Class Action Defense Cases–Carlson v. California State Trial Court Certifies Class Action Against eHarmony Granting Class Action Treatment To Claims Of Homosexual And Bisexual People Denied Services Based On Sexual Orientation

Dec 4, 2008 | By: Michael J. Hassen

Discrimination Class Action Against Granted Class Action Status as to Claims by Gay, Lesbian and Bisexual People Denied Services on Basis of Sexual Orientation, but Class Action Treatment Denied as to Claims by Gay, Lesbian and Bisexual People who were “Deterred” from using eHarmony because of its Refusal to Serve Homosexual and Bisexual Individuals California State Trial Court Holds

Plaintiffs filed a class action against matchmaking website alleging discrimination under California state law for failing to serve people who are homosexual or bisexual; specifically, the class action complaint asserted that eHarmony’s policy violates California’s Unruh Civil Rights Act, Cal. Civ. Code, § 51 et seq., by denying equal treatment on the basis of sexual orientation. Carlson v., Los Angeles Superior Court Case No. BC371958 (November 19, 2008) [Slip Opn., at 2]. Plaintiffs moved the trial court to certify the litigation as a class action, defining the general class as all gay, lesbian and bisexual individuals who were denied services on the basis of sexual orientation. Id. Plaintiffs also sought class action treatment on behalf of two subclasses: (1) all gay, lesbian and bisexual people who tried to use eHarmony but were denied service (essentially tracking the definition of the general class), and (2) all gay, lesbian and bisexual people who were deterred from using eHarmony because of its refusal to provide service to homosexual and bisexual individuals. Id. Defense attorneys argued that class action treatment was not warranted because “the proposed class is not ascertainable and individual issues will predominate.” Id. The trial court granted plaintiffs’ motion and certified the lawsuit as a class action with respect to the general class and first subclass, but denied class action treatment to claims brought on behalf of people “deterred” from using eHarmony’s services. Id.

In addressing the ascertainability of the proposed class, the trial court noted that the class definition first limited membership to “gay, lesbian, and bisexual” people, and that “this part of the proposed class is ascertainable” because it falls within the class of people protected by the Unruh Act. Carlson, at 4. The further limitation in the proposed definition, restricting membership to individuals “who allegedly have been ‘denied’ services,” was also ascertainable because defense attorneys “acknowledge that does not offer same-sex matching services, which is the functional equivalent of denying such services to plaintiffs.” Id., at 5. As to Subclass 1, that group of individuals who “attempted” to use eHarmony’s services but could not was deemed ascertainable, id., at 6, but the group of individuals allegedly “deterred” from even attempting to use eHarmony’s services was not ascertainable because “[d]eterrence is inherently a subjective inquiry” and “individual facts would overwhelm common issues of fact and law,” id., at 6-7. Accordingly, Subclass 2 was not ascertainable, so the trial court refused to certify a class action on behalf of that proposed class. Id., at 7.

The trial court then turned to the issue of whether common questions of law and fact would predominate. See Carlson, at 8. In this regard, the trial court noted that of the 6 elements required to prove an Unruh claim, “three are based entirely on characteristics of the defendants,” and a fourth concerns the personal characteristics – here, the sexual orientation – of the individuals asserting discrimination. Id., at 8-9. The fifth and sixth inquiries – viz., whether the “alleged discrimination is permitted or preempted by another statute” and whether the “alleged discrimination is privileged under a constitutional right,” id., at 8 – present issues that do not turn on the individual characteristics of members of the proposed class, id., at 9. In sum, the trial court found that “[t]he majority of questions of law and fact are common to all proposed class members.” Id., at 10. The court found further that plaintiffs’ claims were typical of the claims of the class, see id., at 10-11. Finally, the trial court determined that a class action was a superior means of resolving the dispute. See id., at 12-16. Accordingly, the trial court granted plaintiff’s motion for class action certification of the general class and of Subclass 1. Id., at 16, 17.

NOTE: Plaintiffs also moved the trial court to bifurcate the trial on the liability and damages issues, see Carlson, at 2. The trial court granted that standard request. Id., at 16-17.

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