I cannot join any of the majority opinion’s efforts to affirm: (1) by attempting to distinguish away the only relevant case authority which is not distinguishable except by name, (2) by ignoring the legal test for review of a judgment of dismissal predicated upon the sustaining of a general demurrer, and (3) in misreading binding California Supreme Court authority. For these reasons I dissent.
The single legal question before us is: does a plaintiff who has previously brought a claim under the Unruh Civil Rights Act (the Act) state a cause of action under the Act for subsequent discrimination undertaken in retaliation for the prior claim? Until now the answer has been yes.
In Vaughn v. Hugo Neu Proler International (1990) 223 Cal.App.3d 1612 [273 Cal.Rptr. 426], a female scrap metal dealer brought a gender discrimination claim under the Act against a scrap metal processing and distributing business which refused her and other women, but allowed men, entry onto its premises in order to collect discarded scrap. {Id. at pp. 1615-1616.) Her claim was resolved in 1986, but by 1989 the business was once again refusing to admit her or her employees, and even sought her arrest for trespassing. (Ibid.) She sued a second time under the Act alleging that Neu Proler’s conduct was retaliation for her earlier suit. (Id. at p. 1616.)
On appeal after the trial court sustained a general demurrer, the Second District reversed concluding that she had stated a cause of action under the Act. Despite the fact that the Act does not expressly create a cause of action for retaliation, such claims must be permitted in order to render the protections of the Act real. As Justice Turner said, speaking for a unanimous court, because “[t]he public has a strong interest in preventing business establishments from engaging in discriminatory practices for arbitrary reasons,” there is a public interest in protecting a person who has brought suit under the Act “from retaliatory conduct by the offending party.” (Vaughn v. Hugo Neu Proler International, supra, 223 Cal.App.3d at p. 1620.)
The holding in Vaughn controls this case. Mr. Gayer has alleged a prior suit brought under the Act and subsequent refusal to serve him in retaliation for his prior claim. We are ruling upon a demurrer. Accordingly, we look only to the face of the pleading and must assume the truth of the facts therein. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)
*527It is completely irrelevant to our inquiry whether, as Polk Gulch argues, Mr. Gayer’s prior claim was still pending when he was denied service, or whether he was told to leave the bar only after contretemps with another customer. Why Mr. Gayer was denied service is a question for a fact finder. Should Polk Gulch be able to prove that it denied service to Mr. Gayer not because of the prior lawsuit but for some other reason, Polk Gulch would be entitled to prevail.
This is not to say that such claims may never be resolved on demurrer. Indeed, our Supreme Court has recently affirmed the use of a 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.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165 [278 Cal.Rptr. 614, 805 P.2d 873].) This is not such a case. As an initial matter there is no allegation that Polk Gulch pursued a policy or practice of excluding everyone who brought suit against it or even everyone who sued it for Unruh Civil Rights Act violations. Even if it had such a policy, however, the very public policy rationale for allowing a retaliation cause of action would preclude finding such a policy to be facially valid.
Finally the majority opinion misreads Harris to conclude that only members of a protected class may bring an action, even one for retaliation, under the Act. (Maj. opn., ante, at p. 522.) Harris expressly rejected the notion that the classes listed in the Act are an exhaustive list. (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at pp. 1155-1159.)
Harris simply held that the characteristics which define a protected class under the Act are “personal”; that is, they are in some way like the distinctions specifically enumerated of sex, race, color, religion, ancestry, national origin, blindness, or physical disability. (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1161.) It concluded that poverty or low income level is not a distinguishing trait which the Act protects, at least when there is a nexus between the financial criterion imposed and the legitimate business interest of the business entity. (Id. at pp. 1160-1162, 1169.) Thus, it found unobjectionable the landlord’s minimum income policy because “[t]he policy does not make distinctions among persons based on the classifications listed in the Act ... or similar personal traits, beliefs, or characteristics that bear no relationship to the responsibilities of consumers of public accommodations. It is a financial criterion of customer selection that applies uniformly and neutrally to all persons regardless of personal characteristics.” (Id. at p. 1169, italics added.)
*528Polk Gulch is not making distinctions among persons to whom it denies service based upon the characteristics listed in the Act, but to use the language of the Chief Justice it is drawing lines based upon “similar personal traits, beliefs, or characteristics that bear no relationship to the responsibilities of consumers of public accommodations.” The personal characteristic Mr. Gayer possesses is that he has previously sued Polk Gulch for violating the Act. I fail to comprehend how that characteristic relates in any fashion to his “responsibilities as a consumer of public accommodations.”
The majority opinion apparently reasons thus—Mr. Gayer is in the class of individuals who have sued Polk Gulch. Such a class is not protected either explicitly by the statute nor the case law ergo he cannot state a claim under the Act. Indeed, the opinion reasons that the Polk Gulch “policy” (the existence of which it infers) is harmless because it applies neutrally to every individual regardless of sex, color, race, religion, etc., who has sued Polk Gulch. (Maj. opn., ante, at p. 522.)
The reasoning of the majority opinion has the following consequence. Polk Gulch may not discriminate against women, homosexuals, Blacks, or Presbyterians. If it does a member of those protected classes may bring an action under the Act. Should such a victim of discrimination then return to Polk Gulch and be refused service, however, the victim is out of luck. Discrimination which flows from a policy of retaliation is okay. Now the victim is no longer a member of a protected class, but is merely a member of a class of previously injured individuals who have sought to defend their statutory rights. In short, the majority opinion builds into the Act a disincentive against enforcement by those whose rights the Act professes to protect.
I submit it makes very little difference to victims of discrimination whether they are denied service or business dealings as a consequence of their sex or religion or as a consequence of a facially neutral policy not to do business with individuals who defend their civil rights. Were Martin Luther King, Jr., alive today and were he to be refused service because of his race on Monday at the lunch counter of a California restaurant he could bring a claim under the Act. However under the majority opinion’s reading, when on Wednesday, he returned to the lunch counter only to be told he would not be served, not because of his race, but in retaliation for his Act claim, he would have no recourse under the Act for that refusal to serve. I can believe neither that this is nor that it should be the law of this state.
*529I would reverse the judgment of dismissal as to plaintiff’s first and fourth causes of action, holding that Mr. Gayer has stated a cause of action under Civil Code sections 51 and 52.
Appellant’s petition for review by the Supreme Court was denied September 26, 1991.