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Court of Appeal, First District, Division 1, California.

Mary Ann WARFIELD, Plaintiff and Appellant, v. PENINSULA GOLF & COUNTRY CLUB et al., Defendants and Respondents.

No. A051828.

Decided: January 08, 1993

Belli, Belli, Brown, Monzione, Fabro & Zakaria, Kevin R. McLean and Randall H. Scarlett, San Francisco, for plaintiff and appellant. Ropers, Majeski, Kohn, Bentley Wagner & Kane, Paul D. Herbert and Stacey L. Pratt, San Francisco, for defendants and respondents.

Respondent Peninsula Golf & Country Club (hereafter respondent or the Club) is a nonprofit recreational club located in San Mateo, which provides for the use of its members and invited guests a golf course, driving range, putting greens, tennis courts, locker rooms, clubhouse, restaurant, bars, conference rooms and other facilities.   The Club has a gate at the entrance and signs proclaiming that the grounds are private property.   Several different classes of memberships are offered by the Club, but the only proprietary membership is the “Regular Family Membership,” which is limited to 350 members.   The Club is governed by a board of directors selected from among persons holding regular family memberships.

The process for selection of Club members is arduous and protracted.   A prospective member must be sponsored or proposed for membership by an existing member, then seconded by two other members.   The membership proposal is then reviewed by the membership committee, which receives from the prospective member a form or questionnaire providing references, prior club memberships and other personal information.   The membership committee conducts an investigation of the information provided, including a credit check, and interviews of the prospective member and family at his home and place of business.   After all the collected information is reviewed, the membership committee votes on the candidate for approval—two dissenting votes will disqualify a nominee from further consideration.   Upon approval by the membership committee, the membership proposal is sent to the board of directors (hereafter the Board) for consideration.   The Board seeks input on the prospective member from proprietary members, and if any objection is made the proposal is referred back to the membership committee for further investigation.   If no complaint is received, or if the complaint is found to have no merit, the membership proposal is submitted to the Board for final approval, followed by a letter inviting the prospective member to join the Club.   The holder of a regular family membership owns a share (1/350) of the assets and liabilities of the Club and is granted the right to vote and become a Board member.1

With a few exceptions, Club facilities were, during 1981 (the relevant period for our purposes), available for use only by Club members and their invited guests.   One exception was “sponsored events,” such as golf or tennis tournaments, wedding receptions, bar mitzvahs, and special luncheons or dinners, which were held periodically on the average of once a week.   Members were required to sponsor these events, which were attended by participating guests.   The sponsored events were typically conducted for members' friends, charitable organizations or professional associations.   Businesses were not permitted to participate in sponsored events.   The sponsoring members assumed responsibility for the events, including the fees charged by the Club—although the bills for the events were often sent directly to the parties for whose benefit the events were held.

The Club had separate golf and tennis pro shops, which were operated by the golf and tennis professionals, respectively, who were independent contractors paid a monthly retainer by the Club.   Nonmembers as well as members were entitled to purchase merchandise from the pro shops and take lessons from the professionals.   The Club did not receive any share of the business done by the golf and tennis professionals.

Members paid for goods or services provided at the Club, including merchandise or lessons from the golf and tennis professional, with cash or by signing “chits”—the latter being receipts listing the amount of the purchase which are signed by the member.2  Regular family members or their families were allowed to sign chits.   The Club then billed the members for the chits.   In addition to chits, the Club derived income principally from dues, green fees and, to a lesser extent, the sponsored events.

The Club had between 80 and 110 employees in 1981, all under the supervision of a general manager.   Committees comprised of members oversaw various Club activities and operations.   Employees of the Club were permitted to use the facilities with permission of the Board on Mondays, when the Club was closed to members.

In March of 1970, the bylaws of the Club were amended to provide under section 7.5 that regular family memberships “shall be issued only in the name of adult male person.   Proposals for Regular Family Memberships shall not be approved for females or minors.”   Section 7.5 further states that upon termination of the marriage of a “married Regular Family Member” by divorce or annulment, “the Husband shall continue to be the Regular Family Member, and all rights, privileges and obligations shall be his.   In the event of an award of the Certificate of Regular Family Membership in final judicial action to the female spouse, and the male spouse does not forthwith thereafter purchase the female spouse's interest in the Regular Family Membership, such Membership may, by action of the Board, be terminated.” 3  The bylaws were also amended in 1970 to empower the Board pursuant to section 13.2 to repeal or amend the Club's bylaws, with enumerated exceptions, without approval or consent of regular family members.   The regular family members enacted the 1970 amendments to the bylaws.

Appellant became interested in the Club through her participation in golf tournaments and suggested to her husband, Richard Warfield, that a membership would be “great for the family.”   In June of 1970, appellant's husband was proposed for a regular family membership.   The membership proposal proceeded through the customary procedure, including seconding, a cursory investigation and an interview with the family.   A regular family membership was approved by the Board and issued in the name of Richard Warfield on July 23, 1970.   Thereafter, appellant and her children regularly used the Club facilities as family members without restriction.   The initiation fee of $7,200 and monthly dues were paid with community funds.   Appellant was not then aware that women were precluded by the bylaws from becoming proprietary members of the Club.

Appellant's participation in Club activities increased as her children became older.   She earned a real estate agent's license in 1976 or 1977, and obtained her first job as a “realtor associate” through a friend at the Club.   The Club was an important source of “contacts” for appellant to promote her business of buying and selling residential real estate.   She “worked” the Club as her “farm” of potential clients.   She also often discussed real estate transactions at the Club with clients, associates and other real estate agents.   Appellant was never discouraged from participating in business activities at the Club.   Appellant's husband, a dentist, obtained patients from his association with other members of the Club.

In February of 1981, an interlocutory judgment was entered dissolving the marriage of appellant and Richard Warfield.   By the terms of the judgment, appellant was awarded “all right, title and interest in and to the membership of Dr. and Mrs. Warfield in the Peninsula Golf and County Club.”   Appellant subsequently requested that the Board transfer to her the regular family membership formerly held by Richard Warfield.   After consultation with legal counsel, the Board voted in April of 1981 pursuant to sections 7.5 and 7.10 of the bylaws to terminate appellant's regular family membership.   Appellant was thereafter tendered a check in the amount of $6,129.15, representing the redemption value of the membership.   In response, appellant asked the Board to reconsider the termination and returned the redemption check without endorsement.   The Board thereafter reviewed the matter of termination of appellant's membership, and in October of 1981, reaffirmed the prior vote refusing to reinstate in appellant's name the regular family membership previously held by her husband, despite a contrary recommendation by the membership committee.   The Board indicated to appellant its perception that the bylaws precluded issuance of a proprietary membership to her.   A resolution was adopted by the Board, however, creating a new class of nontransferable, nonproprietary membership for those, such as appellant, “who desire to use the golf club facilities, but who do not otherwise qualify for regular membership.”   Appellant was invited to apply to join the Club as a “golfing member under this new class of membership” for an initiation fee of $10,000.   Appellant declined to consider the Board's offer of what she termed a “second class citizenship membership” in the Club based upon her status as a woman.   Appellant did not return to the Club as a member after November of 1981.   Appellant testified that her real estate business suffered from the loss of her Club membership.

On November 2, 1981, appellant filed a complaint for damages and injunctive relief against the Club and the Board, alleging violations of the Unruh Civil Rights Act, her constitutional right to due process and the common law right to fair procedure, discrimination against her based upon sex, libel based on information disseminated in defendant's newsletter, and intentional infliction of emotional distress;  she requested a preliminary and permanent injunction.

In January of 1982, the trial court issued a preliminary injunction enjoining the Club from terminating appellant's membership rights and privileges.   In February of 1982, the court sustained respondent's demurrer with leave to amend as to all causes of action “except those concerning due process, fair procedure and declaratory relief.”

On March 9, 1982, appellant filed an amended complaint containing new allegations and adding a claim of invasion of privacy to the libel cause of action.   The trial court sustained respondent's second demurrer without leave to amend as to all counts, and judgment of dismissal was entered on May 10, 1982.

In an opinion filed on October 5, 1989, this court reversed the judgment of dismissal based upon the order sustaining respondent's demurrer as to the causes of action alleging violation of the Unruh Civil Rights Act and denial of the right to fair procedure.   The judgment of dismissal was affirmed in all other respects.

The case was remanded to the trial court and proceeded to trial in September 1990.   Following the presentation of evidence, the trial court granted respondent's motion for a directed verdict based upon a finding that appellant failed to prove the Club's status as a “business establishment” under the Unruh Civil Rights Act.   The court further found that appellant lacked standing to pursue a claim for denial of the right to fair procedure.

This second appeal is from the judgment upon a directed verdict in favor of respondent.   Appellant argues that the trial court erred by dismissing her causes of action for violation of the Unruh Civil Rights Act and violation of her right to fair procedure on grounds of lack of supporting evidence of a business establishment and lack of standing, respectively.   Appellant also complains that the trial court abused its discretion by denying her motion for continuance of the trial.

 We first address appellant's Unruh Civil Rights Act claim.   We are reviewing the motion for directed verdict granted against appellant, which “ ‘ ․ is in the nature of a demurrer to the evidence.  [Citation.]’ ”   (Metzenbaum v. R.O.S. Associates (1986) 188 Cal.App.3d 202, 208, 232 Cal.Rptr. 741.)  “ ‘A directed verdict may be granted against a plaintiff “․ ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, ․ indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.’  [Citations.]   Unless it can be said as a matter of law ․ no other reasonable conclusion is legally deductible from the evidence ․ the trial court is not justified in taking the case from the jury.”  (Italics added.)  [Citations.]' ”  (Short v. Nevada Joint Union High School Dist. (1985) 163 Cal.App.3d 1087, 1095–1096, 210 Cal.Rptr. 297;  see also Conservatorship of Everette M. (1990) 219 Cal.App.3d 1567, 1572, 269 Cal.Rptr. 182;  Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 876, 216 Cal.Rptr. 831.)  “The cardinal requirement for a directed verdict is that there be no substantial conflict in the evidence.  (Estate of Fleming (1926) 199 Cal. 750, 754 [251 P. 637].)  The trial court may not weigh the evidence or judge the credibility of the witnesses on a motion for directed verdict.  (Golden v. Conway (1976) 55 Cal.App.3d 948, 954 [128 Cal.Rptr. 69].)”  (Alexander v. State of California ex rel. Dept. of Transportation (1984) 159 Cal.App.3d 890, 896, 205 Cal.Rptr. 758.)

 “When a motion for a directed verdict is granted, the substantial evidence rule governs appellate review of the judgment.  (Rodriguez v. North American Rockwell Corp. (1972) 28 Cal.App.3d 441, 446 [104 Cal.Rptr. 678].)”  (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1136, 235 Cal.Rptr. 857.)  “ ‘[T]he reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.  “The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”  [Citations.]’   (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [206 Cal.Rptr. 136, 686 P.2d 656].)”  (Conservatorship of Everette M., supra, 219 Cal.App.3d at p. 1573, 269 Cal.Rptr. 182;  see also Center Foundation v. Chicago Ins. Co. (1991) 227 Cal.App.3d 547, 551, fn. 1, 278 Cal.Rptr. 13.)

The Unruh Civil Rights Act “prohibits discrimination in the provision of accommodations and services in all business establishments.”  (Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1382, 271 Cal.Rptr. 99.)   Civil Code former section 51 4 provided, in pertinent part:  “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  “Both the language of the statute and its history ‘disclose a clear and large design to interdict all arbitrary discrimination by a business enterprise.’  (Ibid.)  ‘The act protects all persons from arbitrary discrimination․’  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795 [191 Cal.Rptr. 320, 662 P.2d 427].)”  (Vaughn v. Hugo Neu Proler International (1990) 223 Cal.App.3d 1612, 1617, 273 Cal.Rptr. 426, fn. omitted.)

“One of the policies underlying the enactment of the Unruh Act is the eradication of discrimination by private or public action on the basis of sex by ‘business establishments' in the furnishing of ‘accommodations, advantages, facilities, privileges, or services.’  (§ 51;  Koire v. Metro Car Wash, supra [ (1985) ] 40 Cal.3d [24] at p. 36 [219 Cal.Rptr. 133, 707 P.2d 195];   Winchell v. English, supra [ (1976) ], 62 Cal.App.3d [125] at p. 128 [133 Cal.Rptr. 20].)  The Unruh Act is clearly a declaration of California's public policy mandate and objective that men and women be treated equally.  (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 37 [219 Cal.Rptr. 133, 707 P.2d 195].)”  (Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1047, 224 Cal.Rptr. 213 (hereafter Rotary Club ).

Only a “business establishment” incurs liability under section 51 for acts of arbitrary discrimination.   The statute defines business establishment “in the broadest sense reasonably possible” to include “ ‘․ all private and public groups or organizations [specified in the original bill] that may reasonably be found to constitute “business establishments of every type [sic ] whatsoever.” ’  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795–796 [191 Cal.Rptr. 320, 662 P.2d 427], ․)”  (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 78–79, 219 Cal.Rptr. 150, 707 P.2d 212 (hereafter Isbister );  see also Abou–Jaoude v. British Airways (1991) 228 Cal.App.3d 1137, 1143, 281 Cal.Rptr. 150;  Sullivan v. Vallejo City Unified School Dist. (E.D.Cal.1990) 731 F.Supp. 947, 952.) 5

 The term “business” in section 51 has been interpreted to embrace “ ‘․ 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.”  [Citations.]   The word “establishment,” as broadly defined, includes not only a fixed location, such as the “place where one is permanently fixed for residence or business,” but also a permanent “commercial force or organization” or “a permanent settled position (as in life or business).”  [Citation.]’ ”  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795, 191 Cal.Rptr. 320, 662 P.2d 427;  Rotary Club, supra, 178 Cal.App.3d at pp. 1047–1048, 224 Cal.Rptr. 213;  Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 728–729, 195 Cal.Rptr. 325 (hereafter Curran ).)   Business encompasses profit-seeking and nonprofit enterprises, commercial and noncommercial entities, which possess identifiable “businesslike attributes.”  (Isbister, supra, 40 Cal.3d at p. 82, 219 Cal.Rptr. 150, 707 P.2d 212;  Rotary Club, supra, 178 Cal.App.3d at p. 1049, 224 Cal.Rptr. 213;  Curran, supra, 147 Cal.App.3d at p. 730, 195 Cal.Rptr. 325.)   Truly selective private organizations, in contrast, are exempt from scrutiny under the Unruh Civil Rights Act for discriminatory acts.  (See Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, 361–362, 282 Cal.Rptr. 1;  Warfield v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 657, 262 Cal.Rptr. 890 (hereafter Warfield I );  Curran, supra, 147 Cal.App.3d at p. 732, 195 Cal.Rptr. 325.)   No “formula-like solution” may be employed to define a business establishment;  instead, the functions and characteristics of the organization must be examined.  (Warfield I, supra, 214 Cal.App.3d at p. 653, 262 Cal.Rptr. 890;  Rotary Club, supra, 178 Cal.App.3d 1035, 1049, 224 Cal.Rptr. 213.)

 The undisputed evidence before us establishes the extremely private nature of the Club.   Membership is limited to 350 proprietary members who live in a confined geographic area, unlike the Boys Club, the Boy Scouts or Rotary Club, all of which have been found to fall within the definition of “business establishments.”  (Cf. Isbister, supra, 40 Cal.3d at p. 81, 219 Cal.Rptr. 150, 707 P.2d 212;  Rotary Club, supra, 178 Cal.App.3d at p. 1051, 224 Cal.Rptr. 213;  Curran, supra, 147 Cal.App.3d at p. 732, 195 Cal.Rptr. 325.)   The Club does not actively pursue or advertise for expansion of membership.   Recruitment of new members is an exclusively internal affair.   A prospective member must be proposed for membership by an existing member, then seconded by two more members, even before membership is considered.   The membership admissions procedure includes an investigation and personal interviews.   A membership invitation comes only after ballot approval by the membership committee—with two negative votes defeating the application—and further review by the Board.   The process is deliberate and exceedingly selective, excluding a broad segment of the population.  (Pacific–Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 66, 283 Cal.Rptr. 287.) 6

Use of Club facilities is restricted to members and invited guests to promote privacy and intimacy.   While nonmember events regularly occur, each one must be “sponsored” by a member who assumes responsibility for that event.   Businesses are precluded from conducting sponsored events at the Club.   These sponsored events, besides being tangential to the primary operations and functions of the Club, are strictly scrutinized for compatibility with Club objectives.   Otherwise, Club facilities are closed to the public, with the exception of the golf and tennis pro shops, which are independently operated.

The focus of the Club is upon recreation and social activities.   Testimony was adduced from some members, including appellant, that they conducted business at the Club with other members or guests, and obtained business benefits from doing so, as may be expected from the nature of the facilities offered.  (Warfield I, supra, 214 Cal.App.3d at p. 655, 262 Cal.Rptr. 890.)   We do not consider the incidental business activities of some members to constitute sufficient “business-like attributes” to bring the Club within the scope of the Unruh Civil Rights Act, however.   Even the most private and intensely recreational enterprise must endure the periodic transaction, discussion or solicitation of business by its members on the premises.   The significant factor to us is that the Club is not operated to promote economic interests, and functions without substantial business activities infringing upon the social, recreational and personal interaction of Club members.   We recognize that “[s]ubstantial business benefits regardless of whether they are of a primary or secondary concern must be considered when deciding whether an organization is bound by the Unruh Act.”  (Rotary Club, supra, 178 Cal.App.3d 1035, 1055, 224 Cal.Rptr. 213.)   We find that the business activities at the Club are inconsequential, however, when compared to the private and recreational focus of the small, fixed membership.   (Pacific–Union Club v. Superior Court, supra, 232 Cal.App.3d 60, 73, 283 Cal.Rptr. 287.)   Commercial advantage is not a consideration inducing membership in the Club nor a substantial factor in Club activities.  (Cf. O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d at p. 796, 191 Cal.Rptr. 320, 662 P.2d 427;  Rotary Club, supra, 178 Cal.App.3d at p. 1057, 224 Cal.Rptr. 213.)

Neither are we persuaded to define the Club as a “business establishment” based upon the collection of dues from members and furnishing of goods and services—in the restaurant, bar and pro shops, for instance—in exchange for cash payments or “chits.”   We find that the provision of goods and services to members merely furthers the recreational and social goals of the Club and is not, under the circumstances, a business-like attribute.

“Truly private” relationships not encompassed within the purview of the Unruh Civil Rights Act have been defined as those which are “ ‘continuous, personal, and social’ ” and which “take place more or less outside ‘public view.’ ”   (Isbister, supra, 40 Cal.3d at p. 84, fn. 14, 219 Cal.Rptr. 150, 707 P.2d 212;  Rotary Club, supra, 178 Cal.App.3d at p. 1058, 224 Cal.Rptr. 213.)   Upon review of the record, we conclude that the Club is such a truly private organization rather than a business establishment within the meaning of section 51 of the Unruh Civil Rights Act.   We are convinced by the evidence that the Club offers “continuous, personal, and social” activities which are confined within a very private setting.   Accordingly, the trial court did not err in dismissing appellant's claims of discriminatory practices.  (Curran, supra, 147 Cal.App.3d at p. 732, 195 Cal.Rptr. 325.)

 We turn to appellant's cause of action predicated upon denial of the common law right to fair procedure, which the trial court dismissed for lack of evidence of standing.   The right of fair procedure as a component of due process recognizes that private associations may “possess substantial power either to thwart an individual's pursuit of a lawful trade or profession, or to control the terms and conditions under which it is practiced.”  (Ezekial v. Winkley (1977) 20 Cal.3d 267, 272, 142 Cal.Rptr. 418, 572 P.2d 32;  Warfield I, supra, 214 Cal.App.3d at p. 658, 262 Cal.Rptr. 890.)   Membership in a private “association, with its associated privileges, once attained, is a valuable interest which cannot be arbitrarily withdrawn.”  (Ezekial v. Winkley, supra, 20 Cal.3d at p. 273, 142 Cal.Rptr. 418, 572 P.2d 32;  Curran, supra, 147 Cal.App.3d at p. 722, 195 Cal.Rptr. 325.)   Thus, one may not be expelled from membership in a private association without compliance with minimum due process requirements.  (Ezekial v. Winkley, supra, 20 Cal.3d at p. 272, 142 Cal.Rptr. 418, 572 P.2d 32;  Crosier v. United Parcel Service, Inc. (1983) 150 Cal.App.3d 1132, 1141, 198 Cal.Rptr. 361;  Marmion v. Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72, 88, 193 Cal.Rptr. 225.)   Arbitrary exclusion from membership in private associations has been more narrowly applied to situations with substantial economic ramifications, such as where denial of membership would effectively impair the applicant's right to “fully practice his profession.”  (Ezekial v. Winkley, supra, 20 Cal.3d at p. 274, 142 Cal.Rptr. 418, 572 P.2d 32, internal quotation marks omitted;  Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal.App.3d 507, 511, 119 Cal.Rptr. 507.)

Appellant submits that our decision in Warfield I established as law of the case her standing to assert a claim of denial of fair procedure.7  We disagree.   In Warfield I, we reviewed the propriety of the trial court's dismissal of the first amended complaint after demurrer was sustained without leave to amend, and held:  “Viewing the allegations broadly, plaintiff possessed the benefits and privileges of membership in the club even though the certificate of membership was issued in the name of her former husband․   The allegations raise viable factual issues concerning plaintiff's property interest in the club membership, purchased and maintained with community property funds and awarded to her as a community property interest under the integrated property settlement agreement.   Accordingly, the order sustaining the demurrer to the pleaded cause of action was erroneous.”  (214 Cal.App.3d at p. 659, 262 Cal.Rptr. 890.)

 A demurrer tests the sufficiency of the pleading and accepts the truth of all material factual allegations.  (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 20, 223 Cal.Rptr. 806;  Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 797, 198 Cal.Rptr. 208.)   We are presently reviewing the trial court's finding in directing a verdict against appellant that she failed to offer evidence in support of her allegations of sufficient substantiality to support a verdict in her favor.  (Short v. Nevada Joint Union High School Dist., supra, 163 Cal.App.3d at p. 1985, 210 Cal.Rptr. 297.)   Where, as here, the record has changed in any substantial respect, the law of the case doctrine does not conclusively resolve an issue.  (Nollan v. California Coastal Com. (1986) 177 Cal.App.3d 719, 724–725, 223 Cal.Rptr. 28;   Marsh v. Workmen's Comp. App. Bd. (1968) 257 Cal.App.2d 574, 581, 65 Cal.Rptr. 69.)   We now have before us considerable evidence which was not part of the record in the prior appeal.   Therefore, we are not bound here by our previous ruling on the fair procedure issue as part of our reversal of the demurrer entered in favor of the respondent.  (Nollan, supra, 177 Cal.App.3d at p. 725, 223 Cal.Rptr. 28.)   We must consider anew the sufficiency of the evidence to support appellant's cause of action for denial of fair procedure.

 While appellant did not enjoy a vested property right in the regular family membership issued solely to her former husband, we conclude from the evidence presented that she did enjoy the benefits and privileges of the Club through her legal right of access to and use of the facilities.  (Warfield I, supra, 214 Cal.App.3d at p. 659, 262 Cal.Rptr. 890.)   Included in appellant's benefits were enhanced business opportunities obtained from social interaction with Club members.   Accordingly, we conclude that appellant has standing to assert her right to fair procedure associated with her expulsion from enjoyment of Club facilities and exclusion from holding a proprietary membership.

 The common law right of fair procedure requires at least adequate notice of the charges and a meaningful opportunity to respond.  (Ezekial v. Winkley, supra, 20 Cal.3d at p. 278, 142 Cal.Rptr. 418, 572 P.2d 32;  Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368, 1374, 255 Cal.Rptr. 527.)  “This ‘fair procedure’ need not be equivalent to a court trial․”  (Crosier v. United Parcel Service, Inc., supra, 150 Cal.App.3d at p. 1141, 198 Cal.Rptr. 361.)  “ ‘[W]hether the procedure is “fair” in a particular case depends largely on “the nature of the tendered issue.” ’  (Id. 20 Cal.3d at p. 279, 142 Cal.Rptr. 418, 572 P.2d 32.)  ‘․ The minimum requirements are described in varying ways and may depend upon the action contemplated by the organization and the effect of that action on the individual.’   (Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435, 442 [187 Cal.Rptr. 811].)  Stated otherwise:  ‘The common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial [citation], nor adherence to a single mode of process.   It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an applicant to present his position․’ ”  (Marmion v. Mercy Hospital & Medical Center, supra, 145 Cal.App.3d at pp. 88–89, 193 Cal.Rptr. 225.)

 Upon being awarded the regular family membership of her husband in the dissolution proceeding, appellant was not immediately and summarily expelled from the Club and use of its facilities.   She requested, but was denied, transfer of the proprietary membership to her name.   Subsequently, again at appellant's request, the respondent's Board reviewed its decision after receiving input from appellant and the membership committee.   In accordance with the Board's interpretation of the bylaws, appellant was refused a propriety membership.   Instead, the Board offered appellant a new class of nonproprietary golfing membership, which would have continued appellant's access to Club facilities and the accompanying recreational and business opportunities she had previously enjoyed.   Thus, appellant was neither denied the opportunity to present her response to the Board's action nor excluded from the nonproprietary benefits of membership in the Club—including fully pursuing her business interests to the extent she had in the past.   Under the circumstances, we find no denial of the right to fair procedure.8


The judgment is affirmed.


1.   No other class of membership in the Club is granted ownership or voting rights.

2.   For merchandise or lessons purchased by chits from the golf or tennis pro shops, the Club reimburses the professionals for the amount of the chits.

3.   Before the March 1970 amendments of the bylaws, women were permitted to hold proprietary memberships in the Club, and those who did so at that time retained their memberships following the amendments.

4.   All further statutory references are to the Civil Code unless otherwise indicated.

5.   “The original version of the bill which became the Unruh Act extended its antidiscriminatory provisions to ‘all public or private groups, organizations, associations, business establishments, schools, and public facilities;  ․’ (See Assem. Bill No. 594, as introduced Jan. 21, 1959.)   Later versions dropped all the specific enumerations except ‘business establishments' but added to the latter phrase the modifying words ‘of every kind whatsoever.’ ”  (Isbister, supra, 40 Cal.3d at p. 79, 219 Cal.Rptr. 150, 707 P.2d 212.)

6.   It is also quite obviously discriminatory.  (Ibid.)

7.   The “law of the case” doctrine “precludes multiple appellate review of the same issue in a single case.”  (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434, 212 Cal.Rptr. 466, 696 P.2d 1308.)   “The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent ․ appeal in the same case.”  (Wilder v. Whittaker Corp. (1985) 169 Cal.App.3d 969, 972, 215 Cal.Rptr. 536.)

8.   Our affirmance of the trial court's dismissal of appellant's causes of action for violation of the Unruh Civil Rights Act and denial of the right to fair procedure renders unnecessary resolution of her argument that the trial court erred by excluding evidence of emotional distress damages.

NEWSOM, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.

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