Silk v. Feldman

208 Cal.App.4th 547 (2012)

549*549 Hanger, Steinberg, Shapiro & Ash, Jody Steinberg and Whitney L. Bost for Defendant and Appellant.

Lawrence C. Ecoff for Plaintiff and Respondent.

Summary by Mary M. Howell, Esq.:

Former director (plaintiff) sued defendant, a fellow homeowner, for defamation arising from multiple misstatements by defendant to other owners, regarding plaintiff’s acquisition of parking spaces from the association’s developer.  Defendant countered with an anti-SLAPP motion to strike.  While defendant urged that the statements were a proper exercise of free speech, the court nevertheless denied the motion to strike because plaintiff had made a proper showing that she was likely to succeed on her defamation claim, in that she demonstrated the true facts were contrary to defendant’s accusations, and defendant’s statements were not privileged.

**End Summary**

OPINION

GILBERT, P.J. —

Not all speech is free. Here, speech can be costly.

This is an appeal from the denial of a special motion to dismiss a complaint for libel and defamation. The motion was brought pursuant to Code 550*550 of Civil Procedure section 425.16, the strategic lawsuit against public participation (anti-SLAPP) statute.^[1] We affirm.

FACTS

The Malibu Bay Club is a 136-unit residential beachfront development in Ventura County. The development consists of 36 townhomes and 100 condominiums. All owners are members of a corporation homeowners association, the Malibu Bay Club (the Club). Some residents are also members of a separate homeowners association, the Malibu Bay Owners Association (MBOA).

Sherrill M. Silk and Phillip Feldman are owners and residents. Silk was on the Club’s board of directors from 1996 until 2000. Feldman has been a director since 2009.

In 1998, Montgomery Knox, the son of the Club’s developer, brought a quiet title action against the Club, its individual members and the MBOA, to establish his ownership to 36 parking spaces on the Club’s premises. In 1999, the trial court ruled Knox owned the parking spaces along with the right to use a portion of the Club’s common area known as the “sandbox.” The ruling prompted the Club and Knox to resolve the remaining issues through mediation. This resulted in a settlement in Knox’s favor in 1999.

Beginning in 1999, Knox offered the parking spaces for sale to the general public and members of the Club for $25,000 per space. When Silk purchased six parking spaces in December 2003, the price for the six spaces was $114,000 or $19,000 each. The purchase included an assignment of Knox’s rights to maintain the parking spaces, the right to gate entry cards and the right to require the Club to enforce its parking rules.

In response to requests for gate cards from people who own parking spaces, the Club’s board of directors sent an undated letter to its members. The letter stated thatSilk was “legal liaison” in the Knox settlement negotiations and that she purchased six parking spaces in consideration of $10.

On February 2, 2009, Silk’s attorney wrote the board demanding a retraction and threatening legal action. On March 7, 2009, the board sent a letter to its members. The letter stated that two other directors were with Silk on the committee that oversaw the Knox litigation, and that Silk purchased her six parking places for $114,000.

551*551 On June 2, 2009, Feldman wrote to the Club members on his law office letterhead to encourage the members to vote for him for the Club board. The letter stated that Silk was also running for the board. Feldman accused her of overseeing the Knox lawsuit so she could obtain parking spaces for her personal use.

On August 16, 2010, Feldman sent another letter to Club members. The letter was headed “Phil’s historical take on Malibu Bay Club, past, present, and future.” The letter spoke of a derivative action against the Club. The letter also stated in part: “As you know, Board Members, like any elected representatives, owe allegiance and loyalty to the people who elect them. They may not self-serve or `feather their own nest[.]’ Attorney Sher[r]ill Silk was on the Board and without the knowledge of the lawyers who settled the Knox matter, she and president Don Desfor cut secret deals to purchase nine parking spaces for themselves with manufactured rights to use our beach along with each space. They never revealed what they did and never apologized. Successive `friendly’ Boards kept their secret for a decade.”

On October 5, 2010, Silk filed the instant complaint for defamation and libel per se. The complaint was based on the above quoted paragraph from Feldman’s letter of August 16, 2010.

Feldman moved to dismiss under the anti-SLAPP statute. Feldman’s motion claimed his publication is protected under section 425.16, subdivision (e)(2) as a statement made in connection with an issue under consideration by a judicial body; subdivision (e)(3) as a statement made in a public forum in connection with an issue of public interest; and subdivision (e)(4) other conduct in furtherance of the right of free speech.

In opposition to the motion, Silk disputed that Feldman’s statement qualified as an exercise of the rights of petition or free speech under section 425.16, subdivision (e).Silk also submitted declarations in support of her claim that she has a probability of prevailing in her complaint.

Silk’s Declaration

Silk declared that she and two other board members served on a committee to attend mediation sessions with legal counsel in the Knox litigation. Both homeowners associations were represented by independent counsel. In addition, a separate law firm represented the individual homeowners. All members of both homeowners association boards approved the settlement agreement. Silk said she never had any agreement of any kind with Knox before or during the litigation. She never had any agreement with Desfor concerning the parking spaces.

552*552 Knox made the parking spaces available for sale to Club members and the general public beginning January 2000. In November 1999, Silk received a letter from Knox sent to all Club members, as well as a flier inserted in the local Malibu newspaper advertising the spaces for sale. The letter and flier are attached as exhibits to Silk’s declaration.

In December 2003, Silk’s husband asked her to sign a purchase agreement for six parking spaces he was purchasing for her as a Christmas present. The price was $114,000. The purchase included an assignment of rights Knox had acquired by the settlement. A copy of the assignment was given to the Club’s board in June 2005 and the purchase agreement in March 2009. The board published the documents by mail to the entire membership. Silk received a copy of Feldman’s letter shortly after August 16, 2010.

Desfor’s Declaration

Donald Desfor was president of the Club’s board at the time of the Knox litigation. He declared that the settlement agreement was negotiated by two law firms representing the Club and MBOA, and a representative of State Farm, and was directed by a mediator. Full disclosure to the members was made at numerous meetings, in letters and in a community newsletter. Board members were urged to settle by State Farm, the mediator and the lawyers. The board took a survey of the homeowners and a large majority wished to settle. The entire settlement process was run by the lawyers with input from State Farm.

Silk’s husband and another Club member also submitted declarations supporting statements made by Silk and Desfor.

The trial court denied Feldman’s motion. The court found the alleged defamation was not an exercise of the right of petition or free speech.

DISCUSSION

I

Section 425.16, subdivision (b)(1) states: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

553*553 (1) Subdivision (b)(1) of section 425.16 requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing the challenged cause of action arises from the defendant’s exercise of his rights of petition or free speech. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186 [6 Cal.Rptr.3d 494].) If the court finds the defendant has made such a showing, it must then determine whether the plaintiff has demonstrated a probability of prevailing. (Ibid.)

Our review of the trial court’s decision on the motion is de novo. (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 [113 Cal.Rptr.2d 625].)

II

Feldman contends his statements were an act of free speech as defined in section 425.16, subdivision (e)(3) and (4).

(2) Section 425.16, subdivision (e)(3) and (4), provides that an act in furtherance of a person’s right of free speech includes “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or … any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Courts have recognized a homeowners association functions as a quasi-governmental entity, paralleling the powers and duties of a municipal government. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475 [102 Cal.Rptr.2d 205].) Thus a newsletter circulated by some members of a homeowners association was deemed a “public forum” within the meaning of section 425.16, subdivision (e)(3) (Damon, supra, at p. 476.)

It requires no leap of logic to conclude that statements made in a letter critical of the actions of a homeowners association director may also qualify as free speech within the meaning of section 425.16, subdivision (e)(4). Certainly, if an official of a city government engaged in the conflict of interest alleged in Feldman’s letter, it would be a matter of public interest. Treating a homeowners association in the same manner as a municipal government could reasonably lead to the conclusion that Feldman’s letter constituted free speech in connection with an issue of public interest as specified in section 425.16, subdivision (e)(4).

(3) We need not, however, make a definitive determination whether Feldman’s accusations against Silk constitute an exercise of free speech 554*554 within the meaning of section 425.16, subdivision (e)(3) or (e)(4). Assuming the accusations in Feldman’s letter constitute such an exercise, Silk has carried her burden of showing a probability of prevailing in the action.

III

Feldman contends Silk has failed to demonstrate a probability of prevailing on her claim.

(4) In determining whether the plaintiff has demonstrated a probability of prevailing, the court does not determine credibility or weigh the evidence. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [12 Cal.Rptr.3d 786].) Instead, the court accepts as true the evidence favorable to the plaintiff. (Ibid.) The court views the defendant’s evidence only to determine if it has defeated the plaintiff’s evidence as a matter of law. (Ibid.)

Silk argues we should not consider material Feldman submitted to the trial court in reply to her opposition to the motion. She claims Feldman’s reply contains new arguments and evidence to which she did not have an opportunity to respond. Because we determine Feldman’s reply cannot as a matter of law defeat the evidence Silk submitted, the argument is moot. Silk’s motion to augment the record with her ex parte motion to strike Feldman’s reply therefore is denied as moot.

Here Silk’s evidence demonstrates Feldman’s allegations against her are false. She did not control the outcome of the Knox litigation; she made no agreement with Knox before or during the litigation; the parking spaces were offered for sale to all association members as well as members of the public; she did not purchase the parking spaces until years after the Knox litigation was settled, when she was no longer a member of the board; and she paid a substantial amount for the parking spaces. Any reasonable trier of fact who found Silk’s evidence credible would conclude she engaged in no wrongdoing. Feldman points to no evidence that would defeat Silk’s evidence as a matter of law.

Feldman argues he does not have to justify every word of the defamatory charge, it is sufficient if he can justify the substance or gist of the charge. (Citing Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 28 [53 Cal.Rptr.3d 752].) But the substance or gist of Feldman’s charge is that Silk used her position as a Club official to settle a lawsuit against the Club so that she could obtain free parking spaces. Silk’sevidence demonstrates the charge is false.

(5) Feldman argues the defamation is privileged under Civil Code section 47, subdivision (b). Section 47, subdivision (b) protects as privileged any publication 555*555made in a judicial proceeding. The privilege is not limited to statements made during trial, but may extend to steps taken prior to or after trial. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 485 [99 Cal.Rptr.3d 394].) Feldman points out that his letter mentions an ongoing “`derivative'” lawsuit by some members against the Club, as well as the possibility of an action for the involuntary dissolution of the Club.

(6) A four-part test determines whether a statement is within the litigation privilege. “To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation’s objects, and (4) have some logical connection or relation to the proceeding. [Citation.]” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [100 Cal.Rptr.2d 602].)

Feldman argues “[t]he statement at issue was directly related to [the derivative] litigation, as it described alleged misconduct by previous Board members that impacted the current Board members and was presently causing conflict in and among the homeowners.”

Feldman’s argument fails to explain how the allegations against Silk “aim to achieve the litigation’s objects.” (O’Keefe v. Kompa, supra, 84 Cal.App.4th at p. 134.) As a member of the board, Feldman’s aim in the derivative litigation should be to obtain a resolution favorable to the Club. It is hard to imagine anything more contrary to that objective than a letter cataloguing the board’s alleged malfeasance.

Nor does Feldman explain the logical connection between the allegation Silk unlawfully obtained parking spaces and the derivative litigation. The statement that the misconduct “impacted the current Board members and was presently causing conflict in and among the homeowners” is too vague to provide the required connection.

The allegation against Silk was not privileged under Civil Code section 47, subdivision (b).

(7) Feldman argues for the first time on appeal that Silk is a quasi-public person. Points not raised in the trial court may not be raised for the first time on appeal. (Degnan v. Morrow (1969) 2 Cal.App.3d 358, 366 [82 Cal.Rptr. 557].)

(8) Feldman argues that Silk did not show she was damaged. “Where the statement is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 541, p. 794.) Feldman’s letter on its face 556*556 accused Silk of a serious breach of fiduciary duty. That is libelous per se. Silk need not show damages. In the absence of proof of actual damages, nominal damages are awarded. (See Triton Ins. Underwriters v. National Chiropractic Ins. Co. (1965) 232 Cal.App.2d 829, 831, 838 [43 Cal.Rptr. 504] [affirming award of $1 and costs in the absence of proof of damages].)

IV

Silk seeks sanctions for a frivolous appeal.

(9) Sanctions for prosecuting a frivolous appeal should be used sparingly to deter only the most egregious conduct. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651 [183 Cal.Rptr. 508, 646 P.2d 179].) Although Feldman’s appeal lacks merit, it does not constitute such egregious conduct that sanctions are warranted.

The judgment (order) is affirmed. Costs on appeal are awarded to Silk.

Yegan, J., and Perren, J., concurred.

[1] All statutory references are to the Code of Civil Procedure unless stated otherwise.

Keywords: Anti-SLAPP Motions, Defamation

Prindable v. Association of Apartment Owners of 2987 Kalakaua

304 F.Supp.2d 1245 (2003)

1246*1246 1247*1247 Brian G. Shaughnessy, Honolulu, HI, for Timothy Prindable, John Dubois, plaintiffs.

Lissa H. Andrews, Andrews & Yamamoto, Honolulu, HI, for Association of Apartment Owners of 2987 Kalakaua, a domestic nonprofit corporation, Certified Management, Inc., a domestic corporation, Lois Cain, Stacy Tokairin, Suzanne Macgill, John Does 1-10, Doe Partnership, Doe Corporations, or Other Entities 1-10, defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

KAY, District Judge.

Summary by Mary M. Howell, Esq.:

Disabled owner’s cause of action for breach of the Fair Housing Act fails due to lack of adequate evidence of the necessity of an emotional support animal, or that animal was trained to provide such support.  [NOTE:  This Hawaii decision was issued prior to HUD’s 2013 clarification of the role and status of emotional support animals, which provides inter alia that such an animal is not a “pet,” but an animal which provides assistance with disability-related functions, and that assistance can include “providing emotional support to persons with disabilities who have a disability-related need for such support.”]

**End Summary**

BACKGROUND

This matter comes before the Court on Defendants Association of Apartment Owners of 2987 Kalakaua, Certified Management, Inc., Lois Cain, Suzanne MacGill and Stacy Tokairin’s (collectively “Defendants”) Motion for Summary Judgment, filed May 8, 2003 (“MSJ”). Plaintiffs Timothy Prindable and John Dubois (collectively “Plaintiffs”) filed a Memorandum in Opposition to Defendants’ Motion for Summary Judgment on May 29, 2003 (“Memo in Opp.”).^[1] Plaintiffs filed a Motion for Temporary Restraining Order on June 3, 1248*1248 2003 (“Motion for TRO”).^[2] The Court heard both motions on June 16, 2003. For the following reasons, the Court GRANTS in part and DENIES in part summary judgment in favor of Defendants and DENIES Plaintiffs’ Motion for TRO.

I. Factual History

A. Ownership Dispute

Plaintiff John Dubois asserts an ownership interest in unit 102 of the condominium project known as the “2987 Kalakaua,” (Declaration of John Dubois “Dubois Decl.” ¶ 4),^[3] a residential apartment complex located at 2987 Kalakaua Avenue.^[4]Defendants offer evidence showing that the AOAO foreclosed on a statutorily-created lien held against unit 102.^[5] (Defendants’ Ex. 2). According to a quitclaim deed executed on July 16, 2001, the AOAO purchased unit 102 for the sum of one dollar at public auction conducted on July 13, 2001. Id. The deed is recorded with the bureau of conveyances. Id.

Following the sale, Dubois refused to vacate and filed a state court action on August 14, 2001, to contest the validity of the non-judicial foreclosure. (Dubois Decl. ¶ 18). For its part, the AOAO brought a Complaint for Ejectment against Dubois on September 7, 2002. The actions were consolidated with two additional matters^[6] and set for trial on September 1, 2003, before the Honorable Gary W.B. Chang.

B. Application of the 2987 Kalakaua Bylaws

Interesting as the foregoing issues may be, the instant case does not directly concern whether the AOAO or Dubois holds 1249*1249 title to unit 102. This action instead arises from a lengthy dispute over the application of article VI, § 11 of the bylaws for the 2987 Kalakaua. That provision provides:

No animals, noisy birds, or reptiles shall be permitted on the premises, except that qualified individuals with disabilities may have assistance animals. Such animals shall be required to conform to appropriate behavior standards established by the board and shall be removed if they disturb the quite enjoyment of other residents. A disabled resident must provide appropriate medical documentation justifying the need for the assistance animal before bringing it onto the project.^[7]

(Defendants’ Ex. 1).

1. Dubois’ Exemption Request

On January 12, 2000, Dubois — then the undisputed owner of unit 102 — presented the AOAO with an open letter from Brian O’Connor, M.D. (Affidavit of Lois Cain “Cain Aff.” ¶ 5). The letter was dated May 22, 1999, and stated that Dr. O’Connor saw Dubois as a patient on May 21, 1999, at which time Dubois described “a situation in his apartment building that causes him to reasonably be concerned about his personal safety. He believes that his personal safety will be improved if he were to have a dog…. Please allow him to have a dog for his personal safety.” (Defendants’ Ex. 3).

Concurrent with his submission of Dr. O’Connor’s letter, Dubois brought an English Bulldog named “Einstein” into unit 102. (Cain Aff. ¶ 6). The AOAO reviewed Dubois’ request and through its agent, Defendant Certified Management, Inc. (“CMI”), notified Dubois that “`personal safety’ is not a valid justification for approval.” (Plaintiffs’ Ex. 68); (Defendants’ Ex. 4). The AOAO subsequently informed Dubois that Einstein must be removed unless Dubois properly documented his medical condition and requested a reasonable accommodation. (Plaintiffs’ Ex. 40). Dubois did not accede.

On June 3, 2000, Dubois asked to have his request for an exemption reexamined based solely on the May 22, 1999 letter from Dr. O’Connor. Dubois suggested that the board misinterpreted Dr. O’Connor’s diagnosis. According to Dubois, Dr. O’Connor recommended that Dubois be allowed to keep a dog to “cope with the stress, poor sleep patterns[ and] problematic aliments” resulting from trauma from an earlier assault. (Defendants’ Ex. 9).

An attorney for the AOAO, John Morris, Esq., wrote to Dr. O’Connor for additional information regarding Dubois medical condition. Dr. O’Connor was asked to provide an explanation (1) of the nature of Dubois disability and “why that disability requires him to have a pet”; and (2) as to why allowing Dubois to have a pet is “a reasonable accommodation for his disability.” (Defendant’s Ex. 10). Mr. Morris stated that the information received would be confidential and “reviewed only by the board and manager and not distributed to the other residents of the project or anyone else, unless required by law.” Id. Dr. O’Connor did not reply and no further action was taken on Dubois’ request.

2. Prindable’s Exemption Request

On May 17, 2000, Plaintiff Timothy Prindable, Dubois roommate and partner, submitted a note handwritten on a prescription pad from the Waikiki Health Center.^[8]The note read, “Prindable has a 1250*1250 medical illness for which a dog is necessary for his improvement.” (Cain Aff. ¶ 8); (Defendants’ Ex. 5); (Plaintiffs’ Exs. 1, 3). By letter dated May 18, 2000, CMI informed Dubois that the foregoing note was “not an acceptable certification for approval to possess a pet,” and that Dubois should “submit an original letter from [his] physician,” which “states the nature of the `medical illness’ or disability[ ] and how a pet would alleviate the effects of this handicap.” (Defendants’ Ex. 6).

In response, Dubois submitted two documents: the first — a letter directed to the AOAO Board of Directors and signed by Dubois and Prindable — notified the board that Dubois had spoken with the Hawaii Civil Rights Commission (“HCRC”) and believed he was “not obligated … to disclose the nature of [his] illness to a condominium association.” (Defendants’ Ex. 7). The second document was a letter to CMI and its president, Defendant Lois Cain, from Dr. Kalauawa. The letter from Dr. Kalauawa, dated May 31, 2000, repeated that Prindable “has a medical illness for which a dog is necessary for his improvement” but contained no further details. Id.

Mr. Morris wrote to Dr. Kalauawa on June 2, 2000, for more information concerningPrindable’s request for a pet exemption. Specifically, Mr. Morris requested (1) confirmation that Prindable is a patient of Dr. Kalauawa; (2) information regarding Dr. Kalauawa’s practice and medical licensing; (3) an explanation of the nature of Prindable’s disability and “why that disability requires [Prindable] to have a pet”; and (4) a statement that allowing Prindable to have a pet is a reasonable accommodation for his disability.” (Defendants’ Ex. 8). Mr. Morris assured Dr. Kalauawa that the information provided would be kept confidential. Id. Mr. Morris repeated his request to Dr. Kalauawa by letter dated June 20, 2000. (Defendant’s Ex. 11). Dr. Kalauawa did not reply.

On June 21, 2000, Geraldine Boyd, a behaviorist with the Kaiser Honolulu Medical Clinic (“Kaiser”), notified CMI by letter that Prindable had been under her care since May 25, 2000. (Plaintiffs’ Ex. 4); (Defendants’ Ex. 12). Based on an admittedly brief assessment, Ms. Boyd’s clinical impression was that Prindable described symptoms of depression, and that a pet would “have a positive impact on [Prindable’s] condition and a separation from his pet would exacerbate his condition. Continued medical, diagnostic, and behavioral health treatment, along with animal assisted therapy[,] are recommended for his improvement.” Id. Ms. Boyd’s diagnosis and recommendation were subsequently supported by Mark Lum, M.D., of Kaiser.^[9](Plaintiffs’ Exs. 7,8); (Defendants’ Exs. 13, 15).

1251*1251 Mr. Morris notified Prindable on July 18, 2000, that the AOAO Board of Directors would review Prindable’s request for a reasonable accommodation at its regularly scheduled meeting in early August. (Plaintiffs’ Ex. 18); (Defendants’ Ex. 14). Pursuant to the terms of the letter, Prindable was granted permission to house Einstein in unit 102 until the board formally considered the matter, provided that Prindable agreed (1) to take full responsibility for Einstein; (2) not to permit Einstein to defecate or urinate at the complex; (3) not to permit Einstein to disrupt the quiet enjoyment of other tenants; (4) not to wash Einstein in the shower provided for residents; (5) not to permit Einstein to go into the laundry room or to stand on the common area furniture; (6) to keep Einstein within unit 102 or within the limited common yard area of the unit at all times; (7) to use the shortest possible route when taking Einstein to and from the unit, that is, through the pedestrian entrance and exit of the garage; and (8) not to walk Einstein on the project grounds or common areas, except when taking him to and from the unit. Id. Prindable agreed to these conditions.

Shortly thereafter, Prindable filed an HCRC housing discrimination complaint against the AOAO, Defendant Stacey Tokairin, community association manager for CMI, and the president of the AOAO. (Plaintiffs’ Ex. 56); (Defendants’ Ex. 16). The Complaint alleged that respondents had failed to make a reasonable accommodation for Prindable in light of his handicap. Id.; see also Declaration of Timothy Prindable(“Prindable Decl.”) ¶ 21.^[10]

On August 10, 2000, CMI informed Dubois and Prindable that the AOAO Board of Directors had reviewed Prindable’s reasonable accommodation request and granted a temporary exemption from article VI, § 11, with final approval contingent on the outcome of the above-mentioned HCRC investigation. (Plaintiffs’ Ex. 19); (Defendant’s Ex. 17). Dubois and Prindable were reminded that the accommodation was subject to the rules stated in Mr. Morris’ July 18, 2000 letter. Id.

C. HCRC Investigation

As part of the HCRC review process, investigator Stephen K.L. Chang requested an interview with Dr. Lum “concerning [Prindable’s] medical condition in general and in particular concerning the `reasonable accommodation’ letters he provided for you on June 29, 2000 and August 5, 2000.” (Plaintiff’s Ex. 14). Dr. Lum was interviewed on September 20, 2000.^[11] (Plaintiffs’ Ex. 15).

William P. Sheehan, M.D., a doctor with Kaiser, contacted Mr. Chang by letter dated September 28, 2000. The letter stated that Prindable “has been diagnosed with major depression, recurrent type, and anxiety. These conditions have been disabling to him, he has been unable to work, and he has severe symptoms as a result of this disability.” (Plaintiffs’ Ex. 9); (Defendants’ Ex. 18). The letter also disclosed thatPrindable had been in treatment at Kaiser since 1997, and that Dr. Sheehan expected the treatment to continue indefinitely. Id. Dr. Sheehan did not discuss animal-assisted therapy.

In early 2001, Dr. Sheehan wrote a similar letter to Judith Taylor, an advocate with the Hawaii Disability Rights Center. Unlike his earlier letter to Mr. Chang, Dr. Sheehan was quite clear about the benefits 1252*1252 of animal companionship. Specifically, Dr. Sheehan stated, “Mr. Prindable is at risk of deteriorating social function. Animal-assisted therapy, animal-assisted activities, and human-animal interaction reduce the risk of deteriorating social function, and reduce the risk of social withdrawal and isolation. With the assistance of a companion animal, [Prindable] will be able to function and manage the symptoms of his disability and functional impairment.” (Plaintiffs’ Ex. 10); (Defendants’ Ex. 19). Dr. Sheehan did not, however, identify Einstein as individually trained to provide such benefits. See id.

The record contains little additional evidence concerning the HCRC investigation.^[12]On May 13, 2002, the HCRC advised Prindable that Mr. Chang recommended closure of the action — effective the date of the notice — because Prindable had voluntarily withdrawn his complaint and elected court action. (Defendants’ Ex. 20). The notice further informed Prindable that he had ninety days to file a private lawsuit against respondents in Hawaii State Circuit Court. Id.

D. Other Factual Developments

Prindable, Dubois and Einstein continue to reside in unit 102. Presumably, they do so in accordance with the rules listed in the letters of July 18, 2000, and August 10, 2000, including the direction that Dubois and Prindable use “the shortest possible route” when taking Einstein to and from the unit. (Prindable Decl. ¶ 21). Prindableclaims to have fallen while taking this route on January 29, 2002, and again on January 3, 2003. (Prindable Decl. ¶ 23); (Plaintiffs’ Ex. 23). Timothy Broker, M.D., of the Lokahi Counseling Center, drafted an open letter to this effect on October 29, 2002.^[13]

Mr. Morris contacted Dr. Broker by letter dated January 29, 2003. (Plaintiffs’ Ex. 73). Mr. Morris acknowledged Dr. Broker’s October correspondence and reiterated that Prindable continued to enjoy an exemption from article VI, § 11, pending confirmation of his disability. Id. As to Dr. Broker’s request, Mr. Morris suggested that when Prindable feels dizzy, Dubois take Einstein using the “shortest possible route,” while Prindable uses the “easiest exit” and meets the pair in front. Id. Dr. Broker did not reply.

II. Procedural History

Plaintiffs filed the present action on August 9, 2002. The Complaint presented a litany of claims, and Plaintiffs prayed for compensatory and punitive damages, as well as declaratory and injunctive relief.^[14] On May 8, 2003, Defendants moved for summary judgment as to all causes of action alleged in the Complaint.^[15] Plaintiffs 1253*1253 filed their opposition on May 29, 2003, and a Motion for TRO on June 3, 2003. The Court heard both motions on June 16, 2003.

STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”^[16] Fed.R.Civ.P. 56(c).

“A fact is `material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'”^[17] Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir.2002)(quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir.1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may do so with affirmative evidence or by “`showing’ — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party.See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). So, too, the Court’s role is not to make credibility assessments.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51, 106 S.Ct. 2505.

Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S.1254*1254 at 322-23, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348;California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

DISCUSSION

I. The Fair Housing Act

The 1988 amendments to the Fair Housing Act (“FHA”), codified at 42 U.S.C. §§ 3601 to 3631, make it unlawful to “discriminate against any person … in the provision of services or facilities in connection with [his] dwelling, because of a handicap” of that person or any person associated with that person. See 42 U.S.C. §§ 3604(f)(2), 3604(f)(2)(A), 3604(f)(2)(C) (1994). “Discrimination” includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford [a handicapped] person equal opportunity to use and enjoy the dwelling.” 42 U.S.C. § 3604(f)(3)(B) (1994). The FHA does not, however, “extend a preference to handicapped residents,” United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1418 (9th Cir.1994), and, therefore, “accommodations that go beyond affording a handicapped [person] `an equal opportunity to use and enjoy a dwelling’ are not required by the Act.” Hubbard v. Samson Management Corp., 994 F.Supp. 187, 191 (S.D.N.Y.1998)(quoting Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 605 (4th Cir.1997)).

Persons wrongfully denied a reasonable accommodation have recourse in state or federal court. 42 U.S.C. § 3613(a)(1)(A) (1994). To prevail on a claim for failure to make a reasonable accommodation, the plaintiff must establish (1) that he or an associate of his is handicapped within the meaning of § 3602(h) and, that the defendant knew or should have known of this fact; (2) that an accommodation may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (3) that such accommodation is reasonable; and (4) that the defendant refused to make the requested accommodation.^[18] See 42 U.S.C. 3604(f)(3)(B); California Mobile Home II, 107 F.3d, at 1380; Janush v. Charities Housing Dev. Corp., 169 F.Supp.2d 1133, 1135 (N.D.Ca.2000); In re Kenna Homes Coop. Corp., 210 W.Va. 380, 557 S.E.2d 787, 794 (2001); Bryant Woods Inn, 124 F.3d at 603. This “inquiry is highly fact-specific, requiring case-by-case determination.”California Mobile Home, 29 F.3d at 1418.

A. Evidence of Handicap

Plaintiffs must first show that either Dubois or Prindable is “handicapped,” and that Defendants knew or reasonably should have known of this fact. See 42 U.S.C. § 3604(f)(3)(B); California Mobile Home II, 107 F.3d at 1380; In re Kenna Homes, 557 S.E.2d at 794. The term “handicap” is defined by statute as “(1) a 1255*1255 physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment.” 42 U.S.C. § 3602(h) (1994). Accompanying regulations interpret “physical or mental impairment” to include “Human Immunodeficiency Virus infection” (“HIV”) and any “mental or psychological disorder,” such as “emotional illness.” 24 C.F.R. § 100.201 (2002). Finally, “major life activities” means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Hall v. Meadowood Limited P’ship, No. 99-17122, 7 Fed.Appx. 687, 689, 2001 U.S.App. Lexis 5718, at *2 (9th Cir. March 28, 2001) (citing 24 C.F.R. § 100.201(b)) (pursuant to Rule 36-3(a) of the Ninth Circuit Rules, the Court is not relying on this unpublished opinion for authority).

There is no evidence that would lead a reasonable jury to conclude that Dubois is handicapped within the meaning of § 3602(h) or, assuming Dubois is handicapped, that Defendants knew of this fact. See Hall, 7 Fed.Appx. 687, 690, 2001 U.S.App. Lexis 5718, at 3; Hughes v. Housing Management Serv., No. 99-3503, 2000 WL 518103, **1-2, 2000 U.S.App. Lexis 8499, at *4-5 (7th Cir. April 14, 2000). Without such evidence, Dubois is not entitled to a reasonable accommodation under § 3604(f)(3)(B) and the inquiry need go no further. See 42 U.S.C. § 3604(f)(2).

There is evidence, however, that would enable a reasonable jury to conclude Prindable is handicapped within the meaning of § 3602 and that Defendants knew of his handicap. Specifically, Ms. Boyd’s letter of June 21, 2000, opines that Prindabledescribed symptoms of depression, (Defendants’ Ex. 12), and Dr. Lum concurred with Ms. Boyd’s evaluation in letters dated June 29, 2000, (Defendants’ Ex. 13), and August 5, 2000. (Defendants’ Ex. 15). In addition, Dr. Sheehan’s letters of September 28, 2000, and February 13, 2001, identify Prindable as suffering from a mental dysfunction that impairs his ability to work.^[19] (Defendants’ Exs. 18, 19). These letters were submitted to the AOAO. Finally, Prindable avers that he has HIV,^[20]depression and anxiety, and that he has been unable to work.^[21] (Prindable Decl. ¶¶ 1, 2). Although insufficient to establish that Prindable is handicapped within the meaning of § 3602(h), the evidence, taken together, creates a genuine issue of material fact as to Prindable’s condition and the AOAO’s knowledge of the same.^[22]

1256*1256 B. Necessity of the Accommodation

The second element of an FHA claim directs Plaintiffs to show that the requested accommodation is necessary to afford Prindable an equal opportunity to use and enjoy unit 102 of the 2987 Kalakaua. See 42 U.S.C. § 3604(f)(3)(B); see alsoHubbard, 994 F.Supp. at 190; Trovato v. City of Manchester, 992 F.Supp. 493, 497 (D.N.H.1997); Anast, 956 F.Supp. at 801. In other words, Plaintiffs must demonstrate that preventing Prindable from housing Einstein in unit 102 “causes the denial” of Prindable’s right to equal “use and enjoyment” of unit 102. See Bryant Woods Inn,124 F.3d at 604; California Mobile Home II, 107 F.3d at 1380; In re Kenna Homes,557 S.E.2d at 794.

In certain circumstances, service animals may be necessary accommodations. SeeBronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995); California Mobile Home, 29 F.3d at 1417; Fulciniti v. Village of Shadyside Condo. Ass’n, Civ. No. 9601825, 1998 U.S. Dist. Lexis 23450, at *14 (W.D.Pa.1998 Nov. 20, 1998). The term “service animal” is not defined by the FHA or the accompanying regulations, but it is understood for purposes of the Americans with Disabilities Act of 1990 (“ADA”) to include “any guide dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability ….”^[23] 28 C.F.R. § 36.104 (2002). This description comports with the example of a reasonable accommodation for a blind rental applicant provided by the agency regulations to the FHA, see 24 C.F.R. § 100.204(b) (2002), and with case law. See Bronk, 54 F.3d at 429; Green v. Housing Auth. of Clackamas, 994 F.Supp. 1253, 1256 (D.Or.1998); In re Kenna Homes, 557 S.E.2d at 796-97. The Court agrees with and adopts the ADA definition for purposes of the reasonable accommodation requirement of § 3604(f)(3)(B).

Plainly, most animals are not equipped “to do work or perform tasks for the benefit of an individual with a disability.” See Bronk, 54 F.3d at 429 n. 6. There must instead be something — evidence of individual training — to set the service animal apart from the ordinary pet. See id.; Fulciniti, 1998 U.S. Dist. Lexis 23450, at *6-8; Green, 994 F.Supp. at 1256; In re Kenna Homes, 557 S.E.2d at 797. The primary handicap at issue in this case is mental and emotional (specifically, depression, anxiety and dizziness) rather than physical in nature. It therefore follows that the animal at issue must be peculiarly suited to ameliorate the unique problems of the mentally disabled.See Proffer v. Columbia Tower, No. 98-CV-1404-K (AJB), 1999 U.S. Dist. Lexis 16676, at *18-19 (S.D.Cal. March 4, 1999); Green, 994 F.Supp. at 1255. This is not a taxing requirement, however, and there are no federally-mandated animal training standards. See Green, 994 F.Supp. at 1255-56.

Prindable avers that “Einstein has been individually trained to provide emotional support[ ] and to alert me to any unusual circumstances.” (Prindable Decl. ¶ 54);see also id. ¶¶ 7, 19. The record contains no additional admissible evidence of Einstein’s qualifications as a trained service animal.^[24] Indeed, in response to questions from the Court, Plaintiffs’ counsel acknowledged that Einstein is not individually trained and possesses no abilities 1257*1257 unassignable to the breed or to dogs in general.^[25]

“Obviously, a dog cannot acquire discernable skills as a service dog without some type of training.” In re Kenna Homes, 557 S.E.2d at 797. Unsupported averments from Prindable and slight anecdotal evidence of service are not enough (particularly in light of counsel’s candid admission) to satisfy Plaintiffs’ burden in opposition to summary judgment. Cf. In re Kenna Homes, 557 S.E.2d at 798. Plaintiffs needed something more — an affidavit detailing Einstein’s training, a declaration from Einstein’s veterinarian or a certificate from any licensed training school — to survive summary judgment. See id. at 797. Again, this is not a heavy burden. But the Court has searched the record and finds nothing that would lead a reasonable jury to conclude that Einstein is an individually trained service animal.

It also remains whether the AOAO’s refusal to allow an exemption from article VI, § 11 caused Prindable to be denied equal use and enjoyment of unit 102. See California Mobile Home II, 107 F.3d at 1380. There is little evidence going to this question, but it follows that if there is no genuine issue of material fact as to whether Einstein is an individually trained service animal capable of assisting Prindable in a relevant way, there is likewise no genuine of issue of material fact as to whether the accommodation is necessary. In other words, if Einstein is not a proper service animal (as opposed to a pet), an exemption from article VI, § 11 for Einstein is not necessary to afford Prindable an equal opportunity to use and enjoy the dwelling.

C. Reasonableness of the Accommodation

The third element requires Plaintiffs to show that the requested accommodation is reasonable. See 42 U.S.C. § 3604(f)(3)(B); In re Kenna Homes, 557 S.E.2d at 794. A reasonable accommodation “can involve changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual.”Hubbard, 994 F.Supp. at 189 (quoting Proviso Assoc. of Retarded Citizens v. Village of Westchester, 914 F.Supp. 1555, 1562 (N.D.Ill.1996)); accord Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995). But there is no “obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.” Bronk, 54 F.3d at 429. Accordingly, a necessary accommodation will typically be considered reasonable “when it imposes no undue financial or administrative hardships on the defendant … and when it does not undermine the basic purpose of the [challenged] requirement.” Hubbard, 994 F.Supp. at 190 (alteration in original) (quoting Proviso Assoc., 914 F.Supp. at 1562).

In most circumstances, waiving a no-pet rule to allow a disabled resident the assistance of a service animal is a reasonable accommodation.^[26] See Bronk, 54 F.3d at 429; Fulciniti, 1998 U.S. Dist. Lexis 1258*1258 23450, at *6-14; Green, 994 F.Supp. at 1255. Article VI, § 11 contemplates such an allowance for service animals, (Defendants’ Ex. 1), and Defendants have not produced evidence showing a departure from that practice is warranted in this case.

D. Refused to Make the Requested Accommodation

The final element is, of course, that the defendant refused to make the requested accommodation. See 42 U.S.C. § 3604(f)(3)(B); 42 U.S.C. §§ 3613(a)(1)(A), 3613(c)(1); California Mobile Home II, 107 F.3d at 1380. “[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person … wants such an accommodation made.” Gavin v. Spring Ridge Conservancy, Inc.,934 F.Supp. 685, 687 (D.Md.1995). Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs’ request, Bryant Woods Inn, 124 F.3d at 602, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law. See In re Kenna Homes, 557 S.E.2d at 796-99. Once allowed that opportunity, “`a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.'” Groome Resources Ltd., LLC v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir.2000). (quoting Bryant Woods Inn, 124 F.3d at 602).

Until an accommodation request is denied, there is no discrimination under § 3604(f)(3)(B). See 42 U.S.C. § 3604(f)(3)(B); Groome Resources, 234 F.3d at 199; Bryant Woods Inn, 124 F.3d at 602. Unless there is or is about to be an occurrence of discrimination, there is no cause of action. See 42 U.S.C. § 3613(c)(1). The denial can be either actual or constructive, “as an indeterminate delay has the same effect as an outright denial.” Groome Resources, 234 F.3d at 199.

Prindable requested an accommodation concurrently with his submission of the first documents to the AOAO — Dr. Kalauawa’s handwritten note dated May 17, 2000, and brief letter to the AOAO dated May 31, 2000. These documents were of limited value to Defendants.^[27] So, too, Ms. Boyd’s letter to CMI of June 21, 2000, (Defendants’ Ex. 12), did not provide a basis from which Defendants could conclude that Prindable was entitled to house Einstein in unit 102 as a reasonable accommodation for his disability. Dr. Lum’s letters of June 29, 2000, and August 5, 2000, are similarly deficient.^[28] See Hall, 7 Fed. 1259*1259 Appx. 687, 689, 2001 U.S.App. Lexis 5718, at 3; Hughes, 2000 WL 518103, *2, 2000 U.S.App. Lexis 8499, at *4-5;Bronk, 54 F.3d at 429; Sporn v. Ocean Colony Condo. Ass’n, 173 F.Supp.2d 244, 250 (D.N.J.2001); In re Kenna Homes, 557 S.E.2d at 798-99.

“In order to show that the disabled person needs the assistance of a service animal … it is reasonable to require the opinion of a physician who is knowledgeable about the subject disability and the manner in which a service dog can ameliorate the effects of the disability.” In re Kenna Homes, 557 S.E.2d at 799. The foregoing letters do not provide a basis from which Defendants could make this determination. Accordingly, Defendants had no meaningful opportunity to consider Prindable’srequest for a reasonable accommodation before Mr. Morris’ July 18, 2000 letter granting a temporary exemption.^[29] Nor is a period of less than two months from the first request for an accommodation an “indeterminate delay” under the circumstances. Cf. Hall, 7 Fed.Appx. 687, 689, 2001 U.S.App. Lexis 5718, at * 3;Hughes, 2000 WL 518103, *2, 2000 U.S.App. Lexis 8499, at *4-5; Proffer, 1999 U.S. Dist. Lexis 16676, at *18-19. Indeed, Defendants’ careful review of Prindable’srequest is entirely consistent with the procedures followed in the HCRC investigation.^[30]

1260*1260 In any event, there is no evidence that Defendants ever denied Plaintiffs’ request for a service animal. See United States v. Hillhaven Corp., 960 F.Supp. 259, 264 (D.Utah 1997). Beginning with their response to Dr. Kalauawa’s May 17, 2000 letter, the AOAO merely requested additional, appropriate information from Prindable and his treating physicians.^[31] Landlords are not precluded from inquiring into and verifying the asserted handicapped or the necessity of the accommodation sought. In re Kenna Homes, 557 S.E.2d at 799. And, as discussed, the information sought was substantially similar to that utilized by Mr. Chang in conducting his investigation for the HCRC. The Court finds no evidence to indicate that Defendants were unwilling to reasonably accommodate Prindable if shown to be necessary for his equal use and enjoyment of unit 102.

In fact, the AOAO preliminary granted Prindable’s request for accommodation on July 18, 2000, and officially on August 10, 2000, pending the outcome of the HCRC investigation. Prindable’s handicap and entitlement to reasonable and necessary accommodation may well have been confirmed through the HCRC investigation, but he voluntarily abandoned that process in favor of litigation. As Prindable acknowledges, when he selected this course, he had not yet been denied a reasonable accommodation; Prindable was in fact enjoying the requested exemption on a tentative but extended basis. See Prindable Decl. ¶ 31. Nothing produced by Plaintiffs indicates that Prindable subsequently renewed his request for an accommodation or that such a request would have been ignored. Indeed, the evidence shows quite the opposite: as of at least January 29, 2003 — five months into this action — Prindable continued to receive the accommodation purportedly sought.

Plaintiffs’ case is therefore missing another fundamental element. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir.2001); United States. v. Village of Palatine, 37 F.3d 1230, 1233 (7th Cir.1994); cf. California Mobile Home II, 107 F.3d at 1380; Tsombanidis v. City of West Haven, 129 F.Supp.2d 136, 160-61 (D.Conn.2001). Until Prindable’s request for a reasonable accommodation is denied, Plaintiffs have not been discriminated against. See 42 U.S.C. § 3604(f)(3)(B). Unless there is or is about to be an occurrence of discrimination, Plaintiffs do not have a cause of action. See 42 U.S.C. § 3613(a)(1)(A).

E. Summary

No genuine issues of material fact remain with respect to Dubois’ FHA claim for failure to make a reasonable accommodation for his handicap. Genuine issues of material fact remain as to whether Prindable is handicapped, but there is no evidence that would lead a reasonable jury to conclude that Einstein is an individually trained service animal and, therefore, nothing to show that an accommodation for Einstein may be necessary to afford Prindable an equal opportunity to use and enjoy the dwelling. There is likewise no evidence of discrimination in violation of § 3604(f)(3)(B), because Defendants have not denied Plaintiffs’ request for a reasonable accommodation.

For those reasons, the Court GRANTS Defendants’ Motion for Summary Judgment as to Plaintiffs’ FHA claims for failure to make a reasonable accommodation.

1261*1261 II. Plaintiffs’ Motion for TRO

On June 3, 2003, Plaintiffs filed the instant Motion for TRO. Plaintiffs request an order directing that:

1. The defendants immediately rescind their egregious, deliberate, discriminatory and unreasonable demand that plaintiff use only the[ ] “disabled only[ ]” route dictated by the defendant AOAO when plaintiff enters and exits his residence with his federally protected animal;

2. The defendants are enjoined from interfering with [P]laintiffs’ use and quiet enjoyment of their unit and all common areas of the project;

3. [D]efendants cease all eviction attempts against [P]laintiffs;

4. [D]efendants be enjoined from engaging in further acts of intimidation, retaliation and coercion against the [P]laintiffs;

5. That [D]efendants comply with … Prindable’s requests for reasonable accommodations due to a disability, and cease their continuing campaign of discrimination and harassment pretext [sic] on an illegal inquiry into the nature and severity of [Prindable’s] disability[;]

6. [P]laintiffs be allowed to use all common areas and not relegated to what is an unequal, separate and discriminatory entrance outlawed by the [FHA;]

7. Defendants allow [P]laintiff[s’] federally protected service animal to remain in their unit and at the project and cease their ever[-]escalating and endless inquiry into the nature and severity of [P]laintiffs’ disability;

8. [D]efendants be enjoined from further[ ] baseless, illegal inquiry into the protected medical records of [Prindable; and]

9. For such other relief as this [C]ourt deems appropriate and necessary.

(Motion for TRO, at 7-9).

To obtain a temporary restraining order “a party must demonstrate either: (1) probable success on the merits and irreparable injury; or (2) sufficiently serious questions going to the merits to make the case a fair ground for litigation, with the balance of hardships tipping decidedly in favor of the party requesting relief.”^[32]Makua v. Rumsfeld, 163 F.Supp.2d 1202, 1215 (D.Haw.2001). The hardship evaluation calls upon the Court to balance competing claims of injury and the effect that a grant or denial of injunctive relief would have on the parties and the public interest. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988).

In light of the Court’s analysis of Plaintiffs’ FHA claims, it can hardly be said that Plaintiffs have demonstrated probable success on the merits. Indeed, the Court has granted summary judgment in favor of Defendants on Plaintiffs’ reasonable accommodation request under the FHA. As discussed above, Defendants did not violate the FHA by failing to grant Dubois or Prindable an exemption from article VI, § 11, or by conditioning approval to house Einstein in unit 102 upon the rules stated in the letters of July, 18 2000, and August 10, 2000.

In any event, there is no evidence of irreparable harm or even significant hardship to Plaintiffs. Plaintiffs continue to reside with Einstein in unit 102 and presumably will do so at least until the state court action is resolved. Whatever alleged hardship to Plaintiffs might have otherwise been rectifiable by this Motion for TRO should have been brought to the Court’s 1262*1262 attention ten months ago when the action was filed or, at least, five months ago when the last averred fall occurred. Such a lengthy delay, when there has been no change in the relevant factual circumstances, cuts decidedly against a finding of harm or hardship — irreparable or otherwise. Conversely, restricting Defendants’ power to investigate Prindable’s accommodation request would significantly impair their defense in this action and their ability to litigate in state court, thereby imposing a palpable and unwarranted hardship.

Finally, the second, third and, to a lesser extent, seventh prayers in Plaintiffs’ Motion for TRO — the focus of much of the argument — effectively ask the Court to halt the state court action. Absent extraordinary circumstances, however, Younger v. Harris,401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), prevents the Court from granting injunctive relief that would interfere with a pending state court proceeding, Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.2001), when that proceeding is (1) ongoing, (2) implicates important state interests and (3) provides the plaintiff an adequate opportunity to litigate his federal claims.^[33] Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 712 (9th Cir.1995). “If the circumstances giving rise to Younger abstention apply, the district court must dismiss the action.” Baffert v. California Horse Racing Board, 332 F.3d 613, 617 (9th Cir.2003)(pursuant to Rule 36-3(a) of the Ninth Circuit Rules, the Court is not relying on this unpublished opinion for authority).

The unit 102 ownership dispute is approaching its second anniversary. The issue of whether Dubois holds title to unit 102 or the AOAO is entitled to an order of ejectment presents an important question of state law. The matter is ongoing and, indeed, Plaintiffs previously petitioned the state court for an order enjoining the non-judicial foreclosure. (Defendants’ Second Ex. 5). A restraining order would interfere with the proceeding. See Baffert, 332 F.3d at 618. Finally, Plaintiffs are able to vet their federal claims without this Court wading into the issues involved in the state proceeding. Accordingly, the Court abstains from enjoining the state action and to the extent the Complaint asks the Court to interfere with the state proceeding, those prayers are dismissed without prejudice.

For those reasons, the Court DENIES Plaintiffs’ Motion for TRO.^[34]

CONCLUSION

The Court GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment. The Court concludes that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law as to Plaintiffs’ claim under the Fair Housing Act for failure to make a reasonable accommodation. 1263*1263The other causes of action alleged in the Complaint are not properly before the Court and, therefore, Defendants’ Motion for Summary Judgment is DENIED in remaining part. This denial is without prejudice to a subsequent dispositive motion.

The Court also DENIES Plaintiffs’ Motion for Temporary Restraining Order. Plaintiffs have not demonstrated a likelihood of success on the merits, there is no evidence of irreparable harm and the balance of hardships favors Defendants.

Finally, the Court abstains from either considering the dispute as to who holds title to unit 102 or enjoining the ongoing state court proceeding. To the extent the Complaint asks the Court to interfere with the state proceeding, those prayers are dismissed without prejudice

IT IS SO ORDERED.

[1] Plaintiffs styled their pleading as a “Memorandum in Opposition to Defendant[s’] Motion for Summary Judgment and in Support of Plaintiffs [‘] Cross Motion for Summary Judgment.” Plaintiffs did not, however, file a cross-motion for summary judgment in accordance with Local Rule (“L.R.”) 7.9. The Court’s clerk notified Plaintiffs’ counsel of the missing motion, but the defect was not cured in the manner suggested. The Court recognizes its authority to enter judgment in favor of the nonmoving party, even in the absence of a cross-motion, see Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d § 2720 (1998), but concludes that its discretion is best exercised by limiting review to those issues properly presented. Accordingly, the Court will treat Plaintiffs’ pleading as a memorandum in opposition and will not consider whether Plaintiffs are entitled to judgment in their favor. Cf. Aqautherm Indus., Inc. v. Florida Power & Light Co., NO. 92-1047-CIV-ORL-22, 99 U.S. Dist. Lexis 21634, at *1 (D.Fla. Dec.16, 1996); In re Ryan, NO. 93-17922-CJK, 1996 WL 442737, **4-5, 1996 Bankr.Lexis 312, at *12-13 (Bankr.D.Mass. Feb.22, 1996). In any event, this issue is mooted by the Court’s conclusion that Defendants are entitled to summary judgement on the relevant claims. Plaintiffs’ Memo. in Opp. did not comply with L.R. 7.5(a) as filed. The Court’s clerk requested that Plaintiffs conform to the rules but no action was taken.

[2] Plaintiffs’ original filing included a “Cross Motion for Temporary Restraining Order and Preliminary Injunction” and a memorandum in support of the same. Because this “cross-motion” did not comply with the Local Rules, the Court’s clerk instructed Plaintiffs’ counsel to withdraw and refile the motion and memorandum. Plaintiffs did not withdraw the motion and, indeed, filed a similar motion and memorandum that did not comply with L.R. 7.2, 7.5(a) and 7.5(f). The Court’s clerk again informed Plaintiffs’ counsel that the motion was not properly brought or supported. Plaintiffs were directed to withdraw the pleading, refile the Motion for TRO to be heard on June 16, 2003, and refile the Motion for Preliminary Injunction in a manner consistent with the Rules. The direction was not followed, although Plaintiffs’ counsel did submit a defective L.R. 7.5(b) certification for the memorandum and, eventually, noticed the Motion for Preliminary Injunction for a later date. Nevertheless, the Court will treat Plaintiffs’ Motion for TRO as properly brought and the memorandum in support as compliant.

[3] Defendants raise several evidentiary objections to portions of the Dubois Decl. (Defendants’ Reply Memorandum in Support of Defendants’ Motion for Summary Judgment, filed June 5, 2003 (“Defendants’ Reply”) at 1-2). The challenged paragraphs are not relevant to the disposition of the present matter and, therefore, the Court does not consider these objections.

[4] As filed, Plaintiffs’ Concise Statement of Material Facts did not comply with Local Rule 56.1(d). This problem was eventually corrected. Although Plaintiffs’ Concise Statement challenges many of the facts listed in Defendants’ Concise Statement of Material Facts, the Court has carefully reviewed the affidavits, declarations and exhibits submitted in favor of and in opposition to summary judgment and finds that few of the relevant facts are actually in dispute. Indeed, many of the exhibits purportedly contested are attached to Plaintiffs’ Memo. in Opp. as supporting documents. Accordingly, the facts recounted herein are uncontroverted unless otherwise noted.

[5] The lien — stated to be $19,776.09 on January 9, 2001 — apparently arose because Dubois failed to pay his maintenance fees and the subsequently assessed late fees and legal fees. (Plaintiffs’ Ex. 31). The original auction date was set for March 16, 2001. Id.; (Plaintiffs’ Ex. 30). It is not clear from the evidence why the public sale was delayed until July.

[6] Dubois filed unrelated claims against the AOAO on April 19, 2000, and March 6, 2001.

[7] The “no pets” policy in effect until June 2000 did not include an exception for assistance animals. (Defendants’ Ex. 1). Article VI, § 11 was changed to its present form to reflect federal law.

[8] The signature on the note is not clear, but the author was later revealed to be Elliot J. Kalauawa, M.D., of the Waikiki Health Center. Defendants challenge the admissibility of Dr. Kalauawa’s note and several other documents submitted in opposition to summary judgment. Prindable is competent to aver that Dr. Kalauawa’s note, as well as the letters from other doctors or health care professionals, are true and accurate copies of documents he received. So, too, that he produced these documents to the AOAO in support of his accommodation request. The Court agrees with Defendants, however, that the information stated in the letters is hearsay and not admissible for the truth of the matter asserted. Nevertheless, the Court will assume for purposes of this Order that the letters are what they purport to be and that the authors would aver to the matters stated therein if given the opportunity.

[9] By letter of June 29, 2000, Dr. Lum notified the AOAO Board of Directors that Prindable was under his care, and that Dr. Lum agreed with the substance of Ms. Boyd’s letter of June 21, 2000. (Plaintiffs’ Ex. 7); (Defendants’ Ex. 13). Dr. Lum repeated his diagnosis in an open letter dated August 5, 2000. (Plaintiffs’ Ex. 8); (Defendants’ Ex. 15).

[10] Defendants object to portions of the Prindable Decl. (Defendants’ Reply, at 1-6). The Court does not address these arguments because the challenged paragraphs are not relevant to the disposition of the present matter.

[11] Defendants argue that Prindable cannot authenticate Mr. Chang’s interview notes. (Defendants’ Reply, at 2). The Court agrees and cites Plaintiffs’ Exs. 15, 17 and 70 only as evidence that the interviews occurred.

[12] Mr. Chang interviewed Cain on February 12, 2001, (Plaintiffs’ Ex. 70), and Dr. Sheehan on July 5, 2001. (Plaintiffs’ Ex. 17).

[13] The letter stated, “[Prindable] has a condition that can cause him to become dizzy and this puts him in danger of falling. I am asking you to accommodate [Prindable] by allowing him to use the easiest exit from the property when he is without a companion and feeling this dizziness.” (Plaintiffs’ Ex. 12, 13). Defendants represent that the pedestrian exit through the garage is the easiest route.

[14] The AOAO, CMI and Tokairin filed an Answer on December 5, 2002. Cain and Defendant Suzanne MacGill answered on May 14, 2003.

[15] The Complaint alleges causes of action for various violations of the Fair Housing Act of (“FHA”), violations of Hawaii Revised Statutes chapters 368 and 515, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, invasion of privacy, breach of fiduciary duty and abuse of process. Defendants’ MSJ requests summary judgment “as to all causes of action alleged in the Complaint on the grounds that there are no material issues of disputed fact and Defendants are entitled to judgment as a matter of law because Plaintiffs are unable or unwilling to establish that the accommodations they seek are reasonable and necessary.” Id. The second portion of the quoted language is relevant only to Plaintiffs’ claims for failure to make a reasonable accommodation (count I). The parties likewise limit the bulk of their arguments to this issue. Because the remaining FHA causes of action and counts II through IX have not been fully briefed (indeed, no Hawaii state law was cited), the Court will limit consideration to Plaintiffs’ FHA claim for failure to make a reasonable accommodation. The remaining causes of action are not addressed herein and, if appropriate, Defendants may file a subsequent dispositive motion.

[16] Affidavits made on personal knowledge and setting forth facts as would be admissible at trial are evidence. Fed.R.Civ.P. 56(e). Legal memoranda and oral argument are not evidence and do not create issues of fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978).

[17] Disputes as to immaterial issues of fact do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1478 (9th Cir.1986).

[18] The plaintiff has the burden of proof. See United States v. California Mobile Home Park Management Co. [California Mobile Home II], 107 F.3d 1374, 1381 (9th Cir.1997); Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044-45 (6th Cir.2001) (citing cases).

[19] Dr. Kalauawa’s prescription pad note and subsequent letter to CMI are too brief and conclusory to be of any value in determining whether Prindable is handicapped for purposes of the FHA.

[20] Contrary to the allegations presented in the Complaint and Plaintiffs’ argument at the June 16, 2003 hearing, there is no evidence that Defendants knew Prindable is HIV positive.

[21] Defendants raise sound challenges to the weight of the foregoing evidence. (Defendants Memorandum in Support of Motion for Summary Judgment, filed May 8, 2003 (“Memo. in Supp.”), at 14-16); (Defendants’ Reply, at 2). But that is an issue best left to the jury. Cf. Anast v. Commonwealth Apartments, 956 F.Supp. 792, 801 (N.D.Ill.1997); Valenti v. Salz, No. 94 C 7053, 1995 WL 417547, *3, 1995 U.S. Dist. Lexis 9920, at *8 (N.D.Ill. July 13, 1995).

[22] This is not to say that Defendants are precluded from further inquiry into the nature of Prindable’s disability. “[W]here a tenant suffers from a disability which is not apparent to a person untrained in medical matters, it is reasonable for a landlord or person similarly situated to require a second concurring opinion from a qualified physician selected by the landlord or person similarly situated to substantiate the tenant’s need for a service animal.” In re Kenna Homes, 557 S.E.2d at 799.

[23] The ADA defines “disability” as the FHA defines “handicap.” compare 42 U.S.C. § 3602(h) with 28 C.F.R. 36.104. The terms are likewise treated as synonymous in this Order.

[24] There is some evidence that Einstein’s presence is comforting to Prindable, and that Einstein has performed certain assistance functions. See Prindable Decl. ¶¶ 55, 56; Dubois Decl. ¶¶ 21, 22; Plaintiffs’ Exs. 4, 8, 10, 59.

[25] Plaintiffs’ counsel suggested canines (as a species) posses the ability to give unconditional love, which simply makes people feel better. Although this may well be true, counsel’s reasoning permits no identifiable stopping point: every person with a handicap or illness that caused or brought about feelings of depression, anxiety or low self esteem would be entitled to the dog of their choice, without regard to individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for these animals. The test would devolve from “individually trained to do work or perform tasks” to “of some comfort.” The FHA — a sweeping enactment — is not quite so broad. Certainly, “some type of training is necessary to transform a pet into a service animal.” In re Kenna Homes, 557 S.E.2d at 797.

[26] This assumes, of course, that the animal is shown to be necessary to afford the plaintiff an equal opportunity to use and enjoy the dwelling. See Hubbard, 994 F.Supp. at 190; Trovato, 992 F.Supp. at 497; Anast, 956 F.Supp. at 801.

[27] The signature on the handwritten note is unclear and could easily have been forged. Furthermore, the note and letter are substantively deficient as Dr. Kalauawa did not disclose, for example, the nature of Prindable’s disability. This made it impossible for the AOAO to determine whether Prindable was handicapped within the meaning of § 3602(h). See Hall, 7 Fed.Appx. 687, 689, 2001 U.S.App. Lexis 5718, at * 3; Hughes, 2000 WL 518103, *2, 2000 U.S.App. Lexis 8499, at *4-5.

[28] Neither Ms. Boyd’s “brief assessment” nor Dr. Lum’s letters of concurrence provided, for instance, a basis from which Defendants could conclude that a service animal was necessary to affordPrindable an equal opportunity to use and enjoy his dwelling, see Proffer, 1999 U.S. Dist. Lexis 16676, at *18-19, or that Einstein was such a service animal. See Bronk, 54 F.3d at 429. These are separate matters from the issue of whether Prindable is handicapped. Viewing the evidence (and all inferences reasonably drawn therefrom) in the light most favorable to Prindable, the letters from Ms. Boyd, Dr. Lum and, in particular, Dr. Sheehan are sufficient to create a genuine issue of material fact as to Prindable’s status as an individual with a handicap. But that is only one of the relevant factors in determining whether Defendants denied Prindable a reasonable accommodation. The question of whether Defendants were presented with sufficient evidence to conclude that the accommodation requested was necessary remains. As to that issue, the evidence submitted in opposition to summary judgment falls short.

[29] Plaintiffs indirectly challenge the condition that Prindable use the “shortest possible route” when entering and exiting unit 102 with Einstein. Plaintiffs have offered evidence that Prindable suffers from dizzy spells and has fallen while taking this route. (Plaintiffs’ Exs. 11, 12). Plaintiffs argue that further accommodation (allowing Prindable to come and go with Einstein through any portion of the 2987 Kalakaua) is necessary. Prindable agreed to take the route that he now decries as degrading and dangerous, (Prindable Decl. 19), and it has been five months since the last averred fall. These facts substantially undermine Plaintiffs’ argument. Furthermore, Prindable is free to enter and exit as he pleases when not traveling with Einstein. It is only when accompanied by Einstein that Prindable must use the pedestrian path through the garage and only when traveling alone that he is danger of falling. If Prindable is feeling dizzy, Dubois could take Einstein through the garage and meet Prindable in front, or Prindable and Dubois could take the route together.

A service animal must be a reasonable accommodation, and nothing in the FHA precludes the imposition of appropriate rules and regulations designed to lessen the impact of housing a pet in a no pet building. In re Kenna Homes, 557 S.E.2d at 799. Accordingly, to succeed in his challenge to the shortest route rule, Prindable would need to show not only that he has a handicap that requires him to have Einstein, but that his handicap makes it necessary, as a reasonable accommodation, to travel alone with Einstein through the apartment complex by the path of his choice (rather than, for instance, Dubois or someone else taking Einstein by the shortest route while Prindable used — what would necessarily be — a longer route). There is no evidence that would lead a jury to so find.

[30] The HCRC is not, of course, the polestar for permissible FHA investigative practices. It is, however, notable that Mr. Chang — in possession of the aforementioned letters, as well as letters from Dr. Sheehan — did not simply declare Prindable to be handicapped and entitled to an exemption from article VI, § 11. Mr. Chang instead requested an interview with the authors and at those interviews asked detailed questions concerning the nature of Prindable’s disability and the necessity of a service animal. (Plaintiffs’ Exs. 15, 17). Prindable and Dubois apparently had no objection to this process when conducted by the HCRC as opposed to the AOAO.

[31] Plaintiffs cite 24 C.F. § 100.202 (2002) in support of their argument that Defendants’ inquiries were improper. Section 100.202 is plainly inapplicable to a § 3604(f)(3)(B) reasonable accommodation request.

[32] The standard for granting a temporary restraining order is identical to the standard for granting a preliminary injunction. Hawaii v. Gannett Pac. Corp., 99 F.Supp.2d 1241, 1247 (D.Haw.1999).

[33] Although Younger abstention initially applied only to state criminal proceedings, it has since been extended to civil action if the case implicates “important state interests.” Middlesex County Ethics Committee v. Garden, Etc., 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

[34] Plaintiffs filed a notice of hearing their Motion for a Preliminary Injunction on June 13, 2003. Plaintiffs did not attach a memorandum in support. They rely instead on the arguments presented in favor of the Motion for TRO. Having granted Defendants Motion for Summary Judgement as to Plaintiffs’ reasonable accommodation claims under the FHA, denied Plaintiffs’ Motion for TRO and abstained from deciding certain prayers under Younger, the Court sees no reason to consider the same issues and arguments in a new motion reviewed under an identical standard. Accordingly, the motion will be taken off calendar unless the parties present the Court with persuasive reasons to move forward with the hearing.

Keywords: Civil Rights and Discrimination

Kurz v. Federation of Petanque U.S.A.

52 Cal.Rptr.3d 776 (2006)

778*778 Malcolm A. Misuraca, for Plaintiffs and Appellants.

Raymond J. Fullerton, Jr., Geary, Shea, O’Donnell, Grattan & Mitchell, P.C., for Deafendant and Respondent.

Summary by Mary M. Howell, Esq.:

Referee’s internet postings critical of association’s anti-drinking policy resulted in suspension of referee’s credential and probation period.  Referee challenged the sufficiency of the administrative proceeding, alleging it did not satisfy the requirements of notice and a fair hearing set forth in Corporations Code §7341.  The court noted that §7341 applies to expulsion, termination or suspension of memberships, not to lesser forms of discipline.  Nevertheless, the administrative proceeding in question satisfied the requirements of §7341 as to notice and an opportunity to be heard, as well as any requirements of the so-called “common law fair procedure doctrine.”

**End Summary**

777*777 MARCHIANO, P.J.

This case addresses the type of hearing that volunteer members of a nonprofit sports organization are entitled to when their organization disciplines them. Hans Kurz and Bill Carter, volunteer umpires, appeal a judgment entered after the trial court denied their petition for writ of mandate. They sought the writ in order to compel the Federation of Pétanque U.S.A (FPUSA) to vacate two decisions by FPSA’s Board of Directors (Board), made allegedly without a proper hearing, which suspended Kurz and Carter for one year from their positions as FPUSA umpires. As we discuss the issue below in the context of the nature of the nonprofit organization and its disciplinary procedure, we find no merit in plaintiffs’ contentions and affirm the judgment.

Background

FPUSA is a nonprofit sports organization, the purpose of which is to build a national body of affiliated clubs and individuals dedicated to spreading, practicing, and enjoying the game of pétanque.^[1] Membership is open to individuals who reside in the United States. Groups of 10 or more individual members may apply for club membership. Umpires for member clubs, such as Kurz and Carter, are individual members in good standing who are nominated for the position, pass a test, and complete a confirmation process. FPUSA umpires are neither paid nor reimbursed for travel expenses.

An “umpire policy,” adopted by FPUSA in March 2005, provides among other things that “[w]hether officiating or not, every umpire is required to conduct him/herself in a manner that complies with the rules of pétanque and that reflects well on all FPUSA umpires, the organization and the game of pétanque. Noncompliance … may be grounds for sanction up to and including loss of the umpire’s license.”

779*779 In 2005, the entry forms used in an FPUSA-sponsored tournament in Sacramento county included language prohibiting “smoking and drinking of alcoholic beverages on or off the courts while playing.” On May 12, 2005, Kurz posted a message on an internet website devoted to pétanque enthusiasts worldwide. In the message Kurz quoted the language from the entry form, describing it as a “new policy” of FPUSA, and said he was “curious how this situation is handled in other parts of the Pétanque world.” Carter saw Kurz’s message, interpreted the language on the entry form to be inconsistent with existing rules,^[2] and posted a reply. Carter stated FPUSA had not “put out” such a rule. He described it as a “fraudulent statement put on [the entry form] by Frank Pipal, the FPUSA Secretary.” He suggested FPSA leadership was at fault for allowing the language to be inserted on the entry form, stating that Pipal did “not run the FPSA, unfortunately, no one does.”Kurz posted a third message in response, creatively describing the entry form language as “kakamania.” He also said that, if Carter were to umpire the tournament, he “strongly encourage[d]” him not to enforce it.

Kurz’s second internet posting prompted a complaint^[3] from the chairman of Sport Committee of FPUSA, Louis Toulon, which he sent to FPUSA president John Rolland on May 26, 2005. The complaint was also addressed to several other FPSA members, including Kurz. Toulon stated that Kurz’s publicly posted remarks were “a possible breach of the umpire code,” citing to the umpire policy quoted above. The following day, Kurz corresponded with Rolland, providing an initial statement in his defense. Rolland forwarded this response to Gilles Canesse, chairman of the FPUSA Disciplinary Committee (Committee), and informed Kurz that the Committee would be reviewing the matter. In early June 2005, Kurz corresponded with Canesse, providing him with letters of support and further statements in his defense.

The Committee subsequently determined that Kurz’s posted message did violate FPUSA’s umpire policy. It reported this determination to the Board, recommending that it suspend Kurz’s umpire credential for one year, and thereafter place him on a two-year period of “umpire probation,” “during which time any misconduct … resulting] in a Disciplinary Committee enquiry may be considered cause for permanent revocation of [his] Umpire’s Credential.” On July 13, 2005, the Board adopted this recommendation by a vote of thirteen to one, with two Board members abstaining. Pipal, one of the Board members, averred subsequently that he abstained from voting because the posting by Carter, which had prompted Kurz’s posting, referred to him by name. Pipal notified Kurz of the Board’s ruling on July 20, 2005.

Meanwhile, on July 10, 2005, Robert Pierre sent a message to Pipal and others. In it, he requested that a “review []” be conducted regarding the message that Carter had posted on the internet site. He objected to Carter’s message because it had “mentioned a FPUSA board member [by name] in his capacity as an umpire” and it had included remarks that 780*780 were “not only uncouth but … more like libel.” On July 12, 2005, Rolland sent a complaint to the Committee in which he complained that “[f]or years the FPUSA [has been] dealing with the negative and damaging comments of … Carter towards the leadership of the [FPUSA].” Rolland suggested that the Committee “revoke … Carter’s umpire license and suspend him from FPUSA activities for a long time if not forever.” Pipal sent a message to Carter two days later, informing him that Rolland had “referred the matter of [his internet posting] to the Disciplinary Committee for review.” Pipal’s message included a copy of the internet posting at issue. Carter responded with a message to Canesse, asking him for clarification of the nature of the complaint against him, and what rule he had allegedly violated. Canesse replied by forwarding a copy of Rolland’s complaint. He also cited several “excerpts [he] considered relevant” to the Committee’s deliberations. These included an FPUSA rule, which charges umpires with the duty of “ensuring that the rules of the game and the administration rules are strictly adhered to,” the FPUSA “Code of Behavior,” and a section of FPUSA’s constitution which provided that members “may be expelled from membership by a two-thirds … majority of votes [of the] Board of Directors …. [but that] [s]uch a vote shall not be taken … until after the member … has been advised of the proposed action and given the opportunity of being heard by the Board of Directors.” Canesse also quoted the umpire policy that we noted above. He stated that the fact Carter was an umpire was “relevant” to the Committee’s review.

At this point, Carter retained counsel and asked for an extension of time to prepare a “formal response.” He also sought a hearing, preferably in California “where the most obvious witnesses for and against him will be found.” On August 4, 2005, the Committee sent a message to Carter stating that “[t]he only issue before [it], at this time, involve[s] certain of your internet postings, and whether they violate the 2005 Umpire Policy.” Thus, “[t]he only sanctions that [may] be rendered … relate to your serving as an FPUSA umpire.” It stated explicitly that no action regarding membership revocation was being considered. The Committee also informed Carter that it conducted its business by e-mail and that Carter should submit his defense in writing. Further, the Committee “saw no need for further witnesses” since “[t]he internet postings speak for themselves.” On August 7, 2005, Carter submitted to the Committee a formal written response to Rolland’s complaint.

At the end of August 2005, the Committee determined that Carter had violated the umpire policy, reported its determination to the Board, and recommended that Carter receive the same sanction it had imposed on Kurz;—a one-year suspension of his umpire credential and a two-year probationary period. By an e-mail message sent September 13, 2005, Pipal notified Carter that the Board had adopted the Committee’s recommendation. Later, he averred that the Board’s vote had been nine to two, with himself and one other Board member abstaining from the vote.

Kurz and Carter filed a petition for writ of mandate in the Sonoma County Superior Court on September 30, 2005, choosing that forum evidently because Pipal was a resident of Sonoma. They alleged that FPUSA, in suspending their umpire credentials, had violated their “common law right of fair procedure” and had improperly sanctioned them for “exercising their right of free speech.” Specific violations of “fair procedure” included the failure of FPUSA to provide Kurz with a written copy of the complaint against him; its 781*781 improper pursuit of a charge that had not been explicitly included in Rolland’s complaint against Carter; its failure to follow the disciplinary procedures set out in its own bylaws;^[4] its failure to respond to Carter’s requests for clarification of the charges against him; its failure to provide either Kurz or Carter with a formal hearing; its failure to provide a record of the Committee’s proceedings against them; its failure to exclude Canesse, Pipal, Rolland, and several others from the proceedings because of their bias against Kurzand Carter; its pursuit of a pretextual charge against Carter in a proceeding actually motivated by the malice of Pipal, Rolland, and others; its pursuit of sanctions against them merely for exposing the improper promulgation of a false rule, which they were bound to do as umpires; the pursuit of charges that they had violated an “umpire policy” that had not yet been finally adopted until after the complaints against them were filed; and its failure to specify in the umpire policy any formal disciplinary procedure and the body authorized to conduct such proceedings.

One week after filing their petition, the court signed an order prepared by counsel for Kurz and Carter. The order directed FPUSA to appear on November 30, 2005, to show cause why the court should not issue a “temporary or prehminary” writ of mandate reinstating them to their positions as umpires. On November 30, 2005, the court continued the matter. FPUSA filed a return by verified answer on January 17, 2006. Its opposing papers included declarations with attached exhibits. Kurz and Carter subsequently filed reply papers that included their own supporting declarations with attachments.

At the hearing on February 17, 2006, none of the parties appeared and the court adopted its tentative ruling, which denied the petition. (See Cal. Rules of Court, rule 324; Super. Ct. Sonoma County, Local Rules, rule 5.6.) In stating its reasons for the ruling, the court concluded that the common law doctrine of fair procedure was not applicable to the proceedings in issue, because the proceedings had not implicated three “essential elements” that limited application of the doctrine. That is, FPSA was not a private organization “engaged in activities affecting the public interest,” its proceedings had not impaired a “substantial economic interest” possessed by Kurzor Carter, and FPUSA’s action had not “excluded or expelled [them] from [its] membership.”

The court also found that FPUSA had afforded Kurz and Carter a “fair procedure.” Specifically, each had been “notified of the complaint, permitted to make a written statement in defense, and permitted to submit any other written materials, including written statements by third parties.” The court noted additionally that the Board had acted to ensure fairness in the proceedings, in that Pipal and another Board member had abstained from voting. Finally, the court found that the sanctions, which involved “suspension of the privilege to umpire,” but not “expulsion from the organization or any restriction upon membership status,” was “wholly consistent with FPUSA rules.”

782*782 On March 15, 2006, the court entered both a formal order denying the petition, and a “Judgment of Dismissal.” This appeal followed. (Code Civ. Proc, § 904.1, subd. (a); see Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1, 5, fn. 3, 119 Cal.Rptr.2d 256.)

Discussion

A. Standard of Review

When reviewing a trial court’s ruling on a petition for traditional writ of mandate, we review any findings under the substantial evidence standard. We review independently questions of law based on undisputed facts or facts properly found by the trial court. (See Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 794, 134 Cal.Rptr.2d 179; see also Eisenberg et al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) H 8.4.2, pp. 8-2 to 8-3.)

B. Corporations Code Section 7341

The Corporations Code’s Nonprofit Corporation Law includes a part governing the formation and operation of Nonprofit Mutual Benefit Corporations. (Corp.Code, § 7110 et seq.) Under this part, a nonprofit mutual benefit corporation may, by its articles or bylaws, provide for the admission of persons to membership. (Corp. Code, § 7310 et seq.) Such a corporation may not expel or suspend a member, nor may it terminate or suspend any membership, except according to procedures that satisfy the requirements of Corporations Code section 7341. (Corp.Code, § 7341, subd. (a).) This section requires that any expulsion, suspension, or termination of a member or membership be conducted in good faith and in a fair and reasonable manner. (Corp.Code, § 7341, subd. (b).) A corporation’s procedure in taking such action is deemed to be “fair and reasonable” when: (1) its provisions have been set forth in the articles or bylaws, or copies of the provisions are sent annually to all members pursuant to the articles or bylaws; (2) the procedure provides for 15 days’ prior notice of any proposed expulsion, termination, or suspension and the reasons for such action; and (3) the procedure provides an opportunity for the member to be heard, orally or in writing, not less than five days before the effective date of the proposed action, by a person or body authorized to determine whether or not the proposed action should be taken. (Corp.Code, § 7341, subd. (c).) A court, however, may find “other procedures to be fair and reasonable when the full circumstances … are considered.” (Corp.Code, § 7341, subd. (b).)

Kurz and Carter contend it was error to deny their petition for writ of mandate because FPUSA did not comply with the requirements of Corporations Code section 7341. Specifically, they urge that FPUSA did not act in good faith. They also contend that FPUSA failed to utilize procedures that comply with those specified in Corporations Code section 7341, subdivision (c), in that it failed to follow the disciplinary procedures it had published in the “Code of Behavior” portion of its bylaws. (See fn. 2, above.)

The verified petition and answer, taken together, establish that FPUSA is a nonprofit corporation formed in Washington, D.C. FPUSA argues that, as a foreign corporation, it was not subject to the requirements of Corporations Code section 7341. Yet a foreign corporation may be subject to section 7341, as well as other provisions of the Nonprofit Mutual Benefit Corporation Law, to the extent it conducts business within California. (See Corp. Code, § 8910.) Since FPUSA failed to raise this argument below, we assume for the sake of argument that Corporations 783*783Code section 7341 may apply to FPUSA in an appropriate case.

But this is not such a case. Corporations Code section 7341 applies only when the proposed action is to expel or suspend a member of the corporation, or to terminate or suspend a membership.^[5] (Corp. Code, § 7341, subd. (a).) Kurz and Carter argue, as they did below, that Corporations Code section 7341 should still be applicable because the result of the proceedings against them could have resulted in their suspension or expulsion from membership. The record, however, does not support this argument. With respect to the proceedings against Kurz, the initial complaint sent by Toulon was limited on its face to a charge that Kurz’s internet posting was a possible breach of the umpire policy. As we have noted, this policy states that any violation “may be grounds for sanction up to and including loss of the umpire’s license.” In Kurz’s case, there is no indication the Committee ever considered any sanction other than the suspension of Kurz’s umpire license.

With respect to Carter, it is true that the initial complaint sent by Rolland asked the Committee to consider not only revoking Carter’s umpire credential, but also suspending him “from FPUSA activities for a long time if not forever.” It is also true that, when Carter initially sought clarification of the charges against him, Canesse, responding on behalf of the Committee, quoted bylaws and rules it deemed “relevant” to Carter’s case, and these quoted excerpts suggested the possibility of action suspending or terminating his membership. Nevertheless, in its message to Carter dated August 4, 2005, the Committee in essence amended and clarified its proposed action, stating that it was considering only the issue whether Carter’s internet posting violated the umpire policy. It also explicitly stated that it was not considering any sanction that would affect Carter’s membership.

We conclude Corporations Code section 7341 did not govern Kurz’s case, because his rights as a member of FPUSA were never implicated. This section also did not apply in Carter’s case once the Committee notified him that it was not considering any action involving his membership rights.

More importantly, we observe that the trial court found Kurz and Carter “were afforded a fair procedure.” In doing so, it necessarily rejected their argument that FPUSA had violated Corporations Code section 7341. In our view, implicit in this finding is a determination that, even if the proceedings did not comply with the procedural requirements specified in section 7341, subdivision (c), they were nevertheless “fair and reasonable [under] the full circumstances.” (Corp. Code, § 7341, subd. (b).)

The evidence presented in the record, including the facts summarized above, is essentially undisputed^[6] and does not compel the conclusion that either the Committee 784*784 or the Board conducted its proceedings in bad faith. On the other hand, it does show that both Kurz and Carter received adequate, actual notice of the proposed actions against them, and that both were able to avail themselves of an opportunity to present a written defense. At the time of these proceedings, the procedures set out in the FPUSA bylaws applied only when membership rights were implicated—FPUSA was not bound to follow them in proceedings involving only the suspension of umpire credentials. Moreover, it appears the nonprofit FPUSA, at least at the time of these proceedings, had a limited ability to provide formal hearings in any disciplinary proceeding. The record shows that the Committee and the Board routinely conducted business “via e-mail” because the members of these bodies were far-flung and FPUSA had little income to fund travel expenses.^[7]

On review of the undisputed evidence, we arrive independently at a conclusion in agreement with the trial court’s implicit determination: the proceedings against Kurzand Carter were fair and reasonable under the full circumstances and did not violate Corporations Code section 7341.

C. Common Law Right to Fair Procedure

“The purpose of the common law right to fair procedure is to protect, in certain situations, against arbitrary decisions by private organizations.” (Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1066, 95 Cal.Rptr.2d 496, 997 P.2d 1153 (Potvin).)^[8] When this common law doctrine applies, a private organization is required to proceed in its decision-making process in a manner that is both “`substantively rational and procedurally fair.'” (Ibid., quoting Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550, 116 Cal.Rptr. 245, 526 P.2d 253.)

As noted above, Kurz and Carter argued below that the common law right of fair procedure applied to the proceedings against them. In reiterating this argument on appeal, they rely chiefly on Ezekial v. Winkley (1977) 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32 (Ezekial).

In Ezekial, a licensed physician accepted an offer by a private teaching hospital to enter and participate in its surgical residency program. Successful completion of the program was necessary for the physician to attain the status of a board certified general surgeon. The hospital dismissed the physician from its program without providing any notice or hearing. The physician brought an action seeking, among other things, injunctive relief requiring his reinstatement pending the hospital’s 785*785 compliance with the common law requirements of “fair procedure.” In reversing a judgment of dismissal, which followed an order sustaining the hospital’s demurrer, the Supreme Court held that the physician had adequately pleaded a cause of action under the “fair procedure” doctrine. (Ezekial supra, 20 Cal.3d at pp. 269-270, 279, 142 Cal.Rptr. 418, 572 P.2d 32.)

In the course of its decision the Supreme Court discussed the development of the “fair procedure” doctrine. It noted the doctrine had been “rather narrowly applied to situations with substantial economic ramifications,” at least with regard to proceedings in which private organizations had excluded one or more individuals from membership. (Ezekial, supra, 20 Cal.3d at p. 272, 142 Cal.Rptr. 418, 572 P.2d 32.) But courts had given the doctrine a “broader application” in cases involving private organizations that had expelled members. The Supreme Court stated that, in these cases, “[t]he underlying theme … is that membership in an association, with its associated privileges, once attained, is a valuable interest which cannot be arbitrarily withdrawn.” (Id. at p. 273, 142 Cal.Rptr. 418, 572 P.2d 32.) Thus, these decisions “comport[ed] with the broader principle that one on whom an important benefit or privilege has already been conferred may enjoy legal protections not available to an initial applicant for the same benefit.” (Ibid.)

Citing the above-quoted language, Kurz and Carter insist that the Supreme Court inEzekial thereby affirmed a line of expulsion cases in which the need to demonstrate an impaired economic interest was relaxed. They suggest, in other words, that the trial court’s ruling was error to the extent it determined the “fair procedure” doctrine was inapplicable because the proceedings at issue had not “impair[ed] the affected individual’s substantial economic interest.”

First, we observe that this language from Ezekial is mere dicta, in which the Supreme Court is attempting to describe a “theme” underlying its earlier expulsion cases. Elsewhere, the Supreme Court was careful to point out the impairment of a significant economic interest in the case before it. It emphasized that the physician had alleged facts indicating the hospital had “assumed the power to permit or prevent [his] practice of a surgical specialty and to thwart [his] enjoyment of the economic and professional benefits flowing therefrom.” (Ezekial, supra, 20 Cal.3d at p. 274, 142 Cal.Rptr. 418, 572 P.2d 32, italics added.) Further, in its later decision in Potvin, the Supreme Court again analyzed two of its earlier expulsion cases, and observed that in each case it had applied the doctrine “to protect the affected member’s property rights.” (Potvin, supra, 22 Cal.4th at p. 1066, 95 Cal. Rptr.2d 496, 997 P.2d 1153.)

Even if we accept the dictum in Ezekial—that the common law “fair procedure” doctrine should be applied more broadly in expulsion cases, this is not such a case. As the Supreme Court in that decision said, such broader application is premised on the “valuable interest” in membership rights. (Ezekial, supra, 20 Cal.3d at p. 273, 142 Cal.Rptr. 418, 572 P.2d 32.) Here, the action by FPUSA implicated only Kurz’s and Carter’s positions as unpaid umpires.^[9] Kurz and Carter have not drawn our attention to any authority that has applied the common law “fair procedure” 786*786 doctrine in any analogous situation, where the private organization’s action has not adversely implicated either an economic interest or a fundamental membership right. (Cf. Kim v. Southern Sierra Council Boy Scouts of America (2004) 117 Cal. App.4th 743, 747-748, 11 Cal.Rptr.3d 911 (declining to extend application of the doctrine to a situation in which the alleged detriment suffered was “the absence of the prestige and honor associated with a specific rank in or award conferred by a … social organization … whose formation and activities are unrelated to the promotion or advancement of the economic or business interests of its members”).) No policy reason or rationale from any case compels us to extend the principle to encompass internal decisions that are unrelated to exclusion or expulsion from membership or that do not adversely impair a member’s economic interest.^[10] Moreover, common sense and judicial restraint would also dictate that a court should not involve itself in internal disciplinary actions of the type involved in this case.^[11] Such determinations are better left to the discretion and expertise of the nonprofit mutual benefit organization’s governing board. Two policy concerns raise a flashing yellow light: judicial attempts to construe laws of private organizations may lead the court into what one law professor characterized as the “dismal swamp,” and also may lead to the infringement on autonomy for private voluntary organizations. (Berke v. Tri Realtors (1989) 208 Cal.App.3d 463, 467, 257 Cal.Rptr. 738.)^[12]

Although we have held that the fair procedure doctrine does not apply to this 787*787case, we note that the trial court determined the procedure utilized was fair. We conclude that this ultimate finding includes an implicit determination, not only that the proceedings satisfied the requirements of Corporations Code section 7341, but also that they satisfied the common law “fair procedure” doctrine. Whether a procedure is “fair” under the common law doctrine depends on the particular circumstances and the purpose and nature of the organization. The panoply of due process is elastic and must be understood in the context of the organization, its membership, the discipline to be imposed, and the member’s valuable interest affected by the action. (See Ezekial, supra, 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32.) To be informed of the charges, the proposed disciplinary action, and an opportunity in some manner to present countervailing evidence may satisfy the twin due process requirements of being substantively rational and procedurally fair, as opposed to a full blown adversarial process with the right to counsel and cross-examination.^[13] Under some circumstances, for example, a mere written response may be deemed fair, as opposed to a formal hearing. (See Ezekial, supra, 20 Cal.3d at p. 279, 142 Cal.Rptr. 418, 572 P.2d 32.) In light of the evidence discussed above,^[14] we agree with the trial court’s implicit determination that the proceedings against Kurz and Carter did not violate the common law “fair procedure” doctrine, if that doctrine were applicable.

D. The Entry of Judgment Following Denial of a “Temporary” Writ

The trial court’s hearing on February 17, 2006, was prompted by an order drafted by counsel for Kurz and Carter, which sought issuance merely of a “temporary” or “preliminary” writ of mandate. Kurz and Carter complain that it was therefore improper for the trial court to deny the petition in its entirety after that hearing, and error to enter the subsequent judgment of dismissal. They also suggest the trial court improperly failed to consider the evidence that they submitted in support of the petition, because it never referred to their evidence in its ruling.

We find no merit in these contentions. The proceeding below was consistent with the governing procedural law. The trial court issued an order to show cause. In doing so it clearly treated the order— notwithstanding its incorrect wording—as the functional equivalent of an alternative writ. An alternative writ directs the respondent to perform the act sought to be compelled or else appear and show cause why it has not been performed. (See Code. Civ. Proc, § 1087.) This prompts a return to the petition,which FPUSA duly filed in the form of a verified answer. (Code Civ. Proc, § 1089.) The reply and supporting evidence filed by Kurz and Carter performed the function of countervailing proof. (Code Civ. Proc, § 1091.) At that point, the court had jurisdiction to hear and determine the merits of the petition. (See Bleuel v. City of Oakland (1927) 87 Cal.App. 594, 600, 262 P. 477; see also Code Civ. Proc, § 1090.) It was entitled to do so on the basis of the evidence submitted in the form of declarations. (See Cal. Rules of Court, rule 323.) The court made its determination at the hearing on February 17, 2006, which it denoted in the minutes as a hearing on the 788*788 petition.The order entered after this hearing made findings and denied the petition. Such an order is typically followed by a judgment of denial. (See Cody v. Justice Court of Vacaville (1966) 238 Cal. App.2d 275, 277, fn. 1, 47 Cal.Rptr. 716.) We construe the “Judgment of Dismissal” to be just that—a judgment denying the petition on the merits.^[15]

The court did not err simply because counsel for Kurz and Carter framed the order to show cause as one seeking a “temporary” writ of mandate. Under California law there is no such creature. If Kurz and Carter misunderstood the nature of the order their counsel drafted, due to its incorrect wording, they have shown no prejudice. They submitted evidence in support of the petition. If it was designed only to support the issuance of a “temporary” writ of mandate, Kurz and Carter make no claim that they mistakenly omitted other additional evidence that might have been material to the determination of the petition itself.

As the trier of fact, the trial court was entitled to weigh the evidence and resolve any conflicts. The fact that it did not mention the evidence submitted by Kurz and Carter by no means demonstrates that it improperly failed to consider that evidence. Error must be affirmatively shown. (Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781, 1792, 8 Cal. Rptr.2d 762.)

Disposition

The judgment is affirmed.

We concur: STEIN, and SWAGER, JJ.

[1] Pétanque (from the Provençal “ped tanco,” literally “feet together”) is a version of boules, an outdoor bowling game of ancient origin. The Italian version is Bocce. Péetanque was developed in France early in the last century, and is now played internationally according to rules most recently approved in 2002 at Grenoble, France, by the International Congress of the Fédération Internationale de Pétanque et Jeu Provençal. In pétanque, two individuals, two pairs, or two triples compete against one another. The object is to throw a metal ball, a boule, as close as possible to a smaller wooden ball, or jack, or alternately to throw a boule so as to knock an opponent’s boule away from the jack. At the outset of play the jack is thrown by one of the teams— usually the team that won the previous play or who won the toss. To be a valid target, the jack must be thrown six to ten meters from the throwing circle in which the players stand or squat. During each play the competitors throw three boules each, one at a time, if individuals or pairs are competing, or two boules each if triples are competing. At the end of a play the winning team is that which has a boule lying closest to the jack, and one point is awarded to that team for each of its boules that lie closer to the jack than any of the opposing team’s boules. The first team to reach a set number of points—which varies between 10 and 13—wins the game. (See http://www.p etanque.org/news/rules/offical— rules.shtml; http://www.laboulebleue.fr/en/ index.htm; http://www.petanque.org/ beginners/.)

[2] FPUSA bylaws include a “Code of Behavior” for FPUSA members competing in FPSA-sponsored events. Among other things, the code prohibits “[e]xcessive consumption of alcoholic beverages,” and “smoking or drinking of alcoholic beverages during play.”

[3] This complaint, as well as all subsequent communications, were sent and received as email messages.

[4] The “Code of Behavior” set out in FPUSA bylaws states that complaints against members must “identify those filing the complaint, … the subject of the complaint, of what the complaint consists and the evidence supporting the complaint including names and witnesses.” The chairman of the Committee must then “cause an investigation to take place and present the results to the Committee for decision.” If the Committee decides to “withdraw the license of the person who is subject of the complaint, that person may appeal the decision to the Board of Directors.”

[5] FPUSA argues that the application of Corporations Code section 7341 is even further limited, in that it applies only to proceedings against “statutory” members, who are generally those with voting rights. (See Corp. Code, § 5056, subd. (a).) We are disinclined to accept that the Legislature intended the term “member” to be so limited with respect to the procedural safeguards of Corporations Code section 7341. Moreover, a nonprofit corporation may, through its articles or by-laws, confer some or all of the rights of membership upon persons who have no voting rights. (Corp.Code, § 5056, subd. (b).) We conclude FPUSA did just that when it adopted constitutional articles providing for individual, club, and commercial memberships.

[6] The material evidence consists of the internet postings that initiated the proceedings, the applicable articles, bylaws, and rules, and the exchange of e-mail messages and written statements that comprised the proceedings themselves. Some averments in the declarations appear to raise disputed issues of fact, but on examination are no more than differences in the interpretation of the underlying evidence. For example, Kurz averred that he was charged with violating an umpire policy that was not adopted until August 2005, after the conclusion of the proceedings against him. The evidence, however, shows that the umpire policy quoted above was adopted on March 7, 2005. That policy was revised in August 2005 to specify procedures for handling complaints regarding umpire conduct and proficiency.

[7] FPUSA’s total income for 2005 was $16,904. Over $10,000 of this amount was committed to insurance, international dues, and other expenses.

[8] The Supreme Court first applied the common law right to fair procedure in a late 19th century decision, Otto v. Tailors’ P. & B. Union (1888) 75 Cal. 308, 315, 17 P. 217, in which the court held that an unincorporated trade union’s expulsion of a regular member for an offense subject to a fine was “not in good faith [and] was not fair.”

[9] At oral argument, counsel for Kurz and Carter again emphasized that the Committee’s proceedings against them had placed their membership rights in “jeopardy.” He reasoned this was so because the Committee failed to make it sufficiently clear that the proceedings did not implicate their membership rights, and because FPUSA bylaws authorized the Committee to conduct disciplinary proceedings only when membership rights were at stake. (See fn. 4, ante.) It is true that, at the time of the proceedings against Kurz and Carter, the Umpire Code did not yet specify whether the Committee— or any other body—had authority to conduct disciplinary proceedings for violations of that code. Nevertheless the record is clear that, in the proceeding against Kurz, the Committee gave him clear notice of, and an opportunity to respond to, a charge that involved only an Umpire Code violation and hence only implicated his umpire credentials. In the proceeding against Carter, the Committee ultimately and explicitly limited its charge against him to one that implicated only his umpire credentials, and it gave Carter an opportunity to respond to that charge.

[10] See Salkin v. California Dental Assn. (1986) 176 Cal.App.3d 1118, 1121-1124, 224 Cal.Rptr. 352.

[11] The bounds of judicial restraint in applying the common law “fair procedure” doctrine are illustrated by Von Arx v. San Francisco Gruetli Verein (1896) 113 Cal. 377, 45 P. 685 (Von Arx), one of the two early “expulsion” cases described by the Supreme Court in Potvin. (See Potvin, supra, 22Cal.4th at p. 1066, 95 Cal.Rptr.2d 496, 997 P.2d 1153.) The decision in Von Arx involved the expulsion of a member by an unincorporated association that had been organized for “intellectual intercourse and mutual aid and benevolence.” (Von Arx, supra, 113 Cal. at pp. 378-379, 45 P. 685.) The Supreme Court observed “[i]t is, perhaps, unfortunate that the general law takes notice of the rights of persons as members of voluntary associations organized for such purposes as those contemplated by the [association] herein. It would, perhaps, be better if a person joining such a society should be forced to look alone to the society itself for the protection of his rights as a memberof it. But … courts have felt compelled to listen, reluctantly, to complaints of their members in certain cases. This is particularly so where, as in the case at bar, ordinary property rights are involved.” (Id. at p. 379, 45 P. 685, italics added.) In a later opinion, which involved a labor union’s expulsion of a member resulting in his loss of employment, the Supreme Court similarly observed that “[i]n cases of this type, we must strive both to protect the rights of individual members and to avoid impairing the right of the union to govern itself.” (Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 143, 231 P.2d 6, italics added.)

[12] See Chafee, Jr., The Internal Affairs of Associations Not for Profit (1930) 43 Harv. L.Rev. 993, 1021-1029 for a discussion of policies against judicial interference.

[13] We note a “fair” procedure may simply provide for only a written submission by the affected member. For example, section 7341, subd. (c)(3) provides a procedure is “fair and reasonable” when it affords an opportunity for the member to be heard orally or in writing before the authorized body.

[14] See footnote 6, ante, and accompanying text.

[15] The judgment was drafted not by the court, but by counsel for FPUSA, the prevailing party.

Keywords: Administrative Due Process

Koebke v. Bernardo Heights Country Club

31 Cal.Rptr.3d 565 (2005)

Summary by Mary M. Howell, Esq.:

Plaintiffs, a lesbian couple who were registered domestic partners, argued that a golf club’s membership rules which differentiated their rights to play from those granted to traditional marital relationships, violated the Unruh Act.  The court noted that discrimination against registered domestic partners in favor of married couples is a type of discrimination that falls within the ambit of the Unruh Act.  The court rejected the Club’s argument that it had a legitimate business interest (creating a “family friendly environment”) which justified the discriminatory act.  Finally, the court noted that before the enactment of the Domestic Partnership Act, the policy did not, on its face, violate the Unruh Act (which would have given rise to a claim for damages for such acts), but that plaintiffs were entitled to attempt to demonstrate that the actions of the Club during this period constituted unlawful disparate treatment.

**End Summary**

567*567 Lambda Legal Defense and Education Fund, John W. Davidson, Los Angeles; and H. Paul Kondrick, San Diego, for Plaintiffs and Appellants.

Christine Sun, Alan Schlosser, San Francisco, Peter Eliasberg, Los Angeles, Jordan C. Budd; James D. Esseks, Romana Mancini; Miranda D. Junowicz, Steven C. Sheinberg, Los Angeles, Michelle Deutchman; Geoff Kors; Maxie Rheinheimer Stephens & Vrevich and Darin L. Wessel, Los Angeles, for American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego and Imperial Counties, American Civil Liberties Union Foundation Lesbian and Gay Rights Project, the Anti-Defamation League, Equality California and Tom Homann Law Association as Amici Curiae on behalf of Plaintiffs and Appellants.

Nancy Hogshead-Makar; Nancy M. Solomon; Shannon Minter and Courtney Joslin, San Francisco, for Women’s Sports Foundation, California Women’s Law Center and National Center for Lesbian Rights as Amici Curiae on behalf of Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Tom Greene, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, and Antonette Benita Cordero, Deputy Attorney General as Amici Curie on behalf of Plaintiffs and Appellants.

Morrison & Foerster, John R. Shiner, Rick Bergstrom, John Sobieski, Michael Katz, Los Angeles; Horvitz & Levy, Frederic D. Cohen, Patricia Lofton and Jeremy B. Rosen, Encino, for Defendant and Respondent.

566*566 MORENO, J.

Plaintiffs, a lesbian couple who are registered domestic partners, sued defendant country club, to which one of them belongs, alleging that the club’s refusal to extend to them certain benefits it extends to married members of the club constitutes marital status discrimination under Civil Code section 51, familiarly known as the Unruh Civil Rights Act (the Unruh Act or Act). The club obtained summary judgment on plaintiffs’ marital status discrimination claim and the Court of Appeal 568*568 affirmed. We granted review to determine whether the Unruh Act prohibits discrimination based on marital status. We conclude that marital status claims are cognizable under the Unruh Act, but, for purposes of such claims, a distinction exists between registered domestic partners (see Fam.Code, § 297 et seq.) and other unmarried couples and individuals. Domestic partners registered under the California Domestic Partner Rights and Responsibilities Act of 2003 (the Domestic Partner Act), the current version of the domestic partnership law, are the equivalent of spouses for the purposes of the Unruh Act and a business that extends benefits to spouses it denies to registered domestic partners engages in impermissible marital status discrimination. Therefore, we reverse summary judgment in favor of defendant to the extent plaintiffs’ claim implicates the Domestic Partner Act.

While the Act may also protect the rights of other unmarried couples and unmarried individuals to equal access to public accommodations under some circumstances, distinctions drawn by businesses between married couples and such unmarried couples and individuals that are supported by legitimate business reasons do not constitute impermissible marital status discrimination under the Act. Applying this principle, we reject plaintiffs’ claim that the country club’s spousal benefit policy constituted impermissible marital status discrimination on its face prior to the effective date of the Domestic Partner Act. As explained below, during this period of time, the country club’s policy was supported by legitimate business interests. In this connection, we also reject plaintiffs’ alternative claim that the policy facially violated the Unruh Act’s proscription against sexual orientation discrimination. However, we agree with the Court of Appeal that under the facts disclosed by the record plaintiffs may have a viable Unruh Act claim for discriminatory application of the club’s policy.

I. FACTS

Plaintiffs B. Birgit Koebke and Kendall E. French sued defendant Bernardo Heights County Club (BHCC) alleging, among other causes of action, that BHCC discriminated against them on the basis of sex, sexual orientation, and marital status in violation of the Unruh Act. BHCC obtained summary judgment and, with respect to most of the claims, the Court of Appeal affirmed. We granted plaintiffs’ petition for review. “Because plaintiff[s] appeal[] from an order granting summary judgment, we must independently examine the record to determine whether triable issues of material fact exist. [Citations.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In conducting de novo review “we must view the evidence in a light favorable to plaintiff[s] as the losing party [citation], liberally construing [their] evidentiary submission while strictly scrutinizing defendant[‘s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff[s’] favor.” (Id. at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) We apply this standard to the evidence submitted in connection with the motion below.

Plaintiffs are lesbians who have been in a relationship since 1993. They are also avid golfers. Koebke is a member of BHCC, having purchased a membership in 1987 for $18,000. BHCC’s facilities include a golf course, club house and dining room. The purpose of BHCC is “to promote golf and recreational activities, social activities, and maintain a country club with facilities for the entertainment and amusement of its members and their guests.” BHCC has seven membership categories, 569*569 including “Regular” or equity members who collectively own the club.^[1] Each of the 350 Regular members has an equal ownership interest in all of the real property and other assets of BHCC, and is liable to it for capital and operational assessments as well as dues and other charges. BHCC’s Regular members are entitled to play golf at BHCC as often as they wish without paying any additional fees. Plaintiff Koebke is a Regular member.

Pursuant to its bylaws, BHCC’s membership benefits in each of the seven membership categories are also extended “to member’s [sic] legal spouse and unmarried sons and daughters under the age of twenty-two (22) residing with them.” Thus, Regular members may golf with their spouses and any qualifying child on an unlimited basis and without paying additional membership or usage fees. By contrast, other individuals with whom members wish to play are designated as “guests” under BHCC’s Rules and Regulations. Guests are not permitted to play more than six times in any one year, and no more than once every month, and must pay a green fee each time they play at BHCC. Guests are required to register each time they play golf and are not allowed to sign charge slips for food at the club. The registration requirement does not apply to spouses of members and, unlike guests, they may sign charge slips for food.

In addition to the spousal benefits granted its married members, BHCC’s bylaws also permit a membership to be transferred upon a member’s death to his or her surviving spouse or son or daughter without any transfer fee, provided that the survivor is accepted for membership. By contrast, an unmarried member’s membership, and all his or her property rights in BHCC, terminate upon that member’s death.

According to Koebke, in 1995, after she began her relationship with French, she asked BHCC’s Board of Directors (the Board) to permit her to designate French as her “significant other” to enable them to golf together on the same basis as married couples. The Board rejected the request and “decided to continue its present policy that non-married significant others would have no privileges at the Club.”

In August, 1998, plaintiffs executed a written “Statement of Domestic Partnership,” in which each stated that she considered the other to be “her primary life companion and spouse, sharing with one another the joys and difficulties encountered during their life together.” At some point, plaintiffs also registered as domestic partners with the state and with the city of San Diego.^[2]

According to her deposition, in 1998, Koebke again appeared before the Board and asked that it adopt a “significant other” policy. The matter was referred to the Membership Committee. Koebke was informed by letter that the “committee [was] absolutely opposed to the recognition of a `significant other’ and recommend[ed] against modification of the rules to provide for a `special guest.'” The Board adopted570*570 the committee’s recommendation and rejected Koebke’s request.

In November 2000, Koebke and French wrote a joint letter to BHCC’s Board in which they asked the Board to extend BHCC’s spousal benefit rights to French. In the letter, the women explained: “Our dilemma is that we cannot legally marry to satisfy the current criteria to play as a couple at Bernardo Heights … giving the true benefits of [Koebke’s] family membership. We feel that our case is unique and isolated, in that other `single’ members of the club do have the option to marry.” They stated that they considered themselves married and set forth the various legal steps they had taken to formalize their relationship, including “[f]il[ing] domestic partnership in the state of California that recognizes each other as legal spouses,” and attached a copy of the filing. The Board rejected the request in a letter to Koebke from the Board’s president, H. Gregory Meeks. Meeks wrote: “There is no provision in the Bylaws for a non-spousal partner to have any of the benefits of membership and the Board of Directors may not unilaterally change the Bylaws. Mr. Monson [BHCC’s attorney] stated the procedure for amending the Bylaws by petition and vote of the membership, which you are free to pursue although you indicated that you do not wish to pursue this path.” He suggested that French apply for her own membership.

In the trial court, Koebke cited instances in which, while rejecting her requests to extend its family benefits to include French, BHCC allegedly granted those benefits to the partners or friends of some of its heterosexual members. For example, even before Michael Wexler married his wife, Joni, they were extended family benefits. Joni Wexler told Koebke that BHCC knew she and Michael Wexler were not married at that time. The non-golfing female partner of another member, Jeff O’Conner, was allowed full social privileges at BHCC, and her daughter golfed with O’Conner even though she was not O’Conner’s daughter. O’Conner made no secret of the fact he was not married to his partner and was not the father of her daughter. Koebke also claimed that Elizabeth Burkholder, a professional golfer, was allowed to play with her “coach/manager/friend” without assessing her green fees for him, an arrangement confirmed by BHCC’s minutes. According to Koebke, another member, Larry Simon, played golf with a nonmember neighbor who he apparently represented was his son, although BHCC members knew they were not related. Additionally, the minor grandchildren of members were allowed to play with members on an unlimited basis and without fees, despite the absence of any provision in BHCC’s bylaws allowing for this. Furthermore, BHCC allowed the adult children and grandchildren of members to play up to 14 times a year, instead of the six specified in the bylaws, and at reduced green fees. BHCC also allowed the Rancho Bernardo High School boys golf team to play free of charge. Finally, according to Jeff O’Conner’s declaration, after Koebke commenced her litigation against BHCC, BHCC’s General Manager, Buzz Colton, told O’Conner that there were other unmarried heterosexual couples who were allowed to play at BHCC and that Koebke had not yet “found that out.”

In 2001, Koebke received a letter from Thomas Monson, BHCC’s attorney and a BHCC member, that stated: “The board of directors recognizes the State of California’s strong public policy favoring marriage and believes that BHCC supports that policy as a family oriented organization.” Koebke claimed that this was the first time she had ever heard BHCC express endorsement of the public policy favoring marriage or assert that it was a “family-oriented organization” defined in a way that excluded her and French. Jeff O’Conner also stated that at no time during the interview process in which he became a member of BHCC was he told that BHCC recognized a strong public policy favoring marriage because it was a 571*571 “family-oriented organization.” O’Conner, who was not married to his female partner, would not have become a member of BHCC had this been disclosed to him. In her deposition, Koebke stated that the Board’s denial of spousal benefits to French was motivated by its fear that if it did so “it would open the flood gates [sic]” to homosexuals and BHCC would become known as “gay friendly,” which a member of the board communicated to her was not “a desire or direction of the Club.”

Koebke stated that she also encountered hostility both before and after she filed suit against BHCC from BHCC members as a result of her attempts to have spousal benefits extended to her partner. Her sexual orientation became a subject of speculation and discussion among BHCC members. One BHCC member, Judy Stillman, overheard another member say that perhaps the men in his group “should get [the plaintiffs] to put on a skit to show us how they do it with toys, and charge an admission price, to help pay for the lawsuit.” A similar comment was overheard by BHCC member O’Conner. Koebke said she was also told that the only way she could utilize BHCC’s spousal benefit was to marry a man. BHCC also required her to register French whenever she played at BHCC in a registration book that did not exist until shortly after Koebke and French filed their lawsuit. Additionally, Koebkebecame the target of what she believed were baseless complaints at BHCC over alleged infractions of club rules, like the club’s dress code.

Plaintiffs’ second amended complaint, which is the basis of the current proceeding, was filed on October 12, 2001. The first cause of action alleged that BHCC had discriminated against plaintiffs on the basis of sex, sexual orientation and marital status in violation of the Unruh Act. Additional causes of action alleged violation of the San Diego Municipal Code’s ban on sexual orientation discrimination, discriminatory restrictions on ownership or use of real property instruments in violation of Civil Code section 53, fraud and misrepresentation. Plaintiffs sought damages, punitive damages and injunctive and declaratory relief.

Defendant answered and filed a motion for summary judgment or, alternatively, summary adjudication. Defendant’s motion was granted. Without specifically addressing plaintiffs’ claims of discrimination under either the Unruh Act or the San Diego Municipal Code, the trial court found that “Defendant did not provide different privileges to plaintiffs than to other unmarried couples.” Judgment was entered in defendant’s favor.

The Court of Appeal found that plaintiffs had failed to establish an Unruh Act violation on the basis of marital status discrimination, gender discrimination, or sexual orientation discrimination. However, the Court of Appeal also concluded that there was a triable issue of material fact as to whether BHCC had discriminatorily enforced its spousal benefit policy. Therefore, the Court of Appeal reversed the summary judgment to the extent that it rejected plaintiffs’ claim that BHCC’s bylaws were applied in a discriminatory manner but, in all other respects, affirmed the judgment.

We granted plaintiffs’ petition for review.

572*572 II. DISCUSSION

A. Introduction

Plaintiffs contend that the Unruh Act prohibits a business from treating married and unmarried couples unequally and, therefore, defendant is engaging in a continuing violation of the Act by extending certain benefits to married couples that it denies to unmarried couples. Plaintiffs seek both statutory damages and injunctive relief. (Civ.Code, § 52 [setting forth damages for violation of the Act]; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, fn. 5, 219 Cal.Rptr. 133, 707 P.2d 195 [recognizing the availability of injunctive relief for a violation of the Act].)

For at least some of the period in which plaintiffs allege this violation has occurred, they have been registered with the state as domestic partners. Although plaintiffs maintain that their claim of marital status discrimination under the Unruh Act is not dependent on their domestic partner status, their claim for injunctive relief requires us to examine the law currently in effect. (White v. Davis (1975) 13 Cal.3d 757, 773, fn. 8, 120 Cal.Rptr. 94, 533 P.2d 222.) As we explain, in the current version of the domestic partnership law, the Legislature has made clear its intention to substantially equalize the status of registered domestic partners and spouses. Therefore, we first examine whether, in light of the current version of the domestic partnership law, the Unruh Act requires businesses to treat registered domestic partners the same as spouses. We conclude that under current law, plaintiffs must be treated the same as spouses for purposes of the Unruh Act.

Plaintiffs maintain they are also entitled to damages, including damages for the period prior to the effective date of the current domestic partnership law. Therefore, it becomes necessary to determine whether BHCC’s denial of the spousal benefit to plaintiffs constituted impermissible marital status discrimination during this earlier period of time. We conclude that BHCC’s policy did not, on its face, constitute either impermissible marital discrimination or sexual orientation discrimination under the Act. But we agree with the Court of Appeal that plaintiffs presented sufficient evidence of discriminatory application of that policy to proceed to trial on a discriminatory application theory.

B. Under Unruh, Treating a Domestic Partner Registered Under the Domestic Partner Act Differently Than a Spouse Constitutes Impermissible Marital Status Discrimination.

Plaintiffs’ claim for injunctive relief requires us to apply the law currently in effect. (White v. Davis, supra, 13 Cal.3d at p. 773, 120 Cal.Rptr. 94, 533 P.2d 222, fn. 8[“`Relief by injunction operates in futuro, and the right to it must be determined as of the date of decision by an appellate court'”], quoting American Fruit Growers v. Parker (1943) 22 Cal.2d 513, 515, 140 P.2d 23.) We must determine, therefore, whether BHCC currently violates the Unruh Act by denying plaintiffs, who are registered as domestic partners, the same benefits it extends to married couples.

1. The Domestic Partner Act

The current version of the domestic partnership statutes, denominated by the Legislature the California Domestic Partner Rights and Responsibilities Act of 2003 became effective January 1, 2005. (Stats.2003, ch. 421, § 2.)^[3] The Domestic Partner Act permits same-sex couples and some 573*573 opposite-sex couples in which one or both individuals are over the age of 62, who share a common residence, to file a Declaration of Domestic Partnership with the Secretary of State. (§ 297.)

Section 297.5 grants domestic partners “the same rights, protections, and benefits” and imposes upon them “the same responsibilities, obligations and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” (§ 297.5, subd. (a).) These rights and responsibilities are extended to current domestic partners, former domestic partners and surviving domestic partners. (§ 297.5, subds. (a)-(c).)

The purpose of the Domestic Partner Act is set forth in uncodified portions of section 297.5, in which the Legislature declares: “This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.” (Stats.2003, ch. 421, § 1, subd. (a).) The Legislature has found “that despite longstanding social and economic discrimination, many lesbian, gay, and bisexual Californians have formed lasting, committed, and caring relationships with persons of the same sex,” and that “[e]xpanding the rights and creating responsibilities of registered domestic partners would further California’s interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution.” (Stats.2003, ch. 421, § 1, subd. (b).)

Section 15 of the Domestic Partner Act, furthermore, requires that the act be “construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.” (Stats.2003, ch. 421, § 15.)

Section 297.5 effectuates the legislative intent by using the broadest terms possible to grant to, and impose upon, registered domestic partners the same rights and responsibilities as spouses in specified areas of laws whether they are current, former or surviving domestic partners. For example, pursuant to section 297.5, subdivision (c), a “surviving registered domestic partner, [upon] the death of the other partner,” is granted all the same rights and is subject to all the same responsibilities, from whatever source in the law, as those “granted to and imposed upon a widow or a widower.” Similarly, section 297.5, subdivision (d) states: “The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses.” Subdivision (e) requires that, “[t]o the extent that provisions of California law adopt, refer to, or rely 574*574 upon … federal law,” and this reliance on federal law would require domestic partners to be treated differently than spouses, “registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law.” (§ 297.5, subd. (e).)

With respect to discrimination, subdivision (f) provides: “Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.” (§ 297.5, subd. (f).) Moreover, with one exception pertaining to eligibility for long-term care plans, subdivision (h) prohibits any public agency in California from discriminating against “any person or couple on the ground that the person is a registered domestic partner rather than a spouse or that the couple [consists of] registered domestic partners rather than spouses.” (§ 297.5, subd. (h).)

It is clear from both the language of section 297.5 and the Legislature’s explicit statements of intent that a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples. It is in light of this intent that we must determine whether the Unruh Act precludes BHCC from granting married couples benefits it denies to persons registered as domestic partners under the Domestic Partner Act. We conclude that the Unruh Act does.

2. The Unruh Act

Civil Code section 51, subdivision (b) states: “All 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.” Enacted in 1959, the Unruh Act amended an 1897 version of Civil Code section 51 that was declarative of a common law doctrine requiring places of public accommodation “to serve all customers on reasonable terms without discrimination and … to provide the kind of product or service reasonably to be expected from their economic role.” (In re Cox (1970) 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992 (Cox).)

Seminal decisions of this court construing the scope of the Act concluded that its protections were not confined to the enumerated categories in the statute but that these categories were “illustrative rather than restrictive.” (Cox, supra, 3 Cal.3d at p. 216, 90 Cal.Rptr. 24, 474 P.2d 992 [the Act prohibits a business from excluding a customer because of his association with another person of unconventional appearance]; Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, 180 Cal.Rptr. 496, 640 P.2d 115 [the Act prohibits an apartment owner from refusing to rent an apartment to a family with a minor child]; O’Connor v. Village Green Owners Assn.(1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427 [the Act prohibits a condominium development from restricting residence to persons over 18].) We also concluded that in enacting the Unruh Act, the Legislature intended to ban all forms of arbitrary discrimination in public accommodations. (Isbister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72, 75, 219 Cal.Rptr. 150, 707 P.2d 212 [“The Act is this state’s bulwark against arbitrary discrimination in places of public accommodation”].)

We revisited these conclusions in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873 (Harris.) In the process of doing so, we created a three-part analytic framework for determining whether a future claim of discrimination, involving a category 575*575 not enumerated in the statute or added by prior judicial construction, should be cognizable under the Act.

Harris involved a claim by women receiving public assistance that a landlord’s policy requiring prospective tenants to have gross monthly incomes equal to or greater than three times the rent charged for an apartment (the minimum income policy) constituted economic status discrimination and was barred by the Unruh Act. The plaintiffs argued that the defendant’s policy excluded persons who could pay the rent, but were unable to meet the minimum income policy. They maintained they were entitled to a trial to determine whether the policy constituted arbitrary discrimination under the Act. (Harris, supra, 52 Cal.3d at p. 1154, 278 Cal.Rptr. 614, 805 P.2d 873.) We held that the Unruh Act did not include within its ambit claims of economic status discrimination because economic status is fundamentally different than the categories either enumerated in the Act or added by judicial construction.

In reaching this conclusion, we affirmed the principle articulated in our earlier decisions that the Act’s enumerated categories are illustrative, rather than restrictive. “Beginning with Cox in 1970, the Unruh Act has been construed to apply to several classifications not expressed in the statute. [Citations.] [¶] We generally presume the Legislature is aware of appellate court decisions. [Citations.] It has not taken specific action to overrule these cases. Moreover, the Legislature has amended the Act several times in the 20-year period since Cox [citation] was decided.” (Harris, supra,52 Cal.3d at pp. 1155-1156, 278 Cal.Rptr. 614, 805 P.2d 873.)

However, our examination of the legislative response to our prior decisions led us to conclude that the Legislature had not acquiesced in the broad proposition set forth in those decisions that the Act was intended to ban all forms of arbitrary discrimination. “Notwithstanding our language about `arbitrary discrimination’ and `stereotypes,’ the Legislature has continued to pay close attention to the specified categories of discrimination in the Unruh Act…. Thus, the Legislature’s continued emphasis on the specified categories of discrimination in the Act (without adding the words `arbitrary,’ `unreasonable,’ or similar language to its provisions) reflects the continued importance of those categories in its proper interpretation.” (Harris, supra, 52 Cal.3d at pp. 1158-1159, 278 Cal.Rptr. 614, 805 P.2d 873.)

Having therefore concluded that the Unruh Act’s ban on arbitrary discrimination was qualified by the continued importance of the enumerated categories, we considered whether the Act could, nonetheless, be extended to claims of economic status discrimination “in light of both the language and history of the Act and the probable impact on its enforcement of the competing interpretations urged on us by the parties.” (Harris, supra, 52 Cal.3d at p. 1159, 278 Cal.Rptr. 614, 805 P.2d 873.)

We devised a three-part analysis to answer this question. First, in reviewing the statutory language, we discerned an essential difference between economic status and both the Act’s enumerated categories and those added by judicial construction. We found that their common element was that they “involve personal as opposed to economic characteristics — a person’s geographical origin, physical attributes, and personal beliefs.” (Harris, supra, 52 Cal.3d at p. 1160, 278 Cal.Rptr. 614, 805 P.2d 873.) 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.

576*576 Second, we asked in Harris whether a legitimate business interest justified the minimum income policy. We found it did. “The minimum income policy is no different in its purpose or effect from stated price or payment terms. Like those terms, it seeks to obtain for a business establishment the benefit of its bargain with the consumer: full payment of the price. In pursuit of the object of securing payment, a landlord has a legitimate and direct economic interest in the income level of prospective tenants, as opposed to their sex, race, religion, or other personal beliefs or characteristics.” (Harris, supra, 52 Cal.3d at p. 1163, 278 Cal.Rptr. 614, 805 P.2d 873.)

Third, we considered the potential consequences of allowing claims for economic status discrimination to proceed under the Unruh Act. We perceived “two significant adverse consequences that would likely follow from plaintiffs’ proposed interpretation of the Act.” (Harris, supra, 52 Cal.3d at p. 1166, 278 Cal.Rptr. 614, 805 P.2d 873.) First, we believed it would involve courts “in a multitude of microeconomic decisions we are ill equipped to make” regarding the reasonableness of the criteria used by landlords to screen tenants unable to pay their rent regularly and on time throughout the tenancy. (Ibid.) Second, permitting prospective tenants to challenge such criteria on a case-by-case basis might induce landlords to abandon such neutral criteria as income, applicable to all prospective tenants regardless of their personal characteristics, and use subjective criteria that might “disguise and thereby promote the very kinds of invidious discrimination based on race, sex and other personal traits that the Unruh Act prohibits.” (Id. at p. 1169, 278 Cal.Rptr. 614, 805 P.2d 873.) Therefore we concluded that the minimum income policy did not violate the Act. (Ibid.)

3. Application of the Harris Analysis to Plaintiffs’ Marital Status Discrimination Claim

Both plaintiffs and BHCC rely on the analytic framework set forth in Harris to determine whether plaintiffs’ marital status discrimination claim is cognizable under the Unruh Act.^[4] We now consider each of Harris’s three prongs on this issue.

a. Does Marital Status Involve Personal Characteristics

As to the first prong of the Harris analysis, plaintiffs contend that marital status involves a personal characteristic like those categories already covered by the Unruh Act. BHCC, however, contends that marital status is nothing more than a legal status conferred by the state that does not involve personal characteristics. We agree with plaintiffs.

We did not define the phrase “personal characteristic” in Harris, but we indicated that, at minimum, it encompassed both the categories enumerated in the Act and those categories added to the Act by judicial construction. (Harris, supra, 52 577*577Cal.3d at pp. 1160-1161, 278 Cal.Rptr. 614, 805 P.2d 873.) Thus, the list would include “sex, race, color, religion, ancestry, national origin, disability, or medical condition” (Civ.Code, § 51, subds. (b),(c)), and unconventional dress or appearance, family status and sexual orientation (Harris, supra, at p. 1161, 278 Cal.Rptr. 614, 805 P.2d 873) but not “financial status or capability.” (Ibid.) 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. (See id., at p. 1160, 278 Cal.Rptr. 614, 805 P.2d 873[unlike economic status, enumerated categories involve personal characteristics like “a person’s geographical origin, physical attributes and personal beliefs”].)

Under this standard, marital status is more like the existing categories to which the Act applies than it is to economic status. The kinds of intimate relationships a person forms, and the decision whether to formalize such relationships implicate deeply held personal beliefs and core values. Indeed, marriage itself is defined as “a personal relation arising out of a civil contract between a man and a woman . . . .” (§ 300.) Similarly, the decision whether to enter into a domestic partnership is motivated by personal values and beliefs. This point was recognized by the Legislature in its characterization of these relationships in the Domestic Partner Act as “lasting, committed, and caring,” and undertaken by two individuals to “share lives together, participate in their communities together, and [for] many [to] raise children and care for other dependent family members together.” (Stats.2003, ch. 421, § 1, subd. (b).)

Thus, contrary to BHCC’s argument, the decision to marry or to enter into a domestic partnership is more than a change in the legal status of individuals who have entered into marriage or domestic partnership. In both cases, the consequences of the decision is the creation of a new family unit with all of its implications in terms of personal commitment as well as legal rights and obligations.

BHCC also relies on the analysis of Harris set forth in Beaty v. Truck Ins. Exchange(1992) 6 Cal.App.4th 1455, 8 Cal.Rptr.2d 593 (Beaty). Beaty is the only appellate decision that has considered whether marital status discrimination is cognizable under the Unruh Act. On the first prong issue, Beaty found that marital status, like the economic status involved in Harris, is a category that the Unruh Act was simply not intended to reach. As noted, in Harris we determined that economic status was fundamentally different than the categories enumerated in the Act as a reason to exclude it from coverage under the Act (Harris, supra, 52 Cal.3d at pp. 1161-1162, 278 Cal.Rptr. 614, 805 P.2d 873). Similarly, in Beaty, the Court of Appeal concluded that the strong public policy favoring marriage categorically precluded recognition of marital status discrimination under the Act. Since Beaty is critical to the parties’ arguments, we discuss it at some length.

Beaty involved a male couple. The two men had lived together for 18 years and had taken various legal steps to create a common life, including jointly owning many of their assets, among them their residence, and naming one another as each other’s primary beneficiary for estate and life insurance purposes. The defendant insurer had issued them joint homeowners and automobile insurance policies, but refused to issue them an umbrella policy for a single premium because such policies were available only to married couples. (Beaty, supra, 6 Cal.App.4th at p. 1458, 8 Cal.Rptr.2d 593.) The plaintiffs sued, alleging 578*578 that the defendant’s refusal to issue the umbrella policy constituted sexual orientation and marital status discrimination in violation of the Unruh Act. Their action was dismissed after the trial court sustained the defendant’s demurrer without leave to amend.

The Court of Appeal cited Harris for the proposition that “future expansion of prohibited categories should be carefully weighed to ensure a result consistent with legislative intent. [Citations.]” (Beaty, supra, 6 Cal.App.4th at p. 1462, 8 Cal.Rptr.2d 593, fn. omitted.) Accordingly, the court observed: “In light of Harris, we decline plaintiffs’ invitation . . . to include `marital status’ as an additional category of prohibited discrimination. There is a strong policy in this state in favor of marriage [citations], and in the context here presented that policy would not be furthered (and in the case of an unmarried heterosexual couple, would actually be thwarted) by including marital status among the prohibited categories. It is for the Legislature, not the courts, to determine whether nonmarital relationships such as that involved in this case `deserve the statutory protection afforded the sanctity of the marriage union.'” (Id. at pp. 1462-1463, 8 Cal.Rptr.2d 593.)

Unquestionably, there is a strong public policy favoring marriage. (Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 9, 192 Cal.Rptr. 134, 663 P.2d 904.) This policy serves specific interests “not based on anachronistic notions of morality. The policy favoring marriage `is rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.’ (Laws v. Griep (Iowa 1983) 332 N.W.2d 339, 341.) Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 275, 250 Cal.Rptr. 254, 758 P.2d 582; Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106 [observing that “the structure of society itself . . . depends upon the institution of marriage”].)^[5]

There are also practical interests served by the policy favoring marriage. For purposes of determining entitlement to rights and benefits, a marriage license provides a “readily verifiable method of proof.” (Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 10, 192 Cal.Rptr. 134, 663 P.2d 904.) By contrast, a claim for such rights and benefits made by an unmarried couple presents “numerous problems of standards and difficulties of proof” regarding the depth and stability of the nonmarital relationship that create a potential for “intrusions into rights of privacy and association.” (Ibid.; Elden v. Sheldon, supra, 46 Cal.3d at pp. 275-276, 250 Cal.Rptr. 254, 758 P.2d 582.) A related interest supporting the public policy of promoting marriage is to minimize the risk of third parties who provide services or benefits from loss or fraud. (Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 158, 173 Cal.Rptr. 68 [upholding denial of cause of action for wrongful death to surviving partner of unmarried couple under former Code of Civil Procedure section 377 because “an action based 579*579 on a meretricious relationship presents greater problems of proof and dangers of fraudulent claims than an action by a spouse or putative spouse”].)

These policy considerations cannot justify denial of Unruh Act protection to domestic partners, whatever their application to other unmarried individuals and couples. To couples who meet the requirements of establishing a domestic partnership under the Domestic Partner Act and who have registered under that law, the Legislature has granted legal recognition comparable to marriage both procedurally and in terms of the substantive rights and obligations granted to and imposed upon the partners, which are supported by policy considerations similar to those that favor marriage. (§ 297.5, subd. (a).) Thus, under the Domestic Partner Act, domestic partners, like “[f]ormally married couples,” have been “granted significant rights and bear important responsibilities toward one another which are not shared” by couples who cohabit or who have not registered as domestic partners. (Elden v. Sheldon, supra, 46 Cal.3d at p. 275, 250 Cal.Rptr. 254, 758 P.2d 582.)

Furthermore, as explained in the next part, the practical considerations served by the policy favoring marriage are now also promoted by the Domestic Partner Act. The Declaration of Domestic Partnership provides a readily verifiable method of proof for determining eligibility for services and benefits. Additionally, the mutual obligations undertaken by domestic partners, comparable to those of spouses, minimizes any economic risk to third parties that extend such services and benefits to domestic partners. Thus, in creating domestic partnerships, the Legislature has also created a policy favoring such partnerships similar to the policy favoring marriage.

Additionally, the Legislature has made it abundantly clear that an important goal of the Domestic Partner Act is to create substantial legal equality between domestic partners and spouses. As noted above, subdivision (f) of section 297.5 states: “Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.” We interpret this language to mean that there shall be no discrimination in the treatment of registered domestic partners and spouses. This reading comports with the Legislature’s statement that the Domestic Partnership Act “shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and as to the state, as the laws of California extend to and impose upon spouses.” (Stats. 2003, ch. 421, § 15, italics added.) Of special relevance to the Unruh Act issue presented here, the Legislature has found that expanding the rights and obligations of domestic partners “would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution.” (Id., § 1, subd. (b).)

In light of this legislative action, we conclude that the policy favoring marriage is not served by denying registered domestic partners protection from discrimination under the Unruh Act. To the contrary, permitting a business to discriminate against registered domestic partners by denying them benefits or services it extends to spouses violates the comparable public policy favoring domestic partnership. We conclude that, consistent with the first prong of the Harris analysis, discrimination against registered domestic partners in favor of married couples is a 580*580 type of discrimination that falls within the ambit of the Unruh Act.

b. Legitimate Business Interests

As a further ground for holding that the Unruh Act did not ban marital status discrimination, Beaty invoked the second prong of the Harris analysis and found that the insurer’s denial to the plaintiffs of the umbrella coverage it issued to married couples was justified by legitimate business interests. (See Harris, supra, 52 Cal.3d at pp. 1162-1165, 278 Cal.Rptr. 614, 805 P.2d 873.) Likewise, BHCC, relying onBeaty, also argues that its restriction of the spousal benefit to married couples serves legitimate business interests.

In its discussion of the second prong of Harris, Beaty found that the “legal unity of interest and the shared responsibilities attendant upon a marriage” both minimized the economic risk to the insurer in providing such coverage to married couples and “provide[d] a fair and reasonable means of determining eligibility for services or benefits.” (Beaty, supra, 6 Cal.App.4th at p. 1464, 8 Cal.Rptr.2d 593.) By contrast, an insurer could reasonably conclude that the relationship of an unmarried couple “lacks the assurance of permanence necessary to assess with confidence the risks insured against in a joint umbrella policy.” (Ibid.) As discussed, these same concerns have been echoed in other decisions rejecting claims by unmarried couples to such benefits and services. (E.g., Elden v. Sheldon, supra, 46 Cal.3d at pp. 275-276, 250 Cal.Rptr. 254, 758 P.2d 582; Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d at p. 9, 192 Cal.Rptr. 134, 663 P.2d 904; Harrod v. Pacific Southwest Airlines, supra, 118 Cal.App.3d at p. 158, 173 Cal.Rptr. 68.)

These concerns, however, do not apply to registered domestic partners. Registered domestic partners occupy a legal status that, like marital status, is formalized, public and verifiable. (§§ 297, 298, 298.5, 299.) The Declaration of Domestic Partnership that registered domestic partners are required to file with the Secretary of State (§ 297, subd. (b)) provides an easily verifiable method of determining whether a couple is in a registered domestic partnership. Therefore, a business is no longer required to “undertake a `massive intrusion’ [citation] into [the couples’] private lives [and] inquire into their sexual fidelity and emotional and economic ties” (Beaty, supra, 6 Cal.App.4th at p. 1465, 8 Cal.Rptr.2d 593) to determine whether these unions possess a sufficient assurance of permanence and legal unity of interests to extend benefits formerly reserved for spouses. Moreover, because the substantive rights and responsibilities granted to and imposed upon domestic partners are the same as those granted to and imposed upon spouses (§ 297.5), a business extending such benefits would have the same assurance against loss or fraud that it would have in the case of spouses.

In light of this analysis, we find unpersuasive the various business interests BHCC claims are served by its policy of denying family membership benefits to any but married couples. BHCC claims that extending that benefit to “members’ friends” might lead to overuse of its facilities, create a disincentive for such friends to apply for membership and would discourage its “legitimate goal of creating a family-friendly environment by welcoming the immediate family of married members.” French, however, is not simply Koebke’s friend, but her registered domestic partner, with rights and responsibilities similar to that of a spouse. Extending the spousal benefit to her would not create the stampede on the fairway that BHCC appears to envision.

581*581 BHCC also argues that denying French the spousal benefit contributes to the creation of a “family-friendly environment.” While creating a family-friendly environment may be a legitimate business interest, that policy is not served when a business discriminates against the domestic partner of one of its members. Rather, by so doing, the business violates the policy favoring domestic partnerships which, like the policy favoring marriage, seeks to promote and protect families as well as reduce discrimination based on gender and sexual orientation. Accordingly, we conclude that, while promoting a “family-friendly environment” may be a legitimate business interest, that interest is not furthered by excluding families formed through domestic partnership.

c. Consequences of Allowing Plaintiffs’ Claim to Proceed

Lastly, in rejecting marital status as a category for purposes of Unruh Act protection,Beaty applied the third prong of the Harris test, which inquires about “the consequences that will flow” from permitting a plaintiff to proceed with a novel Unruh Act claim. (Harris, supra, 52 Cal.3d at p. 1165, 278 Cal.Rptr. 614, 805 P.2d 873.)Beaty concluded that the consequence of allowing plaintiffs to proceed with their marital status discrimination claim “would be that all de facto couples would be treated as a married unit” in derogation of “the strong policy in this state favoring marriage.” (Beaty, supra, 6 Cal.App.4th at p. 1465, 8 Cal.Rptr.2d 593, italics added.) In this case, however, allowing plaintiffs to proceed with their claim would not have this adverse consequence, because our ruling affects only registered domestic partners, not all unmarried couples. Moreover, the consequence of interpreting the Unruh Act to prohibit discrimination against domestic partners would have the positive effect of effectuating the Legislature’s intent expressed in the Domestic Partner Act to create substantial legal equality between registered domestic partners and spouses.

d. BHCC’s Other Arguments

BHCC argues that section 297.5 has no impact on whether the Unruh Act bars discrimination against domestic partners.^[6] It contends that section 297.5 extends to domestic partners only such rights and responsibilities as are granted to and imposed upon spouses and, because spouses are not protected under the Act, neither are domestic partners. This argument misses the point. As discussed, consistent with the first prong of Harris, discrimination against domestic partners is a type of discrimination that falls within the ambit of the Unruh Act. Nonetheless, BHCC, following Beaty, argues that special policy and practical considerations unique to marriage should preclude courts from interpreting the Unruh Act to prohibit discrimination that favors married couples over unmarried ones. As we have explained, these rationales do not justify discrimination between married couples and domestic partners registered under the Domestic Partner Act.

BHCC embraces the view expressed by the Beaty court that the inclusion of marital status in antidiscrimination statutes other than the Unruh Act shows that the Legislature’s failure to add that category to the Unruh Act implies a legislative intent that such discrimination not 582*582 be included within the Act. (Beaty, supra, 6 Cal.App.4th at p. 1463, 8 Cal.Rptr.2d 593.) Historically, however, the scope of the Act has been determined by both legislative amendments to the statute and judicial decisions, and the Legislature has not seen fit to continuously “update” the Unruh Act to include new forms of prohibited discrimination. (See Harris, supra, 52 Cal.3d at pp. 1154-1159, 278 Cal.Rptr. 614, 805 P.2d 873.) Moreover, we are not concerned at this point with marital status discrimination generally but the discrimination against domestic partners outlawed in the Domestic Partner Act. The Legislature’s failure to amend the Act to expressly prohibit such discrimination is a particularly weak barometer of legislative intent. (People v. Anderson (2002) 28 Cal.4th 767, 780, 122 Cal.Rptr.2d 587, 50 P.3d 368.) For the same reason, we also reject BHCC’s related argument that, because the only specific antidiscrimination provision in section 297.5 involves discrimination against domestic partners by public agencies (§ 297.5, subd. (i)), the Legislature did not intend to ban discrimination against domestic partners in public accommodations. No specific legislative declaration is required for this court to infer from the statements of legislative intent accompanying the Domestic Partner Act an intent that registered domestic partners should not be discriminated against in favor of married couples in public accommodations.

BHCC also contends that, in order to qualify for protection under the Unruh Act, a category must involve a protected class under federal equal protection law. In a related claim, BHCC argues the enumerated categories have in common that they encompass a group broadly stigmatized by the wider society. But Harris did not hold that only classes protected under federal equal protection law were worthy of protection under the Unruh Act, nor did we require a history of stigmatization in order to bring a category within the ambit of the Act.

Moreover, discrimination based on marital status implicates discrimination against homosexuals who, as the Legislature recognized in the Domestic Partner Act, have been subject to widespread discrimination. For example, in its findings with respect to section 297.5, the Legislature notes that gay, lesbian, and bisexual Californians have established “lasting, committed, and caring relationships” despite “longstanding social and economic discrimination.” (Stats.2003, ch. 421, § 1, subd. (b).) Additionally, the Legislature declared that one purpose served by expanding the rights of domestic partners is to combat such discrimination. (Ibid.)

Citing subdivision (c) of Civil Code section 51, BHCC also argues that its policy passes muster under the Act because it applies equally to all unmarried couples and individuals across the enumerated categories of the Act, e.g., it applies equally without regard to race, religion, nationality, gender, etc. Subdivision (c) provides: “This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, or medical condition.” A similar argument was made in Beaty which found that “the Unruh Act was not intended to create a right of insurance access so long as the insurer’s policy is applicable alike to all persons regardless of race, color, sex, religion, etc. [Citations.]” (Beaty, supra, 6 Cal.App.4th at p. 1463, 8 Cal.Rptr.2d 593.)^[7] Because the defendant’s 583*583 denial of umbrella policies to unmarried couples was not based on the enumerated categories in the Act, the Court of Appeal concluded the plaintiffs had not been “singled out for arbitrary treatment.” (Ibid.)

If Beaty meant to suggest by this observation that only the enumerated categories in the Act can provide a basis for a claim of unlawful discrimination under the Act, the observation was inaccurate. As Beaty elsewhere acknowledges, in Harris we declined to overrule our prior decisions that “extended the Unruh Act to classifications not expressed in the statute.” (Beaty, supra, 6 Cal.App.4th at p. 1462, 8 Cal.Rptr.2d 593.) Thus, in Harris, we cited the statutory language relied on byBeaty for the limited purpose of showing that the Legislature’s continued emphasis on the enumerated categories was evidence that it did not intend for the Act to ban all forms of arbitrary discrimination. (Harris, supra, 52 Cal.3d at p. 1158-1159, 278 Cal.Rptr. 614, 805 P.2d 873.) We did not hold that this legislative activity foreclosed judicial expansion of the Act to include new categories. We merely cautioned that the addition of new categories would have to be consistent with legislative intent. (Ibid.) As discussed above, extending the Act to protect registered domestic partners goes no farther than the express and implied legislative mandate against discrimination found in the Domestic Partner Act.

We conclude that the Unruh Act prohibits discrimination against domestic partners registered under the Domestic Partner Act in favor of married couples. Therefore, to the extent plaintiffs’ marital status discrimination claim implicates the Domestic Partner Act, BHCC is not entitled to summary judgment.

C. Prior to Enactment of the Domestic Partner Act, BHCC’s Spousal Benefit Policy Did Not Constitute Either Impermissible Marital Status Discrimination or Sexual Orientation Discrimination on Its Face, but Plaintiffs May Still Seek to Prove that the Policy Violated the Unruh Act as Applied to Them.

In addition to seeking injunctive relief, plaintiffs seek damages for violations of the Unruh Act “for being subject to discriminatory treatment by [BHCC] for many years prior” to the effective date of the Domestic Partner Act on January 1, 2005.^[8]Therefore, we address whether, during this earlier period, BHCC’s denial of the spousal benefit to plaintiffs constituted impermissible marital status discrimination under the Unruh Act. We conclude that, on its face, the policy did not violate the Unruh Act. We also address and reject plaintiffs’ alternative claim that, on its face, BHCC’s policy violated the Act’s prohibition of sexual orientation discrimination. However, we agree with the Court of Appeal that, while BHCC’s policy did 584*584 not on its face constitute either marital status or sexual orientation discrimination, sufficient evidence of unequal application of the policy was adduced by plaintiffs to allow them to proceed on their Unruh Act claim on an unequal application theory.

As noted, Beaty found that the policy favoring marriage precluded recognition of marital status as a protected category under the Unruh Act. We need not decide whether that categorical statement is correct because even if we assume that marital status discrimination, outside the context of the Domestic Partner Act, is cognizable under the Unruh Act, such discrimination would nonetheless be permissible if justified by “legitimate business interests.” (Harris, supra, 52 Cal.3d at p. 1162, 278 Cal.Rptr. 614, 805 P.2d 873.) Applying this test to the case before us, we conclude that legitimate business interests facially justified BHCC’s spousal benefit policy during the period before the effective date of the Domestic Partner Act.^[9]

BHCC argues that its goal in adopting its spousal benefit policy was to strike a balance between competing concerns. BHCC wanted to attract and maintain members while preventing overutilization of its facilities. BHCC could reasonably have concluded that these goals would best be served by extending certain benefits to families created through marriage but not to unmarried couples and individuals. BHCC could also have concluded that extending spousal benefits to unmarried individual members would have led to overutilization of its facility, created a disincentive for the friends of such members to buy their own memberships in the club, and created a constant influx of casual users of the course that may have had an adverse effect on the creation of a family-friendly environment, to the extent that that may be a legitimate business interest. Prior to the Domestic Partner Act, a marriage license presented the clearest method by which BHCC could distinguish among its members in order to extend benefits to some, but not to others, and achieve its larger goals. In this connection, BHCC was not obligated to employ other methods, such as requiring or allowing proof of cohabitation, that were arguably less reliable and more intrusive than a marriage license to ascertain the nature and stability of its unmarried members’ relationships. Of course, BHCC was free to cut finer distinctions than married and unmarried, but its failure to do so, even though it may have resulted in some degree of unfairness to committed couples like plaintiffs, did not on its face constitute impermissible marital status discrimination.

Accordingly, we conclude that BHCC’s spousal benefit policy for the period prior to the Domestic Partner Act did not, on its face, constitute impermissible marital discrimination under the Unruh Act.^[10]

585*585 Plaintiffs alternatively contend that BHCC’s policy facially violated the Unruh Act’s proscription against sexual orientation discrimination (Harris, supra, 52 Cal.3d at p. 1155, 278 Cal.Rptr. 614, 805 P.2d 873), because using marriage as a criterion for allocating benefits necessarily denies such benefits to all of its homosexual members who, like plaintiffs, are unable to marry. (§ 300 [“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”].)

In Harris, we rejected an analogous claim. The plaintiffs in Harris argued that, assuming economic status was not protected under the Act, the defendant’s minimum income policy constituted gender discrimination because of its disparate impact on women who were more likely to be receiving public assistance and who generally had lower incomes than men. (Harris, supra, 52 Cal.3d at p. 1170, 278 Cal.Rptr. 614, 805 P.2d 873.) We observed, however, that “the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation.” (Id. at p. 1172, 278 Cal.Rptr. 614, 805 P.2d 873.) Examining the language of Civil Code section 51 we explained, “The references to `aiding’ and `inciting’ denial of access to public accommodations, to making discriminations and restrictions, and to the commission of an `offense’ imply willful, affirmative misconduct on the part of those who violate the Act. Moreover, the damages provision allowing for an exemplary award of up to treble the actual damages suffered with a stated minimum amount reveals a desire to punish intentional and morally offensive conduct. In contrast, title VII of the Civil Rights Act [which allows a disparate impact analysis] does not allow recovery of compensatory or punitive damages, but confines the plaintiff to specified forms of equitable relief. [Citation.]” (Harris, supra, at p. 1172, 278 Cal.Rptr. 614, 805 P.2d 873.) We noted further that the Act “explicitly exempts standards that are `applicable alike to persons of every sex, color, race, religion, ancestry, national origin, or blindness or other physical disability.’ ([Civ.Code] § 51.) By its nature, an adverse impact claim challenges a standard that is applicable alike to all such persons based on the premise that, notwithstanding its universal applicability, its actual impact demands scrutiny. If the Legislature had intended to include adverse impact claims, it would have omitted or at least qualified this language in section 51.” 586*586 (Id. at pp. 1172-1173, 278 Cal.Rptr. 614, 805 P.2d 873.)

We also observed that the plaintiffs had failed to cite any authority from any jurisdiction involving statutes comparable to the Unruh Act in which the disparate impact test had been employed. (Harris, supra, 52 Cal.3d at p. 1173, 278 Cal.Rptr. 614, 805 P.2d 873.) Furthermore, we noted that the federal laws that applied a disparate impact test were aimed at specific forms of discrimination in employment and housing while the Unruh Act “`aims to eliminate arbitrary discrimination in the provision of all business services to all persons. Adoption of the disparate impact theory to cases under the Unruh Act would expose businesses to new liability and potential court regulation of their day-to-day practices in a manner never intended by the Legislature. This we decline to do.'” (Id. at p. 1174, 278 Cal.Rptr. 614, 805 P.2d 873.) We held, therefore, “that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.” (Id. at p. 1175, 278 Cal.Rptr. 614, 805 P.2d 873.) Nonetheless, we acknowledged that evidence of disparate impact could be admitted in Unruh Act cases because “such evidence may be probative of intentional discrimination in some cases . . . .” (Ibid.)

Plaintiffs cast their claim as one of disparate treatment rather than disparate impact. Plaintiffs argue that, unlike disparate impact, in which the disproportionate impact of a facially neutral policy on a protected class is a substitute for discriminatory intent, their claim is that BHCC’s discriminatory intent was established by its adoption of marriage as the criterion by which to extend benefits to some of its members, but not others, because gay and lesbian couples cannot marry in this state. Thus, according to plaintiffs, BHCC’s adoption of the spousal benefit policy amounted to intentional sexual orientation discrimination. Plaintiffs argue that this disparate treatment theory is a recognized theory of discrimination under the Unruh Act. (See Roth v. Rhodes(1994) 25 Cal.App.4th 530, 538, 30 Cal.Rptr.2d 706 [“A policy or a classification, in itself permissible, may nevertheless be illegal if it is merely a device employed to accomplish prohibited discrimination”].) Here, however, plaintiffs do not point to any evidence that BHCC adopted its spousal benefit policy to accomplish discrimination on the basis of sexual orientation. Rather, plaintiffs’ argument, like disparate impact analysis, relies on the effects of a facially neutral policy on a particular group and would require us to infer solely from such effects a discriminatory intent. Accordingly, the reasons we gave for rejecting disparate impact in Harris would seem to apply with equal force to plaintiffs’ theory. We therefore conclude that BHCC’s policy did not, on its face, discriminate against plaintiffs on the basis of sexual orientation.

Nonetheless, as the Court of Appeal noted, there was evidence adduced in the summary judgment proceeding below that BHCC did not apply its facially neutral policy in an impartial manner. Rather, as the Court of Appeal observed, there was evidence that unmarried, heterosexual members of BHCC were granted membership privileges to which they were not entitled, while plaintiffs were denied such privileges purportedly pursuant to BHCC’s spousal benefit policy. There was, moreover, significant evidence that BHCC’s directors were motivated by animus toward plaintiffs because of their sexual orientation, including evidence of BHCC’s inconsistent application of the spousal benefit policy to its unmarried, 587*587heterosexual members while, at the same time, it repeatedly rebuffed plaintiffs’ efforts to modify the policy to include them. We conclude then that plaintiffs should be allowed to try to establish that, prior to 2005, BHCC’s spousal benefit policy was discriminatorily applied in violation of the Unruh Act. (See Everett v. Superior Court(2002) 104 Cal.App.4th 388, 128 Cal.Rptr.2d 418 [reversing summary judgment where the plaintiffs presented evidence sufficient to support an inference that amusement park’s facially neutral cutting in line policy was discriminatory as applied against African-Americans].)

DISPOSITION

For the foregoing reasons, we reverse the judgment of the Court of Appeal in part, affirm it in part, and remand the case for further proceedings consistent with this opinion.

GEORGE, C.J., KENNARD, BAXTER, and CHIN, JJ., concur.

Concurring and Dissenting Opinion by WERDEGAR, J.

I concur in the majority’s conclusion that because the Unruh Civil Rights Act (Civ.Code, § 51) prohibits discrimination against registered domestic partners on the basis of their marital status and plaintiffs are registered domestic partners under the Domestic Partner Rights and Responsibilities Act of 2003 (Stats.2003, ch. 421), defendant Bernardo Heights Country Club (BHCC) is not entitled to summary judgment on plaintiffs’ claim for injunctive relief against marital status discrimination. (Maj. opn., ante, pt. II.B.) I respectfully disagree, however, with the majority’s conclusion that “legitimate business interests facially justified BHCC’s spousal benefit policy” (maj. opn., ante, 31 Cal.Rptr.3d at p. 584, 115 P.3d at p. 1227) beforeJanuary 1, 2005, the effective date of the current act. As the majority concedes (id.,31 Cal.Rptr.3d at p. 584, fn. 10, 115 P.3d at p. 1228, fn. 10), plaintiffs have presented evidence that they were registered as domestic partners under the partnership statutes in effect between January 1, 2000, and January 1, 2005. The business interests the majority cites as justifying the earlier discrimination are the same interests BHCC posits and the majority rejects as justifying BHCC’s current discrimination. In my view, those business interests went no further in justifying discrimination against domestic partners registered under the previous act than they do now.

In its brief on the merits, BHCC posited the following business justifications for its spousal benefit policy: (1) to restrict access in order to ensure availability of tee times, avoid slow play, and preserve the golf course’s condition; (2) to attract new members and discourage “free riding” guests from playing repeatedly without joining; and (3) to help create a “family-friendly environment.” I agree that restricting access, attracting members, and maintaining a congenial atmosphere for families are legitimate goals for a country club. But in light of this court’s holding that those interests do not justify discrimination against domestic partners registered under the current act, BHCC, in my view, cannot demonstrate, as a matter of law on the summary judgment record, that these goals justified discriminating against couples in registered domestic partnerships in the 2000-2004 period.

First, with regard to access, BHCC reasonably declines to “extend unlimited golfing privileges to members’ friends.” But to provide club privileges to registered domestic partners would not have been equivalent to opening the club to unlimited use by members’ friends: even under California’s first domestic partnership statute, effective January 1, 2000, partners were 588*588 far more than “friends.” Under that law (Stats.1999, ch. 588), partners were defined as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” (Fam.Code, former § 297, subd. (a).)^[11] A partnership could be formed only by jointly filing a notarized declaration and form with the Secretary of State (former § 298), in which the partners stated they shared a residence and “agree[d] to be jointly responsible for each other’s basic living expenses incurred during the domestic partnership” (former § 297, subd. (b)(2)). The Secretary of State kept a registry of partnerships and provided the partners with a copy of the registered form. (Former § 298.5, subd. (b).) A person could not register in a partnership if married, could have only one partner at a time, and could not register a new partnership for six months after formally dissolving the old one. (Former §§ 297, 298.5, 299.)

A country club member might have dozens of golfing friends, but even under the law from 2000 through 2004 the member could have had only one registered domestic partner at a time and was restricted in how often he or she could change registered partners. As far as the parties’ briefs reveal, plaintiffs were the only registered partners seeking benefits at BHCC, but even at a club with several members in registered partnerships, according golfing privileges to each such member would not have significantly impacted tee times or course conditions. What the majority observes about plaintiffs’ partnership today was equally true in 2000 to 2004: extending club benefits to plaintiff French “would not create the stampede on the fairway that BHCC appears to envision.” (Maj. opn., ante, 31 Cal.Rptr.3d at p. 580, 115 P.3d at p. 1224.)

BHCC’s second asserted concern, that extending privileges would result in “free riding, i.e. inviting guests who are avid golfers who would use the club repeatedly, at a fraction of what it would cost to become a member,” is similarly no more applicable to registered domestic partners under the 2000-2004 laws than to partners registered under the current act. Providing registered domestic partners club privileges would not have allowed a club member simply to get his or her favorite golfing partner onto the course as a domestic partner; rather, the member would have had to declare to the Secretary of State, on pain of misdemeanor criminal liability, that the two shared a residence and were financially responsible for each other’s needs, a responsibility enforceable by creditors. (Former §§ 297, subd. (e), 298, subd. (c).) That significant numbers of club members would have falsely so declared, thus subjecting themselves to financial responsibilities and possible criminal liability and, in many cases, impliedly misrepresenting their sexual orientation, is highly unlikely.

Denying registered domestic partners club privileges could, in theory, have encouraged some partners of members to purchase their own memberships. But that is equally true today, under the current version of the domestic partnership law, yet the majority holds that neither that, nor any other legitimate business interest, currently justifies denying privileges to domestic partners. For that matter, the asserted justification would then, as now, apply in vastly higher numbers to members’ spouses: had BHCC not extended club privileges to spouses, many husbands and wives of members could have been expected to purchase their own memberships, thus improving BHCC’s business position.

589*589 BHCC presumably did not deny privileges to spouses because to do so would have impeded the club’s third asserted goal, that of “creating a family-friendly environment by welcoming the immediate family of married members.” But that goal, as well, fails to justify denying privileges to registered domestic partners. By “family-friendly environment,” BHCC, which denies having intentionally discriminated on the basis of sexual orientation, cannot mean a club devoid of gay and lesbian members. As the Unruh Civil Rights Act proscribes discrimination on the basis of sexual orientation (maj. opn., ante, at p. 31 Cal.Rptr.3d at p. 584, 115 P.3d at p. 1228; seeHarris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155, 278 Cal.Rptr. 614, 805 P.2d 873), a business could not defend against liability for marital status discrimination by claiming such discrimination was warranted as a means to effectuate sexual orientation discrimination. A prohibited discriminatory goal cannot itself constitute a legitimate business interest justifying discrimination.

By a “family-friendly” club environment, then, I take BHCC to mean not an environment excluding gay and lesbian couples, but, rather, an environment that welcomes members’ immediate families and includes them in club activities, promoting fuller social relationships within the club membership. This is a legitimate goal; BHCC reasonably could want club members to get to know each other better by golfing and socializing with one another’s families, but this goal would be disserved, not served, by the club’s policy of denying club privileges to registered domestic partners of members. Even under California’s first domestic partnership law, a couple registered as domestic partners necessarily lived together, were financially responsible for one another’s needs, and had “chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” (Former § 297.) Again, what the majority says of the current day was no less true in the 2000-2004 period: the interest in “promoting a `family-friendly environment’ . . . is not furthered by excluding families formed through domestic partnership.” (Maj. opn.,ante, 31 Cal.Rptr.3d at p. 581, 115 P.3d at p. 1224-25.)

In finding that legitimate business interests justified BHCC’s marital status discrimination prior to 2005, the majority repeats BHCC’s claims its policy avoided overutilization, encouraged new memberships, and helped create a family-friendly environment. (Maj. opn., ante, 31 Cal.Rptr.3d atp. 584, 115 P.3d at p. 1227.) But, as shown above, these interests no more justified denying club privileges to members’ registered domestic partners before January 1, 2005, than they did after that date.

The majority also echoes, as an asserted business interest, BHCC’s claim (in discussing the consequences of holding that the Unruh Civil Rights Act prohibits marital status discrimination) that it would have to make club facilities freely available to members’ friends because, absent a marriage requirement, it would have no way, without intruding on members’ privacy, to distinguish among nonmarital relationships. BHCC, the majority reasons, was not required to use criteria or methods of proof that were “arguably less reliable and more intrusive than a marriage license to ascertain the nature and stability of its unmarried members’ relationships.” (Maj. opn., ante, 31 Cal.Rptr.3d at p. 584, 115 P.3d at p. 1227.) While this reason justifies rejecting plaintiffs’ claim that BHCC’s policy illegally discriminates against all unmarried couples, it carries no justificatory power with regard to registered domestic partners, whose status is readily and nonintrusively verifiable by their registration. The majority makes 590*590 precisely this observation in rejecting BHCC’s justification for its current discrimination (id., 31 Cal.Rptr.3d at p. 580, 115 P.3d at p. 1224), but unaccountably ignores it in addressing past discrimination.

The majority’s fundamental illogic lies in virtually ignoring plaintiffs’ previous domestic partner registration in considering their claim of discrimination before 2005, while relying heavily on the legal effect of their present registration under the current law. In a footnote, the majority asserts plaintiffs “do not base their marital status discrimination claim for this period of time on those [earlier domestic partnership] statutes.” (Maj. opn., ante, 31 Cal.Rptr.3d at p. 584, fn. 10, 115 P.3d at p. 1228, fn. 10.) But in their opening brief, plaintiffs relied expressly on the earlier laws, arguing that BHCC could have verified couplehood without an intrusive investigation because “since January 1, 2000, California has allowed non-married couples to register as domestic partners with the state (see Fam. Code, §§ 297-298.5), providing a simple `bright line’ if one were needed.”

At oral argument, to be sure, plaintiffs’ counsel explained that plaintiffs’ marital status discrimination claim for damages did not depend on the domestic partnership laws; BHCC’s discrimination, he argued, was and is illegal as to all unmarried couples, whether or not registered as domestic partners. But this description of plaintiffs’ broad theory applied as well to plaintiffs’ claim for injunctive relief, which the majority allows to go forward. Counsel, moreover, acknowledged that the current law provided him with the strongest case for equal treatment of domestic partners and married couples. In so doing, counsel did not concede that the Unruh Civil Rights Act afforded no protection to domestic partners under prior law; nor did he argue, contrary to plaintiffs’ opening brief, that plaintiffs’ registration as domestic partners (under either law) should be ignored if the court rejected their broad claim of discrimination against all unmarried couples.^[12]

Like the majority, I would reject plaintiffs’ broad claim that the Unruh Civil Rights Act forbids BHCC from discriminating between married and any unmarried couples. But plaintiffs’ having advanced such a broad claim should not blind us to the narrower, more meritorious argument they have also made — that BHCC had no legitimate business interest justifying denial of club privileges to registered domestic partners, whose registration with the Secretary of State, as plaintiffs point out, provides “a simple `bright line’ if one were needed.” The majority recognizes this as to plaintiffs’ claim for prospective relief but illogically denies it as to their claim for damages. For this reason, I 591*591 respectfully dissent from part II.C. of the majority opinion insofar as it rejects the claim for damages for marital status discrimination.

I also differ in one respect with the majority’s analysis of plaintiffs’ claim of sexual orientation discrimination. The majority holds, and I agree, that the evidence of discriminatory animus on the part of BHCC’s directors, together with evidence that BHCC informally extended spousal benefits to unmarried heterosexual members while repeatedly refusing to modify its policies so as to extend such benefits to plaintiffs and other homosexual couples, supports a claim of discriminatory application. (Maj. opn., ante, 31 Cal.Rptr.3d at p. 586-87, 115 P.3d at p. 1229.) But the same evidence would also appear to support plaintiffs’ claim that BHCC maintained its spousal benefit limitation as a “subterfuge” or “device” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 538, 30 Cal.Rptr.2d 706) to accomplish prohibited discrimination on the basis of sexual orientation. Contrary to the majority’s characterization, plaintiffs do not ask the court to infer such intentional sexual orientation discrimination “solely from such [differential] effects” on homosexual members (maj. opn., ante, 31 Cal.Rptr.3d at p. 586, 115 P.3d at p. 1229), but, rather, point to what they contend is significant record evidence “that this was [BHCC’s] specific intent in maintaining this policy.” The evidence that BHCC used its marital status rule as a subterfuge for intentional sexual orientation discrimination may not be sufficient to survive summary judgment, but the majority should at least acknowledge that plaintiffs, in a contention distinct from what the majority characterizes as a disparate impact claim, do argue for such a conclusion.

[1] All members except Social members are entitled to all of BHCC’s privileges and activities; Social members may participate in BHCC’s social activities but not its golfing activities.

[2] In a letter to BHCC’s Board of Directors in November 2000, plaintiffs stated they had “filed domestic partnership” with the state and attached a copy of the filing. The filing itself is not in the record. There is no information in the record about when plaintiffs registered as domestic partners with the city of San Diego or about the scope of the city’s domestic partner ordinance.

[3] All further statutory references, unless otherwise specified, are to the Family Code.

[4] BHCC contends that because plaintiffs are domestic partners, they have not alleged marital status discrimination under the Act. The premise of this argument is that marital status discrimination refers only to differences in treatment of married couples vis-à-vis unmarried individuals. We disagree. A business that decides which benefits are to be extended to members of the public based on whether they are married necessarily discriminates against both unmarried individuals and unmarried couples. (Cf. Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1156, 51 Cal.Rptr.2d 700, 913 P.2d 909 [use of the phrase “marital status” in prohibition against discrimination in the Fair Employment and Housing Act (Gov.Code, § 12955, subds. (a), (b)) includes both unmarried individuals and unmarried couples.].) Domestic partners are a subset of unmarried couples.

[5] The policy favoring marriage is an affirmative policy that fosters and promotes the marital relationship and is not incompatible with some degree of legal recognition and protection for unmarried couples and individuals. (See, e.g., Marvin v. Marvin (1976) 18 Cal.3d 660, 683-684, 134 Cal.Rptr. 815, 557 P.2d 106; Beaty, supra, 6 Cal.App.4th at p. 1463, 8 Cal.Rptr.2d 593 [“There are scores of statutes in which the Legislature has included `marital status’ in antidiscrimination legislation”].)

[6] In connection with these claims, BHCC asks that we take judicial notice of portions of the legislative history of section 297.5. We grant BHCC’s request. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1, 104 Cal.Rptr.2d 377, 17 P.3d 735.) Nothing in this material, however, affects our analysis or alters our conclusions.

[7] The language currently found in subdivision (c) of Civil Code section 51 appeared in the second sentence of a prior version of section 51. (Stats.1958, ch. 1866, § 1, p. 4424.) In Marina Point, we declared its meaning was “obscure.” (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 733, 180 Cal.Rptr. 496, 640 P.2d 115.) In Harris, however, we deemed it significant that the Legislature had not altered or repealed that section, but continued to add categories to it (Harris, supra, 52 Cal.3d at pp. 1158-1159, 278 Cal.Rptr. 614, 805 P.2d 873), and noted that the minimum income policy at issue applied equally to all members of the enumerated categories. We cited this as further evidence that that policy was not arbitrary for purposes of the Act. (Id. at p. 1169, 278 Cal.Rptr. 614, 805 P.2d 873.)

[8] Whether portions of plaintiffs’ claim are barred by the applicable statute of limitations for Unruh Act actions is not before us and we express no opinion on that subject.

[9] Since we conclude that BHCC’s adoption of its spousal benefit policy was justified by legitimate business interests, we need not discuss the third Harris prong, the consequences of allowing plaintiffs’ claim to proceed. (Harris, supra, 52 Cal.3d at pp. 1165-1169, 278 Cal.Rptr. 614, 805 P.2d 873.)

[10] Although plaintiffs were registered domestic partners under the domestic partner statutes in effect between January 1, 2000 and January 1, 2005, (see Stats.1999, ch. 588, Stats.2001, ch. 893) they do not base their marital status discrimination claim for this period of time on those statutes. Rather, they assert that the Unruh Act bars marital status discrimination against unmarried couples generally. Nor do plaintiffs argue that BHCC could not distinguish, in its pursuit of the legitimate business interests articulated above, between registration under those significantly weaker domestic partner statutes and a marriage license. Justice Werdegar’s concurring and dissenting opinion argues that it is illogical to reject BHCC’s legitimate business interests as justifications for denying the spousal benefit to registered domestic partners under the Domestic Partner Act but not under prior versions of that law. We disagree. The prior versions of the domestic partner law were not comparable to the Domestic Partner Act in scope, intent, or procedure. It was, for example, much easier to terminate a domestic partnership under earlier versions of the law than it is under the Domestic Partner Act. (Compare former § 299, subd. (a) and current § 299.) Moreover, the prior versions did not grant to, or impose upon, registered domestic partners the broad range of substantive rights and responsibilities granted to and imposed upon registered domestic partners under the Domestic Partner Act. For example, the only substantive right generally granted to domestic partners registered under the 2000 version of the domestic partner law was hospital visitation rights (Health & Saf.Code, § 1261.) Nor did the prior versions contain the explicit declaration of the Legislature’s intent to equalize the status of registered domestic partners and spouses found in the current version. (Stats.2003, ch. 421, § 1.) Thus, unlike the current expansive law, earlier versions of the domestic partner law distinguished registered domestic partners from other unmarried couples for very limited purposes and domestic partnership registration was not in itself evidence of mutual commitment and responsibility comparable to marriage. We therefore reject the concurring and dissenting opinion’s contention that the existence of these earlier domestic partner statutes should alter our analysis of plaintiffs’ claim for damages during this period.

[11] All further unspecified statutory references are to the Family Code.

[12] The majority also points to procedural and substantive differences between current and prior domestic partnership laws. (Maj. opn., ante, 31 Cal.Rptr.3d at p. 584, fn. 10, 115 P.3d at p. 1228, fn. 10.) In my view, however, neither that domestic partnerships prior to 2005 could be dissolved without a judicial proceeding nor that they accorded partners more limited substantive rights than current law demonstrates that the legitimate business interests BHCC posits justified its discriminatory policy. The goals of limiting access and preventing “free riding” were met by provisions preventing a partnership from being quickly or informally exchanged for a new partnership. (Former §§ 298.5, subd. (c), 299, subd. (b).) As to creation of a family-friendly environment, that the original law defined domestic partners as “shar[ing] one another’s lives in an intimate and committed relationship of mutual caring” (former § 297, subd. (a)) and made partners financially responsible for one another’s needs (id., subd. (b)(2)) amply demonstrates that, even prior to 2005, partners were, as the Legislature characterized them, one another’s “immediate family members.” (Stats.1999, ch. 588, § 1.)

Keywords: Civil Rights, Discrimination

Jankey v. Twentieth Century Fox

212 F.3d 1159 (2000)

1160*1160 Thomas E. Frankovich, Thomas E. Frankovich and Richard K. Jolliffe, San Francisco, California, for the plaintiff-appellant.

David H. Raizman, Bryan Cave, Santa Monica, California, for the defendant-appellee.

Before: REINHARDT and O’SCANNLAIN, Circuit Judges, and SCHWARZER,^[*]Senior District Judge.

SCHWARZER, Senior District Judge:

Summary by Mary M. Howell, Esq.:

ATM machine, on movie lot not open to the public, is not subject to ADA accessibility guidelines and barrier removal requirements.

**End Summary**

Les Jankey appeals from the district court’s summary judgment in favor of Twentieth Century Fox Film Corporation (Fox) on his claim of disability discrimination under the public accommodations provisions of Title III of the Americans with Disabilities Act (the Act), 42 U.S.C. §§ 12181-12189. We must decide whether facilities that fall within one of the categories of public accommodations specified in the Act are exempt if they are not in fact open to the public.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are not in dispute. Fox operates a film and production facility (the Lot) in Los Angeles. Daytime access to the Lot is restricted to Fox employees and their authorized business guests. Fox security personnel posted at the entrance to the Lot maintain a list of authorized visitors, and admit only employees and persons on the list.

Jankey, who is confined to a wheelchair, is disabled within the meaning of the Act. He has frequently visited the Lot for business purposes over the past twenty years, almost always on a visitor’s pass. He contends that while there he was unable to1161*1161 access the Commissary, the Studio Store, and an Automatic Teller Machine (ATM) (collectively, the Facilities), all located on the Lot, because they were not equipped to accommodate wheelchairs.

Jankey filed a complaint in district court alleging violations of Title III of the Act prohibiting “public accommodations” from discriminating on the basis of a disability. The complaint also alleged various state law violations. The district court granted summary judgment, holding that because the Facilities were not places of public accommodation they were not covered by the Act. The court dismissed the remaining state law claims pursuant to 28 U.S.C. § 1367(c).

DISCUSSION

We review de novo the district court’s grant of summary judgment. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999). Because the parties do not dispute the facts, our review is limited to whether the district court correctly applied the relevant substantive law. See Alltel Information Services, Inc. v. Federal Deposit Ins. Corp., 194 F.3d 1036, 1038 (9th Cir.1999).

Section 302 of the Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who … operates a place of public accommodation.” 42 U.S.C. § 12182(a). The Act lists twelve categories of private entities that are “public accommodations,” including:

(B) a restaurant, bar or other establishment serving food or drink;

…

(E) a … clothing store … or other sales or rental establishment;

(F) a … bank … or other service establishment….

42 U.S.C. § 12181(7).

The district court found that the Facilities-the Commissary, the Studio Store and the ATM-were not places of public accommodation subject to the Act. On this appeal,Jankey contends that because the Facilities fall within the descriptive language of the categories specified in § 12181(7)(B), (E) and (F), they are public accommodations subject to the Act. With respect to these Facilities, he contends, Fox is therefore subject to Title III because it operates places of public accommodation.

Jankey’s argument is premised on the assumption that if a facility falls within a § 12181 category, the Act applies regardless of whether it is open to the public. This argument, for which we have found no support, ignores the plain language of § 12187, which states: “The provisions of [Title III] shall not apply to private clubs or establishments exempted from coverage under Title II of the Civil Rights Act.” 42 U.S.C. § 12187. Title II of the Civil Rights Act, in turn, exempts from coverage any “private club or other establishment not in fact open to the public.” 42 U.S.C. § 2000a(e) (emphasis added); see also Clegg v. Cult Awareness Network, 18 F.3d 752, 755 n. 3 (1994) (“Only when the facilities are open to the public at large does Title II govern.”). Given the plain language of § 12187 and § 2000a(e), we reject Jankey’s contention that Title III applies to a facility described in 42 U.S.C. § 12181(7) regardless of whether it is open to the public.

Because Jankey does not dispute that the Facilities are “establishment[s] not in fact open to the public” our analysis needs go no farther.

AFFIRMED.

[*] The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.

Keywords: Civil Rights, Discrimination