CACI 4323 Affirmative Defense—Discriminatory Eviction (Unruh Act)

California Civil Jury Instructions CACI

4323 Affirmative Defense—Discriminatory Eviction (Unruh Act)

[Name of defendant] claims that [name of plaintiff] is not entitled to evict [him/her/nonbinary pronoun] because [name of plaintiff] is discriminating against [him/her/nonbinary pronoun] because of [insert protected class, e.g., her national origin, or other characteristic protected from arbitrary discrimination]. To succeed on this defense, [name of defendant] must prove both of the following:

1.That [name of defendant] is [perceived as/associated with someone who is [perceived as]] [insert protected class, e.g., Hispanic, or other characteristic]; and

2.That [name of plaintiff] filed this lawsuit because of [insert one of the following:]

[[his/her/nonbinary pronoun/its] [perception of] [name of defendant]’s [insert protected class, e.g., national origin, or other characteristic].]

[[name of defendant]’s association with someone who is [perceived as] [insert protected class, e.g., Hispanic, or other characteristic].]

Directions for Use

Throughout the instruction, insert either the defendant’s protected status under the Unruh Act (see Civ. Code, § 51) or other characteristic on the basis of which the defendant alleges that the defendant has been arbitrarily discriminated against. (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 725–726 [180 Cal.Rptr. 496, 640 P.2d 115] [excluding all tenants with children is arbitrary illegal discrimination].)

In element 1, select the appropriate language based on whether the defendant (1) is a member of the protected class, (2) is perceived as a member of the protected class, (3) is associated with someone who is a member of the protected class, or (4) is associated with someone who is perceived as a member of the protected class.

In element 2, include the bracketed language regarding perception if the defendant is not actually a member of the protected class, but the allegation is that the plaintiff believes that the defendant is a member.

See also the Sources and Authority section under CACI No. 3060, Unruh Civil Rights Act—Essential Factual Elements.

Sources and Authority

Discrimination in Public Accommodations Prohibited (Unruh Act). Civil Code section 51.

“In evaluating the legality of the challenged exclusionary policy in this case, we must recognize at the outset that in California, unlike many other jurisdictions, the Legislature has sharply circumscribed an apartment owner’s traditional discretion to accept and reject tenants on the basis of the landlord’s own likes or dislikes. California has brought such landlords within the embrace of the broad statutory provisions of the Unruh Act, Civil Code section 51. Emanating from and modeled upon traditional ‘public accommodations’ legislation, the Unruh Act expanded the reach of such statutes from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and the like, to include ‘all business establishments of every kind whatsoever.’ ” (Marina Point, Ltd., supra, 30 Cal.3d at pp. 730–731, footnote omitted.)

“[T]he ‘identification of particular bases of discrimination—color, race, religion, ancestry, and national origin—is illustrative rather than restrictive. Although the legislation has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments.’ ” (Marina Point, Ltd., supra, 30 Cal.3d at p. 732, original italics.)

“We hold that defendant should have been permitted to produce proof of the allegations of his special defenses of discrimination, which if proven would bar the court from ordering his eviction because such ‘state action’ would be violative of both federal and state Constitutions.” (Abstract Inv. Co. v. Hutchinson (1962) 204 Cal.App.2d 242, 255 [22 Cal.Rptr. 309].)

Evictions that contravene statutory or constitutional strictures provide a valid defense to unlawful detainer actions. (Marina Point, Ltd., supra, 30 Cal.3d at p. 727.)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 712–713
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§  8.118–8.128
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.53, 10.67, 10.68
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and Enforcement, § 214.10 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5, Unlawful Detainer, 5.21
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Discrimination, § 117.31 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Unlawful Detainer, § 35.45 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:223 (Thomson Reuters)