CACI 3060 Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)

California Civil Jury Instructions CACI

3060 Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)

[Name of plaintiff] claims that [name of defendant] denied [him/her/nonbinary pronoun] full and equal [accommodations/advantages/facilities/privileges/services] because of [his/her/nonbinary pronoun] [sex/race/color/religion/ancestry/ national origin/disability/medical condition/genetic information/marital status/sexual orientation/citizenship/primary language/immigration status/[insert other actionable characteristic]]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] [denied/aided or incited a denial of/discriminated or made a distinction that denied] full and equal [accommodations/advantages/facilities/privileges/services] to [name of plaintiff];

2.[That a substantial motivating reason for [name of defendant]’s conduct was [its perception of] [name of plaintiff]’s [sex/race/color/religion/ancestry/national origin/medical condition/genetic information/marital status/sexual orientation/citizenship/primary language/immigration status/[insert other actionable characteristic]];]

[That the [sex/race/color/religion/ancestry/national origin/medical condition/genetic information/marital status/sexual orientation/citizenship/primary language/immigration status/[insert other actionable characteristic]] of a person whom [name of plaintiff] was associated with was a substantial motivating reason for [name of defendant]’s conduct;]

3.That [name of plaintiff] was harmed; and

4.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2011, June 2012; Renumbered from CACI No. 3020 December 2012; Revised June 2013, June 2016

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Directions for Use

Select the bracketed option from element 2 that is most appropriate to the facts of the case.

Note that element 2 uses the term “substantial motivating reason” to express both intent and causation between the protected classification and the defendant’s conduct. “Substantial motivating reason” has been held to be the appropriate standard under the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Whether the FEHA standard applies under the Unruh Act has not been addressed by the courts.

With the exception of claims that are also violations of the Americans With Disabilities Act (ADA) (see Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665 [94 Cal.Rptr.3d 685, 208 P.3d 623]), intentional discrimination is required for violations of the Unruh Act. (See Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1149 [278 Cal.Rptr. 614, 805 P.2d 873].) The intent requirement is encompassed within the motivating-reason element. For claims that are also violations of the ADA, do not give element 2.

Note that there are two causation elements. There must be a causal link between the discriminatory intent and the adverse action (see element 2), and there must be a causal link between the adverse action and the harm (see element 4).

For an instruction on damages under the Unruh Act, see CACI No. 3067, Unruh Civil Rights Act—Damages. Note that the jury may award a successful plaintiff up to three times actual damages but not less than $4,000 regardless of any actual damages. (Civ. Code, § 52(a).) In this regard, harm is presumed, and elements 3 and 4 may be considered as established if no actual damages are sought. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Unruh Act violations are per se injurious]; Civ. Code, § 52(a) [provides for minimum statutory damages for every violation regardless of the plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means special and general damages].)

The judge may decide the issue of whether the defendant is a business establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed if there are factual issues. This element has been omitted from the instruction because it is unlikely to go to a jury.

The Act is not limited to the categories expressly mentioned in the statute. Other forms of arbitrary discrimination by business establishments are prohibited. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736 [180 Cal.Rptr. 496, 640 P.2d 115].) Therefore, this instruction allows the user to “insert other actionable characteristic” throughout. Nevertheless, there are limitations on expansion beyond the statutory classifications. First, the claim must be based on a personal characteristic similar to those listed in the statute. Second, the court must consider whether the alleged discrimination was justified by a legitimate business reason. Third, the consequences of allowing the claim to proceed must be taken into account. (Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1392–1393 [127 Cal.Rptr.3d 794]; see Harris, supra, 52 Cal.3d at pp. 1159–1162.) However, these issues are most likely to be resolved by the court rather than the jury. (See Harris, supra, 52 Cal.3d at p. 1165.) Therefore, no elements are included to address what may be an “other actionable characteristic.” If there are contested factual issues, additional instructions or special interrogatories may be necessary.

Sources and Authority

Unruh Civil Rights Act. Civil Code section 51.

Remedies Under Unruh Act. Civil Code section 52.

“The Unruh Act was enacted to ‘create and preserve a nondiscriminatory environment in California business establishments by “banishing” or “eradicating” arbitrary, invidious discrimination by such establishments.’ ” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937 [190 Cal.Rptr.3d 33].)

“Invidious discrimination is the treatment of individuals in a manner that is malicious, hostile, or damaging.” (Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1404 [195 Cal.Rptr.3d 706].)

“ ‘The Legislature used the words “all” and “of every kind whatsoever” in referring to business establishments covered by the Unruh Act, and the inclusion of these words without any exception and without specification of particular kinds of enterprises, leaves no doubt that the term “business establishments” was used in the broadest sense reasonably possible. The word “business” embraces everything about which one can be employed, and it is often synonymous with “calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.” The word “establishment,” as broadly defined, includes not only a fixed location, such as the “place where one is permanently fixed for residence or business,” but also a permanent “commercial force or organization” or “a permanent settled position, (as in life or business).” ’ ” (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795 [191 Cal.Rptr. 320, 662 P.2d 427], internal citations omitted.)

Whether a defendant is a “business establishment” is decided as an issue of law. (Rotary Club of Duarte, supra, 178 Cal.App.3d at p. 1050.)

“When a plaintiff has visited a business’s website with intent to use its services and alleges that the business’s terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act. In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store. Although mere awareness of a business’s discriminatory policy or practice is not enough for standing under the Act, entering into an agreement with the business is not required.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023 [250 Cal.Rptr.3d 770, 446 P.3d 276].)

“We hold that including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.” (Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, 644 [252 Cal.Rptr.3d 292].)

“Here, the City was not acting as a business establishment. It was amending an already existing municipal code section to increase the minimum age of a responsible person from the age of 21 years to 30. The City was not directly discriminating against anyone and nothing in the plain language of the Unruh Civil Rights Act makes its provisions applicable to the actions taken by the City.” (Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 175 [196 Cal.Rptr.3d 267].)

“[T]he protection against discrimination afforded by the Unruh Act applies to ‘all persons,’ and is not reserved for restricted categories of prohibited discrimination.” (Marina Point, Ltd.supra, 30 Cal.3d at p. 736.)

“Nevertheless, the enumerated categories, bearing the ‘common element’ of being ‘personal’ characteristics of an individual, necessarily confine the Act’s reach to forms of discrimination based on characteristics similar to the statutory classifications—such as ‘a person’s geographical origin, physical attributes, and personal beliefs.’ The ‘personal characteristics’ protected by the Act are not defined by ‘immutability, since some are, while others are not [immutable], but that they represent traits, conditions, decisions, or choices fundamental to a person’s identity, beliefs and self-definition.’ ” (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1145 [228 Cal.Rptr.3d 336].)

“In addition to the particular forms of discrimination specifically outlawed by the Act (sex, race, color, etc.), courts have held the Act ‘prohibit[s] discrimination based on several classifications which are not specifically enumerated in the statute.’ These judicially recognized classifications include unconventional dress or physical appearance, families with children, homosexuality, and persons under 18.” (Hessians Motorcycle Club v. J.C. Flanagans (2001) 86 Cal.App.4th 833, 836 [103 Cal.Rptr.2d 552], internal citations omitted.)

“The Act applies not merely in situations where businesses exclude individuals altogether, but also ‘where unequal treatment is the result of a business practice.’ ‘Unequal treatment includes offering price discounts on an arbitrary basis to certain classes of individuals.’ ” (Candeloresupra, 19 Cal.App.5th at pp. 1145–1146, internal citations omitted.)

“Race discrimination claims under … the Unruh Civil Rights Act follow the analytical framework established under federal employment law. Although coaches are different from ‘ordinary employers,’ the McDonnell Douglas framework strikes the appropriate balance in evaluating race discrimination claims brought by college athletes: … .” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 661 [242 Cal.Rptr.3d 757], internal citations omitted.)

“[T]he language and history of the Unruh Act indicate that the legislative object was to prohibit intentional discrimination in access to public accommodations. We have been directed to no authority, nor have we located any, that would justify extension of a disparate impact test, which has been developed and applied by the federal courts primarily in employment discrimination cases, to a general discrimination-in-public-accommodations statute like the Unruh Act. Although evidence of adverse impact on a particular group of persons may have probative value in public accommodations cases and should therefore be admitted in appropriate cases subject to the general rules of evidence, a plaintiff must nonetheless plead and prove a case of intentional discrimination to recover under the Act.” (Harris, supra, 52 Cal.3d at p. 1149.)

“On examining the language, statutory context, and history of section 51, subdivision (f), we conclude … [t]he Legislature’s intent in adding subdivision (f) was to provide disabled Californians injured by violations of the ADA with the remedies provided by section 52. A plaintiff who establishes a violation of the ADA, therefore, need not prove intentional discrimination in order to obtain damages under section 52.” (Munson, supra, 46 Cal.4th at p. 665.)

“Civil Code section 51, subdivision (f) states: ‘A violation of the right of any individual under the federal [ADA] shall also constitute a violation of this section.’ The ADA provides in pertinent part: ‘No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who … operates a place of public accommodation.’ The ADA defines discrimination as ‘a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.’ ” (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825], internal citations omitted.)

“ ‘Although the Unruh Act proscribes “any form of arbitrary discrimination,” certain types of discrimination have been denominated “reasonable” and, therefore, not arbitrary.’ Thus, for example, ‘legitimate business interests may justify limitations on consumer access to public accommodations.’ ” (Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520 [74 Cal.Rptr.2d 684], internal citations omitted.)

“Discrimination may be reasonable, and not arbitrary, in light of the nature of the enterprise or its facilities, legitimate business interests (maintaining order, complying with legal requirements, and protecting business reputation or investment), and public policy supporting the disparate treatment.” (Javorsky, supra, 242 Cal.App.4th at p. 1395.)

“[T]he Act’s objective of prohibiting ‘unreasonable, arbitrary or invidious discrimination’ is fulfilled by examining whether a price differential reflects an ‘arbitrary, class-based generalization.’ … [A] policy treating age groups differently in this respect may be upheld, at least if the pricing policy (1) ostensibly provides a social benefit to the recipient group; (2) the recipient group is disadvantaged economically when compared to other groups paying full price; and (3) there is no invidious discrimination.” (Javorsky, supra, 242 Cal.App.4th at p. 1399.)

“Unruh Act issues have often been decided as questions of law on demurrer or summary judgment when the policy or practice of a business establishment is valid on its face because it bears a reasonable relation to commercial objectives appropriate to an enterprise serving the public.” (Harris, supra, 52 Cal.3d at p. 1165, internal citations omitted.)

“It is thus manifested by section 51 that all persons are entitled to the full and equal privilege of associating with others in any business establishment. And section 52, liberally interpreted, makes clear that discrimination by such a business establishment against one’s right of association on account of the associates’ color, is violative of the Act. It follows … that discrimination by a business establishment against persons on account of their association with others of the black race is actionable under the Act.” (Winchell v. English (1976) 62 Cal.App.3d 125, 129 [133 Cal.Rptr. 20].)

“Appellant is disabled as a matter of law not only because she is HIV positive, but also because it is undisputed that respondent ‘regarded or treated’ her as a person with a disability. The protection of the Unruh Civil Rights Act extends both to people who are currently living with a physical disability that limits a life activity and to those who are regarded by others as living with such a disability. … ‘Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be. The statute’s plain language leads to the conclusion that the “regarded as” definition casts a broader net and protects any individual “regarded” or “treated” by an employer “as having, or having had, any physical condition that makes achievement of a major life activity difficult” or may do so in the future.’ Thus, even an HIV-positive person who is outwardly asymptomatic is protected by the Unruh Civil Rights Act.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 529–530 [155 Cal.Rptr.3d 620], original italics, internal citations omitted.)

“[T]he Unruh Civil Rights Act prohibits arbitrary discrimination in public accommodations with respect to trained service dogs, but not to service-animals-in-training.” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 224 [223 Cal.Rptr.3d 133].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 994–1015
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Unruh Civil Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act, § 35.20 et seq. (Matthew Bender)