KORN v. RABBINICAL COUNCIL OF CALIFORNIA (1983)

INTRODUCTION

Plaintiffs Ralph Korn (Korn) and Alex Siegel (Siegel) appeal from an order of dismissal entered after the trial court sustained defendants' demurrer without leave to amend.

STATEMENT OF FACTS

On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.  (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357;  Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.)   Plaintiffs' complaint discloses the following express and reasonably inferred facts.

Prior to February 1981, plaintiffs Korn and Siegel were the owners and operators of the Kosher Bosher Meat Company (Kosher Bosher), a slaughtering house selling exclusively to kosher butchers.   In Los Angeles, defendant Rabbinical Council of California (RCC) is the rabbinical body entrusted by the Jewish community with the duty of determining whether meat has been slaughtered and prepared in strict compliance with traditional Jewish dietary laws.   RCC's duties include advising the kosher food-consuming public whether meat purported to be kosher actually has been slaughtered and prepared in conformity with RCC's interpretation of Jewish law.

In February 1981, RCC and the defendant rabbis formed the opinion that Kosher Bosher's meat was not kosher;  RCC removed its certification of Kosher Bosher and placed an advertisement in a newspaper of general circulation in the Jewish community announcing that Kosher Bosher's meat no longer warranted RCC's endorsement.¹  In addition, defendants distributed leaflets and letters to various distributors, butcher shops, markets and members of the general public stating that kosher certification had been removed from the products of Kosher Bosher.

In February 1981, Acme acquired all of Kosher Bosher's rights and responsibilities;  Kosher Bosher dissolved as an entity.   Korn and Siegel served as salesmen for Acme from the time of Kosher Bosher's dissolution to the present.

In June of 1981, one of the plaintiffs, United Orthodox Rabbinate of Greater Los Angeles,² under the leadership of Rabbi Juda Glasner (Glasner), agreed to fill the supervisory role vacated by RCC;  Glasner proffered the opinion that Acme's meat was kosher.   Defendants continued to withhold their certification.

In Los Angeles, stores selling kosher meat usually display a sign indicating that meat for sale therein has been certified by defendants as kosher.   Defendants threatened to remove such signs from any store or distributor dealing with Acme's meat.

PROCEDURAL BACKGROUND

Plaintiffs' complaint includes seven causes of action.³  In their first and seventh causes of action, plaintiffs alleged that defendants “wrongfully and unlawfully conspired among themselves ․ that the Kashrut supervision of Kosher meat would be removed from the products manufactured and distributed by Acme and Kosher Bosher.”

With respect to the notices published in newspapers of general circulation in the Jewish community, in their fourth and sixth causes of action, plaintiffs alleged “said advertisements [noting that rabbinic endorsement had been removed from Acme's meat] are false as pertaining to the plaintiff Acme.”   In their fifth cause of action, plaintiffs alleged “Defendants had no probably [sic] cause for believing the statements to be true, ․”

At trial, the court indicated that it was willing to sustain defendants' demurrer with leave to amend;  the court sustained defendants' demurrer without leave to amend, however, when plaintiffs' counsel indicated his belief that the complaint could not be amended to remove what the trial court considered a bar to its jurisdiction, i.e. the presence of an ecclesiastical issue.   Plaintiffs' counsel noted “If the court feels that this would be an ecclesiastical problem which could not be overcome on demurrer, perhaps then to sustain without leave would speed the process up, ․”

Plaintiffs' notice of appeal was timely filed.

CONTENTIONS

I

For the following reasons, plaintiffs contend the trial court's decision to sustain defendants' demurrer without leave to amend due to a jurisdictional defect, i.e., the presence of an ecclesiastical issue, was erroneous:

A.  By its demurrer, defendants have admitted plaintiffs' meat was kosher;

B. Rabbi Juda Glasner has certified Acme's meat is Kosher;

C. Sister states have repeatedly reached the merits of cases wherein the characterization of food as kosher was germane to the determination of a particular cause of action;  and

D. The complaint does not require the court to determine any ecclesiastical issues.

II

Plaintiffs contend the trial court erroneously determined state courts lack jurisdiction over alleged violations of the Sherman Act.

III

Plaintiffs further contend their complaint adequately stated a cause of action for violation of the Cartwright Act.

DISCUSSION

I

In this case of first impression, plaintiffs proffer various arguments in order to convince this court the trial court erroneously determined plaintiffs' causes of action were barred by the presence of an ecclesiastical issue.   We conclude that while plaintiffs' second and third causes of action are not so barred, plaintiffs' remaining causes of action are.⁴

 In that First Amendment ⁵ values are clearly jeopardized when the resolution of litigation turns on a civil court's determination of controversies concerning religious practice and doctrine (Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 510, 136 Cal.Rptr. 731), the First Amendment has been construed to prohibit the use of government for purposes which are essentially religious.  (Abington School District v. Schempp (1963) 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844.)   Thus, civil courts may not adjudicate questions which are primarily ecclesiastical in nature.

 The determination of whether Acme's meat is kosher is an ecclesiastical question.   A brief explanation of the Hebrew term Kashrut will clarify the role of rabbinic authority in supervising the slaughter and preparation of kosher meat.   The term Kashrut is a collective term encompassing “the Jewish laws and customs pertaining to the types of food permitted for consumption” and the preparation of the permitted foods.  (6 Encyclopaedia Judaica, Dietary Laws, p. 26.)   Food which is kosher, therefore, is food of the type which is permitted and which has been prepared in conformity with Jewish law.   When a rabbinic council expresses its approval of certain meat by certifying it as kosher, the council is in actuality certifying to the kosher meat-consuming public that the meat conforms with the council's interpretation of the requirements of Judaic law.   As that law is open to interpretation, rabbinic authorities may differ on the question of whether preparation of specific meat conforms to the pertinent law.   For example, rabbinic authorities disagree on the effect of the absence of the benediction which normally precedes the act of slaughtering.  “One authority has ruled that the absence of the benediction renders the meat non-kosher but the general opinion is that although a benediction should be recited its omission, post facto, does not affect the validity of the act.”  (14 Encyclopaedia Judaica, Shehitah, p. 1338.)

Thus, it is possible that meat which has been considered kosher by authorities in one region will be considered non-kosher by authorities elsewhere.   Therefore, despite plaintiffs' assertion to the contrary, the fact that Rabbi Glasner and the United Orthodox Rabbinate of Greater Los Angeles are willing to approve plaintiffs' meat does not require defendants to do the same.   Rather, as autonomous entities, defendants are entitled to their own opinions and are obligated by the authority vested in them by the community which they serve to make known their opinion concerning whether particular food products conform with the Judaic dietary laws.

If the trial court were to consider plaintiffs' causes of action, it “would inevitably be faced with such questions as who has the authority to enforce Kashrut in [Los Angeles], what are the criteria for determining whether foods are kosher, and what procedures must the body in charge of Kashrut follow.   All of these questions are determinable only by reference to Jewish law, a domain into which the courts will not venture.”  (United Kosher Butchers Ass'n v. Associated Synagogues of Greater Boston, Inc. (1965) 349 Mass. 595, 211 N.E.2d 332.)   Thus, we conclude that the determination of whether food is kosher is an ecclesiastical question unsuitable for adjudication in civil courts.

Plaintiffs assert, however, that since sister states have decided controversies arising from the fact that meat was unkosher, California should do the same.   Having analyzed cases cited by plaintiffs, however, we note the court's jurisdiction is proper only insofar as rabbinic authority is not in disagreement over whether the meat is kosher.   Thus, jurisdiction will be proper if, after the application of traditional Judaic law to the facts surrounding the preparation of the specific food in question, Jewish religious authorities do not dispute the characterization of the food as kosher.   (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 11 Cal.Rptr. 758, 360 P.2d 334 (upheld constitutionality of Pen.Code, § 383b, providing punishment for misrepresentation of unkosher meat as kosher);  Sossin Systems, Inc. v. City of Miami Beach (Fla.App.1972) 262 So.2d 28 (upheld constitutionality of statute providing punishment for exposure for sale of nonkosher food as kosher);  Cabinet v. Shapiro (1952) 17 N.J.Super. 540, 86 A.2d 314 (no allegation that poultry did not meet all requirements to be characterized as kosher);  Cohen v. Eisenberg (1940) 173 Misc. 1089, 19 N.Y.S.2d 678 (parties agree poultry met all traditional requirements of kosher meat);  People v. Gordon (1940) 258 App.Div. 421, 16 N.Y.S.2d 833 (parties agreed that meat had been slaughtered in accord with traditional Judaic ritual under proper supervision and that meat was kosher as term had been applied for centuries).)   For example, a civil court properly addressed the merits of a case where the plaintiff had sought to establish that the defendant had purposely despoiled the plaintiff's kosher meat in order to render it unkosher.  (Erlich v. Etner (1964) 224 Cal.App.2d 69, 36 Cal.Rptr. 256.)   Similarly, jurisdiction was proper where specific rabbinic authorities' only reason for withholding approval of meat as kosher was the plaintiff's noncompliance with the authorities' new requirements which bore no relation to the requirements of traditional Judaic laws.  (Cabinet v. Shapiro, supra, 86 A.2d 314;  People v. Gordon, supra, 16 N.Y.S.2d 833.)

To the contrary, however, if rabbinic authorities' interpretation of Judaic law render disparate findings concerning the status of meat purported to be kosher, the court lacks jurisdiction to settle the dispute.   Therefore, we must ascertain whether defendants, by their demurrer, admitted that Acme's meat was slaughtered and prepared in accord with their interpretation of Judaic law.

 In their second and third causes of action, plaintiffs allege that “The Defendants RCC and Does I through XV, inclusive, stated to Plaintiff Acme that such approval would be reinstated if the Plaintiff would pay the Defendant, SOLOMON SPITZ, the sum of $400.00 per month.”   Admission to this allegation may reasonably be construed as defendants' acknowledgement that plaintiffs' meat met with their interpretation of Judaic legal requirements, but that they were withholding their supervision and approval until plaintiffs agreed to pay a $400 per month charge.   With respect to causes of action two and three, therefore, we must conclude that defendants were not in disagreement over whether the application of traditional Judaic dietary laws to the facts concerning the slaughter and preparation of Acme's meat rendered that meat kosher.   There was, therefore, no ecclesiastical bar to the court's jurisdiction to adjudicate plaintiffs' second and third causes of action.   Plaintiff's remaining causes of action will be barred, however, as the complaint contains no allegations of material fact in the remaining causes of action which may be construed as admissions by operation of defendants' demurrer that plaintiffs' meat was kosher.   While the remaining causes do contain conclusions of fact which imply that plaintiffs' meat was kosher, such conclusions do not remove the ecclesiastical bar to the trial court's jurisdiction, for a demurrer does not admit conclusions of fact alleged in the complaint.  (Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.)

 Furthermore, we are unimpressed with plaintiffs' assertion that the complaint could have been amended in order to delete any reference to kosher meats, removing the ecclesiastical issue thereby.   We direct plaintiffs attention to two procedural facts:  (1) plaintiffs opined to the trial court that their complaint could not be amended in order to cure the jurisdictional defect so long as the court held that the determination of the causes of action involved ecclesiastical issues;  and (2) plaintiffs suggested to the trial court that their demurrer might be sustained without leave to amend in order “to speed the process up․”

We can only conclude that plaintiffs elected to appeal rather than attempt to remove any defects in the complaint.   On review, we are entitled to assume the plaintiff who elects not to amend his complaint has stated as strong a case as possible.  (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 176 Cal.Rptr. 569;  Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 155–156, 140 Cal.Rptr. 599.)   Based on this assumption, we find no fault in the trial court's decision to sustain defendants' demurrer without leave to amend.

II

 Plaintiffs contend the trial court had jurisdiction to adjudicate their third cause of action which alleged a violation of the Sherman Act.⁶  We disagree.

Federal authority has long held that state courts lack jurisdiction to adjudicate alleged violations of the Sherman Act.  (Blumenstock Bros. v. Curtis Pub. Co. (1919) 252 U.S. 436, 440, 40 S.Ct. 385, 386, 64 L.Ed. 649;  accord Safe Workers' Organization, Chap. No. 2 v. Ballinger (1974) 389 F.Supp. 903, 911;  Cream Top Creamery v. Dean Milk Company (6th Cir.1967) 383 F.2d 358, 363.)   Thus, the trial court correctly sustained defendants' demurrer to plaintiffs' third cause of action.

III

 Finally, with respect to their second cause of action, plaintiffs assert the trial court erroneously ruled they had failed to state a cause of action for a violation of the Cartwright Act.   We disagree.   Business and Professions Code section 16700 et seq. embodies the Cartwright Act, California's antitrust legislation.   In order to state a cause of action for violation of the Cartwright Act, three elements must be satisfied:  “(1) formation and operation of the conspiracy;  (2) illegal acts done pursuant thereto;  and (3) damage proximately caused by such acts.”  (Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 718, 187 Cal.Rptr. 797;  Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d 7, 20, 126 Cal.Rptr. 327.)

 Plaintiffs have failed to establish the third element as the complaint does not allege that plaintiffs Korn and/or Siegel were harmed by defendants' acts.   Plaintiffs allege in paragraph 24 that defendants removed the kosher certification “․ and refuse to provide it to Plaintiff Acme ․” and in paragraph 25 that “Plaintiff Acme asked the Defendants RCC and Defendant SUGARMAN to grant their approval and Kashruth certificate to the Plaintiffs' kosher meat operation ․”  (Emphasis added.)   While these allegations concern the effect of defendants' actions on Acme, they provide no basis for inferring harm to Acme's salesmen, Korn and Siegel.   Moreover, paragraphs 25 and 26 are logically inconsistent in that the latter refers to “Plaintiffs' application to the Defendants to restore approval to the Plaintiffs' products, ․” whereas the former speaks only of “Plaintiff Acme.”

The central difficulty, however, is embodied in paragraph 29.   According to the complaint, defendants intended to “injure and destroy the Plaintiff's business by preventing the Plaintiff from receiving said Kosher certification and thereby prevent him from selling his products to retailers and to the kosher-consuming public.   Such injury to the Plaintiff's business is the direct result of the aforementioned illegal, malicious and wrongful conspiracy and of the acts done in furtherance thereof.   As a result of the aforementioned acts, Plaintiff Acme has suffered damages․”  (Emphasis added.)   Clearly, this excerpt alleges damages to plaintiff Acme alone.   Having failed to allege damage proximately caused to them, Korn and Siegel have failed to state a cause of action for a violation of the Cartwright Act.

We will affirm the judgment in accord with our general practice where a plaintiff elects not to amend his complaint after a demurrer has been sustained with leave to amend and we have determined that the complaint is objectionable on grounds raised by demurrer.  (Hooper v. Deukmejian, supra, 122 Cal.App.3d 987, 994, 176 Cal.Rptr. 569;  Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681.)

The judgment is affirmed.

FOOTNOTES

1.   Plaintiffs allege in their second and third causes of action that defendants offered to reinstate their approval of plaintiffs' meat “if the plaintiff would pay the Defendant, SOLOMON SPITZ, the sum of $400.00 per month.”

2.   United Orthodox Rabbinate of Greater Los Angeles, one of the original plaintiffs, has elected to file an amicus brief rather than appeal.

3.   Plaintiffs alleged the following causes of action:  restraint of trade, violation of the Cartwright Act, violation of the Sherman Anti-trust Act, trade libel, trade slander and trade disparagement.   For their seventh cause of action, plaintiffs seek an injunction ordering defendants to grant kosher certification to their meat products.

4.   As we will discuss herein, plaintiffs' second and third causes of action are barred on other grounds.

5.   In part, the First Amendment of the United States Constitution provides:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;  ․”   The principles embodied therein have been applied to the states in Cantwell v. Connecticut (1940) 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213;  Everson v. Board of Education (1947) 330 U.S. 1, 14–15, 67 S.Ct. 504, 510–511, 91 L.Ed. 711;  McCollum v. Board of Education (1948) 333 U.S. 203, 210–211, 68 S.Ct. 461, 464–465, 92 L.Ed. 649;  Zorach v. Clauson (1952) 343 U.S. 306, 310, 72 S.Ct. 679, 682, 96 L.Ed. 954.

6.   15 U.S.C., § 1.

SPENCER, Presiding Justice.

DALSIMER and FAINER,* JJ., concur.