CACI No. 4323. Affirmative Defense - Discriminatory Eviction (Unruh Act)

Judicial Council of California Civil Jury Instructions (2023 edition)

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4323.Affirmative Defense - Discriminatory Eviction (Unruh Act)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] is discriminating
against [him/her/nonbinary pronoun] because of [insert protected class, e.g.,
her national origin, or other characteristic protected from arbitrary
discrimination]. To succeed on this defense, [name of defendant] must
prove both of the following:
1. That [name of defendant] is [perceived as/associated with someone
who is [perceived as]] [insert protected class, e.g., Hispanic, or
other characteristic]; and
2. That [name of plaintiff] filed this lawsuit because of [insert one of
the following:]
2. [[his/her/nonbinary pronoun/its] [perception of] [name of
defendant]’s [insert protected class, e.g., national origin, or other
2. [[name of defendant]’s association with someone who is [perceived
as] [insert protected class, e.g., Hispanic, or other characteristic].]
New August 2007; Revised May 2020
Directions for Use
Throughout the instruction, insert either the defendant’s protected status under the
Unruh Act (see Civ. Code, § 51) or other characteristic on the basis of which the
defendant alleges that the defendant has been arbitrarily discriminated against. (See
Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 725-726 [180 Cal.Rptr. 496,
640 P.2d 115] [excluding all tenants with children is arbitrary illegal
In element 1, select the appropriate language based on whether the defendant (1) is
a member of the protected class, (2) is perceived as a member of the protected
class, (3) is associated with someone who is a member of the protected class, or (4)
is associated with someone who is perceived as a member of the protected class.
In element 2, include the bracketed language regarding perception if the defendant is
not actually a member of the protected class, but the allegation is that the plaintiff
believes that the defendant is a member.
See also the Sources and Authority section under CACI No. 3060, Unruh Civil
Rights Act - Essential Factual Elements.
Sources and Authority
Discrimination in Public Accommodations Prohibited (Unruh Act). Civil Code
section 51.
“In evaluating the legality of the challenged exclusionary policy in this case, we
must recognize at the outset that in California, unlike many other jurisdictions,
the Legislature has sharply circumscribed an apartment owners traditional
discretion to accept and reject tenants on the basis of the landlord’s own likes or
dislikes. California has brought such landlords within the embrace of the broad
statutory provisions of the Unruh Act, Civil Code section 51. Emanating from
and modeled upon traditional ‘public accommodations’ legislation, the Unruh Act
expanded the reach of such statutes from common carriers and places of public
accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and
the like, to include ‘all business establishments of every kind whatsoever.’
(Marina Point, Ltd., supra, 30 Cal.3d at pp. 730-731, footnote omitted.)
“[T]he ‘identification of particular bases of discrimination - color, race, religion,
ancestry, and national origin - is illustrative rather than restrictive. Although the
legislation has been invoked primarily by persons alleging discrimination on
racial grounds, its language and its history compel the conclusion that the
Legislature intended to prohibit all arbitrary discrimination by business
establishments.’ (Marina Point, Ltd., supra, 30 Cal.3d at p. 732, original
“We hold that defendant should have been permitted to produce proof of the
allegations of his special defenses of discrimination, which if proven would bar
the court from ordering his eviction because such ‘state action’ would be
violative of both federal and state Constitutions.” (Abstract Inv. Co. v.
Hutchinson (1962) 204 Cal.App.2d 242, 255 [22 Cal.Rptr. 309].)
Evictions that contravene statutory or constitutional strictures provide a valid
defense to unlawful detainer actions. (Marina Point, Ltd., supra, 30 Cal.3d at p.
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 712-713
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.118-8.128
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.53, 10.67, 10.68
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.10 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
Discrimination, § 117.31 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Unlawful Detainer, § 35.45 (Matthew
Miller & Starr, California Real Estate 4th, § 19:223 (Thomson Reuters)

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