Summary
In Hill v. Miller, 413 P.2d 852, on rehearing, 64 Cal.2d 757, 415 P.2d 33, a Negro tenant sued to restrain an eviction from a leased, single-family dwelling.
Summary of this case from Reitman v. MulkeyOpinion
Page __
For Opinion on Rehearing see 51 Cal.Rptr. 689, 415 P.2d 33.
White and McComb, JJ., dissented.
John F. Duff, San Francisco, Richard G. Logan, Oakland, Cyril A. Coyle, Sacramento, James S. DeMartini, Thomas Arata, Santa Rosa, William J. Bush, Peter J. Donnici, James T. McDonald, Richard B. Morris, Richard A. Bancroft, San Francisco, Jack Greenberg, Joseph B. Robison, Sol Rabkin, New York City, Robert M. O'Neil, Berkeley, Duane B. Beeson, Seymour Farber, Robert H. Laws, Jr., Howard Nemerovski, John G. Clancy, Ephraim Margolin, San Francisco, George T. Altman, Beverly Hills and Ray R. McCombs as amici curiae on behalf of plaintiff and appellant.
Colley & McGhee, Nathaniel S. Colley, Sacramento, Milton L. McGhee, Oakland, Stanley Malone Jr., Hollywood, and Clarence B. Canson, Sacramento, for plaintiff and appellant.
Harry A. Ackley, Woodland, Robert J. Cook, Citrus Heights, and John M. Beede, Davis, for Defendant and respondent.
Gibson, Dunn & Crutcher, William French Smith, Samuel O. Pruitt, Jr., and Charles S. Battles, Jr., Los Angeles, as amici curiae on behalf of defendant and respondent.
PEEK, Justice.
Plaintiff tenant appeals from a judgment for defendant landlord entered upon the sustaining of a demurrer without leave to [50 Cal.Rptr. 909] [ 413 P.2d 853] amend in an action for an injunction to restrain defendant from evicting plaintiff, a Negro, solely because of his race.
Defendant acquired title to a single family dwelling house in which plaintiff was the tenant under an oral, month-to-month lease, and caused to be served upon plaintiff a notice to quit in accordance with section 1946 of the Civil Code. The notice further recited the following: 'The sole reason for this notice is that I have elected to exercise the right conferred upon me by Article I Section 26, California Constitution, to rent said premises to members of the Caucasian race.'
The operative portion of article I, section 26, of the California Constitution provides:
Plaintiff thereupon commenced the instant action for injunctive relief and a decree declaring article I, section 26, null and void. He alleged in his complaint that he was the tenant of the property in question; that the aforesaid notice to quit was served upon him by defendant; that the sole reason for the purported termination of the lease was that plaintiff is a Negro; that defendant intends to follow the notice with an action for unlawful detainer; that defendant asserts he is entitled to discriminate in the rental of his property in reliance on article I, section 26, of the California Constitution; that plaintiff has a right not to be subjected to such discrimination by virtue of the Fourteenth Amendment to the federal Constitution, and that plaintiff has no adequate remedy at law by which to preserve his right.
Defendant demurred to the complaint upon the ground that it failed to state sufficient facts to constitute a cause of action. Arguments on the demurrer were heard together with arguments on plaintiff's motion for a preliminary injunction and the merits of the constitutionality of article I, section 26. The demurrer was sustained without leave to amend, and thereafter the instant judgment was entered.
Defendant concedes that relief by injunction is a proper means to stay the threatened enforcement of a state constitutional provision should the same be in conflict with the federal Constitution. (See San Diego Tuberculosis Association v. City of East San Diego, 186 Cal. 252, 200 P. 393, 17 A.L.R. 513.) He further concedes that the cause is jurisdictionally before the proper tribunal for injunctive remedy and that, although the complaint may be construed as alleging a class action, it nevertheless could have been amended, if necessary, to allege an individual action on behalf of plaintiff alone. It thus appears that the complaint sufficiently alleges a cause of action, or is capable of being amended to allege a cause of action, under sections 51 and 52 of the Civil Code unless article I, section 26, is applicable and requires a different result.
Civil Code, section 51, provides as follows:
We have concluded today in Mulkey v. Reitman, Cal., 50 Cal.Rptr. 881, 413 P.2d 825, that article I, section 26, is an unconstitutional infringement upon the Fourteenth Amendment, and for that reason null [50 Cal.Rptr. 910] [ 413 P.2d 854] and void. The instant complaint thus properly states a cause of action, and the demurrer thereto should not have been sustained.
For the foregoing reasons the judgment is reversed.
TRAYNOR, C. J., and PETERS, TOBRINER and BURKE, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
I dissent.
For the reasons stated in my dissent in Mulkey v. Reitman, Cal., 50 Cal.Rptr. 892, 413 P.2d 836, I would affirm the judgment.
McCOMB, J., concurs.
'Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.'
'All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.'
Civil Code, section 52, provides as follows:
'Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code.'