CACI 3062 Gender Price Discrimination—Essential Factual Elements (Civ. Code, § 51.6)

California Civil Jury Instructions CACI

3062 Gender Price Discrimination—Essential Factual Elements (Civ. Code, § 51.6)

[Name of plaintiff] claims that [name of defendant] charged [him/her/nonbinary pronoun] a higher price for services because of [his/her/nonbinary pronoun] gender. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] charged [name of plaintiff] more for services of similar or like kind because of [his/her/nonbinary pronoun] gender;

2.That [name of plaintiff] was harmed; and

3.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

It is not improper to charge a higher price for services if the price difference is based on the amount of time, difficulty, or cost of providing the services.

New September 2003; Renumbered from CACI No. 3022 December 2012; Revised June 2013, July 2018

Crowdsource Lawyers

Directions for Use

For an instruction on damages under Civil Code section 51.6, see CACI No. 3067, Unruh Civil Rights Act—Damages. Note that the jury may award a successful plaintiff up to three times actual damages but not less than $4,000. (Civ. Code, § 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general damages].)

It is possible that elements 2 and 3 are not needed if only the statutory minimum $4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is also governed by Civil Code section 52(a), the California Supreme Court has held that a violation is per se injurious, and that section 52 provides for minimum statutory damages for every violation regardless of the plaintiff’s actual damages. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195].)

The judge may decide the issue of whether the defendant is a business establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed if there are factual issues. This element has been omitted from the instruction because it is unlikely to go to a jury.

Price discrimination based on age has been held to violate the Unruh Act, at least if there is no statute-based policy supporting the differential. (See Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1146–1155 [228 Cal.Rptr.3d 336]; but see Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1402–1403 [195 Cal. Rptr. 3d 706].)

Sources and Authority

Gender Price Discrimination. Civil Code section 51.6.

“Section 51 by its express language applies only within California. It cannot (with its companion penalty provisions in § 52) be extended into the Hawaiian jurisdiction. A state cannot regulate or proscribe activities conducted in another state or supervise the internal affairs of another state in any way, even though the welfare or health of its citizens may be affected when they travel to that state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d 195].)

“ ‘[D]iscounts must be “applicable alike to persons of every sex, color, race, [and age, etc.]”, instead of being contingent on some arbitrary, class-based generalization.’ ” (Candeloresupra, 19 Cal.App.5th at p. 1154.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1002, 1003
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act, § 35.44 (Matthew Bender)