California Civil Jury Instructions (CACI) (2017)

3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)

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3064.Threats of Violence—Ralph Act—Essential Factual
Elements (Civ. Code, § 51.7)
[Name of plaintiff] claims that [name of defendant] intimidated [him/her]
by threat of violence because of [his/her] [race/color/religion/ancestry/
national origin/political affiliation/sex/sexual orientation/age/disability/
citizenship/primary language/immigration status/position in a labor
dispute/[insert other actionable characteristic]]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally threatened violence against
[name of plaintiff] [or [his/her] property], [whether or not [name
of defendant] actually intended to carry out the threat];
2. That a substantial motivating reason for [name of defendant]’s
conduct was [[his/her] perception of] [name of plaintiff]’s [race/
color/religion/ancestry/national origin/political
affiliation/sex/sexual orientation/age/disability/citizenship/primary
language/immigration status/position in a labor dispute/[insert
other actionable characteristic]];
3. That a reasonable person in [name of plaintiff]’s position would
have believed that [name of defendant] would carry out [his/her]
threat;
4. That a reasonable person in [name of plaintiff]’s position would
have been intimidated by [name of defendant]’s conduct;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023B December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving threats of
violence alleged to have been directed by the defendant toward the plaintiff. For an
instruction involving actual acts of violence, see CACI No. 3063, Acts of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s threats.
“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
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(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 the Ralph Act has not been addressed by the courts.
No published California appellate opinion establishes elements 3 and 4. However,
the Ninth Circuit Court of Appeals and the California Fair Employment and
Housing Commission have held that a reasonable person in the plaintiff’s position
must have been intimidated by the actions of the defendant and have perceived a
threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc.
(9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co.
Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and
provides for a civil remedy for violation of that right. Nothing in the statute
requires that a plaintiff prove that the offending act was motivated by hate.”
(Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150
Cal.Rptr.3d 861].)
• “The test is: ‘would a reasonable person, standing in the shoes of the plaintiff,
have been intimidated by the actions of the defendant and have perceived a
threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal
citation omitted.)
• “When a threat of violence would lead a reasonable person to believe that the
threat will be carried out, in light of the ‘entire factual context,’ including the
surrounding circumstances and the listeners’ reactions, then the threat does not
receive First Amendment protection, and may be actionable under the Ralph
Act. The only intent requirement is that respondent ‘intentionally or knowingly
communicates his [or her] threat, not that he intended or was able to carry out
his threat.’ A threat exists if the ‘target of the speaker reasonably believes that
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the speaker has the ability to act him or herself or to influence others. . . . It is
the perception of a reasonable person that is dispositive, not the actual intent of
the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp.
55–56, 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
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A,
Employment Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
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