Opinion
No. CV 00-01828-GHK (CWx)
February 28, 2001
Defendant's Motion for Summary Judgment or, in the alternative, for Partial Summary Judgment
This matter is before the court on Defendant's Motion for Summary Judgment or, in the alternative, for Partial Summary Judgment. This motion is appropriate for resolution without oral argument. Fed.R.Civ.P. 78; Local Rule 7.11. After fully considering the briefs and papers pertaining to this matter, we rule as follows:
I. Background
Plaintiff Adalberto Rodriguez ("Rodriguez") brings this action against Provident Life and Accident Insurance Company ("Provident") alleging that Provident discriminated against him on the basis of his Cuban heritage by refusing to issue him a disability policy. Rodriguez alleges the following eight claims: (1) violation of 42 U.S.C. § 1981; (2) violation of Cal. Civ. Code § 51 (Unruh Civil Rights Act); (3) violation of Cal. Civ. Code § 51.5 (Unruh Civil Rights Act); (4) violation of Cal. Bus. Prof. Code § 17200; (5) fraud (intentional misrepresentation); (7) fraud (concealment); (8) declaratory relief; and (9) injunctive relief. Count Six for negligent misrepresentation was dismissed from the Second Amended Complaint ("SAC") in the court's July 26, 2000 minute order.
Rodriguez is a Cuban-born immigrant. On or about January 24, 1999, Rodriguez was assisted by Edgar Fernandez, an agent of New York Life Ins. Co., in filling out an application for Provident Individual Disability Insurance. Rodriguez provided Fernandez with a check for a partial premium payment in the amount of $274.48 to be submitted with his application.
As part of his application to Provident, Rodriguez was required to provide certain personal and confidential medical and financial information, and undergo blood, urine and blood pressure tests, and provide body weight measurements. Provident requires these tests from all California applicants.
Rodriguez had failed to provide some of the information requested in the application. Provident claims that it arranged to have a telephonic interview with Rodriguez and also contacted Fernandez and requested his help in obtaining supplemental financial information from Rodriguez. Provident's records, including telephone records, reflect that Melissa Haffty of Provident called Rodriguez to conduct a personal history interview, and that Rodriguez requested that the interview be conducted in Spanish. Rodriguez disputes that anyone from Provident contacted him. Yoo Decl., Exh. 1, pp. 89-92. Rodriguez also disputes all of Provident's internal records which indicate that Rodriguez's inability to speak or understand English formed the basis for the eventual denial of his application.
On or about May 6, 1999, Provident sent Rodriguez a letter informing him that his application had been declined due to his inability to speak and understand the English language. Rodriguez denies receiving the rejection letter. Yoo Decl., Exh. 1, pp. 100-01. Rodriguez met all other underwriting requirements of Provident, and but for the English proficiency requirement, Provident would have provided Rodriguez with disability insurance coverage. Yoo Decl., Exhs. 3, pp. 272-76 and 5, p. 129.
On or about May 15, 1999, Provident sent Rodriguez a letter enclosing check number 4894281 in the amount of $274.48, which reflected a refund of the partial premium payment submitted with Rodriguez's application. Turney Decl. ¶ 5. Rodriguez denies ever receiving the refund. Yoo Decl., Exh. 1, pp. 111-12. Provident's business records show that its refund check was issued, but never cashed or deposited by Mr. Rodriguez. Turney Decl. ¶ 6. The refund money has subsequently been escheated to the State of Tennessee. Id. Rodriguez testified at his deposition that he never contacted Provident to find out what happened to the refund of his initial premium payment. Bernacchi Decl. ¶ 10.
Of the five applicants other than Rodriguez who were denied disability coverage by Provident in California since 1998, due to their inability to speak English, three had Hispanic surnames (Jimenez, Gonzalez and Rodriguez), one had an apparent Armenian surname (Manoukian), and one had an apparent Chinese surname (Liu). Bernacchi Decl. ¶ 9. Provident claims that it currently provides disability insurance to numerous individuals with Hispanic surnames and since 1996, it has accepted the applications of almost 200 individuals with the last name of Rodriguez. DiMartino Decl. ¶ 11. Rodriguez objects to this portion of the DiMartino Declaration on the grounds that the statement lacks foundations, assumes facts not in evidence, is improper opinion testimony, and is conclusory. We hereby SUSTAIN this objection because Paragraph Eleven of the DiMartino Declaration lacks sufficient foundation for her estimate of the number of individuals. Further, the Declaration fails to state whether the new customers insured with Hispanic surnames or, specifically, the surname "Rodriguez," were insured outside of the states of Florida and Texas, where Provident's English proficiency requirement did not apply.
Two applicants, Ms. Paz Gonzalez and Mr. Raul Rodriguez, were denied Provident insurance on the grounds that they do not speak and understand English. Gonzalez Decl. ¶ 1; R. Rodriguez Decl. ¶ 1. Provident denied both Ms. Gonzalez's and Mr. Raul Rodriquez's applications without calling to verify or determine their ability to speak and/or understand English. Gonzalez Decl. ¶ 3; R. Rodriguez Decl. ¶ 3.
We note that Mr. Raul Rodriguez is of no apparent relation to Plaintiff.
Provident states that it did not make any determination about Plaintiff Rodriguez's ability to speak English until after he submitted his application. Bernacchi Decl., Exhs. 2 (disability application) and 5 (underwriting note). Plaintiff Rodriguez disputes this on the basis that it lacks foundation. While Plaintiff Rodriguez does not dispute that neither he nor Fernandez ever asked Provident whether it had an English fluency requirement, Fernandez Deposition, p. 46, neither Fernandez nor Plaintiff Rodriguez had any knowledge beforehand that Provident had an "English fluency" requirement. Yoo Decl., Exhs. 1, pp. 105-06 and 2, pp. 105, 122 and 164.
Provident's underwriting requirement stated that all applicants were required to speak and read English with reasonable fluency. Yoo Decl., Exh. 3 (DiMartino deposition), pp. 118, 125. Provident is not aware of any applicant being denied for the reason of inability to read English. Id., p. 264. Provident has no procedure or process in place to determine applicants' ability to read English. Yoo Decl., Exh. 5 (Wagner deposition), pp. 165-66. In Texas and Florida there is no "reasonable fluency" requirement. Yoo Decl., Exh. 13.
Provident did not require the applicants to sign a consent or acknowledgment form stating that they fully understood the terms and conditions of the insurance policy after receiving the insurance contract. Id. at pp. 166-67. Although Provident provided disability insurance coverage to vision impaired applicants, Yoo Decl., Exhs. 3 (DiMartino deposition), pp. 258-59 and 5 (Wagner deposition), p. 158, it did not send out communications in Braille to vision impaired applicants or insureds. Yoo Decl., Exhs. 3 (DiMartino deposition), pp. 259-60 and 5 (Wagner deposition), p. 158.
Provident did not provide any specific training for its employees to determine or verify applicants' "fluency" in English. Id. Haffty, the person who allegedly conducted the telephone interview with Rodriguez, did not know that Provident had a "reasonable fluency" requirement. Yoo Decl., Exh. 6 (Haffty deposition), pp. 37-38. Provident did not have any written definition of "reasonable fluency." Yoo Decl., Exhs. 3 (DiMartino deposition), p. 197 and 5 (Wagner deposition), pp. 83-84. It admits that an underwriter's determination of an applicant's "reasonable fluency" in English is a "subjective determination." Yoo Decl., Exh. 3 (DiMartino deposition), pp. 204-06.
In or about April, 2000, Provident discontinued its "reasonable fluency" requirement. Yoo Decl., Exhs. 3 (DiMartino deposition), pp. 159-62 and 14 (internal Provident memo). Thereafter, Provident began to provide disability insurance to applicants who do not speak or understand English so long as the applicant, broker, and if necessary, a third party, signs a statement of understanding that the application and other necessary forms have been translated to the applicant. Id.
II. Legal Standard
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Material" facts are those which, under applicable substantive law, may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A factual dispute is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A party cannot create a "genuine" issue of "material" fact simply by making assertions in its legal memoranda. S.A. Empresa De Viacao Aerea Rio Grandense v. Walter Kidde Co., 690 F.2d 1235 (9th Cir. 1982).
If the party seeking summary judgment bears the burden of proof on a particular issue at trial, he must produce evidence showing that no reasonable trier of fact could find against him. See Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). But if the party seeking summary judgment does not bear the burden of proof at trial, he need only point out that his opponent's case lacks essential evidentiary support. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
III. Discussion A. 42 U.S.C. § 1981
Rodriguez alleges that he suffered intentional racial and ethnic discrimination in Provident's denial of his disability insurance application based on his inability to speak or read English. Chapter 42 U.S.C. § 1981 provides in relevant part that: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981. The relevant provision in Section 1981 extends to private conduct and protects two rights: "the same right . . . to make and enforce contracts." Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989). Proof of intent to discriminate is necessary to establish a violation of Section 1981. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-91 (1982).
We apply the same analysis used in Title VII cases to Rodriguez's Section 1981 claim. "[The McDonnell Douglas] scheme of proof . . . should apply to claims of racial discrimination under § 1981." Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989), superseded on other grounds by 42 U.S.C. § 1981 (b). See also Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n. 11 (9th Cir. 1998) ("This Court applies the same standards to disparate treatment claims pursuant to Title VII, the Age Discrimination in Employment Act, and §§ 1981 and 1983."); Rodriguez v. General Motors Corp., 904 F.2d 531, 532 (9th Cir. 1990) ("To establish a prima facie case under § 1981, [plaintiff] had to show that he was a member of a protected class; that he applied and was qualified for an open position; that he was rejected; and that the position remained open.") (citing McDonnell Douglas).
To prevail on a claim of disparate treatment based on race, a plaintiff must prove that the challenged decision was motivated by intentional discrimination. Washington v. Garrett, 10 F.3d 1421, 1431-32 (9th Cir. 1993). Because direct evidence of discriminatory motive is unavailable or difficult to obtain in most employment discrimination or § 1981 cases, the Supreme Court has set forth an indirect method of proof which relies on presumptions and shifting burdens of production. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Summary judgment motions in Section 1981 cases are governed by these burden shifting provisions. Garrett, 10 F.3d at 1432.
Under the McDonnell Douglas test, plaintiff has the initial burden of showing a prima facie case of discrimination. Patterson, 491 U.S. at 186. The burden is not onerous. Id. Once plaintiff has shown the elements of a prima facie case, the burden of production shifts to defendant to articulate, though not necessarily prove, a legitimate, nondiscriminatory reason for the challenged action. See McDonnell Douglas, 411 U.S. at 802-03. If defendant articulates a proper basis for its conduct, the burden shifts back to plaintiff in the third stage of the analysis to raise a genuine factual issue that defendant's proffered reasons were simply a pretext "for discrimination." See McDonnell Douglas, 411 U.S. at 804-05; Garrett, 10 F.3d at 1432. Notwithstanding the shifting burden of production, plaintiff retains the ultimate burden of proving that the challenged action was the result of intentional discrimination. St. Mary's Honor Ctr., 509 U.S. at 510-11.
To avoid summary judgment, the plaintiff must produce "specific, substantial evidence of pretext" in response to defendant's evidence of nondiscriminatory reasons. Wallis v. J.R. Simplot Company, 26 F.3d 885, 890 (9th Cir. 1994) (citation omitted). The plaintiff must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for the plaintiff's discharge or failure to contract was false, or (b) that the true reason was a discriminatory one. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996). "When evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption." Wallis, 26 F.3d at 890-91.
1. Prima Facie Case
The requisite degree of proof to establish a prima facie case for a Section 1981 claim on summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence." Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) citing Wallis, 26 F.3d at 889. To establish his prima facie case under Section 1981, Rodriguez need only show: (1) he is a member of a protected class; (2) he attempted to contract for certain services; (3) he was denied the right to contract for those services; and (4) such services remained available to others outside the protected class. Id. The elements of a prima facie case are malleable and are not intended to be applied rigidly. Garrett, 10 F.3d at 1434 (stating that showing that "others not in [plaintiff's] protected class were treated more favorably" is sufficient to establish a prima facie case).
In this case, Rodriguez claims that Provident discriminated against him because of his race and ethnicity. Rodriguez is a Cuban-born immigrant. However, there is no direct evidence that Provident declined to insure Rodriguez because of his race or ethnicity, and Rodriguez does not contend otherwise. Instead, Rodriguez essentially claims that by denying him insurance because of his inability to speak and read English with reasonable fluency, Provident has used language as a proxy for race and ethnicity discrimination. To bolster this nexus, Rodriguez cites five instances in which members of minorities have been rejected for insurance because of their inability to speak and/or read English. Although weak, we conclude that this is sufficient nexus for purposes of satisfying the first prong of the prima facie case.
There is no real dispute as to the second or third prongs of the prima facie case. Finally, to the extent that we find that Rodriguez has made a sufficient showing that he is a member of the protected class (i.e., race and ethnicity due to the use of language as a proxy), he has also made the minimal showing for the fourth prong. There is little doubt that Provident had insured persons outside Rodriguez's race and ethnicity, and Rodriguez has presented evidence sufficient to demonstrate that Provident did not verify those persons' ability to speak or read English. Until April, 2000, Provident did not require insurance applicants to sign any type of form acknowledging that they had read and understood the terms and conditions of the policy. Yoo Decl., Exh. 5, p. 166. Provident presented no evidence that the requirement that an applicant be able to read English was ever enforced. Id. Thus, unless there was some omission or misinformation on an application, it seems that Provident would not have personally contacted an applicant, let alone verified his or her ability to speak or read English. Such evidence, although minimal, permits the inference that Provident has insured persons outside Rodriguez's race and ethnicity who do not speak or read English fluently and thus is sufficient for the fourth prong of the prima facie case.
2. Provident's Nondiscriminatory Reasons
Because Rodriguez has made a prima facie showing, the burden of production shifts to Provident to articulate a nondiscriminatory reason for its English proficiency requirement. St. Mary's Honor Center, 509 U.S. at 506-07; McDonnell Douglas, 411 U.S. at 802. Provident contends that there are four purposes behind the English proficiency requirement: (1) Provident wanted to make sure that all of its prospective applicants understood the questions, as well as the answers to the questions, on the applications being submitted to Provident, which were in English, (2) Provident wanted to make sure that applicants fully understood the terms and conditions of the disability insurance contracts being issued to them, which were printed in English, (3) Provident wanted to make sure that applicants understood future communications from Provident which would also be in English (e.g., premium reminder notices, change in policy terms, etc.), and (4) Provident was concerned about the cost of effectively communicating with insureds who spoke dozens of different languages and potential litigation from failing to properly communicate with them. This policy permits Provident to effectively communicate with prospective applicants and future policyholders, and seeks to avoid future litigation founded on miscommunications. This explanation is sufficient to carry Provident's burden to provide legitimate nondiscriminatory reasons for its actions.
3. Pretext Analysis
Since Provident produced evidence of legitimate, nondiscriminatory reasons, Rodriguez must demonstrate that the proffered reasons are pretext for a discriminatory motive. Burdine, 450 U.S. at 256. To do so, Rodriguez need not submit direct evidence, but may rely on a showing that the decision in question was more likely than not motivated by a discriminatory reason. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). A plaintiff meets his ultimate burden of persuasion if he demonstrates that a discriminatory reason "was a motivating factor for any employment [or contracting] practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2 (m); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (Title VII meant to condemn even those decisions that were based on a mixture of legitimate and illegitimate reasons). To successfully rebut Provident's proffered reasons, Rodriguez must either provide direct evidence of Provident's discriminatory motive, or demonstrate discrimination with circumstantial evidence by showing that Provident's proffered explanations are unworthy of credence. See McDonnell Douglas, 411 U.S. at 804-05.
Viewing the evidence in the light most favorable to Plaintiff, Rodriguez has presented evidence of the following:
1. Provident never contacted anyone to verify Rodriguez's ability to speak and/or understand English, nor did it contact Gonzalez or Raul Rodriguez to make the same determination.
2. The literacy requirement was not enforced. As referenced above, until April, 2000, Provident did not require insurance applicants to sign any type of form acknowledging that they had read and understood the terms and conditions of the policy. Yoo Decl., Exh. 5, p. 166. Provident presented no evidence that the requirement that an applicant be able to read English was ever enforced. Id. Yet, at least three out of four of Provident's proffered justifications for the English proficiency requirement require that an applicant be able to read English. If Provident never had reason to contact an applicant during the acceptance process, it would never know whether or not that applicant could understand Provident's correspondence. Further, many individuals who may be able to communicate orally in English may not be as proficient in reading English, and thus one is not necessarily a proxy for the other.
3. Provident provided no training or standards for its employees to determine English proficiency. Haffty, the interviewer who allegedly interacted with Rodriguez, had no knowledge of this requirement.
4. Provident lacks statistical or actuarial evidence that shows Provident pays out more on claims from non-English speakers or has more disputes, etc. with non-English speakers.
In light of the foregoing evidence, we conclude that Rodriguez has raised a genuine issue of fact as to whether the proffered justifications are merely pretext for discrimination. As such, we hereby DENY Provident's motion for summary judgment with respect to Rodriguez's Section 1981 claim. In so concluding, however, we make no comment on the strength of Plaintiff's case at trial.
B. Unruh Claims
In relevant part, the Unruh Civil Rights Act provides that, "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51. The relevant portion of Cal. Civ. Code § 51.5 is mostly duplicative of § 51, in that it states, in relevant portion 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 because of the race, creed, religion, color, national origin, sex, disability, or medical condition of the person or of the person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics." Cal. Civ. Code. § 51.5.
"The primary purpose of the Unruh Act is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act." Curran v. Mount Diablo Council of the Boy Scouts, 147 Cal.App.3d 712, 733 (1983); see generally, 8 Witkin Summary of California Law, Constitutional Law § 748, p. 241 (9th ed. 1988). The protection afforded by the Act applies to "all persons," and is not confined to a limited category of "protected classes." Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 730 (1982). The enumeration of particular kinds of discrimination is "illustrative, rather than restrictive." The Act's "language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments, whether or not the ground of discrimination is expressly set forth in the Act." Id. at 732; Isbister v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 86 (1985). The Unruh Act must be liberally construed to effectuate the purposes for which it was enacted and to promote justice. See Koire v. Metro Car Wash, 40 Cal.3d 24, 28 (1985). The same standard applies to classifications in Sections 51 and 51.5. See Roth v. Rhodes, 25 Cal.App.4th 530, 537 (1994).
Despite this liberal construction, the California Supreme Court has determined that certain types of discrimination are reasonable and thus not arbitrary under the Unruh Act. See Lazar v. Hertz Corp., 82 Cal.Rptr.2d 368, 373 (1999), citing Koire 40 Cal.3d at 30. Businesses retain the right under the Unruh Act to establish reasonable regulations that are rationally related to the services performed and facilities provided. Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1148 (1991) (minimum income requirement that landlord imposed evenhandedly on all prospective tenants, without regard to their race, color, sex or other personal characteristics, did not violate Unruh Act, even though it allegedly had disparate impact on female tenants); Marina Point, 30 Cal.3d at 737 (owner of apartment complex violated the Act by refusing to rent to families with minor children, as boisterousness of children not a reasonable business rationale); In re Cox, 3 Cal.3d 205, 212, 217 (1970) (while an entrepreneur need not tolerate customers who damage property, injure others, or otherwise disrupt his business, he may not exclude customers on the basis of unconventional dress or physical appearance alone)
Provident asserts that Rodriguez has no standing to bring his Unruh claim because "language" is not a protected class. In addition, it argues that the reasonable English proficiency requirement was a rational business reason in that it ensured that all policyholders understood and accepted the terms of their contracts, helped to prevent future litigation and avoid potential costs of having to communicate with insureds in dozens of different languages. Rodriguez cites to the liberal construction of the Unruh Act in response to Provident's standing argument and claims that Provident's reasons for the English proficiency requirement were not reasonable or rational business reasons.
Given the liberal construction of the Unruh Act, it is clear that Rodriguez may make a claim based on language as an indicator for national origin or ethnicity discrimination. Although Provident claims to have business reasons for its actions, as described above in the Section 1981 analysis, Rodriguez has raised disputed issues of material fact as to whether the proffered reasons are untrue and merely pretextual. Therefore, Provident's motion for summary judgment on claims two and three is hereby DENIED.
C. Intentional Misrepresentation
To state a claim for fraudulent or intentional misrepresentation, plaintiff must establish: (1) a misrepresentation (2) defendant's knowledge of the statement's falsity; (3) intent to deceive; (4) reliance; and (5) resulting damages. Cooper v. Equity Gen. Ins., 219 Cal.App.3d 1252, 1262 (1990); Anderson v. Deloitte Touche, 56 Cal.App.4th 1468, 1474 (1997).
For the purposes of fraud, this representation may be implied. See Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1567 (1996); Universal By-Products, Inc. v. City of Modesto, 43 Cal.App.3d 145, 151 (1974).
Provident argues that it did not make any actual statements to Rodriguez about the English proficiency requirement, so there was no known material misrepresentation. Provident also argues that Rodriguez has failed to demonstrate intent to induce reliance and damages. Rodriguez responds that, as cited above, a representation can be implied, so that by failing to disclose its "reasonable fluency" requirement, Provident made an implied assertion that should Rodriguez meet the financial, occupational and medical requirements, he would be provided with disability insurance.
Rodriguez has not shown sufficiently how the alleged representation can be implied from these circumstances. Moreover, he has provided no evidence of Provident's intent to deceive other than his theory that Provident intended to deceive him in order to retain his partial premium payment. Rodriguez claims he never received the refund check. However, Provident has provided undisputed evidence that it did not keep the partial premium payment. Rodriguez has merely placed in dispute whether he received the payment, not whether Provident issued it. Therefore, Rodriguez cannot show that Provident benefited financially in any way from his application for disability insurance. In fact, if anything is true, it is just the opposite, as Provident expended not insignificant funds and resources in processing his application and conducting the standard medical tests. Rodriguez has provided no evidence as to why Provident would have the intent to induce him to apply for insurance when Provident had no intention of issuing any such policy to him. Therefore, Rodriguez has not articulated a plausible intent to deceive, nor provided sufficient evidence to support such a claim. "[I]f the factual context renders [Plaintiff's] claim implausible — if the claim is one that makes no economic sense — [Plaintiff] must come forward with more persuasive evidence to support [his] claim than would otherwise be necessary." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We conclude that Rodriguez has presented insufficient evidence to raise a triable issue of fact as to the essential element of intent to deceive. As such, we hereby GRANT Provident's motion for summary judgment on the intentional misrepresentation claim.
D. Fraud (Concealment)
The elements of a claim for fraud based on a mere nondisclosure, and involving no confidential relationship are: (1) a nondisclosure by the defendant of facts materially affecting the value or desirability of the item in question; (2) defendant's knowledge of such facts and of their being unknown to or beyond the reach of the plaintiff; (3) defendant's intention to induce action by the plaintiff; (4) inducement of the plaintiff to act by reason of the nondisclosure; and (5) resulting damages. Lingsch v. Savage, 213 Cal.App.2d 729, 738 (1963).
Concealment claims are typically raised in the context of a defective product, where the discovery of the defect after the sale materially affects the value of the product. In this case, Rodriguez's application was not accepted, so no policy was issued. Plaintiff never received any goods or services which could be said to have been less valuable as a result of concealment of material facts. We question whether fraudulent concealment has any application here. In any event, as with the fraud claim, Plaintiff has not presented sufficient evidence to raise a triable issue of material fact as to Provident's intent to induce him to act. As such, Provident's motion for summary judgment on the concealment claim is hereby GRANTED.
E. Unfair Competition, Cal. Bus. Prof. Code § 17200
Cal. Bus. Prof. Code § 17200 states, in relevant part, that "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." An action for unfair trade practices under Section 17200 arises when a business practice "offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (1984) (citation omitted). A finding of fraud is not a prerequisite to a grant of relief for unfair competition. Ball v. American Trial Lawyer's Ass'n, 14 Cal.App.3d 289 (1971). Proof of intent to injure is not necessary to prove a violation of Section 17200. Irwin v. Mascott, 94 F. Supp.2d 1052, 1057 (N.D. Cal. 2000). To state a claim under the Section 17200, one need only show that "members of the public are likely to be deceived." Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995). However, summary judgment is proper if a plaintiff fails to establish a prima facie case or where the defendant can demonstrate that its business practice is justified. Eichman v. Fotomat Corp., 880 F.2d 149, 168 (9th Cir. 1989).
Provident argues that Rodriguez premises his Section 17200 claim on violations of 42 U.S.C. § 1981, Cal. Civ. Code §§ 51, 51.5 and Cal. Ins. Code §§ 679.71, 10140 (which prohibit discrimination against insurance application based on marital status, sex, race, color, religion, national origin, or ancestry). Since, as described above, we have found disputed issues of material facts as to Rodriguez's discrimination claims, summary judgment on this claim is inappropriate. Therefore, Provident's motion for summary judgment on count four is hereby DENIED.
F. Injunctive and Declaratory Relief
Since Rodriguez's injunctive and declaratory relief claims are premised on his 42 U.S.C. § 1981, Cal. Civ. Code §§ 51, 51.5 and Cal. Bus. Prof. Code § 17200 claims, and we have denied Provident's summary judgment motion as to those claims, we also hereby DENY Provident's motion for summary judgment as to the injunctive and declaratory relief claims.
IV. Disposition
Provident's motion for summary judgment is hereby DENIED as to the 42 U.S.C. § 1981, Cal. Civ. Code §§ 51, 51.5, Cal. Bus. Prof. Code § 17200, injunctive and declaratory relief claims. Provident's motion for summary judgment as to the intentional misrepresentation and concealment claims is hereby GRANTED.
IT IS SO ORDERED.