Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

HENNESSEY’S TAVERN, INC., Plaintiff,

Case No.: YC072977 vs. [Tentative] RULING

NILS NEHRENHEIM, Defendant.

Hearing Date: July 26, 2019

Moving Parties: Cross-defendant Hennessey’s Tavern, Inc.

Responding Party: Cross-complainant Nils Nehrenheim

(1) Demurrer to First Amended Cross-Complaint

(2) Motion to Strike Portions of First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1st and 2nd causes of action. The motion to strike is MOOT.

BACKGROUND

On June 28, 2018, plaintiff Hennessey’s Tavern, Inc. filed a complaint against Nils Nehrenheim for (a) trespass to property and (2) conversion, trespass, and destruction of personal property. Plaintiff alleges that this lawsuit arises out of the improper conduct of Redondo Beach City Councilperson Nehrenheim, who intentionally trespassed onto Hennessey’s Tavern premises, refused to leave, disturbed business by loudly talking about destroying Rebel Republic Social House’s dining deck, and destroyed and carried away a sign from inside Hennessey’s Tavern.

On April 10, 2019, the court sustained with leave to amend Hennessey’s demurrer to the cross-complaint, stating that the cross-complaint does not contain any allegations or facts showing that Nehrenheim is a member of a protected class or is being discriminated against based on his status of an enumerated class within Civil Code §51(b).

On April 29, 2019, Nehrenheim filed a First Amended Cross-Complaint for (1) violation of Unruh Civil Rights Act and (2) violation of Bus. and Prof. Code 17200, et seq.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Demurrer

Cross-defendant Hennessey’s demurs to the 1st and 2nd causes of action in the First Amended Cross-Complaint on the ground that they fail to state sufficient facts to constitute a cause of action.

In the FACC, Nehrenheim alleges that he is a city council member for Redondo Beach. FACC, ¶8. Cross-defendant owns Hennessey’s Tavern, which is open to the public. Id., ¶¶10-11. Despite Hennessey’s Tavern being open to the public, cross-defendant has banned Nehrenheim from the restaurant because of his exercise of his constitutional rights of freedom of speech and petition. Id., ¶11. He was banned for his political views, votes, association, political affiliation, and personal beliefs. Id., ¶12.

1st cause of action for violation of Unruh Civil Rights Act

The Unruh Civil Rights Act (“the Act”) provides that “[a]ll persons within the

jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion,

ancestry, national origin, disability, or medical condition are entitled to the full and equal

accommodations, advantages, facilities, privileges, or services in all business establishments of

every kind whatsoever.” Civil Code §51(b). The primary purpose of the Act “is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act.” Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal. App. 3d 712, 733. “[T]he antidiscrimination provisions of the Unruh Act are not confined only to a limited category of ‘protected classes’ but rather protect ‘all persons’ from any arbitrary discrimination by a business establishment.” Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730. The “’identification of particular bases of discrimination . . . is illustrative rather than restrictive.’” Marina Point, Ltd., supra, at 732 (citation omitted). “As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants; it imposes no inhibitions on an owner’s right to exclude any individual who violates such rules. Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination.” Id. at 726. “Derived from the early common law right of equal access to the services of innkeepers or common carriers, the Unruh Act prohibits business establishments from withholding their services or goods from a broad class of individuals in order to ‘cleanse’ their operations from the alleged characteristics of the members of an excluded class.” Id. at 725.

Under this cause of action, Nehrenheim added allegations that that on September 15, 2015, Redondo Beach’s mayor and City Council approved a one-year trial period for the installation of outdoor dining decks in Riviera Village. FACC, ¶23. Paul Hennessey was supportive and committed to funding the Dining Deck Pilot Program. Id., ¶24. On March 2016, the Dining Deck Pilot Program began its one-year trial period. On March 31, 2016, two permits were issued to construct the improvements in the public right of way at 1710 S. Catalina Avenue (Rebel Republic Social House) and 1712 S. Catalina Avenue (Hennessey’s Tavern). Id., ¶25.

The FACC also alleges that in September 2017, Nehrenheim met with Hennessey to discuss the deck program, and Hennessey requested that Nehrenheim vote for continuing the deck program. Id., ¶26. On November 21, 2017, prior to the City Council meeting, Hennessey called Nehrenheim to request that he vote to continue the deck program. Id., 2¶7. On November 21, the City Council members voted on whether to continue the deck program. Nehrenheim opposed continuing the deck program based on his personal views and political beliefs, including his beliefs that the program was unfair and would not be in the best interests of the community. His concerns included pushing costs on the community, lack of parking, and that sidewalk dining would become cost prohibitive for small businesses. Id., ¶28. The motion to terminate the program was approved 4-0. Id., ¶29.

The FACC further alleges that between November 2017 and February 2018, Nehrenheim and Hennessey spoke numerous times to attempt to find a solution to the dispute but never came to a resolution. On February 27, 2018, Hennessey sent Nehrenheim an email stating that if “the Council should not re-open the dining deck program and continue to see how it can be improved . . . [he would] have no alternative but to pursue whatever legal means at [his] disposal . . . .” Id., ¶30. In March 2018, Rebel Republic began putting up posters encouraging members of the public to contact Nehrenheim concerning the program. Id., ¶31. On March 13, 2018, Rebel Republic’s Instagram account began to tag cross-complainant. Id., ¶32. On April 17, 2018, Nehrenheim voted no on a motion to bring discussion on the program, and Mayor Brand vetoed the motion. Id., ¶33. On April 18, 2018, at a charity fundraiser at HT Grill, Hennessey angrily berated Brand and Nehrenheim for their votes, actions, and beliefs pertaining to the program. Id., ¶34.

The FACC further alleges that on May 7, 2018, Hennessey’s counsel sent a demand letter to Brand and Nehrenheim that they recuse themselves from votes and actions concerning the program. Id., ¶36. On May 23, 2018, Rebel Republic filed a lawsuit against Redondo Beach concerning the program. Id., ¶37. On June 10, 2018, Nehrenheim entered Hennessey’s Tavern and a manager informed him that he would have to leave after finishing his drink. Id., ¶38.

Defendant argues that the matter involves a private dispute between Nehrenheim and Hennessey’s owner and does not involve the type of fundamental personal characteristics or beliefs that the Act is designed to protect against arbitrary discrimination. Defendant argues that Nehrenheim was not disinvited because of his occupation as a politician, nor was he disinvited because he was a member of a particular political party, political ideology, associated with persons with a particular political ideology, or held any particular deep rooted political belief, or any belief fundamental to his character. Cross-defendant contends that it does not run afoul of the Act by disinviting a person who had financially harmed it.

In opposition, Nehrenheim argues that he is protected because of his political views. He contends that Hennessey viewed Nehrenheim as anti-development related to the business interests of Hennessey and that is why he was excluded from the premises.

Nehrenheim argues that he is protected because of “his political views, votes, association, political affiliation, and personal beliefs.” Both parties agree that Nehrenheim does not fall under the enumerated classifications as set forth under Civil Code §51(b). As to non-enumerated classifications, past decisions have extended Unruh Act protection to several classifications that are not specifically enumerated in the statute, but cross-complainant fails to cite to any case law that recognizes “political views” as a judicially-recognized classification.

In determining whether “a future claim of discrimination, involving a category not enumerated in the statute or added by prior judicial construction, should be cognizable under the Act,”—in this case, “political views”—there is a three-part analytic framework. Koebke v. Bernardo Heights Country Club (2005) 36 Cal. 4th 824, 840. “The [Supreme] court mandated inquiry into three areas: (1) the language and history of the Act; (2) any legitimate business interests justifying limitations on consumer access; and (3) the consequences of expanding class recognition.” King v. Hofer (1996) 42 Cal. App. 4th 678, 682 (citing to Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1148). “Thus, the first prong of the Harris inquiry is whether a new claim of discrimination under the Act is based on a classification that involves personal characteristics.” Koebke, supra, at 841. Although Harris did not define “personal characteristic,” the Harris court indicated that, “at a minimum, it encompassed both the categories enumerated in the Act and those categories added to the Act by judicial construction.” Id. at 842 (citation omitted). “What those categories have in common is not immutability, since some are, while others are not, but that they represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.” Koebke, supra, at 842-43. As plaintiff alleges, his “political views” involve his views on terminating the pilot program, which include such reasons as “unfair,” “would not be in the best interests of the community,” “costs on the community,” “lack of parking,” and that “sidewalk dining would become cost prohibitive for small businesses.” On their face, his “political views,” even if such reasons fall under “political,” do not “represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs, and self-definition.” Thus, the court concludes, “political” views are not a “personal characteristic.” As for a legitimate business interest, the Unruh Act does not cover business retaliation. See Gayer v. Polk Gulch, Inc. (1991) 231 Cal. App. 3d 515, 525, where the court held that a bar was entitled to exclude the plaintiff because he had recently filed a small claims action against it. See also Scripps Clinic v. Superior Court (2003) 108 Cal. App. 4th 917, 934 (upheld summary judgment to Unruh Act claim based on the plaintiff being banned from a medical clinic for previously suing its doctors for malpractice). Further, the consequences of expanding class recognition would be significant. Accordingly, the court declines to create a “new” classification.

As for “political affiliation,” there are no facts alleged to support a “political affiliation.”

Further, as for being banned from the restaurant because of his “votes,” voting falls under conduct rather than on his status as a member of a class or a personal characteristic. “Were we to hold that conduct involved here gave rise to a protected class under the Act, we would open the door to a seemingly endless stream of new cases never contemplated by the Legislature.” Gayer, supra, at 525. As for Nehrenheim exercising his constitutional rights of freedom of speech and petition, the Unruh Act does not protect. As stated in the prior demurrer ruling, “the First Amendment imposes limitations ‘on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.’” Hessians Motorcycle Club v. J.C. Flanagans (2001) 86 Cal. App. 4th 833, 839 n.2 (citation omitted).

The court thus finds that the allegations are insufficient.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

2nd cause of action for violation of Bus. and Prof. Code 17200

This cause of action is derivative of the 1st cause of action and predicated on violations of Unruh Civil Rights Act.

The demurrer is thus SUSTAINED WITHOUT LEAVE TO AMEND.

Motion to Strike

Cross-defendant request that the court strike paras. 11, 14, 15, 16, 17, and 18, and phrase “on his personal views and political beliefs, including” at page 5, lines 24-25, and phrase “on the basis of Cross-Complainant’s exercise of his constitutional rights of freedom of speech and petition” at page 7, lines 19-20.

Cross-defendant argues that paras. 14-18 are “mere recitations of incomplete portions of case law” and are therefore irrelevant legal conclusions.

Cross-defendant argues that para. 11 and part of para. 40 are “mere conclusions” and recitations of allegations that the court had already found insufficient to support an Unruh Act claim.

In opposition, Nehrenheim argues that it was necessary for him to plead case law because the Act itself does not enumerate political beliefs and affiliations. Further, he argues, the allegations of his personal views and political beliefs are the foundation of the claim.

In light of the ruling on the demurrer, the motion is MOOT.

Cross-defendant is ordered to give notice of the ruling.