind whatsoever’ in the final, enacted
version of the Unruh Civil Rights Act was intended to incorporate all entities
and activities that had been included in the initial draft of the bill introduced
in 1959,” which had “referred specifically to ‘membership . . . in . . . all public
or private groups, organizations [and] associations.’ ” (Warfield, supra,
10 Cal.4th at p. 614.) “[T]he cited cases” said the court, did “not support
plaintiff’s reading.” (Ibid.) “Nothing in the [Burks] opinion . . . suggest[ed]
that the term ‘all business establishments of every kind whatsoever’ was
21
intended to encompass all of the entities or activities listed in the initial bill,
without regard to whether such activities reasonably could be found to
constitute a business establishment. Indeed, the court in Burks, in a
subsequent passage distinguishing the scope of the Unruh Civil Rights Act
from that of other legislation enacted the same year, [had] specifically stated:
‘The Unruh Act relates only to discriminatory practices in “business
establishments.” ’ ” (Warfield, at pp. 614–615, quoting Burks, supra,
57 Cal.2d at p. 469, second italics added.) And “in O’Connor the court [had]
stated in this regard: ‘The broadened scope of business establishments in the
final version of the bill, in our view, is indicative of an intent by the
Legislature to include therein all formerly specified private and public groups
or organizations that may reasonably be found to constitute “business
establishments of every type whatsoever.” ’ [Citation.] As in Burks, nothing
in O’Connor suggest[ed] that all private groups, organizations, or associations
listed in the initial version of the bill invariably constitute ‘business
establishments’ under [Civil Code] section 51; rather, O’Connor explain[ed]
that such private groups or organizations are covered by [Civil Code] section
51 if they ‘may reasonably be found to constitute “business establishments of
every type whatsoever.” ’ ” (Warfield, at p. 615, quoting O’Connor, supra,
33 Cal.3d at pp. 795–796, italics omitted.)
The court next addressed whether “private social clubs, as a general
matter, constitute ‘business establishments’ within the meaning of [Civil
Code] section 51.” (Warfield, supra, 10 Cal.4th at p. 614.) After
acknowledging that its decisions in O’Connor and Isbister demonstrate “the
reach of [Civil Code] section 51 cannot be determined invariably by reference
to the apparent ‘plain meaning’ of the term ‘business establishment,’ ” the
court—viewing the matter from a historical perspective—observed that
22
“[t]raditionally, statutes prohibiting discrimination in places of public
accommodation have not been applied to the membership policies of private
social clubs.” (Id. at pp. 616–617, italics omitted.) It also found nothing in
the language or the legislative history of either California’s initial public
accommodation statutes or the Unruh Act suggesting the Legislature
intended to depart from that view. (Id. at pp. 617–618.) “Although the 1959
enactment of the current version of [Civil Code] section 51 clearly was
intended to expand the reach of the 1897 statute, the Legislature’s adoption
of language making the statute applicable to ‘all business establishments of
every kind whatsoever’ does not indicate that the contemplated expansion
was intended, as a general matter, to encompass private social clubs.” (Id. at
p. 617.)
But this did not mean, the court went on to explain, that an entity or
organization is exempt from the Unruh Act “simply because it characterizes
itself as a ‘private social club.’ ” (Warfield, supra, 10 Cal.4th at p. 619.)
While the parties vigorously debated whether the golf and country club was
truly a “private” club beyond the reach of the Act (each relying on out of state
cases reaching varying results), the court concluded it did not need to reach
the issue. Rather, it “conclude[d] that the business transactions that [were]
conducted regularly on the club’s premises with persons who are not members
of the club [were] sufficient in themselves to bring the club within the reach
of [Civil Code] section 51’s broad reference to ‘all business establishments of
every kind whatsoever.’ ” (Id. at p. 621.)
To begin with, “the club regularly (on the average of once a week)
permit[ed] nonmembers to use its facilities, for a fee, in connection with
‘sponsored events.’ In conducting such events, the club receive[d] funds from
nonmembers for the use of the club’s golf course, tennis courts, and dining
23
and bar facilities, and also obtain[ed] revenue from the sale (at a markup) of
food and beverages to nonmembers at the club’s snack bar and other dining
facilities on the club’s premises.” (Warfield, supra, 10 Cal.4th at p. 621.) “In
carrying on such activities for a fee, the club operate[d] as the functional
equivalent of a commercial caterer or a commercial recreational resort—
classic forms of ‘business establishments’—and, indeed, presumably
compete[d] with business entities that offer comparable services and that
clearly are subject to the strictures of [Civil Code] section 51.” (Ibid.)
Additionally, the club “obtain[ed] income, on a regular basis, from fees
charged for the use of its facilities, and the purchase of food and beverages on
its premises, by nonmember ‘invited guests.’ ” (Ibid.) “To the extent the club
obtain[ed] payment from nonmembers for meals served to guests in the club’s
dining room, for drinks obtained by guests from the club’s bar, and for the
guests’ use of the club’s golf course or other facilities, the club, once again,
appear[ed] to have been operating in a capacity that is the functional
equivalent of a commercial enterprise.’ ” (Id. at pp. 621–622.) The club also
“obtain[ed] a significant, albeit indirect, financial benefit from the regular
business transactions with nonmembers conducted at the golf and tennis pro
shops located on its premises,” shops that “realistically must be viewed as an
integral part of the club’s overall operations.” (Id. at p. 622.)
The court concluded that “because of the involvement of defendant’s
operations in the variety of regular business transactions with nonmembers
discussed above, the club must properly be considered a business
establishment within the meaning of Civil Code section 51. Although the
club is a nonprofit organization, and there is no suggestion that the activities
in question were intended to generate a profit that might be distributed to
members, the direct and indirect financial benefits that the club derived from
24
its business transactions with nonmembers nonetheless inured to the
financial benefit of the club members, because the revenue from such
transactions permitted the members to maintain the club’s facilities and
services—which were reserved primarily for the benefit of the members—
through the payment of dues and fees lower than would have been required
in the absence of the income obtained from nonmembers.” (Warfield, supra,
10 Cal.4th at pp. 622–623.) The “club’s regular business transactions with
nonmembers,” thus, “render[ed] it a ‘business establishment’ for purposes of
[Civil Code] section 51.” (Id. at p. 623.)
This brings us to Curran and its companion case Randall, which
considered whether the Boy Scouts organization, in making membership
decisions, is a business establishment under the Unruh Act. (Curran, supra,
17 Cal.4th 670.) The court concluded it is not. (Id. at p. 673.)
As it had in Warfield, the court commenced with a discussion of the
historical origin of the state’s public accommodation statutes, the legislative
history of the Unruh Act, and its prior opinions. (Curran, supra, 17 Cal.4th
at pp. 686–696.) The court also reiterated that precedent established the
term business establishment must be “interpreted ‘in the broadest sense
reasonably possible.’ ” (Curran, supra, 17 Cal.4th at p. 696, quoting Burks,
supra, 57 Cal.2d at p. 468.)
“Nonetheless,” said the court, “although past California decisions
demonstrate that the Act clearly applies to any type of for-profit commercial
enterprise, and to nonprofit entities—like the condominium association in
O’Connor—whose purpose is to serve the business or economic interests of its
owners or members, no prior decision ha[d] interpreted the ‘business
establishments’ language of the Act so expansively as to include the
membership decisions of a charitable, expressive, and social organization,
25
like the Boy Scouts, whose formation and activities are unrelated to the
promotion or advancement of the economic or business interests of its
members.” (Curran, supra, 17 Cal.4th at p. 697, fn. omitted.)
The court also recognized that in Isbister, it “concluded that in light of
the legislative history demonstrating that the Unruh Civil Rights Act was
intended to extend the reach of California’s prior public accommodation
statute, the very broad ‘business establishments’ language of the Act
reasonably must be interpreted to apply to the membership policies of an
entity—even a charitable organization that lacks a significant business-
related purpose—if the entity’s attributes and activities demonstrate that it
is the functional equivalent of a classic ‘place of public accommodation or
amusement.’ ” (Curran, supra, 17 Cal.4th at p. 697, quoting Isbister, supra,
40 Cal.3d at p. 83, italics omitted.)
The court disagreed, however, “that the circumstance that the Boy
Scouts is generally nonselective in its admission policies, and affords
membership to a large segment of the public, is itself sufficient to
demonstrate that the organization reasonably can be characterized as the
functional equivalent of a traditional place of public accommodation or
amusement.” (Curran, supra, 17 Cal.4th at p. 697.) Rather, the “record
establishe[d] that the Boy Scouts is an organization whose primary function
is the inculcation of a specific set of values in its youth members, and whose
recreational facilities and activities are complementary to the organization’s
primary purpose. Unlike membership in the Boys’ Club of Santa Cruz, Inc.,
membership in the Boy Scouts is not simply a ticket of admission to a
recreational facility that is open to a large segment of the public and has all
the attributes of a place of public amusement.” (Id. at pp. 697–698.)
26
The court also distinguished Warfield. (Curran, supra, 17 Cal.4th at
p. 699.) “[T]he business transactions with nonmembers at issue in Warfield
involved the country club’s practice of permitting, on a regular basis,
nonmembers to use the various recreational and dining facilities of the club
for a fee, a practice that generated a substantial amount of revenue for the
club and provided a financial benefit to club members by permitting them to
enjoy their preferred access to the club’s facilities through the payment of
lower dues and fees. As . . . we explained in Warfield . . . ‘[i]n carrying on
such activities for a fee, the club operates as the functional equivalent of a
commercial caterer or a commercial recreational resort—classic forms of
“business establishments”—and, indeed, presumably competes with business
entities that offer comparable services and that clearly are subject to the
strictures of [Civil Code] section 51.’ ” (Curran, at p. 699.)
While the “Boy Scouts, like the country club in Warfield, engages in
business transactions with nonmembers on a regular basis (through the
operation of retail shops and the licensing of the use of its insignia), the Boy
Scouts’ business activities differ from those of the defendant in Warfield in a
very significant respect. . . . [T]he Boy Scouts is an expressive social
organization whose primary function is the inculcation of values in its youth
members, and whose small social group structure and activities are not
comparable to those of a traditional place of public accommodation or
amusement. Unlike those involved in Warfield, the business transactions
with nonmembers engaged in by the Boy Scouts do not involve the sale of
access to the basic activities or services offered by the organization.”
(Curran, supra, 17 Cal.4th at pp. 699–700.) The Boy Scout’s “business
transactions are distinct from” its “core functions and do not demonstrate
27
that the organization has become a commercial purveyor of the primary
incidents and benefits of membership in the organization.” (Id. at p. 700.)
In Randall, the court reached the same conclusion it had in Curran,
stating: “[W] e conclude that defendant’s attributes and activities render the
Unruh Civil Rights Act inapplicable to its membership decisions. Defendant
not only is a charitable organization with a predominantly expressive social
purpose unrelated to the promotion of the economic interests of its members,
but offers to its members a program that is not the equivalent of a traditional
place of public accommodation or amusement. Despite the organization’s
limited business transactions with the public, defendant does not sell the
right to participate in the activities it offers to its members. For these
reasons, with regard to its membership decisions, defendant is not operating
as a business establishment within the purview of California’s public
accommodation statute.” (Randall, supra, 17 Cal.4th at p. 744.)
What do we discern from these cases that is of particular significance to
the issues before us?
First, while our high court has never considered whether a state entity
fulfilling a state constitutional mandate is a business establishment for
purposes of the Unruh Act, the court has, in deciding whether private entities
are such, considered both the historical genesis of our public accommodation
laws and the legislative history of the Act. As we have discussed, these areas
of inquiry indicate our public accommodation laws, including in its most
recent form, have been, and remain, directed at private, rather than state,
conduct.
Nothing in the high court’s decisions suggests otherwise, and, in fact,
the court’s commentary about the Unruh Act echoes what seems apparent
from its history. In Burks, after concluding the private construction company
28
was a business establishment, the court went on to uphold the Act against a
due process challenge on the ground the state could, through its police
powers, prohibit “private persons or organizations” from discriminating on
the basis of race. (Burks, supra, 57 Cal.2d at p. 471, italics added.) In
Isbister, the court began its opinion by emphasizing what the consequence
would be if it concluded the Boys’ Club was not a business establishment
within the meaning of the Act: “Absent the principle it codifies, thousands of
facilities in private ownership, but otherwise open to the public, would be free
under state law to exclude people for invidious reasons like sex, religion, age,
and even race. The Legislature’s desire to banish such practices from
California’s community life has led this court to interpret the Act’s coverage
‘in the broadest sense reasonably possible.’ ” (Isbister, supra, 40 Cal.3d at pp.
75–76, quoting Burks, at p. 468, italics added.) In like vein, the court closed
its opinion with the comment that its decision did not “foreclose the
Legislature from a more precise formulation of the situations in which private
discrimination is forbidden.” (Isbister, at p. 91, italics added.) In Warfield,
the court explained that the Act can be “traced to the early common law
doctrine that required a few, particularly vital, public enterprises—such as
privately-owned toll bridges, ferryboats, and inns—to serve all members of
the public without arbitrary discrimination.” (Warfield, supra, 10 Cal.4th at
p. 607, italics added.)
The scholarly works to which the court has repeatedly cited, express
this same understanding—that the progenitor common law public interest
doctrine and our post-Civil Rights Cases public accommodation statutes,
including the Unruh Act, are the means by which the courts and the state,
respectively, have sought to reach and prohibit discriminatory conduct by
private persons and entities that offer goods and services to the general
29
public. (E.g., Tobriner & Grodin, supra, 55 Cal.L.Rev. at pp. 1249–1250,
1253, 1263; Horowitz, supra, 33 So.Cal.L.Rev. at pp. 260–263, 280.) Indeed,
Horowitz stated categorically that the Unruh Act “result[ed] in California
now expressing its policy against racial and other discrimination in this
general area of relationships between private persons in a way which is
unique among the states—i.e., without the use of the word ‘public,’ and with
the use of the words ‘business’ and ‘establishments.’ ” (Horowitz, supra,
33 So.Cal.L.Rev. at p. 262, first italics added.)
Secondly, many of the high court’s reasons for why it determined
private entities were business establishments under the Unruh Act do not
pertain to our public school districts. The “overall function” of a public school
district is not to “enhance” its “economic value.” (O’Connor, supra, 33 Cal.3d
at p. 796.) While a public school district may provide some athletic facilities
for the physical education of its students, these facilities are not the district’s
“principal activity and reason for existence.” (Isbister, supra, 40 Cal.3d at
p. 76.) Nor do public school districts provide a “physical plant” for “patrons
[to] use at their convenience” and for which they pay an annual membership
fee. (Id. at p. 81.) “Commercial transactions” with the general public are not
“an integral part of [a public school district’s] overall operations.” (Warfield,
supra, 10 Cal.4th at p. 622.) The “attributes and activities” of a public school
district are not “the functional equivalent of a classic ‘place of public
accommodation or amusement.” (Curran, supra, 17 Cal.4th at p. 697.) And
whatever commercial activities a public school district may engage in (such
as allowing school clubs or booster organizations to sell goods to raise funds
for extracurricular student activities, or allowing school athletic departments
to charge a small admission fee for student athletic events), “do not involve
the sale of access to the basic” education that public school districts are
30
charged by the state with delivering to every school-age child pursuant to
state constitutional mandate. (Id. at p. 700, italics omitted.) Public school
districts do not “sell the right to participate” in the basic educational
programs and services they deliver. (Randall, supra, 17 Cal.4th at p. 744.)
We thus conclude the decisions of our Supreme Court confirm what
seems apparent from the historical origins of the Unruh Act, its legislative
history and the scholarly commentary—that California’s public school
districts are not business establishments under the Act.
Other Court Decisions Interpreting the Unruh Act
Our conclusion is consistent with decisions by other Courts of Appeal
that have considered whether a government entity was a business
establishment under the Unruh Act and concluded they were not. (Harrison
v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 175 [city not a business
establishment in amending municipal code to increase age of person
“responsible” for short-term rental]; Qualified Patients Assn. v. City of
Anaheim (2010) 187 Cal.App.4th 734, 764 [city “not functioning as a ‘business
establishment’ ” in enacting legislation regulating medical marijuana];
Burnett v. San Francisco Police Department (1995) 36 Cal.App.4th 1177,
1191–1192 [city ordinance restricting young adults from after-hours clubs not
actionable under Unruh Act; nothing in Act “precludes legislative bodies from
enacting ordinances that make age distinctions among adults”]; see Carter v.
City of Los Angeles (2014) 224 Cal.App.4th 808, 825–826 (Carter) [although
appellate court reversed approval of class action settlement, it agreed
recovery of damages under Unruh Act was “unlikely,” as a “public entity
31
providing sidewalks and curbs to its citizens does so as a public servant, not a
commercial enterprise”].)
Although the analyses in these cases was more limited than ours here
and generally focused on a government entity’s legislative activity, the result
they reached is the same—government entities were held not to be business
establishments under the Unruh Act. Furthermore, public school districts
can well be described, in acting as the state’s agent in delivering
constitutionally mandated, free primary and secondary education to the
state’s school age children, as a “public servant, not [as] a commercial
enterprise.”9 (Carter, supra, 224 Cal.App.4th at p. 825.)
9 In his briefing, petitioner did not cite any California case that
specifically considered whether a government entity was a business
establishment and reached a conclusion contrary to that reached in these
cases. At oral argument, counsel referred to Gatto v. County of Sonoma
(2002) 98 Cal.App.4th 744 (Gatto). In that case, the plaintiff sued both the
county and the company operating the county’s fair after he was refused
admission because he was wearing a vest with Hells Angels insignia. (Id. at
p. 749.) The appellate court reversed a judgment for the plaintiff to the
extent it was based on the Unruh Act, on the ground he was not a member of
any class protected by the Act. (Id. at pp. 765–769.) The court affirmed to
the extent the judgment could be characterized as a state constitutional free
speech claim. (Id. at pp. 769–777.) On the way to reaching these holdings,
the court considered whether a one-year or three-year statute of limitations
applies to an Unruh Act claim and concluded it depends on whether the cause
of action at issue “evolved from the common law.” If so, the one-year statute
applies. (Id. at p. 759.) The court next considered whether the Government
Claims Act applied to the plaintiff’s purported Unruh Act claim and
concluded it did so, thereby extending the limitations period applicable to the
purported claim. (Id. at p. 765.) The county did not raise the issue of
whether it, as well as the corporation operating the fair, was a business
establishment under the Unruh Act. The sole comment the court made even
tangentially in that regard was in response to the plaintiff’s attempt to
distinguish a case that had rejected a similar apparel/free speech
discrimination claim against a private bar. The court stated in passing, “by
its own terms, the equal access in accommodations provision of the Unruh
32
We must also comment on Doe v. California Lutheran High School
Assn. (2009) 170 Cal.App.4th 828 (California Lutheran), in which the Court
of Appeal concluded a private, religiously affiliated secondary school was not
a business establishment under the Act. Contrasting Warfield and Curran,
the court concluded the school shared many of the same attributes of the Boy
Scouts, in that the student body was limited to those sharing the Lutheran
faith and a significant aspect of the school’s educational mission was
furthering the religious tenants of the church. (Id. at pp. 838, 840–841.) The
court concluded by emphasizing the narrow scope of its holding. (Id. at p.
841) Indeed, as we have observed, a secular private school, charging tuition
and generally open to school-age children, is likely a business establishment
for purposes of the Act. (See Horowitz, supra, 33 So.Cal.L.Rev. at pp. 285–
286.)
Finally, we must comment on the federal court cases that have
considered whether California public school districts are business
Civil Rights Act applies to ‘all business establishments whatsoever,’ ” and
thus the rejection of an apparel/free speech claim in the private bar case was
as “applicable to a county fair as to a private drinking establishment.” (Id. at
pp. 765–769.) At best, this is an aside, and a case is “not authority, of course,
for issues not raised and resolved.” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 943.) And as our lengthy discussion above
reveals, there is far more to the analysis of whether an entity is a business
establishment than the one-liner deployed in Gatto.
Los Angeles County Metropolitan Transportation Authority v. Superior
Court (2004) 123 Cal.App.4th 261, 264, 267–276, not cited by petitioner but
which we reviewed in doing our own research, likewise, is of no assistance to
petitioner, as the transit authority raised only one issue in its original writ
proceeding—whether the plaintiff, in connection with an Unruh Act claim,
could seek statutory “penalties.” The Authority did not raise, nor did the
court address, whether it was a business establishment under the Act.
33
establishments under the Unruh Act. In the wake of Curran, the federal
courts have split on the question.
In Zuccaro v. Martinez Unified School District (N.D. Cal. Sept. 27,
2016, No. 16-cv-02709-EDL) 2016 WL 10807692 (Zucarro), the district court
concluded, after a discussion of Isbister and Curran, as well as the California
Court of Appeal decisions we have discussed, that “a public elementary
school, particularly in its capacity of providing a free education to a special
needs preschooler, is similarly acting as a public servant rather than a
commercial enterprise and is therefore not subject to the Unruh Act.” (Id. at
*9–13.)
Zuccaro acknowledged its conclusion was contrary to that of other
district courts—a line of cases on which petitioner here relies. Zuccaro
pointed out these cases have all been predicated on Isbister’s reminder that
the Unruh Act applies to “ ‘all business establishments of every kind
whatsoever’ ” and therefore must be interpreted in “ ‘the broadest sense
reasonably possible’ ” (Isbister, supra, 40 Cal.3d at pp. 75–76), and its holding
that a nonprofit entity can be a business establishment within the meaning of
the Act. (Zucarro, supra, 2016 WL 10807692 at *10–12.) Zuccaro concluded
these features of Isbister, in isolation, were not dispositive, given the analysis
in Curran. (Id. at *10–13; see Anderson v. County of Siskiyou (N.D. Cal.
Sept. 10, 2010, No. C10-01428) 2010 WL 3619821 at *6 [county jail is not a
business establishment]; Taormina v. California Dept. of Corrections (S.D.
Cal. 1996) 946 F.Supp. 829, 834 [state prison is not a business
establishment].)
We agree with Zucarro’s assessment of the line of district court cases
concluding a California public school district is a business establishment
under the Unruh Act. While focusing on certain aspects of Isbister, these
34
cases have largely ignored other aspects of our high court’s decisions. None of
these cases have engaged in any meaningful examination of the historical
origins of the Unruh Act or its legislative history. Nor have any of these
cases discussed the two scholarly articles, one co-authored by the justice who
wrote the majority opinion in Isbister, our high court has repeatedly cited in
analyzing whether an entity is a business establishment. Thus, these federal
cases (presumably because they did not examine the historical background of
the Act), were not attentive to our high court’s opening and closing comments
in Isbister—that without generous interpretation, “thousands of facilities in
private ownership,” would be free to engage in invidious discrimination, and
its decision did not foreclose the legislature from enacting a more “precise
formulation of the situations in which private discrimination is forbidden.”
(Isbister, supra, 40 Cal.3d at pp. 75, 91, italics added.)
In fact, many of these cases have simply cited to the first district court
case to conclude a California public school district was a business
establishment, Sullivan v. Vallejo City Unified School Dist. (E.D. Cal. 1990)
731 F.Supp. 947 (Sullivan). Sullivan’s reasoning was as follows: “The
California Supreme Court has taught that the ‘Legislature’s desire to banish
[discrimination] from California’s community life has led [that] court to
interpret the Act’s coverage “in the broadest sense reasonably possible.” ’
[Citations.] Under a parity of the reasoning adopted in Isbister, it appears
relatively certain that it is ‘reasonably possible’ that ‘business
establishments’ as used in the statute includes public schools.” (Id. at
p. 952.) The court then pointed to Isbister’s comment that “[t]he broadened
scope of business establishments in the final version of the bill, . . . is
indicative of an intent by the Legislature to include therein all private and
public groups or organizations [specified in the original bill] that may
35
reasonably be found to constitute ‘business establishments of every type [sic]
whatsoever.’ ” (Ibid.) “In like fashion,” said the district court, “since public
schools were among those organizations listed in the original version of the
Unruh Act, it must follow that for purposes of the Act they are business
establishments as well.” (Id. at p. 53.) Thus, not only was Sullivan’s analysis
bereft of any depth, but, as we have discussed, in Warfield, our high court
squarely rejected the latter prong of the district court’s reasoning.
In Whooley v. Tamalpais Union High School Dist. (N.D. Cal. 2019)
399 F.Supp.3d 986 (Whooley), the district court nevertheless took issue with
Zuccarro and endorsed Sullivan’s approach. The court first distinguished
Curran and California Lutheran. Unlike the Boy Scouts and the private,
religious high school, said the district court, the high school district “is a
public operation that provides educational services to the local community at
no cost to the individuals its serves.” (Id. at p. 998.) The court next
pronounced as inapposite the California appellate court cases concluding
other government entities were not business establishments—none, said the
district court, “dealt with public schools with their ‘quintessential character
of providing public accommodations and services to students.’ ” (Ibid., citing
Yates v. East Side Union High School Dist. (N.D.Cal. Feb. 20, 2019, No. 18-
cv-02966-JD) 2019 WL 721313 at *2.) In short, Whooley (as does Yates)
suffers from the same analytical shortcomings as Sullivan. As we have
discussed at length, the historical genesis of the Unruh Act, its legislative
history, scholarly commentary, and the decisions of our high court all
demonstrate California’s public school districts are not quintessential “public
accommodations” within the meaning of our state’s public accommodation
law.
36
Education Code Sections 200 et seq.
Casting beyond the Unruh Act, petitioner maintains a 1998
amendment to Education Code section 201 demonstrates California public
school districts are business establishments under the Act. Petitioner reads
far too much into this amendment to the Education Code.
Education Code section 201 is part of an extensive array of anti-
discrimination statutes applicable to any educational institution, public or
private, that receives any form of state funding. (Ed. Code, § 210.3, [“For
purposes of this chapter, ‘educational institution’ means a public or private
preschool, elementary, or secondary school or institution; a public or private
institution of vocational, professional, or postsecondary education. . .”], id., §
220 [provisions prohibiting discrimination apply to any school “that receives,
or benefits from, state financial assistance, or enrolls pupils who receive state
student financial aid”]; see generally Donovan v. Poway Unified School Dist.
(2008) 167 Cal.App.4th 567, 589–597, 603–608 (Donovan) [discussing
features of this statutory scheme].) Thus, these statutory provisions apply,
as the Unruh Act likely does, to private schools that accept state funding,
with the exception of religious schools. (Ed. Code, § 221 [excepting religious
schools]; California Lutheran, supra, 170 Cal.App.4th at p. 840.) They do not
apply to secular private schools that rely solely on other sources of funding,
such as tuition and private donations—again, schools that are likely subject
to the Unruh Act.
As originally enacted in 1982, Education Code sections 200 et seq.
prohibited only sex discrimination. (See generally, Donovan, supra,
167 Cal.App.4th at p. 603.) Committee reports explained: “This bill would
consolidate a variety of state and federal laws prohibiting sex discrimination
in public and private educational institutions receiving state funds and
37
declare a state policy of non-discrimination.” (Sen. Com. on Education., Staff
Analysis of Assem Bill No. 3133 (1981–1982 Reg. Sess.) as amended June 29,
1982, p. 1.) The Enrolled Bill Report similarly stated: “This bill’s provisions
establish no fundamentally new requirements or procedures regarding sex
discrimination. Rather, the bill clarifies and makes specific various
prohibitions of sex discrimination contained in existing State and Federal
law.” (Enrolled Bill Report, Assem. Bill No. 3133 (1981–1982 Reg. Sess.) as
amended Aug. 9, 1982, p. 1.)
In 1998, these statutory provisions were amended and augmented to
consolidate and standardize anti-discrimination provisions previously
scattered throughout the Education Code and to clarify that these provisions
are enforceable through a private right of action for any “civil law remed[y],”
including damages and injunctive relief. (Ed. Code, § 262.3, subd. (b); see
Donovan, supra, 167 Cal.App.4th at pp. 591–596.) These amendments also
put in place a “cooling off” period prior to filing suit “to avoid ‘throwing
[public] schools into immediate litigation’ [citation] and to give schools an
opportunity to resolve informally as many cases as possible.” (Id. at p. 607.)
As the Assembly Judiciary Committee explained, “This bill would
consolidate and standardize the non-discrimination language in the
Education Code into two chapters, one for K-12 and another chapter for
higher education. It would also strengthen the gender equity provisions for
K-12 systems, clarify a private right of action for discrimination claims
arising under the Education Code, and expand the remedies available for
discrimination in educational institutions to include monetary damages.”
(Assem. Com. on Judiciary, Assem. Bill No. 499 (1997–1998 Reg. Sess.) as
amended Apr. 9, 1997, p. 1) The report also observed that the Department of
Education had requested that instead of wholly eliminating the need to
38
exhaust administrative remedies, the bill instead include a reasonable period
for administrative review, suggesting 60 days, and “the author [had] agreed
to accept [the] amendment” to the bill. (Id. at p. 3.)
In one of the last, if not the last, round of amendments, language
referencing the Unruh Act was added to Education Code section 201,
subdivision (g), which had read as follows:
“(g) It is the intent of the Legislature that this chapter shall be
interpreted as consistent with Section 11135 of the Government Code,
Titles VI and IX of the federal Civil Rights Act, Section 504 of the
federal Rehabilitation Act of 1973, the federal Americans with
Disabilities Act, and the federal Equal Education Opportunities Act,
except where this chapter may grant more protections or impose
additional obligations, and that the remedies provided herein shall not
be the exclusive remedies, but may be combined with remedies that
may be provided by the above statutes.” (Assem. Bill No. 499 (1997–
1998 Reg. Sess.) as amended Jan. 27, 1998, p. 6.)
As amended the subdivision provided, as it does today:
“(g) It is the intent of the Legislature that this chapter shall be
interpreted as consistent with Article 9.5 (commencing with Section
11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government
Code, Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec.
1981, et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C.
Sec. 1681, et seq.), Section 504 of the federal Rehabilitation Act of 1973
(29 U.S.C. Sec. 794(a)), the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.), the federal Equal
Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.), the Unruh
Civil Rights Act (Secs. 51 to 53, incl., Civ. C.), and the Fair
Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900),
Div. 3, Gov. C.), except where this chapter may grant more protections
or impose additional obligations, and that the remedies provided herein
shall not be the exclusive remedies, but may be combined with
remedies that may be provided by the above statutes.” (Ed. Code,
§ 201, subd. (g).)
39
Committee reports and bill analyses continued to describe the
legislation as before. (E.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading of Assem. Bill No. 499 (1997–1998 Reg. Sess.) as amended July 22,
1998, pp. 1-2; Conc. in Senate Amendments Assem. Bill No. 499 (1997–1998
Reg. Sess.) as amended July 22, 1998, p. 2.)
The author’s transmittal letter asking for the Governor’s signature,
similarly, emphasized the following: “[T]he bill consolidates and
standardizes the non-discrimination language in the Education Code for easy
reference and identification. The scattered, inconsistent language in the
Education Code makes it hard for even the most well intentioned educators
to be sure they are always in compliance with the law.” (Assembly member
Sheila Kuehl, letter to then-Governor Pete Wilson, requesting his signature
on Assem. Bill No. 499 (1997–1998 Reg. Sess.) Sept. 2, 1998, p. 1.) “The bill
does not redefine or expand existing non-discrimination statutes.” (Ibid.) And
to “solve [the] problem” created by delays in reviewing administrative claims
and statute of limitations, “without putting schools at risk of immediate
litigation or preventing students from pursuing a timely remedy, AB 499
requires a cooling off period, where K-12 students are required to go through
four and a half months of administrative grievance processes prior to the
pursuit of civil remedies other than injunctive relief.” (Ibid.) Accordingly,
“AB 499 would help to contain the costs of litigation, while enhancing equal
opportunity for California’s students.” (Ibid.)
Accordingly, the 1998 amendments to Education Code sections 200 et
seq. did not purport to say anything about the substantive reach of the
Unruh Act. And the amended language of Education Code section 201,
subdivision (g), specifically, does not say public school districts are business
establishments under the Unruh Act. Rather, it states the Education Code
40
anti-discrimination statutes are to be applied “as consistent with” a number
of anti-discrimination laws, including the Unruh Act, “except where” the
Education Code anti-discrimination statutes “may grant more protections or
impose additional obligations. . . .” (Ed. Code, § 201, subd. (g).) Moreover,
the plain language of Education Code section 201, subdivision (g) recognizes
that the listed statutes, including the Unruh Act, may be more limited in
some respects than the Education Code anti-discrimination statutes.10
We also note the Education Code’s extensive anti-discrimination
statutory scheme prohibits the same kinds of discrimination as does the
Unruh Act. In fact, the Education Code statutes are somewhat more
generous than the Unruh Act in that they do not require a plaintiff to prove
“intentional” discrimination, generally required under the Unruh Act
(although not in cases of disability discrimination, as we discuss infra). (See
Donovan, supra, 167 Cal.App.4th at pp. 603–608 [looking to Title IX
(20 U.S.C. § 1682) as the model for the elements of a damages action under
Education Code section 220 based on peer harassment, and concluding there
10 We note the state Superintendent of Public Instruction has been for
many years, and remains, charged with the responsibility “for providing
leadership to local agencies to ensure” that the anti-discrimination provisions
of not only “Education Code sections 200 through 253,” but also “Government
Code sections 11135 through 11139” and a litany of federal statutes, “are met
in educational programs that receive or benefit from state or federal financial
assistance and are under the jurisdiction of the State Board of Education.”
(Cal. Code Regs. tit. 5, § 4902, subd. (a)–(b); see Hector F. v. El Centro
Elementary School Dist. (2014) 227 Cal.App.4th 331, 333 [“[T]he Legislature
has imposed on public schools in California an affirmative duty to protect
public school students from discrimination and harassment engendered by
race, gender, sexual orientation or disability. (See Gov. Code § 11135; Ed.
Code §§ 201, 220, 32261, 32280, 32281 & 32282.)”].) To this end, the state
Department of Education has enacted and maintained its own administrative
investigation and complaint procedures. (Cal. Code Regs. tit. 5, §§ 4601 et
seq., 4962.)
41
was ample evidence school district had notice of, and was deliberately
indifferent to, such harassment].) They are less generous than the Unruh
Act in that they do not provide for treble damages, statutory penalties,
punitive damages, or statutory attorney fees. (Compare Civ. Code, § 52,
subd. (b) & Ed. Code, § 262.3, subd. (b).) This difference is not quite as
significant as might first appear, as Government Code section 818 bars
punitive damages against “public entities,” which include public school
districts. (Gov. Code, § 818; see Visalia Unified School Dist. v. Superior
Court (2019) 43 Cal.App.5th 563, 570 (Visalia Unified) [“ ‘Requiring . . .
public entit[ies] to pay punitive damages would punish the very group
imposition of punitive damages was intended to benefit’—the taxpaying
members of the general public.’ ” Quoting City of Sanger v. Superior Court
(1992) 8 Cal.App.4th 444, 450.].)
We further observe that in crafting the comprehensive anti-
discrimination provisions set forth in Education Code sections 200 et seq., the
Legislature considered and weighed policy considerations of particular
importance to schools funded in whole or in part with tax dollars—namely,
maximizing the use of these limited funds for educational purposes. The
required “cooling off” period, for example, not only allows schools to respond
quickly to discriminatory conduct and thereby minimize harm to students
from such conduct, but also enables schools to contain litigation costs by
informally resolving as many complaints as possible. (See Donovan, supra,
167 Cal.App.4th at pp. 607–608.) Similarly, allowing for the recovery of all
actual damages but not enhanced statutory damages, acknowledges that “in
light of the stringent revenue, appropriations, and budget restraints under
which all California governmental entities operate,” exposing school districts
to enhanced statutory damages “would significantly impede their fiscal
42
ability to carry out their core public missions.” (Wells, supra, 39 Cal.4th at
p. 1193; id. at pp. 1191–1193 [holding school districts not an “association,”
“organization,” or “business” under the state false claims act, which allows for
double and treble statutory damages]). Indeed, “[i]n the particular case of
public school districts, such exposure would interfere with the state’s plenary
power and duty, exercised at the local level by the individual districts, to
provide the free public education mandated by the Constitution.” (Id. at
p. 1193.)
We therefore conclude, for all the reasons we have discussed, that
Education Code section 201, as amended, does not establish that our state
school districts are business establishments under the Unruh Act.
Civil Code Section 51, Subdivision (f) of the Unruh Act
Petitioner alternatively maintains that even if a public school district is
not a business establishment under the Unruh Act, it nevertheless can be
sued for disability discrimination under the Act by virtue of Civil Code
section 51, subdivision (f). Petitioner reads this subdivision to mean any
violation of the ADA by any person or entity is also a violation of the Act. We
conclude Civil Code section 51, subdivision (f) makes explicit that any
violation of the ADA by a business establishment is also a violation of the
Unruh Act.
Before discussing the statutory language at issue, we turn momentarily
to the ADA, to point out it is comprised of three titles. Title I prohibits
disability discrimination in employment. (42 U.S.C. § 12111 et seq.) Title II
prohibits discrimination by public entities, including public schools.
(42 U.S.C. §§ 12131 et seq, 12131, subd. (1)(B).) Title III—entitled “Public
Accommodations and Services Operated By Private Entities”—prohibits
disability discrimination by private persons and entities offering “public
43
accommodation[s]” and services. (42 U.S.C. §§ 12181 et seq., 12182, subd.
(a).11)
Returning to the Unruh Act, the language at issue was added to the
statute in 1992 as part of omnibus legislation amending dozens of statutes to
make them consistent with the ADA, then about to go into effect. (E.g.,
Assem. Com. on Judiciary, Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as
amended Jan. 6, 1992, p. 2 [bill “seeks to conform state law with the
provisions of the ADA”; it “intends to strengthen California law where it is
weaker than the ADA” and “[m]odify the language contained in state anti-
discrimination laws to ensure that the protections are given to individuals
with physical or mental disabilities,” underscoring omitted]; Assem. Ways. &
Means Com., Analysis of Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as
amended Jan. 1, 1992, p. 1 [bill “generally places protections afforded the
disabled under the ADA into state law”].)
For virtually the entire time the bill was moving through the
legislature, the pertinent language stated: “A violation of the right of any
individual under the Americans With Disabilities Act of 1990 (Public Law
101-336) with respect to public accommodations subject thereto shall also
Title III includes a long list of “[p]ublic accommodation[s].”
11
(42 U.S.C § 12181, subd. (7) [the “following private entities are considered
public accommodations,” italics added].) These include, for example: “an inn,
hotel, motel, or other place of lodging,” “a restaurant, bar, or other
establishment serving food or drink,” “a motion picture house, theater,
concert hall, stadium, or other place of exhibition or entertainment,” “a
bakery, grocery store, clothing store, hardware store, shopping center, or
other sales or rental establishment,” “a gymnasium, health spa, bowling
alley, golf course, or other place of exercise or recreation,” etc. (Id. § 12181,
subd. (7)(A)–(C), (E), (L).) Also included in this list of private entities is “a
nursery, elementary, secondary, undergraduate, or postgraduate private
school, or other place of education.” (Id., subd. (7)(J), italics added.)
44
constitute a violation of this section.” (Assem. Bill No. 1077 (1991–1992 Reg.
Sess.) as amended Apr. 18, 1991, § 2, pp. 8–9.) The Unruh Act was not
broken into subdivisions at the time, but rather was set forth as a whole in
several paragraphs, the proposed language appearing as the final paragraph
of the statute. (Ibid.) Committee reports and analyses described this
proposed addition to the Act as follows: “In regard to the Unruh Civil Rights
Act [the bill will:] [¶] 3) Include persons with mental disabilities in the
enumerated classes of individuals protected by the Unruh Act. [¶] 4) Make a
violation of the ADA a violation of the Unruh Act. Thereby providing persons
injured by a violation of the ADA with the remedies provided by the Unruh
Act (e.g., right of private action for damages).” (Assem. Com. on Judiciary,
Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended Jan. 6, 1992, p. 2,
underscoring omitted; accord Assem. Com. on Transportation, 3d reading of
Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended Jan. 29, 1992, p. 1.)
The proposed language continued unchanged from its initial inclusion
in the bill in April 1991 until the next to final round of amendments on July
6, 1992. (Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended Apr. 18,
1991, § 2; Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended July 6,
1992, § 3.) At this time, the language was shortened to read as it currently
does: “A violation of the right of any individual under the Americans with
Disability Act of 1990 (Public Law 101-336) shall also constitute a violation of
this section.” (Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended July
6, 1992, § 3.) The language remained situated as the final paragraph of the
multi-paragraphed statute. (Ibid.)12 The description of the language in
committee reports and bill analyses also remained exactly as before. (E.g.,
12 The language was not placed in a separate subdivision, unchanged,
until 2000. (Civ. Code, § 51, Stats. 2000, ch. 1049, § 2.)
45
Conc. in Sen. Amends., Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as
amended Aug. 29, 1992, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended
Aug. 29, 1992, p. 2; State and Consumer Services Agency, Enrolled Bill
Report on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) at p. 2.) A
supplemental analysis prepared by the Transportation Committee stated the
July 6 amendment made “numerous, mostly technical changes.” (Business,
Transportation & Housing Agency, Supp. Analysis on Assem. Bill No. 1077
(1991–1992 Reg. Sess.) as amended July 6, 1992, p. 1.)
In short, not a single committee report or bill analysis prepared after
the final amendment shortening the proposed language, suggested this final
amendment profoundly changed the substantive reach of the Unruh Act and
that as to disability discrimination (and only disability discrimination) the
Act was now disconnected from discrimination by business establishments.
On the contrary, subsequent reports and analyses continued to describe the
Unruh Act as prohibiting discrimination by business establishments. For
example, the Senate Third Reading Analysis stated: “Existing provisions of
the Unruh Civil Rights Act and related provisions, with certain exceptions,
prohibit various types of discrimination by business establishments and
franchisors, and in written instruments relating to real property, including
discrimination on the basis of blindness and other physical disability. [¶]
This bill would make a violation of the American with Disabilities Act of 1990
also a violation of the Unruh Civil Rights Act, and would expand the express
coverage of that act and related provisions to include discrimination on
account of any disability.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended
Aug. 29, 1992, at p. 2.) The Enrolled Bill Report by the Department of
46
Rehabilitation similarly explained: The ADA “prohibits employment
discrimination against individuals with physical or mental disabilities. It
broadens the public transportation and public accommodation rights of
individuals with disabilities.” “In regard to the UNRUH CIVIL RIGHTS
ACT: [¶] [The bill] [a]dds persons with mental and developmental disabilities
as a protected class.” “In regard to PUBLIC
ACCOMMODATION/SERVICE/TRANSPORTATION: [¶] Provide[s] ‘full and
equal access’ to anyone with a disability, as other members of the general
public, to places of public accommodation and modes of transportation to
which the general public is invited. [¶] . . . [¶] Expands the definition of
public accommodations and full and equal access in Civil Code to conform to
the ADA definition.” (Health & Welfare Agency, Depart. of Rehabilitation,
Enrolled Bill Report on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) pp. 2–3;
accord Business, Transportation & Housing Agency, Dept. of Commerce
Enrolled Bill Rep. on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) p. 2
[“Employers[13] and providers of public accommodations or services will be
required to comply with both the ADA and state laws and regulations.”].)
We thus see no indication the Legislature intended, as to disability
discrimination only, to transform the Unruh Act into a general anti-
discrimination statute making any violation of the ADA by any person or
entity a violation of the Act. On the contrary, throughout the legislative
process, the Unruh Act was consistently described as prohibiting
discrimination by business establishments. (E.g., Sen. Rules Com., Off. of
13 Many of the statutes comprising the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.) were also amended as part of this
omnibus legislation to make its employment antidiscrimination provisions
consistent with the ADA. (Legis. Counsel’s Dig., Assem. Bill No. 1077 (1991–
1992 Reg. Sess.) 1992 Stats. ch. 913, subd. (15), p. 380.)
47
Sen. Floor Analyses, 3d reading analysis on Assem. Bill No. 1077 (1991–1992
Reg. Sess.) as amended Aug. 29, 1992, at p. 2 [Unruh Act prohibits “various
types of discrimination by business establishments”], Sen. Com. on Judiciary,
Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended June 1, 1992, at p. 5
[“Unruh Civil Rights Act, entitles protected groups, including blind and
physically disabled persons, to full and equal accommodation, advantages,
facilities, privileges, or services in all business establishments”; “bill would
include persons with mental disabilities in the enumerated classes of
individuals protected by the Unruh Act”].)
Even as shortened in the final round of technical amendments, the
language at issue does not state that a violation of the ADA by any person or
entity is a violation of the Unruh Act. Rather, it states “[a] violation of the
right of any individual under the [ADA]” shall “constitute a violation of [the
Unruh Act]”—the question thus being, a violation by whom? We think it is
apparent from both the Act as a whole and the legislative history of the
language in question, that it is a violation by a business establishment.
Moreover, plaintiff’s interpretation would effectively render
superfluous amendments made by this same legislation to other anti-
discrimination statutes—notably the FEHA. Under plaintiff’s construct, that
“any” violation of the ADA is a violation of the Unruh Act, a violation of Title
I of the ADA, prohibiting disability discrimination in employment, would also
be a violation of the Unruh Act. However, the Legislature incorporated the
protections of Title I of the ADA into our state law by specifically amending
numerous provisions of the FEHA. (Legis. Counsel’s Dig., Assem. Bill No.
1077 (1991–1992 Reg. Sess.) 1992 Stats. ch. 913, subd. (15), p. 380.) Under
statutory construction principles, we do not construe legislative acts as
meaningless surplusage. (See People v. Hudson (2006) 38 Cal.4th 1002, 1010
48
[“interpretations that render statutory terms meaningless as surplusage are
to be avoided”].)
In addition, our Supreme Court had already held in Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn), that the Unruh Act does not
apply to “employment” discrimination. The court explained: “Although this
court has held that the term ‘business establishments’ in [Civil Code] section
51 was used in the ‘broadest sense reasonably possible’ (Burks [,supra,]
57 Cal.2d 463, 468–469 . . . ), it is doubtful that the Legislature intended
these sections to apply to discrimination in employment. The broad language
of [Civil Code] section 51 was adopted after several court decisions placed an
unduly restrictive interpretation upon the former phrase ‘places of public
accommodation or amusement’ in the predecessor section to section 51.
[Citation.] However, there is no indication that the Legislature intended to
broaden the scope of [Civil Code] section 51 to include discriminations other
than those made by a ‘business establishment’ in the course of furnishing
goods, services or facilities to its clients, patrons or customers.” (Alcorn, at
p. 500, citing Horowitz, supra, 33 So.Cal.L.Rev. at pp. 272–276, 288–289,
294.) The court went on to add that its conclusion was “substantiated by the
fact that at the same session wherein it adopted the language of [Civil Code]
section 51, the Legislature also enacted extensive provisions governing
discrimination in employment. . . . [¶] Although the [FEHA] cannot be
deemed to have repealed any provisions of the Civil Rights Act . . . , we
conclude that the concurrent enactment of the former act indicated a
legislative intent to exclude the subject of discrimination in employment from
the latter act.” (Alcorn, at p. 500.)
49
Our high court’s observations and holding in Alcorn are equally
apropos to the 1992 legislation that amended both the Unruh Act and the
FEHA.
Petitioner impliedly acknowledges that Alcorn’s holding—that the
Unruh Act does not apply to discrimination by employers—refutes his
assertion that any violation of the ADA is also a violation the Unruh Act,
since Title I of the ADA prohibits discrimination in employment. He points
out, however, Alcorn was decided prior to the 1992 amendment and suggests
the case was legislatively overruled. There is not the faintest suggestion in
the legislative history, however, that the Legislature intended to overrule
Alcorn, as well as other cases by our Supreme Court following it. (E.g., Rojo
v. Kliger (1990) 52 Cal.3d 65, 77 [“the Unruh Civil Rights Act has no
application to employment discrimination”]; Isbister, supra, 40 Cal.3d at
p. 83, fn. 12 [“the employer-employee relationship was not covered by the Act,
which was confined to discriminations against recipients of the ‘business
establishment’s . . . goods, services or facilities’ ”].) Accordingly, the
controlling principle of statutory construction here is that the Legislature is
deemed to have been aware of this existing law and to have enacted
legislation consistent therewith. (See People v. Castillolopez (2016)
63 Cal.4th 322, 331.) Indeed, no subsequent case has ever suggested Alcorn
was overruled by statute and is no longer controlling as to the scope of the
Unruh Act. (See Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391,
393–394 [generally discussing Alcorn and emphasizing it applies to the
employer-employee relationship, and concluding the case did not apply to a
person who sought to establish a relationship with a professional services
agency but was allegedly rebuffed due to age discrimination].)
50
Our conclusion that Civil Code section 51, subdivision (f) makes any
violation of the ADA by a business establishment a violation of the Unruh
Act, is also consistent with our high court’s more recent decisions addressing
the interplay of the Act and the ADA.
In Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661 (Munson), the court
addressed a question certified to it by the Ninth Circuit—whether an access
claim by a wheelchair bound patron against a restaurant based on Title III of
the ADA (the title applicable to “public accommodations”) and brought under
the Unruh Act pursuant to Civil Code section 51, subdivision (f), required a
showing of intentional discrimination, otherwise required under the Act, but
not required in an ADA Title III access case. (Id. at pp. 664–666.)
The high court first reiterated the “purpose” of the Unruh Act—to
“ ‘create and preserve a nondiscriminatory environment in California
business establishments by “banishing” or “eradicating” arbitrary, invidious
discrimination by such establishments.’ ” (Munson, supra, 46 Cal.4th at
p. 666; see id., at p. 667 [the Act “has always provided substantive protection
against invidious discrimination in public accommodations, without
specifying remedies, and [Civil Code] section 52 has always provided
remedies, including a private action for damages, for violations of [Civil Code]
section 51.”].)
It then explained that in 1992, the Legislature amended the Act “to,
among other changes, add the paragraph that became [Civil Code section 51,]
subdivision (f), specifying that ‘[a] violation of the right of any individual
under the Americans with Disabilities Act of 1990 (Public Law 101–336) shall
also constitute a violation of this section.’ (Stats.1992, ch. 913, § 3, p. 4283,
4284. . . .) This amendment was but one part of a broad enactment,
originating as Assembly Bill No. 1077 (1991–1992 Reg. Sess.), that sought to
51
conform many aspects of California law relating to disability discrimination
(in employment, government services, transportation, and communications,
as well as public accommodations) to the recently enacted ADA, which was
soon to go into effect. (See Assem. Com. on Judiciary, Rep. on Assem. Bill No.
1077 (1991–1992 Reg. Sess.) as amended Jan. 6, 1992, pp. 1–4 [digest]
(hereafter Assembly Judiciary Report on Assembly Bill No. 1077).) . . . [¶]
The Assembly Judiciary Report on Assembly Bill No. 1077 summarized the
bill’s changes to the Unruh Civil Rights Act as follows: ‘Include persons with
mental disabilities in the enumerated classes of individuals protected by the
Unruh Act. [¶] . . . Make a violation of the ADA a violation of the Unruh Act.
Thereby providing persons injured by a violation of the ADA with the
remedies provided by the Unruh Act (e.g., right of private action for
damages).’ (Assem. Judiciary Rep. on Assem. Bill No. 1077, supra, at p. 2.)”14
(Munson, supra, 46 Cal.4th at pp. 668–669.)
The court went on to explain, “[t]he ADA’s public accommodations
provisions are contained in title III of that law (42 U.S.C. §§ 12181–12189).
This part of the ADA prohibits, among other things, the ‘failure to remove
architectural barriers . . . in existing facilities . . . where such removal is
readily achievable’ (42 U.S.C. § 12182(b)(2)(A)(iv)),” and “[i]ntentional
discrimination need not be shown to establish a violation of the ADA’s access
requirements.” (Munson, supra, 46 Cal.4th at p. 669, fn. omitted.)
14 As we have discussed, at this point in the legislative process, as
throughout nearly the entirety of the process, the proposed language included
the phrase “a violation of the right of any individual under the [ADA] . . .
with respect to public accommodations subject thereto. . . .” (Assem. Bill No.
1077 (1991–1992 Reg. Sess.) as amended Apr. 18, 1991, § 2; Assem. Bill No
1077 (1991–1992 Reg. Sess.) as amended July 6, 1992, § 3.)
52
The court concluded a plaintiff proceeding under Civil Code section 51,
subdivision (f) of the Unruh Act can recover statutory damages on proof of an
ADA access violation without the need to demonstrate the discrimination was
intentional. “Subdivision (f) . . . does not distinguish between those ADA
violations involving intentional discrimination and those resulting, in the
words of the federal law, from ‘the discriminatory effects of architectural,
transportation, and communication barriers’ and the ‘failure to make
modifications to existing facilities.’ (42 U.S.C. § 12101(a)(5).) . . . A
reasonable interpretation of section 51, subdivision (f) is, therefore, that it,
together with section 52, authorizes a private action for damages for ADA
violations without proof of intentional discrimination.” (Munson, supra,
46 Cal.4th at p. 670.) “The ADA, as explained above, permits a disabled
individual denied access to public accommodations to recover damages in a
government enforcement action only, not through a private action by the
aggrieved person. But by incorporating the ADA into the Unruh Civil Rights
Act, California’s own civil rights law covering public accommodations, which
does provide for such a private damages action, the Legislature has afforded
this remedy to persons injured by a violation of the ADA.” (Id. at p. 673,
italics added.)
The Supreme Court’s discussion in Munson of Civil Code section 51,
subdivision (f) tracks exactly what we have discerned from the Unruh Act in
its entirety and the legislative history of the 1992 amendment—that the Act
has always been, and remains, a business establishment statute, and that it
is violations of the ADA by business establishments (or, as denominated by
the ADA, “public accommodations”) that are actionable as violations of the
Unruh Act under Civil Code section 51, subdivision (f).
53
In Jankey v. Lee (2012) 55 Cal.4th 1038 (Jankey), our high court
considered whether a small grocer who prevailed in a disability access case
was entitled to statutory attorney fees under the state’s Disabled Persons Act
(DPA) (Civ. Code, § 54). The court concluded he was. What is of interest in
the instant case is the court’s discussion of the Unruh Act and the DPA—the
“[t]wo overlapping laws” that “are the principal sources of state disability
access protection.” (Jankey, at p. 1044.)
“The Unruh Civil Rights Act,” said the court, “broadly outlaws
arbitrary discrimination in public accommodations and includes disability as
one among many prohibited bases. ([Civ. Code,] § 51, subd. (b).) As part of
the 1992 reformation of state disability law, the Legislature amended the
[Act] to incorporate by reference the ADA, making violations of the ADA per
se violations of the . . . Act. ([Civ. Code,] § 51, subd. (f); Munson [,supra,]
46 Cal.4th at pp. 668–669.) This amendment was intended to extend to
disabled individuals aggrieved by an ADA violation the full panoply of Unruh
Civil Rights Act remedies. (Munson, at p. 673.) These include injunctive
relief, actual damages (and in some cases as much as treble damages), and a
minimum statutory award of $4,000 per violation. ([Civ. Code,] § 52, subds.
(a), (c)(3).)” (Jankey, supra, 55 Cal.4th at p. 1044, italics added.)
The DPA “substantially overlaps with and complements” the Unruh
Act. (Jankey, supra, 55 Cal.4th at p. 1044.) It is, however, “[m]ore narrow in
focus” than the Unruh Act and “generally guarantees people with disabilities
equal rights of access ‘to public places, buildings, facilities and services, as
well as common carriers, housing and places of public accommodation.’ ”
(Ibid., quoting Munson, supra, 46 Cal.4th at p. 674, fn. 8.) “As with” the
Unruh Act, “the Legislature amended the [DPA] to incorporate ADA
violations and make them a basis for relief under the act. ([Civ. Code,] §§ 54,
54
subd. (c), 54.1, subd. (d). . . .) The available remedies include actual damages
(and in some cases as much as treble damages), with a $1,000 minimum
recovery. ([Id.] § 54.3, subd. (a). . . .) Recognizing the overlap between the
Unruh Civil Rights Act and the [DPA], the Legislature expressly foreclosed
double recovery. ([Id.] § 54.3, subd. (c). . . .)” (Jankey, at pp. 1044–1045,
citing Munson, at p. 675.)
Thus, Jankey, like Munson, was a business establishment case. And
the court in Jankey, as it had in Munson, described the Unruh Act as
prohibiting “business establishments” from engaging in invidious
discrimination and described the significance of Civil Code section 51,
subdivision (f) as making ADA violations a basis for relief under the Act. It
was in this context that the court commented the 1992 amendment made
violations of the ADA “per se violations” of the Unruh Act. And, indeed, the
amendment did so—as to violations of the ADA by business establishments.
By no means, however, can the court’s per se comment be stretched into a
holding that a violation of the ADA by any person or entity is a violation of
the Unruh Act, regardless of whether they are a business establishment.
In urging otherwise, petitioner relies on a line of federal cases that
have allowed disability discrimination claims against government entities
under Title II of the ADA to proceed concurrently as Unruh Act claims, the
theory being Civil Code section 51, subdivision (f) makes “any” violation of
the ADA a “per se” violation of the Unruh Act and the Act has thus “adopted
the full expanse of the ADA.” (Presta v. Peninsula Corridor Joint Powers Bd.
(N.D. Cal. 1998) 16 F.Supp.2d 1134, 1135; see, e.g., Cohen v. City of Culver
City (9th Cir. 2014) 754 F.3d 690, 701 (Cohen)15; K.M. ex rel. Bright v. Tustin
15 The entirety of the circuit court’s analysis of the Unruh Act claim
was as follows: “A violation of the ADA constitutes a violation of the
55
Unified School Dist. (9th Cir. 2013) 725 F.3d 1088, 1094, fn. 1 (K.M.)16;
Wagon v. Rocklin Unified School District (E.D. Cal. 2019) 2019 WL
2577336;17 Ware v. Antelope Valley Union High School District (C.D. Cal.
2018), 2018 WL 6017026 *9; C.S. v. Public Safety Academy of San Bernardino
(C.D. Cal., 2014) 2014 WL 12591181, *5.)
None of these cases examined the legislative history of the language of
Civil Code section 51, subdivision (f) in any depth. Nor did they consider in
any meaningful way our Supreme Court’s discussion in Munson and Jankey
of the import and significance of this language, or the context in which the
California DPA. Cal. Civ. Code, § 54.1(d). Similarly, a violation of the ADA
constitutes a violation of the Unruh Act. Cal. Civ. Code, § 51(f); see Munson
v. Del Taco, Inc., 46 Cal.4th 661 . . . (holding that no showing of intentional
discrimination is required to state an Unruh Act claim on the basis of an
ADA violation). Because the City is not entitled to summary judgment on
Cohen’s ADA claim, the district court erred by granting summary judgment
for the City on Cohen’s claims under the DPA and the Unruh Act.” (Cohen,
supra, 754 F.3d at p. 701.)
16 The entirety of the circuit court’s reasoning appeared in a footnote,
stating: “Under California law, ‘a violation of the ADA is, per se, a violation
of the Unruh Act.’ Lentini v. Calif. Ctr. for the Arts, 370 F.3d 837, 847 (9th
Cir. 2004). We therefore do not discuss K.M.’s Unruh Act claim separately
from her ADA claim.” (K.M., supra, 725 F.3d at p. 1094, fn. 1.) Lentini,
however, was a business establishment case brought by a wheelchair bound
patron who asserted claims under Title III of the ADA and the Unruh Act.
(Lentini v. Calif. Ctr. for the Arts, at pp. 840–841.)
17 The school district challenged only the adequacy of the plaintiff’s
showing on the merits of his state law claims. (Wagon, supra, 2019 WL
2577336 at *5.) Thus, all the district court said in passing as to the
applicability of the Unruh Act was: “In the disability context, California’s
Unruh Civil Rights Act operates virtually identically to the ADA. Molski v.
M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). Thus, any violation of the
ADA necessarily constitutes a violation of the Unruh Act. Id.” (Wagon, at
*5.) Molski, however, was another business establishment case, by a patron
against a restaurant. (Molski v. M.J. Cable, Inc., at p. 727.)
56
high court examined this language—namely, in addressing the Unruh Act’s
prohibition against discrimination by business establishments. Finally, none
of these federal court cases took account of our high court’s decisions in
Alcorn and Rojo holding employment discrimination claims are not actionable
under the Unruh Act, which per force forecloses employment discrimination
claims based on Title I of the ADA and thus eviscerates the premise “any”
violation of the ADA is a violation of the Unruh Act.
Indeed, in marked contrast to the line of cases on which petitioner
relies, the circuit court panel in Bass v. County of Butte (9th Cir. 2006)
458 F.3d 978 (Bass), undertook a thorough examination of each of the areas
of inquiry as to which the analyses in the other cases are profoundly
deficient. Acknowledging Alcorn and Rojo, the Bass court concluded
employment claims asserted under Title I of the ADA cannot be brought
under the Unruh Act. (Id. at pp. 981–982.) The court squarely rejected the
plaintiff’s claim that under Civil Code section 51, subdivision (f) of the Act
and a like provision of the DPA, any violation of the ADA is “per se” a
violation of these statutes. (Id. at pp. 981–983.)
With respect to the plaintiff’s reliance on the language added to these
statutes in 1992 and 1996, respectively, the court stated plaintiff’s
construction was “incompatible with the state’s statutory scheme as a whole
and is unsupported by the legislative history of the amendments.” (Bass,
supra, 458 F.3d at p. 981.) The plaintiff’s assertion that the “plain meaning”
of the amendments required “incorporation of the ADA in its entirety into the
Unruh Act and the DPA,” (italics omitted) said the court, would “transform[]
the subject-matter scope of these statutes, drastically broadening their reach
from public accommodations to employment discrimination. (Ibid., italics
added.) The language could “not . . . be interpreted in isolation,” but had to
57
be considered in light of “ ‘the entire substance of the statute.’ ” (Id. at
p. 982.) And bringing that perspective to bear, “the context of the 1992
amendment leads” to the conclusion “the California legislature intended to
incorporate into the Unruh Act and the DPA only those provisions of the ADA
germane to the original scope of those state laws.” (Ibid., italics added.) The
plaintiff’s reading “would, in effect, add to the text that a violation of an
individual’s right under any part of the ADA shall constitute a state-law
violation as well, even if the subject matter of the alleged ADA violation is
wholly outside the state-law protection at issue. The text of the amendments
does not sweep so broadly.” (Ibid.)
The Bass court went on to point out the legislation adding the reference
to the ADA “was a broad-spectrum enactment that amended a number of
state laws in an attempt to create conformity between the gamut of
California’s discrimination provisions and those of the ADA. Notably, the bill
also amended FEHA, in an attempt to harmonize the state’s employment
discrimination protections with parallel federal mandates. A.B. 1077, 1992
Reg. Sess. (Cal.1992). If, as Plaintiffs argue, the legislature intended to
transform the Unruh Act into an all-inclusive anti-discrimination law, then
its simultaneous strengthening of FEHA would have been unnecessary and
anomalous.” (Bass, supra, 458 F.3d at p. 982.) Further, construing the
language as a wholesale incorporation of the ADA into the Unruh Act and
DPA would “create a significant disharmony” with FEHA’s administrative
scheme. In short, it would “create an end-run around the administrative
procedures of FEHA solely for disability discrimination claimants.” (Id. at
p. 982.) Nothing supported such a result. (Ibid.)
Citing Bass, the district court in Anderson, supra, 2010 WL 3619821, in
addition to concluding the county was not a business establishment under the
58
Unruh Act, went on to reject the plaintiff’s assertion that her Title II ADA
claim could nevertheless proceed against the county as an Unruh Act claim
pursuant to Civil Code section 51, subdivision (f). “[I]n enacting [section]
51(f), the California Legislature did not purport incorporate the ADA in its
entirety to the Unruh Act. See Bass, supra, 458 F.3d 978, 981 (9th Cir.2006).
Rather, the legislature only intended to incorporate those provisions of the
ADA germane to the original scope of the Unruh Act. (Id.)” (Anderson, at p.
*6.) The Unruh Act, said the district court, “applies specifically to ‘business
establishments.’ Cal. Civ. Code, § 51(b).” (Anderson, at * 6.) “To conclude
that a jail is governed by the Unruh Act, notwithstanding the fact that it
lacks the attributes of a business, would amount to an impermissible
expansion of the statute.” (Ibid.)
For all the reasons we have discussed, Bass and Anderson, in our view,
have correctly analyzed Civil Code section 51, subdivision (f)—that it
expressly makes any violation of the ADA by a business establishment a
violation of the Unruh Act.
DISPOSITION
The petition for a writ of mandate seeking to overturn the trial court’s
order sustaining the school district’s demurrer to his Unruh Act claim
without leave to amend, is DENIED. Parties to bear their own costs.
59
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A157026, Brennon B.
60
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Charles S. Treat
Counsel:
Liberty Law Office and Micha Star Liberty for Petitioner.
Consumer Attorneys of California and Alan Charles Dell’Ario as Amicus
Curiae on behalf of Petitioner.
No appearance for Respondent.
Edington Schirmer & Murphy, Timothy Patrick Murphy and Cody Lee Saal
for Real Party in Interest.
Sue Ann Salmon, Dannis Woliver Kelley, and David A. Obrand; The
Education Legal Alliance of the California School Boards Association and
Kathryn Elizabeth Meola, as Amicus Curiae on behalf of Real Party in
Interest.
61