Many California businesses have heard about ADA drive-by lawsuit by certainly not a CA Unruh fly-by lawsuit. No, it is not a drive-by shooting. An ADA drive-by lawsuit is where the same plaintiff, known as “tester”, “drive by” a business property to collect evidence before filing a lawsuit. California’s Unruh Act is equivalent of the federal ADA. A Unruh Act fly-by lawsuit occurs when disable plaintiff fly by a business’s website for the sole purpose of filing a lawsuit against the business for violation of the Unruh Act. Unruh fly-by lawsuits have become so problematic that commercial property owners, landlords, tenants, franchisees and franchisors are looking to Nakase|Wade ADA lawyers to help them navigate the ADA terrain.
Unruh Act Definition
The Unruh Civil Rights Act, California Civil Code Sections 51 and 52, provides protection from discrimination by all business establishments in California, including housing and public accommodations.
While the Unruh Civil Rights Act specifically lists “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation” as protected classes, the California Supreme Court has held that protections under the Unruh Act are not necessarily restricted to these characteristics. The Act is meant to cover all arbitrary and intentional discrimination by a business establishment on the basis of personal characteristics similar to those listed above.
“The Unruh Act was enacted to ‘create and preserve a nondiscriminatory environment in California business establishments by “banishing” or “eradicating” arbitrary, invidious discrimination by such establishments.’” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.)
Note: The Unruh Act does not apply to claims for employment discrimination. Rojo v. Kliger, 52 Cal. 3d 65 (1990)
Unruh Civil Rights Act Elements
A plaintiff must prove: (1) he or she was denied full and equal privileges to, or otherwise discriminated against by, a business; (2) a motivating reason for the denial or discrimination was the business’ perception of plaintiff’s protected status; (3) plaintiff was harmed; and (4) the business’ conduct was a substantial factor in causing the harm.
Example – Under California Jury Instruction CACI 3060
Paula claims that Dan denied her full and equal accommodations because of her disability. To establish this claim, Paula must prove:
- That Dan denied or made a distinction that denied full and equal accommodations to Paula;
- That a substantial motivating reason for Dan’s conduct was his perception of Paula’s disability;
- That Paula was harmed; and
- That Dan’s conduct was a substantial factor in causing Paula’s harm.
A Violation of the ADA is a Violation of the Unruh Act
In 1992, the Unruh Act was amended to provide that “[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 … shall also constitute a violation of this section.” (Cal. Civ. Code § 51, subd. (f); Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668-669).) The Ninth Circuit has since held that violating the ADA is a per se violation of the Unruh Act. (Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. Cal. 2004); Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 672).
To have standing to sue for discriminatory practices under the Unruh Act, a plaintiff must tender the purchase price for a business’ services or products. (Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 416.) A plaintiff must have a special interest that is concrete and actual rather than conjectural or hypothetical to have standing. (Id. at 417.)
There is no requirement that a plaintiff exhaust administrative remedies.
Element 1: Denied Full and Equal Privileges by Business Establishment
“Business establishments” must be interpreted “in the broadest sense reasonably possible.” (Curran v. Mount Diablo Council of the Boys Scouts of Am. (1998) 17 Cal. 4th 670, 696.)
The Unruh Act applies not only to any type of for-profit commercial enterprise but also to non-profit entities that serve the business or economic interests of its owners or members. (Id.; see also O’Connor v. Village Green Owners Assn., supra, (condominium association), Rotary Club of Duarte v. Board of Directors (1986) 178 Cal. App. 3d 1035 [nonprofit civic association of business and professional men where a primary purpose of the organization was to promote the business interest of its members]; Stevens v. Optimum Health Inst. (S.D. Cal 2011) US Dist LEXIS 95372 (religious organization); Nat’l Fedn. of the Blind v. Target Corp., (N.D. Cal. 2007) 452 F. Supp. 2d 946 [retailer’s website a business establishment under Unruh Act]).
The California Supreme Court has ruled that this element requires proof of intentional discrimination, such that a policy that applies neutrally to all people, regardless of their characteristics, does not violate the Unruh Act. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991).
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.)
Element 2: “Substantial Motivating Reason”
“Substantial motivating reason” expresses 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.)
Element 3: Plaintiff Suffered Harm
California Jury Instruction 3607 provides plaintiff’s damages as follows:
If you decide that [plaintiff] has proved [his/her] claim against [defendant], you also must decide how much money will reasonably compensate [him/her] for the harm. This compensation is called “damages.”
[Plaintiff] must prove the amount of [his/her] damages. However, [plaintiff] does not have to prove the exact amount of the harm or the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [plaintiff]:
[Insert item(s) of claimed harm.]
In addition, you may award [plaintiff] up to three times the amount of [his/her] actual damages as a penalty against [defendant].
Element 4: Business’s conduct was a “substantial factor” in causing harm
“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, ‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor’, but a very minor force that does cause harm is a substantial factor. This rule honors the principle of comparative fault.” (Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 79.)
Note: 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 (Cal. 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.)
Statute of Limitations
Claims for denial of full and equal accommodations under the Unruh Act must be brought within two years of the alleged discrimination. (Gatto v. County of Sonoma (2002) 98 Cal. App. 4th 744, 754-760; Mitchell v. Sung, 816 F. Supp. 597, 602 (N.D. Cal 1993.)
An Unruh Act plaintiff can recover: (1) special and general damages; (2) an amount no less than $4,000 and no more than three times the special and general damages up to a maximum of three times the special and general damages, but in no case less than $4,000; and (3) attorney’s fees for each violation of the Act.
Under the Unruh Act, a Plaintiff is entitled to recover actual damages and an amount up to three times the actual damages for each violation of the Unruh Act, “but in no case less than $4,000…” for each and every offense (Cal. Civ. Code § 52(a); Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 667.) In order to maintain an action for these statutory minimum damages, “an individual must … [establish] that he or she was denied full and equal access on a particular occasion.” (Donald v. Cafe Royale Inc. (1990) 218 Cal.App.3d 168, 183.)
A Plaintiff is entitled to $4,000 for each time he visits an establishment that contains architectural barriers that deny the Plaintiff of full and equal enjoyment of the premises (Feezor v. Del Taco, Inc. (2005) 431 F.Supp.2d 1088, 1091.) “Such an interpretation is supported by case law and is consistent with the plain language of UCRA [Unruh Act].” Id. The Plaintiff need not establish that he was wholly excluded from enjoying the Defendant’s services, only that he was denied full and equal access (Hubbard v. Twin Oaks Health and Rehabilitation Center. (2004) 408 F.Supp.2d 923, 932.)
Injunctive relief is also available under Cal. Civ. Code § 52(c). Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: (1) The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved; (2) The facts pertaining to the conduct; and (3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.
The Unruh Act authorizes “Attorney’s fees as may be determined by the court.” (Cal. Civ. Code, § 52, subd. (b)(3).) Similarly, the enforcement provisions of Section 54.1 specify: “The prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” (Cal. Civ. Code, § 55.)
The Unruh Act was intended to provide recourse for individuals actually denied full and equal treatment by a business. (Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal. App. 3d 1377, 1383 (emphasis added.) In 2008, the California Court of Appeal held that to have standing to sue for discriminatory practices under the Unruh Act, a plaintiff must tender the purchase price for a business’ services or products. (Surrey v. TrueBeginnings, LLC (2008) 168 Cal. App. 4th 414, 416.) Thus, for a plaintiff to have standing, he or she must have a special interest that is concrete and actual rather than conjectural or hypothetical. (Id. at 417.)
Reasonable Regulations Governing Customer Conduct
Customer or patron misconduct is not protected by the Unruh Act. Business establishments have the right to adopt reasonable restrictions on its customers when those restrictions are rationally related to the business being conducted on the facilities. (Wynn v. Monterey Club (1980) 111 Cal. App. 3d 789.)
Similarly, a business may insist that customers who damage property, injure others, or otherwise disrupt business leave the premises. In re Cox, 3 Cal. 3d 205, 217 (1970).
No Construction Required
The Unruh Act does not require that a business construct, alter, or repair the premises beyond that construction that is otherwise required by other provisions of law. (Cal. Civ. Code, § 51, subd. (d).)
Depending on the facts of the particular case, a defendant may argue that a verdict of $25,000 is “virtually unobtainable” and request a reclassification hearing to transfer the case from unlimited to limited jurisdiction. (Walker v. Superior Court (1991) 53 Cal. 3d 257, 269.)