*1 C.2d 849] 880; Mаy10, 1966.] In A. No.28449. Bank. [L. PEYTON, Appellant, BAR ROY THOMAS CORPORATION, Defendant and RINGTON PLAZA Respondent. Kreshek, Wirin, Okrand, Fred and Sam Rosen Saul S. A. L. Appellant. for Plaintiff and wein Duff, Logan, Cyril Coyle, Richard G. A. James S. John F. Bush, Donnici, DeMartini, Arata, William J. Peter Thоmas J. Morris, McDonald, Bancroft, Richard Richard James T. B. A. O’Neil, Joseph Greenberg, Robison, M. B. Sol Jack Robert Seymour Farber, Laws, Rabkin, Beeson, Duane B. Robert H. Clancy Ephraim Nemerovski, John G. Mаr Jr., Howard golin Amici Appellant. of Plaintiff and on behalf as Curiae Nelsen for Re- Malat and Ned R. Defendant and Malat & spondent. Crutcher, Smith, & William French
Gibson, Dunn Samuel Jr., Battles, Jr., S. as Amici Pruitt, and Charles Curiae on O. Respondent. Defеndant behalf -Plaintiff, a physician Negro PEEK, J. and member of the appeals from a race, defendant injunctive relief under sections 51 and 52 in an action the Civil Code.1 alleges corporation organ- that the defendant is a
Plaintiff existing under laws of the California; ized and State of as follows: “All within 51, provides 1 Civil Code, persons jurisdiction this State are free and and no matter whаt their equal, origin religion, or national are entitled full ancestry, race, color, advantages, privileges, accommodations, facilities, or services equal kind whatsoevеr. ’ ’ every in all business establishments denies, 52 of the Civil Code as follows: “Whoever provides Section who or incites such or whoever makes aids, denial, any discrimination, *2 engaged constructing operat- that it is of in the business and ing housing projects, particularly rental “Barrington and the ’’ City Plaza in Angeles; development the of in Los that the Barrington public Plaza defendant receivеd assistance and the in project; state was involved the that defendant denied to plaintiff apartment Barrington the rental of an in solely Plaza plaintiff’s race; plaintiff adequate because that has no remedy compel apartment at law to defendant to lease an to him, plaintiff irreparable damage and that will suffer if not permitted occupy apartment or Barrington to lease an at Plaza.
The generally engaged answer admits that defendant is alleged, operative portions the business but denies the of the cоmplaint. plaintiff pre- Issues were drawn when moved for a liminary injunction supported and the motion with the decla- Cray. Cray declaration, ration of one Ed which we must undisputed, deem as out that sets defendant received a $17,000,000, Housing low interest rate loan under the National Act Plaza; represents to construct that such sum percent plaza; of the costs of the thаt the construction development part redevelopment is program a of the urban by City Angeles; undertaken the of Los that Plaza largest apartment development the is in the wеstern United States, providing apartment living 2,500 people; for it many shops professional includes retail and services within its facilities; provides shelter, a self-contained it fall-out completely by government emergency stocked the federal with supplies; plaza replaced private the homes both Cau- non-Caucasians; city casians and zoning the effected changes development; to the accommodate defend- sold, let, securities construction ant’s were its contracts were permits building shops professional were issued and its pursuant approval, services established all to state or local cooperation authority. hearing preliminary injunction
At the on the motion a judgment pleadings. stipu- It defendant moved for on was Cray limit lated that declaration would serve to the extent public alleged in assistance state involvement com- plaint. granted on The motion ground сomplaint failed to state facts sufficient religion, distinction or restriction on account of or color, race, ancestry, origin, national of Section 51 of this is contrary provisions code, damages, each and such offense for the actual and two every liable for ($250) thereto, hundred dollars addition suffered fifty by any person ’ ’ right in Section 51 of this code. deniеd the provided to constitute cause of I, action reason of article of the provides California That section perti- Constitution. part: nent any “Neither the State nor subdivision thereof shall deny, abridge, directly limit or right or indirectly, any willing person, who is or sell, desires to or any lease rent part all property, or of his real sell, to decline to lease or rent such person persons he, such as in his absolute *3 discretion, chooses.” “Persons” are defined to include “cor- porations,” property” and “real is defined to include an apartment type of the here involved. , ante, We have concluded in today Mulkey Reitman, v. p. 529 825], 413 I, article [50 881 26, is, section in entirety, infringement its an unconstitutional equal protection the clаuse of the Fourteenth Amendment to the federal Mulkey Constitution. The circumstances in the indistinguishable case are from the instant circumstances except in the instant case there is сonceded evidence of through the fact both government, the federal its substan tial defendant, financial assistance and the state municipal through governments, participatiоn their in effect ing redevelopment, significantly urban farther involved in are discriminatory the acts. The “state action” which evi Mulkey participation dent in thus without this facet of state is positively (See even more identified in the Bur instant case. Wilmington ton Parking Authority, v. 365 U.S. S.Ct. 715 [81 856, 45].) 6 L.Ed.2d foregoing For the trial justified the reasons court was not in upon I, relying 26, article in concluding plaintiff failed to state a cause of action under sections 51 and 52 of the Accordingly, Civil the Code. is reversed. Traynor, Peters, J., J., Tobriner, C. J., Burke, J., con- curred. WHITE, J.* -I dissent. (count this case IV of the complaint) con allegation
tained the that defendant Barrington Plaza is a “publicly housing assisted accommodation” within the mean ing of section 35700 of the Health and Safety being Code. This only complaint count alleging that defendant was operating a “publicly housing assisted accommodation,” court was concerned as to government whether partici had *Retired sitting Associate Justice of the assign- Supreme Court under ment by the Chairman of the Judicial Council.
883 pated to such an extent its activities as to render defendant subject contained Amendment to restraints the Fоurteenth (Burton Wilming of the the United States. Constitution Parking Authority, ton U.S. S.Ct. L.Ed.2d governmental activities, plaintiffs 45].) As to the extent upon Cray one Bd a written declaration of who had relied Barrington Corp. investigation of the Plaza which made an among things, corporation that defendant indicated, other percent $17,000,000 loan at interest under received a 5½ Housing Act to construct Plaza аnd that National development part city’s Plaza was of the concerning development program. After urban some discussion stipulation as to the facts so that the court could determine a presenting legal right the motion as rather to rule on point I really “The am issue, than factual the court said: stipulation goes point if trying to make here is exemption еnjoyed by Barrington Plaza, tax that there was no below was not sold the State cost to *4 acquired pur Plaza, that the was not for State, through poses by the either of construction the еxercise otherwise, power or that of of eminent domain there was no public laying or out of streets; streets other vacation of the government— preparation the site that there was no buildings—that participation demolition of is, that no investment, control of rents return on the I there was no point the matter to a think then we could reduce where the . ” could rule court Wirin, plaintiffs, Thereupon, Mr. counsel stated: stipulate prepared Honor, “Your we are matter by that, your I the matter which may reduced. mean be so just stipulation stated, had we would concede.” The Honor accepted by Plaza. counsel subsequent hearing, following: the record At reveals the “ actually ruling . . I had reserved as to . Court: (IV) only ques I was concerned latter count because with the financing FHA existed was tion of whether initiated any regulations prior executive order or to the existence concerning discriminatiоn; understand, and I now, FHA position of all counsel the case that as far as it is the financing pre FHA they concerned exists are regulations pursuant any order ceded such executivе thereto. “ I ? Am correct correct.
“Mr. Wirin: That is Correct, Your Honor.
“Mr. Kresbek: Correct, Your Honor.” “Mr. Nelson: judg- granted motion for Thereupon court defendant’s pleadings as to count IV. on the ment foregoing my for the reasons stated In view the Cal.Rptr. Reitman, ante, p. 529 Mulkey dissent in [50 judgment. affirm 892, 836], 413 P.2d I would McComb,J., concurred. C.2d 854] 884; May 10, F. 22019. In Bank. No.
[S. 1966.] THOMAS, Appellant, DORIS R. v. G. E. Respondents. al., et Defendants and GOULIS Ephraim Margolin, Krause, Marshall W. Arnold M. Green *5 berg, Leighton Richard A. Bancroft Elliott Plaintiff Appellant. Duff, Logan, Cyril Richard G. Coyle, John F. A. James S. DeMartini, Arata, Bush, Thomas William J. Peter Donniei, J. McDonald, Richard Morris, B. Greenberg, James T. Jack O’Neil, Joseph Robison, Rabkin, B. Sol Robert M. Duane B. Seymour Farber, Laws, Robert Beeson, Jr., H. Howard Neme Clancy and John as Amici rovski G. Curiae on behalf of Appellant. appearance Respondents. No Defendants and Crutcher, Gibson, Smith, Dunn & William French Samuel Pruitt, Jr., Battles, Jr., S. O. Charles as Amici Curiae Respondents. behalf of Defendants and