Tuesday, December 23, 2008
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Court: Mother’s Day Giveaway Not Unlawfully Discriminatory
By SHERRI M. OKAMOTO, Staff Writer
The Fourth District Court of Appeal has upheld a trial court’s dismissal of Los Angeles man’s claim that a promotional Mother’s Day giveaway at an Anaheim Angels baseball game violated his civil rights.
Concluding that the Unruh Civil Rights Act did not apply to Michael Cohn’s “manufactured injuries” based on the baseball franchise’s refusal to give him a free red nylon tote bag sporting the Angels’ logo, Div. Three affirmed Orange Superior Court Judge Jonathan H. Cannon’s grant of summary judgment against Cohn in a decision ordered published Friday.
Cohn attended an Angels home game on Mothers’ Day in 2005, at which the franchise selected a mother to serve as an honorary announcer, displayed images of people kissing their mothers on the stadium’s big-screen television, and offered a free tote bag to mothers in attendance.
Corinthian Colleges Inc., operator of Bryman College, sponsored the Mother’s Day tote bag, but it undisputedly did not contribute to the designing or implementing of the giveaway.
Due to difficulty in discerning which women were mothers among the traffic of persons entering the game, the Angels claimed, and Cohn did not dispute, bags were given to females, 18 and older.
Cohn and his two male friends requested bags, were refused twice, and left the game. After Cohn’s counsel, San Diego attorney Alfred G. Rava, sent a letter to the franchise complaining about the fact that Cohn did not receive a bag, the Angels sent Rava, Cohn, and Cohn’s friends each a bag.
Despite receiving the sought-after bag, Cohn filed suit against Corinthian and Angels Baseball LP for gender discrimination, but the defendants later obtained summary judgment in their favor.
The Unruh Act guarantees “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments” for all persons, regardless of gender, race, color, religion, national origin, disability, medical condition, marital status or sexual orientation.
Writing for the appellate court, Justice Kathleen O’Leary explained that unlawful discrimination results from differing treatment based on gender, not a correlation to gender.
“It is a biological fact that only women can be mothers,” she wrote. “Neither men nor women are harmed by this, and the Angels did not arbitrarily create this difference.”
O’Leary reasoned the undisputed fact that the bag giveaway was intended to honor mothers on Mother’s Day indicated that “the intended discrimination [was] not female versus male, but rather mothers versus the rest of the population,” and noted “[n]owhere in the Unruh Act is there any mention of requiring the treatment of mothers to be exactly the same as that of non-mothers.”
Although all promotional gifts are not per se exempt from the Unruh Act, O’Leary concluded that if the intent behind a promotion was for the item to be a gift rather than an attempt to circumvent the ban on gender based discounts—such as free admission for a “ladies night”— then such a gift would be permissible.
“We see no reason to inhibit the Angels’, or any other business’s, ability to bestow gifts upon its customers,” she said. “Gift giving is not the same as usurping rights.”
O’Leary also suggested that Cohn’s complaint was “suspicious” because he was the only person who complained about the giveaway; his complaint came after he went to the game to deliberately generate his alleged injury; and he, his friends, and his counsel have been involved in numerous other discrimination claims she said have been characterized as “shake down” lawsuits.
She also denied Cohn’s claim for attorney fees, rejecting his contention that he was a “prevailing party” because the Angels had changed their policy of distributing gifts at more recent Mother’s Day games, theorizing that the change in policy was to avoid “another costly and irksome lawsuit.”
The jurist further chastised Cohn’s attorney for going to “great lengths discussing a sanction the trial court almost imposed” without making any claim of error, and cautioned counsel “not to waste this court’s time and resources with issues not properly before the court.”
Because Cohn did not dispute Corinthian’s lack of involvement in the planning and distribution of the tote bags, and did not produce any evidence to indicate Corinthian’s involvement, O’Leary added that the grant of summary judgment in favor of Corinthian was appropriate.
Justices William W. Bedsworth and Eileen C. Moore joined O’Leary in her opinion.
Tim Mead, vice president of communications for the Angels, said that the baseball franchise was “certainly in agreement with the decision,” adding that the team had “put together a program that we feel best serves our fans, and we’ve been very proud of our promotional program over the years.”
Although he said the team “unfortunately” altered its gift-giving policy after the lawsuit was filed, he said next year’s promotion schedule, along with the decision of whether to return to its former gift policy, was still “being finalized.”
Rava, who also represented Cohn on appeal, could not be reached for comment.
The Angeles were represented by George J. Stephan, Robert M. Dato and Efrat M. Cogan of Buchalter Nemer, and William Shearer, William V. Custer and Harry W.R. Chamberlain III of Powell Goldstein.
Daniel L. Rasmussen and Julie J. Bisceglia of Payne & Fears represented Corinthian Colleges.
The case is Cohn v. Corinthian Colleges, Inc., 08 S.O.S. 6874.
Copyright 2008, Metropolitan News Company