Case Name: ROBERT PEPITONE v. FIVE BRANCHES UNIVERISTY, LLC

Case No.: 1-13-CV-239718

Plaintiffs Robert Pepitone and Megan Clarke (“Plaintiffs”) move for summary adjudication of the 1^st (violation of Civ. Code §51) and 2^nd (violation of Civ. Code §51.5) causes of action in the Third Amended Complaint (“TAC”).

The request for judicial notice by DefendantsFiveBranchesUniversity, LLC and The Five Branches Institute College of Traditional Chinese Medicine (“Defendants”) is DENIED.  “Preliminarily we note that resort to legislative history is appropriate only where statutory language is ambiguous.  . . .  If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.”  Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal App 4^th 26, 29.  Civ. Code §51 is not ambiguous.  The fact that the Unruh Act’s coverage is not limited to the enumerated characteristics and the analysis for determining if a claim based on an unlisted characteristic may be covered by the Act are both well settled in California law.  Such statutory interpretation is a question of law for the Court.  Furthermore the material submitted, veto messages from two governors, does not establish legislative intent in the manner Defendants suggest.

The pleadings limit the issues presented for summary judgment/adjudication.  See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4^th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”)  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4^th 826, 850.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  CCP §437c(f)(1).  See McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4^th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.”  Johnson v. American Standard, Inc. (2008) 43 Cal 4^th 56, 64, parentheses added.  While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized.  Saelzler v. Advanced Group 400 (2001) 25 Cal 4^th 763, 768.

Where a plaintiff (or cross-complainant) seeks summary judgment or adjudication, the burden is to produce admissible evidence on each element of a ‘cause of action’ entitling him or her to judgment.  CCP §437c(p)(1); See Hunter v. Pacific Mechanical Corp. (1995) 37 Cal App 4^th 1282, 1287, disapproved on other grounds in Aguilar.  “This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not.  ‘Otherwise, he would not be entitled to judgment as a matter of law.’”  Aguilar, supra at 851; LLP Mortgage v. Bizar (2005) 126 Cal App 4^th 773, 776 (burden is on plaintiff to persuade court there is no triable issue of material fact).

“In 1991, the Harris court reexamined the court’s prior decisions and concluded that the Act had been applied too broadly.  There, in a challenge to a landlord’s rental policy, the court held that the landlord could refuse to rent to applicants who did not have a gross monthly income of at least three times the monthly rent.  In so holding, Harris rejected the contention that financial or economic status was a protected characteristic under the Act.  Nevertheless, the court reaffirmed the principle that the Act may protect personal characteristics not expressly enumerated therein.  It adopted a three-part analysis to determine the Act’s application in future cases.  First, a claim must be based on a personal characteristic similar to those listed in the statute.  . . .  When Harris was decided, the Act expressly prohibited discrimination not only on race, color, religion, ancestry, and national origin—the five characteristics enumerated in the original Act—but also sex, added by amendment in 1974, and ‘blindness or other physical disability,’ added in 1987.  The Harris court rejected the rule that ‘any classification that might be judicially viewed as ‘arbitrary’ or ‘unreasonable’ or ‘stereotyped’ is therefore subject to judicial scrutiny by virtue of the Act.’  Second, a court must consider whether the alleged discrimination was justified by a legitimate business reason.  . . .  Third, the consequences of allowing the claim to proceed must be taken into account.”  Semler v. General Electric Capital Corp. (2011) 196 Cal App 4^th 1380, 1392-1393, internal citations omitted, emphasis added.

“[T]he classifications specified in section 51.5, which are identical to those of section 51, are likewise not exclusive and encompass other personal characteristics identified in earlier cases.”  Roth v. Rhodes (1994) 25 Cal App 4^th 530, 538, internal citations omitted, emphasis added.  “[T]he analysis under Civil Code section 51.5 is the same as the analysis we have already set forth for purposes of the [Unruh Civil Rights] Act.”  Semler, supra, at 1404.

In a 2005 decision, Koebke v. Bernardo Heights Country Club (2005) 36 Cal 4^th 824, the Supreme Court expanded on “personal characteristics.”   “We did not define the phrase ‘personal characteristic’ in Harris, but we indicated that, at minimum, it encompassed both the categories enumerated in the Act and those categories added to the Act by judicial construction.  Thus the list would include ‘sex, race, color, religion, ancestry, national origin, disability, or medical condition,’ and unconventional dress or appearance, family status and sexual orientation but not ‘financial status or capability.’  What those categories have in common is not immutability, since some are, while others are not, but that they represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.”  Id. at 842-843, internal citations omitted.

Plaintiffs’ motion for summary adjudication of their 1st and 2nd causes of action for violation of Civ. Code §51 and §51.5 is DENIED for failure to meet their initial burden to establish that there are no triable issues of material facts and that the evidence submitted would require a reasonable finder of fact to find any underlying material fact more likely than not.  Applying the Harris test as articulated in the Semler decision and informed by the Koebke decision’s guidance on what constitutes a “personal characteristic” to these claims, Plaintiffs have not established that fluency in a second language is equivalent to ancestry or national origin or that the ability to speak a second language is a “personal characteristic” equivalent to ancestry, national origin, or any other characteristic listed in Civ. Code §51 or §51.5. Apart from this they have also not established a lack of triable issues as to whether the supposed “discrimination” may be justified by a legitimate business reason or whether it would be desirable for the courts to insert themselves into the education system, the second and third prongs of the Harris test.