California Civil Jury Instructions (CACI) (2017)

3070. Disability Discrimination—Access Barriers to Public Facility—Construction-Related Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)

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3070.Disability Discrimination—Access Barriers to Public

Facility—Construction-Related Accessibility Standards

Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)

[Name of defendant] is the owner of [a/an] [e.g., restaurant] named [name

of business] that is open to the public. [Name of plaintiff] is a disabled

person who [specify disability that creates accessibility problems].

[Name of plaintiff] claims that [he/she] was denied full and equal access

to [name of defendant]’s business on a particular occasion because of

physical barriers. To establish this claim, [name of plaintiff] must prove

both of the following:

1. That [name of defendant]’s business had barriers that violated

construction-related accessibility standards in that [specify

barriers]; and [either]

2. [That [name of plaintiff] personally encountered the violation on a

particular occasion.]

2. [or]

2. [That [name of plaintiff] was deterred from accessing [name of

defendant]’s business on a particular occasion.]

[A violation that [name of plaintiff] personally encountered may be

sufficient to cause a denial of full and equal access if [he/she]

experienced difficulty, discomfort, or embarrassment because of the

violation.]

[[To prove that name of plaintiff] was deterred from accessing [name of

defendant]’s business on a particular occasion, [he/she] must prove both

of the following:

1. That [name of plaintiff] had actual knowledge of one or more

violations that prevented or reasonably dissuaded [him/her] from

accessing [name of defendant]’s business, which [name of plaintiff]

intended to patronize on a particular occasion.

2. That the violation(s) would have actually denied [name of

plaintiff] full and equal access if [he/she] had tried to patronize

[name of defendant]’s business on that particular occasion.]

New December 2014; Revised December 2016

Directions for Use

Use this instruction if a plaintiff seeks statutory damages based on a construction-

related accessibility claim under the Disabled Persons Act (DPA) or the Unruh

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Civil Rights Act. (See Civ. Code, § 55.56(a).) Do not give this instruction if actual

damages are sought. CACI No. 3067, Unruh Civil Rights Act—Damages, may be

given for claims for actual damages under the Unruh Act and adapted for use under

the DPA.

The DPA provides disabled persons with rights of access to public facilities. (See

Civ. Code, §§ 54, 54.1.) Under the DPA, a disabled person who encounters barriers

to access at a public accommodation may recover minimum statutory damages for

each particular occasion on which he or she was denied access. (Civ. Code,

§§ 54.3, 55.56(f).) However, the Construction Related Accessibility Standard Act

(CRASA) requires that before statutory damages may be recovered, the disabled

person either have personally encountered the violation on a particular occasion or

have been deterred from accessing the facility on a particular occasion. (See Civ.

Code, § 55.56(b).) Also, speciﬁed violations are deemed to be merely technical and

are presumed to not cause a person difficulty, discomfort, or embarrassment for the

purpose of an award of minimum statutory damages. (See Civ. Code, § 55.56(e).)

Give either or both options for element 2 depending on whether the plaintiff

personally encountered the barrier or was deterred from patronizing the business

because of awareness of the barrier. The next-to-last paragraph is explanatory of the

ﬁrst option, and the last paragraph is explanatory of the second option.

Sources and Authority

• Disabled Persons Act: Right of Access to Public Facilities. Civil Code sections

54, 54.1.

• Action for Interference With Admittance to or Enjoyment of Public Facilities.

Civil Code section 54.3.

• Construction-Related Accessibility Standard Act. Civil Code section 55.56.

• “Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to

55.3, is commonly referred to as the “Disabled Persons Act,” although it has no

official title. Sections 54 and 54.1 generally guarantee individuals with

disabilities equal access to public places, buildings, facilities and services, as

well as common carriers, housing and places of public accommodation, while

section 54.3 speciﬁes remedies for violations of these guarantees, including a

private action for damages.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,

674 fn. 8 [94 Cal.Rptr.3d 685, 208 P.3d 623].)

• “[L]egislation (applicable to claims ﬁled on or after Jan. 1, 2009 ([Civ. Code,]

§ 55.57)) restricts the availability of statutory damages under sections 52 and

54.3, permitting their recovery only if an accessibility violation actually denied

the plaintiff full and equal access, that is, only if ‘the plaintiff personally

encountered the violation on a particular occasion, or the plaintiff was deterred

from accessing a place of public accommodation on a particular occasion’

(§ 55.56, subd. (b)). It also limits statutory damages to one assessment per

occasion of access denial, rather than being based on the number of

accessibility standards violated. (Id., subd. (e).)” (Munson,supra, 46 Cal.4th at

pp. 677−678.)

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• “ ‘[S]ection 54.3 imposes the standing requirement that the plaintiff have

suffered an actual denial of equal access before any suit for damages can be

brought. . . . [A] plaintiff cannot recover damages under section 54.3 unless the

violation actually denied him or her access to some public facility. [¶] Plaintiff’s

attempt to equate a denial of equal access with the presence of a violation of

federal or state regulations would nullify the standing requirement of section

54.3, since any disabled person could sue for statutory damages whenever he or

she encountered noncompliant facilities, regardless of whether that lack of

compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s

argument would thereby eliminate any distinction between a cause of action for

equitable relief under section 55 and a cause of action for damages under

section 54.3.’ ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 [99

Cal.Rptr.3d 746].)

• “Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent

that ‘A violation of the right of an individual under the Americans with

Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of

this section.’ (Civ. Code, § 54, subd. (c).” (Baughman v. Walt Disney World Co.

(2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825].)

Secondary Sources

8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 957 et

seq.

11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination

in Business Establishments, § 116.36 (Matthew Bender)

3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,

§ 35.20 (Matthew Bender)

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