Cohn v. Corinthian Colleges, Inc., et al. suggests developing statutory construction trend in Fourth Appellate District, Division Three

Statistically speaking, it is difficult to ascribe trends to any particular Court of Appeal on the basis of just a few opinions on a given topic. That said, one Appellate District in particular appears, at minimum, to be skeptical of the validity of class actions predicted upon statutory violations. In Cohn v. Corinthian Colleges, Inc. (pub. order December 19, 2008), the Court of Appeal (Fourth Appellate District, Division Three) affirmed a summary judgment granted in favor of various defendants, including Angels Baseball LP, in a case in which a Mother's Day tote bag giveaway to mothers was alleged to have violated the Unruh Civil Rights Act (Civ. Code, §§ 51, 52.).

In describing the nature of the appeal, the Court left little doubt about the nature of the opinion to follow:

“As we will explain, the Unruh Act protects against intentional discrimination that is unreasonable, arbitrary, or invidious. This important piece of legislation provides a safeguard against the many real harms that so often accompany discrimination. For this reason, it is imperative we not denigrate its power and efficacy by applying it to manufactured injuries such as those alleged by the plaintiff in this case.

(Slip op., at p. 2.)  The Court later suggest that the outcome was appropriate in light of the plaintiff's prior litigation activities:

“Cohn’s complaint gathers further suspicion because Cohn, his friends, and his counsel have been involved in numerous of what have been characterized as “‘shake down’” lawsuits. (E.g., Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 178.) They proclaim themselves equal rights activists, yet repeatedly attempted to glean money from the Angels through the threat of suit. The Unruh Act is a valuable tool for protecting our citizens and remedying true injuries. We are not convinced the Angels’ tote bag giveaway was in anyway unreasonable, arbitrary, or invidious discrimination.

(Slip op., at p. 6.)  However, if the Court was satisfied that the claim was so lacking in merit that summary judgment was the appropriate means of disposition, the need for the discussion about Cohn's motiviation seems unclear.  In fact, it weakens the Court's analysis by suggesting that the hinted inequity is a necessary supporting factor in the decision.  Presumably, the outcome would have been the same for a first-time litigant with no known associations with activists.

This decision could be viewed in isolation, as a fact-driven outcome.  However, there are some legitimate indications that this Division's construction of statutory rights favors a strict construction that tends to limit claims.  For example, in Starbucks v. Superior Court (Lords) (December 10, 2008) the District reversed an Order certifying a class action and denying summary judgment, holding that plaintiff job applicants lacked standing to sue and obtain penalties under a statutory scheme precluding inquiry into certain drug convictions.  (Full disclosure - I assisted with some of the appellate briefing in that matter)   There was no language in the statutory scheme suggesting that the legislature sought to limit standing only to convicted job applicants, as opposed to all job applicants.  Nevertheless, the Court limited the parties entitled to enforce a statutory mandate by the legislature.

And in McCoy v. Superior Court (Kimco) (2007) 157 Cal.App.4th 225 (review denied), the Third Division disregarded a discussion in Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 when it held that Labor Code § 203 waiting time penalties are governed by a one-year statute of limitation.

At least circumstantially, it appears that the Third Division is not inclined to view statutory protection schemes as strict liability standards entitled to uniform enforcement.