Tiley vs. Mercury General Corp.

3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

4. The proposed sealing is narrowly tailored; and

5. No less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, rule 2.550(d).)

The sole overriding interest identified by Plaintiff is the parties’ agreement to keep the individual settlement amount confidential. But “mere agreement of the parties alone is insufficient to constitute an overriding interest to justify sealing.” (McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 36.) Rather, the agreement must be coupled with “a specific showing of serious injury.” (Id., at p. 35.) Here, Plaintiff identifies no injury at all in his papers, let alone a specific, serious one. Because Plaintiff has not demonstrated the existence of an overriding interest that overcomes the right of public access to the record, the motion to seal is denied.

11 Tiley vs. Mercury Defendant's Demurrer to Amended Complaint General Corp. Defendant Mercury General Corp.’s demurrer to the first amended 2025-01521888 complaint (FAC) of Plaintiff Catherine Tiley is OVERRULED. Mercury shall file its answer by July 13, 2026.

I. Brief Background

This is an age discrimination lawsuit brought on behalf of a putative class. As alleged in the FAC, Tiley is a 65-year-old Facebook user interested in exploring new insurance policies and opportunities. She asserts that Facebook collects detailed biographical information on its users, including their ages. She alleges that Facebook’s advertising platform allows its advertising clients, such as Mercury, to use this biographical information to target users, ensuring that only the potential customers the advertiser wishes to target see an ad.

She alleges that Mercury offered its ads only to persons between the age of 25 and 54, which excluded older customers like her. She claims that her age-based non-receipt of Mercury’s advertising denied her the chance to learn about the insurance products Mercury offered. Finally, she alleges that Facebook has discriminated on the basis of age, and Mercury has aided and abetted Facebook. Based on these allegations, she brings claims for age discrimination under the Unruh Act

(Civ. Code § 51) and under Civ. Code § 51.5.

II.

Discussion

Mercury demurs to both causes of action. It advances three arguments: Tiley lacks standing, Tiley’s claims fail on the merits insofar as they are based on Mercury’s direct liability, and Tiley’s claims fail on the merits insofar as they are based on aiding and abetting.

The same analysis applies to both the Unruh Act and § 51.5, so there is no need for the Court to evaluate them separately. (See Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 920 fn. 5.)

A. Standing

“In light of its broad preventive and remedial purposes, courts have recognized that ‘[s]tanding under the Unruh Civil Rights Act is broad.’” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025.) “[O]nly plaintiffs who have transacted with a defendant and have been subject to discrimination have standing under the Unruh Civil Rights Act.” (Liapes, supra, 95 Cal.App.5th at pp. 920-921.) “[M]ere awareness of a business’s discriminatory policy or practice is not enough for standing under the Act.” (White, supra, 7 Cal.5th at p. 1023.)

White was the first major case to consider how Unruh Act standing applies in the online context, as opposed to the brick-and-mortar context. A bankruptcy attorney alleged that Square, an online payment processor, discriminated against bankruptcy attorneys because its terms of service provided that Square couldn’t be used by bankruptcy attorneys. The attorney formed a specific intent to sign up for and use Square’s services, visited Square’s website, read the terms of service, and declined to click “continue.” The trial court found the attorney lacked Unruh Act standing because he hadn’t attempted to transact business with Square.

The California Supreme Court reversed. Analogizing to brick-and-mortar stores, it explained that Square’s website was the equivalent of an online storefront. As explained by the Supreme Court, if a Black person walked up to a physical storefront intending to purchase furniture, saw a sign that said

“We sell on credit (Black people must pay cash),” and walked away, that person would have standing to sue under the Unruh Act even though he or she hadn’t endured the hardship of actually entering the store and being denied credit. (Id., at pp. 1030-1031.) Accordingly, “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.” (Id., at p. 1032.)

Here, Tiley doesn’t allege she ever visited Mercury’s website. Rather, she alleges the nature and extent of Mercury’s presence on Facebook means Facebook is also an online storefront for Mercury. The FAC contains detailed allegations about Mercury’s use of Facebook. (FAC ¶¶ 14-18, 74-77.) Mercury rejects this argument. It contends the alleged non-receipt of advertisements occurred on Plaintiff’s Facebook feed, well before any Mercury access point, and that descriptions of Mercury’s Facebook presence as an online storefront are mere legal conclusions.

Tiley has the better argument, at least for purposes of demurrer. Whether Mercury’s Facebook presence is so extensive as to constitute an online storefront is a factual question about the extent of Mercury’s Facebook presence. Assuming all facts alleged in the FAC are true, it doesn’t follow that as a matter of law, Mercury’s Facebook presence isn’t an online storefront.

Mercury apparently believes White holds that only a company website is an online storefront. The Court is skeptical of this argument. Consider a company that sells products online, but only through Amazon’s website. Why wouldn’t the company’s Amazon store be its online storefront, even though the website belongs to Amazon?

In short, Tiley has adequately pled that Facebook is an online storefront for Mercury. Under White, she must also plead that (1) she intended to use Mercury’s services and (2) encountered discrimination in attempting to use those services. The first element doesn’t appear to be disputed. Mercury strenuously disputes the second. It argues Tiley simply alleges that Mercury used Facebook’s advertising tools to select audience parameters, after which Facebook delivered advertisements through its platform. Perhaps these allegations are enough to state a claim against Facebook, Mercury argues, but they do not “establish that Tiley presented to Mercury, transacted with Mercury, or was denied any Mercury provided service, advantage, or privilege.” (Reply at p. 8.)

Liapes is instructive. Mercury frames Liapes as a case about Facebook’s direct liability. This is partially true, but the plaintiff in Liapes also alleged that Facebook’s publishing of age-targeted insurance advertisements on its platform meant Facebook was liable for aiding and abetting the insurers’ Unruh Act violations. A person is liable for aiding and abetting another person’s Unruh Act violation if the first person knows the second person’s conduct violates the Unruh Act and gives substantial assistance to the second person in that conduct. (Liapes, supra, 95 Cal.App.5th at p. 926.)

The appellate court held the plaintiff had pled an aiding-and-abetting claim against Facebook: “The complaint satisfied these elements. It adequately alleged Facebook knew insurance advertisers intentionally targeted its ads based on users’ ages and gender—as explained above, a violation of the Unruh Civil Rights Act.” (Ibid. (emphasis added).)

The insurers’ alleged violation of the Unruh Act was “intentionally target[ing] . . . ads based on users’ ages and gender.” Logically, for this to be a potential violation of the Unruh Act by the insurers, their advertisements must be a service, advantage, or privilege of the insurers. As a result, Tiley has adequately pled that she was denied a Mercury-provided service, advantage or privilege.

B. Merits

Mercury argues Tiley’s direct liability allegations fail because she has failed to allege denial of a Mercury-provided service, advantage, or privilege. For the reasons discussed above, Tiley has adequately alleged such a denial. The direct liability allegations are sufficient to survive demurrer.

Because Tiley’s claims are based on both direct liability and aiding-and- abetting liability, and because the direct liability allegations survive demurrer, there is no need to consider the aiding-and-abetting allegations. A demurrer does not lie to a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

12 Hagey vs. Solar Plaintiff's Motion for Final Approval and Motion for Attorney Service Experts, LLC Fees d/b/a Enery Service Experts Plaintiff’s motion for final approval of class action settlement is GRANTED. The Court awards the following distributions from the gross settlement amount: