CACI No. 3062. Gender Price Discrimination - Essential Factual Elements (Civ. Code, § 51.6)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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
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,
325
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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.’ ” (Candelore,supra, 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)
CACI No. 3062 CIVIL RIGHTS
326

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