*1 Dist., Two. No. 58417. Div. Nov. Second 1980.] [Civ. WYNN, H. Plaintiff Appellant,
ROBERT al., Respondents. Defendants and MONTEREY CLUB et *4 Counsel Appellant. for Plaintiff
Allan H. Liebert Frederick and J. Alan Robinson, B. Coyle Richard Marrone & Coyle, Respondents. Defendants and Opinion captioned
COMPTON, CONtract, J. Plaintiff in an action "BREACHOF *5 Negligence” a summary judgment appeals Fraud of the operators who are owners entered in favor of defendants clubs licensed by The latter are card the Clubs. Rainbow and Monterey of We reverse. the Gardena. City filed in connection the declarations complaint, in the allegations
The which we may matters of summary judgment, with the motion for the facts. following notice reveal take judicial maintain, areas premises, on their question The two card clubs in permitted patrons at which and chairs with tables
which are furnished management The for money. card games described to certain play player from each but collects in the games not participate does the maximum bet for limit and upon half hour based rental per the income the higher the wagering, the higher in Hence progress. game the management. to of the privilege its patrons certain of to of the clubs affords
Each of the purpose the prime but that is no question There checks. cashing for gambling. funds is to obtain cashing activity check Plaintiffs wife is a compulsive attempted gambler apparently her unsuccessfully problem organization to cure an by membership propensities, she, known as her Gamblers It as well as Anonymous. appears cashing were known to the defendants. She afforded check at club. privileges wife
During latter suffered losses part plaintiffs heavy $1,750 while gambling at the two She cashed worth checks clubs. which were because insufficient funds. dishonored plaintiffs
It is conceded that her to debts were not chargeable gambling and wife’s The wife’s community property. problem, however, did place a severe strain their on marriage. Lochhead, partners Plaintiff defendant one the general contacted problem clubs, and discussed operation telephone of the two by plaintiff his to an According agreement wife’s indebtedness. his wife’s debts to
reached would plaintiff satisfy undertake whereby his wife access promise deny the two clubs in exchange defendants’ privileges. her further check cashing clubs and deny from defendant was followed letter telephone conversation “Thank call of your which read as follows: you Lochhead to Friday, December the 14th. [11] Mrs. Wynn indebted to the Monterey written during in the of checks $1750.,—consisting Cafe amount of know, checks, returned her were you These as previous thirty days. Mrs. Wynn I over the phone marked As told you bank NSF. [II] Clubs; she will and Rainbow Monterey has been barred from both *6 all and she has been denied of the games; not be allowed to play the repaying method of Your proposed check cashing privileges. [II] I very appreciate your and much for her checks is satisfactory clubs bad cooperation.” full. During Plaintiff, the year, paid obligation the ensuing during apparently the wife thereafter year and another approximately period plaintiff of May In gambling.
refrained from at the defendants’ and checks cashing his was again gambling wife learned approximately losses of suffered apparently clubs. She had cover from friends to those $30,000 money and to borrow had begun losses. he commenced and destroyed was marriage the
According plaintiff instant action. filed the contemporaneously He an action for dissolution. defendants, is that defendants complaint against of gravamen plaintiff’s contract, caused their breaching or deliberately negligently in plaintiff suffering the which resulted disruption marriage, of punitive of compensable general by way and emotional distress physical damages. complaint. to the
Defendants demurrers interposed special general demurrers, defendants When the trial court overruled writ was denied this court. Defendants for a of mandate which petitioned then which was on condition moved for summary judgment granted $1,750 interest from plaintiff plus that defendants refund to December of 1974. granting
It that the sole basis for the from the record apparent that J;he contract, of trial court’s view summary judgment relies, is If the
upon which and unenforceable. illegal trial court’s conclusion in that was in error then regard summary judgment improperly granted moving papers the reason that Proc., (Code 437c; expose number of issues triable of fact. Civ. § (1965) Hayward Union etc. School Dist. Madrid Cal.App.2d 268].) Cal.Rptr. [44 consent, The essential competent parties, elements of contract are (Civ. Code, 1550.) sufficient consideration and a lawful Of objective. § elements, these four the one a lawful is at issue here. only objective law, A if illegal provision an contrary express contract Code, (Civ. 1667.) policy good morals. §
Defendants’ claim their they rests on assertion that illegality lacked legal bar wife from access to their establishments authority 51,1
because of Civil Code proscription section known, may be be section shall follows: “This section 51 reads as 1 CivilCode state jurisdiction this cited, All within the Rights persons Civil Act. as Unruh [K] *7 color, sex, race, religion, ancestry, or national what their no equal, free and and matter are facilities, accommodations, advantages, equal origin to entitled the full are This every whatsoever. of kind establishments [H] or in all business privileges, services which is conditioned privilege person on a any right or to confer shall not be construed section color, sex, every persons to of applicable alike which is or law or limited race, origin.” religion, ancestry, or national 796 Act, and the holdings Civil Rights known as the Unruh
otherwise
(1951)
Los
Club
Angeles
in
v.
Supreme Court
California
Orloff
Turf
(1951) 37 Cal.2d
Reilly
v.
449];
P.2d
Stoumen
36 Cal.2d
[227
24,
(1970)
Cal.Rptr.
Cal.3d 205
In
Cox
969],
P.2d
re
[90
[234
circumstances, the premises, they wife from plaintiff’s to bar for a lawful purpose. that authority contract to exercise Defendants law to afford obligated by any that were make no contention they obviously Such privileges wife. check cashing priveleges in increases defendants’ which turn to gambling as a stimulus provided revenue. preventing face, at appears
Civil on its to be aimed Code section race, on the basis public discrimination accommodations Cox, it was held sex or In In re religion. supra, arbitrarily from Civil Act business establishment prohibits Unruh Rights (Also see, Stoumen v. customer. prospective excluding any Reilly, supra.) Club, which decided prior Los v. Angeles supra, Orloff Turf worded, held as it is now
the enactment of Civil Code section 51 member to admit places public required any entertainment were unlawful who or commit act did not create disturbance case a “known gambler” on the The involved premises. Orloff reputation. of his barred from Anita Track because simply the Santa Race barring v. involved supra, Similarly, Reilly, Stoumen homosexuals a restaurant and bar. Cox, however, the of a business establishment right
In recognized, re supra, on its when reasonable restrictions customers those adopt restrictions are related to the business conducted rationally being' Court provided. Supreme facilities and services being Orloff Club, that its also stated decision Angeles supra, specifically Los Turf that a once properly was not intended to foreclose possibility person be denied admission. properly from a thereafter ejected premises might in issuing that the wife’s conduct position Defendants take her barring the insufficient provided funds checks legal justification *8 satisfied. With the to them was the until such time as debt clubs position agree. we satisfied, that, was once the debt On the hand contend other defendants we position was With that their to access terminated. ability deny disagree. of Civil or nothing underlying purpose There is in the language application that its it to indicate
Code section 51 or cases interpreting potential whether the or the narrow nonapplication question turns on overriding issue customer is indebted to establishment. , is based whether the access to accommodation
always denial of race, sex, or and unjustified grounds. on other religion arbitrary race, here sex are not involved religion
Since factors of the issue narrows to one of arbitrariness. earlier, concede,
As we that the agree, issuing stated defendants legal justification refusing insufficient funds checks at least until she wife access to the accommodations satisfied her obligation.
In our here which transcend the there are factors opinion, debt. Those factors are that simple fact of the unsatisfied to propensity wife had manifested compulsive gambler possibly what was her means to the extent of gamble beyond committing act, effect on her an all of which was a detrimental having illegal husband, factors were well of her and these own as as that well-being all known to the defendants. the mere act dissipated by factors were not
These enumerated
for continued refusal
restitution.
subsisted as
making
justification
They
wife
facilities. This conclusion
admit
to the gambling
rule of
of the Unruh Act
provisions
consistent with the
Orloff
Club,
There is in attempting, immoral nothing self-destruction, attempt or an or economic an individual from physical *9 mejntal lawful means to a with a or emotional prevent person recognizable disorder from harm to third causing persons. it seems clear that an establishment which serves
By analogy liquor would be and legally access or service to morally justified refusing had, an intoxicated or one in the become intoxicated obviously person past, who on the and created a disturbance or caused harm to premises third This exists persons. apart from the justification statutory prohibition an intoxicated or habitual drunk-
against serving obviously person ard.2 but of such an individual would not be barring arbitrary
instead business and social Such a restriction practice. would constitute good of the based operation premises, related to the reasonably and an unlawful act. In terms of social part upon the commission of between a compulsion economic there is little distinction impact and for alcohol. Both are mental diso compulsion recognized rders.3 policy.
The crucial is one of Is a contract between question public access to certain two which seeks to bar a third persons person facilities, even though types public contrary public policy, an of law? The answer express provision such contract is not prohibited by basis, depending to that must be decided on a question case-by-case and the of facilities involved. on the of the relationship parties type and not some form of establishments This case involves gambling interest has a strong protectable entertainment. Plaintiff harmless well-being of and the emotional marriage in the preservation mental disorder recognized The wife suffers from himself and his wife. was an The contract her propensities. and has manifested overtly sells, “(a) Every person provides: Professions Code section 2 Businessand sold, furnished, beverage furnishes, given away, any alcoholic gives, to be or causes guilty of obviously person intoxicated any or to common drunkard habitual or a misdemeanor.” 1980) promulgated (3d ed. Disorders Manual of Mental Diagnostic and Statistical 3 The 291-293, Association, classifies pages at Psychiatric American by the problems involving control. Related impulse a mental disorder gambling as pathological relationships family disrupted responsibilities, defaulting on financial described as forgery. dependence 169-170, alcohol abuse and characterizes alcohol pages manual at That same gambling. pathological problems similar to associated disorders with as mental marriage harm to both spouses means lawful to prevent attempt by preserve seeks to which policy It did not violate the itself. choice. freedom of action and
to all persons *10 rule here or terms of the contract We do not decide the exact for a permanent in fact contracted on whether and defendants plaintiff pass Nor do we the two clubs. wife from plaintiff’s barring must be decided which questions on issue of causation. All are factual the does not illegality We do hold defendants’ claim of in a trial. that entitle them to summary judgment. the has parties and one which neither of remaining question, The compensable is
addressed, claimed plaintiff is whether type damage consideration, i.e., $1,750. the return the initial beyond in to the determined complaint trial demurrers judge overruling that of the petition had a cause of action. Our denial plaintiff pleaded affirmed at presented mandate that determination. Nothing on the motion for detracts from that determination. hearing judgment summary noted, As claim to rests on his assertion previously plaintiff’s damages that defendants’ led destruction of the breach of the contract to a financial, with resultant and harm marriage physical emotional plaintiff. The issue of financial loss is a matter of within the confines proof rule
of the of foreseeable which general requiring proof damages Baxendale, flow from a breach of contract. (Hadley V. 9 Ex. 156 145; Code, 3300.) Civ. Eng.Rep., p. §
As for or harm it compensating plaintiff for emotional physical that, circumstances, clear under the harm such was reasonably foreseeable was, of the contemplation contracting parties, likely to result from a breach of contract. Defendants well aware were wife’s her propensities having on impact ganbling and the knew personally particular. well marriage They plaintiff’s motivation in into the contract was to entering preserve of the tranquillity marriage well-being. emotional not recoverable rule, has been that damages The traditional from a breach of contract. resulting for mental suffering (Westwater Mack v. Grace Church (1903) 1055]; 140 Cal. P. 339 [73 (1964) 225 583 W. Comstock Associates Cal. Cal.App.2d Hugh [37
800 (1975) Cal. 45 147 Cal.App.3d O’Neil v.
Rptr. 466]; Spillane [119 Rptr. 245].) / (1923) v. McCullough it in Westervelt
On the other hand was stated 208-209, the terms at “Whenever 661], pages P. Cal.App. [221 comfort, happiness, relate to matters which concern directly a contract matter of subject welfare of one of the or the personal parties, affection, self-esteem, or affect or move the which such as directly he recover may damages physical suffering tender of that feelings party, (See (Italics added.) caused its breach.” or illness proximately (1948) 915]; P.2d Cohen v. Nieri 32 Cal.2d also Chelini v. [196 *11 (1964) 481].) 1 Cal.Rptr. 231 Cal.App.2d Groman Inc. Mortuary, [41 (1970) 844 Cal.App.3d 8 In v. Scheers Jewelers Windeler [88 an award for Appeal approved physical injury the Court of Cal.Rptr. 39], jewelry contract involving out the breach of a bailment growing headaches, consisted of The “physical” injury with sentimental value. great nervousness. loss of sleep general v. Ins. Co. Security further eroded in Crisci The traditional rule was Supreme 13, where the 173], 426 P.2d
(1967)
Cal.Rptr.
Most
in the case
recently,
813],
Supreme
616 P.2d
(1980)
Cal.Rptr.
Against background recovery on plaintiff’s limitation only concluding which provides: Code of Civil this case is the language section contract, the measure arising the breach of an obligation “For code, is the this expressly provided where otherwise except damages, all the detriment party aggrieved which will compensate amount which, things, course ordinary in the caused proximately thereby, (Italics added.) result would be likely therefrom.” (1963) Cal.Rptr. 580], 214 Cal.App.2d Leavy Cooney
In [29 in a compensable to be was held suffering mental and emotional pure contracting parties it was held that the breach of contract case. There *12 in “humiliation the contract would result that a breach of contemplated plaintiff. and embarrassment” to the determining that, bench, purposes for analysis
In the case at our was a lawful the contract of a summary judgment, propriety that a breach on notice the defendants put contract which its nature by suffering by and mental would result in emotional thereof In of that conclusion light compensable damage. as well as other forms of summary judgment moving it is that the defendants patent fact. triable issues of did not negate presence the trial is remanded reversed and matter judgment motion for defendants’ its order granting with directions to vacate
court order denying different to enter a new and summary judgment same.
Beach, J., concurred. pertinent, point
ROTH, I concur. I think it out that P. J. it was the clear that at bench shows of the contract logical analysis any defendants understood and it was so the husband plaintiff intent of specifically wife and credit to monetary deny that defendants her checks. from cashing refrain they that does not frown upon
There can be no argument policy not to the check of extend made for a cash promise consideration of another who who has of default at the instance credit to one a history bench, At defendants such default. feels a moral to cure obligation his wife was involved checks because plaintiff paid spurious only knew the relationship have knew should known they and/or and would because wife’s gambling between them under strain were not controlled. habit to be if the wife’s compulsive gambling continue shows that contract the admitted Realistically analyzed, the primary purpose of his wife for the defaulted checks plaintiff paid compulsively to his credit in form the extension of preventing which owners principle obligates We no legal wife. know of extend credit legally, albeit gamble, a business for those operated the checks of their customers. or cash respondents’ 1980, was denied November rehearing
A petition Court denied Supreme for a petition hearing 28, 1981. January