Monday, November 14, 2016
C.A. Reinstates Action by Man Not Served at Restaurant
Says Cause of Action Was Stated Based on Contention That if Sleevless Women Are Served, It Breaches Unruh Civil Rights Action Not to Provide Food to a Man in Tank Top
By a MetNews Staff Writer
The First District Court of Appeal has ordered reinstatement of an action under the Unruh Civil Rights Act brought by a man who was denied service at a restaurant on San Francisco’s Embarcadero because he was clad in a tank top.
It is gender-based discrimination, plaintiff Leonard Baza argued, for the Hillstone Restaurant to require that men’s upper arms and shoulders be covered, while not imposing such a restriction on women. Baza sued the owner/operator of the restaurant, Hillstone Restaurant Group, Inc., as well as the then-manager of the San Francisco eatery, Jonathan E. Geffrard.
In addition to claiming a civil rights violation, Baza sued for negligent and intentional infliction of emotional distress.
San Francisco Superior Court Judge Ernest H. Goldsmith on Dec. 23, 2014, sustained a demurrer without leave to amend to all causes of action. On appeal, Baza did not seek resuscitation of his claim of intentionally inflicted emotional harm, but sought reversal of the judgment of dismissal of the other two claims.
Writing for Div. Five, Presiding Justice Barbara Jones said in an unpublished decision on Wednesday that Baza had not pled sufficient facts to support a claim of negligently inflicted emotional stress and failed to show how he could amend the complaint to cure the defect, but did state a cause of action for a civil rights violation. She wrote:
“[W]e conclude that absent public policy supporting Hillstone’s sex-based dress code, the reasonableness of Hillstone’s dress code presents factual issues not capable of resolution on defendants’ demurrer.”
The Unruh Civil Rights Act provides:
“All persons within the jurisdiction of this state are free and equal, and no matter what their sex…are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Gender-based discrimination is violative of the act, Jones said, unless it is shown to be “reasonable” and not “arbitrary.”
She noted that Baza relied chiefly on a 1977 Court of Appeal opinion, Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25. There, the appeals court reversed a judgment of dismissal following the sustaining of a demurrer, without leave to amend, to a complaint alleging a violation of the Unruh Act by two men who was denied service in a restaurant because they were not attired in coat and tie, although the same dress code was not applied to women.
The court in that case said that the reasonableness of the policy could not be determined on a demurrer.
“This case closely resembles Hales, and we adhere to its reasoning. Baza wore a tank top to Hillstone and was told he would be refused service until he covered his shoulders and upper arms. Meanwhile, female patrons attired in clothing that exposed their shoulders and upper arms were served. On these facts, like the plaintiff in Hales, Baza adequately pleaded an Unruh Act claim. Moreover, like Hales, the reasonableness of Hillstone’s policy cannot be decided as a matter of law based on the facts Baza alleged.”
A footnote recites:
“At oral argument, Hillstone identified certain factual allegations from Baza’s complaint distinguishing the dining experience at Hillstone: a hostess greeted guests; assigned seating; the presence of two managers when Baza visited; wine for service and corkage; T-bone steak on the menu; and the existence of a dress code. On the basis of these details from Baza’s pleading, Hillstone suggests enough facts are alleged such that the reasonableness of its dress code can be decided on demurrer. We disagree. None of these features in isolation or in the aggregate explain how a sex-based policy is reasonable as a matter of law.”
The dress code, as stated on the website of Hillstone, which operates restaurants in several states, provides:
“We want you to be comfortable in our restaurants. Jackets or ties are not required, but we do request the following out of consideration for our staff and other guests. For men, please avoid sleeveless shirts, flip flops, and casual athletic attire. Hats may be worn with the bill facing forward. For both men and women, please avoid beach wear or active wear that is overly revealing.”
“Absent any clear public policy supporting sex-based dress codes for customers, the need for a factual showing to determine whether Millstone’s dress code is reasonable is underscored by defendants’ own attempt to interject facts outside the pleadings and not subject to judicial notice to justify the restaurant’s dress code. Without any citation to the record, they refer to their restaurant’s ‘reputation as an upscale dining location’ to support the reasonableness of the dress code.”
The jurist said that facts outside the record cannot be considered and that “this is the type of extrinsic evidence that cannot be considered on demurrer.”
She went on to say:
“We are…unwilling to hold seemingly innocuous, arguably reasonable practices sacrosanct based on assumed traditions in dress….[T]he legality of a sex-based dress code—even one with a male-only sleeve requirement that appears harmless—cannot depend on a subjective value judgment, especially one made at the pleading stage absent an evidentiary showing, judicially noticeable facts, or a clear public policy favoring such a practice. Hillstone’s sex-based dress code is not patently and indisputably reasonable, and at this stage, it is not plain to us as a matter of law that Baza cannot state an Unruh Act claim.”
Although Jones pointed to the potential of Baza stating such a claim, the opinion proceeds to declare that the “order sustaining defendants’ demurrer” to the cause of action under the Unruh Civil Rights Act “is reversed.”
The case is Baza v. Hillstone Restaurant Group, A145503.
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