Brennon B. v. Super. Ct. ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
BRENNON B.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT et al.,
Real Parties in Interest.
S266254
First Appellate District, Division One
A157026
Contra Costa County Superior Court
MSC1601005
August 4, 2022
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Jenkins, and Guerrero concurred.
BRENNON B. v. SUPERIOR COURT
S266254
Opinion of the Court by Groban, J.
Brennon B. is a young man with developmental
disabilities; when he was a teenager, he was a special-education
student at De Anza High School in the West Contra Costa
Unified School District (the District). Brennon alleges that
during his time there, he was repeatedly sexually assaulted by
other students and by a school-district staff member. In 2016,
his guardian sued the District on his behalf, asserting various
claims arising out of Brennon’s experiences at De Anza High
School; those claims included allegations the District had
violated the Unruh Civil Rights Act (Civ. Code, § 51; the Unruh
Civil Rights Act or the Act).
The question before us is whether a plaintiff who asserts
such claims can hold a public school district liable under the Act
and thus avail him- or herself of the enhanced remedies —
particularly statutory penalties and attorney fees — it makes
available. For the reasons set forth below, we hold that Unruh
Civil Rights Act liability is not available in such circumstances.
Accordingly, the judgment of the Court of Appeal denying
Brennon’s petition for writ of mandate is affirmed.
The statutory text of the Act, its purpose and history, and
our prior caselaw all indicate that public schools, as
governmental entities engaged in the provision of a free and
public education, are not “business establishments” within the
meaning of the Act. (Civ. Code, § 51, subd. (b).) To the contrary,
1
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
they make clear that the Act was not enacted to reach this type
of state action. Accordingly, we conclude that the District was
not a “business establishment” for purposes of the Unruh Civil
Rights Act under the circumstances alleged here.
We must also reject Brennon’s alternative argument that
he can nonetheless avail himself of the Act’s enhanced remedies
either because of a 1992 amendment to the Unruh Civil Rights
Act or because of a 1998 amendment to the Education Code.
First, Brennon contends that public school districts can be sued
under the Unruh Civil Rights Act because violations of the
federal Americans with Disabilities Act (the ADA) were made
actionable pursuant to the 1992 amendment. This contention is
foreclosed by the language and legislative history of the 1992
amendment, which contains no indication that incorporation of
the ADA was intended to broaden the reach of the Unruh Civil
Rights Act in the way Brennon contends. The argument is also
at odds with our prior decisions and in tension with the
structure of other antidiscrimination statutes. Second, there is
nothing in the language or legislative history of the 1998
Education Code amendment to suggest that it entitles Brennon
to relief under the Unruh Civil Rights Act. We do not believe
the Legislature — in either instance — would have made such a
significant change to the scope of the Act without clear language
in the statutory text and without any discussion of such a
change in the legislative history.
As we have done previously, “[w]e emphasize . . . that our
resolution of the legal issue[s] before us does not turn upon our
personal views as to the wisdom or morality of the [laws and
policies at issue in this case]. Instead, our task involves . . .
question[s] of statutory interpretation.” (Warfield v. Peninsula
Golf & Country Club (1995) 10 Cal.4th 594, 598 (Warfield); see
2
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
also Curran v. Mount Diablo Council of the Boy Scouts (1998)
17 Cal.4th 670, 672 (Curran) [similar].) Discrimination in
schools is pernicious, and its elimination requires the
availability of legal tools that are both practical and powerful.
At the same time — through the Education Code, the
antidiscrimination components of the Government Code, and
various other constitutional and statutory provisions — the
Legislature has enacted laws that prohibit discrimination and
make remedies available to those whose rights have been
violated. (See, e.g., Ed. Code, § 200 et seq.; Gov. Code, § 11135;
42 U.S.C. § 1983; 20 U.S.C. § 1681 et seq.; 42 U.S.C. § 12131 et
seq.)
The dispute here is not about whether Brennon and other
plaintiffs who prove discrimination are entitled to relief — they
clearly are. (See Brennon B. v. Superior Court (2020)
57 Cal.App.5th 367, 370 (Brennon B.) [discussing
antidiscrimination laws to which public school districts are
subject].) This case is about whether Brennon and other
putative plaintiffs are entitled to pursue the specific remedies
made available under the Unruh Civil Rights Act. Brennon and
supporting amici curiae argue that the availability of such relief
is important because it entitles successful plaintiffs to statutory
penalties for each and every discriminatory offense — up to a
maximum of three times the amount of actual damage and in no
case less than $4,000.1 It would also entitle plaintiffs to attorney
fees, which, in matters of this degree of complexity, can be
considerable. Brennon and several amici curiae also argue that
1
The District argues that even if the Unruh Civil Rights
Act applies, treble damages would not be available against a
public-entity defendant. We need not decide that issue here.
3
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
these heightened penalties are — for policy reasons — the most
effective means of vindicating the rights of disabled students in
California. They assert that these remedies encourage disabled
people to assert their rights, deter institutions from engaging in
discrimination, and help to incentivize lawyers to litigate
discrimination claims. In response, the District and its
supporting amici curiae assert that subjecting public school
districts to the heightened remedies made available by the Act
would — in light of school districts’ already strained and limited
budgets — undermine districts’ ability to deliver high quality
education for their students. The District also underscores that,
even without Unruh Civil Rights Act protection, there are many
other statutes prohibiting discrimination that enable students
to obtain appropriate relief.
Again, the policy question of whether to make the Act’s
enhanced remedies available in this context, and how to weigh
the various competing interests at stake, is a decision that only
the Legislature can make. The task before us today is one of
statutory interpretation.
I.
A.
Brennon has autism, low verbal skills, and mental and
cognitive impairment. Throughout the time in question (during
which Brennon was a teenager), his mental and emotional
capacity was equivalent to that of a six- to seven-year-old child.2
2
Because this action arises from a writ petition challenging
the trial court’s order sustaining a demurrer, we take the facts
as they are stated in Brennon’s second amended complaint.
(Beacon Residential Community Assn. v. Skidmore, Owings &
Merrill LLP (2014) 59 Cal.4th 568, 571.)
4
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
From 2012 to 2016, he was enrolled at De Anza High School in
the West Contra Costa Unified School District as a special-
education student with an individualized education plan (IEP).
While there, he required a heightened level of supervision to
protect him from sexual assault.
In 2012, Brennon was sexually assaulted in the school
restroom by another student; that student was unsupervised at
the time of the assault despite the fact his own IEP required he
be supervised while in the restroom. Thereafter, Brennon’s IEP
was amended to require continuous supervision while on
campus. Brennon sued the District as a result of this incident
and obtained a judgment against it. In 2013, Brennon reported
that he had been kissed while on the school bus by another
student, and Brennon’s IEP was again amended to require
supervision on the bus. Despite this requirement, in 2014,
Brennon was again forcibly kissed by the same student after
Brennon’s assigned supervisor left him unsupervised on the bus.
Additionally, an aide assigned by the District to supervise
Brennon at school sexually assaulted Brennon on at least four
occasions between 2012 and 2014. On these occasions, the aide
forced Brennon to orally copulate him. The aide ultimately
confessed to police and was charged with multiple felonies. In
2015, Brennon was sexually and physically assaulted by fellow
students on three occasions when he was left unsupervised on
campus.
In July 2015, Brenda B. — Brennon’s guardian — filed a
claim on his behalf under Government Code sections 900 to
915.4, the statutes authorizing claims against public entities.
The District denied the claim, and shortly thereafter, Brennon
commenced the instant litigation against the District and
5
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
several individual staff members. The operative complaint
alleges causes of action for: negligence; negligent hiring and
supervision; intentional infliction of emotional distress;
violation of the right to petition; and violation of the Unruh Civil
Rights Act. As is relevant here, the District demurred to the
Unruh Civil Rights Act cause of action on the ground that the
District was not a “business establishment” within the meaning
of the Act. The trial court agreed and sustained the District’s
demurrer to that cause of action without leave to amend.
Brennon filed an original petition for writ of mandate in
the Court of Appeal. The court issued an order to show cause.
After the matter was set for oral argument, Brennon informed
the Court of Appeal that the case had settled and requested
dismissal of the petition. That request was denied, and the
matter proceeded to argument. Thereafter, the Court of Appeal
issued a published opinion, concluding that the trial court had
not erred; it denied the petition for writ of mandate, and
Brennon petitioned this court for review. Despite the fact that
the parties had already settled, we granted review to decide two
issues of continued statewide importance: (1) whether a public
school district is a “business establishment” for purposes of the
Unruh Civil Rights Act (or, if not, whether Unruh Civil Rights
Act remedies are still available because they have been
incorporated into the relevant provisions of the Education
Code); and (2) even if a school district is not a business
establishment, whether it can nevertheless be sued under the
Unruh Civil Rights Act where the alleged discriminatory
conduct is actionable under the Americans with Disabilities Act
(42 U.S.C. § 12101 et seq.).
6
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
B.
As noted above, the Unruh Civil Rights Act is codified at
section 51 of the Civil Code.3 (See Civ. Code, § 51, subd. (a).)
The questions raised by this case implicate two of its provisions.
First, subdivision (b) of section 51 reads: “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, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in
all business establishments of every kind whatsoever.” (Id. § 51,
subd. (b), italics added.) Second, subdivision (f) of section 51
states: “A violation of the right of any individual under the
federal Americans with Disabilities Act of 1990 (Public Law 101-
336) shall also constitute a violation of this section.” (Id. § 51,
subd. (f).) Brennon contends that the phrase “business
establishments” in subdivision (b) encompasses public school
districts, and that — even if it does not — the addition of
subdivision (f) makes public school districts liable under the
Unruh Civil Rights Act when they violate the ADA.
As discussed below, the Unruh Civil Rights Act was
enacted by the Legislature in 1959 in “response to a number of
appellate court decisions that had concluded that the then-
existing public accommodation statute did not apply to” various
private businesses. (Curran, supra, 17 Cal.4th at p. 687.) The
new legislation was intended “to revise and expand the scope of
the then-existing version of section 51.” (Ibid.) The Act has
3
All further unspecified citations are to the Civil Code.
7
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
been amended several times since then, most notably — for
purposes of this case — in 1992, when “the Legislature amended
section 51 to, among other changes, add the paragraph that
became subdivision (f), specifying that ‘[a] violation of the right
of any individual under the Americans with Disabilities Act of
1990 (Public Law 101-336) shall also constitute a violation of
this section.’ ” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
668 (Munson), citing Stats. 1992, ch. 913, § 3, p. 4284; Stats.
2000, ch. 1049, § 2.)
In addition, Brennon contends this case also implicates a
provision of the Education Code, specifically subdivision (g) of
section 201. Section 201 of the Education Code was first enacted
in 1982. It was later amended in 1998, when the Legislature
added — among other things — subdivision (g), a paragraph
explaining the Legislature’s preferred interpretation of the
statute. (See Stats. 1998, ch. 914, § 5, subd. (g).) Subdivision
(g) of Education Code section 201 provides: “It is the intent of
the Legislature that this chapter shall be interpreted as
consistent with . . . the Unruh Civil Rights Act . . . , except
where this chapter may grant more protections or impose
additional obligations, and that the remedies provided herein
shall not be the exclusive remedies, but may be combined with
remedies that may be provided by the above statutes.” (Ed.
Code, § 201, subd. (g).) Brennon contends that — even if he
cannot hold the District liable under the Unruh Civil Rights Act
itself — he can seek the Act’s enhanced remedies because
subdivision (g) of Education Code section 201 makes those
remedies available for violations of the Education Code.
8
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
II.
A.
“ ‘When we interpret a statute, “[o]ur fundamental task
. . . is to determine the Legislature’s intent so as to effectuate
the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. . . . If the language
is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.” [Citation.] “Furthermore, we consider portions
of a statute in the context of the entire statute and the statutory
scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ’ ” (City of San Jose v. Superior
Court (2017) 2 Cal.5th 608, 616–617 (City of San Jose), quoting
Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165–166.)
1.
With respect to Brennon’s primary argument, the
statutory text at issue is the phrase “all business establishments
of every kind whatsoever” as it appears in the Unruh Civil
Rights Act. (Civ. Code, § 51, subd. (b).) As noted above, we begin
by giving this phrase its “ ‘plain and commonsense meaning’ ”
as it is understood “ ‘in the context of the statutory framework
as a whole.’ ” (City of San Jose, supra, 2 Cal.5th 608 at p. 616.)
We find that Brennon’s proposed reading does not fit
easily with the statutory text. The everyday meaning of
“business establishments” — even with the statute’s expansive
“of every kind whatsoever” clause — conveys reference to
9
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
commercial entities, those whose principal mission is the
transactional sale of goods or services. The Oxford English
Dictionary identifies “the most common sense” of “business” as
“[t]rade and all activity relating to it, esp. considered in terms of
volume or profitability; commercial transactions, engagements,
and undertakings regarded collectively; an instance of this.”
(Oxford English Dict. (3d ed. 2022) [as of June 21, 2022].4) Merriam-Webster
defines “business” as “a usu. commercial or mercantile activity
engaged in as a means of livelihood”; “a commercial or
sometimes an industrial enterprise”; “dealings or transactions
esp. of an economic nature.” (Merriam-Webster’s Collegiate
Dict. (11th ed. 2014) p. 167.) A public school district engaged in
the task of educating its students does not easily fit within these
definitions. We do not dispute that a school district provides a
service to members of the public, as Brennon argues, but a
school district’s provision of public education is not generally
understood as being carried out in the commercial, transactional
manner that is characteristic of a “business establishment.”
Nonetheless, our prior cases counsel that “the reach
of section 51 cannot be determined invariably by reference to the
apparent ‘plain meaning’ of the term ‘business establishment.’ ”
(Warfield, supra, 10 Cal.4th at p. 616; see also Curran, supra,17 Cal.4th at p. 693 [quoting Warfield].) Instead, some entities
that would not ordinarily “be thought of as . . . ‘traditional’
business establishment[s]” should be considered business
establishments for purposes of the Unruh Civil Rights Act.
(Warfield, at p. 616.) And more generally, whether or not an
4
This internet citation is archived by year, docket number and
case name at < http://www.courts.ca.gov/38324.htm>.
10
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
entity is “generally thought of as a traditional business
establishment is not, in itself, necessarily determinative of
whether such an entity falls within the aegis of the act.” (Ibid.)
Thus, our precedent urges us to look beyond the statutory
language to “the purpose and history of section 51” in order to
determine whether “the Legislature intended the statute to
apply to the conduct of the entit[y] at issue” here. (Ibid.)
2.
The purpose and legislative history of the Unruh Civil
Rights Act — and its predecessor statute — make clear that the
focus of the Act is the conduct of private business establishments.
These laws were originally enacted in response to limitations
placed by the U.S. Supreme Court on the federal government’s
ability to pass laws targeting the conduct of private entities; the
actions of state actors were not the focus of the state’s first public
accommodations laws or of the Unruh Civil Rights Act.
With respect to coverage of public school districts
specifically, during the legislative process that led to the
enactment of the Act, the Legislature progressively narrowed
the kinds of schools to which it might have applied and
eventually eliminated any reference to schools altogether;
viewed in the context of the legislative history as a whole, this
evolution suggests the Legislature did not intend the Act to
subject public school districts to liability for claims such as those
raised here. Instead, the catchall phrase appearing in the final
version of the legislation — “all business establishments of
every kind whatsoever” — covers entities engaged in the kinds
of commercial transactions characteristic of “business
establishments”; it cannot be stretched to reach a state actor
“carry[ing] out the state’s constitutionally mandated duty to
11
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
provide a system of public education.” (Wells v. One2One
Learning Foundation (2006) 39 Cal.4th 1164, 1195 (Wells).)
The roots of the modern-day Unruh Civil Rights Act go
back to the late 1800s. (Warfield, supra, 10 Cal.4th at pp. 607–
608.) In 1883, the U.S. Supreme Court “invalidated the first
federal public accommodation statute.” (Id. at p. 607.) That
statute had prohibited private entities from discriminating on
the basis of race when operating “accommodations, advantages,
facilities, and privileges of inns, public conveyances on land or
water, theatres, and other places of public amusement.” (Civil
Rights Cases (1883) 109 U.S. 3, 9.) The court held the statute
was invalid under the Fourteenth Amendment because it
targeted the actions of private persons, rather than state actors.
(Id. at pp. 10–11.) The court explained: “It is State action of a
particular character that is prohibited. Individual invasion of
individual rights is not the subject-matter of the [Fourteenth
Amendment].” (Id. at p. 11.) It was therefore for state
legislatures, not Congress, to enact laws regulating the conduct
of non-state actors. (Id. at p. 13.) In response to the Supreme
Court’s decision, “California joined a number of other states in
enacting its own initial public accommodation statute, the
statutory predecessor of . . . section 51 [of the Civil Code]”
(Warfield, supra, 10 Cal.4th at pp. 607–608, citing Stats. 1897,
ch. 108, § 2, p. 137), which applied to all “places of public
accommodation or amusement” (id. at p. 608).
As the Court of Appeal below noted after reviewing this
history, “nothing in the historical context from which the Unruh
Act emerged suggests the state’s earlier public accommodation
statutes were enacted to reach ‘state action.’ And there is
[substantial] authority to the contrary — that these statutes
were enacted to secure within our state law the prohibition
12
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
against discrimination by privately owned services and
enterprises the United States Supreme Court referenced in
the Civil Rights Cases and which the common law had already
begun to recognize through the public service doctrine.”
(Brennon B., supra, 57 Cal.App.5th at p. 372, citing Curran,
supra, 17 Cal.4th at pp. 686–687; Warfield, supra, 10 Cal.4th at
pp. 607–608; Horowitz, The 1959 California Equal Rights in
“Business Establishments” Statute — A Problem in Statutory
Application (1960) 33 So.Cal. L.Rev. 260, 281 (hereafter
Horowitz) [“[i]t was clear that in [former] [Civil Code] Sections
51 and 52 the Legislature enacted a principle creating a right
not to be discriminated against on grounds of race in some, but
not all, relationships between private persons”].)
As time went on, however, the efficacy of California’s early
public accommodations law was curtailed by “lower appellate
courts [that] used the principle ejusdem generis to limit the law’s
reach.” (Isbister v. Boys’ Club of Santa Cruz, Inc. (1985)
40 Cal.3d 72, 78 (Isbister).) Following a series of restrictive
judicial decisions in the 1950s (which occurred despite ongoing
legislative expansion of the law’s coverage), the Legislature
enacted the Unruh Civil Rights Act in 1959 “out of concern that
the courts were construing the . . . public accommodations
statute [of that time] too strictly.” (Ibid.; see also id. at pp. 78–
79 [noting legislative “additions to the list of covered facilities”
and citing Reed v. Hollywood Professional School (1959)
169 Cal.App.2d Supp. 887, 890 [private school not covered];
Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833, 834–
836 [dentist’s office not covered]; Long v. Mountain View
Cemetery Assn. (1955) 130 Cal.App.2d 328, 329 [private
cemetery not covered]].) The intention behind the 1959
legislation was “to revise and expand the scope of the then-
13
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
existing version of section 51.” (Warfield, supra, 10 Cal.4th at
p. 608.)
The bill that ultimately became the Unruh Civil Rights
Act was introduced in January 1959. (Assem. Bill No. 594 (1959
Reg. Sess.) (Assembly Bill 594), as introduced Jan. 21, 1959.) As
initially drafted, Assembly Bill 594 mentioned schools as one of
the numerous entities covered by the bill. (Ibid.) However, as
chronicled by the Court of Appeal below, the bill subsequently
underwent a series of amendments, which ultimately
eliminated reference to schools altogether. (Brennon B., supra,57 Cal.App.5th at pp. 375–377; see also Curran, supra,17 Cal.4th at p. 687, fn. 13; Horowitz, supra, 33 So.Cal. L.Rev.
at pp. 265–270 [tracing the progression of the amendments and
describing the legislation’s “narrowing”].)
More specifically, the language in the first version of the
bill included “schools” without any qualification of that word.
(Brennon B., supra, 57 Cal.App.5th at p. 374.) However, each
subsequent amendment narrowed the group of schools to which
the law would apply. (Id. at pp. 375–377.) “Schools” first
became “all schools of every kind whatsoever, except those
schools organized for the purpose of, and which practice, the
furthering of a specific sectarian religious belief” (id. at p. 375),
which then became “all schools of every kind whatsoever, except
those schools organized for the purpose of, and which practice,
the furthering of a specific sectarian religious belief, insofar as
the facilities of any such school so organized and following such
practice are made available primarily to persons who subscribe
to such belief” (id. at p. 376, italics omitted), which in turn
became “all schools which primarily offer business or vocational
training” (ibid.). In the final version of the bill, any reference to
schools was removed, and the legislation simply referred to “all
14
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
business establishments of every kind whatsoever.” (Id. at
p. 377, citing Horowitz, supra, 33 So.Cal. L.Rev. at pp. 269–270
& fn. 37.)
Brennon contends the breadth of the phrase “all business
establishments of every kind whatsoever” (Civ. Code, § 51, subd.
(b)) indicates the Legislature intended the Act to cover public
schools, despite removal of the reference to schools in the final
version of the bill. However, a better reading of the bill’s
legislative history is that the Legislature ultimately decided not
to include school districts — which are not typically understood
as “business establishments” — within the ambit of the
legislation. Our reading is supported by the fact that “the prior
versions of the bill reflect a progressive narrowing of the
legislation’s applicability to ‘schools’ ” before the reference to
schools was completely eliminated. (Brennon B., supra,
57 Cal.App.5th at p. 378.) In fact, “the category of schools to
which the penultimate version of the legislation applied would
not have included any public grammar schools or even public
secondary schools.” (Ibid.) Moreover, these changes to potential
coverage of schools continued, all while the phrase “all business
establishments of every kind whatsoever” remained untouched.
We conclude that this history, on the whole, is at odds with
Brennon’s preferred interpretation.
Brennon’s argument is not salvaged by the fact that the
phrase “business establishments” should be understood “in the
broadest sense reasonably possible.” (Burks v. Poppy
Construction Co. (1962) 57 Cal.2d 463, 468 (Burks).) We have
previously explained that the Unruh Civil Rights Act applies
only where an entity’s “activities reasonably could be found to
constitute a business establishment.” (Warfield, supra,10 Cal.4th at p. 615, italics added.) Nothing “suggests that the
15
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
term ‘all business establishments of every kind whatsoever’ was
intended to encompass all of the entities or activities listed in
the initial bill.” (Ibid.) While the phrase “all business
establishments of every kind whatsoever” must be interpreted
as broadly as reasonably possible, its scope remains limited to
entities acting as private business establishments.
In addition, the Legislature is capable of bringing
government entities within the scope of specific legislation when
it intends to do so, and it has done so with other
antidiscrimination legislation. (See, e.g., Wells, supra,39 Cal.4th at pp. 1190–1191 [discussing application of the Fair
Employment and Housing Act (FEHA) to public entities].) In
the context of the Unruh Civil Rights Act, however, “the
statutory list of [covered entities] contains no words or phrases
most commonly used to signify public school districts, or, for that
matter, any other public entities or governmental agencies.” (Id.
at p. 1190.) The Act does not — as does FEHA, for example —
define the covered entities to include “the state or any political
or civil subdivision of the state, and cities.” (Gov. Code, § 12926,
subd. (d).) As we have previously explained, “[t]he specific
enumeration of state and local governmental entities in one
context [such as the Fair Employment and Housing Act], but not
in the other [here, the Unruh Civil Rights Act], weighs heavily
against a conclusion” that the coverage provisions should be
understood as identical. (Wells, at p. 1190.) That is especially
true where, as here, the statutes’ coverage provisions were
drafted by the very same Legislature during the same legislative
session; the legislative history is, thus, strong evidence that the
Legislature crafted language for FEHA to explicitly cover
governmental entities, while simultaneously crafting language
16
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
for the Unruh Civil Rights Act that sets forth different
coverage.5
This history shows that the Unruh Civil Rights Act is
focused on the actions of private actors. Its predecessor statute
was enacted in response to the curtailment of the federal
government’s ability to legislate on the conduct of private
entities, and we find nothing in the legislative history of the Act
to indicate that it drastically expanded California’s public
accommodation law by imposing liability on public entities, such
that it would cover the conduct challenged here. For the reasons
discussed above, we reject the contention that the mere
inclusion of “schools” in earlier versions of the bill establishes
that public schools are business establishments under the Act.
To the contrary, we conclude that, in passing the Unruh Civil
Rights Act, the Legislature enacted a law directed at entities
operating as private businesses.6
5
Although not drafted during the same legislative session
as the Unruh Civil Rights Act and FEHA, other statutes further
demonstrate that the Legislature knows how to use language to
specifically prohibit discrimination by public schools. (See, e.g.,
Ed. Code, § 200 [noting that “[i]t is the policy of the State of
California to afford all persons in public schools . . . equal
rights, and opportunities in the educational institutions of the
state”]; Gov. Code, § 11135, subd. (a) [“[n]o person in the State
of California shall . . . be unlawfully subjected to discrimination
under . . . any program or activity that is conducted, operated,
or administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from
the state”].)
6
Amici curiae on behalf of Brennon contend that a 2015 law
shows that the Unruh Civil Rights Act does cover public schools.
That year, the Legislature enacted Assembly Bill 302, which
17
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
3.
The conclusion urged by the legislative history — that the
Legislature did not intend for the Unruh Civil Rights Act to
cover public school districts through its use of the phrase
“business establishments” — is further underscored by the
reasoning and principles set forth in our prior cases. Although
these cases do not directly resolve the issues presented here
(because all involved private, rather than public, entities), what
they ultimately make clear is that — in order to be a “business
establishment” under the Act — an entity must operate as a
business or commercial enterprise when it discriminates.
In Burks, the court held that a developer and seller of tract
houses was subject to the Act because “[t]he word ‘business’
embraces everything about which one can be employed, and it is
often synonymous with ‘calling, occupation, or trade, engaged in
for the purpose of making a livelihood or gain,’ ” and “[t]he word
‘establishment’ . . . includes not only a fixed location, such as the
‘place where one is permanently fixed for residence or business,’
requires schools to provide lactation accommodations to
students. (Assem. Bill No. 302 (2015–2016 Reg. Sess.), Stats.
2015, ch. 690, § 2, codified at Educ. Code. § 222.) In uncodified
findings and declarations accompanying the law, the
Legislature stated: “The Unruh Civil Rights Act (Section 51 of
the Civil Code) prohibits businesses, including public schools,
from discriminating based on sex, which includes discrimination
on the basis of pregnancy, childbirth, or medical conditions
related to pregnancy or childbirth.” (Stats. 2015, ch. 690, § 1.)
However, nothing in Education Code section 222 or the bill’s
legislative history ever mentioned the Unruh Civil Rights Act;
thus, the reference to the Act in the uncodified legislative
findings and declarations of Assembly Bill 302 adds little — or
nothing — to our analysis of whether public school districts are
covered by the Unruh Civil Rights Act.
18
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
but also a permanent ‘commercial force or organization.’ ”
(Burks, supra, 57 Cal.2d at p. 468.)
In O’Connor v. Village Green Owners Association, the
court concluded that a nonprofit homeowners association was
subject to the Act because “the [homeowners] association
performs all the customary business functions [e.g., employing a
property management firm, obtaining insurance, collecting
assessments, and enforcing rules] which in the traditional
landlord-tenant relationship rest on the landlord’s shoulders . . .
[and because the HOA’s] overall function is to protect and
enhance the project’s economic value.” (O’Connor v. Village
Green Owners Assn. (1983) 33 Cal.3d 790, 796, italics added
(O’Connor).)
In Isbister, the defendant (a nonprofit recreational club
that prohibited girls from using its facilities) argued that it was
not a business establishment for purposes of the Act. (Isbister,
supra, 40 Cal.3d at p. 78.) The Isbister court began its opinion
by stating: “Absent the principle it codifies, thousands of
facilities in private ownership, but otherwise open to the public,
would be free under state law to exclude people for invidious
reasons like sex, religion, age, and even race.” (Id. at p. 75,
italics added.) It went on to observe that, despite its nonprofit
status, the club was “functional[ly] similar[] to a commercial
business” (id. at p. 83, fn. omitted) and was therefore covered by
the Act (id. at p. 82).
In Warfield, the court held that a nonprofit golf and
country club (that excluded women from proprietary
membership) came within the purview of the Act. In reaching
that conclusion, the court noted “the business transactions that
are conducted regularly on the club’s premises with persons who
19
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
are not members of the club are sufficient in themselves to bring
the club within the reach of section 51’s broad reference to ‘all
business establishments of every kind whatsoever.’ ” (Warfield,
supra, 10 Cal.4th at p. 621, original italics.) Specifically, the
court found that the club “appear[ed] to have been operating in
a capacity that is the functional equivalent of a commercial
enterprise.” (Id. at p. 622; see also id. at pp. 621, 622 [describing
the club’s semi-public catering and event-hosting services as
well as its public golf and tennis shops].)
By contrast, in Curran, supra, 17 Cal.4th 670, the court
held that — on the specific facts of the case — a regional council
of the Boy Scouts of America was not subject to the Act because
the Act did not reach “the membership decisions of a charitable,
expressive, and social organization . . . whose formation and
activities are unrelated to the promotion or advancement of the
economic or business interests of its members.” (Id. at p. 697.)
Nonetheless, the court also concluded the Act “would apply to,
and would prohibit discrimination in, the actual business
transactions with nonmembers engaged in by the Boy Scouts in
its retail stores.” (Id. at p. 700; but see id. at p. 731 (conc. opn.
of Werdegar, J.) [criticizing this “function-by-function,”
“piecemeal mode of analysis”].)
Consistent with the legislative history, these prior cases
tend to suggest that the Unruh Civil Rights Act, like its
predecessor statutes, is not directed at school districts when
they are acting to fulfill their educational role. In parsing the
boundaries of what constitutes a “business establishment,” our
cases have focused on attributes — performing business
functions, protecting economic value, operating as the
functional equivalent of a commercial enterprise, etc. — that are
not shared by public school districts engaged in the work of
20
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
educating students. When acting in their core educational
capacity, public school districts do not perform “customary
business functions,” nor is their “overall function . . . to protect
and enhance . . . economic value.” (O’Connor, supra, 33 Cal.3d
at p. 796, italics added.) The task of educating students does not
involve regularly conducting business transactions with the
public, or receiving “financial benefits from regular business
transactions”; nor does it involve “operating in a capacity that is
the functional equivalent of a commercial enterprise.”
(Warfield, supra, 10 Cal.4th at pp. 621, 622.)
Educating students is a task that is fundamentally
different from what could fairly be described as “regular
business transactions” (Warfield, supra, 10 Cal.4th at p. 621);
public school districts are responsible for the provision of free
and public education pursuant to a state constitutional mandate
(Cal. Const., art. IX, § 5). “[A]lthough administered through
local districts created by the Legislature,” the State’s system of
public schools “is ‘one system . . . applicable to all the common
schools.’ ” (Butt v. State of California (1992) 4 Cal.4th 668, 680,
quoting Kennedy v. Miller (1893) 97 Cal. 429, 432.) “[T]he
management and control of the public schools [is] a matter of
state care and supervision” (Kennedy, at p. 431), and “[l]ocal
districts are the State’s agents for local operation of the common
school system” (Butt, at p. 681). This is a far cry from the typical
operation of a “business establishment,” the protection of
economic value, the nature of a traditional public
accommodation, or the equivalent of a commercial enterprise.
For all of these reasons, our case law underscores what the
legislative history makes clear: the Unruh Civil Rights Act does
not reach public school districts engaged in the provision of a
free and public education to students.
21
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
4.
In examining decisions both from the Courts of Appeal and
by the federal courts, we find nothing that persuades us that the
outcome urged by the legislative history and favored by our prior
cases should be rejected. Instead, such cases further indicate
that to be a “business establishment” under the Act an entity
must effectively operate as a business or a commercial
enterprise or “engage[] in behavior involving sufficient
‘businesslike attributes.’ ” (Carter v. City of Los Angeles (2014)
224 Cal.App.4th 808, 825 (Carter), quoting Qualified Patients
Assn v. City of Anaheim (2010) 187 Cal.App.4th 734, 764–765
(Qualified Patients).) Generally speaking, public school districts
do not fit within this definition.
We turn first to the decisions from California Courts of
Appeal. Several have concluded that government bodies do not
function as “business establishments” when they enact
legislation. (See, e.g., Harrison v. City of Rancho Mirage (2015)
243 Cal.App.4th 162, 175 [“Here, the City was not acting as a
business establishment. It was amending an already existing
municipal code section to increase the minimum age of a
responsible person from the age of 21 years to 30”]; Qualified
Patients, supra, 187 Cal.App.4th at p. 764 [“Because a city
enacting legislation is not functioning as a ‘business
establishment[],’ we conclude the [Unruh Civil Rights Act] does
not embrace plaintiffs’ claims against the city”]; Burnett v. San
Francisco Police Department (1995) 36 Cal.App.4th 1177, 1191–
1192 [“Nothing in the Act precludes legislative bodies from
enacting ordinances which make age distinctions among
adults”].) However, these cases do not address whether a state
entity might, in other contexts, function as a business
establishment for purposes of the Act.
22
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
A small number of decisions by our Courts of Appeal have
suggested the Act could apply to public entities. In one of those
cases, the public entity did not challenge the application of the
Act, and the court never faced the question directly. (See
Mackey v. Trustees of California State University (2019)
31 Cal.App.5th 640 [reversing a grant of summary judgment in
favor of the state university on an Unruh Civil Rights Act claim
by Black athletes].) In another case, the court did not extend
the Act to public entities, but it briefly indicated approval of a
potential rationale for doing so. (See Gatto v. County of Sonoma
(2002) 98 Cal.App.4th 744, 769 [reversing judgment for the
plaintiff — to the extent judgment was based on the Unruh Civil
Rights Act — on the ground he was not a member of any
relevant protected class, and discussing the potential
applicability of the Act to a county fair].)
Other Courts of Appeal have considered the issue of
public-entity defendants and suggested the Act would not apply
to them, but, here too, none ruled on the issue definitively. (See,
e.g., Carter, supra, 224 Cal.App.4th at pp. 814, 825 [refusing to
approve release of plaintiffs’ Unruh Civil Rights Act claims in a
class action against the City of Los Angeles because plaintiffs
“deserve[d] to litigate the merits of th[ose] claims” even though
it was “ ‘highly questionable’ ” a California court would
“consider a municipal entity to be liable under the Unruh Civil
Rights Act”]; Doe v. California Lutheran High School Assn.
(2009) 170 Cal.App.4th 828, 839 [concluding that a private,
religious high school was not a business establishment because
it was a nonprofit that lacked any “significant resemblance to
an ordinary for-profit business” and suggesting that the same
reasoning would apply to public schools]; see also id. at p. 841.)
23
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
Neither the holdings nor the reasoning in any of these
cases counsels in favor of disturbing the conclusion that is
compelled by the legislative history of the Act and consistent
with our prior cases. These cases simply indicate that a
government body enacting legislation is not subject to the Act,
and they reveal that some courts dealing with the Act have
suggested it might apply to public entities, while others have
rejected (or expressed skepticism about) application of the Act
to such entities. Again, nothing in these cases unsettles the
conclusion reached above.
We turn next to the federal cases, which have directly
addressed the question presented here, although “ ‘federal
decisional authority is neither binding nor controlling in
matters involving state law.’ ” (Nagel v. Twin Laboratories, Inc.
(2003) 109 Cal.App.4th 39, 55, quoting Howard Contracting,
Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th
38, 52.)
As the Court of Appeal in this case noted, “federal courts
have split on the question” of whether public school districts are
business establishments under the Unruh Civil Rights Act
(Brennon B., supra, 57 Cal.App.5th at p. 391), with the majority
concluding that public school districts are subject to the Act (see,
e.g., Z. T. Santa Rosa City Sch. (N.D.Cal., Oct. 5, 2017, No. C
17-01452 WHA) 2017 WL 4418864, at *6 (Z.T.) [noting, prior to
the recent emergence of a federal split, that “[e]very California
district court decision to reach the question has answered it in
the affirmative, frequently referencing the California Supreme
Court’s admonition that the Unruh Act be interpreted ‘in the
broadest sense reasonably possible,’ ” quoting Isbister, supra,
40 Cal.3d at p. 76]). However, most of those federal cases rely
principally on Sullivan ex rel. Sullivan v. Vallejo City Unified
24
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
School Dist. (E.D.Cal. 1990) 731 F.Supp. 947, which — prior to
our decision in Warfield — concluded that “since public schools
were among those organizations listed in the original version of
the Unruh Act, it must follow that for purposes of the Act they
are business establishments as well.” (Sullivan, at p. 953, fn.
omitted.) Importantly, as discussed earlier, in Warfield we
expressly rejected the idea that the mere mention of a particular
entity in the initial version of the Unruh Civil Rights Act
legislation brings that entity within the ambit of the Act. (See
Warfield, supra, 10 Cal.4th at p. 615.) Thus, contrary to
Sullivan’s reasoning, the mere mention of “schools” in the
original version of the Act does not mean that public school
districts are business establishments. With that basis for its
conclusion gone, there is little left in Sullivan to support the
conclusion it reached.
And because we disagree with the conclusion reached in
Sullivan, we are also unpersuaded by the body of cases that rely
on it cursorily to conclude that public school districts are
business establishments for purposes of the Act. (See, e.g.,
Nicole M. ex rel. Jacqueline M. v. Martinez Unified Sch. Dist.
(N.D.Cal. 1997) 964 F.Supp. 1369, 1388; Walsh v. Tehachapi
Unified Sch. Dist. (E.D.Cal. 2011) 827 F.Supp.2d 1107, 1123.)7
7
Several other federal cases go beyond mere reliance on
Sullivan, but we agree with the Court of Appeal’s conclusion
that these cases do not adequately examine “the historical
genesis of the [Unruh Civil Rights Act], its legislative history,
scholarly commentary, and the decisions of our high court.”
(Brennon B., supra, 57 Cal.App.5th at p. 393, citing Whooley v.
Tamalpais Union High School Dist. (N.D.Cal. 2019) 399
F.Supp.3d 986 and Yates v. East Side Union High School
District (N.D.Cal., Feb. 20, 2019, No. 18-CV-02966-JD) 2019 WL
721313; see also, e.g., Z. T., supra, 2017 WL 4418864, at *6.)
25
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
By contrast, Zuccaro v. Martinez Unified Sch. Dist.
(N.D.Cal., Sept. 27, 2016, No. 16-CV-02709-EDL) 2016 WL
10807692, was decided after our decision in Warfield, and it
concluded that a public school district is not a business
establishment under the Unruh Civil Rights Act.8 We think
Zuccaro has the better view. Unlike other district court cases,
the Zuccaro court carefully examined our decision in Curran and
found it made clear that “the entity at issue [must] resemble an
ordinary for-profit business,” and that a public school “is
practically the antithesis of a for-profit enterprise.” (Zuccaro, at
*12.) The Zuccaro court concluded that “a public elementary
school, particularly in its capacity of providing a free education
to a” preschooler with disabilities, is “acting as a public servant
rather than a commercial enterprise and is therefore not subject
to the Unruh Act.” (Id. at *13.)
As with the cases from California Courts of Appeal, our
examination of the federal cases that have grappled with this
8
While Zuccaro may be the only federal case to conclude
that public school districts are not business establishments
under the Unruh Civil Rights Act, several district courts have
declined to apply the Act to other governmental entities and
have sometimes noted it is not clear whether governmental
entities may be held liable under the statute. (See, e.g.,
Anderson v. County of Siskiyou (N.D.Cal., Sept. 13, 2010, No. C
10-01428 SBA) 2010 WL 3619821, at *6 [jails are not covered by
the Act]; Romstad v. Contra Costa County (9th Cir. 2002) 41
Fed.App’x. 43, 46 [county social services department not covered
by the Act]; Taormina v. California Department of Corrections
(S.D.Cal. 1996) 946 F.Supp. 829 [state prison does not qualify as
a business establishment]; Goodfellow v. Ahren (N.D.Cal., Mar.
26, 2014, No. 13-04726 RS) 2014 WL 1248238, at *8 [questioning
“the extent to which governmental entities may be held liable
under the [Act]”].)
26
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
issue does not compel a different conclusion from the one
compelled by the legislative history of the Unruh Civil Rights
Act and supported by our prior cases. Accordingly, for all of the
reasons discussed above, we conclude that — under subdivision
(b) — the District was not a “business establishment” for
purposes of the Act when it provided educational services to
Brennon.
B.
Brennon contends that, even if the District is not a
business establishment under subdivision (b) of section 51, it
can still be sued for discrimination by virtue of subdivision (f) of
that section.9 Added to the Unruh Civil Rights Act by a 1992
amendment, subdivision (f) makes a violation of the federal
Americans with Disabilities Act of 1990 (Public Law 101-336)
actionable under the Unruh Civil Rights Act. As the Court of
Appeal explained, Brennon “reads this subdivision to mean any
violation of the ADA by any person or entity is also a violation
of the Act.” (Brennon B., supra, 57 Cal.App.5th at pp. 397–398.)
By contrast, the District reads subdivision (f) to mean that “any
violation of the ADA by a business establishment is also a
violation of the [Unruh Civil Rights Act].” (Id. at p. 398.)
The District is correct. Neither the language of the
subdivision nor its legislative history indicates it was intended
9
Brennon’s argument with respect to subdivision (f) of
section 51 is not always clear. At times, he appears to contend
that subdivision (f) subjects public school districts to liability
even if they are not business establishments. Other times, he
appears to contend that, after the enactment of subdivision (f),
the phrase “business establishments” must be read to include all
entities subject to the ADA. However, our analysis and ultimate
conclusion would remain the same under either framing.
27
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
to bring about the monumental change suggested by Brennon:
that any entity (public or private) that violates the ADA could
be held liable under the Unruh Civil Rights Act (for acts of
discrimination based on disability, but not other protected
classes). And we do not think the Legislature — especially after
more than three decades of history to the contrary (and almost
a century of contrary history since the enactment of the Act’s
predecessor statute) — would have made such an enormous
change to the reach of the Unruh Civil Rights Act in the absence
of clear statutory language and without any discussion of such
a modification in the legislative history. (See, e.g., Riverside
County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 647 [“It
is doubtful that the Legislature would have instituted such a
significant change through silence”].)
“In 1992, . . . the Legislature amended section 51 to,
among other changes, add the paragraph that became
subdivision (f), specifying that ‘[a] violation of the right of any
individual under the Americans with Disabilities Act of 1990
(Public Law 101-336) shall also constitute a violation of this
section.’ ” (Munson, supra, 46 Cal.4th at p. 668, quoting Stats.
1992, ch. 913, § 3, p. 4284; see also Stats. 2000, ch. 1049, § 2
[adding subdivision designations].) To ascertain the
Legislature’s intent as to this amendment, “ ‘ “[w]e first examine
the statutory language, giving it a plain and commonsense
meaning.” ’ ” (City of San Jose, supra, 2 Cal.5th at p. 616.)
We find that both Brennon and the District offer plausible
interpretations of the text of subdivision (f), which turn on the
meaning of the word “violation.” Brennon understands this
word as referring to a completed violation. In other words, when
all elements of an ADA violation have been established, the
plaintiff will also have proven — automatically — a violation of
28
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
the Unruh Civil Rights Act. Conversely, the District reads the
word “violation” to mean “violative conduct,” such that conduct
that violates the ADA also satisfies the discriminatory conduct
element of an Unruh Civil Rights Act claim. Under this view,
proof of an ADA violation establishes that the defendant has
committed discrimination prohibited by the Unruh Civil Rights
Act, but it does not excuse the plaintiff from having to prove the
other required elements of an Unruh Civil Rights Act claim —
including that the discrimination was committed by a party that
is subject to the Act. Although we find the District’s
interpretation to be the more convincing of the two, we find that
neither is definitive and both are reasonable; accordingly, we
resort to other tools of statutory interpretation. (See City of San
Jose, supra, 2 Cal.5th at p. 616.)
As we have previously explained: “This amendment was
but one part of a broad enactment, originating as Assembly Bill
No. 1077 (1991–1992 Reg. Sess.) [Assembly Bill 1077], that
sought to conform many aspects of California law relating to
disability discrimination (in employment, government services,
transportation, and communications, as well as public
accommodations) to the recently enacted ADA, which was soon
to go into effect.” (Munson, supra, 46 Cal.4th at pp. 668–669.)
Ultimately, the amendment added or amended nearly fifty
sections across twelve codes. (See Stats. 1992, ch. 913, § 1; see
also Brennon B., supra, 57 Cal.App.5th at p. 401 [discussing the
amendment of “numerous provisions of the FEHA”].)
As we observed in Munson, the Legislature explained that
the general intent of Assembly Bill 1077 was “ ‘to strengthen
California law in areas where it is weaker than the Americans
with Disabilities Act of 1990 (Public Law 101-336) and to retain
California law when it provides more protection for individuals
29
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
with disabilities than the Americans with Disabilities Act of
1990.’ ” (Munson, supra, 46 Cal.4th at p. 669, quoting Stats.
1992, ch. 913, § 1, p. 4282.) As is relevant here, in addition to
adding “persons with mental disabilities” to the classes of
individuals protected by the Unruh Civil Rights Act, Assembly
Bill 1077 — through the addition of subdivision (f) — made
available a private right of action for ADA violations. However,
the addition of subdivision (f) was not intended to effectuate a
sea change in the operation of the Act by subjecting a vastly
expanded set of entities to liability for the first time in the law’s
history. The Act retained, as it always had, the limitation that
the law applied to the acts of “business establishments” — the
amendment did not eliminate that provision from the Act. Such
a modification would have far exceeded the goal of conforming
the Unruh Civil Rights Act to the ADA and, as discussed below,
would have rendered the Legislature’s amendment of other civil
rights statutes superfluous.
Shortly after its introduction in March 1991, Assembly
Bill 1077 was revised to include language that would amend the
Unruh Civil Rights Act; as of April 18, 1991, the bill proposed to
add the following text to section 51 of the Civil Code: “A
violation of the right of any individual under the Americans
With Disabilities Act of 1990 (Public Law 101-336) with respect
to public accommodations subject thereto shall also constitute a
violation of this section.” (Assem. Bill No. 1077 (1991–1992 Reg.
Sess.) as amended Apr. 18, 1991, § 2, italics added.) The
Legislative Counsel’s Digest explained that part of the bill,
containing the new Unruh Civil Rights Act language, as follows:
“Existing provisions of the Unruh Civil Rights Act, with certain
exceptions, prohibit various types of discrimination by business
establishments. [¶] This bill would make a violation of the
30
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
Americans with Disabilities Act of 1990, with respect to public
accommodations, also a violation of the Unruh Civil Rights Act.”
(Legis. Counsel’s Dig., Assem. Bill No. 1077 (1991 –1992 Reg.
Sess.), italics added.) Following this early modification, the
bill’s language — containing the phrase “with respect to public
accommodations subject thereto” — remained unchanged
almost until the final passage of the bill (which occurred in
August 1992), when it was amended once more in July 1992.
(See Brennon B., supra, 57 Cal.App.5th at p. 399.) At that time,
“the language was shortened to read as it [still] does: ‘A
violation of the right of any individual under the Americans with
Disability Act of 1990 (Public Law 101-336) shall also constitute
a violation of this section.’ ” (Ibid., quoting Assem. Bill No. 1077
(1991–1992 Reg. Sess.) as amended July 6, 1992, § 3.)
However, despite the bill’s revised wording, “[t]he
description of the language in committee reports and bill
analyses also remained exactly as before.” (Brennon B., supra,57 Cal.App.5th at p. 399, citing Conc. in Sen. Amends., Assem.
Bill No. 1077 (1991–1992 Reg. Sess.) as amended Aug. 29, 1992,
p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as
amended Aug. 29, 1992, p. 2; State and Consumer Services
Agency, Enrolled Bill Rep. on Assem. Bill No. 1077 (1991–1992
Reg. Sess.) p. 2.) In other words, descriptions of the bill
continued to refer to its purpose as making a violation of the
ADA “with respect to public accommodations” also a violation of
the Unruh Civil Rights Act. (Brennon B., at p. 398, italics
added.)
In addition, the changes made to the bill’s language by the
July amendment were described by one committee as “ ‘mostly
technical.’ ” (Brennon B., supra, 57 Cal.App.5th at p. 399,
31
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
quoting Business, Transportation & Housing Agency, Supp.
Analysis on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as
amended July 6, 1992, p. 1.) There is no indication that
substantive changes were effectuated by this “technical” change
in the bill’s language. Throughout the entire legislative history
of Assembly Bill 1077, the bill was understood as dealing with
“discrimination by business establishments” and violations of the
law “with respect to public accommodations.” (Legis. Counsel’s
Dig., Assem. Bill No. 1077 (1991 –1992 Reg. Sess.), italics
added.) There is no suggestion that removal of the phrase “with
respect to public accommodations subject thereto” shortly before
the bill was enacted was intended to make the Unruh Civil
Rights Act broadly applicable to all entities capable of violating
the ADA or to make violations of the ADA by any person or entity
a violation of the Unruh Civil Rights Act. Such a change would
have been a monumental one, not merely a “technical” one.
Thus, the Court of Appeal was correct to conclude that
subdivision (f) makes “any violation of the ADA by a business
establishment” a violation of the Unruh Civil Rights Act.
(Brennon B., supra, 57 Cal.App.5th at p. 398.) If the Legislature
had intended to change the meaning of the bill’s text through
the July revisions, it would be odd for the legislative history to
obscure — rather than clarify — that fact by failing to reflect
such a change in subsequent committee reports and bill
analyses. (See, e.g., Gong v. City of Rosemead (2014) 226
Cal.App.4th 363, 375 [“We submit that if the Legislature desired
to enact such a major change . . . , it would have clearly stated
so”].) And it would be odder still to describe such monumental
changes as “mostly technical.” If the Legislature had intended
to allow — for the first time in the more than thirty years since
the Unruh Civil Rights Act was first enacted — a vastly
32
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
expanded set of entities to be sued for disability discrimination
(but not any other kind of discrimination, such as race- or
gender-based discrimination), we would have expected at least
some discussion of that change in the legislative history. But
there is none.
Moreover, even looking beyond the July modifications to
Assembly Bill 1077, we find no mention anywhere in the
legislative history of an intention to subject state actors to new
liability under the Unruh Civil Rights Act. For example, there
are numerous fiscal analyses contained in the bill’s legislative
history, but none indicated increased financial liabilities for
public entities under the Act. (See, e.g., Dept. of Finance,
Enrolled Bill Rep. on Assem. Bill No. 1077 (1991–1992 Reg.
Sess.) prepared for Governor Wilson (Sept. 11, 1992) p. 2
[discussing many changes that would have a fiscal impact, but
not mentioning liability for public entities under the Act].)
Again, we do not expect the Legislature to make such significant
changes to the law “without a single comment or any
explanation” in the legislative history. (Presbyterian Camp &
Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493,
511 (Presbyterian Camp); see also People v. Raybon (2021)
11 Cal.5th 1056, 1068 [“if the drafters had intended to so
dramatically change the law[] . . . , we would expect them to
have been more explicit about their goals”].)
That conclusion is further supported by the fact that the
legislative history describes other changes effectuated by the
law (such as the addition of “persons with mental disabilities” to
the classes of individuals protected by the Unruh Civil Rights
Act and the provision of a private right of action for ADA
violations), but does not mention the dramatic one argued by
Brennon. (Cf. Presbyterian Camp, at p. 511.) As the Court of
33
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
Appeal summarized: “We thus see no indication the Legislature
intended, as to disability discrimination only, to transform the
[Unruh Civil Rights Act] into a general antidiscrimination
statute making any violation of the ADA by any person or entity
a violation of the Act.” (Brennon B., supra, 57 Cal.App.5th at
p. 400.)
As with our analysis of subdivision (b), we find that the
conclusion compelled by the legislative history of subdivision (f)
draws additional support from our prior caselaw. In cases since
the 1992 amendment, we have continued to describe the Unruh
Civil Rights Act — even when specifically examining the
relationship between it and the ADA — as intended to “ ‘create
and preserve a nondiscriminatory environment in California
business establishments.’ ” (Munson, supra, 46 Cal.4th at
p. 673, quoting Angelucci v. Century Supper Club (2007)
41 Cal.4th 160, 167.)
To the extent Brennon contends Munson stated that
subdivision (f) made any violation of the ADA — whether
committed by a business establishment or another entity — a
violation of the Act, we reject this contention. Munson
addressed the discrete issue of whether a plaintiff seeking
Unruh Civil Rights Act damages premised on a violation of the
ADA must show intentional discrimination. (Id. at p. 665.)
Brennon focuses on language in Munson that states: “By adding
subdivision (f) to section 51, making all ADA violations . . .
violations of the Unruh Civil Rights Act as well, the Legislature
included ADA violations in the category of ‘discrimination’
contrary to section 51.” (Id. at p. 672.) However, when read in
the broader context of the opinion, it is clear that Munson did
not understand subdivision (f) as reading the “business
establishments” limitation out of existence. For example, the
34
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
court went on to explain: “The ADA, as explained above, permits
a disabled individual denied access to public accommodations to
recover damages in a government enforcement action only, not
through a private action by the aggrieved person. But by
incorporating the ADA into the Unruh Civil Rights Act,
California’s own civil rights law covering public
accommodations, which does provide for such a private damages
action, the Legislature has afforded this remedy to persons
injured by a violation of the ADA.” (Id. at p. 673, italics added.)
As this passage makes clear, in Munson, the court was
speaking about only one title of the ADA (title III, which governs
public accommodations and which is separate from title II,
governing state and government actors) and was articulating
rules about discrimination by business establishments. It was
not purporting to do away with the “business establishments”
limitation of the Unruh Civil Rights Act. (See also, e.g., Jankey
v. Lee (2012) 55 Cal.4th 1038, 1044 [continuing to describe the
Act as a law that “broadly outlaws arbitrary discrimination in
public accommodations”].) Again, we agree with the Court of
Appeal below that “the Act has always been, and remains, a
business establishment statute, and that it is violations of the
ADA by business establishments (or, as denominated by the
ADA, ‘public accommodations’) that are actionable as violations
of the [Unruh Civil Rights Act] under Civil Code section 51,
subdivision (f).” (Brennon B., supra, 57 Cal.App.5th at p. 404.)
None of our prior cases, including Munson, have read this
requirement out of the law.
Furthermore, we have also previously held that “the
Unruh Civil Rights Act has no application to employment
discrimination.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 77 (Rojo),
citing Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500
35
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
(Alcorn) [“there is no indication that the Legislature intended to
broaden the scope of section 51 to include discriminations other
than those made by a ‘business establishment’ in the course of
furnishing goods, services or facilities to its clients, patrons or
customers”]; see also Isbister, supra, 40 Cal.3d at p. 83, fn. 12
[“the employer-employee relationship was not covered by the
Act”].) Title I of the ADA covers employment discrimination.
(42 U.S.C. § 12111 et seq.) Accordingly, if Brennon is correct
and all ADA violations are also violations of the Unruh Civil
Rights Act without qualification, then the Unruh Civil Rights
Act would necessarily apply to employment discrimination,
contrary to what we have previously held. Thus, Assembly Bill
1077 either abrogated these prior holdings by making violations
of title I of the ADA actionable under the Unruh Civil Rights
Act, or the cases remain good law and refute the contention “that
any violation of the ADA is also a violation the [Unruh Civil
Rights Act].” (Brennon B., supra, 57 Cal.App.5th at p. 402.)
We conclude that Assembly Bill 1077 did not silently
abrogate Alcorn and Rojo. We agree with the Court of Appeal’s
conclusion that Brennon’s argument on this point “would
effectively render superfluous amendments made by this same
legislation to . . . FEHA.” (Brennon B., supra, 57 Cal.App.5th at
p. 401.) If any violation of the ADA were a violation of the Unruh
Civil Rights Act, a violation of title I of the ADA, which prohibits
disability discrimination in employment, would also violate the
Unruh Civil Rights Act. But the Legislature went out of its way
to incorporate title I of the ADA into FEHA; if Brennon’s
interpretation were correct, those changes to FEHA would be
rendered “meaningless surplusage.” (Ibid.; see also Bass v.
County of Butte (9th Cir. 2006) 458 F.3d 978, 982 (Bass) [noting
that this argument “would create a significant disharmony”
36
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
between the Unruh Civil Rights Act and FEHA and “create an
end-run around the administrative procedures of FEHA solely
for disability discrimination claimants”].) We seek to avoid
“interpretations that render any language surplusage.”
(Berkeley Hillside Preservation v. City of Berkeley (2015) 60
Cal.4th 1086, 1097.) Accordingly, we reject the idea that “any
violation of the ADA by any person or entity is also a violation
of the [Unruh] Act.” (Brennon B., at p. 398.)
Brennon and amici curiae highlight several federal cases
that have concluded that “the Unruh Act has adopted the full
expanse of the ADA.” (Presta v. Peninsula Corridor Joint
Powers Bd. (N.D.Cal. 1998) 16 F.Supp.2d 1134, 1135.) But once
again, these federal cases fail to persuade, in light of what is
compelled by the legislative history and reinforced by our prior
cases. The federal cases cited by Brennon and the amici curiae
who support his position engage in no — or very little —
analysis of the relationship between the Unruh Civil Rights Act
and the ADA, the legislative history of Assembly Bill 1077, or
our prior caselaw. (See, e.g., Lentini v. California Center for the
Arts, Escondido (9th Cir. 2004) 370 F.3d 837, 847 [concluding
that “the Unruh Act has adopted the full expanse of the ADA”];
K.M. ex rel. Bright v. Tustin Unified Sch. Dist. (9th Cir. 2013)
725 F.3d 1088, 1094, fn.1 [“[u]nder California law, ‘a violation of
the ADA is, per se, a violation of the Unruh Act,’ ” quoting
Lentini]; Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724,
731 [noting, without any analysis, that “[a]ny violation of the
ADA necessarily constitutes a violation of the Unruh Act”];
Cohen v. City of Culver City (9th Cir. 2014) 754 F.3d 690, 701 [“a
violation of the ADA constitutes a violation of the Unruh Act”];
Presta, at p. 1135 [concluding that “all violations of the ADA are
actionable under the Unruh Act” and citing an unpublished
37
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
district court case as support for that proposition]; R.N. v. Travis
Unified Sch. Dist. (E.D.Cal., Dec. 8, 2020, No. 2:20-CV-00562-
KJM-JDP) 2020 WL 7227561, at *10.)
Notably, the federal case that did “undert[ake] a thorough
examination” (Brennon B., supra, 57 Cal.App.5th at p. 407) of
the legislative history of Assembly Bill 1077 and our prior
decisions, also rejected the argument that Assembly Bill 1077
incorporated the complete expanse of the ADA (see Bass, supra,458 F.3d at p. 983 [reading the amendment “in the context of
California’s overall scheme of statutory protections against
discrimination” and noting “the absence of any express
indication by the state legislature that it intended . . . to
drastically expand the [statute’s] subject matter,” to conclude
that the Unruh Civil Rights Act includes “only those provisions
of the ADA that are germane to [its] original subject matter”]).
Like the Court of Appeal, we conclude that Bass “correctly
analyzed Civil Code section 51, subdivision (f)” and rightly
concluded “that it expressly makes any violation of the ADA by
a business establishment a violation of the [Unruh Civil Rights
Act].” (Brennon B., at p. 408.)
Accordingly, we reject the contention that — even if it is
not acting as a business establishment under subdivision (b) of
section 51 — a school district can still be sued for discrimination
by virtue of subdivision (f) of that section, which makes
violations of the ADA violations of the Unruh Civil Rights Act.
Instead, subdivision (f) means that “any violation of the ADA by
a business establishment is also a violation of the [Unruh Civil
Rights Act].” (Brennon B., supra, 57 Cal.App.5th at p. 398.)
38
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
C.
Brennon asks the court to consider whether Unruh Civil
Rights Act remedies have been incorporated into the relevant
provisions of the Education Code, such that he is entitled to the
Act’s enhanced penalties, even if the District is not subject to
liability as a business establishment. He asserts that a 1998
Education Code amendment, stating that Education Code
remedies “may be combined” with certain other statutory
remedies (Ed. Code, § 201, subd. (g)), means that schools subject
to the Education Code are also subject to the enhanced penalties
made available under the Unruh Civil Rights Act. In this way,
Brennon argues that the 1998 Education Code amendment
essentially incorporated the Act’s penalties into the Education
Code. The District contends this question is beyond the scope of
review.
The Court of Appeal below did not address the Education
Code argument Brennon now asserts (that Unruh Civil Rights
Act remedies have been incorporated into the Education Code),
but it did analyze a different Education Code argument he
asserted below: whether the 1998 Education Code amendment
“demonstrates California public school districts are business
establishments under the Act.” (Brennon B., supra, 57
Cal.App.5th at p. 393.) In other words, below, Brennon asserted
that the language of Education Code section 201, subdivision (g)
indicated the Legislature intended to treat public school
districts as “business establishments” under the Unruh Civil
Rights Act; now, he asserts that — even if the District is not
subject to Unruh Civil Rights Act liability as a business
establishment — he can nonetheless seek the Act’s enhanced
remedies because those remedies have been incorporated into
the Education Code.
39
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
We agree with the Court of Appeal that the amended
language of Education Code section 201 “does not say public
school districts are business establishments under the Unruh
Act.” (Brennon B., supra, 57 Cal.App.5th at p. 396.) Like the
court below, we find that bringing public school districts within
the ambit of the Unruh Civil Rights Act would have exceeded
the stated intention behind the 1998 amendment and been in
tension with the Legislature’s professed goal of mitigating
litigation costs for schools.10 (Id. at pp. 393–397.) Additionally,
we are not persuaded — in light of the mootness of this case in
which no Education Code claim was pleaded — to reach the
10
Numerous legislative committees noted that the 1998
amendment “d[id] not redefine or expand existing non-
discrimination statutes.” (Sen. Appropriations Com., Fiscal
Summary, Assem. Bill No. 499 (1997–1998 Reg. Sess.) as
amended July 22, 1998, p. 1; see also, e.g., Assem.
Appropriations Com., Fiscal Summary, Assem. Bill No. 499
(1997–1998 Reg. Sess.) as amended July 22, 1998, p. 1 [same].)
In addition, there was little or no discussion of potential
financial liabilities for public entities in any of the fiscal
analyses of the amendment available in the bill’s legislative
history. (See, e.g., Dept. of Finance, Enrolled Bill Report on
Assem. Bill No. 499 (1997–1998 Reg. Sess.) as amended July 22,
1998, p. 1 [“No fiscal impact. Potential savings to educational
institutions if they are able to resolve problems administratively
during the waiting period”].) This is notable because the fiscal
impact of Brennon’s proposed interpretation — that the
amendment to the Education Code would have allowed public
school districts to be sued under the Unruh Civil Rights Act for
the first time — would have been significant. Moreover,
Brennon’s argument on this point is even less convincing than
it was in the context of subdivision (f) of section 51, as this
argument would make school districts liable for all forms of
discrimination (not just disability discrimination), without any
discussion of such a sweeping change anywhere in the
legislative history.
40
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
remedy-incorporation theory Brennon now raises for the first
time.
D.
Brennon asks us to decide whether his second amended
complaint can be amended to state a cause of action under the
Unruh Civil Rights Act or Education Code. However, as he
concedes, because “the parties hav[e] settled, the question may
be moot as to them.” The question of whether Brennon could
have amended a complaint that has since been dismissed is
entirely theoretical at this juncture. Accordingly, the court does
not decide this issue. (See People ex rel. Lynch v. Superior
Court (1970) 1 Cal.3d 910, 912, citing Cal. Const., art. III, § 1;
art. VI, §§ 10, 11 [“The rendering of advisory opinions falls
within neither the functions nor the jurisdiction of this court”].)
E.
We again emphasize that our resolution of the legal issues
before us does not turn upon our personal views about the
wisdom of the statutes at issue or the question of whether they
provide sufficient protection to those who suffer discrimination;
instead we are tasked with resolving a question of statutory
interpretation. (See, e.g., Warfield, supra, 10 Cal.4th at p. 598.)
As the parties and the amici curiae make clear, there are
exceedingly compelling, yet competing, policy concerns
implicated by this case. Policy arguments, no matter how
persuasive, cannot overcome a clear legislative intent derived
from statutory text and appropriate extrinsic sources.
Nevertheless, we briefly address some of the arguments here,
given the extensive emphasis placed on them in the briefing.
Brennon asserts that including public school districts
within the category of “business establishments” would help to
41
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
vindicate students’ rights, support the state’s policy against
discrimination, promote the full integration of people with
disabilities into public life, and ensure the safety of students in
California’s public schools. (See Cal. Const., art. I, § 28, subd.
(a)(7) [students “have the right to be safe and secure in their
persons”]; see also C.A. v. William S. Hart Union High School
Dist. (2012) 53 Cal.4th 861, 870, fn. 3 [noting “the fundamental
public policy favoring measures to ensure the safety of
California’s public school students”].) We acknowledge that
discrimination in California, including within public schools,
continues to be a cause for considerable concern and attention,
and its elimination remains a key policy focus. (See City of
Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1161
[“discrimination based on disability . . . violates a ‘substantial
and fundamental’ public policy”].)
Brennon further argues that because the Unruh Civil
Rights Act is one of the few statutes to provide for the recovery
of both damages and attorney fees, it is uniquely well equipped
to make private enforcement actions feasible. (See Woodland
Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917,
933 [“without some mechanism authorizing the award of
attorney fees, private actions to enforce such important public
policies will as a practical matter frequently be infeasible”].) He
contends that, compared to other antidiscrimination laws, the
remedies available under the Act are significant; Brennon
argues that a successful plaintiff can aggregate statutory
penalties for each and every offense, recovering treble damages
for each one (a proposition the District disputes); that the Act
imposes a statutory damage floor of $4,000 (even if actual
damages are less); and that the Act allows only the prevailing
plaintiff (but not prevailing defendants) to recover attorney fees.
42
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
Amici curiae supporting Brennon’s position also note that
advocates have often used the possibility of having to pay
damages and attorney fees to encourage school districts to
institute systemic changes — prior to any litigation — by
amending or eliminating harmful school policies and practices.
And amici curiae argue that the inability to pursue statutory
penalties and attorney fees will make discrimination cases too
costly (and therefore too risky), such that attorneys will be
unwilling to handle many of these kinds of cases. In light of the
fact that, according to amici curiae, California public schools
serve 749,295 students with disabilities (meaning one in eight
California public school students has a disability), and the fact
that, according to amici curiae, those children face increased
rates of assault, bullying and harassment, high rates of
segregation from other students, and heightened rates of
excessive use of force by law enforcement and school authorities,
the importance of these considerations cannot be overstated.
For its part, the District argues, invoking Wells, that “in
light of the stringent revenue, appropriations, and budget
restraints under which all California governmental entities
operate” (Wells, supra, 39 Cal.4th at p. 1193), subjecting public
school districts to financial liabilities does not come without
significant drawbacks and doing so could impede the ability of
local governments (and the state) to provide free public
education.11 As evinced by the passage of Assembly Bill 499,
11
The District’s point about the significant fiscal impact of
Brennon’s position is further underscored by the fact that
several of the policy arguments advanced by Brennon and the
amici supporting him extend well beyond the public education
context and seemingly apply to all public entity defendants.
43
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
which imposed a 60-day cooling-off period before civil remedies
may be pursued against a school district, the Legislature has
expressed concern about — and acted to reduce — litigation
costs for public schools. In addition, public entities like school
districts remain subject to other antidiscrimination laws. (See,
e.g., Brennon B., supra, 57 Cal.App.5th at p. 370 [noting “the
panoply of antidiscrimination statutes” to which public school
districts are subject, including those in the Education Code (Ed.
Code, § 200 et seq.), the Government Code (Gov. Code, § 11135),
and various federal laws (42 U.S.C. § 1983; 20 U.S.C. § 1681 et
seq.; 42 U.S.C. § 12131 et seq.)].) Although — as amici curiae
point out — those laws may not afford the same remedies made
available by the Unruh Civil Rights Act and may be more
difficult to litigate,12 “that circumstance cannot justify
extending the scope of the Unruh Civil Rights Act further than
its language reasonably will bear.” (Curran, supra, 17 Cal.4th
at p. 701; cf. Wells, supra, 39 Cal.4th at pp. 1195–1196 [“The
Legislature is aware of the stringent revenue, budget, and
Taken to their rational endpoint, such arguments would
significantly expand the scope of the Act’s coverage provision
and undermine the “business establishments” limitation
written into the statutory text — a limitation we are not
permitted to read out of the statute in response to policy
arguments.
12
For example, pursuant to subdivision (f) of section 51, a
plaintiff may recover statutory damages under the Unruh Civil
Rights Act without proving that the defendant’s discrimination
was intentional, while under title II of the ADA, a plaintiff must
succeed in proving intentional discrimination to recover
monetary damages. (Compare Munson, supra, 46 Cal.4th at p.
670 [explaining recovery under the Unruh Civil Rights Act] with
Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, 1138
[explaining recovery under title II of the ADA].)
44
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
appropriations limitations affecting all agencies of
government — and public school districts in particular. Given
these conditions, we cannot lightly presume an intent to [subject
these entities to large financial liabilities]. Such a diversion of
limited taxpayer funds would interfere significantly with
government agencies’ fiscal ability to carry out their public
missions,” fn. omitted].)
The proper balancing of these competing priorities is
ultimately and unquestionably “a policy issue that lies within
the province of the legislative, rather than the judicial, branch.”
(Curran, supra, 17 Cal.4th at p. 701.) As we have noted before,
subject to constitutional constraints, the Legislature may
“extend the provisions of the Unruh Civil Rights Act to
additional entities” or “enact new legislative measures to
address any gaps or inadequacies that it finds in the current
statutory provisions.” (Ibid.) It may also decide that it is
preferable to maintain existing limitations on the liability of
public entities. Some states have decided to include schools and
public school districts in their definitions of public
accommodations,13 while others have continued to exclude
them14 — it appears, however, that the several states that have
13
See, e.g., N.J. Stat. Ann. § 10:5-5(l) (including “any
kindergarten, primary and secondary school, trade or business
school, high school, academy, college and university” in its
definition of public accommodation).
14
See, e.g., Whitman-Singh v. Comm’n on Human Rights
and Opportunities (Conn.Super.Ct., Nov. 22, 2021, No.
HHBCV206061006S) 2021 WL 5912321, at *1 (concluding that
“a public school is not a place of public accommodation” because
“the phrase ‘place of public accommodation’ has a long-settled
meaning” that “refers to private establishments, enterprises and
45
BRENNON B. v. SUPERIOR COURT
Opinion of the Court by Groban, J.
recognized public schools or public entities as public
accommodations have done so expressly via statute, not through
court decisions. As described above (see fn. 6, ante), the
Legislature recently enacted new accommodation and
antidiscrimination protections for certain groups of public
school students, and it is free to enact additional protections
against discrimination in the future. But we conclude that the
Unruh Civil Rights Act as currently written cannot reasonably
be interpreted to encompass public school districts in situations
such as this one.
III.
For the reasons discussed above, neither subdivision (b)
nor subdivision (f) of section 51 enables Brennon to proceed
against the District under the Unruh Civil Rights Act, nor does
the reference to the Act in the Education Code. Accordingly, we
affirm the judgment of the Court of Appeal denying the petition
for writ of mandate.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
organizations that cater or offer their services and facilities to
the general public” and “does not include government entities”);
Gandy v. Howard County Bd. of Educ. (D.Md. Sept. 1, 2021.
GLR-20-3436) 2021 WL 3911892, at *10 (concluding that a
Maryland public school is not a place of public accommodation).
46
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Brennon B. v. Superior Court
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 57 Cal.App.5th 367Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S266254
Date Filed: August 4, 2022
__________________________________________________________
Court: Superior
County: Contra Costa
Judge: Charles S. Treat
__________________________________________________________
Counsel:
Liberty Law Office, Micha Star Liberty; and Alan Charles Dell’Ario for
Petitioner.
The Arkin Law Firm, Sharon J. Arkin; Law Offices of Charles S.
Roseman & Associates, Charles S. Roseman, Richard D. Prager; Law
Offices Of Frank M. Nunes and Frank M. Nunes for Consumer
Attorneys of California, Thomas Emmanuel Akande, Anahi Alfaro,
Maria "Nikki" Cantos, Jasmine Castaneda, Taylor Chumley, Omar
Estrada, Annadina Garcia, Gabriel Garcia, Diego Guzman, Bao Her,
Ana Landeros, Helizabela Lee, Caitlyn Lindley, Alexis Lopez, Jorge
Lopez-Pardo, Bailey Matney, Bolivar Quezadas, Abdiel Rosales, Myra
Rubio, Rina Saengkeo, Arianna Singh, Narinderp Al Singh, Oleksandr
Volyk and Amy Zendejas as Amici Curiae on behalf of Petitioner.
Linda D. Kilb and Claudia Center for Disability Rights Education &
Defense Fund as Amicus Curiae on behalf of Petitioner.
Jinny Kim and Alexis Alvarez for AIDS Legal Referral Panel, Arc of
California, Association on Higher Education and Disability, California
Association for Parent-Child Advocacy, Civil Rights Education and
Enforcement Center, Communication First, Disability Rights
Advocates, Disability Rights California, Disability Rights Legal
Center, Impact Fund, Legal Aid at Work, Mental Health Advocacy
Services and Public Law Center as Amici Curiae on behalf of
Petitioner.
Victor Leung, Ana Mendoza, Ariana Rodriguez; Brandon Greene,
Linnea Nelson, Grayce Zelphin; and Melissa DeLeon for American
Civil Liberties Union of Southern California, American Civil Liberties
Union of Northern California, American Civil Liberties Union of San
Diego and Imperial Counties, Alliance for Children’s Rights, California
Rural Legal Assistance, Collective for Liberatory Lawyering, East Bay
Community Law Center, Equal Justice Society, Law Foundation of
Silicon Valley, Lawyers’ Committee for Civil Rights of the San
Francisco Bay Area, Learning Rights Law Center, National Center for
Youth Law, Neighborhood Legal Services of Los Angeles County,
Public Advocates, Public Counsel and Youth Justice Education
Clinic—Loyola Law School as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Edrington, Schirmer & Murphy, Timothy P. Murphy, Cody Lee Saal;
Clyde & Co US, Douglas J. Collodel and Alison K. Beanum for Real
Parties in Interest.
Dannis Woliver Kelley, Sue Ann Salmon Evans, David A. Obrand;
Keith J. Bray and Robert Tuerck for Education Legal Alliance of the
California School Boards Association and the California Association of
Joint Power Authorities as Amici Curiae on behalf of Real Party in
Interest West Contra Costa Unified School District.
Richard S. Linkert and Madison M. Simmons for Schools Insurance
Authority as Amicus Curiae on behalf of Real Party in Interest West
Contra Costa Unified School District.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Alan Charles Dell’Ario
Attorney at Law
P.O. Box 359
Napa, CA 94559
(707) 666-5351
Cody Lee Saal
Edrington, Schirmer & Murphy, LLP
2300 Contra Costa Boulevard, Suite 450
Pleasant Hill, CA 94523
(925) 827-3300