UPDATE: ADL Statement, miscellaneous corrections
Mitchell Cutler, the owner of La Fondue Restaurant in Saratoga, has won a judgement against Los Gatos Camera. Superior Court Judge Marc Poche ruled Feb. 8 that Los Gatos Camera discriminated against Mr. Cutler on August 11, 2005 when his business was refused. The judge permanently enjoined Los Gatos Camera from "denying any person full and equal accomodations, advantages, facilities, privileges or services on account of that person's religion or ancestry."
The judge ruled that Los Gatos Camera must pay Mr. Cutler the $4,000 prescribed by the Unruh Civil Rights statute (Ca. Civil Code 51), as well as attorney's fees and costs. The total judgement is $51,024.99.
"Mitchell Cutler's allegations show how bias--when left unchecked--can transform into bigotry," said Jonathan Bernstein of the Anti-Defamation League. "We applaud Mr. Cutler for taking a stand and successfully fighting this form of hatred right in his own [local area]."
David Muston, the owner of Los Gatos Camera for the past four years, feels he is the victim of a lawyer's trick. He believed that the case was without merit, because it was Muston himself who decided that Cutler should take his business elsewhere, and he knows he didn't do so based on Cutler's religion or ancestry.
"I told him I would take a bullet to defend him as a Jew," Mr. Muston explains, "but I will not honor terrorists." A poster in his office quotes former president Jimmy Carter: "We have become not a melting pot but a beautiful mosaic. Different people, different beliefs, different yearnings, different hopes, different dreams." Mr. Cutler denies having spoken directly with Mr. Muston.
Muston, a clear-eyed student of history beyond the comforting inaccuracies that societies tend to tell themselves, has formed independent opinions about why the world is what it is. His understanding of the violent history of pre-Israeli Palestine made him decide not to take Mr. Cutler's money.
Cutler's family photographs depicted groups of people, children, and other ordinary scenes. He wanted copies made for framing so as to honor his ancestors. He happened to mention to Mr. Muston's sales manager that some in the photographs fought in Israel and had to flee to France to avoid prosecution. Based on his knowledge of the Irgun Tsvai Leumi, a Zionist terrorist organization responsible for at least 250 murders before World War II, Mr. Muston concluded that Mr. Cutler was asking him to participate in the celebration of killers. Mr. Cutler felt that Mr. Muston's interpretation of his innocuous family photos masked an underlying anti-Semitism.
Mitch Cutler was inclined to let it go, but his wife, Tracey, who had had photographs of her Swedish ancestors processed at Los Gatos Camera without incident, was adamant. She convinced Mitch that Mr. Muston's attitude was wrong and on Sept. 21, 2005, he had his attorney, Los Gatan Alan Nudelman, file suit, which wound its way through the system during 2006.
Confident that he was within his rights to refuse service to Mr. Cutler, David Muston dismissed his attorney several months before the matter came to trial. Cutler said he was refused because he was Jewish, Muston said it was because the people in the photographs were terrorists, and Muston had a witness to his conversation with Cutler.
The legal maneuver that may have cost Mr. Muston the judgement occurred at 4 p.m. on the Friday before the Monday morning trial. Attorney Nudelman focused his complaint against Los Gatos Camera, removing Muston as a defendant. Before the judge on Monday, Jan. 22, Mr. Muston discovered that while he could represent himself, only an attorney could represent the company. With no one to argue his side of the case, Mr. Muston left the courtroom. He says he was escorted out.
"No appearance was made for defendant Los Gatos Camera, Inc.," wrote Judge Poche. "The plaintiff presented his proofs and good cause...to the satisfaction of the Court."
In an e-mail to Mr. Cutler and various others, including several news organizations, Mr. Muston predicted that this "temporary victory" would be easily overturned on appeal.
"The bottom line?" Mr. Muston told the Observer. "The next customer who wants to make a picture of anyone who committed violent acts of terrorism--I will tell them no. I do not honor terrorists."
"I believe I am very lucky to be able to afford to defend myself and seek justice from the courts," Mr. Cutler told the Observer. "I do not allow myself to be bullied by anyone." He intends to donate the entire fine to charity.
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