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Here we consider a question regarding California’s Unruh

Civil Rights Act (Civ. Code, § 51 et seq.) (the Act) posed by the

United States Court of Appeals for the Ninth Circuit: Does a

plaintiff have 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 the plaintiff full and equal access to its

services, and then leaves the website without entering into an

agreement with the service provider? (See White v. Square,

Inc. (9th Cir. 2018) 891 F.3d 1174, 1175; Cal. Rules of Court,

rule 8.548, (a) & (f)(5).)

The answer is yes. When a plaintiff has visited a

business’s website with intent to use its services and alleges that

the business’s terms and conditions exclude him or her from full

and equal access to its services, the plaintiff need not enter into

an agreement with the business to establish standing under the

Unruh Civil Rights Act. In general, a person suffers

discrimination under the Act when the person presents himself

or herself to a business with an intent to use its services but

encounters an exclusionary policy or practice that prevents him

or her from using those services. We conclude that this rule

applies to online businesses and that visiting a website with

intent to use its services is, for purposes of standing, equivalent

to presenting oneself for services at a brick-and-mortar store.

Although mere awareness of a business’s discriminatory policy

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Opinion of the Court by Liu, J.

2

or practice is not enough for standing under the Act, entering

into an agreement with the business is not required. We express

no view on White’s occupational discrimination claims.

I.

Bankruptcy attorney Robert White sued Square, Inc.

(Square) in October 2015, alleging that Square’s seller

agreement discriminated against bankruptcy attorneys in

violation of the Unruh Civil Rights Act. Square offers an

internet service that allows individuals and merchants to

“ ‘accept electronic payments without themselves directly

opening up a merchant account with any Visa or MasterCard

member bank.’ ” (White v. Square, Inc., supra, 891 F.3d at

p. 1175.) Square does not charge its users any fee to register for

its services; instead, after a user has registered, Square collects

a percentage of every transaction as well as a flat fee for each

transaction. Square’s terms of service state that when a user

creates an account, the user must “ ‘confirm that you will not

accept payments in connection with the following businesses or

business activities: . . . (28) bankruptcy attorneys or collection

agencies engaged in the collection of debt.’ ” (Ibid.)

White’s second amended complaint alleges that he

“formed the strong, definite and specific intent” to sign up for

and use Square’s services. White familiarized himself with

Square’s seller agreement by reviewing a separate lawsuit filed

against Square by a bankruptcy law firm called shierkatz RLLP.

He then visited Square’s website on multiple occasions and

carefully reviewed its terms of service. He proceeded to the page

of Square’s website that allows a user to register for its services,

but he declined to click the button labeled “Continue.” Because

White intended to use Square’s services for his bankruptcy

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Opinion of the Court by Liu, J.

3

practice, he believed he could not sign the agreement without

committing fraud. In support of this belief, White cites a letter

from Square’s counsel to shierkatz RLLP in which Square stated

that “ ‘signing up for Square’s service with the intent to violate

the applicable terms of service would be fraudulent.’ ” (White,

supra, 891 F.3d at p. 1176, fn. 3.)

The district court dismissed White’s second amended

complaint with prejudice on the ground that he lacked standing

under the Unruh Civil Rights Act to sue Square. The district

court concluded that White had not attempted to use Square’s

services and only had “mere awareness” of its discriminatory

terms of service. White appealed to the United States Court of

Appeals for the Ninth Circuit, which then issued the

certification order at issue here. In the order, the Ninth Circuit

concluded that White’s allegations “satisfy Article III’s

requirements for a concrete and particularized injury” and that

he has met federal constitutional standing requirements.

(White, supra, 891 F.3d at p. 1177.)

II.

Standing rules for statutes must be viewed in light of the

intent of the Legislature and the purpose of the enactment.

(Midpeninsula Citizens for Fair Housing v. Westwood Investors

(1990) 221 Cal.App.3d 1377, 1385; Librers v. Black (2005) 129

Cal.App.4th 114, 124.) The Unruh Civil Rights Act provides:

“All persons within the jurisdiction of this state are free and

equal, and no matter what their sex, race, color, religion,

ancestry, national origin, disability, medical condition, genetic

information, marital status, sexual orientation, citizenship,

primary language, or immigration status are entitled to the full

and equal accommodations, advantages, facilities, privileges, or

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Opinion of the Court by Liu, J.

4

services in all business establishments of every kind

whatsoever.” (Civ. Code, § 51, subd. (b); all undesignated

statutory references are to this code.) Section 52, subdivision (a)

provides: “Whoever denies, aids or incites a denial, or makes

any discrimination or distinction contrary to Section 51 . . . is

liable for each and every offense for the actual damages, and any

amount that may be determined by a jury, or a court sitting

without a jury, up to a maximum of three times the amount of

actual damage but in no case less than four thousand dollars

($4,000), and any attorney’s fees that may be determined by the

court in addition thereto, suffered by any person denied the

rights provided in Section 51 . . . .” And section 52,

subdivision (c)(3) authorizes “any person aggrieved by” conduct

of resistance to the full enjoyment of any of the rights described

in this section to request “preventive relief, including an

application for a permanent or temporary injunction,

restraining order, or other order . . . as the complainant deems

necessary to ensure the full enjoyment of the rights described in

this section.”

The purpose of the Act is to create and preserve “a

nondiscriminatory environment in California business

establishments by ‘banishing’ or ‘eradicating’ arbitrary,

invidious discrimination by such establishments.” (Angelucci v.

Century Supper Club (2007) 41 Cal.4th 160, 167 (Angelucci),

citing Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d

72, 75–76.) “The Act stands as a bulwark protecting each

person’s inherent right to ‘full and equal’ access to ‘all business

establishments.’ (§ 51, subd. (b); see Isbister, supra, 40 Cal.3d

at p. 75.)” (Angelucci, at p. 167.) In enforcing the Act, courts

must consider its broad remedial purpose and overarching goal

of deterring discriminatory practices by businesses. (Ibid.; see

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Opinion of the Court by Liu, J.

5

Isbister, at p. 75.) We have consistently held that “the Act must

be construed liberally in order to carry out its purpose.”

(Angelucci, at p. 167; see Koire v. Metro Car Wash (1985) 40

Cal.3d 24, 28 (Koire).)

In light of its broad preventive and remedial purposes,

courts have recognized that “[s]tanding under the Unruh Civil

Rights Act is broad.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th

1118, 1127 (Osborne).) At the same time, we have acknowledged

that “ ‘a plaintiff cannot sue for discrimination in the abstract,

but must actually suffer the discriminatory conduct.’ ”

(Angelucci, supra, 41 Cal.4th at p. 175.) “In essence, an

individual plaintiff has standing under the Act if he or she has

been the victim of the defendant’s discriminatory act.” (Ibid.

[“plaintiff must be able to allege injury — that is, some ‘invasion

of the plaintiff’s legally protected interests’ ”].)

III.

Our cases addressing related issues under the Unruh Civil

Rights Act have involved brick-and-mortar establishments, not

online businesses, and those cases make clear that a plaintiff

who has transacted with a defendant and who has been subject

to discrimination has standing under the Act. (See, e.g.,

Angelucci, supra, 41 Cal.4th at pp. 175–176.) The question here

is whether standing under the Act extends to a plaintiff who

intends to transact, but has not yet transacted, with an online

business.

In Koire, a male plaintiff visited several “car washes on

‘Ladies’ Day’ and asked to be charged the same discount prices

as were offered to females. These businesses refused his

request.” (Koire, supra, 40 Cal.3d at p. 27, fn. omitted.) Also, in

response to a radio advertisement by a nightclub offering free

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Opinion of the Court by Liu, J.

6

admission to “ ‘girls’ aged 18 to 21,” the plaintiff “went to [the

nightclub] and requested free admission which was refused.”

(Ibid.) The plaintiff filed suit under the Unruh Civil Rights Act,

and the defendants argued that the Act, while prohibiting

discriminatory exclusion of patrons from business

establishments, does not extend to price discrimination. We

held that “[t]he Act’s proscription is broad enough to include

within its scope discrimination in the form of sex-based price

discounts.” (Koire, at p. 30.) There was no clear indication that

the plaintiff, beyond requesting the price discounts, had actually

paid a discriminatory price, and in any event, our opinion did

not say such payment was required for standing.

In Angelucci, four men sued a private club under the

Unruh Civil Rights Act for charging them higher admission fees

than it charged to women. (Angelucci, supra, 41 Cal.4th at

pp. 164–165.) The plaintiffs had “patronized the club on several

occasions” and had paid higher fees based on their gender. (Id.

at p. 165.) The club sought dismissal on the ground that the

plaintiffs “had not alleged they had asked the club to be charged

at the same rate as female patrons.” (Ibid.) We held that

nothing in the text of the Act requires that “before a legal action

may be filed, the victim of the asserted discrimination must

have demanded equal treatment and have been refused.”

(Angelucci, at p. 168.) 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.” (Id. at p. 169.) We declined to read the Act in a

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Opinion of the Court by Liu, J.

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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.” (Angelucci, at p. 169.) We also observed that 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 (for

example, persons encountering, as they did in past decades,

racially segregated drinking fountains or restroom facilities at

an unattended structure).” (Angelucci, at p. 170.) The plaintiffs

had standing, we concluded, because each of them “was

subjected to, and paid, defendant’s gender-based price

differential.” (Id. at pp. 175–176; see id. at p. 170 [“each

plaintiff presented himself for admittance, paid the price of

admission, and entered the establishment”].)

Thus, Koire involved a plaintiff who presented himself for

admittance and requested equal treatment (without paying the

discriminatory price), and Angelucci involved plaintiffs who

presented themselves for admittance and paid the

discriminatory price (without requesting equal treatment).

Angelucci confirmed that the facts in both contexts were

sufficient for standing under the Unruh Civil Rights Act.

(Angelucci, supra, 41 Cal.4th at pp. 168–170, 173–175.) As

noted, we further acknowledged that “ ‘a plaintiff cannot sue for

discrimination in the abstract, but must actually suffer the

discriminatory conduct.’ ” (Id. at p. 175.) Beyond that, our

opinion in Angelucci expressed no view on the irreducible

minimum required for standing.

The case before us involves a plaintiff who neither paid a

fee nor requested equal treatment before leaving the business

establishment — in this case, a website, not a brick-and-mortar

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Opinion of the Court by Liu, J.

8

vendor. White contends that his interaction with Square is

analogous to a plaintiff who intends to patronize a brick-andmortar

shop but, upon his attempted entry, sees a sign

indicating that the business does not offer services to

individuals based on a protected category of which he is a

member. According to White, websites and apps on mobile

devices are akin to “shopping malls” or other physical

storefronts, and that visiting a website with the intention to use

its services is equivalent to visiting a brick-and-mortar store

with the same intention. Square, by contrast, contends that

White is a plaintiff with “mere knowledge” of a business’s

allegedly discriminatory practice and is no different than any

person who hears of discriminatory practices from a news article

or through word of mouth.

In resolving this issue, we begin by observing that 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. White does not allege that he merely heard or read

about Square’s discriminatory policy; he makes specific

allegations detailing his repeated visits to Square’s webpage

and his examination of its terms and conditions of service. Thus,

although we agree with Square that mere awareness of a

business’s discriminatory policy or practices is not enough for

standing, White has alleged more than mere awareness here.

In addition, White alleges that he visited Square’s website

and reviewed its terms of service with the specific intention to

sign up for Square’s services and to use them in his bankruptcy

law practice. Angelucci does not squarely address whether this

is sufficient to establish standing, but our reasoning is

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Opinion of the Court by Liu, J.

9

suggestive. We made clear that standing under the Unruh Civil

Rights Act extends to “persons encountering, as they did in past

decades, racially segregated drinking fountains or restroom

facilities at an unattended structure” — occasions “when there

was no one present to receive and answer a demand for equal

treatment.” (Angelucci, supra, 41 Cal.4th at p. 170.) The Act

does not require a black plaintiff in that situation to make use

of the blacks-only facility (or make use of the whites-only facility

in violation of the segregation policy) in order to have standing.

It is sufficient for a plaintiff to “encounter[]” (Angelucci, at

p. 170) an unattended facility with the intent to use it. There is

no doubt that such a plaintiff, even if he or she departed without

using the facility, could properly claim he or she was “denied

[equal] rights” and was “aggrieved by the [discriminatory]

conduct.” (§ 52, subd. (a), (c).)

The same rule would apply in the case of a person who

visited and intended to patronize an unattended establishment

generally open to the public (e.g., a self-serve kiosk) but then

encountered a sign prohibiting access on the basis of the

person’s membership in a protected category. In such

circumstances, the person would not need to violate or attempt

to violate the stated exclusionary policy before bringing a claim.

The high court, adopting a similar rule under title VII of the

Civil Rights Act of 1964, explained: “If an employer should

announce his policy of discrimination by a sign reading ‘Whites

Only’ on the hiring-office door, his victims would not be limited

to the few who ignored the sign and subjected themselves to

personal rebuffs. . . . When a person’s desire for a job is not

translated into a formal application solely because of his

unwillingness to engage in a futile gesture he is as much a

victim of discrimination as is he who goes through the motions

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Opinion of the Court by Liu, J.

10

of submitting an application.” (Teamsters v. United States

(1977) 431 U.S. 324, 365–366.)

Square notes that Angelucci said “Koire determined that

injury occurs when the discriminatory policy is applied to the

plaintiff — that is, at the time the plaintiff patronizes the

business establishment, tendering the nondiscounted price of

admission.” (Angelucci, supra, 41 Cal.4th at p. 175.) In

addition, Square relies on Surrey v. TrueBeginnings, LLC (2008)

168 Cal.App.4th 414 (Surrey), which appears to be the only

appellate case to examine Unruh Civil Rights Act standing in

the context of an online business. Surrey involved a

matchmaking website that “offer[ed] certain free services to

women who joined.” (Id. at p. 417.) The plaintiff, Steven Surrey,

“visited TrueBeginnings’s Web site with the intent of utilizing

its services; after discovering the discrepancy in its charges, he

did not, however, subscribe to or pay for its services.” (Ibid.)

The Court of Appeal held that the plaintiff lacked standing to

claim gender discrimination under the Act: “Because he did not

attempt to or actually subscribe to TrueBeginnings’s services,

Surrey did not suffer discrimination in any sense other than ‘in

the abstract.’ ” (Surrey, at p. 420.) “The mere fact that Surrey

became aware TrueBeginnings was offering a discount policy for

women subscribers at the time he accessed its Web site did not

constitute a denial of his antidiscrimination rights under those

statutes. Since Surrey did not attempt to subscribe to

TrueBeginnings’s services, his interest in preventing

discrimination is arguably no greater than the interest of the

public at large.” (Id. at pp. 418–419.) According to Square, just

as a plaintiff must “tender the purchase price” in order to

challenge discriminatory pricing (id. at p. 416), a plaintiff must

show “he patronized the defendant’s business by subscribing to,

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Opinion of the Court by Liu, J.

11

or signing up for, its service, or by engaging in some other

transaction making the [terms of service] applicable to him” in

order to challenge discriminatory exclusion.

The Court of Appeal in Osborne declined to follow Surrey’s

“bright-line rule” that “ ‘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.’ ”

(Osborne, supra, 1 Cal.App.5th at p. 1133, quoting Surrey,

supra, 168 Cal.App.4th at p. 416.) In Osborne, plaintiff John

Flowers alleged he visited the defendants’ hotel and was refused

a room because he was a disabled person who used a licensed

service dog. (Osborne, at p. 1123.) According to his complaint,

the defendants insisted that he pay a $300 cleaning fee on top of

the regular room fee of $80 charged to the general public. (Ibid.)

Flowers did not pay or offer to pay the fee, and he sued under

the Unruh Civil Rights Act. The Court of Appeal, upon

reviewing the case law, concluded that “[t]he application of

section 51 has not historically turned on whether a plaintiff has

paid a fee, or, as Surrey stated, ‘tender[ed] the purchase price

for a business’s services or products.’ ” (Osborne, at p. 1128.)

Instead, Osborne explained, “[w]hen a person presents himself

or herself to a business establishment, and is personally

discriminated against based on one of the characteristics

articulated in section 51, he or she has suffered a discriminatory

act and therefore has standing under the Unruh Civil Rights

Act. . . . [¶] . . . The cases discussing discrimination

under sections 51 and 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 sections 51 and 52 involve plaintiffs who — like

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Opinion of the Court by Liu, J.

12

Flowers and his family — were refused services, thereby making

a purchase impossible. To hold that plaintiffs here lacked

standing would contradict both the language and the intent of

the Unruh Civil Rights Act.” (Id. at pp. 1133–1134.)

We believe Osborne states the better view. As noted, our

opinion in Koire contained no indication that the plaintiff had

tendered payment for the discriminatory prices of which he

complained. (See Osborne, supra, 1 Cal.App.5th at p. 1132

[discussing Koire].) And Angelucci recognized that a plaintiff

“encountering” unattended segregated facilities would have

standing to sue; the plaintiff need not have made a request for

equal treatment or actually used the facilities. (Angelucci,

supra, 41 Cal.4th at p. 170.) Like the plaintiff Flowers in

Osborne, White visited a business establishment with the intent

to use its services. The Osborne court required no further step

of entering into a transaction with the business, and none is

required here as well.

Square contends that because its restriction “applies not

to people, but to transactions,” White “could subscribe, become

a patron, and stop short of undertaking the transactions

specifically prohibited by the Seller Agreement. This is not a

case, then, where the allegedly discriminatory conduct actually

barred the plaintiff from signing up.” But according to White’s

complaint, he believed that signing up for Square’s services with

the intention of using it in his bankruptcy practice would have

resulted in “discriminatory termination” by Square and would

have caused him additional injury resulting from damage to his

“professional reputation and commercial credit.” The letter

from Square’s counsel to shierkatz RLLP that White cites also

indicated that subscription to Square’s services under these

conditions “would be fraudulent.” It is not clear how White could

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Opinion of the Court by Liu, J.

13

have subscribed to Square’s services in the circumstances here.

In essence, what White alleges is that because of the

discriminatory policy stated in Square’s terms of service, he was

“refused services, thereby making a [subscription] impossible.”

(Osborne, supra, 1 Cal.App.5th at p. 1134.)

Nor do we find persuasive Square’s argument that because

White did not sign up, he was not actually subject to Square’s

terms of service and therefore suffered no actual or personal

injury from any alleged discrimination. This contention takes

too narrow a view of the harms that the Unruh Civil Rights Act

is intended to deter and remedy. White elucidates this point

with the following hypothetical: “Suppose an African-American

person approaches a brick-and-mortar furniture store,

intending to buy a bed, and sees a sign in the window that says,

‘We sell on credit. (Black people must pay cash.)’ The person

declines to enter the store. Does that person have standing? Yes

. . . . And if this person instead goes to the store’s website with

exactly the same intent, faces exactly the same restriction, and

declines to agree to the discriminatory term . . . , there is no

reason why the result should differ. Square would require this

plaintiff to enter the bricks-and-mortar store, enter into a

contractual relationship with the owner, and then endure the

further humiliation of denial of credit — or to sign up on the

defendant’s website and face the same rebuff when she later

asks for credit. Neither the deterrent nor the compensatory

purposes of the Unruh Act would be served by such

requirements. Indeed, both would be undermined.”

Square further contends that if a plaintiff has not signed

up for its services, then in order to have standing “the plaintiff

must show that the defendant applied its discriminatory policy

on a particular occasion to prevent him personally from

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Opinion of the Court by Liu, J.

14

becoming a patron in the first place.” But an individual who

intends to take a drink at a shopping mall and leaves upon

encountering unattended segregated fountains, like the

customer who walks away from the furniture store in White’s

hypothetical above, has personally experienced the application

of a discriminatory policy. Similarly here, White alleges he was

effectively refused service by Square upon visiting its website

with the intent of subscribing and then encountering its

allegedly discriminatory terms of service. Our reasoning in

Angelucci makes clear that in order to have standing, White did

not need to contact Square to ask for an exception to the stated

restriction or to verify that the restriction applied to him.

(Angelucci, supra, 41 Cal.4th at p. 170.) 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.

Finally, Square argues that allowing White to proceed

would “radically expand the universe of ‘aggrieved’ persons” and

lead to class actions that include “lead plaintiffs and absent

class members who did not actually suffer any personal denial

of equal rights.” In Angelucci, we rejected a similar argument

concerning abusive litigation, boundless statutory damages, and

extortionate settlements. (Angelucci, supra, 41 Cal.4th at

p. 178.) While sharing these concerns “to some degree,” we said

they “do not supply a justification for our inserting additional

elements of proof into the cause of action defined by the statute.

It is for the Legislature (or the People through the initiative

process) to determine whether to alter the statutory elements of

proof to afford business establishments protection against

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Opinion of the Court by Liu, J.

15

abusive private legal actions and settlement tactics. It is for the

Legislature, too, to consider whether limitations on the current

statutory private cause of action might unduly weaken

enforcement of the Act or place unwarranted barriers in the way

of those persons who suffer discrimination and whose interests

were intended to be served by the Act.” (Id. at p. 179.) We also

discussed equitable defenses and constitutional limitations on

statutory penalties as important safeguards. (Id. at pp. 179–

180.)

Under the rule proposed here, an individual bringing an

Unruh Civil Rights Act 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. Square’s

alternative rule, which in this case may have required White to

risk committing fraud before being able to bring a claim, would

not adequately serve the Act’s broad purpose of eradicating

discriminatory business practices.

In concluding that White has sufficiently alleged injury for

Unruh Civil Rights Act standing, our opinion does not preclude

Square from disputing White’s factual allegations. Square may

argue in a motion for summary judgment or at trial that White

did not actually possess a bona fide intent to sign up for or use

its services. Our standing analysis is limited to the pleadings,

in which White unequivocally alleges his intention to use

Square’s services. Nor do we express any view on whether a

defendant violates the Act by discriminating on the basis of

occupation or on White’s adequacy as a representative for a class

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Opinion of the Court by Liu, J.

16

of bankruptcy attorneys excluded from Square’s services. The

question of an individual plaintiff’s standing under the Unruh

Civil Rights Act is distinct from the question of that plaintiff’s

ability to serve as a representative for a class of allegedly

aggrieved individuals. (See Angelucci, supra, 41 Cal.4th at

pp. 170–171; Weaver v. Pasadena Tournament of Roses (1948)

32 Cal.2d 833, 839 [finding no actionable representative suit

where the plaintiff sought to represent all persons who stood in

line for tickets but could not buy one because the question as to

each individual plaintiff was whether he or she presented

himself or herself as a “ ‘sober, moral person’ ” and sought

admittance to the game].)

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 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.