Filed 9/15/20 Johnson v. Walkenhorst’s CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GARRISON S. JOHNSON,

Plaintiff and Appellant,

v.

WALKENHORST’S INC.,

Defendant and Respondent.

B290884

(Los Angeles County

Super. Ct. No. MC026733)

Appeal from an order of dismissal from the Superior Court of Los Angeles County, Randolph Rogers, Judge. Affirmed.

Garrison S. Johnson, in pro. per., for Plaintiff and Appellant.

Thompson Coe & O’Meara, Stephen M. Caine; Law Offices of John A. Hauser and Donna G. Marks for Defendant and Respondent.

_________________________

While incarcerated at California State Prison in Lancaster, Garrison S. Johnson sued Walkenhorst’s Inc., alleging the company’s refusal to sell certain health food and other consumer products to male inmates housed in California correctional facilities although selling those same items to female inmates constituted unlawful gender discrimination in violation of the equal protection clauses of the federal and state Constitutions and the Unruh Civil Rights Act (Civ. Code, § 51). The trial court ultimately dismissed Johnson’s lawsuit after sustaining without leave to amend Walkenhorst’s demurrer to Johnson’s amended complaint. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Johnson’s Complaint

Walkenhorst’s, an authorized inmate package vendor for the California Department of Corrections and Rehabilitation (CDCR), provides consumer goods for purchase by individuals incarcerated in state correctional facilities. In an unverified complaint filed November 17, 2016, Johnson, representing himself, alleged Walkenhorst’s in its 2016 fall California catalog prohibited male prisoners from purchasing a variety of nutritional health food products, including Sunmaid Dried Apricots and GoPicnic Hummus and Crackers, and facial cleaning products, including Cetaphil Daily Facial Cleanser, that it allowed female inmates to buy. The complaint pleaded causes of action based on Walkenhorst’s intentional gender-based discrimination for violation of the equal protection clause of the Fourteenth Amendment; article I, section 7, subdivision (a), of the California Constitution (equal protection); and Civil Code section 51. Johnson requested damages in excess of $10,000 and injunctive relief “requiring Defendant to allow male California [prisoners] to purchase the same products California female prisoners are allowed to purchase.”

Walkenhorst’s answered the complaint on January 19, 2017, and discovery ensued.

2. The Motions for Leave To Amend

On May 5, 2017 Johnson moved for leave to file a first amended complaint. The court denied the motion without prejudice on August 10, 2017, citing Johnson’s failure to comply with procedural requirements. At the same hearing the court also denied Johnson’s motion for summary judgment and request for appointment of an expert.

Johnson again moved for leave to file a first amended complaint on October 30, 2017. Johnson did not include his motion in the record on appeal, but the court described it in its order denying the motion as seeking to add seven new parties and six new causes of action. As additional parties Johnson identified six employees and owners of Walkenhorst’s in their individual capacities and the CDCR as both a principal of Walkenhorst’s and its coconspirator. Johnson’s proposed new causes of action relied upon a number of provisions of the Civil Code in addition to section 51, including section 1781 relating to consumer class actions for unlawful or deceptive practices, and the Business and Professions Code.

Following a hearing on November 30, 2017 the court denied with prejudice Johnson’s motion for leave to file an amended complaint. The court explained it would inevitably cause delay and be unduly prejudicial to Walkenhorst’s and the proposed new defendants to add them and the new causes of action to the lawsuit when trial was then scheduled for February 16, 2018. The court added, “[T]o date, the litigation against a single defendant with limited motion practice has taken over one year. Adding the additional parties and causes of action requested by Plaintiff will undoubtedly trigger demurrers, motions to strike, and further discovery, along with probable summary judgment motions and oppositions to class certification.” The court also noted at least some of Johnson’s proposed new causes of action “appear to be unmeritorious on their face,” giving as an example his attempt to plead a violation of the Fourteenth Amendment against individuals and private entities.

3. The Motion for Judgment on the Pleadings and Johnson’s Amended Complaint

In late December 2017 Walkenhorst’s moved for judgment on the pleadings. Johnson conceded he did not state a cause of action for violation of the Fourteenth Amendment (his first cause of action) but otherwise opposed the motion. The court on January 25, 2018 granted the motion with leave to amend and vacated the February 16, 2018 trial date.

Johnson filed a first amended complaint for damages, declaratory and injunctive relief on February 13, 2018. Rather than generally describing a range of Walkenhorst’s-supplied food and personal hygiene products available to female inmates but not male inmates, Johnson now alleged on January 12, 2016 he ordered a quarterly package from Walkenhorst’s. Although he had attempted to purchase Kurtz BBQ Sauce as part of the quarterly package, Walkenhorst’s refused to sell that item to Johnson and to any other male inmate, while allowing female inmates to order and purchase it.

In addition to the two causes of action from the original complaint that had survived the motion for judgment on the pleadings—causes of action for violating the equal protection provisions of the California Constitution and the Unruh Civil Rights Act—Johnson’s first amended complaint included five new causes of action: (1) violation of Civil Code section 51.5 (discrimination by business establishment); (2) violation of Civil Code section 52, subdivisions (a) and (c) (authorizing a damage action for violations of Civil Code sections 51 and 51.5); (3) violations of Government Code section 12948 (violations of Civil Code sections 51 and 51.5 as unlawful employment practices); (4) violation of Business and Professions Code section 16721, subdivisions (a) and (b) (unlawful discrimination as basis for exclusion from a business transaction); and (5) intentional infliction of emotional distress.

4. Walkenhorst’s Demurrer and the Court’s Ruling

Walkenhorst’s demurred to the first amended complaint. Johnson filed an opposition and appeared telephonically at the hearing on the demurrer on April 30, 2018.

The court struck on its own motion the five new causes of action pleaded in the first amended complaint and sustained without leave to amend Walkenhorst’s demurrer to the original two causes of action. In a statement of decision the court explained the sole basis it had granted leave to amend the original complaint at the January 25, 2018 hearing was to permit Johnson to reallege his Unruh Civil Rights Act cause of action. Accordingly, pursuant to Code of Civil Procedure section 436, subdivision (b), the court struck the third, fourth, fifth, sixth and seventh causes of action as improperly filed.

As to the demurrer to the first two causes of action, applying the reasoning of Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, the court ruled no damage remedy existed for Walkenhorst’s alleged violation of article I, section 7, subdivision (a), of the California Constitution. In addition, the court explained, that provision provides no greater protection or right to a private action against nonpublic entities than exists under the Fourteenth Amendment. Johnson, the court noted, had already conceded he had no cause of action under the federal Constitution. Insofar as Johnson’s equal protection claim relied upon article I, section 31, subdivision (f), of the state Constitution, that provision specifically applied only to state action, with the term “state” defined as the state itself and any “political subdivision or governmental instrumentality of or within the state.” (Cal. Const., art I, § 31, subds. (a), (f).) Walkenhorst’s did not fall within that definition, the court stated, but rather is a private company doing business with the state and with inmates incarcerated by the state.

As to Johnson’s Unruh Civil Rights Act cause of action, the court explained Civil Code section 51, subdivision (c), states, “This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law.” Under California Code of Regulations, title 15, section 3190, and consistent with Penal Code section 2600, subdivision (a), which provides a state prison inmate may, while confined, be deprived of those rights “as is reasonably related to legitimate penological interests,” the CDCR determines what personal property a prisoner may possess. To the extent Johnson disputes that certain items should be permitted but are not, the court continued, his claim is properly directed to the CDCR. Accordingly, the court ruled, “Plaintiff lacks standing to state a cause of action under Civ. Code § 51, because his right to do so is limited by the penological interests of the State.”

Although the court sustained Walkenhorst’s demurrer without leave to amend on April 30, 2018, no dismissal of Johnson’s action was entered until November 20, 2019 following admonitions from this court that, absent a dismissal, there was no appealable order in the case.

5. Johnson’s Notices of Appeal and Our Order Permitting Supplemental Briefing

Johnson filed a notice of appeal on June 18, 2018 and indicated in his civil case information statement that he was appealing from the April 30, 2018 order sustaining Walkenhorst’s demurrer without leave to amend. For unexplained reasons, Johnson filed a second notice of appeal on October 23, 2018, again indicating in a civil case information statement he was seeking review of the April 30, 2018 order sustaining Walkenhorst’s demurrer. The two appeals received separate case numbers in this court.

In his opening brief filed July 29, 2019 in the first appeal, Johnson challenged only the trial court’s November 30, 2017 denial of his motion for leave to amend the complaint. Walkenhorst’s moved to dismiss the appeal, arguing the order denying leave to amend was nonappealable. (Walkenhorst’s also indicated Johnson’s second appeal was likely premature because no order of dismissal had yet been entered in the trial court.) Before this court ruled on Walkenhorst’s motion, the trial court dismissed Johnson’s lawsuit. We then consolidated the two appeals and granted the parties leave to file supplemental briefs, which addressed the merits of the order sustaining the demurrer, as well as denial of Johnson’s motion for leave to amend, both of which are now properly before us. (See Cal. Rules of Court, rule 8.104(d)(2).)

DISCUSSION

1. Standard of Review

a. Johnson’s motion for leave to amend

A trial court may allow amendment of a pleading in the furtherance of justice and upon any terms as may be just. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) Ordinarily, leave to amend a complaint should be liberally granted unless the opposing party would be prejudiced by the amendment. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; see M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1534 [“if a party seeking amendment has been dilatory and/or the delay has prejudiced or will prejudice the opposing party, the trial court in its discretion may deny leave to amend”]; P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) We review the trial court’s order denying a motion for leave to amend the complaint for abuse of discretion. (See Komorsky v. Farmers Ins. Exchange (2019) 33 Cal.App.5th 960, 971; IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 653.)

b. Walkenhorst’s demurrer

A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the superior court’s ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) However, we are not required to accept the truth of the legal conclusions pleaded in the complaint. (Mathews, at p. 768; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 848), but liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726; see Schifando, at p. 1081 [complaint must be read in context and given a reasonable interpretation].)

“‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 970.) However, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685; accord, Ivanoff v. Bank of America, N.A., supra, 9 Cal.App.5th at p. 726.)

2. Johnson Forfeited Any Challenge to the Order Denying Leave To Amend His Complaint

In his opening brief Johnson concedes the court did not err in denying him leave to add new parties to his lawsuit. He argues, however, the court abused its discretion in denying his request to add new causes of action and change the complaint to a class action because he “present[ed] a viable claim that met [his] burden of demonstrating that there was a reasonable probability Appellant could have cured the complaint’s defects through an amendment.”

Johnson forfeited this issue for two independent reasons. First, the record on appeal does not include his motion for leave to amend or the proposed first amended complaint, making it impossible for us to evaluate the trial court’s reasons for denying the motion. (See, e.g., Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [“[w]e reject defendants’ claim, therefore, because they failed to provide this court with a record adequate to evaluate this contention”]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [to overcome presumption on appeal that an appealed judgment or order is correct, appellant must provide adequate record demonstrating error]; Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 [duty of appellant to provide adequate record].)

Johnson’s suggestion we overlook this deficiency in the record by evaluating the court’s November 30, 2017 order in light of the first amended complaint he filed on February 13, 2018 is misplaced. While there is some overlap between the six proposed new causes of action described by the court in its November 2017 ruling and the five new causes of action added by Johnson without leave of court in February 2018, we could only speculate as to the bases advanced for the other new claims asserted under various sections of the Civil and Business and Professions Codes not included in the operative pleading. That is not our responsibility. (See Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 911 [“‘“We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived”’”].)

Second, the trial court denied Johnson’s motion because it would unduly delay trial of the case to the prejudice of Walkenhorst’s, which, as discussed, is a proper ground for denying a motion for leave to amend a complaint. Johnson fails to address this finding of prejudice in his opening brief and in his reply states only, “[I]f the trial court would ha[ve] grant[ed] leave to amend and reschedule[d] the trial for a later date, this would not have prejudice[d] the Defendant.” That bare assertion, presented only in a reply brief, fails to satisfy Johnson’s obligation to adequately support his claim of error. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 282 [“Appellants have not provided any record citations to support these claims, cited any legal authority or developed any legal argument to support their claims of error. They have forfeited this claim”]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“‘Appellate briefs must provide argument and legal authority for the positions taken. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”’”]; see also People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364 [“[i]f a party’s briefs do not provide legal argument and citation to authority on each point raised, ‘“the court may treat it as waived, and pass it without consideration”’”].)

3. The Trial Court Properly Sustained the Demurrer to Johnson’s First Amended Complaint

a. Johnson’s constitutional claims

As the trial court explained, no private cause of action exists under the California Constitutions to recover damages for violations of an individual’s right to equal protection. (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 391; Javor v. Taggart (2002) 98 Cal.App.4th 795, 807; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 518-519; see Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 315 [no private cause of action for damages for violation of the due process provisions of the California Constitution].) Apparently recognizing this well-established legal principle, Johnson’s cause of action for violation of the equal protection provisions of the state Constitution—article I, section 7, subdivision (a), and section 31, subdivision (a) —in his first amended complaint, unlike the similar cause of action in the original complaint, seeks only injunctive relief for Walkenhorst’s alleged discriminatory sales practices.

Johnson’s request for injunctive relief under article I, section 31 of the California Constitution lacks any merit. That provision, added to the Constitution by Proposition 209 in 1996, bars governmental discrimination based on race, sex, color, ethnicity or national origin in “public employment, public education, or public contracting,” none of which is at issue in this case. (See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 561-562 [“in approving Proposition 209, the voters intended section 31 . . . ‘to achieve equality of [public employment, education, and contracting] opportunities’ [citation] and to remove ‘barriers [that] operate invidiously to discriminate on the basis of racial or other impermissible classification’”].)

Johnson’s claim for injunctive relief under article I, section 7, subdivision (a), of the state Constitution is grounded on his allegations that, in selling consumer products to inmates as an authorized package vendor operating under CDCR regulations, Walkenhorst’s “performs a government function under the color of law,” and acts as an agent for CDCR, working jointly or in a conspiracy with state officials, thereby satisfying that provision’s state action requirement. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1023 [article I, section 7 contains a state action limitation even though the language of the provision does not expressly state that limitation]; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 468 [same]; see generally Mulkey v. Reitman (1966) 64 Cal.2d 529, 536-537, affd. sub nom. Reitman v. Mulkey (1967) 387 U.S. 369 [“‘[c]onduct that is formally “private” may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action’”].)

Selling consumer goods to prison inmates, however, is not a traditionally and exclusively governmental activity, and thus is not a “public function” as defined by caselaw evaluating the state action requirement under federal or state civil rights laws. (See Jackson v. Metropolitan Edison Co. (1974) 419 U.S. 345, 352 [state action will be found “in the exercise by a private entity of powers traditionally exclusively reserved to the State”]; Kirtley v. Rainey (9th Cir. 2003) 326 F.3d 1088, 1093 [“[t]he public function test is satisfied only on a showing that the function at issue is ‘both traditionally and exclusively governmental’”]; Parks School of Business v. Symington (9th Cir. 1995) 51 F.3d 1480, 1486 [“for the performance of a public function to result in state action, the function must traditionally be the exclusive prerogative of the state”].) Nor does the fact that Walkenhorst’s has contracted with the State to provide a service to inmates or that its sales activities in prisons are extensively regulated by the CDCR transform this private corporation into a state actor. (See Rendell-Baker v. Kohn (1982) 457 U.S. 830, 841-842 [“[a]cts of . . . private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts”; that “a private entity performs a function which serves the public does not make its acts state action”]; Cooper v. United States Postal Service (2d Cir. 2009) 577 F.3d 479, 492 [“[t]he government enters into contracts for all kinds of goods and services without converting its contractors into state actors; architects designing federal buildings or engineers building bridges do not thereby become government actors”]; see also Jackson, at p. 350 [“The mere fact that a business is subject to state regulation does not by itself convert it into the action of the State for purposes of the Fourteenth Amendment. [Citation.] Nor does the fact that the regulation is extensive and detailed”], fn. omitted.) In sum, ignoring his conclusory legal allegations, as we must (e.g., Mathews v. Becerra, supra, 8 Cal.5th at p. 768), Johnson’s description of Walkenhorst’s relationship to the CDCR falls far short of alleging sufficient facts to support his claim Walkenhorst’s business activity is state action subject to the limitations of article I, section 7, subdivision (a).

Providing Johnson leave to amend to attempt to remedy this deficiency in his color-of-law allegations would be futile. An equally fatal, and under the circumstances irremediable, flaw in the first cause of action is Johnson’s inability to obtain the injunctive relief he seeks without including the CDCR as a party: As long as the CDCR’s regulations are in place, Walkenhorst’s is prohibited from selling Kurtz BBQ Sauce to Johnson and any other male inmate. An injunction barring Walkenhorst’s from differentiating among the products it makes available for sale to male inmates and those it sells to female inmates would simply mean no prisoner of either gender could receive the barbecue sauce.

In sustaining Walkenhorst’s demurrer the trial court identified this problem, although it specifically addressed it in the context of Johnson’s Unruh Civil Rights Act claim and mischaracterized it as an issue of Johnson’s standing to sue Walkenhorst’s: “[O]nly the Department of Corrections has the ability to make determinations as to what items are listed as permissible, and what items are prohibited pursuant to the legitimate penological interests of the Department.”

Notwithstanding the trial court’s mislabeling of the defect, the court correctly recognized Johnson’s failure to include the CDCR as a defendant required dismissal of this cause of action. “Indispensable parties have been identified as those who are essential for ‘a complete determination of the controversy.’” (Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 568; see Code Civ. Proc., § 389, subd. (a) [“[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties”].) Central to the determination whether an action should proceed notwithstanding the absence of such a necessary party is the assessment “whether a judgment rendered in the person’s absence will be adequate.” (Code Civ. Proc., § 389, subd. (b)(3).) Plainly here, no adequate judgment can be rendered on Johnson’s claim for affirmative injunctive relief based on a violation of article I, section 7, subdivision (a), in the absence of the CDCR. (See Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1298 [newspaper’s action against a city, based on a public records request, for the production of emails written by a city council member at home on her personal computer dismissed because council member was an indispensable party; “because she is not a party to these proceedings, she would not be bound by the order, making such an order of no effect as to her”].)

b. Johnson’s Unruh Civil Rights Act claim

The Unruh Civil Rights Act provides, “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b).) Section 52, subdivision (a), in turn, establishes a damage remedy for victims of discrimination in violation of section 51, authorizing an award of “actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000).”

Notwithstanding the breadth of section 51, subdivision (b), however, the protections of the Unruh Civil Rights Act available to Johnson and other prison inmates are limited by section 51, subdivision (c), which states, “This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law.” Under this provision a business establishment following the law cannot be found liable for violating the Unruh Civil Rights Act even though its actions would otherwise constitute unlawful discrimination prohibited by the Act. (E.g., Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1504 [rental car company does not violate Unruh Civil Rights Act by imposing minimum age requirement authorized by different statute]; see Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 176 [private homeowners complying with local ordinance requiring responsible persons contracting for short-term vacation rentals to be at least 30 years old would not violate Unruh Civil Rights Act].)

As the trial court explained, Penal Code section 2600, subdivision (a), permits restriction of the rights of individuals sentenced to state prison “as is reasonably related to legitimate penological interests.” Pursuant to this statute and its rulemaking authority, the CDCR has established procedures to approve private vendors to sell merchandise to inmates, ensuring minimum security requirements and general business intent. The CDCR regulations and policies also specify what personal property items an inmate may possess and create “privilege groups” within the general prison population that further expand or limit the rights of inmates. (See Cal. Code Regs., tit. 15, §§ 3044, 3190 et seq.; CDCR Operations Manual, ch. 5, art. 43, § 54030.1 et seq.) The CDCR’s published authorized personal property schedules, incorporated by reference into its Operations Manual, also differentiate between personal property items that may be possessed by (and, therefore, sold to) male and female inmates. Civil Code section 51, subdivision (c), protects Walkenhorst’s activities that comply with those policies, including its refusal to sell Kurtz BBQ Sauce to Johnson, from liability under the Unruh Civil Rights Act.

Quoting language from Gayer v. Polk Gulch (1991) 231 Cal.App.3d 515, 522 (Gayer), Johnson argues section 51, subdivision (c), does not protect Walkenhorst’s because that provision only exempts exclusionary policies that “apply equally to all persons, whether or not they are a member of one of the classes enumerated in the statute.” Johnson’s reliance on that language from the Gayer opinion is misplaced.

At issue in Gayer, supra, 231 Cal.App.3d 515 was whether the plaintiff had stated a cause of action for violating the Unruh Civil Rights Act by alleging he had been excluded from a bar in retaliation for having previously sued the business. The court concluded the Act did not encompass discrimination based on retaliation (Gayer, at p. 519), noting, in part, that the bar’s policy “is one which would apply ‘alike to persons of every sex, color, race, religion,’ etc.” (Id. at p. 522.) But the Gayer court was applying only the second part of section 51, subdivision (c), which provides the Act does not prohibit a business’s restrictions or limitations on rights or privileges that apply equally to all classes otherwise protected by the Act. (See fn. 12, above.) As the Supreme Court held in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, the authority on which Gayer based its analysis, the first portion of section 51, subdivision (c), also means the Act does not create rights when “other legislation specifically limited or disclaimed those rights.” (Harris, at p. 1155.)

That is precisely the situation here: Penal Code section 2600 and its implementing regulations and policies specifically limit the rights of inmates to receive personal property from authorized vendors such as Walkenhorst’s. The trial court properly sustained the demurrer to Johnson’s Unruh Civil Rights Act claim.

DISPOSITION

The order of dismissal is affirmed. The parties are to bear their own costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J.

DILLON, J.*