Smith v. BP Lubricants USA Inc. ( 2021 )

Filed 5/12/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ROBERT SMITH,
Plaintiff and Appellant, E073174
v. (Super. Ct. No. CIVDS1820485)
BP LUBRICANTS USA INC. et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed in part, reversed in part.
Lyon Law and Geoffrey C. Lyon, for Plaintiff and Appellant.
Wilson Turner Kosmo, Lois M. Kosch and Martina M. Nagle, for Defendants and
Respondents.
1
I.
INTRODUCTION
Robert Smith’s employer, Najjar Lube Centers, Inc. dba Jiffy Lube, held a
presentation for its employees to learn about a new Castrol product. Castrol employee
Gus Pumarol led the presentation. Smith alleges that Pumarol made several comments to
Smith during the presentation that he considered racist and offensive. Smith sued BP
Lubricants USA, Inc. dba Castrol (BP) and Pumarol for harassment under the Fair
Employment and Housing Act (Gov. Code §§ 12940 et seq. (FEHA)) and for
discrimination under the Unruh Act (Civ. Code, § 51, subd. (b)). Smith also sued
Pumarol for intentional infliction of emotional distress (IIED). The trial court sustained
BP and Pumarol’s demurrer without leave to amend, and Smith timely appealed.
We reverse the judgment. We affirm the trial court’s order sustaining BP and
Pumarol’s demurrer to Smith’s FEHA claim without leave to amend. We conclude,
however, that Smith sufficiently alleged claims for IIED and violation of the Unruh Act.
We therefore reverse the trial court’s orders sustaining BP and Pumarol’s demurrer to
those claims without leave to amend.
2
II.
1
FACTUAL AND PROCEDURAL BACKGROUND
Smith, who is African American, worked for Jiffy Lube for almost two decades.
During that time, he was passed over for promotions and criticized because of his race.
Smith alleges Jiffy Lube harassed and discriminated against him because he is African
American.
In September 2017, Jiffy Lube “held a company presentation to discuss and teach
employees about a new product from Castrol.” About 50 Jiffy Lube employees attended
the presentation, which Pumarol led. Before the presentation, Smith introduced himself
to Pumarol, and Pumarol encouraged him and his colleagues to ask questions.
Smith asked a question during the presentation, and Pumarol responded, “‘Huh.
Speak up. I can’t hear you.’” Smith spoke again, and Pumarol said, “‘You sound like
Barry White.’” All non-African Americans in attendance laughed, including three of
Smith’s superiors, Jiffy Lube owner Elias Najjar, Human Resources Director Martha
Villalobos, and Head of Operations and Jiffy Lube co-owner Cruz Martinez. Smith was
offended by Pumarol’s comment, which he thought had a racial connotation.
1
The following facts, which we assume are true, are drawn from Smith’s
Complaint and First Amended Complaint (FAC). (Stevens v. Superior Court (1999) 75
Cal.App.4th 594, 601.)
3
Later during his presentation, Pumarol said, “‘I don’t like taking my car to Jiffy
Lube because I’ve had a bad experience with a mechanic putting his hands all over my
car. How would you like Barry White over there with his big banana hands working on
your car?’” All non-African Americans in attendance, including Najjar, Villalobos, and
Martinez, laughed again. Smith was offended by Pumarol’s “racially motivated
comment” because he thought Pumarol referenced a banana because Smith is African
American.
Even so, Smith asked Pumarol another question. Pumarol responded, “‘What, I
can’t see your eyes, what?’” Again, all non-African Americans in attendance, including
Najjar, Villalobos, and Martinez, laughed at Pumarol’s comment. And again, Smith was
offended by Pumarol’s comment, which he believed suggested that he could not see
Smith’s “eyes because [he] is African American with a dark complexion.”
The next day, a Jiffy Lube employee crossed out Smith’s name on the schedule
and replaced it with “‘Banana Hands.’” Smith complained to Martinez about Pumarol’s
comments. Martinez replied that Pumarol “‘didn’t mean it like that.’”
Smith then complained to Najjar, who also said Pumarol “‘didn’t mean it’” and
noted that Pumarol “‘said something similar at a previous meeting.’” Najjar continued:
“‘Let’s push this under the carpet and I’m going to take care of it. This is not going to
hurt Castrol, this is going to hurt me and [Martinez]. And you didn’t want to hurt me, I
took care of you. And you don’t want to hurt [Martinez].’” Smith told Najjar that he felt
discriminated against at Pumarol’s presentation. Najjar replied, “‘I’ve been discriminated
4
before and you just have to let it go.’” Smith responded, “‘I’m tired. I’m done. I want to
drive off the freeway.’” In the ensuing weeks, Smith suffered significant physical and
mental health problems because of his “work-related issues,” which required medical
attention.
Smith later sued, alleging various claims against several defendants. In his
Complaint, he alleged BP and Pumarol violated FEHA’s prohibition on racial harassment
in the workplace by “aiding and abetting” Jiffy Lube’s harassment and discrimination
against him. He also sued Pumarol for IIED, and sued both Pumarol and BP for racial
2
discrimination under the Unruh Act (Civ. Code, § 51).
BP and Pumarol demurred to Smith’s Complaint. The trial court sustained the
demurrer without leave to amend as to Smith’s Unruh Act claim, but granted Smith leave
to amend his other claims. Smith realleged his FEHA and IIED claims in his operative
FAC, and BP again demurred. The trial court sustained the demurrer without leave to
amend and entered judgment for BP and Pumarol. Smith timely appealed.
2
Smith also sued Jiffy Lube and two of his supervisors. His claims against those
defendants are not relevant to the issues on appeal.
5
III.
DISCUSSION
Smith contends the trial court erroneously sustained BP’s demurrers without leave
to amend. We disagree as to his FEHA claim, but agree as to his IIED and Unruh Act
claims.
A. Applicable Law and Standard of Review
“‘A trial court’s order sustaining a demurrer without leave to amend is reviewable
for abuse of discretion “even though no request to amend [the] pleading was made.”
[Citation.] While it is the plaintiff’s burden to show “that the trial court abused its
discretion” and “show in what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading” [citation], a plaintiff can make
“such a showing . . . for the first time to the reviewing court” [citation].’” (Mercury Ins.
Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Thus, “[t]o meet this burden, a
plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts
and demonstrate how those facts establish a cause of action. [Citations.] Absent such a
showing, the appellate court cannot assess whether or not the trial court abused its
discretion by denying leave to amend.” (Cantu v. Resolution Trust Corp. (1994) 4
Cal.App.4th 857, 890.)
We “liberally construe[]” a complaint’s allegations. (CLD Construction, Inc. v.
City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) “‘On appeal from a judgment
dismissing an action after sustaining a demurrer without leave to amend, the standard of
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review is well settled. The reviewing court gives the complaint a reasonable
interpretation, and treats the demurrer as admitting all material facts properly pleaded.
[Citations.] The court does not, however, assume the truth of contentions, deductions or
conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several
grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a
trial court to sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer
without leave to amend if the plaintiff shows there is a reasonable possibility any defect
identified by the defendant can be cured by amendment. [Citation.]’ [Citation.]”
(McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206.)
“If the court sustained the demurrer without leave to amend, as here, we must
decide whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. [Citation.] If we find that an amendment could cure the defect, we conclude
that the trial court abused its discretion and we reverse; if not, no abuse of discretion has
occurred. [Citation.] The plaintiff has the burden of proving that an amendment would
cure the defect. [Citation.]” (Shifando v. City of Los Angeles (2003) 31 Cal.4th 1074,
1081.)
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B. FEHA Claim
Smith argues the trial court improperly sustained BP and Pumarol’s demurrer to
his FEHA claim without leave to amend because he sufficiently pled facts showing that
BP and Pumarol aided and abetted Jiffy Lube’s harassment and discrimination against
him. We disagree.
We first reject BP and Pumarol’s argument that they cannot be liable under FEHA
because they were never Smith’s employer. FEHA prohibits “any person” from aiding or
abetting workplace discrimination. (Gov. Code, § 12940, subd. (i).) For that reason,
individuals and entities who are not the plaintiff’s employer may be liable under FEHA
for aiding and abetting the plaintiff’s employer’s violation of FEHA. (See Alch v.
Superior Court (2004) 122 Cal.App.4th 339, 389-390 (Alch) [holding talent agencies that
did not employ the plaintiffs could be liable for aiding and abetting their employers’
alleged “systemic discrimination” in violation of FEHA].)
“FEHA does not provide a definition of ‘aiding and abetting,’” (Fiol v. Doellstedt
(1996) 50 Cal.App.4th 1318, 1325), but it has been interpreted as “closely allied” with
conspiracy. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 78.) “The
common basis for liability for both conspiracy and aiding and abetting . . . is concerted
wrongful action.” (Ibid.) Aiding and abetting thus “involves two separate persons, one
helping the other.” (Id. at p. 77.) It is “unlawful, for example, for third parties such as
customers or suppliers to induce or coerce prohibited discrimination or harassment.”
(Ibid.)
8
Thus, BP and Pumarol are liable under FEHA for aiding and abetting Jiffy Lube’s
alleged harassment and discrimination against Smith only if (1) Jiffy Lube subjected
Smith to discrimination and harassment, (2) BP and Pumarol knew that Jiffy Lube’s
conduct violated FEHA, and (3) BP and Pumarol gave Jiffy Lube “substantial assistance
or encouragement” to violate FEHA. (Alch, supra, 122 Cal.App.4th at p. 389 [“A talent
agency would be liable for aiding and abetting an employer’s violation of FEHA if the
agency knew the employer’s conduct violated FEHA and gave ‘substantial assistance or
encouragement to the [employer] to so act.’”].)
Smith’s allegations fail to satisfy the second and third element. Nowhere in the
FAC does Smith allege that BP and Pumarol knew of Jiffy Lube’s alleged harassment
and discrimination against Smith. (See Alch, supra, 122 Cal.App.4th at p. 390 [plaintiffs
stated aiding and abetting FEHA claim in part because their “complaints clearly allege
the agencies knew the employers were engaged in systemic discrimination”].) Nor does
Smith allege that Pumarol knew Jiffy Lube’s conduct violated FEHA or that he gave Jiffy
Lube substantial assistance or encouragement to Jiffy Lube’s alleged violations of FEHA.
(See ibid. [plaintiffs stated aiding and abetting FEHA claim in part because they alleged
talent agencies knowingly gave substantial assistance to employers’ FEHA violations].)
Simply put, Smith’s FAC has no facts suggesting concerted activity between Jiffy
Lube, BP, and Pumarol to commit FEHA violations, which is the crux of an aiding
abetting claim under FEHA. (See Janken v. GM Hughes Electronics, supra, 46
Cal.App.4th at p. 78; Alch, supra, 122 Cal.App.4th at p. 390.) Smith therefore failed to
9
allege sufficient facts that would support a finding that BP or Pumarol could be liable for
aiding and abetting Jiffy Lube’s FEHA violations. Smith makes no attempt to explain
how he could amend the FAC to cure its deficiencies. We therefore conclude the trial
court properly sustained BP and Pumarol’s demurrer to Smith’s FEHA claim without
leave to amend. (See Shifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081
[plaintiff bears burden on appeal of showing how complaint can be amended to state a
valid claim].)
C. IIED Claim
To state an IIED claim, the plaintiff must allege facts showing: “‘“(1) extreme
and outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct.”’” (Christensen v. Superior
Court (1991) 54 Cal.3d 868, 903.) The parties dispute only whether Pumarol’s
comments amount to “extreme and outrageous conduct.”
“‘Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.’” (Christensen v. Superior Court, supra, 54
Cal.3d at p. 903.) “[M]ere insulting language, without more, ordinarily would not
constitute extreme outrage” unless it is combined with “aggravated circumstances.”
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499 (Alcorn).) But “[b]ehavior
may be considered outrageous if a defendant (1) abuses a relation or position which gives
10
him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to
injuries through mental distress; or (3) acts intentionally or unreasonably with the
recognition that the acts are likely to result in illness through mental distress.” (Agarwal
v. Johnson (1979) 25 Cal.3d 932, 946 (Agarwal), disapproved on other grounds by White
v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574 fn. 4.)
Citing Agarwal, supra, 25 Cal.3d 932 at page 941, Smith argues whether conduct
qualifies as extreme and outrageous is always a question for the jury. Agarwal does not
stand for that proposition, and several courts have held that alleged conduct is not
extreme and outrageous as a matter of law. (E.g., Marsh v. Anesthesia Services Medical
Group, Inc. (2011) 200 Cal.App.4th 480, 487 [upholding sustaining of demurrer because
plaintiff could not allege facts showing outrageous conduct]; Lawler v. Montblanc North
America, LLC (9th Cir. 2013) 704 F.3d 1235, 1245 [affirming summary judgment on
IIED claim because conduct was not outrageous as a matter of law].) That said, whether
conduct is outrageous is “‘usually’ a question of fact.” (Barker v. Fox & Associates
(2015) 240 Cal.App.4th 333, 356.)
Our Supreme Court holds that an IIED claim can stem from the use of racial
epithets if coupled with aggravating circumstances. For instance, in Alcorn, supra, 2
Cal.3d at pages 497 to 498, the plaintiff’s foreman shouted at the plaintiff, “‘You goddam
“ni—ers” are not going to tell me about the rules. I don’t want any “ni—ers” working for
me. I am getting rid of all the “ni—ers.”’” The plaintiff was later fired. (Id. at pp. 497-
498.)
11
Our Supreme Court held the plaintiff “alleged facts and circumstances which
reasonably could lead the trier of fact to conclude that defendants’ conduct was extreme
and outrageous.” (Alcorn, supra, 2 Cal.3d at p. 498.) The court explained that
“[a]lthough it may be that mere insulting language, without more, ordinarily would not
constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem
sufficient to uphold his complaint as against [a] general demurrer.” (Id. at p. 499, fn.
omitted.) The court reasoned that “‘[w]here reasonable men may differ, it is for the jury,
subject to the control of the court, to determine whether, in the particular case, the
conduct has been sufficiently extreme and outrageous to result in liability.’ [Citations.]”
(Ibid.)
In Agarwal, our Supreme Court upheld a jury’s verdict for IIED based on similar
allegations. (Agarwal, supra, 25 Cal.3d at p. 938.) An assistant manager told the
plaintiff, “‘[y]ou black ni—er, member of an inferior race, get out and do it,’” and
“‘[y]ou son-of-a-bitch, I am going to terminate you.’” (Id. at pp. 938, 941-942.) The
assistant manager later induced the plaintiff’s employer to fire him by making false
statements about him. (Id. at pp. 938, 941-942.) Our Supreme Court held that the jury
reasonably found that the manager’s conduct was extreme and outrageous. (Id. at p.
947.)
Under Alcorn and Agarwal, a rational juror could find Pumarol’s conduct was
extreme and outrageous. Smith alleges that Pumarol made three offensive comments to
him in front of about 50 of his colleagues, including three of his supervisors. According
12
to Smith, after Pumarol made the first comment, everyone except for African American
employees laughed, yet Pumarol made two more comments that Pumarol found
offensive. Pumarol allegedly said that he would not want Smith’s “‘Banana Hands’” on
his car and that he could not see Smith, which Smith construed as an unwelcome, racist
comment about his dark complexion.
On these facts, a reasonable jury could find that Pumarol “act[ed] intentionally or
unreasonably with the recognition that [his] acts [were] likely to result in illness through
mental distress.” (Agarwal, supra, 25 Cal.3d at p. 496.) The jury could thus reasonably
find that Pumarol’s conduct was extreme and outrageous. Because Pumarol does not
dispute that Smith sufficiently alleged the remaining elements of an IIED claim, we
conclude Smith stated a valid claim for IIED against Pumarol. The trial court erred in
finding otherwise.
D. Unruh Act
The Unruh Act “prohibits intentional discrimination in access to public
accommodations.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 786-787 (Brown).) The
Unruh Act only applies to “business establishments” that are “generally open to the
public” (In re Cox (1970) 3 Cal.3d 205, 216), and mandates that those establishments
“serve all persons without arbitrary discrimination.” (Angelucci v. Century Supper Club
(2007) 41 Cal.4th 160, 167.) The Unruh Act therefore does not cover “discriminations
other than those made by a ‘business establishment’ in the course of furnishing goods,
services or facilities to its clients, patrons or customers.” (Alcorn, supra, 2 Cal.3d at p.
13
500.) Put another way, the Unruh Act is “confined to discriminations against recipients
of the ‘business establishment’s . . . goods, services or facilities.’” (Isbiter v. Boys’ Club
of Santa Cruz, Inc. (1985) 40 Cal.3d 73, 83 fn. 12.) Unruh Act claims are thus
“appropriate where the plaintiff was in a relationship with the offending organization
similar to that of the customer in the customer-proprietor relationship.” (Strother v.
Southern California Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 874.)
BP and Pumarol contend the Unruh Act does not apply here because Pumarol
made his alleged comments in a private business meeting not open to the public that only
Jiffy Lube employees attended for training purposes. BP and Pumarol also argue that
because Smith’s Unruh Act claim depends solely on Pumarol’s comments, it asserts a
claim for racial harassment, not racial discrimination. In support, they rely mainly on
Brown, supra, 55 Cal.App.4th 767, which held that sexual harassment is not actionable
under the Unruh Act. BP and Pumarol argue that, by extension, racial harassment is
likewise not actionable under the Unruh Act.
Brown is distinguishable. In that case, a tenant alleged that her landlord “made
repeated comments to her of an offensive, sexual nature.” (Brown, supra, 55 Cal.App.4th
at pp. 775.) She sued him under the Unruh Act, arguing that he violated her “right to be
free of housing discrimination based on sex and to be free of sexual harassment in a
business establishment.” (Ibid.)
14
The Brown court held that the tenant’s claim was not cognizable under the Unruh
Act for two reasons. First, Brown relied on our Supreme Court’s direction that courts
generally should not expand the Unruh Act’s reach beyond the enumerated categories of
discrimination it expressly prohibits. (See Harris v. Capital Growth Investors XIV (1991)
52 Cal.3d 1142, superseded by statute on other grounds as stated in Munson v. Del Taco,
Inc. (2009) 46 Cal.4th 661, 668.) The Brown court therefore declined “to expand the
protected categories listed in the [Unruh] Act to include victims of sexual harassment.”
(Brown, supra, 55 Cal.App.4th at p. 787.) Second, Brown concluded that the Legislature
enacted Civil Code section 51.9, which prohibits landlords from sexually harassing their
tenants, “to plug th[e] hole” in the Unruh Act. (Ibid.)
We do not find Brown persuasive or controlling here. Civil Code section 51.9,
enacted decades after the Unruh Act, expressly provides a cause of action for a tenant
whose landlord sexually harasses him or her. From this, we can presume that the
Legislature did not intend for the Unruh Act to cover tenants who are victims of their
landlords’ sexual harassment. (See Arbuckle–College City Fire Protection Dist. v.
County of Colusa (2003) 105 Cal.App.4th 1155, 1166 [“Generally, it can be presumed
that when the Legislature has enacted a specific statute to deal with a particular matter, it
would intend the specific statute to control over more general provisions of law that
might otherwise apply.”].) But there is no specific statute enacted after the Unruh Act
that covers Smith’s Unruh Act claim in the way Civil Code section 51.9 covered the
15
Brown plaintiff’s Unruh Act claim. Nothing in later enacted legislation can be construed
to “plug[] [a] hole” in the Unruh Act. (Brown, supra, 55 Cal.App.4th at p. 787.)
Brown also rests on a flawed premise that sexual harassment is not a form of sex
discrimination, which the Unruh Act prohibits. “[S]exual harassment . . . is merely one
3
form of sex discrimination.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 90.) Moreover, the
Unruh Act “can be violated in a number of ways by words alone.” (Long v. Valentino
(1989) 216 Cal.App.3d 1287, 1297.) It can also be violated by a business establishment’s
unequal treatment of its patrons on impermissible grounds. (Pizarro v. Lamb’s Players
Theatre (2006) 135 Cal.App.4th 1171, 1174.) It follows that the Unruh Act can be
violated by verbal sexual harassment alone if it amounts to a business establishment
treating its patrons unequally. We thus disagree with Brown that verbal sexual
harassment can never provide grounds for an Unruh Act claim.
As a result, we reject BP and Pumarol’s argument that Smith cannot state a valid
claim under the Unruh Act because it is based only on Pumarol’s alleged verbal
harassment. We also disagree with BP and Pumarol that it is material whether Smith’s
Unruh Act claim is labeled “racial harassment” or “racial discrimination.” Just as sexual
harassment is a form of sex discrimination, racial harassment is a form of race
discrimination. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129
3
We acknowledge that sexual harassment and sex discrimination are legally
distinct concepts in other circumstances not present here. (See Pantoja v. Anton (2011)
198 Cal.App.4th 87, 115 [“Sex discrimination . . . and sexual harassment are ‘distinct
causes of action’ under the FEHA. [Citations.]”].)
16
[“One form of employment discrimination is harassment on the basis of race”].)
Whatever Smith’s claim is labeled, the question is whether Pumarol’s alleged comments
violated the Unruh Act.
Smith alleges that Pumarol made three racist comments to him, which made every
non-African American employee at the presentation laugh each time. In other words,
Smith alleges that Pumarol treated him differently—and unequally—because of his race.
Smith therefore alleged a valid Unruh Act claim so long as Pumarol’s making the
comments, if proven true, would amount to intentional discrimination “made by a
‘business establishment’ in the course of furnishing goods, services or facilities to its
clients, patrons or customers.” (Alcorn, supra, 2 Cal.3d at p. 500; Warfield v. Peninsula
Golf & Country Club (1995) 10 Cal.4th 594, 618 [Unruh Act “established the right of all
persons to nondiscriminatory treatment by establishments that engage in business
transactions with the public.”].)
We conclude that it would. We must interpret the Unruh Act’s “coverage ‘in the
broadest sense reasonably possible.’” (Isbiter v. Boys’ Club of Santa Cruz, supra, 40
Cal.3d at p. 76.) This principle applies to our analysis of whether Pumarol acted as a
“business establishment” when giving his presentation. (See O’Connor v. Village Green
Owners Assn. (1983) 33 Cal.3d 790, 795 [Unruh Act “‘leaves no doubt that the term
“business establishment” was used in the broadest sense reasonably possible.’”].)
17
BP and Pumarol do not dispute that Castrol, Pumarol’s employer, is a business
establishment. But they argue that Pumarol was not acting as a “business establishment”
when he made his alleged comments because his presentation was not open to the public.
We disagree.
Whether a defendant is a “business establishment” is an issue of law that we may
decide. (Rotary Club of Duarte v. Bd. of Directors (1986) 178 Cal.App.3d 1035, 1050.)
“The term ‘business’ ‘“embraces everything about which one can be employed, and it is
often synonymous with ‘calling, occupation, or trade, engaged in for the purpose of
making a livelihood or gain.’”’ [Citation.] The word ‘establishment’ is also broadly
defined to include not only fixed locations, but also a permanent commercial force or
organization. [Citation.]” (Harris v. Mothers Against Drunk Driving (1995) 40
4
Cal.App.4th 16, 21.)
According to the Smith’s complaints, Pumarol gave his presentation to Jiffy Lube
employees as a representative of Castrol. The purpose of his presentation was to train
Jiffy Lube employees on a Castrol product. About 50 Jiffy Lube employees attended the
presentation, including three of Smith’s supervisors, one of which was the Jiffy Lube’s
owner. Pumarol encouraged Jiffy Lube employees, including Smith, to ask questions
4 To support his argument that Pumarol acted as a business establishment, Smith
relies heavily on decades-old federal district court cases holding that public schools are
business establishments under the Unruh Act. While this appeal was pending, our
colleagues in the First District, Division One, held as a matter of first impression for the
California appellate courts that public schools are not business establishments under the
Unruh Act. (Brennon B. v. Superior Court of Contra Costa County (2020) 57
Cal.App.5th 367, at *1, rev. granted Feb. 25, 2021, S266254.) Our Supreme Court
granted review. (Ibid.)
18
during his presentation. Liberally construing Smith’s allegations, we can reasonably
infer that Pumarol’s presentation was intended to ensure Jiffy Lube’s employees knew
how to properly use Castrol’s product, thereby promoting it. In this context, Jiffy Lube’s
employees, including Smith, were effectively Castrol’s “clients, patrons or customers.”
(Alcorn, supra, 2 Cal.3d at p. 500; Strother v. Southern California Permanent Medical
Group, supra, 79 F.3d at p. 873 [an individual may bring Unruh Act claims against
business establishment so long as the individual is a “recipient [] of the ‘business
establishment’s . . . goods, services or facilities’”].)
Although the Unruh Act “does not apply to truly private social clubs,” (Warfield v.
Peninsula Golf & Country Club, supra, 10 Cal.4th at p. 617), it does apply to business
establishments that are “generally open to the public.” (In re Cox, supra, 3 Cal.3d at p.
216.) The parties agree that Castrol, Pumarol’s employer, is a business establishment.
And because Pumarol was acting on Castrol’s behalf during his presentation, which was
intended to educate Jiffy Lube’s employees about a Castrol product, he acted as a
“business establishment” while giving his presentation. (See Harris v. Mothers Against
Drunk Driving, supra, 40 Cal.App.4th at p. 21 [“business establishment” under Unruh
Act includes “permanent commercial forces”].)
That Pumarol’s presentation was not open to the public does not change our
conclusion. Again, Castrol is “generally open to the public,” and Pumarol was acting as
its representative during his presentation about a Castrol product. BP and Pumarol do not
cite, and we cannot locate, any authority that suggests the Unruh Act stops at the doors of
19
a business establishment generally open to the public simply because its doors are closed
to some, but not all of its “clients, patrons or customers,” when the alleged discrimination
occurs. If that were the case, then business establishments could discriminate against
their customers without offending the Unruh Act so long as the discrimination occurred
at an event or location open to only a select group of its customers.
Interpreting the Unruh Act in such a way would conflict with its “broad remedial
purpose and overarching goal of deterring discriminatory practices by businesses.”
(White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.) The Unruh Act protects all
recipients of a business establishment’s services wherever provided. (See Alch, supra,
122 Cal.App.4th at p. 391 [Unruh Act “on its face” forbids business establishments from
discriminating in the provision of its services].) That Smith was “not denied anything” is
not dispositive, as BP and Pumarol contend, because the Unruh Act mandates “equal
treatment of patrons in all aspects of the business.” (Koire v. Metro Car Wash (1985) 40
Cal.3d 24, 29-30, italics added.) The Unruh Act does not require that a victim of
business establishment’s discriminatory, unequal treatment be denied services or demand
equal treatment to state a claim under the Act. (See Angelucci v. Century Supper Club,
supra, 41 Cal.4th at p. 168.)
For instance, in Hutson v. The Owl Drug Co. (1926) 79 Cal.App. 390, the African
American plaintiff was allowed to sit at a soda fountain, but the employee “placed [her
order] amongst dirty dishes on the counter,” and another employee then struck the
plaintiff and threw a cup of coffee on her. (Id. at p. 392.) The plaintiff suffered physical
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injuries from the assault, as well as “great humiliation and embarrassment.” (Ibid.) The
Hutson court held that the defendant violated the Unruh Act because the plaintiff “was
not accorded the same accommodations, advantages, facilities and privileges” on account
of her race, even though she was not denied any services. (Ibid.) It was the unequal,
discriminatory treatment she received that was actionable under the Unruh Act. (Ibid.)
Similarly, in People v. McKale (1979) 25 Cal.3d 626 at page 637, the People
alleged “‘a pattern of discriminative conduct’” by defendant against some of its tenants
because of their ethnic or religious background, “varying from instances of abusive
language . . . to discriminative sales and leasing policies.” Our Supreme Court held that
the defendant’s alleged conduct was “clearly unlawful” under the Unruh Act. (Ibid.)
Hutson v. The Owl Drug Co., supra, 79 Cal.App. 390 and People v. McKale,
supra, 25 Cal.3d 626, which our Supreme Court cited approvingly in Koire v. Metro Car
Wash, supra, 40 Cal.3d at page 29, show that a business establishment’s unequal, race-
based treatment of its customers is unlawful under the Unruh Act—even if its customers
are not denied services. This is true whether the discriminatory treatment is verbal,
physical, or financial. Thus, in the context of alleged racial discrimination, the
dispositive question under the Unruh Act is whether the plaintiff faced unequal treatment
on account of his or her race that members of other races did not experience.
Smith alleges Pumarol treated him differently from his non-African American
colleagues by making offensive, humiliating comments to him because of his race.
Given our conclusion that Pumarol qualified as a “business establishment” when giving
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his presentation, Smith plausibly alleged that Pumarol treated him differently during the
presentation in violation of the Unruh Act by making offensive, racist comments to him
only. (See Pizarro v. Lamb’s Players Theatre, supra, 135 Cal.App.4th at p. 1174
[“[T]he [Unruh] Act applies not merely in situations where businesses exclude
individuals altogether, but also where treatment is unequal.”].)
We must interpret the Unruh Act liberally “with a view to effectuating its
purposes.” (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 28.) The Unruh Act’s
overarching purpose is “to create and preserve ‘a nondiscriminatory environment in
California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious
discrimination by such establishments.’ [Citations.]” (White v. Square, Inc., supra, 7
Cal.5th at p. 1025.) To conclude that Smith cannot state a claim under the Unruh Act
because Pumarol’s comments amounted to only harassment, as BP and Pumarol urge us
to do, would not further the Unruh Act’s purpose of guaranteeing Californians “‘“full and
equal” access to “all business establishments.”’” (Ibid.) To hold that a business
establishment cannot face liability under the Unruh Act for its racially harassing conduct
toward its customers would thwart the Unruh Act’s “broad remedial purpose and
overarching goal of deterring discriminatory practices by businesses.” (Ibid.) We
therefore reverse the trial court’s order sustaining BP and Pumarol’s demurrer to Smith’s
Unruh Act claim without leave to amend.
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IV.
DISPOSITION
The judgment is reversed. The trial court’s order sustaining BP and Pumarol’s
demurrer to Smith’s FEHA claim without leave to amend is affirmed, but its orders
sustaining the demurrer to Smith’s IIED and Unruh Act claims are reversed. The parties
shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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