Osborne v. Yasmeh
205 Cal. Rptr. 3d 656
Cal. Ct. App.2016Background
- Flowers (paraplegic, uses a service dog), his wife Rebecca Osborne, and stepsons Seth and Kody Messmer went to defendants’ hotel; hotel management refused to rent unless a $300 nonrefundable cleaning fee (in addition to ~$80 room) was paid for the dog; plaintiffs left without paying or checking in.
- Plaintiffs sued separately (Osborne; Flowers & Messmers) under the Unruh Civil Rights Act (Civ. Code §51) and §51.5 (association with disabled person), plus intentional infliction of emotional distress; demurrers were sustained without leave to amend and judgments entered for defendants.
- Defendants relied chiefly on Surrey v. TrueBeginnings, arguing Surrey’s bright-line rule that a plaintiff must tender the purchase price to have Unruh Act standing (i.e., plaintiffs lacked standing because they did not pay the fee or rent a room).
- The trial courts sustained demurrers (one court also labeled Osborne’s amended complaint a sham pleading); plaintiffs appealed and the appeals were consolidated.
- The Court of Appeal reviewed standing de novo, rejected Surrey’s bright-line rule as inapplicable to these facts, and held that a disabled person who personally experiences discriminatory denial of access need not have paid the allegedly discriminatory fee to have Unruh Act standing; associated persons also may have standing if they personally experienced the discrimination.
- The court reversed and remanded with directions to overrule the demurrers; parts B and C of the opinion (sham pleading and emotional distress) were not published in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs had standing under the Unruh Act when they were refused lodging but did not pay the disputed fee | Plaintiffs argued that Flowers personally experienced discriminatory denial of access based on disability/service dog, so standing exists without paying the fee; associates (Osborne, Messmers) who personally experienced the discrimination also have standing under §51.5 | Defendants argued Surrey requires tender/payment of the purchase price to have standing; because plaintiffs did not pay or check in, they lack standing | Court held Surrey’s bright-line tender rule is not applicable here; personal experience of discriminatory denial of access gives Unruh Act standing without requiring payment; associates who personally experienced discrimination may also sue |
| Whether Surrey’s bright-line rule controls in disability/service-animal denial cases | Plaintiffs argued Surrey is distinguishable and conflicts with Unruh Act history and ADA incorporation; requiring payment would undermine protections for disabled persons | Defendants urged strict application of Surrey to bar suits by nonpaying visitors | Court rejected applying Surrey broadly, reasoning Unruh Act historically protects those who present to a business and are denied access; payment is not a prerequisite when denial is experienced personally |
| Whether Osborne’s first amended complaint was a sham pleading | Osborne explained newly alleged facts (family member later offered to pay and was told hotel did not want dogs) and argued amendment added, not omitted, facts | Defendants argued the amended allegations contradicted prior pleadings and discovery, so were sham to avoid demurrer/summary judgment issues | Court found the amended complaint was not a sham; adding facts about later-discovered information was permissible and a demurrer is not the proper vehicle to test factual credibility |
| Whether the demurrers should have been sustained as to the intentional infliction of emotional distress claims | Plaintiffs contended they sufficiently pleaded the tort based on defendants’ conduct | Defendants treated the tort as derivative of the Unruh claim and moved to dismiss it | Court declined to resolve sufficiency of the emotional-distress pleadings in the first instance because trial courts did not rule on that substantive adequacy; remand necessary |
Key Cases Cited
- Angelucci v. Century Supper Club, 41 Cal.4th 160 (Cal. 2007) (an Unruh Act plaintiff has standing if personally subjected to discriminatory act; no requirement to give defendant notice/opportunity to correct)
- Surrey v. TrueBeginnings, 168 Cal.App.4th 414 (Cal. Ct. App.) (court recognized a bright-line rule requiring tender of purchase price for standing in pricing/discount context)
- Koire v. Metro Car Wash, 40 Cal.3d 24 (Cal. 1985) (Unruh Act covers discrimination beyond exclusion, including pricing disparities)
- Munson v. Del Taco, Inc., 46 Cal.4th 661 (Cal. 2009) (Legislative incorporation of ADA into Unruh Act; ADA violations constitute Unruh Act violations)
- Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal.App.3d 1377 (Cal. Ct. App.) (organizational plaintiff lacked standing where it had not personally been denied rights; standing confined to those personally aggrieved)
- In re Cox, 3 Cal.3d 205 (Cal. 1970) (Unruh Act broadly prohibits arbitrary discrimination; historical cases show standing does not depend on payment)