California Civil Jury Instructions (CACI)

3021. Unruh Civil Rights Act - Boycott, etc. (Civ. Code, § 51.5)—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] denied [him/ her] full and equal rights to conduct business because of [name of plaintiff]'s [sex/race/color/religion/ancestry/national origin/ disability/medical condition/[insert other actionable characteristic]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [discriminated against/boycotted/ blacklisted/refused to buy from/refused to contract with/ refused to sell to/refused to trade with] [name of plaintiff];

2. [That a motivating reason for [name of defendant]'s conduct was [its perception of] [name of plaintiff]'s [sex/ race/color/religion/ancestry/national origin/disability/medical condition/[insert other actionable characteristic]];]

[That a motivating reason for [name of defendant]'s conduct was [its perception of] the [sex/race/color/religion/ ancestry/national origin/disability/medical condition/[insert other actionable characteristic]] of [name of plaintiff]'s [partners/members/stockholders/directors/officers/managers/ superintendents/agents/employees/business associates/ suppliers/customers];]

[That a motivating reason for [name of defendant]'s conduct was [its perception of] the [sex/race/color/religion/ ancestry/national origin/disability/medical condition/[insert other actionable characteristic]] of a person whom [name of plaintiff] was associated with;] 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.

Directions for Use

Note that this instruction uses the standard of "motivating a reason." The causation standard is still an open issue under this statute.

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.

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

Conceptually, this instruction has some overlap with CACI No. 3020. For a discussion of the basis of this instruction, see Jackson v. Superior Court (1994) 30 Cal.App.4th 936, 941 [36 Cal.Rptr.2d 207].

Sources and Authority

Civil Code section 51.5 provides:

(a) No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state because of the race, creed, religion, color, national origin, sex, disability, or medical condition of the person or of the person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.

(b) As used in this section, "person" includes any person, firm, association, organization, partnership, business trust, corporation, limited liability company, or company.

(c) This section shall not be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure, nor shall this section be construed to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifications that the State Architect otherwise possesses pursuant to other laws.

(d) For purposes of this section:

(1) "Disability" means any mental or physical disability as defined in Section 12926 of the Government Code.

(2) "Medical condition" has the same meaning as defined in subdivision (h) of Section 12926 of the Government Code.

"In 1976 the Legislature added Civil Code section 51.5 to the Unruh Civil Rights Act and amended Civil Code section 52 (which provides penalties for those who violate the Unruh Civil Rights Act), in order to, inter alia, include section 51.5 in its provisions." (Pines v. Tomson (1984) 160 Cal.App.3d 370, 384 [206 Cal.Rptr. 866], footnote omitted.)

"[I]t is clear from the cases under section 51 that the Legislature did not intend in enacting section 51.5 to limit the broad language of section 51 to include only selling, buying or trading. Both sections 51 and 51.5 have been liberally applied to all types of business activities. Furthermore, section 51.5 forbids a business to 'discriminate against' 'any person' and does not just forbid a business to 'boycott or blacklist, refuse to buy from, sell to, or trade with any person.' " (Jackson, supra, 30 Cal.App.4th at p. 941, internal citation and footnote omitted.)

"Although the phrase 'business establishment of every kind whatsoever' has been interpreted by the Supreme Court and the Court of Appeal in the context of section 51, we are aware of no case which interprets that term in the context of section 51.5. We believe, however, that the Legislature meant the identical language in both sections to have the identical meaning." (Pines, supra, 160 Cal.App.3d at p. 384, internal citations omitted.)

"[T]he classifications specified in section 51.5, which are identical to those of section 51, are likewise not exclusive and encompass other personal characteristics identified in earlier cases." (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 538 [30 Cal.Rptr.2d 706], 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

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 (Matthew Bender)

(New September 2003)