Metropolitan News-Enterprise


Thursday, August 18, 2005


Page 1


S.C. Denies Publication Request in Racial Bias Suit Over Incident at Six Flags Magic Mountain Park


By a MetNews Staff Writer


A request to publish the opinion of a Court of Appeal panel that  ordered a new trial on a claim that the proprietor of the Magic Mountain amusement park discriminated against an African American customer was denied yesterday by the state Supreme Court.

None of the five justices attending the court’s weekly conference voted to grant publication in Everett v. Superior Court, B174976. Justice Kathryn M. Werdegar was absent.

The Div. Four panel held that Los Angeles Superior Court Judge Howard J. Schwab gave an erroneous instruction in the case of Danny Everett, who claims that park management violated the Unruh Civil Rights Act by expelling him for having cut in line with members of his family.

Schwab, the panel ruled, erred in telling jurors that they were not required to consider statistical data showing that black patrons are far more likely than whites to be expelled for line cutting.

It was the second time that the panel reversed Schwab on an issue in the case regarding that same data. The court held in Everett v. Superior Court (2002) 104 Cal.App.4th 388 that the survey statistics, combined with the testimony of the plaintiff and the other members of his party, was sufficient evidence for Everett to go to trial on his claim that his right to equal services under the Unruh Act was violated.

Schwab had granted Six Flags Theme Parks, Inc.’s summary adjudication motion on that claim, saying the evidence was too speculative. Justice Norman Epstein, now the presiding justice of that division, said evidence of that type has traditionally been relied upon to infer that discrimination has occurred.

Everett’s attorney, David Greifinger of Santa Monica, said he was not overly disappointed with the denial of his publication request, since the ruling “remains the law of the case, which is most important to Mr. Everett.” Six Flags attorneys William H. Hake, Michael L. Amaro and James V. Joyce of Prindle, Decker & Amaro did not oppose the publication request.

The case is set for status conference before Schwab Aug. 31. Greifinger said he has no problems with Schwab remaining on the case, even though he has succeeded twice in getting the judge reversed.

“I think he’s a good judge, a fair judge,” Greifinger explained. “But even good and fair judges are wrong sometimes.”

The attorney said he had hoped to make published law with regard to Penal Code Sec. Sec. 490.6(b), which makes it a criminal offense to refuse to comply with amusement park rules or leave the park upon instruction of an employee.

“I think that statute is unconstitutional” and is abusively used to target juveniles and poor people, Greifinger said.

The appellate court did not find it necessary to discuss the constitutional issue but said Schwab’s instruction on the statute was “problematic” because it “improperly implied that appellant had committed a crime, thereby justifying the subsequent conduct of the Magic Mountain employees” and diverting jurors from the consideration of evidence that the employees’ actions were based on race rather than the violation of park rules.

Everett visited the park on Sept. 26, 1998 with his wife, sister-in-law, and daughter, as well as two of his daughter’s friends. The three girls were all under 12 years old.

Everett alleges that he and his sister-in-law walked ahead of his wife and the girls in order to get in line for the Colossus ride. Since he and his sister-in-law were halfway through the line before the others caught up, he motioned to them and stepped about 10 feet out of line, he said in his complaint, before an employee came up and said he was not allowed to cut in line.

Everett claims that he was pulled out of line, and when he asked to speak to a supervisor, he was told he would have to leave the park because he violated its line-cutting policy. The policy says that members of a group or family may join other members who are already in line only for specified reasons, such as when children under 12 years of age are joining the adult members of the party, when one person has left the line to use a restroom, or when the “Line Patrol Officer” authorizes an exception.

A few seconds after he was asked to leave, Everett alleges, his wife and the girls exited the ride. When he offered to have other patrons vouch for the fact he was in line, he claims, a supervisor told the security guards to remove him and he was jumped, thrown to the ground, and kicked before being chained to a bench where he was held under citizen’s arrest for two hours and taunted by other employees.

He was charged with battery on a security guard, trespass, and obstructing a business. A jury acquitted him of the battery; the other charges were dismissed after jurors deadlocked.

Everett and the two women sued for battery, assault, false imprisonment, malicious prosecution, intentional infliction of emotional distress and violation of the Unruh Act.

The survey presented at trial showed that African Americans, who made up less than eight percent of the park’s guests, accounted for more than 41 percent of those removed for line cutting in 1997 and more than 55 percent in 1998. They also made up a disproportionate number of all patrons arrested in the park, the survey showed.

Over the plaintiff’s objection, Schwab told jurors that they “may, but are not required to, consider statistical data” in determining whether discrimination had taken place. Jurors eventually found for the plaintiff by general verdict on all claims except discrimination, as to which it found for Six Flags, and awarded $60,000 in damages, including $10,000 in punitive damages.

Presiding Justice Norman Epstein said the trial judge prejudicially erred in telling jurors that they were not required to “consider” evidence that the Court of Appeal had already held to be relevant and material. By doing so, the presiding justice explained, Schwab had granted jurors “leave to ignore the cornerstone of appellant’s discrimination case.”

Given the strength of that evidence, Epstein said, the error constituted a miscarriage of justice requiring reversal.

Epstein also found fault with an instruction in which jurors were told that Everett was “lawfully detained” on the Colossus platform at the end of the ride.

Given the testimony of a former security guard who said that he was told during training that blacks tended to get more emotional than other patrons when confronted, and that guards could make for “an interesting call” by waiting until right before someone got on the ride to pull them out of line, the effect of the instruction was to preclude a finding that the detention itself was part of a pattern and practice of biased treatment, the jurist said.


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