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Hawkins v. Hotel

Court of Appeal of California
Sep 4, 2008
No. B203094 (Cal. Ct. App. Sep. 4, 2008)

Opinion

B203094

9-4-2008

THOMAS HAWKINS III, Plaintiff and Appellant, v. CECIL HOTEL, Defendant and Respondent.

Thomas Hawkins III, in pro. per., for Plaintiff and Appellant. Archer Norris, W. Eric Blumhardt, Kimberly M. Amick and Anne L. Bigley for Defendant and Respondent.

Not to be Published


Plaintiff and appellant Thomas Hawkins III (appellant) appeals from the judgment of dismissal entered against him and in favor of defendant and respondent Cecil Hotel (respondent) after the trial court sustained without leave to amend respondents demurrer to appellants second amended complaint. He contends the second amended complaint stated a cause of action for discrimination in violation of the federal Fair Housing Act (FHA) (42 U.S.C. § 3601 et seq.), Californias Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and Californias Fair Employment and Housing Act (FEHA) (Gov. Code, § 12955). We affirm.

STANDARD OF REVIEW

The standard of review from a judgment of dismissal entered following an order sustaining a demurrer is well established. We review the order de novo to determine whether the complaint states a cause of action as a matter of law. "We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law. [Citation.]" (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870.)

Because the demurrer was sustained without leave to amend, we "must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect; if so, [we will] conclude that the trial court abused its discretion by denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect. [Citation.]" (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397.)

FACTUAL AND PROCEDURAL BACKGROUND

The record does not include a copy of the original complaint, the first amended complaint, or the second amended complaint. Accordingly, we glean the following facts from a document captioned: "Response: Here is the information Missing from the amended complaint," which was filed by appellant in the trial court. In this document, appellant, who is African American, alleges: "[T]he hotel manager which is name [sic] Michael Alvarez refused to rent me a room because his Hispanic security officers had assaulted me last time I was paying my money to be housed at the Cecil Hotel. This incident occurred on September 14, 2004. . . . This incident that occurred was a hate crime. Michael Alvarez refused to rent me a hotel room on January 29, 2007[;] first he tried to say that there were drugs found in my hotel room last time I was paying my money to be housed at that location. I have been drug free all my life. . . ." The document further alleged that "Michael Alvarez engages in `steering in violation of Fair Housing Act . . . by making efforts to deprive a protected home seeker of housing opportunities in certain locations." It concludes: "It is up to the Cecil Hotel/Michael Alvarez to prove that he didnt discriminate against me when I came to rent a room for the month on January 29, 2007[,] at the Cecil Hotel. This case deals with housing discrimination, racial discrimination, retaliation."

This document was not included in the Clerks Transcript but was attached as an exhibit to Appellants Opening Brief. We take judicial notice of the document as a court record. (Evid. Code § 452, subd. (d)(1).) We note that the document was filed on August 21, 2007, apparently in response to the demurrer to the first amended complaint, inasmuch as the second amended complaint was not filed until August 29, 2007.

Appellant filed suit against the hotel on January 31, 2007. On October 11, 2007, respondents demurrer to the second amended complaint was heard. According to the minute order, the demurrer was sustained without leave to amend because appellant "failed to allege sufficient facts to state any cause of action. The second amended complaint is also unintelligible and confusing. Despite having been given several chances, [appellant] has failed to amend the complaint to state a cause of action. The court is not convinced that [appellant] will [ever] be able to state a cognizable claim. Accordingly, this action is dismissed."

Appellant filed a timely notice of appeal and designated the contents of a Clerks Transcript. Pursuant to that designation, the Clerks Transcript consists solely of the minute order, a notice of ruling, notice of appeal, and the notice designating the record.

Respondent has filed a request for judicial notice of various lawsuits filed by appellant and certain documents filed in those actions. None of those lawsuits is related to this case. They are referred to in respondents brief for the proposition that appellant is "not a stranger to the litigation process, or to dismissal of his cases because of his failure to state a cognizable claim against the parties he sues." Only relevant evidence is admissible. (Evid. Code, § 350.) Since appellants success or failure in unrelated litigation is no more relevant to any disputed issue than is respondents counsels past litigation successes or failures, we deny the request for judicial notice.

DISCUSSION

Appellant contends that the trial court erred in finding the second amended complaint did not state a cause of action. As we understand his argument, it is that the complaint was sufficient on a theory that the hotel managers stated reason for not renting appellant a room — that drugs had been found in appellants room during a prior tenancy — was a pretext to avoid renting appellant a room because appellant was African American.

The appellant has the burden of providing an adequate record. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Here, the record includes the order appealed from, but does not include the operative complaint, respondents demurrer, or appellants opposition to the demurrer. Without those documents, we cannot review the adequacy of the complaint. Accordingly, appellant has failed to carry his burden of establishing error in sustaining the demurrer.

Assuming we can deduce the allegations of a proposed third amended complaint from the response filed on August 29, 2007, we find no error in the trial courts conclusion that there is no reasonable possibility that appellant can, by way of amended complaint, state a cause of action for discrimination.

To state a statutory cause of action, facts in support of each of the requirements of the statute upon which the cause of action is based must be specifically pled. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Here, appellant relies on three statutory causes of action: violation of the FHA, the Unruh Act, and the FEHA. What each of these causes of action has in common is that it prohibits refusing to rent accommodations to a person based on that persons race. Appellant has not established that he can state facts sufficient to state a cause of action under any of these three statutes.

It is a violation of the FHA to "refuse to . . . rent after the making of a bona fide offer, or to refuse to negotiate for the . . . rental of, or otherwise make unavailable or deny, a dwelling to any person because of race . . . ." (42 U.S.C. § 3604(a).)
The Unruh Act provides: "All persons . . . no matter what their [] race . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51.) To state a claim under the Unruh Act, plaintiff must plead intentional discrimination in public accommodations in violation of the act. (Coronado v. Cobblestone Village Community Rentals (2008) 163 Cal.App.4th 831, 840.)
The FEHA provides that it is unlawful for the owner of any housing accommodation "to discriminate against or harass any person because of the race . . . of that person." (Gov. Code, § 12955)

First, with respect to the FHA, it applies only to "dwellings" and not to places of temporary or transient visit. (Schneider v. County of Will, State of Illinois (N.D.Ill. 2002) 190 F.Supp.2d 1082, 1087.) Appellant has not established that he can amend the complaint to allege that the Cecil Hotel is a dwelling within the meaning of the statute. Accordingly, he has not established that he can state a claim under the FHA.

Second, all three statutes proscribe discrimination on the basis of race. But appellant does not allege that the hotel manager refused to rent appellant a room because appellant was African American. Rather, he alleges that the hotel managers stated reason for refusing to rent appellant a room was because hotel records showed that drugs had been found in appellants room during his last tenancy. Although appellant denies having had any drugs in his room, he does not allege that the building manager knew or should have known that the building managers information was incorrect or that that the building managers stated nondiscriminatory reason was pretext. Accordingly, appellant has failed to show that he can allege facts sufficient to state a cause of action for discrimination under any of the three statutes, much less the intentional discrimination proscribed by the Unruh Act.

At oral argument, appellant was asked if he had any additional facts that might support his claim for racial discrimination arising out of the refusal to rent him a room in January 2007. Referring to his September 2004 altercation with the hotel security guards, appellant responded that "everybody there was the same nationality" as Alvarez, the hotel manager. This showing was insufficient to require that appellant be allowed to further amend the complaint.

DISPOSITION

The judgment is affirmed.

We concur:

COOPER, P. J.

FLIER, J.


Summaries of

Hawkins v. Hotel

Court of Appeal of California
Sep 4, 2008
No. B203094 (Cal. Ct. App. Sep. 4, 2008)
Case details for

Hawkins v. Hotel

Case Details

Full title:THOMAS HAWKINS III, Plaintiff and Appellant, v. CECIL HOTEL, Defendant and…

Court:Court of Appeal of California

Date published: Sep 4, 2008

Citations

No. B203094 (Cal. Ct. App. Sep. 4, 2008)