Filed 1/12/18 Asselin-Normand v. Raps Hayward LLC CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


JONATHAN ASSELIN-NORMAND,
Plaintiff and Appellant,
v.
RAPS HAYWARD LLC et al.,
Defendants and Respondents.

A151660

(San Mateo County
Super. Ct. No. 17-CIV-00084)

This is an appeal from the Superior Court of San Mateo County after judgment was entered in favor of respondents Raps Hayward LLC, doing business as Pacific Euro Hotel (Raps Hayward) and Ish Bhatt (Bhatt). The judgment followed the sustaining of respondents’ demurrer without leave to amend. We have reviewed the pleadings and briefs filed and conclude the trial court’s decision was correct. We therefore affirm the judgment.
STATEMENT OF THE CASE
The original complaint in this matter was first filed in the County of Santa Clara and then transferred to the County of San Mateo. Appellant originally believed respondents, located in Redwood City, were in the County of Santa Clara. Appellant alleges three causes of action: a violation of the Unruh Civil Rights Act (Civil Code, § 51 et seq.) (Unruh), a breach of the common law duty of innkeepers, and negligence.
Appellant alleges he is a resident of Quebec, Canada. On or about May 27, 2014, when he was 17 years old, he was “considering accommodations and other services for his travels,” and he had a Delaware-based business called Horizon Access Travel (Horizon) help him in his travel plans. Horizon is not a party to this action. Respondent Raps Hayward is doing business as Pacific Euro Hotel, located at 868 Main Street in Redwood City. It is a lodging establishment renting rooms to the public. Respondent Bhatt is not fully identified in the complaint, though he is a named party in the caption. He is referenced in a communication between Horizon and respondent Raps Hayward.
Appellant alleges Horizon sent an e-mail to Raps Hayward on or about May 27, 2014, stating the following:
“Hello:
“We are the travel agency of a teenager (residing in Canada) for a business trip in California. Our client is 17 years of age and will travel on his own. He is interested in using your lodging services because he needs shelter.
“Before arranging any travel plan, we would like to confirm that your establishment would not refuse to check him into the hotel. Can you accept our client? If not, is there any alternative or solution to accommodate him in your establishment?
“We would also like to request details regarding any policy that could affect our client.
“Best regards,
“Sanjiv Kumar
“Reservation Agent
“Horizon Access Travel, Inc.” (Italics added.)
Respondents replied on the same day with the following:
“Dear Mr. Sanjiv,
“Unfortunately, we will not be able to check him in as our hotel policy needs one to be at least 21 to check in. An alternative solution could be if your client is accompanied by someone who is 21 or older and would [be] ready to check in.
“Please contact us for more questions.
“Thanks,
“Ish”
These are the exclusive facts alleged in the complaint that provide the basis for appellant’s claim of unlawful age discrimination under Unruh and the other causes of action. To these contentions, the trial court sustained a demurrer without leave to amend.
Appellant filed his complaint in San Mateo Superior Court on January 9, 2017. Respondents filed their demurrer on March 1, 2017. While the tentative ruling sustaining the demurrer was made on March 29, 2017, appellant requested a hearing to challenge the tentative ruling. Appellant failed to appear at the court hearing he requested. The court then confirmed the tentative ruling. On April 28, 2017, the court dismissed the complaint and entered a judgment in favor of respondents. The judgment was filed on May 5, 2017. Appellant filed his appeal on June 7, 2017.
DISCUSSION
A review of a trial court’s sustaining a demurrer without leave to amend asks this court to assess whether appellant has alleged facts sufficient to justify the relief he seeks, notwithstanding any superfluous claims in the complaint. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371.) As our Supreme Court has stated: “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be be judicially noticed.’ [Citation.] . . . [W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The first cause of action alleges a violation of Unruh. Under section 51, subdivision (b) of the statute, “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, 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 of all business establishments of every kind whatsoever.” A review of the complaint in this matter indicates this is a potential claim based on age discrimination. However, age is not among the enumerated factors of Unruh that are expressly precluded. Not all age discrimination is unlawful. “Neither the language of Unruh itself nor the interpretation of the Unruh Civil Rights Act by the California courts have held that all discrimination based on age is unlawful.” (Sargoy v. Resolutions Trust Corp. (1992) 8 Cal.App.4th 1039, 1043 (italics in original).) Furthermore, the purpose of Unruh is to prevent discrimination that is “arbitrary, invidious, or unreasonable.” (Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1395 (Javorsky); see In re Cox (1970) 3 Cal.3d 205, 216.) Discrimination is reasonable and not arbitrary after one fairly examines the nature of the enterprise and its legitimate business interests, such as maintaining order, complying with legal requirements, and protecting the reputation of the operation. Public policy will tolerate disparate treatment if necessary for a legitimate business purpose. (Javorsky, at p. 1395.) A business is permitted under Unruh to establish reasonable regulations that are rationally related to the services performed and the facilities provided. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1502–1503.) This degree of flexibility is conceded by appellant in his complaint.
It appears appellant was a minor and was making a general inquiry through his purported agent, Horizon, regarding possibly staying at respondents’ business. When respondents allegedly answered Horizon’s questions, it stated it has a policy of renting to adults and not minors. Appellant submits no case authority supporting the notion hotels are obligated to rent to minors alone as a matter of course.
The additional frustration of this appeal to this court is the factual pleading does not support the contention that the minor appellant was in fact rejected by the respondents in a bona fide effort to stay at the Pacific Euro Hotel. All we have is a third party making an inquiry about a policy for minors interested in renting a room. Respondents indicated their general policy, providing a possible scenario indicating accommodation, and suggesting Horizon contact respondents further on the matter. The pleading here is devoid of any facts stating appellant interacted with respondents directly, or that Horizon had a legitimate assignment from appellant to explore an opportunity for Asselin-Normand to be a guest at the site. On its face, the dismissed pleading lacks a direct causal relationship between Asselin-Normand and Raps Hayward or the Pacific Euro Hotel. Appellant does not allege any discriminatory act by respondents in his pleading. Cases correctly involving Unruh involve an instance of discrimination within the four corners of the pleading. The “injury occurs when the discriminatory policy is applied to the plaintiff—that is, at the time the plaintiff patronizes the business establishment . . . .” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175 [male customers were charged higher prices than female patrons, instance of gender discrimination]; see Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [different prices for car cleaning services based on gender].) In each of these cases, Unruh discrimination arose at the time of a specific business transaction. We do not have any actual transaction here, but at best an inquiry by a third party, not appellant.
Additionally, section 1865, subdivision (d)(1) states: “Where a minor unaccompanied by an adult seeks accommodations, the innkeeper may require a parent or guardian of the minor, or another responsible adult, to assume, in writing, full liability for any and all proper charges and other obligations incurred by the minor for accommodations . . ., as well as for any and all injuries or damages caused by the minor to any person or property.” Appellant was a minor at the time Horizon inquired regarding accommodation policies at the hotel. Under section 1865, subdivision (d)(1), respondents had a statutory right to compel adult guarantees before even considering accommodating appellant. Appellant demonstrated no effort to be exempt from this statutory precondition. Additionally, this statutory precondition for minors is a legislative defense for concluding no “age” discrimination under Unruh.
The second cause of action alleged in the complaint, in which a demurrer was sustained without leave to amend, is the claimed violation of the common law innkeeper’s duty to provide accommodations. Firstly, appellant presents no authority for his contention regarding this common law duty. Our research indicates the common law duty of innkeepers is limited to the assurance “each traveler [had] the freedom from unreasonably high rates. Since travel upon the highway at night was hazardous and there was little choice of lodging for the night, the common law approved restrictions upon innkeepers to insure a charge of ‘reasonable value’ for services, to prevent them from extorting exorbitant rates.” (Archibald v. Cinerama Hawaii Hotels, Inc. (1997) 73 Cal.App.3d 152, 157, citing Munn v. Illinois (1877) 94 U.S. 113, 125.) No case has stretched this common law duty regulating hotel rates to mere inquiries by possible customers, adult or otherwise, regarding hotel pricing policies. There is a rather obvious factual difference between the customer arriving at the lodge in the middle of the night and the possible patron using a travel agent to check out room rental policies in an e-mail. Appellant has not alleged the rates at respondent hotel were excessive or unreasonable rates. We find no error in sustaining the demurrer in this cause of action.
Regarding the third cause of action for negligence, we observe it is without merit. There is no allegation of a duty on the part of respondents, nor did appellant allege any damages, because Horizon never communicated with respondents after the hotel stated its policy regarding minors as guests. Additionally, California has enacted section 1865, subdivision (d)(1), allowing hotel operators to require satisfaction of certain conditions before being obligated to consider minors as guests in their establishments. If respondents had a duty toward appellant, failure to prove a violation of this statutory prerequisite would preclude a breach of a duty and negate negligence by the hotel. This pleading fails to allege any unlawful discrimination by respondents; there can be no negligence under the details of this complaint.
CONCLUSION
We have reviewed the complaint in this case and conclude the trial court acted correctly in sustaining the demurrer without leave to amend.
DISPOSITION
We affirm the judgment.


_________________________
Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.