Allison v. Love Boutique-Vista CA4/1

Filed 3/28/22 Allison v. Love Boutique-Vista CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or or dered published f or
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RICH ALLISON, D078445

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2020-
00001260-CU-CR-NC)
LOVE BOUTIQUE-VISTA, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
Earl H. Maas, III, Judge. Affirmed.
The Rava Law Firm and Alfred G. Rava for Plaintiff and Appellant.
Fox Rothschild, John J. Shaeffer and Andrew W. Russell for Defendant
and Respondent.

INTRODUCTION

Rich Allison brought an action under Civil Code section 51, 1 the Unruh
Civil Rights Act (Unruh Act or the Act), and section 51.5, after an adult store

1 Unspecified statutory references are to the Civil Code.
denied him entry into its four-hour “Ladies Night” event because the event,
which involved educating women about intimate sexual products, was
restricted to women. The trial court sustained the adult store’s demurrer and
dismissed the complaint. We conclude the trial court properly determined,
based on the facts contained in the complaint and the materials attached to
the complaint, that the adult store’s decision to limit attendance of the Ladies
Night event to women did not violate the Unruh Act.
BACKGROUND
I.

Factual Background2
At all relevant times, Love Boutique-Vista, LLC d/b/a Déjà Vu Love
Boutique (Love Boutique) was the owner and operator of an adult store in
Vista, California. In the ordinary course of its business, Love Boutique
“welcomed adults of all sexes” and “displayed, demonstrated, and sold sex
toys, BDSM (Bondage, Discipline, Sadism, and Masochism) devices,
pornographic videos, condoms, and lingerie to all adults no matter their sex.”
However, on January 20, 2019, between 6:00 p.m. and 10:00 p.m., Love
Boutique held a women-only “Ladies Night 2019” event. It charged $25 for
attendance, for which the purchaser in return received a ticket to enter the
event and a $25 gift card. The first 50 women to purchase tickets also
received a free “goodie bag.”
Love Boutique publicized the event on its website, where it stated the
event was for “ ‘Ladies 21+ ONLY,’ ” and explained, “ ‘This isn’t just a night
for women with significant others though, it’s also a great time for single

2 Our recitation of the facts is derived from Plaintiff’s complaint.

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women that are looking for a night out and learning more about finding their
perfect toy/toys, lubes, and lingerie!’ ”
Love Boutique also publicized the Ladies Night event on its “Facebook
website.” Attached as “Exhibit 1” to the complaint were 17 pages of content
from Love Boutique’s “Facebook website” relating to the “Ladies Night 2019”
event. Many of these posts contained a graphic with text that said, “LADIES
NIGHT,” “21+ [¶] LADIES ONLY,” gave the date and time of the event, and
provided information about the cost of tickets, the fact that a gift card was
included with the purchase of a ticket, and the possibility of receiving a gift
bag.
One Facebook post dated December 11, 2018, also stated, in part,
“Every year we hold a Ladies Only Night where we invite several of our
favorite toy & lingerie companies to join us for a night of fun and education!
Mostly fun but you will also learn how to set up the perfect Valentines Day
for you and your lover!” Another post dated December 27 stated, in part, “If
you don’t know, Ladies’ Night is our annual event where we close down the
store and open the door to ladies only; with food drinks, games, and lots of
amazing prizes!”
Three of the Facebook posts relating to the Ladies Night 2019 event
were introduced with the statement, “Ladies’ Night vendor announcement!”
The vendor announcements included images of the vendors’ products. One
such “vendor announcement” stated that the maker of an “ever popular
[brand name sexual device], and many of your favorite dildos, will be joining
us on January 20th to share their best-selling products with you!” Another
“vendor announcement” stated that a vendor of another sexual device would
be attending the event, and stated, “Stop by Vanessa’s table so she can tell
you all about this amazing, app-enabled toy that’ll create a powerful

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connection between you and your lover for nights to come[.]” A third “vendor
announcement” stated that a seller of a “premium . . . clitoral . . . toy” would
be “joining us on January 20th to share” its product “with you.”
Also within Exhibit 1 was a January 21 Facebook post that stated,
“HUGE thank you to all of our incredible reps for coming out to Ladies’ Night
2019 and making the night one to remember!” Underneath this date and
statement were photos of individuals standing next to tables on which
various items and photos of models in lingerie were displayed.
Allison alleges that after visiting Love Boutique’s website and Love
Boutique’s “Facebook website pages,” and “encounter[ing]” exclusionary
“terms,” he went to Love Boutique to try to attend the Ladies Night 2019
event. While the event was in progress, he and three male companions went
to the entrance of the store. They were met by a female employee or agent of
Love Boutique. They told her they wanted to attend the Ladies Night 2019
event, and they offered to purchase tickets. The employee or agent told
Allison and his male companions they could not enter the store and attend
the event “because they were men,” and Love Boutique “was allowing only
women to enter [Love Boutique]’s Ladies Night 2019.” Another female
employee or agent of Love Boutique told Allison he was welcome to return on
another night.
After Allison and his male companions were turned away from the
Ladies Night 2019 event, “a woman and a female friend” were allowed to buy
tickets and enter. Allison and his male companions also “observed several
heterosexual couples attempt to enter the Ladies Night 2019 event and then
walk away because [Love Boutique] prohibited the men in those heterosexual
couples from attending the event.”

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 II.
Procedural Background
On January 9, 2020, Allison filed a putative class action lawsuit

against Love Boutique on behalf of himself and all others similarly situated. 3
He alleged, on information and belief, that in addition to the “Ladies Night
2019” event held on January 20, 2019, Love Boutique had also hosted
similarly advertised, “no-men-allowed” events in January 2018 and January
2017. He further alleged that Love Boutique’s annual Ladies Night event
“marginalized males and non-binary persons and caused discontent,
animosity, harm, resentment, or envy among the sexes, [and] constituted
arbitrary, unreasonable, and/or invidious discrimination[.]” He asserted

causes of action against Love Boutique for violation of sections 51 and 51.5. 4
Love Boutique demurred to the complaint, arguing that limiting
attendance of its annual four-hour Ladies Night event to women was not

3 Allison’s class allegations defined two classes: (1) “All men and non-
binary persons who were 21 years of age or older at the time of [Love
Boutique’s] Ladies Night 2019, Ladies Night 2018, or Ladies Night 2017
event and who were prohibited from entering . . . [the] event because of the
persons’ sex;” and (2) “All men and non-binary persons who were 21 years of
age or older at the time of [Love Boutique’s] Ladies Night 2019, Ladies Night
2018, or Ladies Night 2017 event and who visited any of [Love Boutique’s]
websites with the intent to use [Love Boutique’s] services or goods during . . .
[the] event and encountered terms or conditions . . . that excluded male and
non-binary persons from full and equal access to [Love Boutique’s] services
and goods because of the persons’ sex.”

4 The complaint also stated a cause of action for negligence based on the
same alleged acts of discrimination. In response to Love Boutique’s
demurrer, Plaintiff agreed to dismissal of the negligence claim. The trial
court then disposed of the claim on demurrer and it was dismissed as part of
the ensuing judgment.

5
based on irrelevant differences between the sexes and was rationally related
to the nature of its business. Allison opposed the demurrer, arguing there
was no justification for prohibiting men from entering an adult boutique. At
the conclusion of his opposition brief, Allison stated, without elaboration,
“Should the Court sustain any of the Demurrer, Plaintiff asks for leave to
amend the Complaint.”
The trial court sustained the demurrer without leave to amend. The
court concluded that the complaint failed to allege facts sufficient to establish
a violation of sections 51 or 51.5. The court’s minute order stated:
“ ‘[T]he Act does not absolutely preclude a business
establishment from disparate treatment of patrons in all
circumstances. The “fundamental purpose of the Unruh Civil
Rights Act is the elimination of antisocial discriminatory
practices--not the elimination of socially beneficial ones[. . . .”]
Thus, the Act renders unlawful [“]only arbitrary, invidious or
unreasonable discrimination.” ’ [(Javorsky v. Western Athletic
Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1394–1395 (Javorsky).)]

“ ‘This type of unreasonable, arbitrary, or invidious gender
discrimination is present where the policy or action
[“ ‘]emphasizes irrelevant differences between men and
women[’ ”] or perpetuates any irrational stereotypes. . . .’ [(Cohn
v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 528
(Cohn).)]

“Here, the complaint and exhibits thereto show that
Defendant store held a ladies only event in which adult toy and
lingerie companies were present to educate women as to their
products for use by women. The price of admission was $25 for
which attendees received a $25 gift card. Attendees also received
a promotional ‘goodie’ bag. There are no allegations of any
gender price discrimination. The limiting of attendees to women
was not arbitrary or related to irrelevant differences based on sex
because of the nature of the products being advertised.”

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 The trial court entered a judgment of dismissal in favor of Love
Boutique, from which Allison timely appeals.
DISCUSSION
Allison acknowledges that his claim of sex discrimination is “about
exclusion, not disparate pricing.” However, he challenges the trial court’s
conclusion that Love Boutique did not violate sections 51 or 51.5 by limiting
attendance of its Ladies’ Night event to women. He contends the court’s
findings about the nature of the event were unsupported by the allegations of
the complaint. He also contends that the court erred in concluding that Love
Boutique’s decision to limit the event to women was sufficiently justified such
that it did not violate the Act. We reject these contentions and conclude the
trial court did not err.
I.
Legal Principles
A. Standard of Review
“In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “ ‘We treat the demurrer
as admitting all material facts properly pleaded[.]’ ” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20
[“[A] demurrer assumes the truth of the complaint’s properly pleaded
allegations, but not of mere contentions or assertions contradicted by
judicially noticeable facts.”].) We “accept as true not only those facts alleged
in the complaint but also facts that may be implied or inferred from those
expressly alleged.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37
Cal.App.4th 1397, 1403; Guerrero v. Superior Court (2013) 213 Cal.App.4th

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912, 925; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “We do not,
however, assume the truth of contentions, deductions, or conclusions of fact
or law.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120,
125.)
“We also consider the complaint’s exhibits.” (Hoffman v. Smithwoods
RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) “While the ‘allegations [of a
complaint] must be accepted as true for purposes of demurrer,’ the ‘facts
appearing in exhibits attached to the complaint will also be accepted as true
and, if contrary to the allegations in the pleading, will be given precedence.’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767; Moran v.
Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145–1146.)
“Under the doctrine of truthful pleading, the courts ‘will not close their eyes
to situations where a complaint contains allegations of fact inconsistent with
attached documents, or allegations contrary to facts which are judicially
noticed.’ ” (Hoffman, at p. 400; Stella v. Asset Management Consultants, Inc.
(2017) 8 Cal.App.5th 181, 190.) So “[i]f the allegations in the complaint
conflict with the exhibits, we rely on and accept as true the contents of the
exhibits.” (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th
68, 83.)
“In considering a trial court’s order sustaining a demurrer without
leave to amend, ‘ “we review the trial court’s result for error, and not its legal
reasoning.” ’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25
Cal.App.5th 85, 93.) We “ ‘affirm the judgment if it is correct on any theory.’ ”
(Ibid.) “And when [a demurrer] is sustained without leave to amend, we
decide whether there is a reasonable possibility that the defect can be cured
by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank,

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supra, 39 Cal.3d at p. 318.) “The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Ibid.)
B. Sections 51 and 51.5
The Unruh Act provides, in pertinent part: “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 services in all business
establishments of every kind whatsoever.” (§ 51, subd. (b).) Section 51.5
provides, in pertinent part, that “[n]o business establishment of any kind
whatsoever shall discriminate against, boycott or blacklist, or refuse to buy
from, contract with, sell to, or trade with any person in this state on account
of any characteristic listed or defined in subdivision (b) or (e) of Section 51[.]”
(§ 51.5, subd. (a).) Although section 51.5 is technically not part of the Act, the
analysis under section 51.5 is the same as the analysis for purposes of the
Act. (Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380,
1404 [concluding that a complaint that failed to allege a violation of the Act
also failed to allege a violation of section 51.5]; Osborne v. Yasmeh (2016) 1
Cal.App.5th 1118, 1126.)
“The objective of the Act is to prohibit businesses from engaging in
unreasonable, arbitrary or invidious discrimination.” (Pizarro v. Lamb’s
Players Theatre (2006) 135 Cal.App.4th 1171, 1174 (Pizarro).) The Act “does
not purport to prohibit all differences in treatment or accommodations
offered” (Sunrise Country Club Ass’n v. Proud (1987) 190 Cal.App.3d 377,
381), nor does it “entirely prohibit businesses from drawing distinctions on
the basis of the protected classifications or personal characteristics” (Howe v.

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Bank of America N.A. (2009) 179 Cal.App.4th 1443, 1450). “[T]he Act does
not absolutely preclude a business establishment from disparate treatment of
patrons in all circumstances. The ‘fundamental purpose of the Unruh Civil
Rights Act is the elimination of antisocial discriminatory practices—not the
elimination of socially beneficial ones.’ ” (Javorsky, supra, 242 Cal.App.4th at
pp. 1394–1395.) “[U]nreasonable, arbitrary, or invidious gender
discrimination is present where the policy or action ‘ “emphasizes irrelevant
differences between men and women” ’ or perpetuates any irrational
stereotypes.” (Cohn, supra, 169 Cal.App.4th at p. 528.)
As our high court has stated, “[a]lthough the Unruh Act proscribes ‘any
form of arbitrary discrimination’ [citation], certain types of discrimination
have been denominated ‘reasonable’ and, therefore, not arbitrary.” (Koire v.
Metro Car Wash (1985) 40 Cal.3d 24, 30 (Koire).) Differential or disparate
treatment “may be reasonable, and not arbitrary, in light of the nature of the
enterprise or its facilities, legitimate business interests (maintaining order,
complying with legal requirements, and protecting business reputation or
investment), and public policy supporting the disparate treatment.”
(Javorsky, supra, 242 Cal.App.4th at p. 1395, citing Koire, p. 31, Harris v.
Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1162 (Harris), and
Pizarro, supra, 135 Cal.App.4th at p. 1174.)
A “compelling societal interest” may be relied on to justify differential
treatment. (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 743.)
However, this interest need not be “extraordinarily high or laudable,” but
“merely one that is sufficient given the nature of the particular disparate
treatment at issue and other attendant circumstances,” that is to say, “of
sufficient societal benefit to render the disparate treatment reasonable and
not arbitrary.” (Javorsky, supra, 242 Cal.App.4th at p. 1397.) “[Another]

10
basis relied on by the courts for upholding discriminatory practices as
nonarbitrary is when a strong public policy exists in favor of disparate
treatment.” (Pizarro, supra, 135 Cal.App.4th at pp. 1174, 1176–1177.)
Legislative enactments may be considered as evidence of a public policy
supporting differential treatment. (Javorsky, at p. 1397.) However, the
policy need not be expressed in a statute. (Id. at pp. 1397, 1403–1405
[offering health club membership to 18- to 29-year-old persons at a reduced
price did not violate the Act because it provided “lower cost access to the
healthful benefits” of the club without “perpetuat[ing] irrational
stereotypes”]; see Pizarro, at pp. 1176–1177 [offering “discounted theater
admission to ‘baby-boomers’ to attend a musical about that generation” did
not violate the Act because it served to “encourage attendance at a family-
based entertainment event”]; Cohn, supra, 169 Cal.App.4th at pp. 528–529
[Mother’s Day giveaway that involved giving free tote bags to adult female
attendees of a major league baseball game did not violate the Act; the
giveaway honored mothers without promoting irrational stereotypes].)
II.
Analysis
A. The Trial Court’s Findings Were Supported by the Complaint’s
Allegations and the Attached 17-Page Exhibit
Allison first takes issue with the trial court’s finding that Love
Boutique’s Ladies Night event involved educating women. He contends that
“the only place the word ‘educate’ or any form or synonym of ‘educate’
appears in the Complaint” is in a Facebook post attached to the complaint
that described the Ladies Night event as “a night of fun and education!” He
argues that the complaint does not include the sentence from the trial court’s
minute order stating that “ ‘the adult toy and lingerie companies were
present to educate women as to their products for use by women.’ ”

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 In response, Love Boutique identifies the following statements as
supportive of the trial court’s finding, and which appear in the body of the
complaint and the attached Exhibit 1 containing Love Boutique’s Facebook
posts: “ ‘it’s also a great time for single women . . . [interested in] learning
more about finding their perfect toy/toys, lubes, and lingerie!’ ” (italics added);
“[e]very year we hold a Ladies Only Night where we invite several of our
favorite toy & lingerie companies to join us for a night of fun and education!”
(italics added); “Stop by Vanessa’s table so she can tell you all about this
amazing, app-enabled toy” (italics added); and “[Company name] will be
joining us on January 20th to share their premium . . . clitoral . . . toy with
you . . .” (italics added).
We agree with Love Boutique that the quoted statements supported the
trial court’s finding the Ladies Night event involved “adult toy and lingerie
companies . . . educat[ing] women as to their products for use by women.”
Contrary to Allison’s contention that there is only one instance when the
complaint used a form or synonym of the word “educate,” the words “learn” (a
variant of “learning”), “tell,” and “share,” all of which appear in the
statements quoted by Love Boutique, are synonyms of “educate.” Allison’s
other argument—that the precise sentence in the trial court’s minute order
did not appear verbatim in the complaint—is equally meritless. The trial
court was summarizing the facts derived from the complaint; it was not
purporting to quote the complaint’s allegations word for word. Moreover, the
court’s summary was accurate and supported by the complaint.
Next, Allison appears to contend that because he affirmatively alleged
in the complaint that the Ladies Night event did “constitute[ ] arbitrary,
unreasonable, and/or invidious discrimination,” the trial court was prohibited
from concluding otherwise. (Italics omitted.) Not so. The allegations quoted

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by Allison are legal conclusions. A demurrer admits “all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or
law.” (Blank, supra, 39 Cal.3d at p. 318.) Here, the trial court determined
that the material facts contained in the complaint revealed a rational
justification for limiting the Ladies Night event to women. Since these
material facts are taken as true for purposes of demurrer, but the complaint’s
conclusory allegations of law are not, the trial court was permitted to rely on
the material facts and overlook the complaint’s contrary legal conclusions
when determining that the Ladies Night event did not violate the Act.
B. The Trial Court Properly Determined That Love Boutique Did Not
Violate the Act by Limiting Attendance of the Ladies Night Event to
Women
Next, Allison contends the trial court erred by concluding that
restricting attendance of the Ladies Night event to women did not violate the
Act. He does not specifically challenge the court’s determination that the
event’s articulated purpose of educating women about sexually intimate
products justified the decision to limit attendance to women. Instead, he
argues: “[T]here is no precedent supporting the trial court’s ruling that, as
alleged in the Complaint, an ‘adult store, which on all nights other than the
night of January 20, 2019, welcomed adults of all sexes, and displayed,
demonstrated, and sold sex toys, BDSM (Bondage, Discipline, Sadism, and
Masochism) devices, pornographic videos, condoms, and lingerie to all adults
no matter their sex,’ does not engage in arbitrary, unreasonable, or invidious
discrimination by excluding male and nonbinary consumers from entering
the adult store on a night when these same sex toys, BDSM devices,
pornographic videos, condoms, and lingerie remain on display and for sale
but for only female consumers.”

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 However, after asserting there is “no precedent” supporting the trial
court’s ruling, Allison does not develop the point further. He cites several
cases in his brief, which we discuss below, but he does not offer any argument
why any of them reveal the trial court’s decision to be erroneous. Although
the trial court relied on Javorsky and Cohn in its minute order, for example,
Allison does not argue that the court was incorrect to rely on these decisions
or claim they failed to support the trial court’s ruling. Indeed, in his

appellate brief,5 Allison does not cite or discuss Cohn at all.
For its part, Love Boutique contends that limiting attendance of its
Ladies Night event to women was not based on irrelevant differences
between the sexes, and that holding a four-hour event once a year to educate
adult females about intimate sexual products for their use was not
unreasonable, arbitrary, or invidious. Love Boutique further contends the
trial court’s decision in this case was supported by Cohn, and it contends the
disparate treatment at issue in this case is distinguishable from gender-

based price discounts held to violate the Act in cases such as Koire.6

5 Allison filed an opening brief on appeal, but did not file a reply brief.

6 Love Boutique also contends that hosting a women-only Ladies Night
event was a decision supported by a public policy found in the Fourteenth
Amendment to the United States Constitution. It observes that in Lawrence
v. Texas (2003) 539 U.S. 558, 578, the United States Supreme Court held that
the due process clause of the Fourteenth Amendment includes a substantive
right to engage in private sexual conduct without government interference.
It further observes that in Reliable Consultants, Inc. v. Earle (5th Cir. 2008)
517 F.3d 738, 742–743 (Reliable Consultants), the Fifth Circuit struck down a
criminal provision that penalized the sale of sexual devices on the ground
that the provision burdened the individual exercise of the substantive due
process right recognized in Lawrence. Love Boutique contends that its Ladies
Night events afforded female customers an opportunity to exercise their
constitutional right to sexual intimacy. We need not and do not address
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 We conclude that the trial court correctly determined that Love
Boutique’s limiting attendance of the Ladies Night event to women was not
arbitrary or related to irrelevant differences in the sexes, and thus did not
violate the Act. The trial court’s reasoning and conclusion are consistent
with, and supported by, Cohn. In Cohn, the male plaintiff claimed he
suffered sex discrimination in violation of the Unruh Act when female adults
attending a professional baseball game were given free tote bags in
celebration of Mother’s Day. (Cohn, supra, 169 Cal.App.4th at p. 527.) The
trial court granted summary judgment, and the Court of Appeals affirmed.
The court explained: “The Act requires intentional discrimination to protect
against all ‘unreasonable, arbitrary or invidious discrimination.’ ” [Citation.]
This type of unreasonable, arbitrary, or invidious gender discrimination is
present where the policy or action ‘ “emphasizes irrelevant differences
between men and women” ’ or perpetuates any irrational stereotypes.
[Citations.] The State of California has a legitimate interest in eradicating
this type of discrimination because of the negative impact such prejudice has
on society. [Citation.] [¶] The instant case does not emphasize an irrelevant
difference, nor perpetuate an irrational stereotype. It is a biological fact that
only women can be mothers. Neither men nor women are harmed by this,
and the [defendant] did not arbitrarily create this difference. . . . The tote
bag giveaway honors mothers as a group of individuals without promoting

whether the Ladies Night event was supported by a policy derived from the
Fourteenth Amendment. (See Javorsky, supra, 242 Cal.App.4th at p. 1397.)
The public policy tendered to justify a particular incident of discrimination
need not be expressed in a legislative enactment. (Ibid.) Thus, we can
consider the adequacy of Love Boutique’s justification for holding a women-
only event without deciding whether that justification was grounded in the
Constitution.

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any irrational stereotypes, and therefore does not violate the Act.” (Id. at
pp. 528–529.)
Here, Love Boutique’s women-only Ladies Night was described as an
event attended by vendors of intimate products, some of which were of a
highly intimate sexual nature and interacted with the female physiology, to
educate women about them. Much like in Cohn, the differential treatment of
women was inseparable from matters of biological fact. Women and men
have different sex organs; this is a fact. (See United States v. Virginia (1996)
518 U.S. 515, 533 [“Physical differences between men and women, however,
are enduring[.]”].) The decision to limit attendance to adult females was thus
not based on irrelevant sex characteristics.
Further, the event served a beneficial interest. As Javorsky explains,
the “ ‘compelling societal interest’ ” justifying differential treatment need not
be “extraordinarily high or laudable,” but “merely one that is sufficient given
the nature of the particular disparate treatment at issue and other attendant
circumstances.” (Javorsky, supra, 242 Cal.App.4th at pp. 1395, 1397.) An
articulated purpose of the Ladies Night event was to educate women about
the use of intimate sex products. There is a societal interest in sex education.
And as Love Boutique points out, one federal court has held that the right to
engage in private sexual conduct includes a right to purchase intimate sexual
devices for private use. (Reliable Consultants, supra, 517 F.3d at pp. 746–
747.) Whether recognized as a constitutional right or not, adult sexual
behavior may include the use of such products. Affording women the
opportunity to learn about intimate sex devices was “of sufficient societal
benefit to render the disparate treatment reasonable and not arbitrary.”
(Javorsky, at p. 1397)

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 Given the subject matter, it was not unreasonable for Love Boutique to
provide its female customers the opportunity to learn about such intimate
sexual products in a limited setting. Love Boutique observes that in Koire,
the California Supreme Court stated there “may . . . be instances where
public policy warrants differential treatment for men and women,” and
identified “sex-segregated facilities, such as public restrooms,” as an example
of differential treatment “justified by the constitutional right to personal
privacy.” (Koire, supra, 40 Cal.3d at p. 38.) Love Boutique also cites title 8,
section 3366 of the California Code of Regulations, which requires employers
of five or more employees to provide separate shower rooms for each sex, as
reflective of a public policy of protecting personal privacy. We further observe
that Education Code section 221.5 excepts sex education classes from the
prohibition on sex discrimination in elementary and secondary school classes.
(See Ed. Code, § 221.5, subd. (b).) These authorities confirm that there exists
a state policy permitting differential treatment of men and women for
activities that are uniquely private. Although we are dealing here with an
event that involved educating adults, the highly intimate nature of the
products supports the conclusion that it was not unreasonable for Love
Boutique to limit attendance on the basis of sex.
As noted, Allison does not present a developed argument that the trial
court’s decision was contrary to existing precedent. He cites a number of
cases, but fails to explain how, in his view, they demonstrate error. We have
reviewed the cases cited by Allison and conclude they do not undermine the
trial court’s ruling.
Allison cites Javorsky and Pizarro as cases standing for the general
proposition that the Act prohibits businesses from depriving customers of full
and equal accommodations. However, Javorsky and Pizarro are not helpful

17
to Allison. Both Javorsky and Pizarro rejected challenges under the Act to
price discounts provided to customers based on age. (See Javorsky, supra,
242 Cal.App.4th at pp. 1401–1405 [rejecting challenge to health club’s Young
Professional program providing discounted membership to 18- to 29-year-old
persons]; Pizarro, supra, 135 Cal.App.4th at pp. 1174–1176 [rejecting
challenge to a price discount on theater tickets offered to individuals born
between 1946 and 1964].) And this case does not involve disparate pricing, as
Allison acknowledges. Moreover, the justification for the differential
treatment in this case is at least as compelling as the justification held
sufficient to support the price discounts at issue in Javorsky and Pizarro.
(See Javorsky, at pp. 1401–1405 [price discounts offered to 18- to 29-year-old
persons supported by interest in providing “healthful benefits” of health club
membership to an age group with lower median incomes]; Pizarro, at
pp. 1174–1176 [price discounts offered to “ ‘baby-boomers’ ” served the
purpose of encouraging members of that generation to attend a musical about
them].)
Allison also cites In re Cox (1970) 3 Cal.3d 205. But the case is
inapposite to the issues presented here. In Cox, a customer was ejected from
a shopping center after talking to his friend, a “young man[ ] who wore long
hair and dressed in an unconventional manner.” (Id. at p. 210.) The
California Supreme Court held that the discriminatory practices barred by
the Act were not limited to discrimination based on the categories listed in
the Act. (Id. at pp. 214–217.) The Court observed that the Act permits
businesses to “impose upon patrons reasonable regulations rationally related
to the services performed and the facilities provided.” (Id. at p. 217, fn. 13.)
However, it did not decide whether the shopping center had a reasonable

18
basis for excluding the customer. (Id. at p. 217.) Thus, neither the facts nor
the holding of Cox are relevant here.
Allison also observes that in Koire and Angelucci v. Century Supper
Club (2007) 41 Cal.4th 160 (Angelucci), women-only price discounts were held
to violate the Act. Love Boutique responds that its Ladies Night event was
unlike the discounts at issue in Koire and Angelucci. We agree with Love
Boutique. In Koire, the male plaintiff sued car washes and bars for offering
price discounts to female customers. (Koire, supra, 40 Cal.3d at p. 27.) Our
high court rejected the defendants’ argument that the discounts were not
arbitrary because they were supported by “ ‘substantial business and social
purposes.’ ” (Id. at pp. 32–33.) The Court found the businesses’ interest in
increasing profits, or encouraging women and men to socialize in a bar,
insufficiently compelling to justify offering goods or services to men and
women at different prices. (Id. at pp. 32–33.) In Angelucci, a supper club
charged the male plaintiffs a higher price for admission than it charged
women. (Angelucci, at p. 165.) The Court reaffirmed the principles
articulated in Koire that “there might be public policies warranting
differential treatment of male and female patrons under some
circumstances,” but that “ ‘[a]bsent a compelling social policy supporting sex-
based price differentials, such discounts violate the Act.’ ” (Angelucci, at
p. 175.)
Love Boutique is unlike the car washes and bars that were charged
with violating the Act in Koire, or the supper club sued in Angelucci. Love
Boutique sells intimate sexual products, such that the physical differences
between the sexes are uniquely relevant to its business. Moreover, Love
Boutique did not lack a compelling reason for limiting attendance of its
Ladies Night event to women. At least some products promoted through the

19
Ladies Night event interacted with female physiology, and vendors were
announced as appearing at the event to “share” or “tell” female attendees
about these products. The event’s educational component, and the sexual
nature of the products shared, justified Love Boutique in limiting attendance
to adult females. Accordingly, Love Boutique’s women-only Ladies Night
event did not violate the Unruh Act.
As mentioned above, Allison argues that the same “sex toys, BDSM
devices, pornographic videos, condoms, and lingerie” ordinarily sold by Love
Boutique were “on display and for sale” during the Ladies Night event, the
apparent point being that Love Boutique was not justified in prohibiting him
and his companions from entering. Allison ignores, however, that the Ladies
Night event was not described as a night of restricted access to the store for
the purpose of browsing products ordinarily on display. Rather, it was
described as including an educational component that entailed vendors
attending, in person, to educate women and share information about intimate
products for their use. Thus, limiting attendance of the event to women was
not unreasonable or arbitrary, even though the products displayed
throughout the store while the event was in progress were the same products
ordinarily offered to men as well as women.
Next, Allison contends that limiting attendance of Ladies Night to
women was at least invidious, if not unreasonable or arbitrary, and that the
complaint “is replete with allegations that [Allison] was damaged by not
being allowed into the Ladies Day [sic] 2019 event because of his sex.”
Although he claims the complaint is “replete” with such allegations, he
unhelpfully cites series of pages from the complaint without specifying which
allegations in particular he would like us to examine. We are not required to
scour the record unguided, nor must we develop arguments for him. (WFG

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National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881,
894–895.)
Allison’s argument is unavailing, because notwithstanding perfunctory
allegations, the complaint contains factual detail supporting the conclusion
that limiting attendance of the Ladies Night event to women was not based
on irrelevant differences in the sexes, and was not arbitrary or invidious.
“The ‘fundamental purpose of the Unruh Civil Rights Act is the elimination of
antisocial discriminatory practices—not the elimination of socially beneficial
ones.’ ” (Javorsky, supra, 242 Cal.App.4th at pp. 1394–1395.) Koire is
illustrative. In Koire, the plaintiff was harmed by price discounts arbitrarily
given to women. (Koire, supra, 40 Cal.3d at p. 34.) Our high court observed
that “differential pricing based on sex may be generally detrimental to both
men and women, because it reinforces harmful stereotypes,” and “[m]en and
women alike suffer from the stereotypes perpetuated by sex-based
differential treatment.” (Ibid.) The Court further observed that such harm
emanates from differentiating “between men and women on the basis of
irrelevant and artificially created distinctions.” (Id. at p. 35, italics added.)
Here, as we have discussed, the complaint’s facts reveal that the event served
a beneficial purpose, and addressed highly intimate topics that included the
use of products, at least one of which had an exclusively, female-physiological
focus. The sex-based limitation was relevant and biological, not irrelevant or
artificially created.
In a footnote, Allison attempts to articulate a stereotype perpetuated by
the event. He calls the women-only event “antiquated” and “Victorian.” We
disagree that these labels can be fairly applied to an event promoting the use
of “app-enabled” sexual toys or “clitoral” devices. Allison posits that Love
Boutique’s Ladies Night event is like “Home Depot excluding female

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customers from entering Home Depot on a Men’s Night 2021 event”
promoting “chainsaw and . . . power tool[s],” or “Target [holding] a Ladies
Night 2021 event for which . . . cookware and dinnerware companies would be
present to educate women about their products[.]” The comparison is inapt
because the products on offer in Allison’s hypotheticals do not serve an
intimate sexual purpose or interact with physiological features associated
with female or male sexual response. Instead, a better comparison would be
holding a Men’s Night event that involved educating men about intimate
sexual devices that interact with male physiology, which would also be
permissible since it would not be based on irrelevant differences between the
sexes. (See Cohn, supra, 169 Cal.App.4th at p. 528 [“[G]iving tote bags to
men on Father’s Day . . . would also be valid, as it is not based on any
irrelevant differences between the sexes.”].)
Allison also contends the trial court erred by deciding on demurrer the
fact-specific issues concerning whether, in his words, a “non-arbitrary, non-
invidious, or reasonable justification for [Love Boutique’s] Ladies Night 2019
sex-based discrimination actually exists.” The California Supreme Court
rejected a similar argument in Harris. There, the plaintiffs argued that the
concepts of “ ‘arbitrary discrimination’ and ‘reasonable’ regulations . . .
inevitably involve fact-bound determinations requiring trial as opposed to
legal issues cognizable on demurrer.” (Harris, supra, 52 Cal.3d at p. 1165.)
The Court disagreed: “Unruh Act issues have often been decided as questions
of law on demurrer or summary judgment when the policy or practice of a
business establishment is valid on its face because it bears a reasonable
relation to commercial objectives appropriate to an enterprise serving the
public.” (Ibid.) Here, the facts contained in the complaint and its
attachments were sufficient to allow the trial court to find that limiting

22
attendance of the Ladies Night events to women was not arbitrary or based
on irrelevant differences in the sexes, and did not violate the Act.
Accordingly, the trial court did not err in resolving these issues on demurrer.
Allison makes additional arguments that are also unpersuasive. He
contends the complaint identifies additional reasons for the event apart from
educating women about sexual toys (e.g., providing “ ‘foods, drinks, games,
and . . . prizes’ ”). His focus is off the mark. The question is not whether
learning about sexually intimate products was the only activity associated
with the event. For example, restrooms may provide, in addition to toilets,
sinks and towel dispensers so a person can wash and dry their hands—
activities that are not inherently private—and yet, as the Koire court
observed, restrooms may be segregated by sex without violating the Act.
Rather, the question is whether the event included an activity that served as
a relevant, sufficiently compelling basis for limiting attendance to women. As
we have discussed, we agree with the trial court that it did.
C. The Trial Court Did Not Abuse Its Discretion by Denying Leave to
Amend
Allison raises the possibility of amendment. He states: “If more factual
allegations are required to sufficiently plead arbitrary, unreasonable, or
invidious discrimination, [he] can easily amend the Complaint to do so.” But
he does not identify any factual allegations he proposes to add, or indicate
how they would overcome those facts already admitted in the complaint that
defeat his claims. Allison bears the burden of proving a reasonable
possibility of curing the defects in his complaint by amendment. (Blank,
supra, 39 Cal.3d at p. 318.) “It is the plaintiff’s burden on appeal to show in
what manner it would be possible to amend a complaint to change the legal
effect of the pleading; we otherwise presume the pleading has stated its
allegations as favorably as possible.” (Fuller v. First Franklin Financial

23
Corp. (2013) 216 Cal.App.4th 955, 962.) Allison’s unelaborated, unexplained
assertion of an ability to amend the complaint is not sufficient to carry this
burden. Accordingly, the trial court did not abuse its discretion by denying
leave to amend.
Finally, Allison contends he should be allowed to proceed to discovery
so he can obtain such items as the store’s video surveillance footage and
determine whether there were any males present during the event. However,
his ability to proceed past the demurrer stage depends on his ability to
persuade this court that the trial court erred in sustaining the demurrer and
dismissing the case. Because we remain unpersuaded there was such an
error, the judgment will be affirmed.
DISPOSITION
The judgment is affirmed. Love Boutique is entitled to its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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