Page 3
C.A. Affirms Rejection of Discrimination Claim Against Boxing Board Over Referee Choices
Opinion Says Entity Is Not a ‘Business’ as Required by Civil Rights Act, Finds No Error in Denying Leave to Amend to Assert Claim Under Similar Statute, Drawing Dissent
By a MetNews Staff Writer
Div. Five of this district’s Court of Appeal has held, in a 2-1 decision, that summary judgment was properly granted to the California State Athletic Commission, which regulates boxing in an action alleging that the board selected white referees for championship matches instead of the plaintiffs—Black and Latino Hall of Fame judges—on the basis of race, finding that the agency is not a “business.” as required by the governing civil rights statute.
The unpublished opinion was filed Thursday.
At issue is the applicability of the Unruh Civil Rights Act, codified at Civil Code §51, which provides:
“All persons within the jurisdiction of this state are free and equal, and no matter…their…race, color,…national origin…are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
In 2018, plaintiffs Gilbert Wayne Hedgpeth, Raul Caiz Jr., and Raul Caiz Sr. filed suit against the commission and Executive Officer Andrew Foster, asserting in the operative complaint a single cause of action under §51. The pleading asserts that the plaintiffs were replaced or taken out of consideration for high-profile fights based on a preference for white referees.
Hedgpeth is Black and the Caizes are Latino.
Complaint Allegations
They allege in the complaint:
“Instead of assigning fights pursuant to the [Commission’s] merit-based policy….Commission Executive Director, Defendant ANDREW FOSTER undertook an insidious pattern and practice of racial discrimination in assigning fights.”
They lay out six examples in which they claim that “Caucasian Officials who were lower rated and with less experience than Plaintiffs nevertheless were given lucrative…bouts,” including:
“[I]n November 2013, a world championship boxing match was held at the Citizens Business Bank Arena in Ontario, California. The fight was for the [World Boxing Association (“WBA”)] Super Middleweight Title between Andre Ward and Edwin Rodriguez. The WBA requested that…Mr. Caiz, Sr. referee the bout. Because of the great publicity (televised nationally on HBO) that the bout generated, Mr. Foster, over protestation, assigned it to a Caucasian referee, solely based on race.”
Los Angeles Superior Court Judge Kristin Escalante denied a defense motion for summary judgment in March 2022, finding that, among other things, that the defendants did not provide sufficient legal authority to establish that the boxing matches were not “business establishments” under the act. Jury trial was scheduled for Aug. 15, 2022.
Business Establishment
Before the trial date arrived, the California Supreme Court decided the Brennon B. v. Superior Court case on Aug. 4, 2022. In that case, the high court found that a public school district is not subject to the provisions of the act because it is not acting as “business establishment.”
Following the decision, the defendants filed a second motion for summary judgment, which Escalante granted. The plaintiffs’ request for leave to file a third amended complaint to “substitute” Government Code §11135—which prohibits racial discrimination by “any state agency”—as the basis of their claim was denied as untimely and unreasonably delayed.
Judgment was entered in favor of the defendants on April 25, 2023.
In the opinion, filed Thursday and authored by Justice Carl H. Moor, Div. Five affirmed the judgment. Presiding Justice Brian M. Hoffstadt joined in the opinion and Justice Lamar Baker dissented.
Brennen B. Decision
Moor noted that the Unruh Civil Rights Act does not define the term “business establishment” and the Supreme Court, in the Brennen B. decision, cautioned that the usual meaning of the phrase is not always dispositive as courts should consider factors such as what functions the entity performs and whether it operates as the functional equivalent of a commercial enterprise.
Applying this analysis, Moor pointed out that “[t]he commission is a state regulatory entity whose express purpose is to protect the public in serving its licensing, and disciplinary functions.”
He acknowledged that the commission relies on fees from television networks and event promoters—rather than support from the state—but emphasized that “there is no dispute that the commission does not transact business with the public or engage in any advertising.”
The fact that the commission employs several workers and operates from a building in Sacramento does not change the analysis, Moor said, explaining that “[a]lthough having a staff and a physical office are ‘businesslike attributes,’ such features alone are not sufficient to bring an entity within the Act’s ambit.”
The jurist reasoned:
“We do not go so far as to say the commission could never, under any circumstances, qualify as a business establishment…but to qualify…the ‘entity must operate as a…commercial enterprise when it discriminates.’ ”
He continued:
“Plaintiffs offer little argument as to how defendants are operating as a business establishment when selecting a referee for a match, saying only that the referees are already licensed and can only be paid if selected. We are unpersuaded by these points. Rather, appointment of referees appears to fall squarely within defendants’ paramount role of protecting the public as part of its licensing, regulatory, and disciplinary functions.”
Leave to Amend
The plaintiffs contend that Escalante abused her discretion in denying them leave to amend. Moor explained that “trial courts…possess ‘wide discretion’ in deciding whether to grant a plaintiff leave to amend” and remarked:
“Plaintiffs do not dispute that they knew Government Code section 11135 was a potential basis for their discrimination claim when they filed this action in 2018….Rather than including both legal theories in their original…and…amended complaints, however, plaintiffs kept the cause of action in their proverbial back pocket….”
He added:
“It was only after they lost summary judgment on their Unruh case that they sought to substitute in a claim under Government Code section 11135. Plaintiffs have proffered no explanation for their delay beyond what we might infer on our own—namely, that the Unruh Act provides more favorable relief (treble damages and attorney fees versus the solely ‘equitable relief’ available with a Government Code section 11135 claim)….Plaintiffs’ tactical decision…does not excuse them from the consequences of their substantial delay; permitting the amendment would result in prolonged piecemeal litigation prejudicial to defendants.”
Baker’s View
Baker said in his dissent:
“Many aspects of professional boxing matches in this state are controlled by a single man: Andrew Foster….The plaintiffs in this case, hall of fame Latino and Black boxing referees and judges available to work professional bouts, allege Foster discriminates on the basis of race when wielding his nearly unfettered discretion to choose referees and judges. The majority, however, is uninterested.”
The justice argued:
“By refusing to give this state’s civil rights act a broad interpretation, the opinion for the court affirms the trial court’s conclusion that plaintiffs should have no opportunity to prove at trial that they have been sidelined in the boxing business because of their race. And by refusing to permit plaintiffs to amend their complaint to bring a cause of action that even the Attorney General concedes is the appropriate means to test their claim that boxing in California has been rigged against minority referees and judges, the majority declares that finding the truth must take a backseat to the workloads of the state’s lawyers that would otherwise have to defend Foster’s referee-assigning practices.”
‘Real Irony’
He added:
“There is an expression that I imagine is common in the boxing world: put up or shut up. Foster and the Commission prevented plaintiffs from doing the former by filing a summary judgment motion that got plaintiffs’ lawsuit thrown out on (erroneous) legal grounds rather than on the factual merits….[I]f referee and judge-assigning practices in this state continue as they have in the past,…we can expect another lawsuit like this in the future….Indeed, that is the real irony of today’s decision. The majority says plaintiffs should not be permitted to amend their complaint merely because that would draw out the proceedings…but the upshot of today’s opinion may well be to prolong this dispute far beyond when it would have been resolved had the majority allowed.”
The case is Hedgpeth v. California State Athletic Commission, B331090.
Representing the plaintiffs on appeal were John E. Sweeney of the Beverly Hills-based The Sweeney Firm, as well as Anne M. Huarte, of the Woodland Hills firm of Huarte Appeals, and Harold G. Becks, of the Los Angeles-area Harold G Becks & Associates. Deputy Attorneys General Shirley Sullinger and Norman Donald Morrison acted on behalf of the defendants.
Copyright 2025, Metropolitan News Company