Unruh Act Standing | Business Internet Website

This article discusses a plaintiff’s standing under the Unruh Act, and how it has evolved since 2008 – before the advent of the Apple iphone making online a common practice.  The two Unruh Act standings are:

  • Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414
  • White v. Square, Inc. (2019) 7 Cal. 5th 1019


California Supreme Court recently held in White v. Square, Inc. (2019) that a plaintiff has standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny full and equal access to its services, and the plaintiff leaves the website without entering into an agreement with the business.


California Supreme Court’s Holding: “We conclude that a person who visits a business’s website with intent to use its services and encounters terms or conditions that exclude the person from full and equal access to its services has standing under the Unruh Civil Rights Act, with no further requirement that the person enter into an agreement [*1033] or transaction with the business. We disapprove Surrey v. TrueBeginnings, LLC, supra, 168 Cal.App.4th 414, to the extent it is inconsistent with this opinion.


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Prior to August 12, 2019: Surrey v TrueBeginnings (superceded)

In Surrey v TrueBeginnings, Plaintiff sued defendant online matchmaking service, alleging that the service violated the Unruh Civil Rights Act, Civ. Code, § 51 et seq., and the Gender Tax Repeal Act of 1995, Civ. Code, § 51.6. The San Diego County Superior Court, California, granted the service’s motion for summary judgment. Plaintiff appealed. The appellate court held:

Justiciability, Standing

“A person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices relating thereto.”

Standing, Injury In Fact

“In general, a named plaintiff must have standing to prosecute an action. Code Civ. Proc., § 367. The existence of standing generally requires that the plaintiff be able to allege injury, i.e., an invasion of his or her legally protected interests. The focus of the standing inquiry is on the plaintiff, not on the issues he or she seeks to have determined; he or she must have a special interest that is greater than the interest of the public at large and that is concrete and actual rather than conjectural or hypothetical. The prerequisites for standing to assert statutorily-based causes of action are to be determined from the statutory language, as well as the underlying legislative intent and the purpose of the statute.”

“Civ. Code, § 52, subd. (a), bestows standing to sue only on those persons whose rights under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., or the Gender Tax Repeal Act of 1995, Civ. Code, § 51.6, have been denied.

“The cases interpreting the Unruh Civil Rights Act, Civ. Code, § 51 et seq., have consistently held that an individual plaintiff has standing to bring claims thereunder only if he or she has been the victim of the defendant’s discriminatory act.”

A plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.”


Protection of Rights, Public Facilities

“To further the legislative policy of eliminating improper discrimination by business establishments in California, Civ. Code, § 52, authorizes certain individuals to bring civil actions for violations of the Unruh Civil Rights Act, Civ. Code, § 51 et seq., or the Gender Tax Repeal Act of 1995, Civ. Code, § 51.6. 



Post August 12, 2019: White v. Square, Inc. (2019) 7 Cal. 5th 1019

In answer to a certified question from the United States Court of Appeals for the Ninth Circuit, a visitor to an online business sufficiently alleged injury for purposes of standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., by alleging that the visitor intended to use the services provided by the business, but was prevented from doing so by a discriminatory provision in its terms of service, because the visitor was not required to enter into an agreement with the business;

Although mere awareness of a discriminatory policy or practice was not enough for standing, a visit to a website went beyond mere awareness because it was akin to encountering an unattended facility and, as such, a visitor was not required to use or agree to use the facility, to pay or tender payment, or to object to a discriminatory restriction or ask for an exception from it.

The court states in relevant parts:

 

Standing rules for statutes must be viewed in light of the intent of the Legislature and the purpose of the enactment.

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The purpose of the Unruh Civil Rights Act, Civ. Code, § 51 et seq., is to create and preserve a nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments. The act stands as a bulwark protecting each person’s inherent right to full and equal access to all business establishments. § 51, subd. (b). In enforcing the act, courts must consider its broad remedial purpose and overarching goal of deterring discriminatory practices by businesses. The act must be construed liberally in order to carry out its purpose.

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In light of its broad preventive and remedial purposes, standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., is broad. A plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct. In essence, an individual plaintiff has standing under the act if he or she has been the victim of the defendant’s discriminatory act.

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A plaintiff who has transacted with a defendant and who has been subject to discrimination has standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq.

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Nothing in the text of the Unruh Civil Rights Act, Civ. Code, § 51 et seq., requires that before a legal action may be filed, the victim of the asserted discrimination must have demanded equal treatment and have been refused. Such a requirement would be inconsistent with the purpose of the act to eradicate or eliminate arbitrary, invidious discrimination in places of public accommodation. If businesses are held not to violate the act or inflict injury unless they are challenged by a patron, their ordinary practice may revert to discrimination, with special exceptions being made for individuals who happen to challenge the practice. The act cannot be read in a manner that would leave businesses free to discriminate so long as these establishments agree to provide equal treatment to those customers knowledgeable and assertive enough to demand it. The act must be understood to afford redress to persons discriminated against on an occasion when there was no one present to receive and answer a demand for equal treatment.

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When a person visits a business’s website and encounters a discriminatory provision in the business’s terms of service, that person has experienced an interaction distinct from merely learning about a business’s discriminatory policy or practices secondhand. Thus, although mere awareness of a business’s discriminatory policy or practices is not enough for standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., such a visitor alleges more than mere awareness.

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It is sufficient for a plaintiff under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., to encounter an unattended facility with the intent to use it. Such a plaintiff, even if he or she departs without using the facility, can properly claim he or she was denied equal rights and was aggrieved by discriminatory conduct. Civ. Code, § 52, subd. (a), (c). The rule applies in the case of a person who visits and intends to patronize an unattended establishment generally open to the public (e.g., a self-serve kiosk) but then encounters a sign prohibiting access on the basis of the person’s membership in a protected category. In such circumstances, the person does not need to violate or attempt to violate the stated exclusionary policy before bringing a claim.

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The application of Civ. Code, § 51, has not historically turned on whether a plaintiff has paid a fee, or tendered the purchase price for a business’s services or products. Instead, when a person presents himself or herself to a business establishment, and is personally discriminated against based on one of the characteristics articulated in § 51, he or she has suffered a discriminatory act and therefore has standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq. The cases discussing discrimination under Civ. Code, §§ 51, 52, do not focus on whether patrons who were personally discriminated against have alleged or proved that they paid a fee or were subject to unfair pricing before bringing a lawsuit. Indeed, much of the legal history surrounding §§ 51, 52, involves plaintiffs who were refused services, thereby making a purchase impossible. To hold that such plaintiffs lack standing would contradict both the language and the intent of the Unruh Civil Rights Act.

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In order to have standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., a person does not need to contact a business to ask for an exception to a stated restriction or to verify that the restriction applies to him. Such a requirement would limit a business’s liability only to individuals who inquire and would potentially enable a business to make exceptions to its stated policies in order to avoid suit, even as its stated policies deter the lion’s share of customers belonging to a protected group.

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An individual bringing an Unruh Civil Rights Act, Civ. Code, § 51 et seq., claim against an online business must allege, for purposes of standing, that he or she visited the business’s website, encountered discriminatory terms, and intended to make use of the business’s services. These requirements are sufficient to limit standing under the Unruh Civil Rights Act to persons with a concrete and actual interest that is not merely hypothetical or conjectural.

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A person who visits a business’s website with intent to use its services and encounters terms or conditions that exclude the person from full and equal access to its services has standing under the Unruh Civil Rights Act, Civ. Code, § 51 et seq., with no further requirement that the person enter into an agreement or transaction with the business. Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414 is disapproved to the extent inconsistent.

 
Subsequent Cases Followed and Citing White v Square

Thurston v. Midvale Corp. (September 3, 2019) 39 Cal. App. 5th 634

Holding. A restaurant’s website content violated the American with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12101 et seq., and the Unruh Civil Rights Act, Civ. Code, § 51 et seq., because it was not accessible to blind individuals using screen reader software.

Note. There are 10 subsequent cases all citing to White v Square