Ison v. Lara CA1/3

Filed 7/16/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ADAMMA ISON et al.,
Plaintiffs and Appellants,
A170267
v.
RICARDO LARA, as Insurance (Alameda County
Commissioner, etc., Super. Ct. No. 22CV008022)
Defendant and Respondent;
FARMERS INSURANCE
EXCHANGE et al.,
Interveners and Respondents.

Thirty years ago, the commissioner of the Department of Insurance
(Commissioner) promulgated a regulation permitting private automobile
insurers to consider a driver’s marital status as a factor when setting
insurance rates where marital status bears “a substantial relationship to the
risk of loss” as required by Proposition 103 — the voter-approved initiative
titled the Insurance Rate Reduction and Reform Act, which was enacted to
“protect consumers from arbitrary insurance rates and practices” and “ensure
that insurance is fair, available, and affordable for all Californians.” (Ins.
Code, § 1861.01 et seq., § 1861.02, subd. (a); Ballot Pamp., Gen. Elec. (Nov. 8,
1988) text of Prop. 103, § 1, p. 99, italics omitted; Cal. Code Regs., tit. 10,
§ 2632.5, subd. (d)(9) (regulation 2632.5(d)(9) or marital status regulation).)

1
In 2022, Adamma Ison and other unmarried automobile insurance
policyholders petitioned for a writ of mandate to compel the Commissioner to
rescind or amend the regulation, arguing it violates the Unruh Civil Rights
Act (Civ. Code, § 51, the Act) and the Rosenthal Auto Insurance
Nondiscrimination Law (Ins. Code, § 11628 (RAIN law); undesignated
statutory references are to this code). To wit, the Legislature amended the
Act in 2005 to prohibit businesses from discriminating against persons based
on marital status — a characteristic unmentioned in its former iterations.
(Stats. 2005, ch. 420, § 3; former Civ. Code, § 51, subd. (b).) And in 2008, it
amended the RAIN law to prohibit any characteristic listed or defined in the
Act from constituting a condition or risk for charging a higher insurance rate
or premium. (Stats. 2008, ch. 682, § 7; § 11628, subd. (a).) While Ison does
not dispute that marital status may justify a higher rate — that is, that it
has been shown to have a substantial relationship to the risk of loss — she
contends these amendments rendered the regulation inconsistent with its
authorizing statutes, which require insurance businesses to comply with the
Act.
The trial court denied the writ after concluding a limiting provision in
the Unruh Civil Rights Act — “This section shall not be construed to confer
any right or privilege on a person that is conditioned or limited by law” —
meant that the after-enacted Act’s protections did not preclude the already-
existing marital status regulation specifically addressing insurance rating
factors. (Civ. Code, § 51, subd. (c) (Section 51(c)).) Ison appealed. We affirm.
BACKGROUND
In 1988, voters approved Proposition 103, which declared that existing
laws allowed “insurance companies to charge excessive, unjustified and
arbitrary rates.” At the time, there was an open competition system of

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regulation, “under which ‘rates [were] set by insurers without prior or
subsequent approval by the Insurance Commissioner.’ ” (20th Century Ins.
Co. v. Garamendi (1994) 8 Cal.4th 216, 240.) Proposition 103 made
“numerous fundamental changes in the regulation of automobile and other
types of insurance.” (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805,
813, 812.) It added “to the Insurance Code article 10—‘entitled “Reduction
and Control of Insurance Rates.” ’ ” (State Farm Mutual Automobile Ins. Co.
v. Garamendi (2004) 32 Cal.4th 1029, 1035 (State Farm).) Among other
things, it required the “business of insurance” to comply with “the laws of
California applicable to any other business, including, but not limited to, civil
rights laws (Section 51 to 53, inclusive, of the Civil Code)” — including the
Unruh Civil Rights Act. (§ 1861.03, subd. (a); Civ. Code, § 51.) It also
required the Commissioner to approve insurance rates and “provide[d] for
consumer participation in the administrative ratesetting process.” (Walker v.
Allstate Indemnity Co. (2000) 77 Cal.App.4th 750, 753; § 1861.01, subd. (c).)
Rates could not be unfairly discriminatory or otherwise violate
provisions governing rates and ratings: “No rate shall be approved or remain
in effect which is excessive, inadequate, unfairly discriminatory or otherwise
in violation of this chapter.” (§ 1861.05, subd. (a) [within ch. 9, titled “Rates
and Rating and Other Organizations”].) It also added section 1861.02 to
regulate automobile insurance rates: “Rates and premiums for an automobile
insurance policy . . . shall be determined by application of the following
factors in decreasing order of importance: [¶] (1) The insured’s driving safety
record. [¶] (2) The number of miles he or she drives annually. [¶] (3) The
number of years of driving experience the insured has had. [¶] (4) Those
other factors that the commissioner may adopt by regulation and that have a
substantial relationship to the risk of loss.” (§ 1861.02, subd. (a)(1)–(4), italics

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added.) The provision further specified that, “[n]otwithstanding any other
provision of law, the use of any criterion without approval shall constitute
unfair discrimination.” (Id., subd. (a)(4).) An uncodified provision of
Proposition 103 notes that a two-thirds majority of the Legislature is
required to amend these provisions. (Ballot Pamp., Gen. Elec. (Nov. 8, 1988)
text of Prop. 103, § 8, p. 144.)
Pursuant to section 1861.02, the Commissioner in 1996 adopted
regulations for rating factors — “any factor, including discounts, used by an
insurer which establishes or affects the rates, premiums, or charges assessed
for a policy of automobile insurance” — for private automobile insurance.
(Cal. Code Regs., tit. 10, §§ 2632.1, 2632.2, subd. (a).) The regulations
prohibit insurers from using rating factors beyond those identified. (Cal.
Code Regs., tit. 10, § 2632.4, subd. (a) [“No insurer shall use a rating factor
which is not set forth in these regulations”].) In addition, “no insurer shall
adopt any rating factor based in whole or in part upon the race, language,
color, religion, national origin, ancestry, age, political affiliation, or sexual
orientation of any person.” (Ibid.) Nor may insurers use a rating factor “that
does not bear a substantial relationship to loss.” (Id., subd. (b).) Certain
rating factors are mandatory — an insurer must utilize the insured’s driving
safety record, miles driven annually, and years of driving experience for
determining rates for coverage. (Id., § 2632.5, subd. (c)(1)–(3).) Others are
optional, such as the driver’s type of vehicle, academic standing, and marital
status — the factor at issue here. (Id., subd. (d)(1), (6), (9).)
The Commissioner further promulgated regulations identifying certain
requirements for using optional rating factors like marital status. (Cal. Code
Regs., tit. 10, §§ 2632.1–2632.19.) Insurers must file a proposed class plan —
among other things, the schedule of rating factors and discounts used when

4
developing rates and premiums — with the Commissioner. (Id, §§ 2632.11,
subd. (a), 2632.3, subd. (a).) The Commissioner then ensures “ ‘that the
influence of each rating factor applied in an insured’s premium is weighed as
specified’ ” by the regulations. (Donabedian v. Mercury Ins. Co. (2004) 116
Cal.App.4th 968, 992.) There is also a “ ‘highly technical, formulaic
evaluation of the individual optional rating factors,’ ” including insurers
using historical loss data to determine the relative risk of loss presented by
the different categories within each rating factor. (Ibid.) The Commissioner
reviews each class plan application to ensure, among other things, that the
relativities are supported by the summary historical loss data provided by the
insurer.
The Unruh Civil Rights Act prohibits “arbitrary, invidious or
unreasonable” discrimination by business establishments and ensures full
and equal access of all people to public accommodations. (Sargoy v.
Resolution Trust Corp. (1992) 8 Cal.App.4th 1039, 1043; Civ. Code, § 51,
subd. (b).) It identifies protected categories, a list that has expanded since
1959 through legislative amendments. (Civ. Code, § 51, subd. (b); Harris v.
Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1151–1154 (Harris).)
Today, it provides, in relevant part, “[a]ll persons within the jurisdiction of
this state are free and equal, and no matter what their sex, race, color . . .
marital status . . . are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business establishments of
every kind whatsoever.” (Civ. Code, § 51, subd. (b).) Marital status was
expressly added to the Act in 2005 by Assembly Bill No. 1400 (2005–2006
Reg. Sess.) — it was not in earlier versions of the statute. (Stats. 2005,
ch. 420, § 3.) Significantly, the Act has always provided that it does not
confer “any right or privilege on a person that is conditioned or limited by

5
law.” (§ 51(c); Hessians Motorcycle Club v. J.C. Flanagans (2001) 86
Cal.App.4th 833, 837.)
The RAIN law, enacted in 1955, prohibits specified discriminatory
conduct by automobile liability insurance providers. (§ 11628, subd. (a);
Stats. 1955, ch. 125, § 1.) In 2008, the Legislature amended it to provide “nor
shall any characteristic listed or defined in subdivision (b) or (e) of [the
Unruh Civil Rights Act], including, but not limited to, language, or location
within a geographic area, of itself, constitute a condition or risk for which a
high rate, premium, or charge may be required of the insured for that
insurance.” (Stats. 2008, ch. 682, § 7; § 11628, subd. (a).)
In March 2022, Ison and other unmarried private automobile liability
insurance policyholders filed a petition for writ of mandate seeking to compel
the Commissioner to comply with the Unruh Civil Rights Act and RAIN law.
(Code Civ. Proc., § 1085.) They alleged the regulation permitting automobile
insurers to use marital status as an optional rating factor (regulation
2632.5(d)(9)) conflicts with the Act as amended in 2005 and the RAIN law as
amended in 2008. Using this prohibited characteristic for ratemaking, Ison
alleged, resulted in unmarried persons being charged approximately $56 to
$100 more for insurance than married persons. She sought an order
compelling the Commissioner to rescind or amend the regulations to
eliminate marital status as a rating factor. She further sought a mandate
requiring insurers who use marital status as a rating factor “to file new class
plans eliminating marital status as a premium rating factor.” Farmers
Insurance Exchange and Mid-Century Insurance Company (Farmers) moved
to intervene, claiming a substantial interest in the outcome of this proceeding
because they were named defendants in a pending putative class action based

6
on their use of marital status as a rating factor. (Code Civ. Proc., § 387;
§ 1861.10, subd. (a).)
The trial court granted leave to intervene and denied the petition. It
determined that the Commissioner is not subject to the Unruh Civil Rights
Act and RAIN law, which only apply to insurance businesses; however, this
was not dispositive. Rather, the relevant issue was whether the
Commissioner may adopt regulations that permit insurers to use rating
factors that are perceived as inconsistent with those statutes. The court
determined regulation 2632.5(d)(9) could be harmonized with the Act. It
noted Proposition 103 was passed in 1988, when the Act did not list marital
status as a protected characteristic. Although voters understood the Act
might be amended in the future, and intended that any amendments would
apply to insurance rate regulation, the court explained section 51(c) —
providing that the Act does not confer any right or privilege on a person “
‘that is conditioned or limited by law’ ” — limited the Act’s scope. By its plain
terms, the Act must “defer” to the already existing marital status regulation,
which had the force of law. Thus, the court concluded the regulation was not
invalid.
DISCUSSION
Ison contends the trial court erroneously denied her a writ of mandate
to compel the Commissioner to repeal the marital status regulation. (Code
Civ. Proc., § 1085; Alameda Health System v. Alameda County Employees’
Retirement Assn. (2024) 100 Cal.App.5th 1159, 1177 [courts may issue writs
of mandate to compel public officers or agencies to perform mandatory
duties].) She argues regulation 2632.5(d)(9) — authorizing private auto
insurers to use marital status as a rating factor when calculating insurance
rates — is invalid because it conflicts with the plain terms of the

7
nondiscrimination provisions in sections 1861.03 and 1861.05 — respectively
requiring insurers to comply with the Unruh Civil Rights Act and prohibiting
the approval or allowing to remain in effect a rate that otherwise violates the
provisions governing rates and ratings. (§§ 1861.03, subd. (a), 1861.05,
subd. (a); see Civ. Code, § 51, subd. (b).) She further contends the regulation
conflicts with the RAIN law, which she argues prohibits insurers from
charging higher rates based on a person’s marital status.
The Commissioner acknowledges the plain language argument but
argues the regulation can be harmonized with the Unruh Civil Rights Act.
According to the Commissioner, the limiting language in section 51(c) — that
the Act “shall not be construed to confer any right or privilege on a person
that is conditioned or limited by law” — exempts the more specific, already
existing marital status regulation from the Act’s stricture. (§ 51(c).) Hence,
the regulation does not conflict with or exceed its authorizing statutes in the
Insurance Code.
A regulation adopted by an agency pursuant to its authorizing statute
is valid if it is “ ‘consistent and not in conflict with the statute’ ” and
“ ‘reasonably necessary to effectuate the purpose of the statute.’ ”
(Communities for a Better Environment v. California Resources Agency (2002)
103 Cal.App.4th 98, 108; Gov. Code, § 11342.2.) Agencies granted
“substantive rulemaking power are truly ‘making law,’ ” thus “their quasi-
legislative rules have the dignity of statutes.” (Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1, 10–11 (Yamaha).) A review of
quasi-legislative regulations is generally limited to determining whether the
agency action was arbitrary, capricious, entirely lacking in evidentiary
support, or failed to follow required procedures. (California Assn. of
Psychology Providers v. Rank (1990) 51 Cal.3d 1, 11.) But when “a regulation

8
is challenged as inconsistent with the terms or intent of the authorizing
statute,” we independently interpret the statute while affording weight to the
administrative construction. (Ibid.; Western States Petroleum Assn. v. Board
of Equalization (2013) 57 Cal.4th 401, 416.) As with statutes, we
independently construe initiatives “in a manner that gives effect to the
voters’ purpose in adopting the law,” giving words their ordinary meaning,
“consider[ing] the text of related provisions and the structure” of the
statutory scheme, and presuming “the voters were aware of existing law.” (In
re Febbo (2020) 52 Cal.App.5th 1088, 1097; Center for Public Interest Law v.
Fair Political Practices Com. (1989) 210 Cal.App.3d 1476, 1484.) Courts
must strike down as void agency regulations that are inconsistent or in
conflict with the governing statute. (California School Bds. Assn. v. State Bd.
of Education (2010) 191 Cal.App.4th 530, 544.) Having engaged in this
review, we conclude the Commissioner has the better argument.
I.
Ison does not challenge the Commissioner’s determination that marital
status has a substantial relationship to the risk of loss, nor that the marital
status regulation is reasonably necessary to effectuate the purpose of its
authorizing statutes, sections 1861.02 and 1861.05. (Communities for a
Better Environment v. California Resources Agency, supra, 103 Cal.App.4th at
p. 108.) So we only consider whether the regulation is consistent with those
provisions, and we conclude it is. (California School Bds. Assn. v. State Bd. of
Education, supra, 191 Cal.App.4th at p. 544.) The chronology regarding the
enactment of sections 1861.02 and 1861.05, promulgation of regulation
2632.5(d)(9), and the relevant amendment of the Unruh Civil Rights Act is
helpful in our assessment of the regulation’s validity.

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Sections 1861.01 and 1861.02, enacted by Proposition 103, requires the
Commissioner to approve insurance rates before their use and “delegate[s]
the exclusive authority” to the Commissioner “to approve ‘optional rating
factors.’ ” (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005)
132 Cal.App.4th 1354, 1372; §§ 1861.01, subd. (c), 1861.02.) Section 1861.05
provides that “[n]o rate shall be approved or remain in effect which is
excessive, inadequate, unfairly discriminatory or otherwise in violation of
this chapter” — chapter 9, “Rates and Rating and Other Organizations.”
(§ 1861.05, subd. (a).) Section 1861.03, included in chapter 9, expressly
incorporates the Unruh Civil Rights Act — “The business of insurance shall
be subject to the laws of California applicable to any other business, including
but not limited to, civil rights laws (Sections 51 to 53, inclusive, of the Civil
Code).” (§ 1861.03, subd. (a); Stamps v. Superior Court (2006)
136 Cal.App.4th 1441, 1450 [“ ‘By its own terms, the Unruh Civil Rights Act
comprises only section 51’ ”].) Reading these provisions together, insurers
may not charge — and the Commissioner may not approve or allow to remain
in effect — rates that violate the Act.
Critically, when voters passed Proposition 103 — enacting sections
1861.02, 1861.03, and 1861.05 — the Unruh Civil Rights Act did not list
marital status as a protected characteristic. (Stats. 1992, ch. 913, § 3; former
Civ. Code, § 51, subd. (b).) Instead, it ensured full and equal accommodations
no matter a person’s “sex, race, color, religion, ancestry, national origin, or
disability.” (Stats. 1992, ch. 913, § 3; former Civ. Code, § 51, subd. (b).)
Consistent with the Act, the Commissioner promulgated regulations in 1996
that prohibited insurers from adopting “any rating factor based in whole or in
part upon the race, language, color, religion, national origin, ancestry, age,
political affiliation, or sexual orientation of any person.” (Cal. Code Regs., tit.

10
10, § 2632.4, subd. (a).) But the Commissioner also authorized insurers to
use the marital status of the rated driver as an optional rating factor after
determining that it bore a substantial relationship to the risk of loss.
(Regulation 2632.5(d)(9).) As a result, insurance businesses determining
rates based, in part, on marital status were not otherwise violating chapter 9
of the Insurance Code — i.e., section 1861.03, which incorporates the Act.
(§ 1861.05, subd. (a).) As the parties agree, the regulation was then valid
because it was consistent “with the terms or intent of the authorizing
statute.”1 (California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d
at p. 11.)
Assembly Bill No. 1400 (2005–2006 Reg. Sess.) — amending the Unruh
Civil Rights Act to identify marital status as a protected characteristic —
does not change this outcome. (Stats. 2005, ch. 420, § 3.) True, the Insurance
Code provides that “[w]henever any reference is made to any portion of this
code or of any other law of this State, such reference shall apply to all
amendments and additions thereto now or hereafter made.” (§ 9.) And

1 We reject Farmers’s argument that regulation 2632.5(d)(9) does not

conflict with the Unruh Civil Rights Act and RAIN law because neither
applies to the Commissioner’s rate regulation activities. Though the
Commissioner is neither a “business establishment[]” nor an “admitted
insurer” — to which the Act and RAIN law apply respectively — this does not
address the issue here. (Civ. Code, § 51, subd. (b); § 11628, subd. (a)
[prohibiting “admitted insurer[s]” from certain conduct]; Spanish Speaking
Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1240 [Act “has
no bearing on any regulation the Commissioner may adopt” because the
Department of Insurance is not a “ ‘business establishment’ ”].) Rather than
examining whether the Commissioner is liable for civil rights law violations,
Ison challenges the Commissioner’s authority to permit insurers to charge
rates based on factors that allegedly violate the Act and RAIN law.
(§§ 12921, subd. (a), 12926 [Commissioner shall require insurers to fully
comply with all provisions of the Insurance Code].)
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where a statute makes general reference to another statute, “ ‘ “such as a
reference to a system or body of laws or to the general law relating to the
subject in hand, the referring statute takes the law or laws referred to not
only in their contemporary form, but also as they may be changed from time
to time.” ’ ” (People v. Rojas (2023) 15 Cal.5th 561, 570.) Here, section
1861.03 generally refers to the Act rather than invoking a specific provision
of that statutory scheme — “civil rights laws (Sections 51 to 53, inclusive, of
the Civil Code).” (§ 1861.03, subd. (a).) Thus, it incorporates the provisions
of the Act as they existed in 1988 as well as future amendments. (Rojas,
at p. 573.)
Construing section 1861.03 in light of the foregoing principles, Ison
contends the 2005 amendment of the Unruh Civil Rights Act constrains the
Commissioner’s authority to maintain regulation 2632.5(d)(9) and prohibits
insurers from charging insurance rates that employ marital status as an
optional rating factor. In her view, any rate based in part on marital status
would violate section 1861.05 — “[n]o rate shall be approved or remain in
effect which is . . . otherwise in violation” of provisions governing rates and
factors that affect rate changes. (§ 1861.05, subd. (a); State Farm, supra, 32
Cal.4th at p. 1041.)
But this reading fails to account for section 51(c), which was unaffected
by the 2005 amendment. (Compare Stats. 2005, ch. 420, § 3 with Stats. 1992,
ch. 913, § 3; Center for Public Interest Law v. Fair Political Practices Com.,
supra, 210 Cal.App.3d at p. 1480 [statutes must be interpreted as a whole].)
That provision “anticipates that if there is a conflict between [the Act’s]
provisions and those of another statute, the former” — the Act — “defers to
the latter.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1504 (Lazar);
Harris, supra, 52 Cal.3d at p. 1155 [§ 51(c) “suggests that the Act was not

12
intended to create rights of access to public accommodations when . . . other
legislation specifically limited or disclaimed those rights”], superseded on
other grounds as explained in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
672.)
Lazar is instructive. There, the court rejected a challenge to rental car
companies’ minimum age requirement as unlawful age discrimination under
the Unruh Civil Rights Act. (Lazar, supra, 69 Cal.App.4th at pp. 1499–1500.)
It noted the Legislature enacted another statute authorizing rental car
contracts to include minimum age requirements. (Id. at pp. 1502–1503.) The
court reasoned the “legislative regulation of vehicle rental agreements is
more specific than the general antidiscrimination provisions of the Act.” (Id.
at p. 1504.) Under those circumstances, the Act “specifically provides that it
must not be construed to confer any right or privilege on a person which is
otherwise conditioned or limited by law.” (Lazar, at p. 1504.)
Regulation 2632.5(d)(9) and the Unruh Civil Rights Act can be
similarly reconciled. (State Farm, supra, 32 Cal.4th at p. 1043 [examining
entire statute, construing words in context, and “ ‘harmonizing its various
parts’ ”].) Starting in 1996, the regulation authorized the use of marital
status as an optional rating factor that bears a substantial relationship to the
risk of loss. Thus, it is more specific than the “general antidiscrimination
provisions” of the Act. (Lazar, supra, 69 Cal.App.4th at p. 1504.) The
regulation also specifically approved treating drivers differently based on
their marital status. (Harris, supra, 52 Cal.3d at p. 1155 [§ 51(c)’s “plain
language suggests that the Act was not intended to create rights of access to
public accommodations when . . . other legislation specifically limited or
disclaimed those rights”].) In those circumstances, section 51(c) means the
Act defers to the marital status regulation. (Lazar, at p. 1504; Wilson v. Fair

13
Employment & Housing Com. (1996) 46 Cal.App.4th 1213, 1222 [“by its own
terms,” the Act “is designed not to encroach upon the Insurance Code or other
existing law”]; see also Schmidt v. Superior Court (1989) 48 Cal.3d 370, 383
[existing statute restricting housing to adults prevailed over more general
provisions of the Act, which did not address age-based protections when the
housing statute was enacted].) So understood, the regulation remains
consistent with its authorizing statutes — sections 1861.02 and 1861.05 —
rather than “ ‘alter[ing] or amend[ing] the governing statute or case law.’ ”
(Association of California Ins. Cos. v. Poizner (2009) 180 Cal.App.4th 1029,
1045.)2
Ison offers several arguments disputing this conclusion; they fail to
persuade.3 First, she contends the Unruh Civil Rights Act does not confer
any right or privilege on a person “that is conditioned or limited by law”
(§ 51(c), italics added), and “law” does not include a regulation. Relying on
language in Harris — which stated section 51(c) means the Act was not
intended to create rights of access to public accommodations when “other
legislation specifically limited or disclaimed those rights” — she insists
section 51(c)’s limitation applies solely to other statutes enacted by the

2 In light of this conclusion, we do not address the Commissioner’s

alternative argument that the marital status regulation is consistent with
the Unruh Civil Rights Act or RAIN law because insurers have a legitimate
business interest in setting insurance premiums based on risk.
3 Ison argues for the first time on appeal that the marital status

regulation violates Civil Code section 51.5, articulating specific types of
prohibited discrimination. (Civ. Code, § 51.5, subd. (a); Roth v. Rhodes (1994)
25 Cal.App.4th 530, 537.) But the Unruh Civil Rights Act does not include
Civil Code section 51.5 or other related statutes (Stamps v. Superior Court,
supra, 136 Cal.App.4th at p. 1450), and she forfeited this argument by failing
to raise the issue in the trial court (Truck Ins. Exchange v. AMCO Ins. Co.
(2020) 56 Cal.App.5th 619, 635).
14
Legislature. (Harris, supra, 52 Cal.3d at p. 1155, italics added.) We
disagree.
Harris did not purport to define “law” as it is used in section 51(c),
and it is not authority for a proposition it did not consider. (Harris, supra,
52 Cal.3d at p. 1155; Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.)
More importantly, we do not read the term “law” so narrowly. Though Civil
Code section 51 does not define that term, various dictionaries define it to
include regulations. (Civ. Code, § 51; Busker v. Wabtec Corp. (2021) 11
Cal.5th 1147, 1158–1159 [examining dictionary definitions for statutory
interpretation]; Merriam-Webster’s Dict. Online (2026)
<https://www.merriam-webster.com/dictionary/law> [defining “law” as “a rule
or mode of conduct or action that is prescribed or formally recognized as
binding by a supreme controlling authority,” as of July 16, 2026]; Black’s Law
Dict. (12th ed. 2024) [defining “law” as the “aggregate of legislation, judicial
precedents, and accepted legal principles; the body of authoritative grounds
of judicial and administrative action,” italics added].) Case law similarly
defines “law” broadly, noting that quasi-legislative regulations are “an
authentic form of substantive lawmaking.” (Yamaha, supra, 19 Cal.4th at p.
10.) By passing Proposition 103, including section 1861.02 — which
conferred the Commissioner with authority to adopt by regulation rating
factors that have a substantial relationship to the risk of loss — voters
“delegated a portion” of “their lawmaking power” to the Commissioner. (In re
Febbo, supra, 52 Cal.App.5th at p. 1097; § 1861.02, subd. (a)(4).) The
Commissioner proceeded to promulgate regulation 2632.5(d)(9), which has
the dignity of a statute. (Yamaha, at p. 10.)
Next, Ison argues that nothing in Proposition 103 specifically limited
the application of civil rights laws, thus voters did not intend section 51(c) to

15
condition or limit the application of the Unruh Civil Rights Act in insurance
matters. This argument ignores the presumption that voters are aware of
existing, related laws. (California Cannabis Coalition v. City of Upland
(2017) 3 Cal.5th 924, 934.) We presume voters understood that section
51(c) — a statute that existed prior to and was expressly incorporated into
the Insurance Code by Proposition 103 — required the Act to defer to —
rather than encroach upon — the Insurance Code or other existing laws,
including validly promulgated regulations. (Wilson v. Fair Employment &
Housing Com., supra, 46 Cal.App.4th at p. 1222.)
Ison further contends the Unruh Civil Rights Act controls here because
when “there is a conflict between a regulation and a statute or decisional law,
it is well settled that the law controls the regulation.” (Kerollis v. Department
of Motor Vehicles (1999) 75 Cal.App.4th 1299, 1308.) But section 51(c)
envisions that the Act confers no right or privilege that a law — such as the
marital status regulation — conditions or limits; as we have explained, the
two can be harmonized. Moreover, “it is no less settled that when a special
and a general statute are in conflict, the former controls” — the special act is
an exception to the general statute. (Agricultural Labor Relations Bd. v.
Superior Court (1976) 16 Cal.3d 392, 420.) Likewise, the Legislature can also
authorize an administrative agency to “depart from its existing dispositions
on a given topic” “on its behalf.” (Ibid.) Thus, “in cases of conflict,” a
“regulation validly adopted pursuant to a delegation of authority under a
special statute likewise prevails over the terms of a general statute.” (Ibid.)
“This rule of construction is reiterated and specifically made applicable”
here by section 1860.1 — “No act done, action taken . . . pursuant to the
authority conferred by [chapter 9, governing Rates and Rating and Other
Organizations] shall constitute a violation of . . . any other law of this State

16
heretofore or hereafter enacted which does not specifically refer to
insurance.” (Agricultural Labor Relations Bd. v. Superior Court, supra,
16 Cal.3d at p. 420; § 1860.1.) As discussed above, the marital status
regulation was validly adopted pursuant to sections 1861.02 and 1861.05
before marital status was added to the Unruh Civil Rights Act. Nothing in
the language of the Act or Assembly Bill No. 1400 indicates any intent to
alter the process or standards for setting insurance rates or to work any other
effects on insurance. (Stats. 2005, ch. 420, § 3, p. 3513 [“the Legislature
intends to clarify the existing law, rather than to change the law”].) Thus,
the specific regulation authorizing reliance on the marital status of a rated
driver for insurance rating purposes prevails over the general Act.
Next, citing the Disabled Persons Act’s distinction between laws and
regulations — “Individuals with disabilities shall be entitled to full and equal
access, as other members of the general public . . . subject only to the
conditions and limitations established by law, or state or federal
regulation” — Ison argues the Legislature knew how to employ precise
language to limit rights and privileges by a regulation but consciously
omitted it in section 51(c). (Civ. Code, § 54.1, subd. (a)(1), italics added.) We
acknowledge that “ ‘when the Legislature has carefully employed a term in
one place and has excluded it in another, it should not be implied where
excluded.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725.)
But that principle has no application here. It applies “only when the
Legislature has intentionally changed or excluded a term by design” and
“when different terms are used in parts of the same statutory scheme that
they are presumed to have different meanings.” (Smith v. Rae-Venter Law
Group (2002) 29 Cal.4th 345, 364, superseded on other grounds by statute as
noted in Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th

17
1363, 1384.) Leaving aside Ison’s failure to identify any evidence the
Legislature specifically intended to exclude “regulations” from section 51(c)’s
use of the term “law,” section 54.1 is located in a different part of the Civil
Code — part 2.5, titled “Blind and Other Physically Disabled Persons.”
(Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126 [requiring
evidence Legislature intended expressio unius application “ ‘ “lest it prevail
as a rule of construction despite the reason for and the spirit of the
enactment” ’ ”].) Section 51(c) appears in part 2, titled “Personal Rights.” It
“does not appear that the Legislature’s failure to use identical language” in
the Unruh Civil Rights Act “was either intentional or meaningful.” (Smith,
at p. 364.)
Our reading of section 51(c) and regulation 2362.5(d)(9) also does not
contravene State Farm, contrary to Ison’s assertions.4 There, a regulation
required insurance companies to publicly disclose demographic information
regarding its business organized by ZIP code. (State Farm, supra, 32 Cal.4th
at pp. 1036–1038 [interpreting § 1861.07 and Cal. Code Regs., tit. 10,
§ 2646.6, subd. (c)].) An insurance business argued the regulation exceeded
the Commissioner’s authority under Proposition 103 — a statutory scheme it
argued primarily addressed rate regulation. (State Farm, at pp. 1039–1040.)
The Supreme Court disagreed, noting that Proposition 103 “subjects the
business of insurance to laws prohibiting discriminatory and unfair business
practices.” (State Farm, at p. 1041.) In addition to rate regulation, it

4 We reject Ison’s request for judicial notice of the Commissioner’s brief

filed in State Farm. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) She did
not present it to the trial court in the first instance, and in any event, the
brief has no bearing on the issues here. (Brosterhous v. State Bar (1995)
12 Cal.4th 315, 325–326 [declining to take judicial notice of records where
proponent “puts forth no reason for its failure” to make request in the trial
court]; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
18
“addresses the underlying factors that may impermissibly affect rates
charged by insurers and lead to insurance that is unfair, unavailable, and
unaffordable.” (Id. at pp. 1041–1042.) Thus, the Commissioner had the
authority to gather the requested information to determine whether the
insurance industry underserved certain communities. (Id. at p. 1042.) We
agree with State Farm’s uncontroversial observation that insurance
businesses are subject to nondiscrimination laws. But we cannot discern
anything in the decision that addresses the relationship between the
Commissioner’s optional rating factor regulations and the Unruh Civil Rights
Act, the relevant issue here. (State Farm, at p. 1041.)
In sum, regulation 2632.5(d)(9) is not invalid under the Unruh Civil
Rights Act, and the trial court properly denied the writ seeking its rescission.
II.
Regulation 2632.5(d)(9) also does not conflict with the RAIN law.
(§ 11628, subd. (a).) Section 11628, as amended by Assembly Bill No. 2654
(2007–2008 Reg. Sess.), provides that “any characteristic listed or defined” in
the Unruh Civil Rights Act shall not “of itself constitute a condition or risk for
which a higher rate, premium, or charge may be required of the insured for
that insurance.” (Stats. 2008, ch. 682, § 7; § 11628, subd. (a), italics added.)
To the extent this provision may be read to categorically prohibit automobile
insurers from using marital status as a basis for charging higher insurance
rates, section 11628’s legislative history expressly disavows any intent to
alter the Commissioner’s optional rating factor regulations. (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735 [“the ‘plain meaning’ rule does not
prohibit a court from determining whether the literal meaning of a statute
comports with its purpose or whether such a construction of one provision is

19
consistent with other provisions of the statute”]; § 11628, subd. (a); Civ. Code,
§ 51, subd. (b).)
An express statement of legislative intent by Assembly Bill No. 2654’s
author printed in the Assembly Journal addresses the apparent conflict
between section 11628’s plain language and the Legislature’s purpose.
(Assemblymember John Laird, letter to Assembly Chief Clerk E. Dotson
Wilson (Sept. 15, 2008) 6 Assem. J. (2007–2008 Reg. Sess.) p. 7255; Stokes v.
Baker (2019) 35 Cal.App.5th 946, 964, fn. 5 [using statement by the
sponsoring legislator to ascertain legislative intent if the statement has been
approved and “ ‘evidences the understanding of the Legislature’ and not
simply the particular legislator’s personal views”].) He explained that section
7 of the bill prohibits discrimination in casualty insurance, “including in the
use and establishment of rating factors,” while also acknowledging
Proposition 103 authorized the Commissioner to establish optional rating
factors through regulation. (Assemblymember John Laird, letter to Assembly
Chief Clerk E. Dotson Wilson, supra, 6 Assem. J. (2007–2008 Reg. Sess.)
p. 7256.) The amendment, he emphasized, was not intended “to amend Prop.
103 with respect to these rating factors.” (Ibid.) And he acknowledged that
altering Proposition 103’s rating factor statutes would require a two-thirds
majority vote, and “regulatory action by the Insurance Commissioner would
be necessary to change the optional rating factors.” (Ibid.)
The letter does not reflect that the Legislature intended to strip the
Commissioner of authority to maintain the marital status regulation,
contrary to Ison’s assertions. It simply assuaged concerns about how
“[Assembly Bill No.] 2654 might affect rating factors used by these insurers”
by reiterating that only the Commissioner could change any optional rating
factors “in light of the fact that Proposition 103 established certain rating

20
factors in law and also authorized the State Insurance Commissioner to
establish additional optional rating factors through regulation.”
(Assemblyperson John Laird, letter to Assembly Chief Clerk E. Dotson
Wilson, supra, 6 Assem. J. (2007–2008 Reg. Sess.) p. 7256.) That the
Assembly voted to print this statement in the Assembly Journal underscores
the Legislature’s clear intent that the amendment of the RAIN law would
have no effect on the marital status regulation, contrary to a literal reading
of the statutes. (Stokes v. Baker, supra, 35 Cal.App.5th at p. 965; Bell v.
Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 312 [disregarding
literal language of an enactment to fulfill the Legislature’s intent].) The
RAIN law amendment does not supply a basis to invalidate the marital
status regulation.
III.
We reject Ison’s remaining arguments. First, she conclusively states
the marital status regulation is an unconstitutional delegation of legislative
authority because it permits the Commissioner to determine the applicability
of civil rights law. Not so. The Legislature may properly delegate “ ‘some
quasi-legislative or rulemaking authority.’ ” (Gerawan Farming, Inc. v.
Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1146.) An
unconstitutional abdication of legislative power occurs “ ‘only when a
legislative body (1) leaves the resolution of fundamental policy issues to
others or (2) fails to provide adequate direction for the implementation of that
policy.’ ” (Ibid.) Assuming without deciding these principles apply to an
initiative passed by voters, the delegation was not unconstitutional.
Voters made the fundamental policy determination that the
Commissioner must review and approve rate increases for various types of
insurance before they can take effect. (Ballot Pamp., Gen. Elec. (Nov. 8,

21
1988) Prop. 103, analysis by the Legislative Analyst, p. 98.) Section 1861.02
delegated to the Commissioner the authority to adopt optional automobile
insurance rating factors that have a substantial relationship to the risk of
loss and required the Commissioner to “adopt regulations implementing this
section.” (Ballot Pamp., Gen. Elec. (Nov. 8, 1988) text of Prop. 103, § 3, p. 99;
§ 1861.02, subd. (a)(4).) Thus, the voters declared a policy, created a
standard, and authorized the Commissioner to determine which optional
rating factors would be appropriate. (Gerawan Farming, Inc. v. Agricultural
Labor Relations Bd., supra, 3 Cal.5th at p. 1148.) The marital status
regulation, as discussed above, complies with the Unruh Civil Rights Act.
The regulation does not violate the nondelegation doctrine. (Gerawan,
at p. 1148.)
Second, a June 2022 bulletin concerning “allegations of racial bias and
discrimination” issued by the Commissioner, which reminded the insurance
industry that the Unruh Civil Rights Act protects against discrimination
based on protected characteristics (including marital status) and that
insurers must ensure full compliance with all laws prohibiting discrimination
in ratemaking, does not impact our analysis. Contrary to Ison, we do not
interpret this bulletin as an agency interpretation relevant to the issues here.
Even if it were, “[c]onsidered alone and apart from the context and
circumstances that produce them, agency interpretations are not binding or
necessarily even authoritative.” (Yamaha, supra, 19 Cal.4th at p. 8.) And
deferring to the purported interpretation here would in any event be
unnecessary as we reach our conclusions based on our independent
interpretation of the law. (Ibid. [“ ‘The standard for judicial review of agency
interpretation of law is the independent judgment of the court, giving

22
deference to the determination of the agency appropriate to the circumstances
of the agency action’ ”].)
We express no view as to whether, or how, section 51(c) may be applied
in a civil lawsuit seeking to hold a business establishment liable under the
Unruh Civil Rights Act for conduct authorized by a regulation. (Cf. Davis v.
CSAA Ins. Exchange (2025) 114 Cal.App.5th 121, 135.)
DISPOSITION
The judgment is affirmed. The Commissioner and Farmers are entitled
to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

23
_________________________
RODRÍGUEZ, J.

I CONCUR:

_________________________
FUJISAKI, J.

A170267; Ison v. Lara

24
TUCHER, J., Dissenting.
I agree with the majority on three fundamental points: First,
Proposition 103 requires the “ ‘business of insurance’ ” to comply with the
State’s “ ‘civil rights laws,’ ” including all “future amendments” to those laws.
(Maj. opn. ante, at pp. 10–12, quoting Ins. Code, § 1861.03, subd. (a)
(§ 1861.03(a)).) Second, the Unruh Civil Rights Act (Civ. Code, § 51 et seq.;
the Act or the Unruh Act) was amended after the passage of Proposition 103
expressly to prohibit discrimination based on marital status. (Maj. opn. ante,
at p. 2, citing Stats. 2005, ch. 420, § 3.) And third, the Commissioner of the
Department of Insurance (Commissioner), who is tasked under Proposition
103 with approving automobile insurance rates, “may not approve . . . rates
that violate the Act.” (Maj. opn. ante, at p. 10, discussing Ins. Code,
§§ 1861.03(a), 1861.05; all unspecified statutory references are to this code.)
From these three points, I deduce two more. Because insurers must
comply with future amendments to the Unruh Act and the Act was amended
to list marital status as a protected class in 2005, automobile insurers may no
longer discriminate on the basis of marital status. And for the same reason,
the Commissioner may no longer approve rates that allow such
discrimination.
On its face, the regulation appellants challenge allows insurers to
charge unmarried drivers more than married drivers. (See Cal. Code of
Regs., tit. 10, § 2632.5, subd. (d)(9) (Regulation 2632.5(d)(9) or marital status
regulation); all unspecified references to regulations are to Cal. Code of Regs.,
tit. 10.) For that reason, it cannot stand: It purports to authorize insurers to
adopt rates that discriminate on a basis that the Unruh Act now prohibits.
The marital status regulation is thus no longer consistent with its own

1
authorizing legislation, which compels insurers to comply with the Act and
future amendments to the Act. (§ 1861.03(a).)
The marital status regulation also conflicts with a second civil rights
law, the Rosenthal Auto Insurance Nondiscrimination Law (§ 11628 (RAIN
law)). As amended in 2008, the RAIN law forbids insurers to charge higher
automobile insurance rates based on “any characteristic listed” in the Unruh
Act. (§ 11628.) My colleagues appear to recognize that the plain language of
this provision prohibits automobile insurers from charging unmarried drivers
more for automobile insurance than married drivers. (Maj. opn. ante, at
pp. 19–21.) Unlike my colleagues, I do not read legislative history to negate
the ordinary meaning of this statutory language.
Where a regulation is “void because of inconsistency or conflict with the
governing statute, a court has a duty to strike [it] down.” (California School
Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530, 544.) I must
accordingly dissent.
BACKGROUND
The statutory and procedural background of this dispute is ably set
forth in the majority’s opinion, but because chronology is dispositive in the
majority’s analysis, additional historical perspective is useful. After setting
forth relevant provisions of Proposition 103, the Unruh Act, and the RAIN
law, I summarize the regulatory activity that led to the adoption of the
marital status regulation.
A.
The Insurance Rate Reduction and Reform Act, commonly referred to
as Proposition 103, was approved by California voters in November 1988, and
its provisions were added to Chapter 9 of the Insurance Code. (Amwest
Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1247–1248.) These
2
provisions include section 1861.02, which sets forth mandatory automobile
insurance rating factors and authorizes the Commissioner to adopt
regulations allowing optional rating factors.
Proposition 103 also added two code sections that constrain how the
Commissioner exercises this regulatory authority. Section 1861.03(a)
provides, the “business of insurance shall be subject to the laws of California
applicable to any other business, including, but not limited to, civil rights
laws (Section 51 to 53, inclusive, of the Civil Code) . . . .” And section 1861.05
provides, “No rate shall be approved or remain in effect which is excessive,
inadequate, unfairly discriminatory or otherwise in violation of this chapter.”
(§ 1861.05, subd. (a) (§ 1861.05(a)).) These provisions appear in the same
chapter and work together to prohibit the Commissioner from approving any
rate that violates “the civil rights laws” of California. (§§ 1861.03(a),
1861.05(a).)
B.
Chief among our state’s civil rights laws is the Unruh Act. The Unruh
Act enumerates categories of prohibited discrimination in a list that has
expanded since 1959 through repeated legislative amendment. (Civ. Code,
§ 51, subd. (b) (§ 51(b)); see Harris v. Capital Growth Investors XIV (1991) 52
Cal.3d 1142, 1151–1154 (Harris), partially superseded on other ground,
Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 664–665.) Currently, the Act
provides that all persons within 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 . . . full
and equal accommodations . . . in all business establishments of every kind

3
whatsoever.” (§ 51(b).) Marital status was added to this list in 2005.
(Stats. 2005, ch. 420, § 3.)
The Unruh Act provides even broader protection against discrimination
than its plain language would suggest, for courts have long held that its
enumerated categories are illustrative, rather than restrictive. (See, e.g.,
Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 919–920.) Unenumerated
types of discrimination may also violate the Act if the challenged conduct
targets personal characteristics similar to the classifications enumerated in
the Act. (Harris, supra, 52 Cal.3d at pp. 1148, 1152–1156.) Thus, courts
have held that the Act “prohibits arbitrary discrimination” on the basis of
age, although the Act nowhere mentions age. (Lazar v. Hertz Corp. (1999) 69
Cal.App.4th 1494, 1502 (Lazar); see also Liapes, at p. 920.) And even before
the Legislature amended the Unruh Act expressly to prohibit discrimination
based on marital status, our high court “conclude[d] that marital status
claims are cognizable under the [Act].” (Koebke v. Bernardo Heights Country
Club (2005) 36 Cal.4th 824, 831 (Koebke).) Koebke held that “a business that
extends benefits to spouses it denies to registered domestic partners engages
in impermissible marital status discrimination” under the Act. (Ibid.)
Despite its broad reach, the Unruh Act has some significant
limitations. Most relevant for our purposes, it does not confer “any right or
privilege on a person that is conditioned or limited by law.” (Civ. Code, § 51,
subd. (c) (§ 51(c).) Interpreting this provision, courts have held that when
there is a conflict between provisions of the Act and those of another statute,
“the former defers to the latter.” (Lazar, supra, 69 Cal.App.4th at p. 1504.)
Unruh Act protections are incorporated by reference into statutes that
directly regulate the automobile insurance industry. As we have seen,
Proposition 103 expressly subjects insurers to the Unruh Act. (§ 1861.03(a).)
4
Also, the RAIN law as amended in 2008 incorporates the Unruh Act’s express
antidiscrimination protections. The RAIN law prohibits automobile liability
insurers from charging higher rates on the basis of “any characteristic listed”
in Civil Code section 51(b). (Stats. 2008, ch. 682, § 7 (Assem. Bill 2654); Ins.
Code, § 11628, subd. (a).)
C.
Several former Insurance Commissioners struggled to devise
regulations implementing Proposition 103 before the Department of
Insurance (Department) adopted permanent regulations in 1996. (Spanish
Speaking Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1185,
1194–1200 (Spanish Speaking Citizens’).) Beginning in 1989, the
Department approved a series of emergency and interim regulations, some of
which identified the marital status of the rated driver as a permissible factor
for determining insurance rates and premiums, while others did not.
In 1994, the Department approved an interim regulation proposed by
former Commissioner Garamendi that expressly prohibited insurers from
adopting any rating factor based on marital status. Garamendi
acknowledged that marital status and two other classifications included on
his list of prohibited factors—age and gender—had been commonly used by
insurers and previously deemed permissible. But he found them
“undesirable” as rating factors because they are individual characteristics not
within the driver’s control. Garamendi also found that, to the extent the
Unruh Act did not bar use of these factors—it listed neither age nor marital
status in 1994—both factors were nonetheless inconsistent with the purpose
of Proposition 103.
In 1996, the Department under former Commissioner Quackenbush
adopted permanent regulations based on a different view. Commissioner
5
Quackenbush announced that the marital status of the rated driver was a
permissible rating factor, offering this explanation for parting from his
predecessor: “The Commissioner has determined that the use of marital
status is not unfairly discriminatory within the meaning of the Unruh Civil
Rights Act. Therefore, the prohibition of the use of marital status as a rating
factor has been removed from the proposed regulation.” It is worth noting
that the Commissioner who approved the marital status regulation did so
only after concluding it was “not unfairly discriminatory” under the Unruh
Act. This view was plausible in 1996, when the only appellate decision to
have considered whether discrimination based on marital status was
cognizable under the Unruh Act concluded it was not. (See Beaty v. Truck
Ins. Exchange (1992) 6 Cal.App.4th 1455, discussed in Koebke, supra, 36
Cal.4th at p. 843.) But that changed in 2005, when the California Supreme
Court decided Koebke and then the Legislature amended the Unruh Act
expressly to include marital status discrimination.
Collectively, the regulations adopted in 1996 prescribe a process for
setting automobile insurance rates. (Regulation 2632.1 et seq.) Each insurer
must submit a case plan specifying its rating factors (i.e., factors that affect
rates) and how the insurer plans to use them in calculating rates.
(Regulations 2632.2, subd. (a), 2632.3, 2632.5, subd. (a).) Insurers are
prohibited from using any rating factor that is not set forth in the
regulations, or that does not bear a substantial relationship to loss.
(Regulation 2632.4.) The regulations also prohibit insurers from adopting
any rating factor that is based in whole or in part “on the race, language,
color, religion, national origin, ancestry, age, political affiliation, or sexual
orientation of any person” (Regulation 2632.4, subd. (a)), a list that includes
some characteristics not enumerated in the Unruh Act (e.g., age, political
6
affiliation) and fails to include some that are so enumerated, including “sex”
and “marital status.” (Civ. Code, § 51(b).)
Regulation 2632.5, subdivision (d) provides that, in addition to the
mandatory rating factors set forth in section 1861.02, subdivisions (a)(1)
through (a)(3), insurers may set rates based on “optional rating factors” listed
in the regulation, including the marital status of the rated driver (Regulation
2632.5(d)(9)). A decade after the Commissioner approved this regulation, the
Legislature amended the Unruh Act to add marital status to its enumerated
categories of prohibited discrimination. Yet, the Commissioner never
rescinded the marital status regulation, even when amending the regulations
to eliminate gender as an optional rating factor. 1 This inaction precipitated
the parties’ dispute.
DISCUSSION
Appellants and amici contend the Commissioner must be compelled to
set aside Regulation 2632.5(d)(9) because he does not have authority, when
promulgating and maintaining rate regulations, to limit application of the
state’s civil rights laws.2 I agree. Although the Department’s construction of

1 As to both gender and marital status, the 1996 regulations reverted
to allowing insurers to use these as optional rating factors, but in 2018 the
Commissioner reversed course again as to gender, eliminating it as an
optional rating factor. (See Cal. Reg. Notice Register 2018, No. 42-Z,
pp. 1844–1849; Cal. Reg. Notice Register 2019, No. 2-Z, p. 74.)

2 Appellants are supported by two nonprofit organizations that have
filed amicus curiae briefs. As self-described, the Consumer Federation of
America is an association of organizations that advocate to make insurance
affordable and accessible for all consumers, and Consumer Watchdog is a
California charitable organization committed to defending the consumer
protection provisions of Proposition 103 and protecting Californians from
unfair or abusive insurance rates and practices.
7
an Insurance Code provision deserves respect, statutory interpretation
presents a “question of law solely within the province of this court.” (Mackey
v. Bristol West Ins. Service of Cal., Inc. (2003) 105 Cal.App.4th 1247, 1263.)
It is a “ judicial function” to determine whether a regulation “ ‘ “is ‘within the
scope of the authority conferred.’ ” ’ ” (Yamaha Corp. of America v. State Bd.
of Equalization (1998) 19 Cal.4th 1, 11.) For the reasons explained below, I
conclude the marital status regulation is not within the authority Proposition
103 confers on the Commissioner because it is not consistent with our civil
rights laws.
The argument proceeds in four parts. Addressing contentions of the
Commissioner and intervenors Farmers Insurance Exchange and Mid-
Century Insurance Company (Farmers), I first conclude the Commissioner’s
rulemaking authority is subject to the Unruh Act and the RAIN law in their
current forms. Part II then explains how the Unruh Act prohibits the price
discrimination based on marital status that Regulation 2632.5(d)(9) purports
to allow. Part III rejects the argument the majority finds dispositive, that in
the face of this conflict, section 51(c) requires the Unruh Act to “ ‘defer’ ” to
the marital status regulation. (See maj. opn. ante, at pp. 6, 13.) And Part IV
provides a separate but related reason why the marital status regulation is
void—because it conflicts with the RAIN law.
I.
Like the majority, I conclude that Proposition 103 requires insurers to
comply with the state’s civil rights laws as they have been subsequently
amended, and that the current versions of the Unruh Act and the RAIN law
constrain the Commissioner’s authority to approve rates. (Maj. opn. ante, at
pp. 10–11.)

8
We have seen that Proposition 103 added to the Insurance Code two
provisions that together prohibit the Commissioner from approving
automobile insurance rates that violate our civil rights laws. (See
§§ 1861.03(a), 1861.05(a).) Respondents seek to blunt the force of this
constraint, contending that to the extent section 1861.03(a) limits the
Commissioner’s regulatory authority,3 it incorporates an older version of the
Unruh Act that did not prohibit marital status discrimination. According to
this argument, (1) the 2005 Unruh Act amendment cannot be construed to
restrict the Commissioner’s ratemaking authority unless it also amended
Proposition 103, and (2) the 2005 Unruh Act amendment did not pass the
Legislature by the two-thirds vote necessary for amending Proposition 103.
(See Ballot Pamp., Gen. Elec. (Nov. 8, 1988) text of Prop. 103, § 8, p. 144.)
This argument fails on its first prong because section 1861.03(a) codifies the
intent of the voters who passed Proposition 103 to incorporate future
amendments to the Unruh Act. (See People v. Rojas (2023) 15 Cal.5th 561,
568, 571, 574 (Rojas).) Thus, Proposition 103 did not have to be amended for
the current version of the Unruh Act to apply. And by parity of reasoning, it
is also the current version of the RAIN law that applies.
In Rojas, supra, 15 Cal.5th at page 566, our Supreme Court found
legislation that changed the criminal law on gang enhancements did not
constitute an unlawful legislative amendment of the Gang Violence and

3 Like the majority, I reject Farmers’ assertion that the Commissioner’s

rate regulation activities are not subject to the Unruh Act or the RAIN law,
though the Unruh Act applies to “business establishments” (Civ. Code,
§ 51(b)) and the RAIN law to “admitted insurer[s]” (Ins. Code, § 11628,
subd. (a)). (See Maj. opn. ante, at p. 11, fn. 1.) Appellants do not seek to hold
the Commissioner liable for violating civil rights laws himself; they seek to
compel him to enforce those laws among insurers. (See §§ 1861.03(a), 12921,
subd. (a), 12926.)
9
Juvenile Crime Prevention Act of 1998 (Proposition 21). Rojas is pertinent
because the court there interpreted a provision in an initiative law that
incorporates another law by reference. The Rojas court confirmed that the
same principles governing statutory construction apply to interpretation of
an initiative statute, and it then applied a cannon that distinguishes a
specific reference from a general reference. (Rojas, at pp. 568, 571.) When an
initiative statute adopts by “ ‘ “specific reference” ’ ” the provisions of another
statute, those provisions “are incorporated in the form in which they exist at
the time of the reference and not as subsequently modified.” (Id. at pp. 570–
571.) But when the reference is “general instead of specific, such as a
reference to a system or body of laws or to the general law relating to the
subject in hand, the referring statute takes the law or laws referred to not
only in their contemporary form, but also as they may be changed from time
to time.” (Id. at p. 570.)
Applying Rojas, the trial court correctly concluded Insurance Code
section 1861.03(a) constitutes a general reference that incorporates the
Unruh Act. Section 1861.03(a) contains unambiguous language incorporating
the “civil rights laws,” including but not limited to the Unruh Act
(§ 1861.03(a)), thus codifying the voters’ intent to incorporate future
amendments to the Act. (See Rojas, supra, 15 Cal.5th at p. 571.) On appeal,
respondents ignore Rojas, but they cannot avoid the fact that Insurance Code
section 1861.03(a) incorporates the Unruh Act by general reference, meaning
that Proposition 103 did not “lock in” the Act’s protections as they existed in
1996. (Rojas, supra, 15 Cal.5th at p. 573.) And, as the majority points out,
the same result would obtain under section 9 of the Insurance Code. (Maj.
opn. ante, at p. 11, discussing Ins. Code, § 9 [“Whenever any reference is

10
made to . . . any other law of this State, such reference shall apply to all
amendments and additions thereto now or hereafter made”].)
Because section 1861.03(a) incorporates the civil rights laws by general
reference, I am unmoved by the Commissioner’s argument that the
Legislature did not intend for the 2005 Unruh Act amendment to amend
Proposition 103. The intent that matters is that of the electorate that
adopted Proposition 103. The voters who added section 1861.03(a) to the
Insurance Code intended to incorporate future amendments to the civil rights
laws, so no amendment to Proposition 103 was required for the current
version of the Unruh Act to govern. (See Kobzoff v. Los Angeles County
Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861 [“If the plain
language of a statute is unambiguous, no court need, or should, go beyond
that pure expression of legislative intent”].) The Commissioner’s ratemaking
authority is subject to the Unruh Act and the RAIN law in their current
forms. And this authority does not permit the Commissioner to adopt an
optional rating factor that conflicts with these civil rights laws.
II.
The Commissioner contends that the marital status regulation does not
conflict with the Unruh Act or the RAIN law because the Act “prohibits only
‘arbitrary’ discrimination,” whereas insurers have “a ‘legitimate business
reason’ for discriminating” between married and unmarried drivers. (Citing
In re Cox (1970) 3 Cal.3d 205, 212 (Cox); Koebke, supra, 36 Cal.4th at
pp. 851–852; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 30 (Koire).) The
Commissioner does not dispute that the Act’s prohibitions extend to
discriminatory pricing policies. (Cox, at p. 212; Javorsky v. Western Athletic
Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1394; Chabner v. United of Omaha
Life Ins. Co. (9th Cir. 2000) 225 F.3d 1042, 1050 (Chabner).) Where the
11
Commissioner and I part ways is that he asserts price discrimination based
on marital status does not conflict with the Act if insurers have actuarial
support for their rate differentials. (Citing Spanish Speaking Citizens’,
supra, 85 Cal.App.4th at p. 1240.) I view this as a misreading of the Unruh
Act.
The most obvious problem with the Commissioner’s analysis is that it is
untethered to the Unruh Act’s statutory language. The Act expressly
prohibits using specified classifications to deny persons within the state “free
and equal” access to “full and equal accommodations.” (§ 51(b).) There is no
hedging in the statutory text, no suggestion that the statute forbids only
arbitrary discrimination, and no textual hook for the Commissioner’s theory
that discriminatory practices are acceptable if they have actuarial support or
business justification. (See Pizarro v. Lamb’s Players Theatre (2006) 135
Cal.App.4th 1171, 1175 [Unruh Act establishes a “general prohibition” as to
all discrimination or preferential treatment based on categories expressly
enumerated].)
The Commissioner’s analysis is also without precedent. He cites no
case that holds the Unruh Act authorizes a business to discriminate on the
basis of an enumerated classification, so long as the business can claim a
legitimate business reason for doing so.
Indeed, the Commissioner’s argument runs counter to Supreme Court
precedent applying the Unruh Act to prohibit discrimination that appears to
have been economically rational. In Koire, supra, 40 Cal.3d at p. 27, a male
plaintiff alleged the defendant businesses—a car wash and a nightclub—
violated the Unruh Act by offering discounts to female customers. After the
trial court granted judgment for defendant businesses, finding that the sex-
based price discounts did not violate the Act, the Koire court reversed. (Koire,
12
at pp. 28, 39.) It held that the language of the Unruh Act is unambiguous, is
to be broadly construed, and “clearly covers discrimination based on sex,” as
that classification is enumerated in the Act. (Koire, at p. 28.) The court
rejected defense arguments that sex-based price discounts were “not
arbitrary because they [were] supported by ‘substantial business and social
purposes.’ ” (Id. at p. 32.) Although a weekly “ ‘Ladies’ Night’ ” was the
highest-grossing night at the nightclub, the sex-based discounts did not
become “permissible” simply “because they [were] profitable.” (Ibid.; id. at
p. 39, fn. 19.) The defendants’ allegedly rational economic motives did not
justify the discounts. (Id. at pp. 32–33). Squarely rejecting arguments that
sought to justify price discrimination involving an enumerated classification,
the Koire court found, in essence, that discounts based on an enumerated
characteristic constituted arbitrary discrimination as a matter of law. (Id. at
p. 35 [“This sort of class-based generalization as a justification for differential
treatment is precisely the type of practice prohibited by the Unruh Act”].)
The Commissioner offers two responses to the clear lesson of Koire.
First, he points to language in Koire acknowledging that there may “be
instances where public policy warrants differential treatment for men and
women”; for example, “the constitutional right to personal privacy” may
justify sex-segregated restroom facilities. (Koire, supra, 40 Cal.3d at p. 38.)
But in our case, the Commissioner offers no comparable public policy
warranting differential treatment for married and unmarried drivers. A
private insurer’s “legitimate business interest,” which the Commissioner
offers up as his justification instead, is not comparable to a public interest or
policy backed by constitutional or statutory mandates. (See id. at pp. 32, 38–
39.) If it were, the Koire court would have been more impressed by the
economic success of “ ‘Ladies’ Night.’ ” Instead, the court rejected the
13
nightclub’s economic justifications, announcing that, “[a]bsent a compelling
social policy supporting sex-based price differentials, such discounts violate
the Act.” (Id. at pp. 38 & 39, fn. 19.)
The Commissioner’s second, and less direct, response to Koire is to shift
the focus to other cases, in which the court was persuaded by a private
entity’s legitimate business interests. But in so doing, the Commissioner
obscures the distinction between characteristics that are enumerated in the
Unruh Act and those that are not. A large body of California law reflects the
courts’ efforts to “define the contours of what constitutes unreasonable,
arbitrary or invidious discrimination under the [Act] in the context of
unenumerated characteristics.” (Civil Rights Dept. v. Cathy’s Creations, Inc.
(2025) 109 Cal.App.5th 204, 267, italics added; see also Harris, supra, 52
Cal.3d at pp. 1148, 1150–1156.) “Within these unenumerated categories,
California courts have concluded that some distinctions in treatment—
particularly those that promote the welfare of children and seniors—are not
arbitrary or unreasonable because they are based on public policy objectives,
typically explicitly stated by the Legislature in statutory enactments.” (Civil
Rights Dept., at p. 266.) But, as mentioned, the Commissioner cites no case
that sees fit to analyze whether discrimination on the basis of an enumerated
characteristic is also arbitrary or unreasonable.
The Commissioner relies on Cox, supra, 3 Cal.3d 205, a habeas
proceeding challenging the validity of a municipal ordinance prohibiting
patrons from remaining on the premises of a shopping center after the
proprietor ordered them to leave. The petitioner was a customer whose male
companion “wore long hair and dressed in an unconventional manner,” which
prompted mall security officers to eject the pair. (Id. at p. 210.) The court
found that because the municipal ordinance incorporated the protections of
14
the Unruh Act, it did not sanction arbitrary expulsion of a customer. (Cox, at
pp. 209, 211–212.) Explaining that the particular bases of discrimination
listed in the Act are “illustrative rather than restrictive,” the Cox court
acknowledged that the case involved no classification listed in the Act but
held that the Act prohibits arbitrary conduct beyond the types of
discrimination that are expressly barred. (Cox, at p. 216; see also Harris,
supra, 52 Cal.3d at pp. 1158–1160 [setting forth test for unenumerated types
of discrimination].) The Cox court found that the Act generally prohibits
arbitrary discrimination, but it did not hold that the Act prohibits only
arbitrary discrimination.
The Commissioner also relies on Koebke, supra, 36 Cal.4th at pp. 831–
832, in which a couple who were registered domestic partners alleged that a
country club violated the Unruh Act by discriminating against them on the
basis of their marital status and sexual orientation. Koebke was decided
before the Legislature amended the Act to add marital status and sexual
orientation to the list of prohibited classifications (Koebke, at pp. 839, 848–
850), so the Koebke court employed the test for analyzing whether to extend
the reach of the Act to unenumerated discrimination. It was in this context
that the court considered whether a legitimate business interest justified the
challenged policy. (Id. at pp. 841–842, 846; see Harris, supra, 52 Cal.3d at
p. 1160.) Ultimately, the court held that the Act bars businesses from
extending to married couples benefits that are not also extended to
unmarried couples who are registered as domestic partners. (Koebke, at
pp. 842, 850–851.) But as to unmarried individuals and couples not so
registered, the court found discrimination would “be permissible if justified
by “ ‘legitimate business interests.’ ” (Id. at pp. 851; see also id. at p. 831.)
The Commissioner ignores that the court invoked legitimate business
15
interests only in analyzing what were then unenumerated types of
discrimination. Since marital status is now an expressly prohibited
classification, Koebke is of limited relevance here.
Finally, the Commissioner relies on Spanish Speaking Citizens’, which
rejected a multifaceted challenge to a regulation addressing rating factors in
the pricing of automobile insurance. (Spanish Speaking Citizens’, supra, 85
Cal.App.4th at p. 1186.) There, an amicus brief had argued that a regulation
allowing insurers to group drivers by zip code, charging different rates based
on “territorial factors,” violated the Unruh Act. (Spanish Speaking Citizens’,
at p. 1240.) The argument failed for multiple reasons, the court explained,
including that the territorial factors were “substantially related to the risk of
loss” so insurers had “a legitimate business reason for [their] use.” (Ibid.,
citing Ins. Code, § 1861.02, subd. (a)(4).) This precedent does not help the
Commissioner here because the location of a person’s home is not a
characteristic protected under the Unruh Act. Thus, Spanish Speaking
Citizens’ provides no authority for an exception to the express commands of
the Unruh Act when a rating factor is “substantially related to the risk of
loss.” (Spanish Speaking Citizens’, at p. 1240.) Such actuarial integrity is a
separate requirement each optional rating factor must meet (§ 1861.02,
subd. (a)(4)), not an excuse for conduct that violates the Act.
In sum, statutory text and case law establish that the Unruh Act
simply prohibits price discrimination based on marital status, which is what
Regulation 2632.5(d)(9) purports to allow.
III.
The majority attempts to reconcile this conflict by subordinating the
clear directive of the Unruh Act to the contrary rule of the Commissioner’s
marital status regulation. This approach has it backwards. I acknowledge
16
that the Act does not “confer any right or privilege on a person that is
conditioned or limited by law” (§ 51(c)), and that this provision causes the
Unruh Act to yield when conduct inconsistent with the Act’s
nondiscrimination principle is specifically authorized by another statute.
(Lazar, supra, 69 Cal.App.4th at p. 1504.) But no statute authorizes
discrimination based on marital status in the setting of automobile rates.
And the marital status regulation has the force of law only to the extent it is
consistent with its own authorizing statutes. Those statutes prohibit
insurers from violating the Unruh Act and the Commissioner from approving
rates that run afoul of this prohibition. (§§ 1861.03(a), 1861.05(a).) Thus, the
marital status regulation must defer to the Unruh Act’s nondiscrimination
principle, not the other way around. In my view, neither the case law on
which respondents rely nor the other arguments the majority favors can save
the marital status regulation, now that the Unruh Act expressly prohibits
marital status discrimination.
A.
Respondents and the trial court rely on section 51(c) and Lazar to
uphold Regulation 2532.5(d)(9) despite its conflict with the Unruh Act’s
nondiscrimination mandate. The Commissioner also relies on a federal case
called Chabner, but aside from their surface similarities, neither case is
comparable to the case before us.
In Chabner, supra, 225 F.3d 1042, a policyholder alleged that an
insurance company violated the Unruh Act by overcharging him for life
insurance. (Chabner, at pp. 1045–1046.) The policyholder was disabled and
did not object to paying a slightly higher premium but alleged his insurer had
“substantially overcharged him for any increased mortality risk associated
with his disability.” (Id. at p. 1045.) Insurance Code section 10144 precludes
17
a company issuing life insurance from charging a different rate for the same
coverage because of a physical or mental impairment, unless the rate
differential is “based on sound actuarial principles or is related to actual and
reasonably anticipated experience . . . .” (Ins. Code, § 10144.) The district
court found that, using alleged violation of section 10144 as the predicate
offense under the Unfair Practices Law (Bus. & Prof. Code, § 17200) and the
Unruh Act, the plaintiff had established his right to relief on summary
judgment. (Chabner, at pp. 1048–1051.) The Ninth Circuit affirmed. (Id. at
pp. 1048, 1050, 1053.) The Chabner court reasoned that if the premium had
been based on sound actuarial principles or reasonably anticipated
experience, it would not have violated the Unruh Act because it would have
been “specifically allowed by statute.” (Chabner, at p. 1050.) But because the
premium was higher than could be justified under section 10144, it was a
violation of the Unruh Act as unlawful discrimination based on “ ‘disability.’ ”
(Chabner, at p. 1050, quoting § 51(a).)
The Commissioner asks this court to use the reasoning in Chabner as a
model for harmonizing the Unruh Act and the Insurance Code, suggesting
that if an insurer can show actuarial support for differential pricing based on
marital status then it can impose that differential without violating the
Unruh Act. This theory completely ignores the crucial difference between the
statutory landscape in Chabner and in this case. Insurance Code section
10144 authorizes an actuarially-based price differential for consumers with a
disability who purchase life insurance. No comparable provision in the
Insurance Code authorizes price discrimination based on marital status. 4

4 The provision that comes closest is section 1861.02, which requires

that all optional rating factors be “adopted by regulation” and “have a

18
Thus, neither the reasoning nor the holding of Chabner aids the
Commissioner here.
For similar reasons, Lazar is unhelpful to respondents. Lazar was a
class action lawsuit against car rental agencies that refused to rent to
licensed drivers under the age of 25. (Lazar, supra, 69 Cal.App.4th at p.
1500.) A demurrer to the plaintiff’s Unruh Act claim was properly sustained,
the Lazar court found, because the legislative scheme regulating rental car
agreements expressly approved a rental agency’s adoption of minimum age
requirements for drivers. (Lazar, at p. 1503, discussing Civ. Code, § 1936.)
As age is not enumerated in the Unruh Act, the Lazar court noted “statutes
permitting age-based discrimination do not necessarily violate the Act.”
(Lazar, at p. 1503.) But even if there were a conflict with the Act, section
1936 would control because it was the more recent and more specific statute.
(Lazar, at pp. 1503–1504.) And the language of section 51(c)—stating that
the Act should not be construed to confer a right or privilege that is otherwise
conditioned or limited by law—also supported this conclusion, the court
explained. (Lazar, at pp. 1503–1504.) Again, Lazar does not help
respondents because they can point to no statute that authorizes
discrimination in automobile insurance rates on the basis of marital status.
There’s another important difference between Lazar or Chabner on the
one hand and this case on the other. Appellants are not seeking relief from
enforcement of the Unruh Act for conduct expressly authorized by another

substantial relationship to the risk of loss.” (§ 1861.02, subd. (a)(4).) But
these requirements are phrased as necessary, and not sufficient, conditions.
The Insurance Code does not authorize the Commissioner to approve an
optional rating factor that “ha[s] a substantial relationship to the risk of loss”
if use of that factor would violate current civil rights laws. (Ibid.;
§§ 1861.03(a), 1861.05(a).)
19
statute, as in those cases. Here, the question is whether the Unruh Act can
be enforced against conduct ostensibly authorized by regulation or, phrased
differently, whether a regulation is valid if it authorizes discriminatory
conduct that would otherwise violate the Unruh Act. For the reasons
explained below, I conclude the marital status regulation does not override
the commands of the Unruh Act because the regulation is not, itself,
authorized by statute.
B.
Respondents urge—and the majority holds—that the marital status
regulation is valid because it has the force of “law” within the meaning of
section 51(c), such that the Unruh Act’s protections against discrimination
must give way before it. (Maj. opn. ante, at pp. 12–13.) Although I
acknowledge that there may be circumstances where Section 51(c) causes the
Unruh Act to defer to a regulation that is properly authorized by statute (see
Agriculture Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420
(Agriculture Labor Relations Bd.)), the marital status regulation fails to meet
that threshold requirement. It is no longer authorized by any statute, and it
therefore does not have the force of law and cannot displace the Unruh Act’s
nondiscrimination mandate.
The marital status regulation may have been statutorily authorized
when it was first adopted.5 That was the Commissioner’s understanding,

5 Because no challenge was brought to the marital status regulation

before the Legislature amended the Unruh Act in 2005, no court had occasion
to consider whether the Act’s protection for unenumerated rights would then
have invalidated the marital status regulation. I don’t read appellants as
conceding that the marital status regulation was valid when originally
promulgated. (Cf. maj. opn. ante, at p. 11.) Their appellate briefs do not take
a clear position on this issue, just as they do not address whether some

20
based on his reading of the Act in 1996 when he adopted Regulation
2632.5(d)(9). He cited section 1861.02, 1861.03, and 1861.05 as among the
statutory provisions authorizing the regulations and concluded, at that time,
that “the use of marital status [was] not unfairly discriminatory within the
meaning of the Unruh Civil Rights Act.” But that was then; this is now. The
regulation’s authorizing statutes effectively changed when the Unruh Act did,
since section 1861.03(a) incorporates amended, up-to-date versions of our
civil rights laws. Today, section 1861.03(a) requires insurers to comply with
an Unruh Act that expressly identifies the use of marital status as unfairly
discriminatory. Thus, sections 1861.03(a) and 1861.05(a) no longer
authorize—indeed they prohibit—a regulation that allows insurers to
discriminate based on marital status. A regulation that does not keep pace
with changes to its authorizing statute risks becoming “ ‘no longer valid.’ ”
(Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340, 348.) Assuming it
was valid when first enacted, that is precisely what has happened to the
marital status regulation.
When a statute directs an agency to comply fully with another law,
such as the Unruh Act, the agency must also comply with amendments to
that other law. (Aktar v. Anderson (1997) 58 Cal.App.4th 1166, 1170.) Aktar
involved a challenge to the authority of the Department of Social Services to
administer an aspect of the federal food stamp law in California. (Aktar, at

insurers have marshaled actuarial support (i.e., established “a substantial
relationship to the risk of loss”) for charging unmarried drivers higher rates,
nor whether the marital status regulation is “reasonably necessary to
effectuate the purpose of its authorizing statutes.” (Maj. Opn. ante, at pp. 2,
9.) Appellants instead train their fire on the signature weakness of the
current regulation: It fails the second half of a dual mandate that rates meet
actuarial standards and comply with civil rights laws. (See §§ 1861.02,
subd. (a)(4), 1861.03(a).)
21
pp. 1173–1174.) The issue before the court was whether the Department was
required to comply with an amendment to the federal law, absent a specific
directive from the state legislature. The Aktar court found compliance was
required because existing state law already “mandate[d]” that the
Department comply with amendments to the federal food stamp law. (Id. at
pp. 1177–1178.) This issue was dispositive in Aktar because the Department
had “only those powers conferred upon it by law” and “could not validly act in
excess of such powers” as the law had changed. (Id. at p. 1176.) So, too, here.
From its inception, Proposition 103 has mandated that the insurance
industry comply with Unruh Act amendments, and since the Commissioner
has only those powers conferred on him by Proposition 103, he may not
validly authorize insurance rates that violate Unruh Act amendments.
This principle is a specific example of a general rule: “To the extent
that regulations conflict with statutes or decisional law, the law controls the
regulations.” (In re Johnny S. (1995) 40 Cal.App.4th 969, 978.) Courts have
long recognized a regulation that alters or amends a statute or impairs its
scope is invalid. (Agriculture Labor Relations Bd., supra, 16 Cal.3d at p. 426;
Woods v. Superior Court (1981) 28 Cal.3d 668, 679.) Thus, contrary to the
majority’s position here, the conflict between the Commissioner’s marital
status regulation and the provisions of the Insurance Code mandating
compliance with the updated Unruh Act must be resolved in favor of the
Insurance Code and the Unruh Act, not the regulation that purports to
impair the Act’s scope. (See §§ 1861.03(a); 1861.05(a).) Because the
provisions of the Insurance Code on which the Commissioner relies do not
authorize the Commissioner to adopt or maintain rate regulations that
conflict with the Unruh Act, the deference required by section 51(c) has no
application here.
22
The trial court reached a different conclusion by treating Regulation
2532.5(d)(9) as a “ ‘law’ ” that conditions and limits the Unruh Act’s
antidiscrimination protections. (Citing § 51(c).) This ruling was error
because it rests on an assumption that Regulation 2532.5(d)(9) is currently
valid, when that is the very issue that the court was called on to decide. In
concluding that any conflict with the Unruh Act would require the Act to
“defer” to the regulation, the court treated Regulation 2532.5(d)(9) as
essentially self-validating. But no quasi-legislative regulation can be
divorced from its statutory source. (Gov. Code, § 11342.2 [“no regulation
adopted is valid or effective unless consistent and not in conflict with the
statute and reasonably necessary to effectuate the purpose of the statute”].)
Agencies “ ‘do not have discretion to promulgate regulations that are
inconsistent with the governing statute.’ ” (Sabatasso v. Superior Court
(2008) 167 Cal.App.4th 791, 796.) And the governing statute here prohibits
the Commissioner from approving rates that violate Proposition 103’s
mandate that insurers comply with current civil rights laws. (§§ 1861.03(a);
1861.05(a).)
The majority opinion, like the trial court, reaches a different conclusion
because of a quirk of chronology; the marital status regulation was adopted
before the Legislature amended the Unruh Act. (Maj. opn. ante, at pp. 2, 8–
9.) The majority acknowledges that this sequence of events is “[c]ritical[]” to
its analysis (id. at p. 9), and as I understand the logic of its opinion, marital
status could not validly be used as an optional rating factor today if
Commissioner Garamendi’s, rather than Commissioner Quackenbush’s,
regulations had been in effect when the Legislature amended the Unruh Act

23
to include marital status.6 That approach makes no sense to me, as it diverts
attention from the bedrock question of whether the regulation is consistent
with its authorizing statutes in their current form. Commissioner
Quackenbush adopted the marital status regulation only because he thought
the regulation was consistent with the Unruh Act. Once the Legislature
amended the Unruh Act expressly to prohibit marital status discrimination, I
would have thought the only reasonable response would be to rescind the
discriminatory regulation, rather than to try to justify it on the basis the
regulation was on the books before the statute was amended. The majority
acknowledges that Proposition 103 requires insurers to comply with civil
rights laws as they are amended, but it then insulates insurers from this
requirement by deploying section 51(c) to encase the 1996 regulations in
amber. I know of no authority for reading the rather obscure language of
section 51(c) to protect a regulation that is no longer consistent with the
statute said to authorize it.
Finally, the majority opinion relies on section 1860.1 in contending
that, because neither the Unruh Act nor its 2005 amendments refer to the
business of insurance, the specific provision that is the marital status
regulation must “prevail[] over the general Act.” (Maj. opn. ante, at p. 17, see
also, p. 7.) This argument sets up a false contest between the marital status
regulation and the Unruh Act. The marital status regulation is no longer
valid under its own authorizing statutes because it is inconsistent with the
current Unruh Act. And because it conflicts with its own authorizing statute,

6 If Commissioner Garamendi’s regulations had been in effect, there

would have been no regulation endorsing marital status discrimination for
the Commissioner to invoke here as a mechanism for elbowing aside the
protections of the Unruh Act. (Cf. Maj. opn. ante, at pp. 11–14.)
24
it has no independent force with which to go up against the Unruh Act. The
rule for choosing between general and specific provisions simply has no
application here. And the requirements of section 1860.1 pose no hurdle
because the Unruh Act, though it does not itself mention insurance, is
expressly incorporated into a statute that is all about the business of
insurance (§ 1861.03(a)).
In sum, I conclude section 51(c) does not validate or excuse a regulation
that conflicts with the antidiscrimination provisions of the Unruh Act.
IV.
Section 11682 of the Insurance Code, which became the RAIN law, was
originally enacted to prohibit insurers from discriminating on the basis of
race when issuing automobile liability insurance. (Stats. 1955, ch. 125, § 1.)
In 1961, the scope of this statute was expanded to preclude such
discrimination on the basis of race, color, religion, national origin, or
ancestry—the same prohibited characteristics then listed in the 1959 Unruh
Act. (Stats. 1961, ch. 1983, § 1; see Stats. 1959, ch. 1866, § 1.) In 2008, the
RAIN law was amended again to conform with the Unruh Act. But instead of
updating the list of prohibited characteristics to match those then in the Act,
the RAIN law was amended to incorporate by reference the
antidiscrimination provision of the Unruh Act. The RAIN law now prohibits
discrimination in connection with the issuance of motor vehicle liability
policies on the basis of “every characteristic listed or defined in subdivision
(b) or (e) of Section 51 of the Civil Code.” (§ 11628, subd. (a)(1)
(§ 11628(a)(1)); see Stats. 2008, ch. 682, § 7.)
The conflict between this provision and the marital status regulation is
patent. The RAIN law says no “characteristic listed” in Civil Code, section
51(b) may “of itself, constitute a condition or risk for which a higher rate,
25
premium, or charge may be required of the insured.” Section 51(b) lists
“marital status” as a protected characteristic. Yet Regulation 2632.5(d)(9)
allows an insurer to vary “rates and premiums” based on the “[m]arital status
of the rated driver,” that is, based on the listed characteristic itself. The
RAIN law, like the Unruh Act, was incorporated by general reference into
Proposition 103 as both are “civil rights laws” of the state. (§ 1861.03(a).)
Thus, Proposition 103 compels the Commissioner to comply with and enforce
the current version of the RAIN law. (§§ 1861.03(a), 1861.05(a); 12921,
subd. (a), 12926.) Because the current RAIN law precludes automobile
insurers from discriminating on the basis of marital status, Regulation
2632.5(d)(9) is contrary to it and is for this reason also invalid. (Cf. Nortel
Networks Inc. v. Board of Equalization (2011) 191 Cal.App.4th 1259, 1278
[regulatory board’s attempt to limit scope of statute through regulation
deemed invalid].)
Importantly, the RAIN law does not incorporate by reference, or have a
counterpart to, the Unruh Act’s section 51(c). Thus, although I disagree with
my colleagues that the Commissioner can rely on section 51(c) to justify
regulations that conflict with section 51(b), that potential escape hatch would
in any event not authorize the Commissioner to use an optional rating factor
that the RAIN law prohibits. Because marital status is a “characteristic
listed . . . in subdivision (b) . . . of Section 51 of the Civil Code,” the RAIN law
prohibits insurers from using marital status as a basis to discriminate in
pricing automobile liability policies. (§ 11628(a)(1).) Full stop.
Respondents contend otherwise; they assert section 11628(a)(1) does
not preclude the Commissioner from approving rates that discriminate based
on marital status because legislative history materials underlying the 2008

26
RAIN law amendment show that the Legislature did not intend to amend
Proposition 103. My colleagues adopt respondents’ view, I think in error.
To begin, respondents fail to apply an established rule of statutory
construction favoring the plain language of the statute. Because the
language of a statute is generally the best indicator of legislative intent,
when that language is unambiguous courts “ ‘ “ ‘presume the Legislature
meant what it said, and the plain meaning of the statute governs.” ’ ’ ”
(Medical Bd. of California v. Superior Court (2018) 19 Cal.App.5th 1, 7.)
Here, the plain language of the RAIN law prohibits insurers from
discriminating on the basis of a characteristic set forth in Civil Code section
51(b), and marital status is on that list. Since the statutory language is clear,
we should presume the Legislature meant what it said.
As the majority notes, this “ ‘ “plain meaning” ’ ” rule does not prohibit
courts from considering whether “ ‘the literal meaning of a statute comports
with its purpose.’ ” (Maj. Opn. ante, at p. 19, quoting Lungren v. Deukmejian
(1988) 45 Cal.3d 727, 735.) “Literal construction should not prevail if it is
contrary to the legislative intent apparent in the statute.” (Lungren, at
p. 735.) But here the amended RAIN law language is not only perfectly clear,
but fully consistent with its manifest purpose, which is to prohibit insurers
from unlawfully discriminating against Californians who need car insurance.
(Cf. King v. Meese (1987) 43 Cal.3d 1217, 1222; see id. at p. 1243 (conc. opn. of
Broussard, J.).)
Properly understood, the legislative history underlying the 2008 RAIN
law amendment fully supports this plain reading of the statute. (Homes on
Wheels v. City of Santa Barbara (2004) 119 Cal.App.4th 1173, 1179
[considering legislative history proper where it buttresses plain meaning of
statute].) The amendment was part of Assembly Bill 2654, which amended
27
several nondiscrimination statutes that listed categories of protected classes.
As explained in analyses of the bill prepared by the Assembly Committee on
the Judiciary, the purpose of Assembly Bill 2654 was to “conform[]
miscellaneous code provisions prohibiting discrimination in specific
government and business operations to those characteristics already covered
by non-discrimination laws of general application to government operations
and business establishments.” The RAIN law amendment was included in
the bill in order to ensure consistency with the Unruh Act, to which insurers
licensed to issue motor vehicle liability policies were “already subject.” The
author of the RAIN law amendment, Assemblymember John Laird, is the
same legislator who carried the bill amending the Unruh Act to include
marital status discrimination a few years earlier. Laird contended a
reference in the RAIN law to the list of protected classes in the Unruh Act
would be less confusing than listing out those classifications in the RAIN law
and other statutes covered by his proposed bill. It would also result in a more
consistent legal standard because whenever additional protections were
added to the Unruh Act, “these other nondiscrimination laws will be updated
automatically.”
Like respondents, the majority opinion ignores this legislative history,
which shows that the purpose of the 2008 RAIN law amendment was to
clarify that the law already prohibited automobile liability insurers from
discriminating on the basis of classifications listed in the Unruh Act.
Instead, the majority focuses exclusively on an objection to Assembly Bill
2654 by insurance industry advocates who accused Assemblymember Laird of
attempting to amend Proposition 103; specifically, they alleged he was
attempting to amend the statutory provision that authorizes the
Commissioner to establish additional optional rating factors. (Maj. opn. ante,
28
p. 19.) Laird disputed that claim in a letter that was later printed in the
Assembly Journal. He clarified that it was “not the intent of [Assembly Bill]
2654 to amend [Proposition] 103 with respect to these rating factors,” as the
law for many years had been “abundantly clear” that insurers were already
subject to the Unruh Act.7 In his letter, Laird also acknowledged the obvious
fact that if the Legislature intended by statute to change Proposition 103’s
rating factors, “such a change would amend Proposition 103 statutes and
therefore would require a two-thirds vote of the Legislature.” And
“[s]imilarly,” any change to the optional rating factors would require
regulatory action by the Commissioner.
The majority’s reliance on Laird’s letter is perplexing. Laird clarified
that his proposed bill updating the RAIN law to conform to the Unruh Act did
not require an amendment to Proposition 103 because insurers were already
subject to the Unruh Act. This legislative history material is fully consistent
with a plain reading of the RAIN law, whereby it works in tandem with the
Unruh Act to protect Californians seeking automobile insurance from
unlawful discrimination. And Laird’s statement that only regulatory action
by the Commissioner could change the optional rating factors is not so much
an endorsement of the then-existing rating factors, as it is an
acknowledgement that approving and disapproving optional rating factors is
the Commissioner’s responsibility.
Nothing about Laird’s letter evinces a legislative intent that the
marital status regulation remain unchanged. Laird explained that changing
an optional rating factor would require regulatory action by the
Commissioner, and in this writ proceeding appellants ask this court to

7 When Governor Schwarzenegger signed Assembly Bill 2654, he
likewise documented his belief that it did not amend Proposition 103.
29
compel the Commissioner to engage in just such regulatory action.
Appellants ask that we direct the Commissioner to rescind the invalid
marital status regulation and to begin enforcing the Unruh Act’s and the
RAIN law’s prohibitions against discrimination based on marital status.
Because the marital status regulation is no longer statutorily authorized—
because it now conflicts with the Unruh Act and the RAIN law, and thus with
sections 1861.03(a) and 1861.05(a)—I would grant appellants’ request.
* * *
The Commissioner’s extensive powers over automobile insurance rates
do not include the right to pick and choose among the state’s civil rights laws,
requiring insurers to comply with only some of them. I would hold that the
marital status regulation is invalid on its face, and appellants are entitled to
a writ mandating that the Commissioner replace it.

_________________________
TUCHER, P. J.

A170267; Ison et al. v. Lara et al.

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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Evelio Grillo

Counsel:
Olivier & Schreiber and Monique Olivier and Christian Schreiber; Feinstein
Doyle Payne & Kravec, Joseph N. Kravec, Jr., Wyatt A. Lison, James M.
Pietz, and Kaitlyn M. Burns for Appellants.

Conn Law and Elliot Conn for the Consumer Federation of America as
Amicus Curiae on behalf of Appellants.

Harvey Rosenfield and William Pletcher for Consumer Watchdog as Amicus
Curiae on behalf of Appellants.

Rob Bonta, Attorney General, Tamar Pachter, Assistant Attorney General,
Craig D. Rust, Jennifer T. Henderson and Michael Sapoznikow, Deputy
Attorneys General, for Respondent Insurance Commissioner.

Hogan Lovells US, Katherine B. Wellington and Vanessa O. Wells for
Respondents Farmers Insurance Exchange and Mid-Century Insurance
Company.

31