Drive-By Discrimination

Court holds that liability under the Unruh Act is limited to actual business patrons

For more than two decades, the plaintiffs' bar has tried to stretch the Unruh Civil Rights Act past its breaking point. It has done this by arguing that the act not only provides a monetary remedy to those who patronize a business and suffer discrimination, but that it also entails the same remedy for those who wanted to patronize a business, but were "deterred" from doing so because they would suffer discrimination. We call the latter "drive-by" discrimination. Although the federal courts predicted that the California Supreme Court would endorse drive-by discrimination, the recent decision in Angelucci v. Century Supper Club proves them wrong. In Angelucci, the court holds that liability under the Unruh Act is limited to actual patrons of a business establishment.

Unruh's Rules

The stakes in the debate over the viability of drive-by discrimination claims are significant. California's Unruh Civil Rights Act (C.C.P. Section 52[a]) provides for an award of damages of no less than $4,000 for each and every offense against a business that "denies, aids or incites a denial, or makes any discrimination" by providing less than full and equal services based on "sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation." (This list is illustrative, but not exhaustive. See, for example, Koire v. Metro Car Wash, 40 Cal.3d 24, 28 [1985]; Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 725 [1982]; In re Cox, 3 Cal.3d 205, 216 [1970].) When Unruh Act claims are combined with a request for class relief, or claims under the Unfair Competition Law (Bus. & Prof. Code section 17200) or Consumer Legal Remedies Act (Civ. Code section 1750), drive-by discrimination claims can double or triple (perhaps even more) a business's potential liability.

Decisions from the 9th Circuit and Northern District predicted that California courts would embrace deterrence-based claims and hold that drive-by discrimination was a viable theory of relief under the Unruh Act. See Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (where an establishment's lack of handicapped parking, which deterred a disabled plaintiff from patronizing it, was a sufficient denial of rights for the plaintiff to bring a claim under the Unruh Act); Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) (holding...