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Doe v. California Lutheran High School Association

January 26, 2009


APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed in part and dismissed in part. (Super. Ct. No. RIC441819).

The opinion of the court was delivered by: Richli, J.



Defendant California Lutheran High School Association (the School) owns and operates a private religious high school. It expelled plaintiffs Jane Doe and Mary Roe on the ground that they had a homosexual relationship, in violation of the School's "Christian Conduct" rule. Plaintiffs then sued the School and its principal, the Reverend Gregory R. Bork, alleging, among other things, that the School had discriminated against them based on sexual orientation, in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (Unruh Act or section 51).

The trial court entered summary judgment in favor of defendants, ruling, in part, that the School was not a "business enterprise" and therefore not subject to the Unruh Act. Plaintiffs appeal. In the published portion of our decision, we will affirm this ruling. In the unpublished portion of our decision, we find no other error.*fn2 Hence, we will affirm the judgment.


A. Preliminary Statement

Because this is an appeal from a summary judgment, we draw the following facts from the moving and opposition papers in connection with defendants' motion for summary judgment. We accept all facts listed in defendants' separate statement that plaintiffs did not dispute. We also accept all facts listed in defendants' separate statement that plaintiffs did dispute, to the extent that (1) there is evidence to support them (Code Civ. Proc., § 437c, subd. (b)(1)), and (2) there is no evidence to support the dispute (Code Civ. Proc., § 437c, subd. (b)(3)). Finally, we accept all facts listed in plaintiffs' separate statement, to the extent that there is evidence to support them. (Ibid.) We disregard any evidence not called to the trial court's attention in the separate statement of one side or the other, except as necessary to provide nondispositive background, color, or continuity. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 314-316.)

Each side filed objections to some of the other side's proffered evidence. The trial court overruled all such objections. In this appeal, none of the parties has argued that this was error. We therefore deem any such contention forfeited. Accordingly, we may take into account any and all of the proffered evidence. (Code Civ. Proc., § 437c, subd. (c); see Lopez v. Bala (2002) 98 Cal.App.4th 1008, 1014-1015.)

B. Facts Shown by the Evidence

The School is a nonprofit corporation. It owns and operates the California Lutheran High School, a private religious school in Wildomar. The School is affiliated with the Evangelical Lutheran Synod (ELS) and the Wisconsin Evangelical Lutheran Synod (WELS).

The School is accredited by the Western Association of Schools and Colleges, a secular accreditation authority. It offers a college preparatory curriculum designed to meet University of California entrance requirements. It offers classes in English, Spanish, Latin, history, government, economics, science, mathematics, business and technology, music, and physical education, along with classes in religion. Some of these classes are mandated by the state Education Code. It boasts that its graduates work "in the fields of business, computers, construction, education, engineering, health and medicine, law, law enforcement, military, ministry, and music."

The School requires students to pay tuition fees; for the 2005-2006 school year, it charged WELS-affiliated students $4,590 and other students $6,500. Failure to pay tuition may result in suspension.

The School allows members of the public to buy tickets to its football games and other sporting events. At football games, it sells food, beverages, T-shirts, and "spirit items." It sells advertising space in its yearbook to Lutherans and non-Lutherans alike. It holds fund-raising auctions and golf tournaments that are open to the public. It has also rented portions of its campus, such as the gymnasium or the football field, to outside organizations for their events.

Lutherans*fn3 believe that homosexuality is a sin. The School has a policy of refusing admission to homosexual students. Its "Christian Conduct" rule provided that a student could be expelled for engaging in immoral or scandalous conduct, whether on or off campus. This would include homosexual conduct.

The School's enrollment application, which was supposed to be signed by both the student and a parent, provided: "In attaching their signatures to this application, both student and parent . . . acknowledge their understanding that admission to California Lutheran High School places the student under the policies and regulations of the school . . . and obliges both student and parent . . . to accept and to cooperate with those policies and regulations."*fn4

In early September 2005, a student at the School reported to a teacher that one unnamed female student had said that she loved another unnamed female student. The reporting student added that, if the teacher looked at these female students' MySpace pages, he would be able to find out who they were and how they felt about each other.

The teacher then reviewed the MySpace pages of all female students on the class roster, including plaintiffs' MySpace pages. Mary Roe went by the screen name, "Scandalous love!" Jane Doe went by the screen name, "Truely [sic] in ♥ with You." On their MySpace pages, plaintiffs referred to being in love with each other. In addition, Mary Roe's MySpace page listed her sexual orientation as "bi."*fn5 Jane Doe's listed hers as "not sure."

As a result, on September 7, 2005, Pastor Bork, the principal of the School, called a meeting of the School's Disciplinary Committee. The committee agreed that Pastor Bork should talk to plaintiffs immediately and ask them if the report was true; if it was, they should be suspended.

That same day, Pastor Bork had plaintiffs taken out of class and brought to separate rooms in the school office. He then questioned each of them, asking them whether they were bisexual, whether they had kissed each other, and whether they had done anything "inappropriate." At one point, according to Mary Roe, "he got very close and he said, 'Have you ever touched [Jane Doe] in . . . any inappropriate ways?' And he looked me up and down when he asked that."

According to Pastor Bork, both girls admitted that they loved each other, that they had hugged and kissed each other, and that they had told other students that they were lesbians.*fn6 He therefore suspended them and had their parents come pick them up.

Throughout this time, plaintiffs were not free to leave. However, while they were waiting for their parents to pick them up, they were allowed to go to the restroom and to their lockers.

On September 12, 2005, Pastor Bork sent plaintiffs' parents letters stating that plaintiffs had been suspended because they had "a bond of intimacy . . . characteristic of a lesbian relationship," in violation of the "Christian Conduct" rule. On October 15, 2005, by a unanimous vote of the School's board of directors, the School expelled plaintiffs for engaging in a homosexual relationship.

Lutherans also believe that women should not be placed in a position of authority over men. Accordingly, only men serve on the School's board of directors, which is responsible for expulsions. Plaintiffs allege that, as a result, female students have been disciplined more harshly than male students. Their evidence showed that some male students had been involved in incidents of drug or alcohol possession or use that had resulted in, at most, temporary suspensions.


Plaintiffs' operative complaint asserted three causes of action solely against the School: Sexual orientation discrimination in violation of the Unruh Act; gender discrimination in violation of the Unruh Act; and unfair business practices (Bus. & Prof. Code, § 17200). In addition, it asserted three causes of action against both the School and Pastor Bork: public disclosure of private facts; violation of the California constitutional right to privacy; and false imprisonment.

Both sides filed cross-motions for summary adjudication. Plaintiffs sought summary adjudication on their first cause of action, for sexual orientation discrimination. Defendants sought summary judgment on all causes of action. The trial court granted defendants' motion, while denying plaintiffs' motion as moot. It ruled, in part, that the School was not a business within the meaning of the Unruh Act. Accordingly, it entered judgment in favor of defendants.


Plaintiffs challenge the propriety of the summary judgment with respect to each of their causes of action. Accordingly, we begin by discussing the applicable standard of review, which we will then apply to plaintiffs' causes of action in succession.

A. Standard of Review

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) "[I]n moving for summary judgment, a 'defendant . . . has met' his 'burden . . . if' he 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .' [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) "We review the trial court's decision de novo . . . . [Citations.]" (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.)

B. Causes of Action for Violation of the Unruh Act

First, plaintiffs challenge the summary judgment with respect to their causes of action under the Unruh Act. They contend that the trial court erred by ruling that the School was not a "business enterprise" subject to the act.

Preliminarily, plaintiffs argue that the trial court's ruling conflicts with previous rulings in the case. Early on, defendants demurred on multiple grounds, including that the School was not a business enterprise under the Unruh Act; the trial court overruled the demurrer on this ground. Moreover, when defendants sought writ review of that ruling, this court summarily denied their petition. However, because the demurrer concerned the pleadings, whereas the motion for summary judgment concerned the evidence, the two rulings were not inconsistent. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 591, fn. 4.) Moreover, even assuming they were, the statutory limitations on reconsideration (Code Civ. Proc., § 1008) did not apply; hence, the trial court had plenary authority to change its mind. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096, 1100.) Finally, our order denying a writ did not establish the law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 891.) Accordingly, we turn to the merits.

Following the lead of our Supreme Court in similar cases, "[w]e emphasize at the outset that our resolution of the legal issue before us does not turn upon our personal views as to the wisdom or morality of the exclusionary . . . policy challenged in this case. Instead, our task involves a question of statutory interpretation." (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 598.)

"The general policy embodied in [Civil Code] section 51 can be traced to the early common law doctrine that required a few, particularly vital, public enterprises - such as privately owned toll bridges, ferryboats, and inns - to serve all members of the public without arbitrary discrimination. [Citation.] After the United States Supreme Court, in the Civil Rights Cases (1883) 109 U.S. 3 [27 L.Ed. 835, 3 S.Ct. 18], invalidated the first federal public accommodation statute, California joined a number of other states in enacting its own initial public accommodation statute, the statutory predecessor of the current version of section 51. [Citation.] . . . [T]he 1897 statute, by its terms, specifically granted the right to 'full and equal accommodations, advantages, facilities and privileges' in a number of specifically designated enterprises, as well as in 'all other places of public accommodation or amusement.'

"In 1959, in apparent response to a number of appellate court decisions that had concluded the then-existing public accommodation statute did not apply to the refusal of a private cemetery, a dentist's office, and a private school to make their facilities available to African-American patrons [citations], the Legislature undertook, through enactment of the Unruh Civil Rights Act, to revise and expand the scope of the then-existing version of section 51. . . . As ultimately enacted in 1959, the relevant paragraph of section 51 provided: 'All citizens 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.' [Citation.] In subsequent years, this paragraph of section 51 was amended to add 'sex' and 'disability' to the specified categories of prohibited discrimination [citations], but the paragraph otherwise has not been altered." (Warfield v. Peninsula Golf & Country Club, supra, 10 Cal.4th at pp. 607-609.)

"An organization is not excluded from the scope of Civil Code section 51 simply because it is nonprofit. [Citation.]" (Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 786.) Thus, cases have held that "business establishments" included (1) a nonprofit religious corporation that sold advertisements in a "Christian Yellow Pages" (Pines v. Tomson (1984) 160 Cal.App.3d 370, 383-386); (2) a homeowners' association that "perform[ed] all the customary business functions" of a landlord (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795-796); (3) a club that offered its members substantial "commercial advantages and business benefits" (Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1056; see id. at pp. 1055-1058); and (4) a club that operated a recreation center open to all local male children (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 78-84).

Two cases decided by the California Supreme Court afford particularly apt illustrations of what is - and what is not - a business establishment within the meaning of the Unruh Act. First, in Warfield v. Peninsula Golf & Country Club, supra, 10 Cal.4th 594, the court held that a member-owned nonprofit golf and country club was a business establishment. It conceded "that, at least as a general matter, the statute does not apply to truly private social clubs." (Id. at p. 617.) It concluded, however, that "the business transactions that are conducted regularly on the club's premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of [the Act]." (Id. at p. 621.)

The court explained: "[A]lthough the record indicates that defendant's financial support comes primarily from dues and fees paid by its members, the club derives a significant amount of revenue, as well as indirect financial benefit, from the use of its facilities, and the purchase of goods and services on its premises, by persons who are not members of the club. Because such 'business transactions' with nonmembers are conducted on a regular and repeated basis and constitute an integral part of the club's operations - supplementing the members' own financial contributions and reducing the dues and fees that members otherwise would be required to pay in order to maintain the club's facilities and operations - we conclude that the club falls within the very broad category of 'business establishments' governed by the nondiscrimination mandate of section 51." (Warfield v. Peninsula Golf & Country Club, supra, 10 Cal.4th at p. 599.)

By contrast, in Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, the court held that, "with regard to its membership decisions, [the Boy Scouts of America] is not a business establishment within the meaning of the Unruh Civil Rights Act." (Id. at p. 696; see also id. at p. 696, fn. 15.) It acknowledged that "the term 'business establishments' must properly be interpreted 'in the broadest sense reasonably possible' [citation] . . . ." (Id. at p. 696.) "Nonetheless, . . . no prior decision has interpreted the 'business establishments' language of the Act so expansively as to include the membership decisions of a charitable, expressive, and social organization, like the Boy Scouts, whose formation and activities are unrelated to the promotion or advancement of the economic or business interests of its members. [Citation.]" (Id. at p. 697.)

The court went on to explain: "[I]n light of the legislative history demonstrating that the Unruh Civil Rights Act was intended to extend the reach of California's prior public accommodation statute, the very broad 'business establishments' language of the Act reasonably must be interpreted to apply to the membership policies of an entity - even a charitable organization that lacks a significant business-related purpose - if the entity's attributes and activities demonstrate that it is the functional equivalent of a classic 'place of public accommodation or amusement.' [Citation.]

". . . [H]owever, we do not believe that the circumstance that the Boy Scouts is generally nonselective in its admission policies, and affords membership to a large segment of the public, is itself sufficient to demonstrate that the organization reasonably can be characterized as the functional equivalent of a traditional place of public accommodation or amusement. The record establishes that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members, and whose recreational facilities and activities are complementary to the organization's primary purpose. . . . [M]embership in the Boy Scouts is not simply a ticket of admission to a recreational facility that is open to a large segment of the public and has all the attributes of a place of public amusement. Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust and loyalty, and scouts are ...

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