CACI 2549 Disability Discrimination—Refusal to Permit Reasonable Modification to Housing Unit (Gov. Code, § 12927(c)(1))
California Civil Jury Instructions CACI
2549 Disability Discrimination—Refusal to Permit Reasonable Modification to Housing Unit (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to permit reasonable modifications of [name of plaintiff]’s [specify type of housing, e.g., apartment] necessary to afford [name of plaintiff] full enjoyment of the premises. To establish this claim, [name of plaintiff] must prove all of the following:
1.That [name of defendant] was the [specify defendant’s source of authority to provide housing, e.g., owner] of [a/an] [e.g., apartment building];
2.That [name of plaintiff] [sought to rent/was living in/[specify other efforts to obtain housing]] the [e.g., apartment];
3.That [name of plaintiff] had [a history of having] [a] [select term to describe basis of limitations, e.g., physical disability] [that limited [insert major life activity]];
4.That [name of defendant] knew of, or should have known of, [name of plaintiff]’s disability;
5.That in order to afford [name of plaintiff] an equal opportunity to use and enjoy the [e.g., apartment], it was necessary to [specify modification(s) required];
6.That it was reasonable to expect [name of defendant] to [specify modification(s) required];
7.That [name of plaintiff] agreed to pay for [this/these] modification[s]; [and]
8.[That [name of plaintiff] agreed that [he/she/nonbinary pronoun] would restore the interior of the unit to the condition that existed before the modifications, other than for reasonable wear and tear; and]
9.That [name of defendant] refused to permit [this/these] modification[s].
New May 2017; Revised May 2020
Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a failure to permit reasonable modifications to a living unit to accommodate a disability. Under the Fair Employment and Housing Act, “discrimination” includes the refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by the disabled person, if the modifications may be necessary to afford the disabled person full enjoyment of the premises. (Gov. Code, § 12927(c)(1).)
In element 2, if the plaintiff encountered a barrier before actually submitting an application, such as discovering a policy that would make it impossible to live in the unit, specify what the plaintiff did to obtain the housing.
In element 3, select a term to describe the source of the plaintiff’s limitations. It may be a statutory term such as “physical disability,” “mental disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such as “condition,” “disease,” or “disorder.” Or it may be a specific health condition such as “diabetes.”
In element 3, select the bracketed language on “history” of disability if the claim of discrimination is based on a history of disability rather than a current actual disability.
Modify element 3 if the plaintiff was not actually disabled or had a history of disability, but alleges denial of accommodation because the plaintiff was perceived to be disabled or associated with someone who has, or is perceived to have, a disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4) [mental and physical disability include being regarded or treated as disabled by the employer].)
In element 5, specify the modifications that are alleged to be needed.
Element 7 may not apply if section 504 of the Rehabilitation Act of 1973 (applicable to federal subsidized housing) or Title II of the Americans With Disabilities Act requires the landlord to incur the cost of reasonable modifications.
In the case of a rental, the landlord may, if it is reasonable to do so, condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification (other than for reasonable wear and tear). (Gov. Code, § 12927(c)(1).) Include element 8 if the premises to be physically altered is a rental unit, and the plaintiff agreed to restoration. If the parties dispute whether restoration is reasonable, presumably the defendant would have to prove reasonableness. (See Evid. Code, § 500 [party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that s/he is asserting].)
Sources and Authority
•Discrimination Defined Regarding Housing Disability Accommodations. Government Code section 12927(c)(1).
•“Disability” Defined for Housing Discrimination. Government Code section 12955.3.
•“Housing” Defined. Government Code section 12927(d).
•“ ‘FEHA in the housing area is thus intended to conform to the general requirements of federal law in the area and may provide greater protection against discrimination.’ In other words, the FHA provides a minimum level of protection that FEHA may exceed. Courts often look to cases construing the FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18 Cal.Rptr.3d 669], internal citations omitted.)
•“[T]he basic principles applicable in employment cases should also apply in the housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64 Cal.Rptr.2d 301].)
•“We note that, currently, section 12955.3 explicitly states that ‘disability’ includes ‘any physical or mental disability as defined in Section 12926.’ That statute in turn defines ‘mental disability’ to include “any mental or psychological disorder or condition … that limits a major life activity’, that is, ‘makes the achievement of the major life activity difficult.’ ‘Major life activities’ is to be broadly construed, and includes ‘physical, mental, and social activities and working.’ ” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p. 1592, internal citations omitted.)
•“ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.’ This obligation to ‘open a dialogue’ with a party requesting a reasonable accommodation is part of an interactive process in which each party seeks and shares information.” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation omitted.)