CACI 3064 Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)

California Civil Jury Instructions CACI

3064 Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)

[Name of plaintiff] claims that [name of defendant] intimidated [him/her/nonbinary pronoun] by threat of violence because of [his/her/nonbinary pronoun] [race/color/religion/ancestry/national origin/political affiliation/sex/sexual orientation/age/disability/citizenship/primary language/immigration status/position in a labor dispute/[insert other actionable characteristic]]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] intentionally threatened violence against [name of plaintiff] [or [his/her/nonbinary pronoun] property], [whether or not [name of defendant] actually intended to carry out the threat];

2.That a substantial motivating reason for [name of defendant]’s conduct was [[his/her/nonbinary pronoun] perception of] [name of plaintiff]’s [race/color/religion/ancestry/national origin/political affiliation/sex/sexual orientation/age/disability/citizenship/primary language/immigration status/position in a labor dispute/[insert other actionable characteristic]];

3.That a reasonable person in [name of plaintiff]’s position would have believed that [name of defendant] would carry out [his/her/nonbinary pronoun] threat;

4.That a reasonable person in [name of plaintiff]’s position would have been intimidated by [name of defendant]’s conduct;

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

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

Derived from former CACI No. 3023 December 2009; Renumbered from CACI No. 3023B December 2012; Revised June 2013, December 2016

Crowdsource Lawyers

Directions for Use

Use this instruction for a cause of action under the Ralph Act involving threats of violence alleged to have been directed by the defendant toward the plaintiff. For an instruction involving actual acts of violence, see CACI No. 3063, Acts of Violence—Ralph Act—Essential Factual Elements.

Note that element 2 uses the term “substantial motivating reason” to express both intent and causation between the protected classification and the defendant’s threats. “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 Ralph Act has not been addressed by the courts.

No published California appellate opinion establishes elements 3 and 4. However, the Ninth Circuit Court of Appeals and the California Fair Employment and Housing Commission have held that a reasonable person in the plaintiff’s position must have been intimidated by the actions of the defendant and have perceived a threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co. Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)

Liability may also be found if a defendant “aids, incites, or conspires” in the denial of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This instruction should be modified if aiding, inciting, or conspiring is asserted as theories of liability. See also instructions in the Conspiracy series (CACI No. 3600 et seq.).

Sources and Authority

Ralph Act. Civil Code section 51.7.

Protected Characteristics. Civil Code section 51(b).

Remedies Under Ralph Act. Civil Code section 52(b).

“The unambiguous language of this section gives rise to a cause of action in favor of a person against whom violence or intimidation has been committed or threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr. 873].)

“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that [defendant] aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)

“Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’ Section 51.7 provides that all persons ‘have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of …’ specified characteristics, including sex, and provides for a civil remedy for violation of that right. Nothing in the statute requires that a plaintiff prove that the offending act was motivated by hate.” (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150 Cal.Rptr.3d 861].)

“The test is: ‘would a reasonable person, standing in the shoes of the plaintiff, have been intimidated by the actions of the defendant and have perceived a threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal citation omitted.)

“When a threat of violence would lead a reasonable person to believe that the threat will be carried out, in light of the ‘entire factual context,’ including the surrounding circumstances and the listeners’ reactions, then the threat does not receive First Amendment protection, and may be actionable under the Ralph Act. The only intent requirement is that respondent ‘intentionally or knowingly communicates his [or her] threat, not that he intended or was able to carry out his threat.’ A threat exists if the ‘target of the speaker reasonably believes that the speaker has the ability to act him or herself or to influence others. … It is the perception of a reasonable person that is dispositive, not the actual intent of the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp. 55–56, internal citations omitted.)

“Section 51 by its express language applies only within California. It cannot (with its companion penalty provisions in § 52) be extended into the Hawaiian jurisdiction. A state cannot regulate or proscribe activities conducted in another state or supervise the internal affairs of another state in any way, even though the welfare or health of its citizens may be affected when they travel to that state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d 195].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Employment Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims and Defenses, Ch. 14(IV)-B, Ralph Civil Rights Act of 1976—Elements, ¶ 14:940 (The Rutter Group)
Cheng et al., Cal. Fair Housing and Public Accommodations §§ 14:2, 14:3 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation §§ 3:1–3:15 (Thomson Reuters)