Winchell v. English

[127]

Opinion

ELKINGTON, J.

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,

*

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.