I.

INTRODUCTION

Robert Smith’s employer, Najjar Lube Centers, Inc. dba Jiffy Lube, held a

presentation for its employees to learn about a new Castrol product. Castrol employee

Gus Pumarol led the presentation. Smith alleges that Pumarol made several comments to

Smith during the presentation that he considered racist and offensive. Smith sued BP

Lubricants USA, Inc. dba Castrol (BP) and Pumarol for harassment under the Fair

Employment and Housing Act (Gov. Code §§ 12940 et seq. (FEHA)) and for

discrimination under the Unruh Act (Civ. Code, § 51, subd. (b)). Smith also sued

Pumarol for intentional infliction of emotional distress (IIED). The trial court sustained

BP and Pumarol’s demurrer without leave to amend, and Smith timely appealed.

We reverse the judgment. We affirm the trial court’s order sustaining BP and

Pumarol’s demurrer to Smith’s FEHA claim without leave to amend. We conclude,

however, that Smith sufficiently alleged claims for IIED and violation of the Unruh Act.

We therefore reverse the trial court’s orders sustaining BP and Pumarol’s demurrer to

those claims without leave to amend.

2

II.

1

FACTUAL AND PROCEDURAL BACKGROUND

Smith, who is African American, worked for Jiffy Lube for almost two decades.

During that time, he was passed over for promotions and criticized because of his race.

Smith alleges Jiffy Lube harassed and discriminated against him because he is African

American.

In September 2017, Jiffy Lube “held a company presentation to discuss and teach

employees about a new product from Castrol.” About 50 Jiffy Lube employees attended

the presentation, which Pumarol led. Before the presentation, Smith introduced himself

to Pumarol, and Pumarol encouraged him and his colleagues to ask questions.

Smith asked a question during the presentation, and Pumarol responded, “‘Huh.

Speak up. I can’t hear you.’” Smith spoke again, and Pumarol said, “‘You sound like

Barry White.’” All non-African Americans in attendance laughed, including three of

Smith’s superiors, Jiffy Lube owner Elias Najjar, Human Resources Director Martha

Villalobos, and Head of Operations and Jiffy Lube co-owner Cruz Martinez. Smith was

offended by Pumarol’s comment, which he thought had a racial connotation.

1 The following facts, which we assume are true, are drawn from Smith’s Complaint and First Amended Complaint (FAC). (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)

3 Later during his presentation, Pumarol said, “‘I don’t like taking my car to Jiffy

Lube because I’ve had a bad experience with a mechanic putting his hands all over my

car. How would you like Barry White over there with his big banana hands working on

your car?’” All non-African Americans in attendance, including Najjar, Villalobos, and

Martinez, laughed again. Smith was offended by Pumarol’s “racially motivated

comment” because he thought Pumarol referenced a banana because Smith is African

American.

Even so, Smith asked Pumarol another question. Pumarol responded, “‘What, I

can’t see your eyes, what?’” Again, all non-African Americans in attendance, including

Najjar, Villalobos, and Martinez, laughed at Pumarol’s comment. And again, Smith was

offended by Pumarol’s comment, which he believed suggested that he could not see

Smith’s “eyes because [he] is African American with a dark complexion.”

The next day, a Jiffy Lube employee crossed out Smith’s name on the schedule

and replaced it with “‘Banana Hands.’” Smith complained to Martinez about Pumarol’s

comments. Martinez replied that Pumarol “‘didn’t mean it like that.’”

Smith then complained to Najjar, who also said Pumarol “‘didn’t mean it’” and

noted that Pumarol “‘said something similar at a previous meeting.’” Najjar continued:

“‘Let’s push this under the carpet and I’m going to take care of it. This is not going to

hurt Castrol, this is going to hurt me and [Martinez]. And you didn’t want to hurt me, I

took care of you. And you don’t want to hurt [Martinez].’” Smith told Najjar that he felt

discriminated against at Pumarol’s presentation. Najjar replied, “‘I’ve been discriminated

4 before and you just have to let it go.’” Smith responded, “‘I’m tired. I’m done. I want to

drive off the freeway.’” In the ensuing weeks, Smith suffered significant physical and

mental health problems because of his “work-related issues,” which required medical

attention.

Smith later sued, alleging various claims against several defendants. In his

Complaint, he alleged BP and Pumarol violated FEHA’s prohibition on racial harassment

in the workplace by “aiding and abetting” Jiffy Lube’s harassment and discrimination

against him. He also sued Pumarol for IIED, and sued both Pumarol and BP for racial 2 discrimination under the Unruh Act (Civ. Code, § 51).

BP and Pumarol demurred to Smith’s Complaint. The trial court sustained the

demurrer without leave to amend as to Smith’s Unruh Act claim, but granted Smith leave

to amend his other claims. Smith realleged his FEHA and IIED claims in his operative

FAC, and BP again demurred. The trial court sustained the demurrer without leave to

amend and entered judgment for BP and Pumarol. Smith timely appealed.

2 Smith also sued Jiffy Lube and two of his supervisors. His claims against those defendants are not relevant to the issues on appeal.

5

III.

DISCUSSION

Smith contends the trial court erroneously sustained BP’s demurrers without leave

to amend. We disagree as to his FEHA claim, but agree as to his IIED and Unruh Act

claims.

A. Applicable Law and Standard of Review

“‘A trial court’s order sustaining a demurrer without leave to amend is reviewable

for abuse of discretion “even though no request to amend [the] pleading was made.”

[Citation.] While it is the plaintiff’s burden to show “that the trial court abused its

discretion” and “show in what manner he can amend his complaint and how that

amendment will change the legal effect of his pleading” [citation], a plaintiff can make

“such a showing . . . for the first time to the reviewing court” [citation].’” (Mercury Ins.

Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Thus, “[t]o meet this burden, a

plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts

and demonstrate how those facts establish a cause of action. [Citations.] Absent such a

showing, the appellate court cannot assess whether or not the trial court abused its

discretion by denying leave to amend.” (Cantu v. Resolution Trust Corp. (1994) 4

Cal.App.4th 857, 890.)

We “liberally construe[]” a complaint’s allegations. (CLD Construction, Inc. v.

City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) “‘On appeal from a judgment

dismissing an action after sustaining a demurrer without leave to amend, the standard of

6 review is well settled. The reviewing court gives the complaint a reasonable

interpretation, and treats the demurrer as admitting all material facts properly pleaded.

[Citations.] The court does not, however, assume the truth of contentions, deductions or

conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several

grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a

trial court to sustain a demurrer when the plaintiff has stated a cause of action under any

possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer

without leave to amend if the plaintiff shows there is a reasonable possibility any defect

identified by the defendant can be cured by amendment. [Citation.]’ [Citation.]”

(McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206.)

“If the court sustained the demurrer without leave to amend, as here, we must

decide whether there is a reasonable possibility the plaintiff could cure the defect with an

amendment. [Citation.] If we find that an amendment could cure the defect, we conclude

that the trial court abused its discretion and we reverse; if not, no abuse of discretion has

occurred. [Citation.] The plaintiff has the burden of proving that an amendment would

cure the defect. [Citation.]” (Shifando v. City of Los Angeles (2003) 31 Cal.4th 1074,

1081.)

7

B. FEHA Claim

Smith argues the trial court improperly sustained BP and Pumarol’s demurrer to

his FEHA claim without leave to amend because he sufficiently pled facts showing that

BP and Pumarol aided and abetted Jiffy Lube’s harassment and discrimination against

him. We disagree.

We first reject BP and Pumarol’s argument that they cannot be liable under FEHA

because they were never Smith’s employer. FEHA prohibits “any person” from aiding or

abetting workplace discrimination. (Gov. Code, § 12940, subd. (i).) For that reason,

individuals and entities who are not the plaintiff’s employer may be liable under FEHA

for aiding and abetting the plaintiff’s employer’s violation of FEHA. (See Alch v.

Superior Court (2004) 122 Cal.App.4th 339, 389-390 (Alch) [holding talent agencies that

did not employ the plaintiffs could be liable for aiding and abetting their employers’

alleged “systemic discrimination” in violation of FEHA].)

“FEHA does not provide a definition of ‘aiding and abetting,’” (Fiol v. Doellstedt

(1996) 50 Cal.App.4th 1318, 1325), but it has been interpreted as “closely allied” with

conspiracy. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 78.) “The

common basis for liability for both conspiracy and aiding and abetting . . . is concerted

wrongful action.” (Ibid.) Aiding and abetting thus “involves two separate persons, one

helping the other.” (Id. at p. 77.) It is “unlawful, for example, for third parties such as

customers or suppliers to induce or coerce prohibited discrimination or harassment.”

(Ibid.)

8 Thus, BP and Pumarol are liable under FEHA for aiding and abetting Jiffy Lube’s

alleged harassment and discrimination against Smith only if (1) Jiffy Lube subjected

Smith to discrimination and harassment, (2) BP and Pumarol knew that Jiffy Lube’s

conduct violated FEHA, and (3) BP and Pumarol gave Jiffy Lube “substantial assistance

or encouragement” to violate FEHA. (Alch, supra, 122 Cal.App.4th at p. 389 [“A talent

agency would be liable for aiding and abetting an employer’s violation of FEHA if the

agency knew the employer’s conduct violated FEHA and gave ‘substantial assistance or

encouragement to the [employer] to so act.’”].)

Smith’s allegations fail to satisfy the second and third element. Nowhere in the

FAC does Smith allege that BP and Pumarol knew of Jiffy Lube’s alleged harassment

and discrimination against Smith. (See Alch, supra, 122 Cal.App.4th at p. 390 [plaintiffs

stated aiding and abetting FEHA claim in part because their “complaints clearly allege

the agencies knew the employers were engaged in systemic discrimination”].) Nor does

Smith allege that Pumarol knew Jiffy Lube’s conduct violated FEHA or that he gave Jiffy

Lube substantial assistance or encouragement to Jiffy Lube’s alleged violations of FEHA.

(See ibid. [plaintiffs stated aiding and abetting FEHA claim in part because they alleged

talent agencies knowingly gave substantial assistance to employers’ FEHA violations].)

Simply put, Smith’s FAC has no facts suggesting concerted activity between Jiffy

Lube, BP, and Pumarol to commit FEHA violations, which is the crux of an aiding

abetting claim under FEHA. (See Janken v. GM Hughes Electronics, supra, 46

Cal.App.4th at p. 78; Alch, supra, 122 Cal.App.4th at p. 390.) Smith therefore failed to

9 allege sufficient facts that would support a finding that BP or Pumarol could be liable for

aiding and abetting Jiffy Lube’s FEHA violations. Smith makes no attempt to explain

how he could amend the FAC to cure its deficiencies. We therefore conclude the trial

court properly sustained BP and Pumarol’s demurrer to Smith’s FEHA claim without

leave to amend. (See Shifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081

[plaintiff bears burden on appeal of showing how complaint can be amended to state a

valid claim].)

C. IIED Claim

To state an IIED claim, the plaintiff must allege facts showing: “‘“(1) extreme

and outrageous conduct by the defendant with the intention of causing, or reckless

disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering

severe or extreme emotional distress; and (3) actual and proximate causation of the

emotional distress by the defendant’s outrageous conduct.”’” (Christensen v. Superior

Court (1991) 54 Cal.3d 868, 903.) The parties dispute only whether Pumarol’s

comments amount to “extreme and outrageous conduct.”

“‘Conduct to be outrageous must be so extreme as to exceed all bounds of that

usually tolerated in a civilized community.’” (Christensen v. Superior Court, supra, 54

Cal.3d at p. 903.) “[M]ere insulting language, without more, ordinarily would not

constitute extreme outrage” unless it is combined with “aggravated circumstances.”

(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499 (Alcorn).) But “[b]ehavior

may be considered outrageous if a defendant (1) abuses a relation or position which gives

10 him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to

injuries through mental distress; or (3) acts intentionally or unreasonably with the

recognition that the acts are likely to result in illness through mental distress.” (Agarwal

v. Johnson (1979) 25 Cal.3d 932, 946 (Agarwal), disapproved on other grounds by White

v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574 fn. 4.)

Citing Agarwal, supra, 25 Cal.3d 932 at page 941, Smith argues whether conduct

qualifies as extreme and outrageous is always a question for the jury. Agarwal does not

stand for that proposition, and several courts have held that alleged conduct is not

extreme and outrageous as a matter of law. (E.g., Marsh v. Anesthesia Services Medical

Group, Inc. (2011) 200 Cal.App.4th 480, 487 [upholding sustaining of demurrer because

plaintiff could not allege facts showing outrageous conduct]; Lawler v. Montblanc North

America, LLC (9th Cir. 2013) 704 F.3d 1235, 1245 [affirming summary judgment on

IIED claim because conduct was not outrageous as a matter of law].) That said, whether

conduct is outrageous is “‘usually’ a question of fact.” (Barker v. Fox & Associates

(2015) 240 Cal.App.4th 333, 356.)

Our Supreme Court holds that an IIED claim can stem from the use of racial

epithets if coupled with aggravating circumstances. For instance, in Alcorn, supra, 2

Cal.3d at pages 497 to 498, the plaintiff’s foreman shouted at the plaintiff, “‘You goddam

“ni—ers” are not going to tell me about the rules. I don’t want any “ni—ers” working for

me. I am getting rid of all the “ni—ers.”’” The plaintiff was later fired. (Id. at pp. 497-

498.)

11 Our Supreme Court held the plaintiff “alleged facts and circumstances which

reasonably could lead the trier of fact to conclude that defendants’ conduct was extreme

and outrageous.” (Alcorn, supra, 2 Cal.3d at p. 498.) The court explained that

“[a]lthough it may be that mere insulting language, without more, ordinarily would not

constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem

sufficient to uphold his complaint as against [a] general demurrer.” (Id. at p. 499, fn.

omitted.) The court reasoned that “‘[w]here reasonable men may differ, it is for the jury,

subject to the control of the court, to determine whether, in the particular case, the

conduct has been sufficiently extreme and outrageous to result in liability.’ [Citations.]”

(Ibid.)

In Agarwal, our Supreme Court upheld a jury’s verdict for IIED based on similar

allegations. (Agarwal, supra, 25 Cal.3d at p. 938.) An assistant manager told the

plaintiff, “‘[y]ou black ni—er, member of an inferior race, get out and do it,’” and

“‘[y]ou son-of-a-bitch, I am going to terminate you.’” (Id. at pp. 938, 941-942.) The

assistant manager later induced the plaintiff’s employer to fire him by making false

statements about him. (Id. at pp. 938, 941-942.) Our Supreme Court held that the jury

reasonably found that the manager’s conduct was extreme and outrageous. (Id. at p.

947.)

Under Alcorn and Agarwal, a rational juror could find Pumarol’s conduct was

extreme and outrageous. Smith alleges that Pumarol made three offensive comments to

him in front of about 50 of his colleagues, including three of his supervisors. According

12 to Smith, after Pumarol made the first comment, everyone except for African American

employees laughed, yet Pumarol made two more comments that Pumarol found

offensive. Pumarol allegedly said that he would not want Smith’s “‘Banana Hands’” on

his car and that he could not see Smith, which Smith construed as an unwelcome, racist

comment about his dark complexion.

On these facts, a reasonable jury could find that Pumarol “act[ed] intentionally or

unreasonably with the recognition that [his] acts [were] likely to result in illness through

mental distress.” (Agarwal, supra, 25 Cal.3d at p. 496.) The jury could thus reasonably

find that Pumarol’s conduct was extreme and outrageous. Because Pumarol does not

dispute that Smith sufficiently alleged the remaining elements of an IIED claim, we

conclude Smith stated a valid claim for IIED against Pumarol. The trial court erred in

finding otherwise.

D. Unruh Act

The Unruh Act “prohibits intentional discrimination in access to public

accommodations.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 786-787 (Brown).) The

Unruh Act only applies to “business establishments” that are “generally open to the

public” (In re Cox (1970) 3 Cal.3d 205, 216), and mandates that those establishments

“serve all persons without arbitrary discrimination.” (Angelucci v. Century Supper Club

(2007) 41 Cal.4th 160, 167.) The Unruh Act therefore does not cover “discriminations

other than those made by a ‘business establishment’ in the course of furnishing goods,

services or facilities to its clients, patrons or customers.” (Alcorn, supra, 2 Cal.3d at p.

13 500.) Put another way, the Unruh Act is “confined to discriminations against recipients

of the ‘business establishment’s . . . goods, services or facilities.’” (Isbiter v. Boys’ Club

of Santa Cruz, Inc. (1985) 40 Cal.3d 73, 83 fn. 12.) Unruh Act claims are thus

“appropriate where the plaintiff was in a relationship with the offending organization

similar to that of the customer in the customer-proprietor relationship.” (Strother v.

Southern California Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 874.)

BP and Pumarol contend the Unruh Act does not apply here because Pumarol

made his alleged comments in a private business meeting not open to the public that only

Jiffy Lube employees attended for training purposes. BP and Pumarol also argue that

because Smith’s Unruh Act claim depends solely on Pumarol’s comments, it asserts a

claim for racial harassment, not racial discrimination. In support, they rely mainly on

Brown, supra, 55 Cal.App.4th 767, which held that sexual harassment is not actionable

under the Unruh Act. BP and Pumarol argue that, by extension, racial harassment is

likewise not actionable under the Unruh Act.

Brown is distinguishable. In that case, a tenant alleged that her landlord “made

repeated comments to her of an offensive, sexual nature.” (Brown, supra, 55 Cal.App.4th

at pp. 775.) She sued him under the Unruh Act, arguing that he violated her “right to be

free of housing discrimination based on sex and to be free of sexual harassment in a

business establishment.” (Ibid.)

14 The Brown court held that the tenant’s claim was not cognizable under the Unruh

Act for two reasons. First, Brown relied on our Supreme Court’s direction that courts

generally should not expand the Unruh Act’s reach beyond the enumerated categories of

discrimination it expressly prohibits. (See Harris v. Capital Growth Investors XIV (1991)

52 Cal.3d 1142, superseded by statute on other grounds as stated in Munson v. Del Taco,

Inc. (2009) 46 Cal.4th 661, 668.) The Brown court therefore declined “to expand the

protected categories listed in the [Unruh] Act to include victims of sexual harassment.”

(Brown, supra, 55 Cal.App.4th at p. 787.) Second, Brown concluded that the Legislature

enacted Civil Code section 51.9, which prohibits landlords from sexually harassing their

tenants, “to plug th[e] hole” in the Unruh Act. (Ibid.)

We do not find Brown persuasive or controlling here. Civil Code section 51.9,

enacted decades after the Unruh Act, expressly provides a cause of action for a tenant

whose landlord sexually harasses him or her. From this, we can presume that the

Legislature did not intend for the Unruh Act to cover tenants who are victims of their

landlords’ sexual harassment. (See Arbuckle–College City Fire Protection Dist. v.

County of Colusa (2003) 105 Cal.App.4th 1155, 1166 [“Generally, it can be presumed

that when the Legislature has enacted a specific statute to deal with a particular matter, it

would intend the specific statute to control over more general provisions of law that

might otherwise apply.”].) But there is no specific statute enacted after the Unruh Act

that covers Smith’s Unruh Act claim in the way Civil Code section 51.9 covered the

15 Brown plaintiff’s Unruh Act claim. Nothing in later enacted legislation can be construed

to “plug[] [a] hole” in the Unruh Act. (Brown, supra, 55 Cal.App.4th at p. 787.)

Brown also rests on a flawed premise that sexual harassment is not a form of sex

discrimination, which the Unruh Act prohibits. “[S]exual harassment . . . is merely one 3 form of sex discrimination.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 90.) Moreover, the

Unruh Act “can be violated in a number of ways by words alone.” (Long v. Valentino

(1989) 216 Cal.App.3d 1287, 1297.) It can also be violated by a business establishment’s

unequal treatment of its patrons on impermissible grounds. (Pizarro v. Lamb’s Players

Theatre (2006) 135 Cal.App.4th 1171, 1174.) It follows that the Unruh Act can be

violated by verbal sexual harassment alone if it amounts to a business establishment

treating its patrons unequally. We thus disagree with Brown that verbal sexual

harassment can never provide grounds for an Unruh Act claim.

As a result, we reject BP and Pumarol’s argument that Smith cannot state a valid

claim under the Unruh Act because it is based only on Pumarol’s alleged verbal

harassment. We also disagree with BP and Pumarol that it is material whether Smith’s

Unruh Act claim is labeled “racial harassment” or “racial discrimination.” Just as sexual

harassment is a form of sex discrimination, racial harassment is a form of race

discrimination. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129

3 We acknowledge that sexual harassment and sex discrimination are legally distinct concepts in other circumstances not present here. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 115 [“Sex discrimination . . . and sexual harassment are ‘distinct causes of action’ under the FEHA. [Citations.]”].)

16 [“One form of employment discrimination is harassment on the basis of race”].)

Whatever Smith’s claim is labeled, the question is whether Pumarol’s alleged comments

violated the Unruh Act.

Smith alleges that Pumarol made three racist comments to him, which made every

non-African American employee at the presentation laugh each time. In other words,

Smith alleges that Pumarol treated him differently—and unequally—because of his race.

Smith therefore alleged a valid Unruh Act claim so long as Pumarol’s making the

comments, if proven true, would amount to intentional discrimination “made by a

‘business establishment’ in the course of furnishing goods, services or facilities to its

clients, patrons or customers.” (Alcorn, supra, 2 Cal.3d at p. 500; Warfield v. Peninsula

Golf & Country Club (1995) 10 Cal.4th 594, 618 [Unruh Act “established the right of all

persons to nondiscriminatory treatment by establishments that engage in business

transactions with the public.”].)

We conclude that it would. We must interpret the Unruh Act’s “coverage ‘in the

broadest sense reasonably possible.’” (Isbiter v. Boys’ Club of Santa Cruz, supra, 40

Cal.3d at p. 76.) This principle applies to our analysis of whether Pumarol acted as a

“business establishment” when giving his presentation. (See O’Connor v. Village Green

Owners Assn. (1983) 33 Cal.3d 790, 795 [Unruh Act “‘leaves no doubt that the term

“business establishment” was used in the broadest sense reasonably possible.’”].)

17 BP and Pumarol do not dispute that Castrol, Pumarol’s employer, is a business

establishment. But they argue that Pumarol was not acting as a “business establishment”

when he made his alleged comments because his presentation was not open to the public.

We disagree.

Whether a defendant is a “business establishment” is an issue of law that we may

decide. (Rotary Club of Duarte v. Bd. of Directors (1986) 178 Cal.App.3d 1035, 1050.)

“The term ‘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.’”’ [Citation.] The word ‘establishment’ is also broadly

defined to include not only fixed locations, but also a permanent commercial force or

organization. [Citation.]” (Harris v. Mothers Against Drunk Driving (1995) 40 4 Cal.App.4th 16, 21.)

According to the Smith’s complaints, Pumarol gave his presentation to Jiffy Lube

employees as a representative of Castrol. The purpose of his presentation was to train

Jiffy Lube employees on a Castrol product. About 50 Jiffy Lube employees attended the

presentation, including three of Smith’s supervisors, one of which was the Jiffy Lube’s

owner. Pumarol encouraged Jiffy Lube employees, including Smith, to ask questions

4 To support his argument that Pumarol acted as a business establishment, Smith relies heavily on decades-old federal district court cases holding that public schools are business establishments under the Unruh Act. While this appeal was pending, our colleagues in the First District, Division One, held as a matter of first impression for the California appellate courts that public schools are not business establishments under the Unruh Act. (Brennon B. v. Superior Court of Contra Costa County (2020) 57 Cal.App.5th 367, at *1, rev. granted Feb. 25, 2021, S266254.) Our Supreme Court granted review. (Ibid.)

18 during his presentation. Liberally construing Smith’s allegations, we can reasonably

infer that Pumarol’s presentation was intended to ensure Jiffy Lube’s employees knew

how to properly use Castrol’s product, thereby promoting it. In this context, Jiffy Lube’s

employees, including Smith, were effectively Castrol’s “clients, patrons or customers.”

(Alcorn, supra, 2 Cal.3d at p. 500; Strother v. Southern California Permanent Medical

Group, supra, 79 F.3d at p. 873 [an individual may bring Unruh Act claims against

business establishment so long as the individual is a “recipient [] of the ‘business

establishment’s . . . goods, services or facilities’”].)

Although the Unruh Act “does not apply to truly private social clubs,” (Warfield v.

Peninsula Golf & Country Club, supra, 10 Cal.4th at p. 617), it does apply to business

establishments that are “generally open to the public.” (In re Cox, supra, 3 Cal.3d at p.

216.) The parties agree that Castrol, Pumarol’s employer, is a business establishment.

And because Pumarol was acting on Castrol’s behalf during his presentation, which was

intended to educate Jiffy Lube’s employees about a Castrol product, he acted as a

“business establishment” while giving his presentation. (See Harris v. Mothers Against

Drunk Driving, supra, 40 Cal.App.4th at p. 21 [“business establishment” under Unruh

Act includes “permanent commercial forces”].)

That Pumarol’s presentation was not open to the public does not change our

conclusion. Again, Castrol is “generally open to the public,” and Pumarol was acting as

its representative during his presentation about a Castrol product. BP and Pumarol do not

cite, and we cannot locate, any authority that suggests the Unruh Act stops at the doors of

19 a business establishment generally open to the public simply because its doors are closed

to some, but not all of its “clients, patrons or customers,” when the alleged discrimination

occurs. If that were the case, then business establishments could discriminate against

their customers without offending the Unruh Act so long as the discrimination occurred

at an event or location open to only a select group of its customers.

Interpreting the Unruh Act in such a way would conflict with its “broad remedial

purpose and overarching goal of deterring discriminatory practices by businesses.”

(White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.) The Unruh Act protects all

recipients of a business establishment’s services wherever provided. (See Alch, supra,

122 Cal.App.4th at p. 391 [Unruh Act “on its face” forbids business establishments from

discriminating in the provision of its services].) That Smith was “not denied anything” is

not dispositive, as BP and Pumarol contend, because the Unruh Act mandates “equal

treatment of patrons in all aspects of the business.” (Koire v. Metro Car Wash (1985) 40

Cal.3d 24, 29-30, italics added.) The Unruh Act does not require that a victim of

business establishment’s discriminatory, unequal treatment be denied services or demand

equal treatment to state a claim under the Act. (See Angelucci v. Century Supper Club,

supra, 41 Cal.4th at p. 168.)

For instance, in Hutson v. The Owl Drug Co. (1926) 79 Cal.App. 390, the African

American plaintiff was allowed to sit at a soda fountain, but the employee “placed [her

order] amongst dirty dishes on the counter,” and another employee then struck the

plaintiff and threw a cup of coffee on her. (Id. at p. 392.) The plaintiff suffered physical

20 injuries from the assault, as well as “great humiliation and embarrassment.” (Ibid.) The

Hutson court held that the defendant violated the Unruh Act because the plaintiff “was

not accorded the same accommodations, advantages, facilities and privileges” on account

of her race, even though she was not denied any services. (Ibid.) It was the unequal,

discriminatory treatment she received that was actionable under the Unruh Act. (Ibid.)

Similarly, in People v. McKale (1979) 25 Cal.3d 626 at page 637, the People

alleged “‘a pattern of discriminative conduct’” by defendant against some of its tenants

because of their ethnic or religious background, “varying from instances of abusive

language . . . to discriminative sales and leasing policies.” Our Supreme Court held that

the defendant’s alleged conduct was “clearly unlawful” under the Unruh Act. (Ibid.)

Hutson v. The Owl Drug Co., supra, 79 Cal.App. 390 and People v. McKale,

supra, 25 Cal.3d 626, which our Supreme Court cited approvingly in Koire v. Metro Car

Wash, supra, 40 Cal.3d at page 29, show that a business establishment’s unequal, race-

based treatment of its customers is unlawful under the Unruh Act—even if its customers

are not denied services. This is true whether the discriminatory treatment is verbal,

physical, or financial. Thus, in the context of alleged racial discrimination, the

dispositive question under the Unruh Act is whether the plaintiff faced unequal treatment

on account of his or her race that members of other races did not experience.

Smith alleges Pumarol treated him differently from his non-African American

colleagues by making offensive, humiliating comments to him because of his race.

Given our conclusion that Pumarol qualified as a “business establishment” when giving

21 his presentation, Smith plausibly alleged that Pumarol treated him differently during the

presentation in violation of the Unruh Act by making offensive, racist comments to him

only. (See Pizarro v. Lamb’s Players Theatre, supra, 135 Cal.App.4th at p. 1174

[“[T]he [Unruh] Act applies not merely in situations where businesses exclude

individuals altogether, but also where treatment is unequal.”].)

We must interpret the Unruh Act liberally “with a view to effectuating its

purposes.” (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 28.) The Unruh Act’s

overarching purpose is “to create and preserve ‘a nondiscriminatory environment in

California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious

discrimination by such establishments.’ [Citations.]” (White v. Square, Inc., supra, 7

Cal.5th at p. 1025.) To conclude that Smith cannot state a claim under the Unruh Act

because Pumarol’s comments amounted to only harassment, as BP and Pumarol urge us

to do, would not further the Unruh Act’s purpose of guaranteeing Californians “‘“full and

equal” access to “all business establishments.”’” (Ibid.) To hold that a business

establishment cannot face liability under the Unruh Act for its racially harassing conduct

toward its customers would thwart the Unruh Act’s “broad remedial purpose and

overarching goal of deterring discriminatory practices by businesses.” (Ibid.) We

therefore reverse the trial court’s order sustaining BP and Pumarol’s demurrer to Smith’s

Unruh Act claim without leave to amend.

22

IV.

DISPOSITION

The judgment is reversed. The trial court’s order sustaining BP and Pumarol’s

demurrer to Smith’s FEHA claim without leave to amend is affirmed, but its orders

sustaining the demurrer to Smith’s IIED and Unruh Act claims are reversed. The parties

shall bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

CODRINGTON

J.

We concur:

McKINSTER Acting P. J.

MILLER

J.

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