Full opinion text
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT HAMILTON, District Judge. The parties’ cross-motions for summary judgment came on for hearing on June 7, 2006. In July 2006, the California Supreme Court issued three decisions relevant to issues raised in the parties’ motions: Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914 (2006); Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal.4th 223, 46 Cal.Rptr.3d 57,138 P.3d 207 (2006); and Branick v. Downey Sav. & Loan Ass’n, 39 Cal.4th 235, 46 Cal.Rptr.3d 66, 138 P.3d 214 (2006). The court subsequently instructed the parties to submit further briefing addressing those decisions. Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DENIES plaintiffs’ motion and GRANTS defendants’ motions IN PART and DENIES them IN PART, as follows. INTRODUCTION Defendants Dale R. Gwilliam and Nathan W. Gwilliam (“the Gwilliams”) are Arizona residents who run businesses that operate adoption-related websites. These websites constitute the largest, most active, and most well-known Internet adoption-related business in the United States. One of the websites, ParentProfiles.com, offers a service that allows prospective adoptive parents, for a fee, to post “profiles” containing information about themselves, for review by women who have given birth or are about to give birth and plan to give up the children for adoption. Plaintiffs Michael Butler and Richard Butler (“the Butlers”) have been registered domestic partners in the state of California since 2000. In 2002, they were seeking to adopt a child. They were certified and approved to adopt in California, and applied to have their profile posted on ParentProfiles.com. Their application was rejected. On January 12, 2004, plaintiffs filed suit against the Gwilliams and two Arizona limited liability companies owned and managed by the Gwilliams — Adoption Media LLC and Adoption Profiles LLC. Plaintiffs alleged violations of the Unruh Civil Rights Act (“the Unruh Act” or “the Act”), California Civil Code §§ 51 and 51.5; and violations of California’s unfair competition and false advertising laws, California Business and Professions Code §§ 17200 and 17500. Plaintiffs subsequently amended the complaint to add three defendants— Adoption.com, True North, Inc., and Ara-caju, Inc. — and to allege alter ego and successor liability. Plaintiffs amended the complaint a second time following the court’s ruling on the motion to dismiss the first amended complaint. Plaintiffs seek damages and injunctive relief. Each side has moved for summary judgment. Plaintiffs seek summary judgment on the issue of liability against Dale R. Gwilliam, Nathan W. Gwilliam, Adoption.com, and Adoption Profiles LLC, on the Unruh Act claims. Defendants seek summary judgment on the substantive causes of action and on the issues of alter ego and successor liability, and personal jurisdiction. They also argue that the in-junctive relief requested would violate the First Amendment, that California substantive law may not be applied in this case, and that plaintiffs lack standing to bring the unfair competition and false advertising claims. BACKGROUND On August 31, 1999, Dale Gwilliam and Nathan Gwilliam formed an Arizona general partnership, known as Adoption.com. Dale and Nathan each owned, and continue to own, 50% of the Adoption.com partnership. As of October 2002, the Adoption.com partnership owned a network of adoption-related websites, including Adoption.com, a website providing a variety of adoption-related information, and ParentPro-files.com, which allowed prospective adoptive parents to post information about themselves, for a monthly fee. In addition, in Dale and Nathan formed another general partnership in 2002, Adoption Internet Holdings, and through that partnership purchased a California business, the Adopting.org website. Plaintiffs were certified and approved to adopt on October 3, 2002. The Independent Adoption Center (“LAC”), the oldest and largest adoption agency in California, which had a contract with the Adoption.com partnership relating to referrals to the ParentProfiles service, referred plaintiffs to the website, ParentPro-files.com, as part of plaintiffs’ search for an adoptable child. Plaintiffs filled out an application to become members of ParentProfiles.com. They obtained a log-in identification name and password to access the ParentProfiles website and upload them profile information. On October 21, 2002, plaintiffs submitted by facsimile copies of the Parent-Profiles credit card authorization form and agreement and a certificate of compliance from the I AC. On October 24, 2002, Michael Butler called Adoption.com’s toll-free number to inquire about the status of the application. He spoke with Dale Gwilliam. In the course of the conversation, Dale told Michael that plaintiffs would not be permitted to use ParentProfiles.com’s services. The partnership had adopted a policy allowing only individuals in an opposite-sex marriage to post profiles on the website. Dale testified in his deposition that the “opposite gender component is an essential component of the policy.” Nathan testified that a same-sex couple registered under California’s domestic partnership law would not qualify under the policy because they are not married, and that even if same-sex couples were permitted to marry in all 50 states, defendants would still be reluctant to change the policy and would instead “look at all the evidence gathered altogether and make a decision” as to whether to modify their policy. Michael e-mailed the Gwilliams five days later “confirming our conversation we had last Thursday afternoon” in which Dale “stated that it is your policy to not allow domestic partners to sign-up for your site.” Michael asked that Dale “reconsider your policy against gay couples and allow us to join your site.” The Gwilliams did not respond to the e-mail, and did not have any further direct communication with the plaintiffs. The partnership did not accept plaintiffs’ application to use the services of ParentProfiles.com, and refused to post their profile on the website. On January 2, 2003, the Gwilliams formed two Arizona limited liability companies, Adoption Media LLC and Adoption Profiles LLC. Each of the two LLCs was owned 50-50 by Dale and Nathan. At the formation of the LLCs, each was provided with $200 in cash assets. On January 9, 2003, Dale and Nathan elected themselves the sole managers and officers of Adoption Media LLC and Adoption Profiles LLC. Nathan is the Chief Executive Officer, and Dale is the President and Secretary, of each LLC. Also on January 9, 2003, Dale and Nathan executed documents transferring most of the partnership assets of Adoption.com (the general partnership) to Dale and Nathan. Those assets included the Adoption.com and ParentProfiles.com domain names and related programming and intellectual property. Dale and Nathan then transferred ownership of the Adoption.com website to Adoption Media LLC and ownership of the ParentProfiles.com website to Adoption Profiles LLC — all transfers or distributions to be effective as of 11:59:30 p.m. on January 31, 2003. The Adoption.com partnership retained the software used by the websites transferred to the LLCs, and also retained more than 1000 domain names, the operating website, the Adopting.org website, and other associated assets. On January 15, 2003, Dale and Nathan dissolved the partnership Adoption Internet Holdings, and distributed all its assets, including the Adopting.org website, to the general partners as of 11:59:30 p.m. on January 31, 2003. Dale and Nathan transferred these assets to Adoption Media LLC as of 11:59:35 p.m. on January 31, 2003. On June 2, 2003, Dale and his wife Kristie incorporated True North, Inc. (“True North”) as an Arizona corporation; and Nathan incorporated Aracaju, Inc. (“Aracaju”) as an Arizona corporation. On June 6, 2003, Dale conveyed his 50% ownership in Adoption Media LLC and Adoption Profiles LLC to True North; and Nathan conveyed his 50% ownership in Adoption Media LLC and Adoption Profiles LLC to Aracaju. The transfers involved membership only, with no transfer of the underlying assets. That same day, Dale, as President of True North, designated himself as True North’s representative relating to its membership interests in both LLCs; and Nathan as President of Aracaju, designated himself as Araeaju’s representative relating to its membership interests in both LLCs. True North and Aracaju currently act as holding companies of the membership interests in the LLCs. Adoption Profiles LLC continues the policy of allowing only married, opposite-sex couples to use the ParentProfiles service. DISCUSSION A. Legal Standard Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party’s case. See id. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. B. The Unruh Act The Unruh Civil Rights Act, California Civil Code §§ 51 and 52, was enacted in 1959, although predecessor statutes had been enacted in 1897 and 1905, and the 1905 statute remained in effect until the effective date of the Unruh Act. See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1150-52, 278 Cal.Rptr. 614, 805 P.2d 873 (1991). Civil Code § 51.5 was enacted in 1976. While it has been amended several times since 1959, Civil Code § 51 has always provided that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their [specified personal characteristics], ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ.Code § 51(b). Section 51.5 provides, in part, that “[n]o business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 .... ” Cal. Civ.Code § 51.5(a). The “specified personal characteristics” listed in the 1959 version of the Unruh Act were “race, color, religion, ancestry, or national origin.” In 1970, the California Supreme Court applied the Unruh Act to a case involving the exclusion of a patron of a business establishment for reasons not involving the specified characteristics listed in the Act. In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992 (1970). The question was whether a shopping center had the right to exclude a customer based only on his association with a young man who “wore long hair” and “dressed in an unconventional manner.” The court examined its previous decisions in Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449 (1951) and Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969 (1951), two cases brought under the Unruh Act’s predecessor statute, the Civil Rights Act, which provided that “all citizens” were entitled to “full and equal accommodations, advantages, facilities, and privileges,” and also prohibited “denying to any citizen, except for reasons applicable alike to every race or color,” access to places of public accommodation. In Orloff, the court had held that the Civil Rights Act barred the manager of a race track from ejecting a patron (a convicted gambler) who had acquired a reputation as a man of immoral character. Orloff, 36 Cal.2d at 739, 227 P.2d 449. In Stoumen, the court had “recognized the right of homosexuals to obtain food and drink in a bar and restaurant.” Stoumen, 37 Cal.2d at 716, 234 P.2d 969. The California Supreme Court concluded that Orloff and Stoumen had “clearly established” that the Civil Rights Act prohibited all arbitrary discrimination in public accommodations. Cox, 3 Cal.3d at 214, 90 Cal.Rptr. 24, 474 P.2d 992. The court also noted that the Legislature had enacted the 1959 amendment to §§ 51 and 52 subsequent to the decisions in Orloff and Stoumen, neither of which had restricted discrimination to race, color, religion, ancestry, or national origin. Id. at 215, 90 Cal.Rptr. 24, 474 P.2d 992. Stating that “[w]e must, of course, presume that the Legislature was well aware of these decisions,” the court refused to “infer from the 1959 amendment any legislative intent to deprive citizens in general of the rights declared by the statute and stanchioned by public policy.” Id. Based on the nature of the 1959 amendments, the past judicial interpretation of the Civil Rights Act, and the history of legislative enactments that extended the statutes’ scope, the court concluded that “identification of particular bases of discrimination — color, race, religion, ancestry, and national origin — added by the 1959 amendment, is illustrative rather than restrictive.” Id. at 216, 90 Cal.Rptr. 24, 474 P.2d 992. The court noted that while the legislation had been invoked primarily by persons alleging discrimination on the basis of race, “its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments.” Id. In 1974, the Legislature amended §§ 51 and 52 to add “sex” to the list of “specified personal characteristics. The Legislature noted that section 51 applied to all arbitrary discrimination and that [t]he listing of possible bases of discrimination has no legal effect, but is merely illustrative.” In 1982, in Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 (1982), the California Supreme Court applied Cox to hold that the owner of an apartment complex violated the Un-ruh Act by refusing to rent to families with minor children. The court again rejected the view that the Act was limited to the categories specifically enumerated. Id. at 732, 180 Cal.Rptr. 496, 640 P.2d 115. The court cited the legislative history of the Act, which reflected that in 1974, in sending the bill amending § 51 to the Governor for his signature, the Chairman of the Select Committee on Housing and Urban Affairs had stated that “[t]he listing of possible bases of discrimination [in the Act] has no legal effect but is merely illustrative.” Id. at 734, 180 Cal.Rptr. 496, 640 P.2d 115. The court also cited various opinions of the California Attorney General, advising that non-enumerated characteristics' — such as occupation, marital status, or status as students or welfare recipients — could provide a basis for an Unruh Act claim. Id. at 736, 180 Cal.Rptr. 496, 640 P.2d 115. The following year, in O’Connor v. Village Green Owners Ass’n, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427 (1983), the court applied Marina Green to hold that a condominium development restricting residency to persons over 18 violated the Un-ruh Act (noting also, however, that an age limitation in a retirement community preserved for older citizens would likely not violate the Act). Id. at 793, 191 Cal.Rptr. 320, 662 P.2d 427. In 1985, the California Supreme Court applied Cox and Marina Point to hold that the Boys’ Club of Santa Cruz — a community recreation facility that was open (for a nominal annual fee) to all Santa Cruz boys between the ages of 8 and 18 — discriminated against girls in violation of the Un-ruh Act. Isbister v. Boys’ Club of Santa Cruz, 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). The court’s discussion focused primarily on the question whether the Boys’ Club qualified as a “business establishment,” but the court did reiterate its by-now familiar statement that “identification of particular bases of discrimination [in the Unruh Act] is illustrative rather than restrictive.” Id. at 86-87, 219 Cal.Rptr. 150, 707 P.2d 212 (quoting Cox, 3 Cal.3d at 216, 90 Cal.Rptr. 24, 474 P.2d 992). During this same period — 1982 to 1984 — three appellate courts held that the Unruh Act prohibits discrimination based on sexual orientation. First, in Hubert v. Williams, 133 Cal.App.3d Supp. 1, 184 Cal.Rptr. 161 (App.Dep’t., Super.Ct, L.A.County, 1982), a quadriplegic tenant who required 24-hour care was evicted from his apartment because he had hired a lesbian attendant. Relying on Manna Point, Cox, and Stoumen, the court held that discrimination on the basis of homosexuality violated the Unruh Act. Id. at 3-5, 184 Cal.Rptr. 161. Second, in Curran v. Mt. Diablo Council of the Boy Scouts, 147 Cal.App.3d 712, 195 Cal.Rptr. 325 (1983), the Court of Appeal held that the expulsion of a person from membership in the Boy Scouts- — the plaintiff was an Eagle Scout who had applied to be an adult leader — on the basis of his homosexuality was a violation of the Unruh Act. Id. at 733-34, 195 Cal.Rptr. 325. Third, in Rolon v. Kulwitzky, 153 Cal. App.3d 289, 200 Cal.Rptr. 217 (1984), two lesbians filed suit against a restaurant owner after they were refused service in a semi-private booth in the restaurant, and were instead offered service at a table in the main dining room. The restaurant had a policy of allowing seating in the booths only by two people of the opposite sex. The Court of Appeal observed that while the Unruh Act “preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants,” it does not permit the exclusion of an individual who has committed no such conduct, “solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group.” Id. at 292, 200 Cal.Rptr. 217. In 1987, the Legislature added “blindness or other physical disability” to the list of “specified personal characteristics.” In 1991, the California Supreme Court issued its decision in Harris v. Capital Growth Investors XIV. The plaintiffs were a group of prospective tenants who sued under the Unruh Act to challenge a landlord’s requirement that any prospective tenant have a monthly income of at least three times the apartment’s monthly rent. The two issues in the case were whether the Act proscribes economic discrimination, and whether a plaintiff can state a claim under the Act for disparate impact (as opposed to disparate treatment). The defendants asserted, based on the specific discriminatory classifications listed in the Act, that judicial expansion of those classifications to include whatever the courts might deem “arbitrary” could not be justified. They also argued that the court should overrule Cox, Marina Point, and O’Connor. The court found some indication that the Legislature had intended to confine the scope of the Act to certain specified types of discrimination, but also found an “[in]sufficiently compelling reason” to overrule Cox and its progeny. Harris, 52 Cal.3d at 1155, 278 Cal.Rptr. 614, 805 P.2d 873. The court noted that while the Legislature had amended the Act several times in the 20 years since the Cox decision, it had taken no steps to overrule the cases that had found that the Unruh Act prohibited discrimination on the basis of unconventional dress or appearance (Cox), families with children (Marina Point), persons under 18 (O’Connor), and homosexuality (Rolon, Curran, and Hubert). Id. The court reiterated that “[w]e generally presume the Legislature is aware of appellate court decisions,” id. at 1155, 278 Cal.Rptr. 614, 805 P.2d 873, and cited Marina Point for the proposition that when the Legislature amends a statute without altering portions of the provision that have been previously judicially construed, “the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.” Id. at 1156, 278 Cal.Rptr. 614, 805 P.2d 873 (citing Marina Point, 30 Cal.3d at 734, 180 Cal.Rptr. 496, 640 P.2d 115). The court found the defendants’ argument that the holdings of Cox, Marina Point, O’Connor, and other decisions extending the Unruh Act beyond its specified categories of discrimination had been somehow repudiated by the Legislature to be “untenable.” Id. The court also concluded, however, that the Legislature’s decision to enumerate personal characteristics in the Act, and to omit financial or economic ones, did suggest a limitation on the scope of the statute. The court devised a three-part analysis to help answer the question whether, in view of the continued importance of the enumerated categories, and in light of the language and history of the Act and the probable impact on its enforcement of the competing interpretations urged by the parties, the Act could nonetheless be extended to claims of economic status discrimination. Id. at 1159, 180 Cal.Rptr. 496, 640 P.2d 115. First, the court considered the language of the statute, noting an essential difference between economic status (the basis for the plaintiffs’ claims) and the Act’s enumerated categories and those added by judicial construction. The common element shared by the enumerated categories and those added by judicial construction was that they “involve personal as opposed to economic characteristics.” Id. at 1160, 180 Cal.Rptr. 496, 640 P.2d 115. The court found no case in which distinctions based on financial or economic status (as opposed to personal characteristics) had been subjected to scrutiny under the Act; and found no support in the language or history of the Act to support plaintiffs’ contention that economic distinctions and criteria were within the scope of the Act. Id. at 1161-62, 180 Cal.Rptr. 496, 640 P.2d 115. Second, the court asked whether a legitimate business interest justified the minimum income policy at issue in the case, and concluded that it did. Id. at 1164, 180 Cal.Rptr. 496, 640 P.2d 115. The court observed that “[bjusiness establishments have an obvious and important interest in obtaining full and timely payment for the goods and services they provide,” and noted that it had previously “recognized that the Unruh Act did not prohibit businesses from making economic distinctions among customers so long as the criteria used were not based on personal characteristics and could conceivably be met by any customer.” Id. at 1162-63, 180 Cal.Rptr. 496, 640 P.2d 115. The court found that the minimum income policy was “not ‘arbitrary’ in the same way that race and sex discrimination are arbitrary.” Id. at 1164, 180 Cal.Rptr. 496, 640 P.2d 115. Third, the court considered the potential consequences of allowing claims for economic status discrimination to proceed under the Act, and suggested the possibility that courts would become involved in a multitude of microeconomic decisions they are ill prepared to make, and the possibility that landlords might abandon neutral criteria such as income, and use subjective criteria that might promote the kind of discrimination the Unruh Act prohibits. Id. at 1165-69, 180 Cal.Rptr. 496, 640 P.2d 115. Although Harris did not overrule Cox, Marina Point, or O’Connor, several decisions issued by the court of appeal during the post-Harris period reflected a new unwillingness to expand the number of protected characteristics under the Unruh Act. For example, in 1991, the court in Gayer v. Polk Gulch, Inc., 231 Cal.App.3d 515, 282 Cal.Rptr. 556 (1991), found that the Unruh Act did not encompass a retaliatory discrimination claim by a patron who had a pending discrimination suit against a bar. In 1994, the court in Roth v. Rhodes, 25 Cal.App.4th 530, 30 Cal.Rptr.2d 706 (1994), found that a podiatrist could not maintain a claim under the Un-ruh Act against the operator of a medical building who refused to lease space to him. In 2001, the court in Hessians Motorcycle Club v. J.C. Flanagans, 86 Cal.App.4th 833, 103 Cal.Rptr.2d 552 (2001), found that the Unruh Act did not prohibit a sports bar from denying admittance to motorcycle club members who refused to remove their “colors.” In 1992, a California appellate court held that the Unruh Act should not be expanded to include “marital status” as an additional basis of prohibited discrimination. See Beaty v. Truck Ins. Exchange, 6 Cal.App.4th 1455, 8 Cal.Rptr.2d 593 (1992). The plaintiffs, a same-sex couple, sued the defendant insurance company because it refused to sell them a joint umbrella policy under the terms and conditions offered to married couples. The court acknowledged that prior California decisions (Stoumen, Rolon, Curran, and Hubert) had held that discrimination against individuals on the basis of sexual orientation violates the Un-ruh Act. However, the court found that the case did not involve discrimination on the basis of sexual orientation, because the insurance company treated all unmarried individuals the same with regard to the issuance of umbrella policies, without regard to sexual orientation. Id. at 1460-61, 8 Cal.Rptr.2d 593. The court then considered the claim of discrimination on the basis of marital status. While recognizing that the Unruh Act had previously been extended to cover categories not enumerated in the statute, the court noted that “no court has extended the Unruh Act to claimed discrimination on the basis of marital status,” and declared that “we shall not be the first to do so.” Id. at 1462, 8 Cal.Rptr.2d 593. The court interpreted Harris as accepting that the Unruh Act had previously been extended to unenumerated categories, but also as requiring that any future expansion of prohibited categories should be “carefully weighed to insure a result consistent with legislative intent.” Id. The court applied the second two prongs of Harris’ three-part analysis (legitimate business interest and consequences of allowing the type of claim brought by plaintiffs). In place of the first prong (examination of the language of the statute, and determination whether the proposed basis of discrimination — marital status — was similar to either the enumerated characteristics or the judicially-construed characteristics), the court simply concluded that marital status, like the economic status at issue in Harris, was a characteristic the Act was not intended to reach. The court found that the “strong policy in [California] in favor of marriage” categorically precluded recognition of marital status discrimination under the Act. In the context presented, the court found that the policy in favor of marriage would not be furthered and, in the case of an unmarried heterosexual couple, would actually be thwarted, by including marital status among the prohibited categories. Id. at 1462-63, 8 Cal.Rptr.2d 593. The court also observed that the Legislature had included “marital status” in scores of statutes, but had never taken the opportunity to include it in the Unruh Act. Id. Thus, as of 2002, when defendants denied the Butlers’ request to post their profile on ParentProfiles.com, the Unruh Act specifically prohibited discrimination on the basis of race, color, religion, ancestry, national origin, sex, disability, and medical condition. The California Supreme Court had repeatedly stated, however, that the enumerated categories were “illustrative rather than restrictive,” and the Legislature had never acted to repudiate that construction, despite having amended the Act several times in the interim. The Hams court had slightly narrowed the earlier construction, holding that the Unruh Act did not apply to prohibit discrimination based on “financial or economic status,” or other characteristics falling outside the realm of “personal characteristics.” Also as of 2002, a number of California appellate courts had ruled that the Unruh Act prohibited discrimination on the basis of sexual orientation. While at least one appellate court had held that the Unruh Act did not prohibit discrimination on the basis of marital status, the California Supreme Court had indicated that it was an open question, and had also repeatedly held that the Unruh Act’s list of bases of discrimination was illustrative rather than restrictive. In 2004, plaintiffs filed the complaint in this action, alleging discrimination based on marital status, sexual orientation, and sex, in violation of Civil Code §§ 51 and 51.5. In 2005, the California Supreme Court issued its opinion in Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 31 Cal.Rptr.3d 565, 115 P.3d 1212 (2005). In that case, a same-sex couple who were registered domestic partners sued a country club to which one of them belonged, alleging that the club’s refusal to extend to them certain benefits it extended to married couples constituted marital status discrimination under the Unruh Act. The court first summarized its prior decisions (Cox, Marina Point, O’Connor, Is- bister, and Hams), and then applied the three-part Hams analysis to plaintiffs’ marital status discrimination claim. As an initial matter, the court found that marital status involves a personal characteristic, like those categories already covered by the Act, and disagreed with the defendant country club’s argument that marital status is nothing more than a legal status imposed by the state. Koebke, 36 Cal.4th at 842, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court then discussed the Beaty decision at length. The court acknowledged the strong policy in California favoring marriage, and the practical interests served by that policy. Id. at 844-45, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court found, however, that “[t]hese policy considerations cannot justify denial of Unruh Civil Rights Act protection to domestic partners, whatever their application to other unmarried individuals and couples.” Id. at 845, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court concluded that the Domestic Partner Rights and Responsibilities Act of 2003 (effective January 1, 2005), by which the Legislature granted legal recognition comparable to marriage both proee-durally and in terms of substantive rights and obligations, was supported by policy considerations similar to those that favor marriage. Id. Thus, the court found, discrimination against registered domestic partners in favor of married couples is a type of discrimination that falls within the ambit of the Unruh Act. Id. at 846, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court then analyzed the second and third prongs of the Harris test, while simultaneously distinguishing the Beaty court’s findings. In particular, the court found the Beaty court’s concerns inapplicable to registered domestic partners. Id. at 846-48, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court also addressed the Beaty court’s argument that the Legislature’s failure to add marital status to the list of characteristics protected under the Unruh Act was somehow significant, declaring that the Legislature’s failure to amend the Act to expressly prohibit discrimination against domestic partners “is a particularly weak barometer of legislative intent.” The court added, “No specific legislative declaration is required for this court to infer from the statement of legislative intent accompanying the Domestic Partner Act an intent that registered domestic partners should not be discriminated against in favor of married couples in public accommodations.” Id. at 849, 31 Cal.Rptr.3d 565, 115 P.3d 1212. Finally, while it found that the defendant country club’s spousal benefit policy did not constitute impermissible marital status discrimination on its face prior to the effective date of the Domestic Partner Act, the court indicated that it would consider whether plaintiffs should be able to proceed on a claim that the policy, as applied, violated the Unruh Act prior to January 1, 2005. Id. at 851-52, 31 Cal.Rptr.3d 565, 115 P.3d 1212. With regard to sexual orientation, plaintiffs had argued that using marriage as a criterion for allocating benefits necessarily denied such benefits to all the country club’s homosexual members, who, like plaintiffs, were unable to marry in California. The court compared this claim to the claim in Hams, where the plaintiffs had argued that the defendant landlord’s minimum income policy constituted gender discrimination because of its disparate impact on women, who were more likely to be receiving public assistance and who generally had lower-paying jobs than men did. Id. at 853, 31 Cal.Rptr.3d 565, 115 P.3d 1212 (citing Harris, 52 Cal.3d at 1170, 278 Cal.Rptr. 614, 805 P.2d 873). The court noted that it had previously rejected this theory, on the basis that the Unruh Act prohibits intentional acts of discrimination, not disparate impact. Id. at 853-54, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court recognized, however, that the plaintiffs had cast their claim as one of disparate treatment rather than disparate impact, by alleging that discriminatory intent was established by country club’s adoption of marriage as the criterion by which to extend benefits to some of its members, but not to others, for the reason that gays and lesbians cannot marry in California. Plaintiffs had also asserted that a policy or classification, in itself permissible, may nonetheless be illegal if it is merely a device employed to accomplish the prohibited discrimination. Nevertheless, the court found no evidence supporting plaintiffs’ claim that the country club had adopted its spousal benefit policy to accomplish discrimination on the basis of sexual orientation, and concluded that plaintiffs’ argument still seemed to be based on the effects of a facially neutral policy. Id. at 854, 31 Cal.Rptr.3d 565, 115 P.3d 1212. The court did find evidence, however, that the country club had not applied its facially neutral policy in an impartial manner — specifically, evidence that unmarried, heterosexual members of the country club were granted membership privileges to which they were not entitled, while plaintiffs were denied such privileges purportedly pursuant to the country club’s spousal benefit policy. Id. There was also evidence that the directors of the country club were motivated by animus toward plaintiffs because of their sexual orientation. Id. The court determined that the plaintiffs should be allowed to try to establish that, prior to 2005, the spousal benefit policy was applied in a discriminatory fashion in violation of the Unruh Act. Id. at 855, 31 Cal.Rptr.3d 565, 115 P.3d 1212. Later that year (2005), the Legislature amended the Unruh Act to substitute “medical condition, marital status, or sexual orientation” for “or medical condition.” See 2005 Cal. Legis. Serv. Ch. 420 (A.B. 1400). This amendment was effective January 1, 2006. In addition, the Legislature appended the following findings: (a) Even prior to the passage of the Unruh Civil Rights Act, California law afforded broad protection against arbitrary discrimination by business establishments. The Unruh Civil Rights Act was enacted to provide broader, more effective protection against arbitrary discrimination. California’s interest in preventing that discrimination is longstanding and compelling. (b) In keeping with that history and the legislative history of the Unruh Civil Rights Act, California courts have interpreted the categories enumerated in the act to be illustrative rather than restrictive. It is the intent of the Legislature that these enumerated bases shall continue to be construed as illustrative rather than restrictive. (c) The Legislature affirms that the bases of discrimination prohibited by the Unruh Civil Rights Act include, but are not limited to, marital status and sexual orientation, as defined herein. By specifically enumerating these bases in the Unruh Civil Rights Act, the Legislature intends to clarify the existing law, rather than to change the law, as well as the principle that the bases enumerated in the act are illustrative rather than restrictive. (d) It is the intent of the Legislature that the amendments made to the Un-ruh Civil Rights Act by this act do not affect the California Supreme Court’s rulings in [Marina Point ] and [O’Con-nor]. Cal. Civ.Code. § 51, Historical Notes— Historical and Statutory Notes. Thus, as of January 1, 2005, based on the Koebke decision, the Unruh Act clearly prohibited marital status discrimination against registered domestic partners in California. As of January 1, 2006, based on the 2005 amendments to the Unruh Act and the Legislative findings, the Unruh Act clearly prohibits discrimination based on marital status (regardless of whether the affected persons are registered domestic partners) and also based on sexual orientation (though this had previously been established by judicial decisions dating back to the mid-1980s). The Legislature has also confirmed that the enumerated characteristics should be construed as illustrative rather than restrictive. C. The Parties’ Motions 1. Choice of Law Defendants argue that California law does not apply to plaintiffs’ substantive claims, while plaintiffs contend that it does. a. Standard for Determining Applicable Law Federal courts sitting in diversity look to the law of the forum state when making a choice-of-law determination. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 641 (9th Cir.1988); see also Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th Cir.2005). Thus, because the complaint in the present action was filed in California, California’s choice-of-law rules apply. In the absence of an effective choice of law by the parties, California applies the “governmental- interest” test. Washington Mutual Bank FA v. Superior Court, 24 Cal.4th 906, 919-20, 103 Cal.Rptr.2d 320, 15 P.3d 1071 (2001). Under that analysis, a court carefully examines the governmental interests or purposes served by the applicable statute or rule of law of each of the affected jurisdictions to determine whether there is a “true conflict.” If such a conflict is found to exist, the court analyzes the jurisdictions’ respective interests to determine which jurisdiction’s interests would be more severely impaired if that jurisdiction’s law were not applied in the particular context presented by the case. Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 100, 45 Cal.Rptr.3d 730, 137 P.3d 914 (2006) (citing Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); Hurtado v. Superior Court, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974); Bernhard v. Harrah’s Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976); Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 148 Cal.Rptr. 867, 583 P.2d 721 (1978)). Kearney reflects the California Supreme Court’s most recent thinking regarding the application of the “governmental interest” test. In that case, two California clients of Salomon Smith Barney (“SSB”) filed a class action alleging that telephone calls they had made to brokers at SSB’s Georgia office had been tape-recorded without the clients’ consent, in violation of California Penal Code § 637.2. Penal Code § 637.2 authorizes a civil cause of action for any violation of California’s invasion-of-privacy statutory scheme, and Penal Code § 632 is the specific portion of that scheme that governs the unlawful recording of telephone conversations. Plaintiffs also alleged a cause of action under California Business & Professions Code § 17200. Kearney, 39 Cal.4th at 102, 45 Cal.Rptr.3d 730, 137 P.3d 914. SSB demurred to the complaint. The trial court sustained the demurrer, concluding that under both Georgia and federal law, recordings may be lawfully made in Georgia by one party without the other party’s knowledge or consent, and that SSB’s conduct could therefore not be viewed as unlawful or unfair or deceptive under § 17200. The court found further that any attempt to apply Penal Code § 632 to recordings made in Georgia would be preempted by federal law and would violate the Commerce Clause. Id. at 102-03, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court of appeal affirmed the trial court’s judgment, but on the basis that under the specific facts of the case, Georgia had a greater interest in having its law applied. Id. at 103, 45 Cal.Rptr.3d 730, 137 P.3d 914. The California Supreme Court granted the petition for review to address what it termed the “novel choice-of-law issue presented by this case.” Id. The court initially disposed of SSB’s arguments regarding personal jurisdiction, legislative jurisdiction and extraterritorial application of state law, federal preemption, and the Commerce Clause, id. at 103-07, 45 Cal.Rptr.3d 730, 137 P.3d 914, and then addressed the choice-of-law issue, which it termed “the only substantial issue presented by the case.” Id. at 107, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court summarized the governmental interest approach, as follows. First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the coui't finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law “to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state” ... and then ultimately applies “the law of the state whose interest would be the more impaired if its law were not applied.” Id. at 107-08, 45 Cal.Rptr.3d 730, 137 P.3d 914 (citation omitted). The court then reviewed four of its previous decisions on the issue — Reich, Hur-tado, Bernhard, and Offshore Rental. The first two cases — Reich and Hurtado — presented “no true conflict” because in each case, only one of the states involved had an interest in having its law applied. The last two cases- — Bernhard and Offshore Rental — each presented a “true conflict,” because in those cases, each state had an interest in having its law applied, which required the court to conduct a “comparative impairment” analysis. In Reich, a 1967 decision, the plaintiffs — Mr. Reich and one of his children— filed a wrongful death action after Mrs. Reich and the Reichs’ other child were killed in an automobile accident while traveling through Missouri. The Reichs were residents of Ohio at the time of the accident. After the accident, Mr. Reich and the surviving child moved to California. The suit was filed in a California court. The trial court held that Missouri law applied because the accident had taken place in Missouri. Missouri had a limit of $25,000 on wrongful death damages, while Ohio and California had no such limits. The question was whether the law of Missouri, California, or Ohio should apply. The California Supreme Court rejected the “law of the place of the wrong” rule, and instead adopted the “governmental interest” test. Reich, 67 Cal.2d at 555-56, 63 Cal.Rptr. 31, 432 P.2d 727. The court found that California had no interest in the case because plaintiffs were not California residents at the time of the accident, and because California law did not limit damages. The court found further that Missouri’s interest was local, and did not apply to extend protection to travelers from another state. Ohio had a substantial interest in having its law applied, while Missouri did not. Thus, the court found, the case did not present a true conflict and Ohio law applied. The facts in Hurtado, a 1974 decision, were somewhat similar to the facts in Reich. The plaintiffs (widow and children of Antonio Hurtado) filed a wrongful death action in California. Antonio Hurtado had been riding in an automobile owned and operated by his cousin, defendant Manuel Hurtado, and was killed when Manuel Hurtado’s automobile collided with a pickup truck owned and operated by defendant Jack Rexius. The plaintiffs (Widow Hur-tado and children) and the decedent (Antonio Hurtado) were residents of Mexico, and defendants Manuel Hurtado and Jack Rexius were California residents. All vehicles were registered in California. At the time of the accident, Mexico had a law that limited damages in wrongful death actions, while California had no limit. The question was whether the court should apply the law of California or the law of Mexico. The California Supreme Court noted the importance of correctly identifying the various interests in a particular type of action. The court concluded that where a state’s laws limit damages in a wrongful death action, the interest of the state is to protect defendants from excessive financial burdens or exaggerated claims. This interest is local, because it is designed to protect residents of the state. However, the court found that Mexico had no interest in applying its limitation of damages because it had no defendant residents to protect with such limitation — it was the plaintiffs who were the residents of Mexico, not the defendants. Hurtado, 11 Cal.3d at 583-84, 114 Cal.Rptr. 106, 522 P.2d 666. In Bernhard, a 1976 decision, the California Supreme Court was confronted with a “true conflict” case for the first time since adopting the “governmental interest” analysis. Bernhard was a dramshop-lia-bility case. The plaintiff, a resident of California, was injured in California by a drunk driver. The defendant, Harrah’s Club, was the owner of a Nevada tavern that had served alcohol to the driver who injured the plaintiff. Plaintiff filed suit in California, under a law that allowed a person injured by an intoxicated driver to file a civil action to recover damages from a negligent tavern owner. In Nevada, by contrast, while it was a crime to sell alcohol to an intoxicated person, the state courts had ruled that a tavern owner could not be held civilly liable in tort for injuries caused by that intoxicated person. The court found that this presented a true conflict because each state had an interest in the application of its respective law of liability, and the interests of the two states conflicted. Nevada had an interest in having its decisional rule applied to protect its tavern owners from being subjected to a form of civil liability that Nevada declined to impose. California, on the other hand, had an interest in applying its rule imposing liability in such circumstances, because the rule was intended to protect members of the public from injuries to persons and property resulting from excessive use of intoxicating liquor. California also had a special interest in extending this protection to California residents injured in California. Bernhard, 16 Cal.3d at 322-24, 128 Cal.Rptr. 215, 546 P.2d 719. The question was whether California or Nevada law applied. The court applied the third part of the governmental interest test — the “comparative impairment” analysis — to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state. Id. at 320, 128 Cal.Rptr. 215, 546 P.2d 719. The court first noted that Harrah’s “by the course of its chosen commercial practice” had “put itself at the heart of California’s regulatory interest, namely to prevent tavern keepers from selling alcoholic beverages to obviously intoxicated persons who are likely to act in California in the intoxicated state.” Id. at 322, 128 Cal.Rptr. 215, 546 P.2d 719. The court observed that California “cannot reasonably effectuate its policy if it does not extend its regulation to include out-of-state tavern-keepers such as defendant who regularly and purposefully sell intoxicating beverages to California residents,” under circumstances in which it is likely that intoxicated persons will return to California while still in an intoxicated state. Id. at 322-23, 128 Cal.Rptr. 215, 546 P.2d 719. The court found that California’s interest would be significantly impaired if its policy were not applied to defendant Harrah’s. Id. at 323, 128 Cal.Rptr. 215, 546 P.2d 719. In Offshore Rental, a 1978 decision, a California corporation filed suit in California against an out-of-state corporation (which did business in California, Louisiana, and other states), alleging damage to business interests. The California corporation sought to recover damages for loss of services of one of its key corporate officers, who was injured at the defendant corporation’s Louisiana premises. The question was whether California or Louisiana law applied. Although Louisiana law allowed a “master” to bring an action “against any man for beating or maiming his servant,” Louisiana courts had ruled that a corporate plaintiff could not state a cause of action under that law for loss of services of its officer. California cases, on the other hand, seemed to support a cause of action under California Civil Code § 49, which provided that “[t]he rights of personal relations forbid ... any injury to a servant which affects his ability to serve his master.” California courts had indicated that a corporation could assert a claim under Civil Code § 49 against a third party for negligent injury to a key employee. The California Supreme Court found that the laws of Louisiana and California were directly in conflict, and looked at the governmental policies underlying the laws of the two states, in order to determine whether either state had an interest in applying its policy to the case. Louisiana’s refusal to permit recovery for loss of a key employee’s services was predicated on a policy of “protecting] negligent resident tort-feasors acting within Louisiana’s borders from the financial hardships caused by the assessment of excessive legal liability or exaggerated claims resulting from the loss of services of a key employee.” Offshore Rental, 22 Cal.3d at 163-64, 148 Cal.Rptr. 867, 583 P.2d 721. “Clearly,” the court observed, “the present defendant is a member of the class which Louisiana law seeks to protect, since defendant is a Louisiana ‘resident’ whose negligence on its own premises has caused the injury in question,” and “negation of plaintiffs cause of action serves Louisiana’s policy of avoidance of extended financial hardship to the negligent defendant.” Id. at 164, 148 Cal.Rptr. 867, 583 P.2d 721. The court recognized as “equally clear,” however, that “application of California law to the present case will further California’s interest,” noting that California, through Civil Code § 49, “expresses an interest in protecting California employers from economic harm because of negligent injury to a key employee.” Id, Moreover, “California’s policy of protection extends beyond such an injury inflicted within California, since California’s economy and tax revenues are affected regardless of the situs of physical injury.” Id. Having found a true conflict between the law of Louisiana and the law of California, the court proceeded with the analysis to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state. This analysis, according to the court, does not involve “weighing” the conflicting governmental interests, in the sense of determining which interest is “worthier” or expresses the “better” social policy, but rather can be viewed as an attempt to determine “the relative commitment of the respective states to the laws involved.” Id. at 165-66, 148 Cal.Rptr. 867, 583 P.2d 721 (citations omitted). “The approach incorporates several factors ... [including] the history and current status of the states’ laws; [and] the function and purpose of those laws.” Id. at 166, 148 Cal.Rptr. 867, 583 P.2d 721. The court characterized the Louisiana law as being in the “main stream” of American jurisdictions, as the majority of states that had considered the question did not sanction actions for harm to business employees. Id. at 167-68, 148 Cal.Rptr. 867, 583 P.2d 721. By contrast, California had exhibited little interest in applying Civil Code § 49, no California court had squarely held that California law provides a cause of action for harm to business employees, and no California court had recently considered the issue at all. Id. at 168, 148 Cal.Rptr. 867, 583 P.2d 721. Thus, to the extent that § 49 provided a cause of action for injuries to key corporate employees, it nonetheless constituted a law that was “archaic and isolated in the context of the laws of the federal union,” and California’s interest in the application of its unusual and outmoded statute was comparatively less strong than Louisiana’s corollary interest in its “prevalent and progressive law.” Id. The court found further that while the “law of the place of the wrong” is not necessarily the applicable law for all tort actions, “the situs of the injury remains a relevant consideration.” Id. The court found that Louisiana had a “vital interest in promoting freedom of investment and enterprise within Louisiana’s borders, among investors incorporated both in Louisiana and elsewhere,” and that the imposition of liability on the defendant would “strike at the essence of a compelling Louisiana law.” Id. The court also noted that the plaintiff corporation was particularly able to calculate risks and plan accordingly, by purchasing “key employee” insurance — and indeed, should have anticipated a need for such protection — whereas defendant reasonably did not anticipate a need for insurance to protect against “key employee” losses at its Louisiana facility, as that type of loss is not actionable under Louisiana law. Id. at 168-69, 148 Cal.Rptr. 867, 583 P.2d 721. Following its review of the Reich, Hurtado, Bernhard, and Offshore Rental decisions, the Kearney court turned to an examination of the facts of the case before it, in order to determine whether California law or Georgia law apply to the recording of a telephone conversation that occurs between a person in California and a person in Georgia. The court first analyzed the California statutory scheme, noting that Penal Code § 632 — the law prohibiting the recording of telephone conversations without the knowledge of both participants — was part of California’s broad, protective invasion-of-privacy statute. Kearney, 39 Cal.4th at 115-16, 45 Cal.Rptr.3d 730, 137 P.3d 914. Further, the legislatively prescribed purpose of the 1967 invasion-of-privacy statute “is to ‘protect the privacy of the people of this state.’ ” Id. at 119, 45 Cal.Rptr.3d 730, 137 P.3d 914 (citing Penal Code § 630). The court found that the stated purpose “certainly supports application of the statute in a setting in which a person outside California records, without the Californian’s knowledge or consent, a telephone conversation of a California resident who is within California.” Id. “The privacy interest protected by the statute is no less directly and immediately invaded when a communication within California is secretly and contemporaneously recorded from outside the state than when this action occurs within the state.” Id. The court then turned to the Georgia law. The basic provision of the Georgia statute is the prohibition of the employment of devices that would permit the clandestine “overhearing, recording or transmitting of conversations or observing of activities which occur in a private place.” Id. at 121, 45 Cal.Rptr.3d 730, 137 P.3d 914 (citing Ga.Code Ann. § 16-11-62). The policy underlying the statute is the public policy of the state to “ ‘protect the citizens of this State from invasions upon their privacy.’ ” Id. At the same time, however, another provision of that statutory scheme provides that nothing in § 16-11-62 “shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” Id. (citing Ga.Code Ann. § 26-11-66). Georgia courts have long interpreted the Georgia privacy statutes as not applicable when a conversation is recorded by one of the participants in the conversation. Id. at 121-22, 45 Cal.Rptr.3d 730, 137 P.3d 914. Thus, the court noted, Georgia law differs from California law in this respect, although nothing in either law addresses whether the law is intended to apply to a telephone call in which one of the parties is in another state. Id. at 122, 45 Cal.Rptr.3d 730, 137 P.3d 914. The Kearney court concluded that the case presented a true conflict — California had a legitimate interest in having its law applied because the plaintiffs were California residents whose telephone conversations in California were recorded without their knowledge or consent; and Georgia had a legitimate interest in not having liability imposed on persons or businesses who acted in Georgia in reliance on the provisions of Georgia law, because the conduct at issue in the case involved activity engaged in by defendant’s employees in Georgia. Id. at 123, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court then considered which state’s interest would be more impaired if its policy were subordinated to the policy of the other state. Id. at 124, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court first looked at the degree of impairment of California’s interest that would result if Georgia law rather than California law were applied. The court noted that unlike the situation in Offshore Rental, the California statute in question was not “ancient” or “little used.” Rather, California courts have repeatedly invoked and vigorously enforced the provisions of Penal Code § 632. Id. Moreover, the court noted, in recent years the California Legislature has continued to add provisions and make modifications to the invasion-of-privacy statutory scheme at issue, which, along with California’s constitutional privacy provision (Cal. Const., art. I, § 1) was enacted specifically to protect Californians from overly intrusive business practices. Id. at 125, 45 Cal.Rptr.3d 730, 137 P.3d 914. The court concluded that California had a strong and continuing interest in the full and vigorous application of all the provisions of Penal Code § 632 prohibiting the recording of telephone conversations, and that the failure to apply the statute would substantially undermine the protection it afforded. Id. The court concluded that the application of California law would have a relatively less severe effect on Georgia’s interests, than would the application of Georgia law on California’s interests. Id. at 126, 45 Cal.Rptr.3d 730, 137 P.3d 914. First, because California law was more protective of privacy interests than the comparabl