CACI No. 2549. Disability Discrimination - Refusal to Permit Reasonable Modification to Housing Unit (Gov. Code, § 12927(c)(1))

Judicial Council of California Civil Jury Instructions (2020 edition)

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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
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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
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2549
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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.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, Reasonable Modifications Under the Fair Housing Act
(March 5, 2008), www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1063
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
2550-2559. Reserved for Future Use
CACI No. 2549 FAIR EMPLOYMENT AND HOUSING ACT
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