Frantz v. Blackwell

Opinion

AGLIANO, P. J.

—Phillip J. Frantz appeals from a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend. We affirm.

Frantz sued Jack R. Blackwell, Jack R. Blackwell, Inc., and Blackwell Homes, Inc., in a first amended complaint alleging discrimination violative of the Unruh Civil Rights Act, Civil Code section 51 et seq., and of the common law doctrine concerning enterprises affected with a public calling (a third cause of action was merely a prayer seeking to enjoin the discrimination which was alleged in the first two causes of action). The operative allegation of discrimination had its genesis in a prior encounter between these litigants.

Frantz is a licensed real estate broker or agent. Blackwell develops and sells single family homes to the public. On August 1,1979, Frantz contracted to purchase from Blackwell lot 282 of Pierce Ranch subdivision No. 3, located in San Jose. After a disagreement, Blackwell rescinded the contract on September 20,1979. Frantz, however, sued for specific performance. The suit was dismissed on September 22, 1980, after a settlement was reached whereby Blackwell paid Frantz $35,000.

In May 1984, Frantz tried to contract to purchase from Blackwell lot 448 of Pierce Ranch, but Blackwell refused to deal with Frantz.

Frantz then filed the instant action on November 28, 1984, wherein he alleges that Blackwell’s refusal to sell was discriminatory in that it was solely because of “the fact that plaintiff had sued Blackwell in a prior lawsuit and had obtained a financially successful out of court settlement [ánd that] ... [K] plaintiff was a member of and represented a class or group with whom Blackwell did not want to conduct business—that is, persons who had filed lawsuits against Blackwell____” It was to this allegation that Blackwell generally demurred.

[94]

Frantz’s original complaint in this action incorporated by reference and attached as exhibit A Frantz’s prior complaint against Blackwell for specific performance. This complaint incorporated by reference an exhibit C, Blackwell’s notice of rescission of contract. This notice of rescission indicated Blackwell’s reasons for rescinding the contract for lot 282. Apparently, as part of the contract, Frantz signed an owner-occupancy agreement indicating he was purchasing the lot as an owner-occupant. Frantz previously closed escrow on lot 159 of Pierce Ranch. When Blackwell discovered this, it concluded Frantz was purchasing as an investor-speculator rather than an owner-occupant. Frantz’s first amended complaint in this action incorporated by reference and attached as exhibit B a letter from Blackwell to Frantz dated October 16, 1984. This letter explained the reasons Blackwell refused to deal with Frantz. Blackwell claimed Frantz purchases units in new developments, delays escrow closing, and attempts to resell the units before his escrow closes, using the time delay and Blackwell’s promotional efforts on the balance of subdivision units to create a profit. If he cannot resell, Blackwell claimed, Frantz can merely default on the Frantz-Blackwell contract. Blackwell maintained that Frantz’s prior suit was without merit and that it was settled as a nuisance because of business circumstances and that Blackwell told Frantz at the time of settlement that it would have no further business dealings with Frantz. These are evidentiary facts found in recitals of exhibits attached to a complaint or superseded complaint which can be considered on demurrer. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, §§ 387, 411, 412, pp. 436, 458-459; 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 896, p. 337.)