CACI 3070 Disability Discrimination—Access Barriers to Public Facility—Construction-Related Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)

California Civil Jury Instructions CACI

3070 Disability Discrimination—Access Barriers to Public Facility—Construction-Related Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)

[Name of defendant] is the owner of [a/an] [e.g., restaurant] named [name of business] that is open to the public. [Name of plaintiff] is a disabled person who [specify disability that creates accessibility problems].

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was denied full and equal access to [name of defendant]’s business on a particular occasion because of physical barriers. To establish this claim, [name of plaintiff] must prove both of the following:

1.That [name of defendant]’s business had barriers that violated construction-related accessibility standards in that [specify barriers]; and [either]

2.[That [name of plaintiff] personally encountered the violation on a particular occasion.]


[That [name of plaintiff] was deterred from accessing [name of defendant]’s business on a particular occasion.]

[A violation that [name of plaintiff] personally encountered may be sufficient to cause a denial of full and equal access if [he/she/nonbinary pronoun] experienced difficulty, discomfort, or embarrassment because of the violation.]

[To prove that [name of plaintiff] was deterred from accessing [name of defendant]’s business on a particular occasion, [he/she/nonbinary pronoun] must prove both of the following:

1.That [name of plaintiff] had actual knowledge of one or more violations that prevented or reasonably dissuaded [him/her/nonbinary pronoun] from accessing [name of defendant]’s business, which [name of plaintiff] intended to patronize on a particular occasion.

2.That the violation(s) would have actually denied [name of plaintiff] full and equal access if [he/she/nonbinary pronoun] had tried to patronize [name of defendant]’s business on that particular occasion.]

Directions for Use

Use this instruction if a plaintiff seeks statutory damages based on a construction-related accessibility claim under the Disabled Persons Act (DPA) or the Unruh Civil Rights Act. (See Civ. Code, § 55.56(a).) Do not give this instruction if actual damages are sought. CACI No. 3067, Unruh Civil Rights Act—Damages, may be given for claims for actual damages under the Unruh Act and adapted for use under the DPA.

The DPA provides disabled persons with rights of access to public facilities. (See Civ. Code, §§ 54, 54.1.) Under the DPA, a disabled person who encounters barriers to access at a public accommodation may recover minimum statutory damages for each particular occasion on which the disabled person was denied access. (Civ. Code, §§ 54.3, 55.56(f).) However, the Construction Related Accessibility Standard Act (CRASA) requires that before statutory damages may be recovered, the disabled person either have personally encountered the violation on a particular occasion or have been deterred from accessing the facility on a particular occasion. (See Civ. Code, § 55.56(b).) Also, specified violations are deemed to be merely technical and are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages. (See Civ. Code, § 55.56(e).)

Give either or both options for element 2 depending on whether the plaintiff personally encountered the barrier or was deterred from patronizing the business because of awareness of the barrier. The next-to-last paragraph is explanatory of the first option, and the last paragraph is explanatory of the second option.

Sources and Authority

Disabled Persons Act: Right of Access to Public Facilities. Civil Code sections 54, 54.1.

Action for Interference With Admittance to or Enjoyment of Public Facilities. Civil Code section 54.3.

Construction-Related Accessibility Standard Act. Civil Code section 55.56.

“Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to 55.3, is commonly referred to as the “Disabled Persons Act,” although it has no official title. Sections 54 and 54.1 generally guarantee individuals with disabilities equal access to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation, while section 54.3 specifies remedies for violations of these guarantees, including a private action for damages.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674 fn. 8 [94 Cal.Rptr.3d 685, 208 P.3d 623].)

“[L]egislation (applicable to claims filed on or after Jan. 1, 2009 ([Civ. Code,] § 55.57)) restricts the availability of statutory damages under sections 52 and 54.3, permitting their recovery only if an accessibility violation actually denied the plaintiff full and equal access, that is, only if ‘the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion’ (§ 55.56, subd. (b)). It also limits statutory damages to one assessment per occasion of access denial, rather than being based on the number of accessibility standards violated. (Id., subd. (e).)” (Munsonsupra, 46 Cal.4th at pp. 677−678.)

“ ‘[S]ection 54.3 imposes the standing requirement that the plaintiff have suffered an actual denial of equal access before any suit for damages can be brought. … [A] plaintiff cannot recover damages under section 54.3 unless the violation actually denied him or her access to some public facility. [¶] Plaintiff’s attempt to equate a denial of equal access with the presence of a violation of federal or state regulations would nullify the standing requirement of section 54.3, since any disabled person could sue for statutory damages whenever he or she encountered noncompliant facilities, regardless of whether that lack of compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s argument would thereby eliminate any distinction between a cause of action for equitable relief under section 55 and a cause of action for damages under section 54.3.’ ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 [99 Cal.Rptr.3d 746].)

“We do not read Reycraft and Urhausen for the proposition that plaintiffs may not sue someone other than the owner or operator of the public facility described in section 54, for violating a plaintiff’s rights under the DPA. A defendant’s ability to control a particular location may ultimately be relevant to the question of liability, that is, whether the defendant interfered with the plaintiff’s admission to or enjoyment of a public facility. But nothing in the language of section 54.3 suggests that damages may not be recovered against nonowners or operators. To the contrary, section 54.3 broadly and plainly provides: ‘[a]ny person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in [s]ections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under [s]ections 54, 54.1 and 54.2 is liable for … actual damages … .’ ” (Ruiz v. Musclewood Investment Properties, LLC (2018) 28 Cal.App.5th 15, 24 [238 Cal.Rptr.3d 835].)

“In our view, Reycraft does not require that a plaintiff who sues for interference of his rights must present himself to defendant’s business, with the intent to utilize defendant’s services. Instead, a plaintiff who seeks damages for a violation of section 54.3 must establish that he ‘presented himself’ to a ‘public place’ with the intent of ‘utilizing its services in the manner in which those … services are typically offered to the public and was actually denied’ admission or enjoyment (or had his admission or enjoyment interfered with) on a particular occasion. Here, as alleged, plaintiff presented himself at a public place (the sidewalk) with the intent of using it in the manner it is typically offered to the public (walking on it for travel), and actually had his enjoyment interfered with on six occasions. Plaintiff therefore has standing to sue for damages.” (Ruiz, supra, 28 Cal.App.5th at p. 24, original italics, internal citation omitted.)

“Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent that ‘A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.’ (Civ. Code, § 54, subd. (c).” (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1073
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination in Business Establishments, § 116.36 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act, § 35.20 (Matthew Bender)