MOSK, J., Concurring and Dissenting. Plaintiff Sylvia Ventura originally alleged battery, intentional infliction of emotional distress, negligence, and ratification, all arising out of claims that one of the defendants—a supervisor—had been sexually pursuing plaintiff and made physical, unwanted advances toward her. Plaintiff did not assert any claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), which requires an employer to take reasonable steps to prevent harassment (Gov. Code, § 12940, subd. (j)(l)), and under which attorney fees are available (Gov. Code, § 12965, subd. (b); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 [104 Cal.Rptr.3d 710, 224 P.3d 41]). Plaintiff, instead, turned to a novel and unprecedented avenue for attorney fees and penalty awards by successfully invoking Civil Code section 51.7.1
I would affirm the judgment as to all claims except the section 51.7 claim and the awards of attorney fees and a penalty based on that section. The jury found defendants’ conduct towards plaintiff was culpable. There were adequate causes of action to vindicate plaintiff’s right to be free from such unacceptable conduct.
I would reverse as to the section 51.7 remedies because I do not believe that section is applicable to the facts in this case. As I interpret section 51.7, there was not substantial evidence to support the jury verdict on that provision. I believe my interpretation of section 51.7 is supported by the provision’s language and legislative history, and by authorities. Admittedly, there is no authority directly addressing the application of section 51.7 to a situation such as the one in this case.
Section 51.7, subdivision (a) provides as follows: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.” As relevant here, section 51, subdivisions (b) and (e) include as a characteristic a person’s [277]sex—sometimes referred to as a person’s gender. (See Gov. Code, § 12926, subd. (q); Pen. Code, § 422.56, subds. (c), (d).)2
I interpret “on account of any characteristic” as meaning that the “violence” or “intimidation by threat of violence” must be committed because of an animus or discriminatory intent against a “characteristic” of race, sex, etc. The court in D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 856-859 [98 Cal.Rptr.3d 300], discussed the occurrence of “hate crimes” in considering a plaintiff’s claims under sections 51.7 and 52.1. The court said, “ ‘The Legislature’s focused effort to combat discriminatory and pernicious conduct often referred to as hate crimes began with the 1976 enactment of Civil Code section 51.7, commonly referred to as the “Ralph Civil Rights Act” or the “Ralph Act.” . . . The obvious purpose of the Ralph Act is to declare unlawful, and civilly actionable, any acts of violence or intimidation by threats of violence directed against any individual because of his actual or perceived membership in a minority or similarly protected class. [][]... [f] In this same vein, 10 years later, the Legislature enacted [the Bane Act (Civ. Code, § 52.1),] to further address the rising tide of hate crimes in California .... [1] .. . [][] [The] central provisions of the Bane Act have not been substantively changed since its enactment nearly 20 years ago.’ ” (176 Cal.App.4th at p. 858.)
The court added, “Thus, ‘[California’s] “hate crimes” law[s] clearly establish[] that crimes motivated by bigotry and bias are against the public policy of the state.’ (Webb v. Puget Sound Broadcasting Co. (1998) 1998 Wn.App. Lexis 1795, p. [9] [138 Lab.Cas.(CCH) ¶ 58,612, p. 89,647, 1998 WL 898788, p. [3]].) ‘[Depending on the circumstances, insults or harassment directed to individuals on the basis of historically disfavored personal characteristics more readily transgress contemporary social bounds than do other forms of antagonistic behavior.’ (Williams v. Tri-Met (1998) 153 Or.App. 686, 691 [958 P.2d 202, 204-205].) To be specific, ‘[providing a safe and nondiscriminatory environment for students obviously serves the public interest .... In addition, fostering tolerance and thereby decreasing hate crimes among students is in the public interest.’ (Doe v. Perry Community School Dist. (S.D. Iowa 2004) 316 F.Supp.2d 809, 839, citation omitted.) [(¡[] In upholding a state hate crimes law against a free speech challenge under the First Amendment (U.S. Const., 1st Amend.), the United States Supreme Court explained: ‘[T]he Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest .... The [278]State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. . . .’ (Wisconsin v. Mitchell (1993) 508 U.S. 476, 487-488 [124 L.Ed.2d 436, 113 S.Ct. 2194, 2201] . . . .) [f] In short, ‘[t]here is no question that the statutory rights established by the [Ralph Civil Rights Act and the Tom Bane Civil Rights Act] are “for a public reason.” ’ (Armendariz[ v. Foundation Health Psychcare Services, Inc. (2000)] 24 Cal.4th [83,] 100 [99 Cal.Rptr.2d 745, 6 P.3d 669].) Thus, the hate crimes laws constitute unwaivable statutory rights.” (D.C. v. Harvard-Westlake School, supra, 176 Cal.App.4th at pp. 859-860.)
In Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60], the court noted that “... Civil Code section 52.1 must be read in conjunction with Civil Code section 51.7” and said that “the violence or threatened violence must be due to [the] plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” In Knapps v. City of Oakland (N.D.Cal. 2009) 647 F.Supp.2d 1129, 1167-1168, which involved claims by an African-American person for police battery and false imprisonment, the court denied relief under a section 51.7 claim, stating “there is insufficient evidence to establish that the officers acted with racial animus. Although [the] [p]laintiff is African-American, he points to no specific evidence showing that the officers’ actions on the night of the incident were based on his race.”
Plaintiff observes that the courts in Stamps v. Superior Court (2006) 136 Cal.App.4th 1441 [39 Cal.Rptr.3d 706] (Stamps) and Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276 (Winarto) (cited in Stamps, supra, 136 Cal.App.4th at p. 1441) indicated that there is no requirement under section 51.7 that the violence be motivated by hate. But in Winarto, the court stated, “It is unclear whether the statute requires bias to be the sole motivation, a substantial part of the motivation, or an incidental motivating factor. [Citation.]” (Winarto, supra, 274 F.3d at p. 1290, fn. 15), thus suggesting that bias of some kind is required. The court also said, “a reasonable jury could find that [the defendant] was motivated in his violence by gender or national origin animus” (id. at p. 1290), also suggesting that bias is a requirement. In Stamps, supra, 136 Cal.App.4th at pages 1444 and 1459, the court just held that violations of sections 51.7 and 52.1 could be asserted in the employment context and further stated that “[t]hese statutes were designed to stem the number of hate crimes.” (Id. at p. 1457.) And, in a later California case, the court said that section 51.7 “is, after all, a ‘hate crimes’ statute. [Citation.]” (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486 [116 Cal.Rptr.3d 412].)
In Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 [11 Cal.Rptr.3d 692, 87 P.3d 1], the court held that the plaintiffs pleaded a cause of action [279]under section 52.13 for an unreasonable search and seizure even though they did not allege the defendants acted with the intent to discriminate or with discriminatory animus. The court noted that section 52.1 was not limited to individuals protected under section 51.7. (Venegas v. County of Los Angeles, supra, 32 Cal.4th at p. 842.) The court said, “We cannot reasonably interpret this language, or the unambiguous language of section 52.1 itself, to restrict the benefits of the section to persons who are actual or perceived members of a protected class.” (Id. at pp. 842-843.) In a concurring opinion, Justice Baxter wrote, “The Legislature’s focused effort to combat discriminatory and pernicious conduct often referred to as hate crimes began with the 1976 enactment of Civil Code section 51.7, commonly referred to as the ‘Ralph Civil Rights Act’ or the ‘Ralph Act.’ . . . The obvious purpose of the Ralph Act is to declare unlawful, and civilly actionable, any acts of violence or intimidation by threats of violence directed against any individual because of his actual or perceived membership in a minority or similarly protected class.” (Id. at p. 845 (conc. opn. of Baxter, J.).)
Justice Baxter pointed out that an amendment to section 52.1 permits, in effect, an action for a violation of that section without a showing of discriminatory intent. Justice Baxter said that the language of the amendment that results in this consequence was inadvertent; and he inferred that for a violation of section 51.7, a defendant must act with discriminatory intent. (Venegas v. County of Los Angeles, supra, 32 Cal.4th at pp. 849-850 (conc, opn. of Baxter, J.).) The court’s holding in Venegas v. County of Los Angeles applies to section 52.1 and not section 51.7.
Section 52 provides, inter alia, that any violation of section 51.7 may result, in addition to actual damages, in a civil penalty of $25,000 (which was awarded here); attorney fees (also awarded here); an action by the Attorney General, district attorney or city attorney; a Department of Fair Employment and Housing action claim pursuant to Government Code section 12948; and injunctive relief. Moreover, under section 51.1, in any appellate proceeding [280]arising under section 51.7, briefs or petitions must be served on the state solicitor general. Section 51.7 is a civil rights act, not simply a tort liability act. These remedies and provisions suggest that a violation of section 51.7 requires more than just an act against a person who happens to be in a protected class. Rather, the act must be directed at that person with discriminatory intent or animus.
As the Attorney General has opined, sections 51.7 and 52.1 are related to hate crime provisions of the Penal Code as well as to other statutes providing penalties or remedies for “hate-related acts.” (88 Ops.Cal.Atty.Gen. 141, 142, fn. 2 (2005) [“In addition to the laws generally addressed herein [Penal Code, § 422.6 et seq.], other related statutes prohibit or provide enhanced penalties for specific hate-related acts ([Pen. Code,] §§ 190.03; 422.6^-22.77; 594.3, 11411-11413), create civil remedies for hate crimes (Civ. Code, §§ 51.7-52.1), permit courts to issue special orders protecting victims of hate crimes and preventing future hate crimes ([Pen. Code,] §§ 422.77^-22.93), require the Peace Officers Standards and Training Commission to offer training on hate crimes enforcement ([Pen. Code,] § 13519.6), and require the Department of Justice to collect information and report annually on the statewide incidence of hate crimes ([Pen. Code,] §§ 13020-13023).”].) Penal Code section 422.56 et seq. provides criminal penalties for using force, or the threat of force, intimidating or threatening a person “because of.. . the actual or perceived characteristics . . . listed in subdivision (a) of [Penal Code] Section 422.55” (Pen. Code, § 422.6), which section includes gender. Penal Code section 422.77 makes a violation of section 52.1 a misdemeanor and gives county prosecutors the primary responsibility “for the enforcement of orders issued pursuant to Section 52.1 of the Civil Code.” (Pen. Code, § 422.77, subd. (c).) Section 52.1, subdivision (b) specifies that any injunctive relief must note that a violation of an injunction is a crime under Penal Code section 422.77. Section 52.1, subdivision (g) refers to actions brought under section 51.7. Section 52, which in turn is referred to in section 52.1, subdivision (b), provides that acts in violation of, inter alia, section 51.7 are subject to penalties and injunctive relief.
The Attorney General was correct that these hate-related provisions are related and have the same purpose. Thus, with the exception of section 52.1 as discussed above, they should be interpreted similarly. As to hate-related provisions, the Attorney General stated, “If a perpetrator commits a sexual assault wholly or partly because of the victim’s gender, a hate crime has not been committed unless the perpetrator also acts upon some animosity or other bias motivation toward the victim’s gender.” (88 Ops.Cal.Atty.Gen., supra, 141.) The Attorney General added, “We conclude that the intentional selection of a victim with a protected characteristic is not alone sufficient, and that [281]a subjective attitude amounting to ‘bias motivation’ is an essential element of a hate crime offense.” (Id. at p. 142.) It follows that this reasoning should apply to section 51.7.
The legislative history of section 51.7 is also helpful. The court in Stamps v. Superior Court, supra, 136 Cal.App.4th at page 1446 sets forth some of the history as follows: “The history of section 51.7 indicates the legislation was referred to as the Ralph Civil Rights Act and enacted in 1976 as part of Assembly Bill No. 2986 (1975-1976 Reg. Sess.) (Assembly Bill No. 2986). An Assembly Committee report stated that while there were ‘numerous state and federal laws providing for full and equal civil rights protections in employment, housing, and access to public accommodations and facilities,’ there was no specific prohibition protecting individuals from ‘violence because of their race, religion, color, ancestry, or national origin.’ (Assem. Com. on Labor Relations, Analysis of Assem. Bill No. 2986, supra, Apr. 20, 1976, p. 1.) The report continues, ‘Although it is impossible to estimate the instances of violence against persons in California because of race, color, religion or other factors, there have been enough occurrences such as the one in Taft, California last year where Black college students were threatened with violence and chased out of town to signify a possible need for greater protection of this fundamental right. . . . This measure declares that all persons have a right to be free from violence or threat of violence committed against their persons or property because of race, color, religion, ancestry, national origin, political affiliation, or position in a labor dispute.’ (Ibid.; see also Venegas v. County of Los Angeles[, supra,] 32 Cal.4th [at pp.] 845-848 [11 Cal.Rptr.3d 692, 87 P.3d 1] . . . (conc. opn. of Baxter, J.), [describing the historical background of the ‘Ralph Civil Rights Act’]; In re Joshua H. (1993) 13 Cal.App.4th 1734, 1748, fn. 9 [17 Cal.Rptr.2d 291] [referring to section 51.7 as the ‘Ralph Civil Rights Act’].)”
The California Assembly Committee on Labor Relations further reported as to Assembly Bill No. 2986 (1975-1976 Reg. Sess.) (which resulted in § 51.7) the following: “Under current law, any person filing a complaint with the [Fair Employment Practices Commission (FEPC)] is precluded from initiating private civil action on the same matter. This restriction on right of action would appear to significantly weaken the deterrent effect this measure would have on acts of violence, particularly in view of the large damages that could be collected in a civil action but not in an FEPC decision. Consideration should be given to allowing both a private civil action for damages and use of FEPC enforcement mechanisms. Additionally, it might be advantageous to require the State Attorney General to bring civil action or intervene in any civil action pursuant to the proposed law and Civil Code Section 51 if he has [282]reasonable cause to believe any person is being denied their civil rights under those provisions.” (Assem. Com. on Labor Relations, Rep. on Assem. Bill No. 2986 (1975-1976 Reg. Sess.) Apr. 6, 1976.)
The Governor’s legal affairs secretary in a recommendation to the Governor with regard to the legislation stated, “Since the complexity and expense of civil litigation often prevent persons from seeking existing civil remedies, the Attorney General would be authorized to initiate civil actions against persons or groups he reasonably] believes are involved in the denial of rights created by this bill. [][] According to the bill’s author and attorneys active in civil rights litigation, this bill is needed to deter and provide remedies from violence associated with busing and fair housing. Last year the Taft, California, Black students were forced to leave town because of threats of physical violence. Blacks moving into formerly white neighborhoods reportedly suffer property damage, intimidation, and threats of violence. This appears to be particularly true in rural counties, such as Colusa County, where blacks have suffered property damage and have been forced to give up residence due to violence and threats of violence. [][] Proponents of this measure believe it is needed to promote the fundamental belief that violence and threats of violence should not be allowed to prevent the exercise of constitutionally protected rights.” (Legal Affairs Secretary, Enrolled Bill Rep. on Assem. Bill No. 2986 (1975-1976 Reg. Sess.) Sept. 22, 1976.) Senator Ralph, the author of the legislation, referred to the incident in Taft and stated, “AB 2986 provides the State of California with an opportunity to write into the California Codes badly needed Civil Rights legislation.” (Assemblyman Leon Ralph, letter to Govenor Edmund G. Brown, Jr., on Assem. Bill No. 2986, Sept. 13, 1976.) The category of “sex” was included as a protected characteristic.
In an analysis for the Assembly in connection with the authority of the Fair Employment Practices Commission, it is stated, “Why are not [sic] current criminal statutes and civil causes of action for violation of person and property not sufficient to cover violence directed at someone for a specific reason? [][] Rape can be considered a crime perpetrated against someone because of her sex. It seems ridiculous to give FEPC civil rights authority over rape charges. This aspect of the crime was never considered by Criminal Justice Committee.” (3d reading analysis of Assem. Bill No. 2986 (1975-1976 Reg. Sess.) May 25, 1976.) From the material I reviewed, these questions were not explicitly addressed. There were other concerns expressed because the wrong to be addressed was already covered by provisions in the Civil and Penal Codes. (Division of Fair Employment Practices, Enrolled Bill Rep. on Assem. Bill No. 2986 (1975-1976 Reg. Sess.) recommending a veto, Sept. 1976; Dept, of Finance, Enrolled Bill Rep. on Assem. Bill No. 2986 (1975-1976 Reg. Sess.) Aug. 16, 1976.)
[283]As noted in the passages quoted above, the legislation was inspired by violence directed at African-American persons because they were African-Americans. To summarize, the law was to strengthen civil rights laws, and as part of a group of statutes dealing with civil rights, it included penalties, the right of prosecutors to maintain actions, the right to complain to the Department of Fair Employment and Housing, and notification to the solicitor general of appellate proceedings. And cases have described section 51.7 as a “hate crime” statute.
To apply this statute to every act of violence or threat of violence in a sexual context that happens to be directed at a particular woman would result in absurd consequences. (See In re Michele D. (2002) 29 Cal.4th 600, 606 [128 Cal.Rptr.2d 92, 59 P.3d 164] [“it is settled that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend”].) Such a broad application would mean every act or threat of violence in a domestic setting, or every inappropriate touching or assault or harassment directed at a specific woman, could be a violation of section 51.7 and be subject to fines, injunctions, attorney fees, and law enforcement actions.
The statute requires more. It is intended to address violence engendered by a hatred or animus directed at a “characteristic” of race or sex and other protected classes of persons—not an act of violence or intimidation by threat of violence directed at a particular person who happens to be an African-American or a woman or some other protected class member. In this case, there is no evidence that plaintiff’s supervisor or other defendants hated or had an animus towards women in general. Indeed, the supervisor had apparently lusted after plaintiff—a woman. Even if some of his acts were committed in anger, the evidence is that it was a defendant’s anger directed at one person for being spurned—not anger generated by a bias against or hatred of women.
Accordingly, if section 51.7 applies to any act of violence or intimidation by threat of violence, such application will have the unintended consequence of being included in virtually all cases like this one, and many more, just for recovery of a penalty and attorney fees. Under such an interpretation, section 51.7 could be applied to cases between lovers, spouses, employers and employees, and all violent sexual crimes and torts. Such an application would relegate a civil rights measure to just another remedy for acts already covered by penal and civil statutes rather than for its intended goal of dealing with violent acts motivated by animus towards the “characteristics” specified in the statute.
[284]I would therefore reverse the judgment under section 51.7, as well as the award of attorney fees and penalty thereunder. I concur in the remainder of the judgment.
A petition for a rehearing was denied January 9, 2013. Mosk, J., was of the opinion that the petition should be granted. Appellants’ petition for review by the Supreme Court was denied April 10, 2012, S208343.
All further statutory references are to the Civil Code unless otherwise specified.
Historically, gender has been used as a grammatical distinction. Through usage, gender has come to refer to the sex of a person, particularly when concerning discrimination—e.g., “gender-based discrimination.”
Section 52.1, the Tom Bane Civil Rights Act, states: “(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, 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 Attorney General, or any district attorney or city attorney may bring a civil action ... in order to protect the peaceable exercise or enjoyment of the right or rights secured. . . . ffl (b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, [the same] damages [available] under [section 51.7—the Ralph Civil Rights Act], injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.”