California Civil Jury Instructions (CACI) (2017)

3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)

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3066.Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
[Name of plaintiff] claims that [name of defendant] intentionally interfered
with [or attempted to interfere with] [his/her] civil rights by threats,
intimidation, or coercion. To establish this claim, [name of plaintiff] must
prove all of the following:
1. [That [name of defendant] made threats of violence against [name
of plaintiff] causing [name of plaintiff] to reasonably believe that if
[he/she] exercised [his/her] right [insert right, e.g., “to vote”],
[name of defendant] would commit violence against [[him/her]/
[or] [his/her] property] and that [name of defendant] had the
apparent ability to carry out the threats;]
1. [or]
1. [That [name of defendant] acted violently against [[name of
plaintiff]/ [and] [name of plaintiff]’s property] [to prevent [him/
her] from exercising [his/her] right [insert right]/to retaliate
against [name of plaintiff] for having exercised [his/her] right
[insert right]];]
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 3025 and Revised December
2012
Directions for Use
Select the first option for element 1 if the defendant’s conduct involved threats of
violence. (See Civ. Code, § 52.1(j).) Select the second option if the conduct
involved actual violence.
The Bane Act provides that speech alone is not sufficient to constitute a violation
unless it involves a credible threat of violence. (Civ. Code, § 52.1(j).) This
limitation would appear to foreclose a claim based on threats, intimidation, or
coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris
Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of
action under Bane Act there must first be violence or intimidation by threat of
violence].) For example, it would not be a violation to threaten to report someone
to immigration if the person exercises a right granted under labor law. No case has
been found, however, that applies the speech limitation to foreclose such a claim,
and several courts have suggested that this point is not fully settled. (See Shoyoye
v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839]
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[we “need not decide that every plaintiff must allege violence or threats of violence
in order to maintain an action under section 52.1”]; City and County of San
Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also
noting issue but finding it unnecessary to address].) To assert such a claim, modify
element 2 to allege coercion based on a nonviolent threat with severe
consequences.
Civil Code section 52(a) provides for damages up to three times actual damages
but a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act),
51.5, and 51.6. Civil Code section 52(b) provides for punitive damages for
violations of Civil Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of
Section 52 mentions the Bane Act or Civil Code section 52.1. Nevertheless, the
reference to section 52 in subsection (b) of the Bane Act would seem to indicate
that damages may be recovered under both subsections (a) and (b) of section 52.
Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought,
it is not necessary to prove harm and causation. (See Koire v. Metro Car Wash
(1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for
minimum statutory damages for every violation of section 51, regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].) Presumably, the same rule applies under the Bane
Act as the statutory minimum of section 52(a) should be recoverable Therefore,
omit elements 2 and 3 unless actual damages are sought. If actual damages are
sought, combine CACI No. 3067, Unruh Civil Rights Act—Damages, and CACI
No. 3068, Ralph Act—Damages and Penalty, to recover damages under both
subsections (a) and (b) of section 52.
Sources and Authority
• Bane Act. Civil Code section 52.1.
Remedies Under Bane Act. Civil Code section 52.
• “The Bane Act permits an individual to pursue a civil action for damages where
another person ‘interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or enjoyment by
any individual or individuals of rights secured by the Constitution or laws of
the United States, or of the rights secured by the Constitution or laws of this
state.’ ‘The essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., “threat[], intimidation or coercion”), tried to or did
prevent the plaintiff from doing something he or she had the right to do under
the law or to force the plaintiff to do something that he or she was not required
to do under the law.’ ” (King v. State of California (2015) 242 Cal.App.4th 265,
294 [195 Cal.Rptr.3d 286], internal citation omitted.)
• “[S]ection 52.1, was enacted a decade [after the Ralph Act] as part of Assembly
Bill No. 63 (1987–1988 Reg. Sess.) (Assembly Bill No. 63) and is known as
the Tom Bane Civil Rights Act. It was intended to supplement the Ralph Civil
Rights Act as an additional legislative effort to deter violence. The stated
purpose of the bill was ‘to fill in the gaps left by the Ralph Act’ by allowing an
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individual to seek relief to prevent the violence from occurring before it was
committed and providing for the filing of criminal charges. (Stamps v. Superior
Court (2006) 136 Cal.App.4th 1441, 1447 [39 Cal.Rptr.3d 706], internal citation
omitted.)
• “The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v.
Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941],
internal citation omitted.)
• “However, the statutory language does not limit its application to hate crimes.
Notably, the statute does not require a plaintiff to allege the defendant acted
with discriminatory animus or intent based upon the plaintiff’s membership in a
protected class of persons.” (Shoyoye, supra, 203 Cal.App.4th at p. 956.)
• “Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section
422.6, recognizes a private right of action for damages and injunctive relief for
interference with civil rights.” (In re M.S. (1995) 10 Cal.4th 698, 715 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
• “[S]ection 52.1 does require an attempted or completed act of interference with
a legal right, accompanied by a form of coercion.” (Jones, supra, 17 Cal.4th at
p. 334.)
• “The statutory framework of section 52.1 indicates that the Legislature meant
the statute to address interference with constitutional rights involving more
egregious conduct than mere negligence.” (Shoyoye, supra, 203 Cal.App.4th at
p. 958.)
• Section 52.1 is not a remedy to be used against private citizens for violations of
rights that apply only to the state or its agents. (Jones, supra, 17 Cal.4th at p.
337 [right to be free from unreasonable search and seizure].)
• “Numerous California decisions make clear that a plaintiff in a search-and-
seizure case must allege threats or coercion beyond the coercion inherent in a
detention or search in order to recover under the Bane Act.” (Lyall v. City of
Los Angeles (9th Cir. 2015) 807 F.3d 1178, 1196.)
• “[I]t is clear that to state a cause of action under section 52.1 there must first be
violence or intimidation by threat of violence.” (Cabesuela, supra, 68
Cal.App.4th at p. 111.)
• Assembly Bill 2719 (Stats. 2000, ch. 98) abrogated the holding of Boccato v.
City of Hermosa Beach (1994) 29 Cal.App.4th 1797 [35 Cal.Rptr.2d 282],
which held that a plaintiff was required to be a member of a specified protected
class in order to bring an action under section 52.1: “It is the intent of the
Legislature in enacting this act to clarify that an action brought pursuant to
Section 52.1 of the Civil Code does not require the individual whose rights are
secured by the Constitution or laws of the United States, or of the rights
secured by the Constitution or laws of California, to be a member of a
protected class identified by its race, color, religion, or sex, among other
things.”
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• “Subdivision (j) of Civil Code section 52.1 provides that speech alone is
insufficient to support such an action, except upon a showing that the speech
itself threatens violence against a specific person or group of persons, the
person or group of persons against whom the speech is directed ‘reasonably
fears that, because of the speech, violence will be committed against them or
their property and that the person threatening violence has the apparent ability
to carry out the threat.’ . . . The presence of the express ‘reasonable fear’
element, in addition to the ‘apparent ability’ element, in Civil Code section
52.1, governing civil actions for damages, most likely reflects the Legislature’s
determination [that] a defendant’s civil liability should depend on the harm
actually suffered by the victim.” (In re M.S., supra, 10 Cal.4th at p. 715,
internal citation omitted.)
• “[Q]ualified immunity of the kind applied to actions brought under section 1983
does not apply to actions brought under Civil Code section 52.1.” (Venegas v.
County of Los Angeles (2007) 153 Cal.App.4th 1230, 1246 [63 Cal.Rptr.3d
741].)
• “[A] wrongful detention that is ‘accompanied by the requisite threats,
intimidation, or coercion’—‘coercion independent from the coercion inherent in
the wrongful detention itself’ that is ‘deliberate or spiteful’—is a violation of
the Bane Act.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968,
981 [159 Cal.Rptr.3d 204], internal citations omitted.)
• “Here, there clearly was a showing of coercion separate and apart from the
coercion inherent in an unlawful arrest. [Defendant officer] wrongfully detained
and arrested plaintiff, because he had no probable cause to believe plaintiff had
committed any crime. But, in addition, [defendant officer] deliberately and
unnecessarily beat and pepper sprayed the unresisting, already handcuffed
plaintiff. That conduct was not the coercion that is inherent in a wrongful
arrest.” (Bender, supra, 217 Cal.App.4th at p. 979, original italics.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 895
2Wilcox, California Employment Law, Ch. 40, Overview of Equal Employment
Opportunity Laws, § 40.12 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117A, Civil Rights: Interference
With Civil Rights by Threats, Intimidation, Coercion, or Violence, § 117A.11
(Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§§ 35.01, 35.27 (Matthew Bender)
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