S.C. to Rule on Suit Alleging Price Discrimination Against Men

Thursday, October 20, 2005

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S.C. to Rule on Suit Alleging Price Discrimination Against Men

Justices Agree to Decide Whether Demand for Equal Treatment Is Prerequisite to Litigation

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court yesterday agreed to decide whether a patron who claims that a business charged a discriminatory price or fee based on gender is barred from suing if the patron did not demand equal treatment at the time.

The justices, at their weekly conference in San Francisco, unanimously granted review of the June 28 ruling of Div. Five of this district’s Court of Appeal in Angelucci v. Century Supper Club, B173281. The Court of Appeal panel held that a demand for, and refusal of, equal treatment is a prerequisite for a suit charging price discrimination under the Unruh Civil Rights Act.

The appeal involves consolidated suits by Marc Angelucci and three other males against the Century Supper Club. Angelucci, a Glendale attorney, is president of the Coalition of Free Men, a group that fights what it alleges to be unfair treatment of men in the law, the media, and society generally.

The group has unsuccessfully challenged a number of allegedly discriminatory state laws, including those that provide for specific medical services for women or specifically address women’s health issues, establish domestic violence task forces with state funding, create an office for women veterans’ affairs within the state Department of Veteran Affairs, and provide special assistance for women who are engaged in, or can be trained to engage in, nontraditional occupations through the unemployment insurance system.

Higher Charge Claimed

In the Century Supper Club suits, the men claimed that on numerous occasions in June and July 2002, they went to the club—now the Century Club—and were charged $20 admission, even though women attending on those nights were admitted for $15 or free.

Retired Los Angeles Superior Court Judge Joseph R. Kalin, who sits on assignment, granted judgment on the pleadings in favor of the defendant. Kalin based his decision on language in Koire v. Metro Car Wash (1985) 40 Cal.3d 24.

Koire involved a man who sued under the Unruh Act, challenging “Ladies’ Day” discounts offered by certain establishments. The Supreme Court held that gender-based pricing violates the Unruh Civil Rights Act, but that “[a]t a minimum, men who wish to be charged the same price as women on ‘Ladies’ Day’ must affirmatively assert their right to equal treatment.”

Tax Repeal Act

The Legislature subsequently enacted the Gender Tax Repeal Act, which expressly prohibits the sale of goods and services with different prices for men and women. Analyses accompanying the bill explained that the legislation was necessary because no other published case had applied the Unruh Act to gender-based pricing, and Koire had done so only “in the narrow context of special discounts” on specific days.

The Court of Appeal affirmed the trial court, rejecting the plaintiffs’ contention that the “at a minimum” language was not part of the holding in Koire.

It would have been an “oddity,” Justice Orville Armstrong wrote, for the Legislature to include a request requirement under the repeal act if it intended to allow Unruh Act suits without any such request, especially since the two statutes provide the same remedies, including minimum damages and attorney fees.

Lambda Legal Defense and Education Fund, the ACLU, and Consumer Attorneys of California urged the high court to review the case or depublish the Court of Appeal opinion.

In other actions taken at the conference, the justices:

•Agreed, by a 4-1 vote, to decide whether the mailing of a file-stamped copy of a minute order incorporating a statement of decision triggered the 60-day period in which to bring a civil appeal. This district’s Div. Three said that it did, rejecting the appellant’s contention that the document was neither a “’Notice of Entry’ of judgment” nor “a file-stamped copy of the judgment” and thus did not trigger the 60-day period under Rule 2(a) of the Rules of Court.

Justice Marvin Baxter was the lone member of the court to vote against taking the case and Justice Joyce L. Kennard was absent. The case is Alan v. American Honda Motor Co., B165756.

•Denied a request by the California State Association of Counties to depublish the July 13 opinion by Justice Earl Johnson Jr. for this district’s Div. Seven in Lincoln Place Tenants Association v. City of Los Angeles (Los Angeles Lincoln Place Investors Ltd.), B172979.

The court held that the city had illegally granted demolition permits to developers seeking to tear down the 40 or so surviving buildings of a half-century-old apartment complex in Venice Beach.

The buildings could not be demolished, the court ruled, until mitigation measures set forth in an earlier environmental impact report, including the photographing of the structures and an attempt to sell them and move them intact to another location, had been undertaken.