Majority
The appeal is from a judgment dismissing with prejudice the complaint of plaintiffs Winchell, following an order sustaining a demurrer with leave to amend and plaintiffs’ failure to so amend.
It concerns Civil Code section 51, the so-called Unruh Civil Rights Act, and its related statute, Civil Code section 52. (Hereafter both sections, unless otherwise indicated, will be referred to as the Act.)
The Act, as in effect at the pertinent times,[1] provided:
“This section shall be known, and may be cited, as the Unruh Civil Rights Act. [|] All persons within the jurisdiction of this state are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. [1] This section shall not be construed to confer any right or privilege on a person which is conditioned or limited by law or which is applicable alike to persons of every color, race, religion, ancestry, or national origin.” (Civ. Code, § 51.)
“Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is hable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code.” (Civ. Code, § 52.)
The parties concede, at least for the purpose of this appeal, that the complaint alleged the following: Defendants, operators of a mobile home court, who had given plaintiffs, members of the white race and their tenants of a mobile home space, permission to subrent to others, discriminated against plaintiffs when, and because, they subrented the space to, and associated with, persons of the black race.
* In 1974 the Act was amended to add the word “sex” wherever the expression “color, race, religion, ancestry, or national origin” appeared.
We are thus confronted with an issue of statutory interpretation.
The Act is to be given a liberal, and not a strict, construction with a view to effect its object and to promote justice. (Civ. Code, § 4; Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110 , 113 [ 180 P.2d 321 , 171 A.L.R. 913 ]; Crowell v. Isaacs (1965) 235 Cal.App.2d 755 , 757 [ 45 Cal.Rptr. 566 ]; Lambert v. Mandel’s of California (1957) 156 Cal.App.2d Supp. 855 , 856 [ 319 P.2d 469 ].)
As with all statutes, it must be construed in the light of the legislative purpose and design. In enforcing the command of a statute both the policy expressed in its terms, and the object implicit in its history and background, should be recognized. (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801 , 813-814 [ 114 Cal.Rptr. 577 , 523 P.2d 617 ]; People v. Navarro (1972) 7 Cal.3d 248 , 273 [ 102 Cal.Rptr. 137 , 497 P.2d 481 ]; Alford v. Pierno (1972) 27 Cal.App.3d 682 , 688 [ 104 Cal.Rptr. 110 ].)
Statutes such as the Act are declaratory of the state’s public policy against racial discrimination whether it be private action, or public action, which is involved. (James v. Marinship Corp. (1944) 25 Cal.2d 721 , 740 [ 155 P.2d 329 , 160 A.L.R. 900 ].) “Discrimination on the basis of race or color is contrary to the public policy of the United States and of this state. Although the anti-discrimination provisions of the federal Constitution relate to state rather than private action, they nevertheless evidence a definite national pohcy against discrimination.” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463 , 471 [ 20 Cal.Rptr. 609 , 370 P.2d 313 ].)
We look to the language of the Act.
Civil Code section 51 provides, as relevant, that “All persons ... are entitled to . . . full and equal . . . privileges ... in all business establishments . . . .” Civil Code section 52 states, in pertinent part, that “Whoever . . . makes any discrimination ... on account of. . . color . . . contrary to the provisions of Section 51 ... is hable [for damages] suffered by any person denied the rights provided in Section 51....”
It is thus manifested by section 51 that all persons are entitled to the full and equal privilege of associating with others in any business establishment. And section 52, liberally interpreted, makes clear that discrimination by such a business establishment against one’s right of association on account of the associates’ color, is violative of the Act. It follows, responding to the appeal’s only issue, that discrimination by a business establishment against persons on account of their association with others of the black race is actionable under the Act.
That this is the law of California is manifested by the holding of In re Cox (1970) 3 Cal.3d 205 [ 90 Cal.Rptr. 24 , 474 P.2d 992 ], There Cox entered a business establishment intending to make a purchase, and then proceeded to talk to a friend “who wore long hair and dressed in an unconventional manner.” Apparently because of the friend’s appearance, both men were asked to leave and, refusing to do so, they were arrested and charged with violating a municipal ordinance proscribing one’s remaining “upon private property and business premises after being notified by the person in charge thereof to remove therefrom.” Although there was no issue of “race, color, religion, ancestry, or national origin” (see §§ 51, 52), Cox appears to have been discriminated against because he associated with another of unusual dress and appearance, something not expressly covered by the Act.
Because of the factual uncertainty of the case, the In re Cox court withheld from Cox the desired relief. But it nevertheless discussed the related law at length, holding: “The nature of the 1959 amendments [to the Act], the past judicial interpretation of the act, and the history of legislative action that extended the statutes’ scope, indicate that identification of particular bases of discrimination—color, race, religion, an
It seems proper to point out that the discrimination of this case, as in In re Cox, was arbitrary, and based solely upon the subject’s association with others. We, of course, have not considered situations where the subject, or his associates, gave cause for eviction or other action by the business establishment or law enforcement authorities.
The judgment is reversed.
Molinari, P. J., and Sims, J., concurred.
Cases cited
- Orloff v. Los Angeles Turf Club, Inc. 30 Cal.2d 110 at 113 p. 128
- Crowell v. Isaacs 235 Cal.App.2d 755 at 757 p. 128
- Lambert v. Mandel's of California 319 P.2d 469 p. 128
- Clean Air Constituency v. California State Air Resources Board 11 Cal.3d 801 at 813-814 p. 128
- People v. Navarro 7 Cal.3d 248 at 273 p. 128
- Alford v. Pierno 27 Cal.App.3d 682 at 688 p. 128
- James v. Marinship Corp. 25 Cal.2d 721 at 740 p. 128
- Burks v. Poppy Construction Co. 57 Cal.2d 463 at 471 p. 128
- In re Cox 3 Cal.3d 205 p. 129