ORLOFF v. LOS ANGELES TURF CLUB (1946)

The question posed by this appeal is whether injunction is an available remedy for an adult person and taxpayer of the state who, without having committed any offense against a race track, its proprietor or patrons, has been twice arbitrarily ejected from the premises having paid each time for admission.

In his complaint appellant alleged that on January 31, 1946, he visited Santa Anita Park in Los Angeles County where corporate appellees operate a horse racing course to which the general public is invited for the purposes of viewing horse races and of gambling upon the outcome thereof; that on that day and again on February 2 he purchased and received a ticket and was admitted to the park, but that on both days he was, ‘without cause or provocation’ and while conducting himself in a proper manner at all times, ejected by appellees against his will and without his consent and was ordered not to return to the race course on penalty of being forcibly removed therefrom. As a result of such treatment he alleged that he has suffered ‘great anguish of mind and irreparable injury to his reputation and character.’ His prayer was that defendants be enjoined from repeating such acts.

The court below sustained a demurrer ‘with leave to plaintiff to amend said complaint from one for injunction to an action for damages' and appellant having declined so to amend his complaint and a judgment of dismissal having been entered, this appeal is from such judgment.

Appellant argues that such ruling was error in that it does not afford adequate relief. The contention is obviously animated by a desire to defeat his antagonists rather than to cause a triumph of the law. Section 53 of the Civil Code provides that ‘It is unlawful for any * * * race course * * * to refuse admittance to any person over the age of twenty-one years, who presents a ticket of admission * * * to such place * * *’ Section 54 provides that ‘Any person who is refused admission to any place of amusement contrary to the provisions of the last preceding section, is entitled to recover from the proprietor * * * his actual damages, and one hundred dollars in addition thereto.’

While the legislature has the authority to modify the common law in the matter of regulating the rights of citizens to the enjoyment of places of amusement (Greenberg v. Western Turf Association, 148 Cal. 126, 128, 82 P. 684, 113 Am.St.Rep. 216), yet a statute which creates such right and provides a special remedy for its enforcement must be given a strict construction. Cook v. Superior Court, 12 Cal.App.2d 608, 611, 55 P.2d 1227; Swing v. Lingo, 129 Cal.App. 518, 526, 19 P.2d 56. It follows that since the cited sections create a right which was unknown to the common law, provide for a penalty and prescribe a remedy for its violation, such remedy is exclusive and therefore an action for injunction cannot be maintained. County of Alameda v. Freitas, 8 Cal.App.2d 653, 655, 48 P.2d 165; Woolcott v. Shubert, 169 App.Div. 194, 154 N.Y.S. 643, 646; White v. Pasfield, 212 Ill.App. 73, 75.

Appellant argues at length that Stone v. Board of Directors of City of Pasadena, 47 Cal.App.2d 749, 118 P.2d 866, is authority for his contention. It is readily distinguishable. The plaintiff there instituted a mandamus proceeding to compel the city's officials to permit a Negro to enjoy a public plunge; i. e., ‘to compel the admission of a party to the use and enjoyment of a right * * * to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.’ Code Civ.Proc. sec. 1085. Stone's rights to enter and enjoy the public plunge were already fixed by law. His exclusion from such privilege was a discrimination against him on account of color, forbidden by Article XIV of the federal Constitution and by Article I, section 21, Constitution of California, as well as by section 51 of the Civil Code. As section 51 was not a necessary support for the Stone action it has no relevancy to the action at bar. Appellant Orloff made no allegation that he was the victim of a racial discrimination or that he had been ejected under a void ordinance, which fact makes inapplicable the other cases cited by him, towit: Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Morris v. Williams, 8 Cir., 149 F.2d 703; Thomas v. Hibbitts, D.C. 46 F.Supp. 368; Favors v. Randall, D.C., 40 F.Supp. 743; Mendez v. Westminster School District, D.C., 64 F.Supp. 544.

The final assignment is that the remedy by injunction is necessary to prevent a multiplicity of suits. In the absence of an allegation that a suit for damages and the penalty had been brought the contention is baseless. Woolcott v. Shubert, supra; Troy & Boston Railroad Company v. Boston, H. T. & W. R. Co., 86 N.Y. 107, 127. Until appellant has recovered damages his right has not been established. Furthermore, under our practice if he had had such a claim for each day of the year he could have included them all in one action.

Judgment affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.