Flowers v. John Burnham & Co.

Opinion

BROWN (Gerald), P. J.

Plaintiffs John L. Flowers and his wife Heidi M. Flowers, appeal an order dismissing their first five causes of action after a general demurrer was sustained without leave to amend. The plaintiffs voluntarily dismissed the balance of their complaint, They contend they state causes of action for violation of the Unruh Act (Civ. Code, §§51, 52), denial of equal protection of the laws, deprivation of Fifth and Fourteenth Amendment rights, deprivation of California Constitution,

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article I, section 13 rights and deprivation of other rights, including the exercise of parental and marital rights conferred by California laws.

The Flowers, with their four children, two girls ages 1 and 3, and two boys, ages 8 and 10, moved into Westwood Village, a 100-unit apartment complex owned and operated by defendant John Burnham & Co., in San Diego County. Defendant Stanley Broski is alleged to have “aided and incited” Burnham’s actions.

On January 31, 1970, some time after they moved into the complex, the Flowers and Burnham executed an apartment rental agreement for a month-to-month tenancy, which provided it was “subject to 30 day written notice.” On February 12, 1970, the Flowers received a 30-day notice to quit which gave no reason for terminating the tenancy. “Rather than be subject to unlawful detainer proceedings [they] quit the premises within 30 days as demanded.”

The Flowers believe they were given notice only because they had male children over five, and Burnham’s actions in evicting the family for this reason violated their civil rights and their right to' “have and raise their male children in a home of their own choice.”

They contend Civil Code section 51: “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.

“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,” limits Civil Code section 1946 relating to the hiring of real property which provides in part: “. . . as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice ... at any time. . . .”