CACI No. 3061. Discrimination in Business Dealings - Essential Factual Elements (Civ. Code, § 51.5)
Judicial Council of California Civil Jury Instructions (2023 edition)
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3061.Discrimination in Business Dealings - Essential Factual
Elements (Civ. Code, § 51.5)
[Name of plaintiff] claims that [name of defendant] denied
[him/her/nonbinary pronoun] full and equal rights to conduct business
because of [name of plaintiff]’s [sex/race/color/religion/ancestry/national
origin/disability/medical condition/genetic information/marital
status/sexual orientation/citizenship/primary language/immigration
status/[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 substantial 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/
genetic information/marital status/sexual orientation/citizenship/
primary language/immigration status/[insert other actionable
characteristic]];]
2. [or]
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] the
[sex/race/color/religion/ancestry/national origin/disability/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] of [name of plaintiff]’s
[partners/members/stockholders/directors/officers/managers
/superintendents/agents/employees/business associates/suppliers/
customers];]
2. [or]
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] the
[sex/race/color/religion/ancestry/national origin/disability/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] of a person with whom [name of
plaintiff] was associated;]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
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causing [name of plaintiff]’s harm.
New September 2003; Revised June 2012; Renumbered from CACI No. 3021 and
Revised December 2012; Revised June 2013, December 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Under the Unruh Civil Rights Act (see CACI No. 3060, Unruh Civil Rights
Act - Essential Factual Elements), the California Supreme Court has held that
intentional discrimination is required. (See Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159-1162 [278 Cal.Rptr. 614, 805 P.2d 873].) While there
is no similar California case imposing an intent requirement under Civil Code
section 51.5, Civil Code section 51.5 requires that the discrimination be on account
of the protected category. (Civ. Code, § 51.5(a).) The kinds of prohibited conduct
would all seem to involve intentional acts. (See Nicole M. v. Martinez Unified Sch.
Dist. (N.D. Cal. 1997) 964 F. Supp. 1369, 1389, superseded by statute on other
grounds as stated in Sandoval v. Merced Union High Sch. (E.D. Cal. 2006) 2006
U.S. Dist. LEXIS 28446.) The intent requirement is encompassed within the
motivating-reason element (element 2).
There is an exception to the intent requirement under the Unruh Act for conduct that
violates the Americans With Disabilities Act. (See Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 665 [94 Cal.Rptr.3d 685, 208 P.3d 623].). Because this exception is
based on statutory construction of the Unruh Act (see Civ. Code, § 51(f)), the
committee does not believe that it applies to section 51.5, which contains no similar
language.
Note that there are two causation elements. There must be a causal link between the
discriminatory intent and the adverse action (see element 2), and there must be a
causal link between the adverse action and the harm (see element 4).
Element 2 uses the term “substantial motivating reason” to express causation
between the protected classification and the defendant’s conduct. “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 Civil
Code section 51.5 has not been addressed by the courts.
For an instruction on damages under Civil Code section 51.5, see CACI No. 3067,
Unruh Civil Rights Act - Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
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It is possible that elements 3 and 4 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
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.
Conceptually, this instruction has some overlap with CACI No. 3060, Unruh Civil
Rights Act - Essential Factual Elements. 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
• Discrimination in Business Dealings. Civil Code section 51.5.
• Protected Characteristics. Civil Code section 51(b).
• “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.)
• “[T]he analysis under Civil Code section 51.5 is the same as the analysis we
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have already set forth for purposes of the [Unruh Civil Rights] Act.” (Semler v.
General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 [127
Cal.Rptr.3d 794].)
• “[W]hen such discrimination occurs, a person has standing under section 51.5 if
he or she is ‘associated with’ the disabled person and has also personally
experienced the discrimination.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118,
1134 [205 Cal.Rptr.3d 656].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 994-1015
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: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
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