This case is really more about the Unruh Act than the UCL. In Candelore v. Tinder, Inc., ___ Cal.App.5th ___ (Jan. 29, 2018), the Court of Appeal (Second Appellate District, Division Three) held that because the complaint adequately alleged a violation of the Unruh Act (namely, age-based price discrimination), the complaint also stated a claim for violation of the UCL's "unlawful" prong. Slip op. at 20.
In addition, the complaint adequately alleged an "unfair" prong violation:
[I]n view of our conclusion that Tinder’s alleged discriminatory pricing model violates the public policy embodied in the Unruh Act, the UCL’s “unfair” prong provides an independent basis for relief on the facts alleged. The standard for finding an “unfair” practice in a consumer action is “ ‘intentionally broad, thus allowing courts maximum discretion to prohibit new schemes to defraud. [Citation.] The test of whether a business practice is unfair “involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim . . . . [Citations.]” . . . [A]n “unfair” business practice occurs when that practice “offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” [Citation.]’ ” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718-719; accord Ticconi v. Blue Shield of California Life & Health Ins. Co. (2008) 160 Cal.App.4th 528, 539.)
Slip op. at 20-21 (emphasis added). The Court applied the "balancing test" formulation of the "unfair" prong. See id.
Because I served as appellate counsel for the plaintiff and appellant in this case (along with co-counsel Al Rava), I happen to know that the parties did not contest that the "balancing test" applies. Hence, this case did not present an opportunity for the Court to consider or resolve the three-way split in authority on the proper formulation of "unfair" conduct. For more on the three-way split, see these blog posts.
As for the underlying Unruh Act claim, the San Francisco Chronicle reported yesterday that "Dating service cannot charge older folks more on belief they are wealthier." Earlier this month, Consumer Protection Law360 reported that "Tinder User Says Age Bias Suit Deserves Second Chance" (subscription).
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