King

Plaintiff John L. King appeals following a grant of summary judgment and denial of leave to amend in this discrimination action brought under the Unruh Civil Rights Act (the Act; Civ. Code, § 51 et seq.) against Roswitha Hofer, doing business as Ottino’s Delicatessen. We affirm, concluding that the Act does not afford protection to business patrons allegedly discriminated against for their status as nonsmokers.

King’s complaint alleges that he was a regular patron of defendant’s Orinda restaurant, which has a bar area in the same undivided space, where smoking is prohibited by local ordinance (Orinda Mun. Code, tit. 6, ch. 6-1, §§ 6-101 to 6-110) during hours in which the restaurant is also open. On the afternoon of April 16, 1994, King was dining in the restaurant when he noticed tobacco smoke and that patrons of the bar were smoking. This caused him respiratory distress and, upon leaving, he asked an employee working at the restaurant counter why smoking was being permitted. The employee told him that smoking was allowed in the bar during overlapping hours. King complained by letter to the city manager three days later, requesting enforcement of the ordinance, and on…