Citations
- 129 Cal. App. 4th 1050
Full opinion text
Opinion
HASTINGS, J.
Appellant Marty Ingels sought to participate in a call-in radio talk show. Upon learning appellant’s age, the screener told appellant he was too old for the audience to which the show was aimed. Appellant objected that his age should not preclude him from participating in the forum. He was then allowed on the air, where he elected to address his displeasure over his perception that he was a victim of age discrimination, rather than the subject then under discussion on the show. He sued the producers and the talk show host for age discrimination under the Unruh Civil Rights Act, Civil Code section 51 et seq. (hereafter sometimes the Act), and for unfair business competition under Business and Professions Code section 17200 et seq. The trial court granted a special motion to strike pursuant to Code of Civil Procedure section 425.16 and dismissed the action.
We first conclude that the action falls within application of section 425.16 and is not exempt from such treatment under section 425.17. We then conclude, given the unique circumstances presented, appellant has failed to demonstrate a probability he will prevail on his Unruh Civil Rights Act claim. Because his claim for unfair competition is based on a violation of the Act, we also conclude he has failed to demonstrate a probability of prevailing on that claim. We affirm.
STATEMENT OF FACTS
Respondent Westwood One Broadcasting Services, Inc. produces a radio show hosted by respondent Tom Leykis. The show utilizes the format of a host addressing various topics who responds to listener e-mails and correspondence, and who also takes calls from listeners. The show is described as “an extremely popular singles-oriented radio talk show that is broadcast in Los Angeles each weekday from 3:00 p.m. to 7:00 p.m., as well as by satellite feed to affiliate stations.” It is broadcast to affiliated stations in more than 20 states and has an estimated weekly national audience of more than 600,000 adult listeners. We are told: “[I]n the Los Angeles Metro Survey Area, the Tom Leykis Show had a 7.8% share of the Men Aged 25-34 radio audience, making it the second-ranked for all radio stations in the Los Angeles market during its time period.”
Topics on the show cover various issues, some of which are listed: “New developments in CD copy protection; Views from outside California on the gubernatorial race results; The national ‘Do Not Call’ list; Weight discrimination in the workplace; and Handicap and childproofing laws.” A common theme is relationships and dating between men and women. Several hundred calls are received during an average broadcast and the calls must be screened and then narrowed down by the host “to a limited number that they believe are on-topic and most interesting to the host and the audience.”
Appellant describes himself as a television personality and a concerned citizen. He also hosted his own radio talk show in Los Angeles for two years: “The World As Seen By Marty Ingels.” Appellant regularly calls into radio talk shows using the name “Paul Russo.” Every show he calls has screeners, and on many occasions he has not been allowed on the air.
On June 25, 2003, appellant was listening to the Tom Leykis show. The topic involved relationships between men and women, a topic which appellant believed was significant. The host was discussing a young man’s strategy for, in appellant’s words, “luring dates, girls, and being popular, and stuff like that.” The host was giving advice to the young man. Appellant decided to call into the show and confront the host to, in appellant’s words, “challenge him on his beliefs and win a moral argument. . . .” When he finally got through, he spoke with a screener and told the screener that his name was Paul Russo and that his age was “60,” although appellant was actually 65 years of age at the time. The screener made a few jokes about appellant’s age and told appellant he didn’t belong on the show. Appellant was on and off hold for approximately 11 to 12 minutes, during which time he decided to address the issue of age when he got on the air.
Appellant was then put on the air with Tom Leykis and the following exchange occurred, after which appellant was cut off:
“THE ANNOUNCER: This is the Tom Leykis Show.
“TOM LEYKIS: From Los Angeles, 1-800-580-0TOM.
“Are men shallow? Should we be looking for inner beauty? Ha, ha.
“Paul, on the Tom Leykis show.
“THE CALLER [appellant]: Hey, Larry, are you there?
“TOM LEYKIS: Larry? You’re calling for Larry?
“THE CALLER: Yeah.
“TOM LEYKIS: All right. Hold on a second, will you?
“(Pause.)
“THE ANNOUNCER: This is the Tom Leykis Show.
“TOM LEYKIS: Yes. 1-800-580-0TOM.
“This is Paul on the Tom Leykis Show. Hello.
“THE CALLER [again appellant]: Tom?
“TOM LEYKIS: Oh, I thought you were calling for Larry.
“THE CALLER: No. I made a mistake. I have been waiting three years. I am surprised I know my own name, okay.
“TOM LEYKIS: I am surprised, too.
“THE CALLER: Are you there?
“TOM LEYKIS: No. I left the room.
“THE CALLER: Hey, Tom, I hope you got an answer for me. I had to actually muscle my way in here, because I am older than your demographic.
“TOM LEYKIS: You’re not just older than my demographic, you’re the grandfather of my demographic.
“THE CALLER: What’s that got to do with what’s in my brain and what I have to say?
“TOM LEYKIS: Because we’re not aiming at people your age, Pops.
“THE CALLER: What does that mean, ‘aiming at’? I—
“TOM LEYKIS: Very simple: it’s called targeted demographics, Pal.
“THE CALLER: Okay. That’s all business. Now, I got a valid job (unintelligible)—
“TOM LEYKIS: I don’t really care if you have a valid point. You know what, the bottom line is, our audience is young men.
“THE CALLER: Why is that?
“TOM LEYKIS: Because every radio station has a particular targeted audience.
“THE CALLER: That’s got to do with commercial stuff, though—
“TOM LEYKIS: Right. And that’s what we do: We sell advertising here, in case you didn’t notice.
“That’s the business I’m in. I’m not in the business of trying to appeal to people like you calling from a rest home or a card room.
“THE CALLER: Isn’t that sad?
“TOM LEYKIS: You know what, no, it isn’t.
“THE CALLER: It isn’t? What about—
“TOM LEYKIS: You know what, when they play big band music on the radio, they don’t play any Tool. Why not?
“THE CALLER: Tom, listen. I am—
“TOM LEYKIS: Why don’t they have any 12 year olds calling in?
“THE CALLER: I am smart enough about—
“TOM LEYKIS: I don’t really care how smart you are, Pal. You know what, we have a targeted demographic on this program; you don’t fit it, period. You’re way too old, Pops. You don’t belong on the air. Call a big band station. Call somebody else, please. Don’t call here.
“It’s called targeted demographics. ‘Oh, it’s all about advertising, isn’t it?’ Yes. Yes it is. Do you hear how many commercials are on this show? We sell lots of advertising, because we have got a targeted demographic that people want to buy, and it doesn’t include people who don’t go out and ride motorcycles and drive expensive cars and drink beer. Ha, ha, ha.”
Appellant’s suit names as defendants Westwood One Broadcasting Services, Inc. and Tom Leykis. The first cause of action alleges a violation of the Act with the following pertinent charging allegations: “10. During the June 25, 2003 telephone call, Leykis intentionally deprived Ingels of the advantages, privileges, and accommodations of The Tom Leykis Show by refusing to allow Ingels to participate in the show based upon Ingels’ age (i.e. over 60 years old), [f] 11. During the June 25, 2003 telephone call, Leykis put Ingels on the air and proceeded to berate and humiliate Ingels and refused to allow Ingels to air his opinions or participate in the show because of Ingels’ age. [(J[] 12. As a direct and proximate cause of Defendants’ conduct, Ingels suffered a loss of dignity, hurt feelings, and emotional upset and distress in an amount to be determined at the time of trial. Ingels also seeks treble that amount as allowed by law. [f] 13. Ingels has further presumed damages in the amount of $4,000.00 as defined in Civil Code § 52.”
The second cause of action, brought by appellant “individually and on behalf of the general public . . . ,” alleges unfair competition, with the following pertinent charging allegations: “20. Commencing at least as early as June 25, 2003, defendants have committed acts of unfair competition, as defined by Business and Professions Code section 17200, by engaging in the following unfair and unlawful business practices: [f] a. using the public airwaves to encourage members of the public to telephone into the radio talk show and then discriminating against certain members of the public based upon age; [][] b. engaging in an unlawful act and practices in violation of the Unruh Civil Rights Act found at Civil Code §51 et. seq. by depriving members of the public of the advantages, privileges, and accommodations of a business establishment by refusing to allow the general public to participate in the radio talk show based upon the caller’s age or other prohibited basis.”
In connection with the first cause of action, appellant prayed for recovery of compensatory damages, statutory damages, punitive damages, attorney fees, and for a permanent injunction pursuant to Business & Professions Code section 17203. Appellant sought only injunctive relief and attorney fees in connection with the second cause of action.
Respondents filed a special motion to strike pursuant to section 425.16, supported by various declarations. They argued that appellant would be unable to prevail in his claims: “Ingels cannot meet his burden to prove that [respondents] committed any actual violation of the Unruh Civil Rights Act. Ingels is manifestly not a ‘person denied the rights provided in Section 51,’ because Ingels admits that he was in fact put on the air with Leykis, (Complaint, 1 11), and because age is not and should not be a protected class in this context. Without any Unruh Act claim, Ingels’ Unfair Competition claim cannot stand, [f] Ingels’ claims fail as a matter of law under the First Amendment, the Supremacy Clause, and Preemption Doctrine because the Unruh Act does not trump the First Amendment and broadcast freedom.”
Appellant opposed the motion, first contending that his claims fell outside the scope of section 425.16. He argued that because the action was for age discrimination it did not address any First Amendment rights of respondents. His fallback argument was that he had demonstrated a valid age discrimination claim under the Act and he would be able to prevail on his claims. He did not challenge the evidentiary foundation supporting respondents’ motion.
The trial court found the action fell within the scope of section 425.16 and that appellant had failed to demonstrate a probability of prevailing on his claims. On the issue of the merits of appellant’s claims the court’s minute order provides:
“Plaintiff argues that there is no legitimate viewpoint neutral reason for barring the views of a person older than 60 from the show. But Plaintiff must provide evidence to support his allegations that discrimination occurred and there was no viewpoint neutral reason behind excluding him. It is enough if the Plaintiff establishes a substantial or reasonable probability of success .... Plaintiff provides little if any evidence in his sole Exhibit A that he was actually initially barred from the show f 10, that this was based on his age as alleged in 1 10 or that the radio show has any policy which excludes older people (Opp. at 2 and 5). This lack of evidence does not overcome the First Amendment protections against prior restraints upon broadcasters as discussed above. As Defendant argues, to the contrary, Plaintiff admits that during his call, (1) he spoke for several minutes with the call screener ...; (2) he was put on the air with the show host. . . ; (3) he engaged the host in a discussion of whether the host should be entitled to screen out a caller based on his stated age, hoping the host would respond, which he did. . . . Plaintiff has not made a prima facie showing that he was treated any differently than any other caller, such that he was denied equal accommodations under the Unruh Act. Therefore, this act cannot be applied to impose upon broadcasters a viewpoint unwanted in their message to targeted audiences. [][]... [