Trials Litigation Caci
Trials Litigation Caci
As approved at the
December 2016 Judicial Council Meeting
1
Judicial Council of California
Series 100–2500
ISSN: 1549-7100
ISBN:978-1-5221-2291-3 (print)
© 2017 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Table of Statutes, Table of Cases, or Index.
© 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS SUPPLEMENT: Judicial Council of California Civil Jury Instructions (2016 edition)
Cite these instructions: “CACI No. _________.”
Cite these verdict forms: “CACI No. VF-_________.”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(2017–Pub.1283)
In Memoriam
In 2014, the Judicial Council Advisory Committee on Civil Jury Instructions lost two of its
most valued members and contributors.
Justice H. Walter Croskey of the Court of Appeal, Second District, served as chair of our
advisory committee from 2005 until his death. Justice Croskey left a legacy of more than 500
published decisions during a career on the bench spanning thirty years. He was universally
regarded as a brilliant jurist, a dynamic leader, and a kind and compassionate person. He led
our committee by example with his keen intellect, but also with style and grace, ensuring that
the sometimes heated debates proceeded with dignity and respect towards all. He was an
extraordinary leader, and will be missed greatly.
Professor Peter Tiersma of Loyola Law School in Los Angeles was an internationally
renowned expert in expressing legal terms in plain language. His contributions to the advisory
committee’s civil jury instructions spanned nearly 17 years and were cut short only by his
death. His legacy for the judicial branch is evident every day when jurors hear the plain
language jury instructions to which he contributed so much. The committee concludes this
tribute in plain, simple words of which our departed committee member would approve: Thank
you!
iii
December 2016
Hon. Martin J. Tangeman
Superior Court of San Luis Obispo County
Chair, Advisory Committee on Civil Jury Instructions
____________________________________________________________________________
The Advisory Committee on Civil Jury Instructions welcomes comments. Send print
comments to:
EVIDENCE
219. Expert Witness Testimony (sources and authority)
221. Conflicting Expert Testimony (sources and authority)
CONTRACTS
303. Breach of Contract—Essential Factual Elements (revised)
305. Implied-in-Fact Contract (sources and authority)
321. Existence of Condition Precedent Disputed (sources and authority)
322. Occurrence of Agreed Condition Precedent (sources and authority)
380. Agreement Formalized by Electronic Means—Uniform Electronic Transactions Act (Civ. Code,
§ 1633.1 et seq.) (revised)
NEGLIGENCE
408. Primary Assumption of Risk—Liability of Coparticipant in Sport or Other Recreational Activity
(sources and authority)
409. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches (sources and authority)
410. Primary Assumption of Risk—Liability of Facilities Owners and Operators and Event Sponsors
(sources and authority)
418. Presumption of Negligence per se (sources and authority)
426. Negligent Hiring, Supervision, or Retention of Employee (sources and authority)
430. Causation: Substantial Factor (sources and authority)
435. Causation for Asbestos-Related Cancer Claims (sources and authority)
VF-400. Negligence—Single Defendant (revised)
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others Not at Issue
(revised)
VF-402. Negligence—Fault of Plaintiff and Others at Issue (revised)
VF-403. Primary Assumption of Risk—Liability of Coparticipant (revised)
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches (revised)
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and Event Sponsors
(revised)
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor (revised)
VF-407. Strict Liability—Ultrahazardous Activities (revised)
vii
MEDICAL NEGLIGENCE
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit (Code Civ.
Proc., § 340.5) (sources and authority)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit (Code Civ.
Proc., § 340.5) (sources and authority)
VF-500. Medical Negligence (revised)
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff Would Have
Consented Even If Informed (revised)
VF-502. Medical Negligence—Informed Consent—Affirmative Defense—Emergency (revised)
PROFESSIONAL NEGLIGENCE
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit (Code Civ.
Proc., § 340.6) (sources and authority)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit (Code Civ.
Proc., § 340.6) (sources and authority)
PREMISES LIABILITY
VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue (revised)
VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity—Exceptions (revised)
VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue (revised)
PRODUCTS LIABILITY
1205. Strict Liability—Failure to Warn—Essential Factual Elements (sources and authority)
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements (sources and
authority)
1244. Affirmative Defense—Sophisticated User (sources and authority)
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue (revised)
viii
FALSE IMPRISONMENT
VF-1400. False Imprisonment—No Arrest Involved (revised)
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain for
Investigation (revised)
VF-1402. False Arrest Without Warrant (revised)
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable Cause to
Arrest (revised)
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable Cause to
Arrest (revised)
VF-1405. False Arrest With Warrant (revised)
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith” Exception
(revised)
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing (revised)
MALICIOUS PROSECUTION
VF-1500. Malicious Prosecution—Former Criminal Proceeding (revised)
VF-1501. Malicious Prosecution—Wrongful Use of Civil Proceedings (revised)
VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative Defense—Reliance
on Counsel (revised)
VF-1503. Malicious Prosecution—Wrongful Use of Administrative Proceedings (revised)
VF-1504. Abuse of Process (revised)
EMOTIONAL DISTRESS
VF-1600. Intentional Infliction of Emotional Distress (revised)
VF-1601. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged Conduct
(revised)
VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS (revised)
ix
DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
(revised)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited Public
Figure) (revised)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of Public Concern)
(revised)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public Concern)
(revised)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of Private Concern)
(revised)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private Concern)
(revised)
1707. Fact Versus Opinion (sources and authority)
1731. Trade Libel—Essential Factual Elements (sources and authority)
VF-1700. Defamation per se (Public Officer/Figure and Limited Public Figure) (revised)
VF-1701. Defamation per quod (Public Officer/Figure and Limited Public Figure) (revised)
VF-1702. Defamation per se (Private Figure—Matter of Public Concern) (revised)
VF-1703. Defamation per quod (Private Figure—Matter of Public Concern) (revised)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of Private Concern)
(revised)
VF-1705. Defamation per quod (Private Figure—Matter of Private Concern) (revised)
VF-1720. Slander of Title (revised)
VF-1721. Trade Libel (revised)
RIGHT OF PRIVACY
1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ. Code,
§ 1708.85) (sources and authority)
VF-1800. Privacy—Intrusion Into Private Affairs (revised)
VF-1801. Privacy—Public Disclosure of Private Facts (revised)
VF-1802. Privacy—False Light (revised)
VF-1803. Privacy—Appropriation of Name or Likeness (revised)
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344) (revised)
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632, 637.2) (revised)
TRESPASS
2002. Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346) (sources and authority)
2003. Damage to Timber—Willful and Malicious Conduct (sources and authority)
VF-2000. Trespass (revised)
VF-2001. Trespass—Affirmative Defense—Necessity (revised)
VF-2002. Trespass—Extrahazardous Activities (revised)
VF-2003. Trespass to Timber (Civ. Code, § 3346) (revised)
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346; Code Civ. Proc.,
§ 733) (revised)
VF-2005. Public Nuisance (revised)
VF-2006. Private Nuisance (revised)
CONVERSION
VF-2100. Conversion (revised)
ECONOMIC INTERFERENCE
2200. Inducing Breach of Contract (sources and authority)
VF-2200. Inducing Breach of Contract (revised)
VF-2201. Intentional Interference With Contractual Relations (revised)
VF-2202. Intentional Interference With Prospective Economic Relations (revised)
VF-2203. Negligent Interference With Prospective Economic Relations (revised)
INSURANCE LITIGATION
2306. Covered and Excluded Risks—Predominant Cause of Loss (sources and authority)
VF-2301. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in
Payment (revised)
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights (revised)
WRONGFUL TERMINATION
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements (sources and
authority)
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair Dealing (revised)
VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative Defense—Good
Faith Mistaken Belief (revised)
VF-2406. Wrongful Discharge in Violation of Public Policy (revised)
xi
xii
WORKERS’ COMPENSATION
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1)) (revised)
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2)) (revised)
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3)) (revised)
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558) (revised)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression (Lab. Code,
§ 3601(a)(1)) (revised)
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2)) (revised)
CIVIL RIGHTS
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42 U.S.C. § 1983)
(sources and authority)
3004. Local Government Liability—Act or Ratification by Official With Final Policymaking
Authority—Essential Factual Elements (42 U.S.C. § 1983) (sources and authority)
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42
U.S.C. § 1983) (sources and authority)
3061. Discrimination in Business Dealings—Essential Factual Elements (Civ. Code, § 51.5) (revised)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7) (revised)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7) (revised)
xiii
xiv
CARTWRIGHT ACT
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price Fixing (revised)
VF-3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or Commerce
(revised)
VF-3402. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Affirmative Defense—In Pari Delicto (revised)
VF-3403. Horizontal Restraints—Dual Distributor Restraints (revised)
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se Violation
(revised)
xv
EMINENT DOMAIN
3500. Introductory Instruction (sources and authority)
3501. “Fair Market Value” Explained (sources and authority)
3511. Permanent Severance Damages (revised)
VF-3500. Fair Market Value Plus Goodwill (revised)
VF-3501. Fair Market Value Plus Severance Damages (revised)
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property (revised)
VICARIOUS RESPONSIBILITY
3700. Introduction to Vicarious Responsibility (sources and authority)
3701. Tort Liability Asserted Against Principal—Essential Factual Elements (sources and authority)
3704. Existence of “Employee” Status Disputed (sources and authority)
3706. Special Employment—Lending Employer Denies Responsibility for Worker’s Acts (revised)
3707. Special Employment—Joint Responsibility (revised)
3722. Scope of Employment—Unauthorized Acts (sources and authority)
VF-3700. Negligence—Vicarious Liability (revised)
DAMAGES
3903F. Damage to Real Property (Economic Damage) (sources and authority)
3935. Prejudgment Interest (Civ. Code, § 3288) (new)
VF-3905. Damages for Wrongful Death (Death of an Adult) (revised)
VF-3906. Damages for Wrongful Death (Parents’ Recovery for Death of a Minor Child) (revised)
LANTERMAN-PETRIS-SHORT ACT
4000. Conservatorship—Essential Factual Elements (sources and authority)
xvi
TRADE SECRETS
VF-4400. Misappropriation of Trade Secrets (revised)
CONSTRUCTION LAW
4541. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra Work—Total
Cost Recovery (sources and authority)
4543. Contractor’s Damages for Breach of Construction Contract—Owner-Caused Delay or Acceleration
(sources and authority)
WHISTLEBLOWER PROTECTION
4600. False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code, § 12653)
(sources and authority)
4605. Whistleblower Protection—Health or Safety Complaint—Essential Factual Elements (Lab. Code,
§ 6310) (revised)
VF-4600. False Claims Act: Whistleblower Protection (Gov. Code, § 12653) (revised)
VF-4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c)) (revised)
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code, §§ 1102.5,
1102.6) (revised)
CONCLUDING INSTRUCTIONS
5003. Witnesses (sources and authority)
xvii
xix
xx
xxi
Committee Members
Hon. Suzanne R. Bolanos Hon. Victoria M. Chavez
Hon. Robert P. Dahlquist Hon. Elena J. Duarte
Mr. Jonathan M. Eisenberg Hon. Janet M. Frangie
Hon. Donald R. Franson, Jr. Mr. Robert A. Goodin
Hon. Elizabeth A. Grimes Mr. Matthew Hawkins
Hon. Judy H. Hersher Hon. Raymond J. Ikola
Prof. Margaret Z. Johns Mr. Michael A. Kelly
Hon. Monica Marlow Mr. Joseph P. McMonigle
Mr. Julian W. Poon Mr. John E. Porter
Hon. James A. Richman Mr. Todd M. Schneider
Mr. Richard L. Seabolt Ms. Christine Spagnoli
Ms. Mary Christine Sungaila Hon. John Shepard Wiley Jr.
xxiii
Supreme Court
Hon. Hong W. Chin
Courts of Appeal
Hon. James M. Humes Hon. Douglas P. Miller
Hon. Harry E. Hull, Jr.
Trial Courts
Hon. Maria O. Anderson Hon. Samuel K. Feng
Hon. Brian J. Back Hon. Dalila Corral Lyons
Hon. Kyle S. Brodie Hon. Gary Nadler
Hon. Daniel J. Buckley Hon. David M. Rubin
Hon. Stacy Boulware Eurie Hon. Dean T. Stout
Legislature
Hon. Richard Bloom Hon. Hannah-Beth Jackson
State Bar
Mr. Audra Ibarra Ms. Donna D’Angelo Melby
Mr. Patrick M. Kelly Ms. Debra Elaine Pole
Advisory Members
Hon. Jeffrey B. Barton Hon. Scott M. Gordon
Hon. C. Todd Bottke Hon. David E. Gunn
Mr. Jake Chatters Hon. Kenneth K. So
Mr. Richard D. Feldstein Hon. Marsha G. Slough
Ms. Kimberly Flener
Secretary
Martin Hoshino
The Judicial Council is the policymaking body of the California courts. Under the leadership of the Chief
Justice and in accordance with the California Constitution, the council is responsible for ensuring the
consistent, independent, impartial, and accessible administration of justice.
xxv
Preface
These instructions represent the work of a task force on jury instructions appointed by Chief
Justice Ronald M. George in 1997. The task force’s charge was to write instructions that are
legally accurate and understandable to the average juror. The six-year effort responded to a
perceived need for instructions written in plain English and the specific recommendation of
the Blue Ribbon Commission on Jury System Improvement.
Jurors perform an invaluable service in our democracy, making important decisions that
affect many aspects of our society. The Judicial Council instructions attempt to clarify the
legal principles jurors must consider in reaching their decisions. The instructions were
prepared by a statewide, broad-based task force consisting of court of appeal justices, trial
judges, attorneys, academics, and lay people. They are approved by the Judicial Council as the
state’s official jury instructions under the California Rules of Court (see now Cal. Rules of
Court, Rule 2.1050(a)). The Rules of Court provide that the use of these instructions is
strongly encouraged (see now Cal. Rules of Court, Rule 2.1050(e)).
These instructions were prepared with a minimum of three steps: staff attorney drafts,
subcommittee refinement, and full task force consideration. Initial drafts of the instructions
were prepared by staff attorneys in the former Administrative Office of the Courts (now Legal
Services Office) in San Francisco, primarily Lyn Hinegardner. Lawyers throughout the state
provided subject-matter expertise and, in some cases, sets of instructions from which the task
force began its drafting. These instructions were submitted to the legal community for
comment and, in responding, hundreds of attorneys and judges provided valuable assistance.
Several organizations, most particularly State Bar sections, provided invaluable input. A list of
people and organizations who contributed to this effort follows; we apologize to those who
have been omitted through oversight.
We are grateful to the publisher of this work. Representatives of LexisNexis Matthew
Bender worked closely with us to prepare the jury instructions for publication. We appreciate
their efficiency and courtesy.
We would also like to express our appreciation to our predecessor. The people of California
and the legal community have been well served for over 60 years by BAJI, California Jury
Instructions, Civil, Book of Approved Jury Instructions, written by a committee of the Superior
Court of California, County of Los Angeles. That we have taken a very different approach to
drafting of instructions does not detract from the historic importance of work done by the
BAJI committee.
We believe that these instructions go a long way toward achieving the goal of a plain-
English explanation of the law. These instructions, like the law, will be constantly changing.
Change will come not only through appellate decisions and legislation but also through the
observations and comments of the legal community. The Judicial Council Advisory
Committee on Civil Jury Instructions, which has the responsibility of maintaining these
instructions, welcomes your comments and suggestions for improvement.
September 2003
James D. Ward, Former Associate Justice
Court of Appeal, Fourth Appellate District, Division Two
xxvii
Preface
Vice-Chair, Task Force on Jury Instructions
Chair, Civil Instruction Section
xxviii
xxix
Table of Contents
Volume 1
USER GUIDE
xxxi
xxxii
Volume 2
xxxiii
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
xxxiv
Volume 1
USER GUIDE
xxxix
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and
Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would
Not Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative
Defense—Good Faith Mistaken Belief
VF-2406. Wrongful Discharge in Violation of Public Policy
VF-2407. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
Violate Public Policy
VF-2408. Constructive Discharge in Violation of Public Policy—Plaintiff Required to En-
dure Intolerable Conditions for Improper Purpose That Violates Public Policy
VF-2409–VF-2499. Reserved for Future Use
lvii
Volume 2
lix
lxv
lxxvii
Codes
Deering’s California Codes Annotated
Matthew Bender and Deering’s Desktop Codes
Citations
Shepard’s Citations
Specialized Publications
Antitrust Laws & Trade Regulation
lxxix
lxxx
lxxxi
USER GUIDE
research on the subject. The standard is that the committee believes that the excerpt
would be of interest and relevant to CACI users.
Secondary Sources are also provided for treatises and practice guides from a variety
of legal publishers.
Instructions for the Common Case: These instructions were drafted for the common
type of case and can be used as drafted in most cases. When unique or complex
circumstances prevail, users will have to adapt the instructions to the particular case.
Multiple Parties: Because jurors more easily understand instructions that refer to
parties by name rather than by legal terms such as “plaintiff” and “defendant,” the
instructions provide for insertion of names. For simplicity of presentation, the
instructions use single party plaintiffs and defendants as examples. If a case involves
multiple parties or cross-complaints, the user will usually need to modify the parties
in the instructions. Rather than naming a number of parties in each place calling for
names, the user may consider putting the names of all applicable parties in the
beginning and thereafter identifying them as “plaintiffs,” “defendants,” “cross-
complaints,” etc. Different instructions often apply to different parties. The user should
only include the parties to whom each instruction applies.
Reference to “Harm” in Place of “Damage” or “Injury”: In many of the
instructions, the word harm is used in place of damage, injury or other similar words.
The drafters of the instructions felt that this word was clearer to jurors.
Substantial Factor: The instructions frequently use the term “substantial factor” to
state the element of causation, rather than referring to “cause” and then defining that
term in a separate instruction as a “substantial factor.” An instruction that defines
“substantial factor” is located in the Negligence series. The use of the instruction is not
intended to be limited to cases involving negligence.
Listing of Elements and Factors: For ease of understanding, elements of causes of
action or affirmative defenses are listed by numbers (e.g., 1, 2, 3) and factors to be
considered by jurors in their deliberations are listed by letters (e.g., a, b, c).
Uncontested Elements: Although some elements may be the subject of a stipulation
that the element has been proven, the instruction should set forth all of the elements
and indicate those that are deemed to have been proven by stipulation of the parties.
Omitting uncontested elements may leave the jury with an incomplete understanding
of the cause of action and the plaintiff’s full burden of proof. It is better to include all
the elements and then indicate the parties have agreed that one or more of them has
been established and need not be decided by the jury. One possible approach is as
follows:
To establish this claim, [plaintiff] must prove all of the following:
1. That [plaintiff] and [defendant] entered into a contract (which is not disputed
in this case);
2. That [plaintiff] did all, or substantially all, of the significant things that the
contract required it to do;
3. That all conditions required for [defendant]’s performance had occurred
2
USER GUIDE
USER GUIDE
Multiple Parties: The verdict forms have been written to address one plaintiff against
one defendant. In nearly all cases involving multiple parties, the issues and the
evidence will be such that the jury could reach different results for different parties.
The liability of each defendant should always be evaluated individually, and the
damages to be awarded to each plaintiff must usually be determined separately.
Therefore, separate special verdicts should usually be prepared for each plaintiff with
regard to each defendant. In some cases, the facts may be sufficiently simple to include
multiple parties in the same verdict form, but if this is done, the transitional language
from one question to another must be modified to account for all the different
possibilities of yes and no answers for the various parties.
Multiple Causes of Action: The verdict forms are self-contained for a particular cause
of action. When multiple causes of action are being submitted to the jury, it may be
better to combine the verdict forms and eliminate duplication.
Modifications as Required by Circumstances: The verdict forms must be modified
as required by the circumstances. It is necessary to determine whether any lesser or
greater specificity is appropriate. The question in special verdict forms for plaintiff’s
damages provides an illustration. Consistent with the jury instructions, the question
asks the jury to determine separately the amounts of past and future economic loss, and
of past and future noneconomic loss. These four choices are included in brackets. In
some cases it may be unnecessary to distinguish between past and future losses. In
others there may be no claim for either economic or noneconomic damages. In some
cases the court may wish to eliminate the terms “economic loss” and “noneconomic
loss” from both the instructions and the verdict form. Without defining those terms, the
court may prefer simply to ask the jury to determine the appropriate amounts for the
various components of the losses without categorizing them for the jury as economic
or noneconomic. The court can fix liability as joint or several under Civil Code
sections 1431 and 1431.2, based on the verdicts. A more itemized breakdown of
damages may be appropriate if the court is concerned about the sufficiency of the
evidence supporting a particular component of damages. Appropriate special verdicts
are preferred when periodic payment schedules may be required by Code of Civil
Procedure section 667.7. (Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 148–150
[266 Cal. Rptr. 671].)
December 2016
Hon. Martin J. Tangeman
Chair, Judicial Council Advisory Committee on Civil Jury Instructions
PRETRIAL
You have now been sworn as jurors in this case. I want to impress on
you the seriousness and importance of serving on a jury. Trial by jury is
a fundamental right in California. The parties have a right to a jury
that is selected fairly, that comes to the case without bias, and that will
attempt to reach a verdict based on the evidence presented. Before we
begin, I need to explain how you must conduct yourselves during the
trial.
Do not allow anything that happens outside this courtroom to affect
your decision. During the trial do not talk about this case or the people
involved in it with anyone, including family and persons living in your
household, friends and co-workers, spiritual leaders, advisors, or
therapists. You may say you are on a jury and how long the trial may
take, but that is all. You must not even talk about the case with the
other jurors until after I tell you that it is time for you to decide the
case.
This prohibition is not limited to face-to-face conversations. It also
extends to all forms of electronic communications. Do not use any
electronic device or media, such as a cell phone or smart phone, PDA,
computer, the Internet, any Internet service, any text or instant-
messaging service, any Internet chat room, blog, or website, including
social networking websites or online diaries, to send or receive any
information to or from anyone about this case or your experience as a
juror until after you have been discharged from your jury duty.
During the trial you must not listen to anyone else talk about the case
or the people involved in the case. You must avoid any contact with the
parties, the lawyers, the witnesses, and anyone else who may have a
connection to the case. If anyone tries to talk to you about this case, tell
that person that you cannot discuss it because you are a juror. If he or
she keeps talking to you, simply walk away and report the incident to
the court [attendant/bailiff] as soon as you can.
After the trial is over and I have released you from jury duty, you may
discuss the case with anyone, but you are not required to do so.
During the trial, do not read, listen to, or watch any news reports about
this case. [I have no information that there will be news reports
concerning this case.] This prohibition extends to the use of the Internet
in any way, including reading any blog about the case or about anyone
involved with it. If you receive any information about this case from
any source outside of the courtroom, promptly report it to the court
[attendant/bailiff]. It is important that all jurors see and hear the same
evidence at the same time.
6
New September 2003; Revised April 2004, October 2004, February 2005, June
2005, December 2007, December 2009, December 2011, December 2012
Directions for Use
This instruction should be given at the outset of every case, even as early as when
the jury panel enters the courtroom (without the first sentence).
If the jury is allowed to separate, Code of Civil Procedure section 611 requires the
judge to admonish the jury that “it is their duty not to converse with, or suffer
themselves to be addressed by any other person, on any subject of the trial, and
7
that it is their duty not to form or express an opinion thereon until the case is
finally submitted to them.”
Sources and Authority
• Constitutional Right to Jury Trial. Article I, section 16 of the California
Constitution.
• Instructing the Jury. Code of Civil Procedure section 608.
• Jury as Trier of Fact. Evidence Code section 312.
• Admonishments to Jurors. Code of Civil Procedure section 611.
• Contempt of Court for Juror Misconduct. Code of Civil Procedure section
1209(a)(6).
• Under Code of Civil Procedure section 611, jurors may not “form or express an
opinion” prior to deliberations. (See also City of Pleasant Hill v. First Baptist
Church of Pleasant Hill (1969) 1 Cal.App.3d 384, 429 [82 Cal.Rptr. 1]. It is
misconduct for a juror to prejudge the case. (Deward v. Clough (1966) 245
Cal.App.2d 439, 443–444 [54 Cal.Rptr. 68].)
• Jurors must not undertake independent investigations of the facts in a case.
(Kritzer v. Citron (1950) 101 Cal.App.2d 33, 36 [224 P.2d 808]; Walter v.
Ayvazian (1933) 134 Cal.App. 360, 365 [25 P.2d 526].)
• Jurors are required to avoid discussions with parties, counsel, or witnesses.
(Wright v. Eastlick (1899) 125 Cal. 517, 520–521 [58 P. 87]; Garden Grove
School Dist. v. Hendler (1965) 63 Cal.2d 141, 144 [45 Cal.Rptr. 313, 403 P.2d
721].)
• It is misconduct for jurors to engage in experiments that produce new evidence.
(Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234
Cal.App.3d 1724, 1746 [286 Cal.Rptr. 435].)
• Unauthorized visits to the scene of matters involved in the case are improper.
(Anderson v. Pacific Gas & Electric Co. (1963) 218 Cal.App.2d 276, 280 [32
Cal.Rptr. 328].)
• It is improper for jurors to receive information from the news media about the
case. (Province v. Center for Women’s Health & Family Birth (1993) 20
Cal.App.4th 1673, 1679 [25 Cal.Rptr.2d 667], disapproved on other grounds in
Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41 [32 Cal.Rptr.2d 200,
876 P.2d 999]; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 408
[196 Cal.Rptr. 117].)
• Jurors must avoid bias: “ ‘The right to unbiased and unprejudiced jurors is an
inseparable and inalienable part of the right to trial by jury guaranteed by the
Constitution.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98,
110 [95 Cal.Rptr. 516, 485 P.2d 1132], internal citations omitted.) Evidence of
racial prejudice and bias on the part of jurors amounts to misconduct and may
constitute grounds for ordering a new trial. (Ibid.)
8
To assist you in your tasks as jurors, I will now explain how the trial
will proceed. I will begin by identifying the parties to the case. [Name of
plaintiff] filed this lawsuit. [He/She/It] is called a plaintiff. [He/She/It]
seeks damages [or other relief] from [name of defendant], who is called a
defendant.
[[Name of plaintiff] claims [insert description of the plaintiff’s claim(s)].
[Name of defendant] denies those claims. [[Name of defendant] also
contends that [insert description of the defendant’s affırmative defense(s)].]]
[[Name of cross-complainant] has also filed what is called a cross
complaint against [name of cross-defendant]. [Name of cross-complainant]
is the defendant, but also is called the cross-complainant. [Name of
cross-defendant] is called a cross-defendant.]
[In [his/her/its] cross-complaint, [name of cross-complainant] claims
[insert description of the cross-complainant’s claim(s)]. [Name of cross-
defendant] denies those claims. [[Name of cross-defendant] also contends
that [insert description of the cross-defendant’s affırmative defense(s) to the
cross-complaint].]]
First, each side may make an opening statement, but neither side is
required to do so. An opening statement is not evidence. It is simply an
outline to help you understand what that party expects the evidence will
show. Also, because it is often difficult to give you the evidence in the
order we would prefer, the opening statement allows you to keep an
overview of the case in mind during the presentation of the evidence.
Next, the jury will hear the evidence. [Name of plaintiff] will present
evidence first. When [name of plaintiff] is finished, [name of defendant]
will have an opportunity to present evidence. [Then [name of cross-
complainant] will present evidence. Finally, [name of cross-defendant] will
present evidence.]
Each witness will first be questioned by the side that asked the witness
to testify. This is called direct examination. Then the other side is
permitted to question the witness. This is called cross-examination.
Documents or objects referred to during the trial are called exhibits.
Exhibits are given a [number/letter] so that they may be clearly
identified. Exhibits are not evidence until I admit them into evidence.
During your deliberations, you will be able to look at all exhibits
admitted into evidence.
There are many rules that govern whether something will be admitted
into evidence. As one side presents evidence, the other side has the right
10
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.50 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 4.100 (Cal CJER
2010)
12
You have been given notebooks and may take notes during the trial. Do
not take the notebooks out of the courtroom or jury room at any time
during the trial. You may take your notes into the jury room during
deliberations.
You should use your notes only to remind yourself of what happened
during the trial. Do not let your note-taking interfere with your ability
to listen carefully to all the testimony and to watch the witnesses as they
testify. Nor should you allow your impression of a witness or other
evidence to be influenced by whether or not other jurors are taking
notes. Your independent recollection of the evidence should govern your
verdict, and you should not allow yourself to be influenced by the notes
of other jurors if those notes differ from what you remember.
[The court reporter is making a record of everything that is said. If
during deliberations you have a question about what the witness said,
you should ask that the court reporter’s records be read to you. You
must accept the court reporter’s record as accurate.]
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/ [specify other disposition]].
that another juror has taken notes; and that the notes are for the note taker’s
own personal use in refreshing his recollection of the evidence. The jury must
be reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a
cautionary instruction on note-taking. Although the ideal instruction would
advert specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . .’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
Deskbook on the Management of Complex Civil Litigation, Ch. 2, Case
Management, § 2.81[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 4.97 (Cal CJER
2010)
14
[There are [number] plaintiffs in this trial. You should decide the case of
each plaintiff separately as if it were a separate lawsuit. Each plaintiff is
entitled to separate consideration of his or her own claim(s).]
[There are [number] defendants in this trial. You should decide the case
against each defendant separately as if it were a separate lawsuit. Each
defendant is entitled to separate consideration of his or her own
defenses.]
[Different aspects of this case involve different parties (plaintiffs and
defendants). Each instruction will identify the parties to whom it
applies. Pay particular attention to the parties named in each
instruction.]
[or]
[Unless I tell you otherwise, all instructions apply to each plaintiff and
defendant.]
16
105. Insurance
You must not consider whether any of the parties in this case has
insurance. The presence or absence of insurance is totally irrelevant.
You must decide this case based only on the law and the evidence.
17
106. Evidence
You must decide what the facts are in this case only from the evidence
you see or hear during the trial. Sworn testimony, documents, or
anything else may be admitted into evidence. You may not consider as
evidence anything that you see or hear when court is not in session,
even something done or said by one of the parties, attorneys, or
witnesses.
What the attorneys say during the trial is not evidence. In their opening
statements and closing arguments, the attorneys will talk to you about
the law and the evidence. What the lawyers say may help you
understand the law and the evidence, but their statements and
arguments are not evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers
are evidence. You should not think that something is true just because
an attorney’s question suggests that it is true. However, the attorneys
for both sides can agree that certain facts are true. This agreement is
called a “stipulation.” No other proof is needed and you must accept
those facts as true in this trial.
Each side has the right to object to evidence offered by the other side. If
I do not agree with the objection, I will say it is overruled. If I overrule
an objection, the witness will answer and you may consider the
evidence. If I agree with the objection, I will say it is sustained. If I
sustain an objection, you must ignore the question. If the witness did
not answer, you must not guess what he or she might have said or why I
sustained the objection. If the witness has already answered, you must
ignore the answer.
An attorney may make a motion to strike testimony that you have
heard. If I grant the motion, you must totally disregard that testimony.
You must treat it as though it did not exist.
New September 2003; Revised February 2005, December 2010, December 2012
Directions for Use
This instruction should be given as an introductory instruction.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• A stipulation in proper form is binding on the parties if it is within the authority
18
19
107. Witnesses
A witness is a person who has knowledge related to this case. You will
have to decide whether you believe each witness and how important
each witness’s testimony is to the case. You may believe all, part, or
none of a witness’s testimony.
In deciding whether to believe a witness’s testimony, you may consider,
among other factors, the following:
(a) How well did the witness see, hear, or otherwise sense what he
or she described in court?
(b) How well did the witness remember and describe what
happened?
(c) How did the witness look, act, and speak while testifying?
(d) Did the witness have any reason to say something that was not
true? For example, did the witness show any bias or prejudice or
have a personal relationship with any of the parties involved in
the case or have a personal stake in how this case is decided?
(e) What was the witness’s attitude toward this case or about giving
testimony?
Sometimes a witness may say something that is not consistent with
something else he or she said. Sometimes different witnesses will give
different versions of what happened. People often forget things or make
mistakes in what they remember. Also, two people may see the same
event but remember it differently. You may consider these differences,
but do not decide that testimony is untrue just because it differs from
other testimony.
However, if you decide that a witness did not tell the truth about
something important, you may choose not to believe anything that
witness said. On the other hand, if you think the witness did not tell the
truth about some things but told the truth about others, you may accept
the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on
one side than on the other. If you believe it is true, the testimony of a
single witness is enough to prove a fact.
New September 2003; Revised April 2004, June 2005, April 2007, December 2012,
June 2015, December 2016
Directions for Use
This instruction may be given as an introductory instruction or as a concluding
20
21
22
23
24
As [an] alternate juror[s], you are bound by the same rules that govern
the conduct of the jurors who are sitting on the panel. You will observe
the same trial and should pay attention to all of my instructions just as
if you were sitting on the panel. Sometimes a juror needs to be excused
during a trial for illness or some other reason. If that happens, an
alternate will be selected to take that juror’s place.
25
If, during the trial, you have a question that you believe should be
asked of a witness, you may write out the question and send it to me
through my courtroom staff. I will share your question with the
attorneys and decide whether it may be asked.
Do not feel disappointed if your question is not asked. Your question
may not be asked for a variety of reasons. For example, the question
may call for an answer that is not allowed for legal reasons. Also, you
should not try to guess the reason why a question is not asked or
speculate about what the answer might have been. Because the decision
whether to allow the question is mine alone, do not hold it against any
of the attorneys or their clients if your question is not asked.
Remember that you are not an advocate for one side or the other. Each
of you is an impartial judge of the facts. Your questions should be posed
in as neutral a fashion as possible. Do not discuss any question asked by
any juror with any other juror until after deliberations begin.
New February 2005; Revised April 2007, April 2009, June 2011
Directions for Use
This is an optional instruction for use if the jurors will be allowed to ask questions
of the witnesses. For an instruction to be given at the end of the trial, see CACI
No. 5019, Questions From Jurors. This instruction may be modified to account for
an individual judge’s practice.
Sources and Authority
• Written Questions From Jurors. Rule 2.1033 of the California Rules of Court.
• “In a proper case there may be a real benefit from allowing jurors to submit
questions under proper control by the court. However, in order to permit the
court to exercise its discretion and maintain control of the trial, the correct
procedure is to have the juror write the questions for consideration by the court
and counsel prior to their submission to the witness.” (People v. McAlister
(1985) 167 Cal.App.3d 633, 644 [213 Cal.Rptr. 271].)
• “[T]he judge has discretion to ask questions submitted by jurors or to pass those
questions on and leave to the discretion of counsel whether to ask the
questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 [18 Cal.Rptr.2d
796, 850 P.2d 1].)
• “The appellant urges that when jurymen ask improper questions the defendant is
placed in the delicate dilemma of either allowing such question to go in without
objection or of offending the jurors by making the objection and the appellant
insists that the court of its own motion should check the putting of such
26
improper questions by the jurymen, and thus relieve the party injuriously
affected thereby from the odium which might result from making that objection
thereto. There is no force in this contention. Objections to questions, whether
asked by a juror or by opposing counsel, are presented to the court, and its
ruling thereon could not reasonably affect the rights or standing of the party
making the objection before the jury in the one case more than in the other.”
(Maris v. H. Crummey, Inc. (1921) 55 Cal.App. 573, 578–579 [204 P. 259].)
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, § 85
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-E, Juror
Questioning Of Witnesses, ¶ 7:45.11b (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.01–91.03 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 4.96, 8.53 (Cal
CJER 2010)
27
113. Bias
28
From time to time during the trial, it may become necessary for me to
talk with the attorneys out of the hearing of the jury, either by having a
conference at the bench when the jury is present in the courtroom, or
by calling a recess to discuss matters outside of your presence. The
purpose of these conferences is not to keep relevant information from
you, but to decide how certain evidence is to be treated under the rules
of evidence. Do not be concerned about our discussions or try to guess
what is being said.
I may not always grant an attorney’s request for a conference. Do not
consider my granting or denying a request for a conference as any
indication of my opinion of the case or of my view of the evidence.
29
class suit both eliminates the possibility of repetitious litigation and provides
small claimants with a method of obtaining redress . . . .” ’ Generally, a class
suit is appropriate ‘when numerous parties suffer injury of insufficient size to
warrant individual action and when denial of class relief would result in unjust
advantage to the wrongdoer.’ ‘But because group action also has the potential to
create injustice, trial courts are required to ‘ “carefully weigh respective benefits
and burdens and to allow maintenance of the class action only where substantial
benefits accrue both to litigants and the courts.” ’ ” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 434–435 [97 Cal.Rptr.2d 179, 2 P.3d 27], internal
citations omitted.)
• “The cases uniformly hold that a plaintiff seeking to maintain a class action
must be a member of the class he claims to represent.” (La Sala v. American
Sav. & Loan Assn. (1971) 5 Cal.3d 864, 875 [97 Cal.Rptr 849, 489 P.2d 1113].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 267 et seq.
Cabraser, California Class Actions and Coordinated Proceedings (2d ed.), Ch. 3,
California’s Class Action Statute, § 3.03 (Matthew Bender)
Deskbook on the Management of Complex Civil Litigation, Ch. 3, Specialized
Areas, § 3.70 et seq. (Matthew Bender)
12 California Forms of Pleading and Practice, Ch. 120, Class Actions, §§ 120.11,
120.14 (Matthew Bender)
4 California Points and Authorities, Ch. 41, Class and Representative Actions,
§ 41.30 et seq. (Matthew Bender)
3 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 33,
Class Actions, 33.04
31
33
EVIDENCE
35
Cal.App.3d 314, 325 [276 Cal.Rptr. 430] (quoting People v. Miller (1916) 171
Cal. 649, 652 [154 P. 468] and holding that it was prejudicial misconduct for
jurors to refer to the dictionary for definition of the word “preponderance”).)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions,
§ 35
Jefferson, California Evidence Benchbook (3d ed. 1997) Ch. 45, Burdens of Proof
and of Producing Evidence; Presumptions
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
37
39
[189 Cal.Rptr. 159, 658 P.2d 86]; People v. Goldstein (1956) 139 Cal.App.2d
146, 152 [293 P.2d 495].)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 1, 2
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 138–141
7 Witkin, California Procedure (5th ed. 2008) Trial, § 291
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.62 (Matthew
Bender)
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 19.12–19.18
41
42
Cal.3d 829, 836 fn. 2 [148 Cal.Rptr. 39, 582 P.2d 126], original italics.)
• “We can see no error in the trial court’s ruling [giving this instruction]. The jury
was told only that it could ‘consider whether one party intentionally concealed
or destroyed evidence.’ Defendants were free to present the jury with evidence
that (as counsel represented to the court), the redactions were only of telephone
numbers, and that the failure to interview certain witnesses was proper, and to
argue that evidence to the jury.” (Ventura v. ABM Industries Inc. (2012) 212
Cal.App.4th 258, 273 [150 Cal.Rptr.3d 861].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 5.83, 12.10 (Cal
CJER 2010)
44
45
During the trial, I explained to you that certain evidence was admitted
for a limited purpose. You may consider that evidence only for the
limited purpose that I described, and not for any other purpose.
47
48
During the trial, you received deposition testimony that was [read from
the deposition transcript/[describe other manner presented, e.g., shown by
video]]. A deposition is the testimony of a person taken before trial. At a
deposition the person is sworn to tell the truth and is questioned by the
attorneys. You must consider the deposition testimony that was
presented to you in the same way as you consider testimony given in
court.
49
Before trial, each party has the right to ask the other parties to answer
written questions. These questions are called interrogatories. The
answers are also in writing and are given under oath. You must
consider the questions and answers that were read to you the same as if
the questions and answers had been given in court.
50
Before trial, each party has the right to ask another party to admit in
writing that certain matters are true. If the other party admits those
matters, you must accept them as true. No further evidence is required
to prove them.
[However, these matters must be considered true only as they apply to
the party who admitted they were true.]
51
You have heard that a witness in this trial has been convicted of a
felony. You were told about the conviction [only] to help you decide
whether you should believe the witness. [You also may consider the
evidence for the purpose of [specify].] You must not consider it for any
other purpose.
52
A party may offer into evidence any oral or written statement made by
an opposing party outside the courtroom.
When you evaluate evidence of such a statement, you must consider
these questions:
1. Do you believe that the party actually made the statement? If
you do not believe that the party made the statement, you may
not consider the statement at all.
2. If you believe that the statement was made, do you believe it was
reported accurately?
You should view testimony about an oral statement made by a party
outside the courtroom with caution.
54
You have heard evidence that [name of declarant] made the following
statement: [describe statement]. You may consider that statement as
evidence against [name of party against whom statement was offered] only
if you find that all of the following conditions are true:
1. The statement was made to [name of party against whom statement
was offered] or made in [his/her] presence;
2. [Name of party against whom statement was offered] heard and
understood the statement;
3. [Name of party against whom statement was offered] would, under
all the circumstances, naturally have denied the statement if [he/
she] thought it was not true;
3. AND
4. [Name of party against whom statement was offered] could have
denied it but did not.
If you decide that any of these conditions are not true, you must not
consider for any purpose either the statement or [name of party against
whom statement was offered]’s response.
[You must not consider this evidence against any other party.]
Neilson (1962) 57 Cal.2d 733, 746 [22 Cal.Rptr. 1, 371 P.2d 745].)
• In order for the hearsay evidence to be admissible, “it must have been shown
clearly that [the party] heard and understood the statement.” (Fisch v. Los
Angeles Metropolitan Transit Authority (1963) 219 Cal.App.2d 537, 540 [33
Cal.Rptr. 298].) There must also be evidence of some type of reaction to the
statement. (Ibid.) It is clear that the doctrine “does not apply if the party is in
such physical or mental condition that a reply could not reasonably be expected
from him.” (Southers v. Savage (1961) 191 Cal.App.2d 100, 104 [12 Cal.Rptr.
470].)
• “[T]here may be admissions other than statements made by the party himself;
that is, statements of another may in some circumstances be treated as
admissions of the party. The situations are (1) where the person who makes the
statement is in privity with the party against whom it is offered, as in the case
of agency, partnership, etc.; and (2) where the statement of the other is adopted
by the party as his own, either expressly or by conduct. Familiar examples of
this second situation are the admissions by silence, where declarations of third
persons made in the presence of a party give rise to admissions, the conduct of
the party in the face of the declaration constituting the adoption of the statement
to form an admission.” (In re Estate of Gaines (1940) 15 Cal.2d 255, 262 [100
P.2d 1055].)
• “The basis of the rule on admissions made in response to accusations is the fact
that human experience has shown that generally it is natural to deny an
accusation if a party considers himself innocent of negligence or wrongdoing.”
(Keller v. Key System Transit Lines (1954) 129 Cal.App.2d 593, 596 [277 P.2d
869].)
• If the statement is not accusatory, then the failure to respond is not an
admission. (Neilson, supra, 57 Cal.2d at p. 747; Gilbert v. City of Los Angeles
(1967) 249 Cal.App.2d 1006, 1008 [58 Cal.Rptr. 56].)
• Admissibility of this evidence depends upon whether (1) the statement was
made under circumstances that call for a reply, (2) whether the party understood
the statement, and (3) whether it could be inferred from his conduct that he
adopted the statement as an admission. (Gilbert, supra, 249 Cal.App.2d at p.
1009.)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 102–105
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.23–3.30
Cotchett, California Courtroom Evidence, § 21.09 (Matthew Bender)
2 California Trial Guide, Unit 40, Hearsay, § 40.31 (Matthew Bender)
214. Reserved for Future Use
56
57
disclosure could result.’ ” (Troy v. Superior Court (1986) 186 Cal.App.3d 1006,
1010–1011 [231 Cal.Rptr. 108], internal citations omitted.)
• “The Fifth Amendment of the United States Constitution includes a provision
that ‘[no] person . . . shall be compelled in any criminal case to be a witness
against himself, . . . .’ Although the specific reference is to criminal cases, the
Fifth Amendment protection ‘has been broadly extended to a point where now it
is available even to a person appearing only as a witness in any kind of
proceeding where testimony can be compelled.’ ” (Brown v. Superior Court
(1986) 180 Cal.App.3d 701, 708 [226 Cal.Rptr. 10], citation and footnote
omitted.)
• “There is no question that the privilege against self-incrimination may be
asserted by civil defendants who face possible criminal prosecution based on
the same facts as the civil action. ‘All matters which are privileged against
disclosure upon the trial under the law of this state are privileged against
disclosure through any discovery procedure.’ ” (Brown, supra, 180 Cal.App.3d
at p. 708, internal citations omitted.)
• “California law, then, makes no distinction between civil and criminal litigation
concerning adverse inferences from a witness’s invocation of the privilege
against self-incrimination; under Evidence Code section 913, juries are
forbidden to make such inferences in both types of cases. No purpose is served,
therefore, in either type of trial by forcing a witness to exercise the privilege on
the stand in the jury’s presence, for . . . the court would then be ‘required, on
request, to instruct the jury not to draw the very inference [the party calling the
witness] sought to present to the jury.” (People v. Holloway (2004) 33 Cal. 4th
96, 131 [14 Cal.Rptr.3d 212, 91 P.3d 164], internal citations omitted.)
• “The privilege against self-incrimination is guaranteed by both the federal and
state Constitutions. As pointed out by the California Supreme Court, ‘two
separate and distinct testimonial privileges’ exist under this guarantee. First, a
defendant in a criminal case ‘has an absolute right not to be called as a witness
and not to testify.’ Second, ‘in any proceeding, civil or criminal, a witness has
the right to decline to answer questions which may tend to incriminate him [or
her] in criminal activity.’ ” (People v. Merfeld, supra, 57 Cal.App.4th at p.
1443, internal citations omitted.)
• “The jury may not draw any inference from a witness’s invocation of a
privilege. Upon request, the trial court must so instruct jurors. ‘To avoid the
potentially prejudicial impact of having a witness assert the privilege against
self-incrimination before the jury, we have in the past recommended that, in
determining the propriety of the witness’s invocation of the privilege, the trial
court hold a pretestimonial hearing outside the jury’s presence.’ Such a
procedure makes sense under the appropriate circumstances. If there is a dispute
about whether a witness may legitimately rely on the Fifth Amendment
privilege against self-incrimination to avoid testifying, that legal question should
be resolved by the court. Given the court’s ruling and the nature of the potential
testimony, the witness may not be privileged to testify at all, or counsel may
59
elect not to call the witness as a matter of tactics.” (People v. Doolin, supra, 45
Cal.4th at pp. 441–442, original italics, internal citations omitted.)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 98
5 Levy et al., California Torts, Ch. 72, Discovery, §§ 72.20, 72.30 (Matthew
Bender)
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, § 51.32 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 191, Discovery: Privileges and
Other Discovery Limitations, § 191.30 et seq. (Matthew Bender)
1 California Deposition and Discovery Practice, Ch. 21, Privileged Matters in
General, § 21.20, Ch. 22, Privilege Against Self-Incrimination (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 8.74 (Cal CJER
2010)
60
You have heard evidence that there was a settlement between [insert
names of settling parties]. You must not consider this settlement to
determine responsibility for any harm. You may consider this evidence
only to decide whether [insert name of witness who settled] is biased or
prejudiced and whether [his/her] testimony is believable.
61
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 140–148
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.15–34.24
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, § 50.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
62
63
During the trial you heard testimony from expert witnesses. The law
allows an expert to state opinions about matters in his or her field of
expertise even if he or she has not witnessed any of the events involved
in the trial.
You do not have to accept an expert’s opinion. As with any other
witness, it is up to you to decide whether you believe the expert’s
testimony and choose to use it as a basis for your decision. You may
believe all, part, or none of an expert’s testimony. In deciding whether
to believe an expert’s testimony, you should consider:
a. The expert’s training and experience;
b. The facts the expert relied on; and
c. The reasons for the expert’s opinion.
testimony would be likely to assist the jury in the search for the truth . . . .
[Citation.] Where a witness has disclosed sufficient knowledge, the question of
the degree of knowledge goes more to the weight of the evidence than its
admissibility. [Citation.]’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959,
969 [191 Cal.Rptr.3d 766].)
• The “credibility of expert witnesses is a matter for the jury after proper
instructions from the court.” (Williams v. Volkswagenwerk Aktiengesellschaft
(1986) 180 Cal.App.3d 1244, 1265 [226 Cal.Rptr. 306].)
• “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court
acts as a gatekeeper to exclude expert opinion testimony that is (1) based on
matter of a type on which an expert may not reasonably rely, (2) based on
reasons unsupported by the material on which the expert relies, or (3)
speculative. Other provisions of law, including decisional law, may also provide
reasons for excluding expert opinion testimony. [¶] But courts must also be
cautious in excluding expert testimony. The trial court’s gatekeeping role does
not involve choosing between competing expert opinions.” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771−772 [149
Cal.Rptr.3d 614, 288 P.3d 1237], footnote omitted.)
• “ ‘Generally, the opinion of an expert is admissible when it is “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .” [Citations.] Also, “[t]estimony in the
form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.” [Citation.]
However, “ ‘Where the jury is just as competent as the expert to consider and
weigh the evidence and draw the necessary conclusions, then the need for
expert testimony evaporates.’ ” ’ Expert testimony will be excluded ‘ “ ‘when it
would add nothing at all to the jury’s common fund of information, i.e., when
‘the subject of inquiry is one of such common knowledge that men of ordinary
education could reach a conclusion as intelligently as the witness.” ’ ” ’ ”
(Burton v. Sanner (2012) 207 Cal.App.4th 12, 19 [142 Cal.Rptr.3d 782],
internal citations omitted.)
• Under Evidence Code section 801(a), expert witness testimony “must relate to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” (New v. Consolidated Rock Products Co.
(1985) 171 Cal.App.3d 681, 692 [217 Cal.Rptr. 522].)
• Expert witnesses are qualified by special knowledge to form opinions on facts
that they have not personally witnessed. (Manney v. Housing Authority of The
City of Richmond (1947) 79 Cal.App.2d 453, 460 [180 P.2d 69].)
• “Although a jury may not arbitrarily or unreasonably disregard the testimony of
an expert, it is not bound by the expert’s opinion. Instead, it must give to each
opinion the weight which it finds the opinion deserves. So long as it does not
do so arbitrarily, a jury may entirely reject the testimony of a plaintiff’s expert,
even where the defendant does not call any opposing expert and the expert
65
66
The law allows expert witnesses to be asked questions that are based on
assumed facts. These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert’s opinion that is based
on the assumed facts, you should consider whether the assumed facts
are true.
Farm Mutual Automobile Insurance Co. (1977) 66 Cal.App.3d 981, 995 [136
Cal.Rptr. 331].)
• The jury should not be instructed that they are entitled to reject the entirety of
an expert’s opinion if a hypothetical assumption has not been proven. Rather,
the jury should be instructed “to determine the effect of that failure of proof on
the value and weight of the expert opinion based on that assumption.” (Lysick v.
Walcom (1968) 258 Cal.App.2d 136, 156 [65 Cal.Rptr. 406].)
• “The jury still plays a critical role in two respects. First, it must decide whether
to credit the expert’s opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the significance of
any difference between the actual facts and the facts stated in the questions.”
(People v. Vang, supra, 52 Cal.4th at pp. 1049–1050.)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 208–215
Jefferson, California Evidence Benchbook (3d ed. 1997) § 29.43, pp. 609–610
3A California Trial Guide, Unit 60, Opinion Testimony, §§ 60.05, 60.50–60.51
(Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 8.92 (Cal CJER
2010)
68
If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given
for each opinion and the facts or other matters that each witness relied
on. You may also compare the experts’ qualifications.
69
You have heard evidence that there was a settlement agreement between
[name of settling defendant] and [name of plaintiff].
Under this agreement, the amount of money that [name of settling
defendant] will have to pay to [name of plaintiff] will depend on the
amount of money that [name of plaintiff] receives from [name of
nonsettling defendant] at trial. The more money that [name of plaintiff]
might receive from [name of nonsettling defendant], the less that [name of
settling defendant] will have to pay under the agreement.
You may consider evidence of the settlement only to decide whether
[name of settling defendant/name of witness] [, who testified on behalf of
[name of settling defendant],] is biased or prejudiced and whether [his/
her] testimony is believable.
71
72
73
CONTRACTS
CONTRACTS
76
is a conclusion of law drawn by the court from the facts of a given case . . . .”
(Mitchell, supra, 25 Cal.2d at p. 48, italics added.)
• Estoppel is a “nonjury fact question to be determined by the trial court in
accordance with applicable law.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum
Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 847–867
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
78
it was entered. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26
Cal.App.4th 1717, 1725 [33 Cal.Rptr.2d 291].)
• Restatement Second of Contracts, section 302, provides:
(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of
a right to performance in the beneficiary is appropriate to effectuate
the intention of the parties and either
(a) the performance of the promise will satisfy an obligation
of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to
give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
This section has been cited by California courts. (See, e.g., Outdoor Services v.
Pabagold (1986) 185 Cal.App.3d 676, 684 [230 Cal.Rptr. 73].)
• The burden is on the third party “to prove that the performance [it] seeks was
actually promised.” (Garcia v. Truck Insurance Exchange (1984) 36 Cal.3d 426,
436 [204 Cal.Rptr. 435, 682 P.2d 1100]; Neverkovec v. Fredericks (1999) 74
Cal.App.4th 337, 348–349 [87 Cal.Rptr.2d 856].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 685–706
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.83,
140.103, 140.131 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.132 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.11 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 19, Seeking
or Opposing Recovery As Third Party Beneficiary of Contract, 19.03–19.06
80
New September 2003; Revised October 2004, June 2011, June 2014
Directions for Use
This instruction should only be given if the existence of a contract is contested. At
other times, the parties may be contesting only a limited number of contract
formation issues. Also, some of these issues may be decided by the judge as a
matter of law. Read the bracketed paragraph only if element 3 is read.
The elements regarding legal capacity and legal purpose are omitted from this
instruction because these issues are not likely to be before the jury. If legal
capacity or legal purpose is factually disputed then this instruction should be
amended to add that issue as an element. Regarding legal capacity, the element
could be stated as follows: “That the parties were legally capable of entering into a
contract.” Regarding legal purpose, the element could be stated as follows: “That
the contract had a legal purpose.”
The final element of this instruction would be given before instructions on offer
and acceptance. If neither offer nor acceptance is contested, then this element of the
instruction will not need to be given to the jury.
Sources and Authority
• Essential Elements of Contract. Civil Code section 1550.
• Who May Contract. Civil Code section 1556.
• Consent. Civil Code section 1565.
81
83
New September 2003; Revised April 2004, June 2006, December 2010, June 2011,
June 2013, June 2015, December 2016
Directions for Use
Read this instruction in conjunction with CACI No. 300, Breach of
Contract—Introduction.
Optional elements 2 and 3 both involve conditions precedent. A “condition
precedent” is either an act of a party that must be performed or an uncertain event
that must happen before the contractual right accrues or the contractual duty arises.
(Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th
1131, 1147 [180 Cal.Rptr.3d 683].) Element 2 involves the first kind of condition
84
precedent; an act that must be performed by one party before the other is required
to perform. Include the second option if the plaintiff alleges that he or she was
excused from having to perform some or all of the contractual conditions.
Not every breach of contract by the plaintiff will relieve the defendant of the
obligation to perform. The breach must be material; element 2 captures materiality
by requiring that the plaintiff have done the significant things that the contract
required. Also, the two obligations must be dependent, meaning that the parties
specifically bargained that the failure to perform the one relieves the obligation to
perform the other. While materiality is generally a question of fact, whether
covenants are dependent or independent is a matter of construing the agreement.
(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 [120 Cal.Rptr.3d 893].) If
there is no extrinsic evidence in aid of construction, the question is one of law for
the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 [284 P.2d 94].)
Therefore, element 2 should not be given unless the court has determined that
dependent obligations are involved. If parol evidence is required and a dispute of
facts is presented, additional instructions on the disputed facts will be necessary.
(See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395 [75 Cal.Rptr.3d 333, 181 P.3d 142].)
Element 3 involves the second kind of condition precedent; an uncertain event that
must happen before contractual duties are triggered. Include the second option if
the plaintiff alleges that the defendant agreed to perform even though a condition
did not occur. For reasons that the occurrence of a condition may have been
excused, see the Restatement Second of Contracts, section 225, Comment b. See
also CACI No. 321, Existence of Condition Precedent Disputed, CACI No. 322,
Occurrence of Agreed Condition Precedent, and CACI No. 323, Waiver of
Condition Precedent.
Element 6 states the test for causation in a breach of contract action: whether the
breach was a substantial factor in causing the damages. (US Ecology, Inc. v. State
of California (2005) 129 Cal.App.4th 887, 909 [28 Cal.Rptr.3d 894].) In the
context of breach of contract, it has been said that the term “substantial factor” has
no precise definition, but is something that is more than a slight, trivial, negligible,
or theoretical factor in producing a particular result. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 871−872 [63 Cal.Rptr.3d 514]; see
CACI No. 430, Causation—Substantial Factor, applicable to negligence actions.)
Equitable remedies are also available for breach. “As a general proposition, ‘[t]he
jury trial is a matter of right in a civil action at law, but not in equity.
[Citations.]’ ” (C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23
Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy
(1979) 91 Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render
advisory verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn.
(1974) 10 Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].)
Sources and Authority
• Contract Defined. Civil Code section 1549.
85
Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.03–22.50
88
writing.’ ” (Masterson v. Sine (1968) 68 Cal.2d 222, 225 [65 Cal.Rptr. 545, 436
P.2d 561].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts § 117
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶ 8:3145 (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.83
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
90
92
[Name of defendant] contends that the parties did not enter into a
contract because they had not signed a final written agreement. To
prove that a contract was created, [name of plaintiff] must prove both of
the following:
1. That the parties understood and agreed to the terms of the
agreement; and
2. That the parties agreed to be bound before a written agreement
was completed and signed.
• “Whether it was the parties’ mutual intention that their oral agreement to the
terms contained in a proposed written agreement should be binding immediately
is to be determined from the surrounding facts and circumstances of a particular
case and is a question of fact for the trial court.” (Banner Entertainment, Inc.,
supra, 62 Cal.App.4th at p. 358.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 133, 134
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.350 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.07[3]
94
First Capital Life Insurance Co. (1995) 34 Cal.App.4th 1283, 1287 [40
Cal.Rptr.2d 816].)
• Offers should be contrasted with preliminary negotiations: “Preliminary
negotiations or an agreement for future negotiations are not the functional
equivalent of a valid, subsisting agreement.” (Kruse v. Bank of America (1988)
202 Cal.App.3d 38, 59 [248 Cal.Rptr. 217].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 116, 117,
125–137
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.210 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.18–13.24
96
98
question of fact. Further, based on the general rule that manifested mutual
assent rather than actual mental assent is the essential element in the formation
of contracts, the test of the true meaning of an acceptance or rejection is not
what the party making it thought it meant or intended it to mean. Rather, the
test is what a reasonable person in the position of the parties would have
thought it meant.” (Guzman, supra, 71 Cal.App.4th at pp. 1376–1377.)
• “Acceptance of an offer, which may be manifested by conduct as well as by
words, must be expressed or communicated by the offeree to the offeror.”
(Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)
• “The Restatement Second of Contracts, section 60 provides, ‘If an offer
prescribes the place, time or manner of acceptance its terms in this respect must
be complied with in order to create a contract. If an offer merely suggests a
permitted place, time or manner of acceptance, another method of acceptance is
not precluded.’ Comment a to Restatement 2d, section 60 provides, ‘a.
Interpretation of offer. If the offeror prescribes the only way in which his offer
may be accepted, an acceptance in any other way is a counter-offer. But
frequently in regard to the details of methods of acceptance, the offeror’s
language, if fairly interpreted, amounts merely to a statement of a satisfactory
method of acceptance, without positive requirement that this method shall be
followed.’ [¶] Similarly, Restatement 2d, section 30 provides in relevant part,
‘Unless otherwise indicated by the language or the circumstances, an offer
invites acceptance in any manner and by any medium reasonable in the
circumstances.’ Comment b to Restatement 2d section 30 states: ‘Invited form.
Insistence on a particular form of acceptance is unusual. Offers often make no
express reference to the form of acceptance; sometimes ambiguous language is
used. Language referring to a particular mode of acceptance is often intended
and understood as suggestion rather than limitation; the suggested mode is then
authorized, but other modes are not precluded. In other cases language which in
terms refers to the mode of acceptance is intended and understood as referring
to some more important aspect of the transaction, such as the time limit for
acceptance.’ ” (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232
Cal.App.4th 294, 311–312 [181 Cal.Rptr.3d 399], original italics, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 180–192
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.25–13.31
100
101
103
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [he/she/it] was required to do under the contract, and
therefore [name of defendant] did not have to perform [his/her/its]
obligations under the contract. To overcome this contention, [name of
plaintiff] must prove both of the following:
1. That [name of plaintiff] made a good faith effort to comply with
the contract; and
2. That [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial or unimportant that they could have been easily fixed or
paid for.
105
313. Modification
107
109
You should assume that the parties intended the words in their contract
to have their usual and ordinary meaning unless you decide that the
parties intended the words to have a special meaning.
110
You should assume that the parties intended technical words used in the
contract to have the meaning that is usually given to them by people
who work in that technical field, unless you decide that the parties
clearly used the words in a different sense.
111
113
In deciding what the words in a contract meant to the parties, you may
consider how the parties acted after the contract was created but before
any disagreement between the parties arose.
114
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 749
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.51
115
If a contract does not state a specific time in which the parties are to
meet the requirements of the contract, then the parties must meet them
within a reasonable time. What is a reasonable time depends on the
facts of each case, including the subject matter of the contract, the
reasons each party entered into the contract, and the intentions of the
parties at the time they entered the contract.
116
In determining the meaning of the words of the contract, you must first
consider all of the other instructions that I have given you. If, after
considering these instructions, you still cannot agree on the meaning of
the words, then you should interpret the contract against [the party that
drafted the disputed words/the party that caused the uncertainty].
118
120
The parties agreed in their contract that [name of defendant] would not
have to [insert duty] unless [insert condition precedent]. [Name of
defendant] contends that this condition did not occur and that [he/she/it]
did not have to [insert duty]. To overcome this contention, [name of
plaintiff] must prove that [insert condition precedent].
If [name of plaintiff] does not prove that [insert condition precedent], then
[name of defendant] was not required to [insert duty].
an action for breach of contract.’ ” (Stephens & Stephens XII, LLC, supra, 231
Cal.App.4th at p. 1147.)
• “[W]here defendant’s duty to perform under the contract is conditioned on the
happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
• “When a contract establishes the satisfaction of one of the parties as a condition
precedent, two tests are recognized: (1) The party is bound to make his decision
according to the judicially discerned, objective standard of a reasonable person;
(2) the party may make a subjective decision regardless of reasonableness,
controlled only by the need for good faith. Which test applies in a given
transaction is a matter of actual or judicially inferred intent. Absent an explicit
contractual direction or one implied from the subject matter, the law prefers the
objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43
Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 776–791
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44,
140.101 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.19, 22.66
122
no disputed facts and only one reasonable inference may be drawn, the issue
can be determined as a matter of law.’ ” (DuBeck v. California Physicians’
Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• Section 84 of the Restatement Second of Contracts provides:
(1) Except as stated in Subsection (2), a promise to perform all or
part of a conditional duty under an antecedent contract in spite of
the non-occurrence of the condition is binding, whether the promise
is made before or after the time for the condition to occur, unless
(a) occurrence of the condition was a material part of the
agreed exchange for the performance of the duty and the
promisee was under no duty that it occur; or
(b) uncertainty of the occurrence of the condition was an
element of the risk assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of
the condition has expired and the condition is within the control of
the promisee or a beneficiary, the promisor can make his duty again
subject to the condition by notifying the promisee or beneficiary of
his intention to do so if
(a) the notification is received while there is still a reasonable
time to cause the condition to occur under the antecedent terms
or an extension given by the promisor; and
(b) reinstatement of the requirement of the condition is not
unjust because of a material change of position by the
promisee or beneficiary; and
(c) the promise is not binding apart from the rule stated in
Subsection (1).
Secondary Sources
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.48
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.44
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.231 (Matthew Bender)
124
126
New April 2004; Revised June 2011, December 2012, June 2014
Directions for Use
This instruction should be given if the plaintiff has brought a separate count for
breach of the covenant of good faith and fair dealing. It may be given in addition
to CACI No. 303, Breach of Contract—Essential Factual Elements, if breach of
contract on other grounds is also alleged. For discussion of element 3, see the
Directions for Use to CACI No. 303.
If a claim for breach of the implied covenant does nothing more than allege a mere
contract breach and, relying on the same alleged acts, simply seeks the same
damages or other relief already claimed in a contract cause of action, it may be
disregarded as superfluous because no additional claim is actually stated. (Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395
[272 Cal.Rptr. 387].) The harm alleged in element 5 may produce contract damages
that are different from those claimed for breach of the express contract provisions.
(See Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194
Cal.App.4th 873, 885 [123 Cal.Rptr.3d 736] [noting that gravamen of the two
127
129
• “An assignor may not maintain an action upon a claim after making an absolute
assignment of it to another; his right to demand performance is extinguished,
the assignee acquiring such right. To ‘assign’ ordinarily means to transfer title
or ownership of property, but an assignment, to be effective, must include
manifestation to another person by the owner of his intention to transfer the
right, without further action, to such other person or to a third person. It is the
substance and not the form of a transaction which determines whether an
assignment was intended. If from the entire transaction and the conduct of the
parties it clearly appears that the intent of the parties was to pass title to the
chose in action, then an assignment will be held to have taken place.” (McCown
v. Spencer (1970) 8 Cal.App.3d 216, 225 [87 Cal.Rptr. 213], internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 707–719
6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20
(Matthew Bender)
27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations,
§ 76.201 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
131
132
asserts that the plaintiff is not entitled to recover on the contract because of the
plaintiff’s failure to perform its duties competently. (See Roscoe Moss Co. v.
Jenkins (1942) 55 Cal.App.2d 369, 376–378 [130 P.2d 477].)
For discussion of issues with the options for elements 2 and 3, see the Directions
for Use to CACI No. 303, Breach of Contract—Essential Factual Elements.
Sources and Authority
• “[E]xpress contractual terms give rise to implied duties, violations of which
may themselves constitute breaches of contract. ‘ “Accompanying every contract
is a common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any
of these conditions is a tort, as well as a breach of the contract.” The rule
which imposes this duty is of universal application as to all persons who by
contract undertake professional or other business engagements requiring the
exercise of care, skill and knowledge; the obligation is implied by law and need
not be stated in the agreement [citation].’ ” (Holguin, supra, 229 Cal.App.4th at
p. 1324.)
• “A contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69
Cal.Rptr.2d 466].)
• “[T]he statement in the written contract that it contains the entire agreement of
the parties cannot furnish the appellants an avenue of escape from the entirely
reasonable obligation implied in all contracts to the effect that the work
performed ‘shall be fit and proper for its said intended use,’ as stated by the
trial court.” (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d
552].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2010) Contracts, §§ 798, 800
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.12
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Crompton et al., Matthew Bender Practice Guide: California Contract Litigation,
Ch. 21, Asserting a Particular Construction of Contract, 21.79
329 Reserved for Future Use
134
136
138
consent: “[A]n action for duress and menace cannot be sustained when the
voluntary action of the apprehensive party is induced by his speculation upon or
anticipation of a future event suggested to him by the defendant but not
threatened to induce his conduct. The issue in each instance is whether the
defendant intentionally exerted an unlawful pressure on the injured party to
deprive him of contractual volition and induce him to act to his own detriment.”
(Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
• It is wrongful to use the threat of criminal prosecution to obtain a consent:
“California law is clear that an agreement obtained by threat of criminal
prosecution constitutes menace and is unenforceable as against public policy.”
(Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15
Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate
civil action is not considered wrongful: “[T]he action or threat in duress or
menace must be unlawful, and a threat to take legal action is not unlawful
unless the party making the threat knows the falsity of his claim.” (Odorizzi v.
Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Standard duress is evaluated under a subjective standard: “The question in each
case [is], Was the person so acted upon by threats of the person claiming the
benefit of the contract, for the purpose of obtaining such contract, as to be
bereft of the quality of mind essential to the making of a contract, and was the
contract thereby obtained? Hence, under this theory duress is to be tested, not
by the nature of the threats, but rather by the state of mind induced thereby in
the victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129
Cal.Rptr. 566].)
• The wrongful acts of a third party may constitute duress sufficient to allow
rescission of a contract with a party, who, although not participating in those
wrongful acts, had knowledge of the innocent party’s position. (Leeper v.
Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)
• “[Defendant has] the burden of proving by a preponderance of the evidence the
affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito
(1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson
(1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 309–315
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
140
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]
141
New September 2003; Revised December 2005, June 2011, December 2011
Directions for Use
Different elements may apply if economic duress is alleged to avoid an agreement
to settle a debt. (See Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 959–960 [68
Cal.Rptr.3d 872].)
Element 2 requires that the defendant have had “no reasonable alternative” other
than to consent. Economic duress to avoid a settlement agreement may require that
the creditor be placed in danger of imminent bankruptcy or financial ruin. (See
Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154,
1156–1157, 204 Cal.Rptr. 86].) At least one court has stated this standard in a case
not involving a settlement (see Uniwill v. City of Los Angeles (2004) 124
Cal.App.4th 537, 545 [21 Cal.Rptr.3d 464]), though most cases do not require that
the only alternative be bankruptcy or financial ruin. (See, e.g., Chan v. Lund (2010)
188 Cal.App.4th 1159, 1173–1174 [116 Cal.Rptr.3d 122].)
In the next-to-last paragraph, state the rule that makes the alleged conduct
wrongful. The conduct must be something more than the breach or threatened
breach of the contract itself. An act for which a party has an adequate legal remedy
is not duress. (River Bank America v. Diller (1995) 38 Cal.App.4th 1400, 1425 [45
Cal.Rptr.2d 790].)
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• “The doctrine of ‘economic duress’ can apply when one party has done a
142
144
“It is, of course, well settled that while the mere fact that a relationship is
friendly and intimate does not necessarily amount to a confidential relationship,
such relationship may be said to exist whenever trust and confidence is reposed
by one person in the integrity and fidelity of another. It is likewise frequently
emphasized that the existence of a confidential relationship presents a question
of fact which, of necessity, may be determined only on a case by case basis.”
(O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 153 [119 Cal.Rptr. 245], internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 316–321
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.40–215.42, 215.130–215.132 (Matthew
Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.70 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.352 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.25–17.28
146
148
• There can be no waiver where the one against whom it is asserted has acted
without full knowledge of the facts. It cannot be presumed, in the absence of
such knowledge, that there was an intention to waive an existing right. (Craig v.
White (1921) 187 Cal. 489, 498 [202 P. 648].)
• “ ‘Waiver always rests upon intent. Waiver is the intentional relinquishment of a
known right after knowledge of the facts.’ The burden, moreover, is on the
party claiming a waiver of a right to prove it by clear and convincing evidence
that does not leave the matter to speculation, and ‘doubtful cases will be
decided against a waiver’.” (City of Ukiah v. Fones (1966) 64 Cal.2d 104,
107–108 [48 Cal.Rptr. 865, 410 P.2d 369]; Florence Western Medical Clinic v.
Bonta (2000) 77 Cal.App.4th 493, 504 [91 Cal.Rptr.2d 609].)
• The “clear and convincing” standard applies “particularly” to rights favored in
the law; however, it does not apply exclusively to such favored rights. It is
proper to instruct a jury that waiver must be proved by this higher standard of
proof. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe and Takeout III, Ltd.
(1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed.) Contracts §§ 856, 857
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
150
asserting it. (Alexander v. Angel (1951) 37 Cal.2d 856, 860 [236 P.2d 561].)
• “When there is conflicting evidence the question whether the parties to an
agreement entered into a modification or a novation is a question of fact.”
(Howard v. County of Amador (1990) 220 Cal.App.3d 962, 980 [269 Cal.Rptr.
807].)
• “The ‘question whether a novation has taken place is always one of intention,’
with the controlling factor being the intent of the obligee to effect a release of
the original obligor on his obligation under the original agreement.” (Alexander,
supra, 37 Cal.2d at p. 860, internal citations omitted.)
• “[I]n order for there to be a valid novation, it is necessary that the parties
intend that the rights and obligations of the new contract be substituted for the
terms and conditions of the old contract.” (Wade v. Diamond A Cattle Co.
(1975) 44 Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
• “While the evidence in support of a novation must be ‘clear and convincing,’
the ‘whole question is one of fact and depends upon all the facts and
circumstances of the particular case,’ with the weight and sufficiency of the
proof being matters for the determination of the trier of the facts under the
general rules applicable to civil actions.” (Alexander, supra, 37 Cal.2d at pp.
860–861, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 961–963
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.141
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.450–50.464 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
77.280–77.282 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58[3]
152
Cal.Rptr.2d 680].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 344
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
339–349. Reserved for Future Use
154
the same position it would have held had the contract properly been performed,
but such damage may not exceed the benefit which it would have received had
the promisor performed.” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 468,
internal citations omitted.)
• “ ‘The rules of law governing the recovery of damages for breach of contract
are very flexible. Their application in the infinite number of situations that arise
is beyond question variable and uncertain. Even more than in the case of other
rules of law, they must be regarded merely as guides to the court, leaving much
to the individual feeling of the court created by the special circumstances of the
particular case.’ ” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 455, internal
citation omitted.)
• Contractual damages are of two types—general damages (sometimes called
direct damages) and special damages (sometimes called consequential
damages).” (Lewis Jorge Construction Management, Inc. v. Pomona Unified
School Dist. (2004) 34 Cal.4th 960, 968 [22 Cal.Rptr.3d 340, 102 P.3d 257].)
• “General damages are often characterized as those that flow directly and
necessarily from a breach of contract, or that are a natural result of a breach.
Because general damages are a natural and necessary consequence of a contract
breach, they are often said to be within the contemplation of the parties,
meaning that because their occurrence is sufficiently predictable the parties at
the time of contracting are ‘deemed’ to have contemplated them.” (Lewis Jorge
Construction Management, Inc., supra, 34 Cal.4th at p. 968, internal citations
omitted.)
• “ ‘Contract damages are generally limited to those within the contemplation of
the parties when the contract was entered into or at least reasonably foreseeable
by them at that time; consequential damages beyond the expectation of the
parties are not recoverable. This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to
estimate in advance the financial risks of their enterprise.’ ‘In contrast, tort
damages are awarded to [fully] compensate the victim for [all] injury
suffered.’ ” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550 [87 Cal.Rptr.2d 886,
981 P.2d 978], internal citations omitted.)
• [I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract.’ ” (Resort
Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1697 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “The detriment that is ‘likely to result therefrom’ is that which is foreseeable to
the breaching party at the time the contract is entered into.” (Wallis v. Farmers
Group, Inc. (1990) 220 Cal.App.3d 718, 737 [269 Cal.Rptr. 299], internal
citation omitted.)
• “Where the fact of damages is certain, as here, the amount of damages need not
be calculated with absolute certainty. The law requires only that some
156
157
purpose was known to the other party, the facts showing the special purpose
and the knowledge of the other party must be averred. This rule has frequently
been applied to the breach of a contract for the sale of goods to be delivered at
a certain time. In such cases the general rule of damages is fixed by reference
to the market value of the goods at the time they were to have been delivered,
because in the usual course of events the purchaser could have supplied himself
with like commodities at the market price. And if special circumstances existed
entitling the purchaser to greater damages for the defeat of a special purpose
known to the contracting parties (as, for example, if the purchaser had already
contracted to furnish the goods at a profit, and they could not be obtained in the
market), such circumstances must be stated in the declaration with the facts
which, under the circumstances, enhanced the injury.” (Mitchell v. Clarke
(1886) 71 Cal. 163, 164–165 [11 P. 882], internal citation omitted.)
• “[I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract. The
requirement of knowledge or notice as a prerequisite to the recovery of special
damages is based on the theory that a party does not and cannot assume
limitless responsibility for all consequences of a breach, and that at the time of
contracting he must be advised of the facts concerning special harm which
might result therefrom, in order that he may determine whether or not to accept
the risk of contracting.” (Brandon & Tibbs v. George Kevorkian Accountancy
Corp. (1990) 226 Cal.App.3d 442, 455 [277 Cal.Rptr. 40], internal citations
omitted.)
• “Contract damages must be clearly ascertainable in both nature and origin. A
contracting party cannot be required to assume limitless responsibility for all
consequences of a breach and must be advised of any special harm that might
result in order to determine whether or not to accept the risk of contracting.”
(Erlich v. Menezes (1999) 21 Cal.4th 543, 560 [87 Cal.Rptr.2d 886, 981 P.2d
978], internal citations omitted.)
• “ ‘[F]oreseeability is to be determined as of the time of the making of the
contract’; ‘what must be foreseeable is only that the loss would result if the
breach occurred’; ‘it is foreseeability only by the party in breach that is
determinative’; ‘foreseeability has an objective character’; and ‘the loss need
only have been foreseeable as a probable, as opposed to a necessary or certain,
result of the breach.’ ” (Ash, supra, 223 Cal.App.4th at p. 1270.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 871
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.13
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.61 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
159
160
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/it] would have earned profits but for [name
of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must determine
the gross, or total, amount [name of plaintiff] would have received if the
contract had been performed and then subtract from that amount the
costs [including the value of the [labor/materials/rents/expenses/interest
on loans invested in the business]] [name of plaintiff] would have had if
the contract had been performed.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
163
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/it] would have earned more profits but for
[name of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must:
1. First, calculate [name of plaintiff]’s estimated total profit by
determining the gross amount [he/she/it] would have received if
the contract had been performed, and then subtracting from that
amount the costs [including the value of the [labor/materials/
rents/expenses/interest on loans invested in the business]] [name
of plaintiff] would have had if the contract had been performed;
2. Next, calculate [name of plaintiff]’s actual profit by determining
the gross amount [he/she/it] actually received, and then
subtracting from that amount [name of plaintiff]’s actual costs
[including the value of the
[labor/materials/rents/expenses/interest on loans invested in the
business]]; and
3. Then, subtract [name of plaintiff]’s actual profit, which you
determined in the second step, from [his/her/its] estimated total
profit, which you determined in the first step. The resulting
amount is [name of plaintiff]’s lost profit.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773−774 [149
Cal.Rptr.3d 614, 288 P.3d 1237].)
• “Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. This is especially true where, as
here, it is the wrongful acts of the defendant that have created the difficulty in
proving the amount of loss of profits or where it is the wrongful acts of the
defendant that have caused the other party to not realize a profit to which that
party is entitled.” (GHK Associates v. Mayer Group (1990) 224 Cal.App.3d 856,
873–874 [274 Cal.Rptr. 168], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may
be recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 774].)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “Unestablished businesses have been permitted to claim lost profit damages in
situations where owners have experience in the business they are seeking to
establish, and where the business is in an established market.” (Resort Video,
Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698–1699 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “Even if [plaintiff] was able to provide credible evidence of lost profits, it must
be remembered that ‘[w]hen loss of anticipated profits is an element of
damages, it means net and not gross profits.’ Net profits are the gains made
from sales ‘after deducting the value of the labor, materials, rents, and all
expenses, together with the interest of the capital employed.’ ” (Resort Video,
165
166
168
169
bargain damages’ measured by the difference between the contract price and the
fair market value on the date of the breach.” (Reese v. Wong (2001) 93
Cal.App.4th 51, 56 [112 Cal.Rptr.2d 669], internal citation omitted.)
• “It is settled that when a seller of real property fails or refuses to convey, a
buyer who has made advance payments toward the purchase price may recover
interest on those payments as damages for breach of contract. This rule is not
limited to sales of real property; it applies to sales in general.” (Al-Husry v.
Nilsen Farms Mini-Market, Inc. (1994) 25 Cal.App.4th 641, 648 [31
Cal.Rptr.2d 28], internal citations omitted.)
• Section 3306 does not ordinarily apply to breach of an unexercised option to
buy property. (Schmidt v. Beckelman (1960) 187 Cal.App.2d 462, 470–471 [9
Cal.Rptr. 736].)
• “ ‘Generally, [consequential] damages are those which, in view of all facts
known by the parties at the time of the making of the contract, may reasonably
be supposed to have been considered as a likely consequence of a breach in the
ordinary course of events. This provision would conform the measure of
damages in real property conveyance breaches to the general contract measure
of damages which is specified in Civil Code 3300: “. . . all the detriment
proximately caused (by the breach), or which, in the ordinary course of things,
would be likely to result therefrom.” ’ ” (Stevens Group Fund IV v. Sobrato
Development Co. (1991) 1 Cal.App.4th 886, 892 [2 Cal.Rptr.2d 460], quoting
the Assembly Committee on Judiciary.)
• “Moreover, in none of the foregoing cases does it appear that the buyer
demonstrated the existence of the other requisites for an award of consequential
or special damages, i.e., that the seller knew of the buyer’s purpose in
purchasing the property and that the anticipated profits were proved with
reasonable certainty as to their occurrence and amount.” (Greenwich S.F., LLC,
supra, 190 Cal.App.4th at p. 757.)
• “The plain language of section 3306, adding consequential damages to the
general damages and other specified damages recoverable for breach of a
contract to convey real property, the legislative history of the 1983 amendment
acknowledging that the addition of consequential damages would conform the
measure of damages to the general contract measure of damages, and the
generally accepted inclusion of lost profits as a component of consequential or
special damages in other breach of contract contexts and by other states in the
context of breach of contracts to convey real property, taken together, persuade
us that lost profits may be awarded as part of consequential damages under
section 3306 upon a proper showing.” (Greenwich S.F., LLC, supra, 190
Cal.App.4th at p. 758, internal citations omitted.)
• “Rents received from the lease of the property in this case are not properly an
item of consequential damages. Here, plaintiff introduced evidence as to the fair
market value of the property which included these profits. To allow these as
consequential damages under these circumstances would have permitted a
171
double recovery for plaintiff.” (Stevens Group Fund IV, supra, 1 Cal.App.4th at
p. 892.)
• “The phrase ‘to enter upon the land’ refers to the taking of possession rather
than to things done to put the land to general use.” (Crag Lumber Co. v.
Crofoot (1956) 144 Cal.App.2d 755, 779 [301 P.2d 952].)
• “We think the phrase ‘and interest’ should continue to be read as referring to
the generally applicable provisions of [Civil Code] section 3287 regarding
prejudgment interest. As amended in 1967, subdivision (a) of section 3287
establishes a right to recover prejudgment interest on damages ‘capable of being
made certain by calculation’ and subdivision (b) gives the court general
discretionary authority to award prejudgment interest where damages are ‘based
upon a cause of action in contract . . . .’ The discretionary authority conferred
by subdivision (b) will ordinarily apply to loss-of-bargain damages measured by
the contract price/market value differential.” (Rifkin v. Achermann (1996) 43
Cal.App.4th 391, 397 [50 Cal.Rptr.2d 661].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 898–900
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.) Breach
of Seller-Buyer Agreements, §§ 4.11–4.14
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
11-D, Buyer’s Remedies Upon Seller’s Breach—Damages And Specific
Performance, ¶ 11:184 (The Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
172
diligently attempted resale after the buyer has breached the contract.” (Askari v.
R & R Land Co. (1986) 179 Cal.App.3d 1101, 1107 [225 Cal.Rptr. 285],
internal citation omitted.)
• “[I]f the property increases in value before trial and the vendor resells the
property at a price higher than the value of the contract, there are no longer any
loss of bargain damages.” (Spurgeon v. Drumheller (1985) 174 Cal.App.3d 659,
664 [220 Cal.Rptr. 195].)
• “The same rule of no loss of bargain damages to the vendor applies where the
resale is for the same price as the contract price.” (Spurgeon, supra, 174
Cal.App.3d at p. 664, internal citations omitted.)
• “For the reason that no loss of bargain damages are available to a seller if there
is a resale at the same or a higher price than the contract price, the law imposes
on the seller of the property the duty to exercise diligence and to make a resale
within the shortest time possible. In discussing the duty to mitigate where the
vendee seeks return of a deposit, the Sutter court states the requirement that
resales be made with reasonable diligence ‘states a policy applicable to resales
of real property. Whether the resale is made one, two or three months later, or
whether it be a year or more, it should be made with reasonable diligence to
qualify the vendor to an allowance of an off-set against the vendee’s claim for
restitution of money paid.’ ” (Spurgeon, supra, 174 Cal.App.3d at p. 665,
internal citations omitted.)
• “Although it is well settled in the foregoing authorities that damages under
Civil Code section 3307 for the difference between the contract price and
property value may be insufficient to give the vendor the benefit of his bargain
and he is entitled also to resale expenses and some costs of continued
ownership, he should not be permitted to receive a windfall at the purchaser’s
expense.” (Smith v. Mady (1983) 146 Cal.App.3d 129, 133 [194 Cal.Rptr. 42].)
• “Inasmuch as under Abrams and Sutter the vendor has an obligation to resell
promptly in order to obtain consequential damages and the resale price may fix
the property value as a basis for Civil Code section 3307 damages, we are
impelled to conclude that there is no inherent separateness in the original sale
and subsequent resale transactions. The increased resale price should not be
disregarded in considering an offset to consequential damages awarded to a
vendor against a defaulting purchaser of real property.” (Smith, supra, 146
Cal.App.3d at p. 133.)
• “The owner of real or personal property may competently testify to its value.”
(Newhart, supra, 254 Cal.App.2d at p. 789, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 901–906
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.),
Breach of Seller-Buyer Agreements, §§ 4.37–4.43
California Practice Guide: Real Property Transactions (The Rutter Group 2000),
174
175
expense. However, the injured party is not precluded from recovery to the
extent that he has made reasonable but unsuccessful efforts to avoid loss.”
(Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226
Cal.App.3d 442, 460 [277 Cal.Rptr. 40], internal citations omitted.)
• “The burden of proving that losses could have been avoided by reasonable
effort and expense must always be borne by the party who has broken the
contract. Inasmuch as the law denies recovery for losses that can be avoided by
reasonable effort and expense, justice requires that the risks incident to such
effort should be carried by the party whose wrongful conduct makes them
necessary. Therefore, special losses that a party incurs in a reasonable effort to
avoid losses resulting from a breach are recoverable as damages.” (Brandon &
Tibbs, supra, 226 Cal.App.3d at pp. 460–461, internal citations omitted.)
Secondary Sources
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.56
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.77
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
177
To recover for future harm, [name of plaintiff] must prove that the harm
is reasonably certain to occur and must prove the amount of those
future damages. The amount of damages for future harm must be
reduced to present cash value. This is necessary because money received
now will, through investment, grow to a larger amount in the future.
[Name of defendant] must prove the amount by which future damages
should be reduced to present value.
To find present cash value, you must determine the amount of money
that, if reasonably invested today, will provide [name of plaintiff] with
the amount of [his/her/its] future damages.
[You may consider expert testimony in determining the present cash
value of future damages.] [You must use [the interest rate of
percent/ [and] [specify other stipulated information]] agreed to by the
parties in determining the present cash value of future damages.]
• “If the breach is partial only, the injured party may recover damages for non-
performance only to the time of trial and may not recover damages for
anticipated future non-performance. Furthermore, even if a breach is total, the
injured party may treat it as partial, unless the wrongdoer has repudiated the
contract. The circumstances of each case determine whether an injured party
may treat a breach of contract as total.” (Coughlin, supra, 41 Cal.2d at pp.
598–599, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1552
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.09[3]
179
If you decide that [name of defendant] breached the contract but also
that [name of plaintiff] was not harmed by the breach, you may still
award [him/her/it] nominal damages such as one dollar.
180
182
defendant received money ‘intended to be used for the benefit of [the plaintiff],’
that the money was not used for the plaintiff’s benefit, and that the defendant
has not given the money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013)
212 Cal.App.4th 1439, 1454 [151 Cal.Rptr.3d 804], internal citations omitted.)
• “ ‘The action for money had and received is based upon an implied promise
which the law creates to restore money which the defendant in equity and good
conscience should not retain. The law implies the promise from the receipt of
the money to prevent unjust enrichment. The measure of the liability is the
amount received.’ Recovery is denied in such cases unless the defendant himself
has actually received the money.” (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95
P.2d 927], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘This kind of action to recover back money which ought not in justice to be
kept is very beneficial, and, therefore, much encouraged. It lies for money paid
by mistake, or upon a consideration which happens to fail, or extortion, or
oppression, or an undue advantage of the plaintiff’s situation contrary to the
laws made for the protection of persons under those circumstances.’ ” (Minor v.
Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
184
185
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “To recover on a claim for the reasonable value of services under a quantum
meruit theory, a plaintiff must establish both that he or she was acting pursuant
to either an express or implied request for services from the defendant and that
the services rendered were intended to and did benefit the defendant.” (Ochs v.
PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d 734],
internal citation omitted.)
• “[W]here services have been rendered under a contract which is unenforceable
because not in writing, an action generally will lie upon a common count for
quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76
Cal.App.4th 990, 996 [90 Cal.Rptr.2d 665].)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
187
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.25, 121.55–121.58 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, §§ 44.33, 44.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
188
a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d
155], internal citations omitted.)
• “A book account may furnish the basis for an action on a common count
‘ “. . . when it contains a statement of the debits and credits of the transactions
involved completely enough to supply evidence from which it can be
reasonably determined what amount is due to the claimant.” ’ A book account is
described as ‘open’ when the debtor has made some payment on the account,
leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens,
Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal
citations and footnote omitted.)
• “[T]he most important characteristic of a suit brought to recover a sum owing
on a book account is that the amount owed is determined by computing all of
the credits and debits entered in the book account.” (Interstate Group
Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
• “It is apparent that the mere entry of dates and payments of certain sums in the
credit column of a ledger or cash book under the name of a particular
individual, without further explanation regarding the transaction to which they
apply, may not be deemed to constitute a ‘book account’ upon which an action
in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671,
679 [107 P.2d 434].)
• “The law does not prescribe any standard of bookkeeping practice which all
must follow, regardless of the nature of the business of which the record is
kept. We think it makes no difference whether the account is kept in one book
or several so long as they are permanent records, and constitute a system of
bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop
(1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim. . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned . . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
190
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.20, 8.47 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.28 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
191
• “To be an account stated, ‘it must appear that at the time of the statement an
indebtedness from one party to the other existed, that a balance was then struck
and agreed to be the correct sum owing from the debtor to the creditor, and that
the debtor expressly or impliedly promised to pay to the creditor the amount
thus determined to be owing.’ The agreement necessary to establish an account
stated need not be express and is frequently implied from the circumstances.
When a statement is rendered to a debtor and no reply is made in a reasonable
time, the law implies an agreement that the account is correct as rendered.
Actions on accounts stated frequently arise from a series of transactions which
also constitute an open book account. However, an account stated may be found
in a variety of commercial situations. The acknowledgement of a debt
consisting of a single item may form the basis of a stated account. The key
element in every context is agreement on the final balance due.” (Maggio, Inc.
v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal
citations omitted.)
• “An account stated need not be submitted by the creditor to the debtor. A
statement expressing the debtor’s assent and acknowledging the agreed amount
of the debt to the creditor equally establishes an account stated.” (Truestone,
Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209
Cal.Rptr. 757], internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “The account stated may be attacked only by proof of ‘fraud, duress, mistake,
or other grounds cognizable in equity for the avoidance of an instrument.’ The
defendant ‘will not be heard to answer when action is brought upon the account
stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103
Cal.App.3d at p. 787, internal citations omitted.)
• “An account stated need not cover all the dealings or claims between the
parties. There may be a partial settlement and account stated as to some of the
transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
193
194
does not obtain what he expected in return is entitled to restitution from the
other if the mistake was induced:
(a) by the fraud of the payee, or
(b) by his innocent and material misrepresentation, or
(c) by the fraud or material misrepresentation of a person purporting
to act as the payee’s agent, or
(d) by the fraud or material misrepresentation of a third person,
provided that the payee has notice of the fraud or representation
before he has given or promised something of value.
• “Money paid upon a mistake of fact may be recovered under the common count
of money had and received. The plaintiff, however negligent he may have been,
may recover if his conduct has not altered the position of the defendant to his
detriment.” (Thresher v. Lopez (1921) 52 Cal.App. 219, 220 [198 P. 419],
internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
196
197
[Name of plaintiff] claims that the parties entered into a valid contract in
which [some of] the required terms were supplied by [specify electronic
means, e.g., e-mail messages]. If the parties agree, they may form a
binding contract using an electronic record. An “electronic record” is
one created, generated, sent, communicated, received, or stored by
electronic means. [E.g., E-Mail] is an electronic record.
[Name of plaintiff] must prove, based on the context and surrounding
circumstances, including the conduct of the parties, that the parties
agreed to use [e.g., e-mail] to formalize their agreement.
[[Name of plaintiff] must have sent the contract documents to [name of
defendant] in an electronic record capable of retention by [name of
defendant] at the time of receipt. An electronic record is not capable of
retention by the recipient if the sender or its information processing
system limits or prohibits the ability of the recipient to print or store it.]
executed or adopted by a person with the intent to sign the electronic record. (Civ.
Code, § 1633.2(h); see Gov. Code, § 16.5(d) (digital signature).) The validity of an
electronic signature under this definition would most likely be a question of law for
the court. If there is an issue of fact with regard to the parties’ intent to use
electronic signatures, this instruction will need to be modified accordingly.
Sources and Authority
• “Electronic Record” Defined Under UETA. Civil Code section 1633.2(g).
• “Electronic Signature” Defined Under UETA. Civil Code section 1633.2(h).
• Exclusions Under UETA. Civil Code section 1633.3(b).
• Agreement to Conduct Transaction by Electronic Means. Civil Code section
1633.5(b).
• Enforceability of Electronic Transactions. Civil Code section 1633.7.
• Providing Required Information by Electronic Means. Civil Code section
1633.8(a).
• Attributing Electronic Record or Signature to Person. Civil Code section
1633.9.
• “ ‘Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties’ conduct. . . . ‘The absence of an explicit agreement to conduct the
transaction by electronic means is not determinative; however, it is a relevant
factor to consider.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
Cal.App.4th 974, 989 [182 Cal.Rptr.3d 154].)
• “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform
Electronic Transactions Act, an electronic signature has the same legal effect as
a handwritten signature.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232
Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781], internal citations omitted.)
• “Civil Code section 1633.9 addresses how a proponent of an electronic
signature may authenticate the signature—that is, show the signature is, in fact,
the signature of the person the proponent claims it is.” (Ruiz, supra, 232
Cal.App.4th at p. 843.)
• “We agree that a printed name or some other symbol might, under specific
circumstances, be a signature under UETA . . . .” (J.B.B. Investment Partners,
Ltd., supra, 232 Cal.App.4th at p. 988.)
• “The trial court’s analysis was incomplete. Attributing the name on an e-mail to
a particular person and determining that the printed name is ‘[t]he act of [this]
person’ is a necessary prerequisite but is insufficient, by itself, to establish that
it is an ‘electronic signature.’ . . . UETA defines the term ‘electronic signature.’
Subdivision (h) of section 1633.2 states that ‘ “[e]lectronic signature” means an
electronic sound, symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the intent to sign
199
the electronic record.’ (Italics added; see CACI No. 380 [party suing to enforce
an agreement formalized by electronic means must prove ‘based on the context
and surrounding circumstances, including the conduct of the parties, that the
parties agreed to use [e.g., e-mail] to formalize their agreement . . .]’ ” (J.B.B.
Investment partners, supra, 232 Cal.App.4th at pp. 988–989, original italics.)
• “In the face of [plaintiff]’s failure to recall electronically signing the 2011
agreement, the fact the 2011 agreement had an electronic signature on it in the
name of [plaintiff], and a date and time stamp for the signature, was insufficient
to support a finding that the electronic signature was, in fact, ‘the act of’
[plaintiff].” (Ruiz, supra, 232 Cal.App.4th at p. 844.)
• “[W]hether [defendant]’s printed name constituted an ‘electronic signature’
within the meaning of UETA or under the law of contract, are legal
issues . . . .” (J.B.B. Investment Partners, Ltd., supra, 232 Cal.App.4th at p.
984.)
Secondary Sources
7 Witkin, Summary of California Law (10th ed. 2005) Contracts § 11
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 15, Attacking
or Defending Existence of Contract—Failure to Comply With Applicable
Formalities, 15.32
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.26
(Matthew Bender)
27 California Legal Forms: Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.17 (Matthew Bender)
381–399. Reserved for Future Use
200
VF-300 CONTRACTS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010, June 2011, June 2013, June 2015
Directions for Use
This verdict form is based on CACI No. 303, Breach of Contract—Essential
Factual Elements. This form is intended for use in most contract disputes. If more
specificity is desired, see verdict forms that follow.
202
CONTRACTS VF-300
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Optional questions 2 and 3 address acts that the plaintiff must have performed
before the defendant’s duty to perform is triggered. Include question 2 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence.
(DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 4 and 5 address conditions precedent, not the defendant’s
nonperformance after the conditions have all occurred or been excused. The
defendant’s nonperformance is the first option for question 6. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an
additional question on excuse or waiver should be included after question 6.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
203
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
CONTRACTS VF-301
need to be modified depending on the facts of the case. This form is not a stand-
alone verdict form. It may be incorporated into VF-300, Breach of Contract, if the
elements of the affirmative defense are at issue.
This verdict form is based on CACI No. 330, Affırmative Defense—Unilateral
Mistake of Fact. The verdict forms do not address all available affirmative
defenses. The parties may need to create their own verdict forms to fit the issues
involved in the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
205
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
CONTRACTS VF-302
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
207
CONTRACTS VF-303
209
VF-303 CONTRACTS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
CONTRACTS VF-303
211
CONTRACTS VF-304
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
VF-304 CONTRACTS
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence.
(DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].) Note that questions 4 and 5 address
conditions precedent, not the defendant’s nonperformance after the conditions have
all occurred or been excused.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories. If counts for both breach of express
contractual terms and breach of the implied covenant are alleged, this verdict form
may be combined with CACI No. VF-300, Breach of Contract. Use VF-3920 to
direct the jury to separately address the damages awarded on each count and to
avoid the jury’s awarding the same damages on both counts. (See Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr. 387].)
VF-305–VF-399. Reserved for Future Use
214
NEGLIGENCE
NEGLIGENCE
NEGLIGENCE
217
New September 2003; Revised June 2005, December 2007, December 2011
Directions for Use
In medical malpractice or professional negligence cases, the word “medical” or
“professional” should be added before the word “negligence” in the first paragraph.
The word “harm” is used throughout these instructions, instead of terms like “loss,”
“injury,” and “damage,” because “harm” is all-purpose and suffices in their place.
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless
clearly supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d
108, 112 [70 Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d
496].)
• “[T]he existence of a duty is a question of law for the court.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
• “In the Rowland [Rowland, supra, 69 Cal.2d at p. 113] decision, this court
identified several considerations that, when balanced together, may justify a
departure from the fundamental principle embodied in Civil Code section 1714:
‘the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to the defendant’s
218
conduct, the policy of preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.’ As we have also explained, however, in the
absence of a statutory provision establishing an exception to the general rule of
Civil Code section 1714, courts should create one only where ‘clearly supported
by public policy.’ ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771
[122 Cal.Rptr.3d 313, 248 P.3d 1170], internal citations omitted.)
• “[T]he concept of foreseeability of risk of harm in determining whether a duty
should be imposed is to be distinguished from the concept of “ ‘foreseeability”
in two more focused, fact-specific settings’ to be resolved by a trier of fact.
‘First, the [trier of fact] may consider the likelihood or foreseeability of injury
in determining whether, in fact, the particular defendant’s conduct was negligent
in the first place. Second, foreseeability may be relevant to the [trier of fact’s]
determination of whether the defendant’s negligence was a proximate or legal
cause of the plaintiff’s injury.’ ” (Burns v. Neiman Marcus Group, Inc. (2009)
173 Cal.App.4th 479, 488, fn. 8 [93 Cal.Rptr.3d 130], internal citation omitted.)
• “By making exceptions to Civil Code section 1714’s general duty of ordinary
care only when foreseeability and policy considerations justify a categorical
no-duty rule, we preserve the crucial distinction between a determination that
the defendant owed the plaintiff no duty of ordinary care, which is for the court
to make, and a determination that the defendant did not breach the duty of
ordinary care, which in a jury trial is for the jury to make. . . . While the court
deciding duty assesses the foreseeability of injury from ‘the category of
negligent conduct at issue,’ if the defendant did owe the plaintiff a duty of
ordinary care the jury ‘may consider the likelihood or foreseeability of injury in
determining whether, in fact, the particular defendant’s conduct was negligent in
the first place.’ An approach that instead focused the duty inquiry on case-
specific facts would tend to ‘eliminate the role of the jury in negligence cases,
transforming the question of whether a defendant breached the duty of care
under the facts of a particular case into a legal issue to be decided by the
court . . . .’ ” (Cabral, supra, 51 Cal.4th at pp. 772–773, original italics,
internal citations omitted.)
• “[W]hile foreseeability with respect to duty is determined by focusing on the
general character of the event and inquiring whether such event is ‘likely
enough in the setting of modern life that a reasonably thoughtful [person] would
take account of it in guiding practical conduct’, foreseeability in evaluating
negligence and causation requires a ‘more focused, fact-specific’ inquiry that
takes into account a particular plaintiff’s injuries and the particular defendant’s
conduct.” (Laabs v. Southern California Edison Company (2009) 175
Cal.App.4th 1260, 1273 [97 Cal.Rptr.3d 241], internal citation omitted.)
• “[Defendant] relies on the rule that a person has no general duty to safeguard
another from harm or to rescue an injured person. But that rule has no
application where the person has caused another to be put in a position of peril
219
of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227
Cal.App.4th 879, 883 [174 Cal.Rptr.3d 339].)
• “ ‘Typically, in special relationships, “the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some control over the
plaintiff’s welfare. [Citation.]” [Citation.] A defendant who is found to have a
“special relationship” with another may owe an affirmative duty to protect the
other person from foreseeable harm, or to come to the aid of another in the face
of ongoing harm or medical emergency.’ ” (Carlsen, supra, 227 Cal.App.4th at
p. 893.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 831–838, 860–862,
865, 866
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.4–1.18
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01–1.31,
Ch. 2, Causation, §§ 2.01–2.11, Ch. 3, Proof of Negligence, §§ 3.01–3.34 (Matthew
Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.10
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.10, 165.20
(Matthew Bender)
220
221
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 867, 868
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01, 1.02,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
222
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.121, 165.190
(Matthew Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors (Matthew
Bender)
224
225
404. Intoxication
226
228
New September 2003; Revised June 2006, December 2007, December 2009, June
2011
Directions for Use
This instruction is designed to assist the jury in completing CACI No. VF-402,
Negligence—Fault of Plaintiff and Others at Issue, which must be given in a
multiple-tortfeasor case to determine comparative fault. VF-402 is designed to
compare the conduct of all defendants, the conduct of the plaintiff, and the conduct
of any nonparty tortfeasors.
Throughout, select “fault” if there is a need to allocate responsibility between
tortfeasors whose alleged liability is based on conduct other than negligence, e.g.,
strict products liability.
Include the first paragraph if the defendant has presented evidence that the conduct
of one or more nonparties contributed to the plaintiff’s harm. (See Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 33 [117 Cal.Rptr.3d 791] [defendant has
burden to establish concurrent or alternate causes].) “Nonparties” include the
universe of tortfeasors who are not present at trial, including defendants who
settled before trial and nonjoined alleged tortfeasors. (Dafonte v. Up-Right (1992) 2
229
Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the
defendant concedes some degree of liability.
If the plaintiff’s comparative fault is also at issue, give CACI No. 405,
Comparative Fault of Plaintiff, in addition to this instruction.
Include the last paragraph if any of the defendants or others alleged to have
contributed to the plaintiff’s harm is not an individual.
Sources and Authority
• Proposition 51. Civil Code section 1431.2.
• “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a
proximate cause of an indivisible injury remains liable for the total amount of
damages, diminished only ‘in proportion to the amount of negligence
attributable to the person recovering.’ ” (American Motorcycle Assn. v. Superior
Court (1978) 20 Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v.
Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “In light of Li, however, we think that the long-recognized common law
equitable indemnity doctrine should be modified to permit, in appropriate cases,
a right of partial indemnity, under which liability among multiple tortfeasors
may be apportioned on a comparative negligence basis. . . . Such a doctrine
conforms to Li’s objective of establishing ‘a system under which liability for
damage will be borne by those whose negligence caused it in direct proportion
to their respective fault.’ ” (American Motorcycle Assn., supra, 20 Cal.3d at p.
583.)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability. The doctrine “is a flexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other theories
of responsibility), in order to arrive at an ‘equitable apportionment or allocation
of loss.’ ” [Citation.]’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th
1270, 1285 [164 Cal.Rptr.3d 112].)
• “[A] ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault responsible for the
plaintiff’s injuries, not merely that of ‘defendant[s]’ present in the lawsuit.”
(Dafonte, supra, 2 Cal.4th at p. 603, original italics.)
• “The proposition that a jury may apportion liability to a nonparty has been
adopted in the Judicial Council of California Civil Jury Instructions (CACI)
special verdict form applicable to negligence cases. (See CACI Verdict Form
402 and CACI Instruction No. 406 [‘[Verdict Form] 402 is designed to compare
the conduct of all defendants, the conduct of the plaintiff, and the conduct of
any nonparty tortfeasors. [¶] . . . [¶] . . . “Nonparties” include the universe of
tortfeasors who are not present at trial, including defendants who settled before
trial and nonjoined alleged tortfeasors.’].” (Vollaro v. Lispi (2014) 224
230
Cal.App.4th 93, 100 fn. 5 [168 Cal.Rptr.3d 323], internal citation omitted.)
• “[U]nder Proposition 51, fault will be allocated to an entity that is immune
from paying for its tortious acts, but will not be allocated to an entity that is not
a tortfeasor, that is, one whose actions have been declared not to be tortious.”
(Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d
695], original italics.)
• “A defendant bears the burden of proving affirmative defenses and indemnity
cross-claims. Apportionment of noneconomic damages is a form of equitable
indemnity in which a defendant may reduce his or her damages by establishing
others are also at fault for the plaintiff’s injuries. Placing the burden on
defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly
onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d
336].)
• “[T]here must be substantial evidence that a nonparty is at fault before damages
can be apportioned to that nonparty.” (Scott v. C. R. Bard, Inc. (2014) 231
Cal.App.4th 763, 785 [180 Cal.Rptr.3d 479].)
• “When a defendant is liable only by reason of a derivative nondelegable duty
arising from his status as employer or landlord or vehicle owner or
coconspirator, or from his role in the chain of distribution of a single product in
a products liability action, his liability is secondary (vicarious) to that of the
actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v.
Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics,
internal citations omitted.)
• “Under the doctrine of strict products liability, all defendants in the chain of
distribution are jointly and severally liable, meaning that each defendant can be
held liable to the plaintiff for all damages the defective product caused.”
(Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [169
Cal.Rptr.3d 208].)
• Proposition 51 does not apply in a strict products liability action when a single
defective product produced a single injury to the plaintiff. That is, all the
defendants in the stream of commerce of that single product remain jointly and
severally liable. . . . [I]n strict products liability asbestos exposure actions, . . .
Proposition 51 applies when there are multiple products that caused the
plaintiff’s injuries and there is evidence that provides a basis to allocate fault for
noneconomic damages between the defective products.” (Romine, supra, 224
Cal.App.4th at pp. 1011–1012, internal citations omitted.)
• “[T]he jury found that defendants are parties to a joint venture. The incidents of
a joint venture are in all important respects the same as those of a partnership.
One such incident of partnership is that all partners are jointly and severally
liable for partnership obligations, irrespective of their individual partnership
interests. Because joint and several liability arises from the partnership or joint
venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni
(2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citations
231
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 50, 52–56, 59, 60,
63, 64, 68
Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And
Judgment, ¶ 9:662.3 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52–1.59
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and
Contribution, § 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04
et seq. (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380
(Matthew Bender)
232
233
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013
Directions for Use
This instruction sets forth a plaintiff’s response to the affirmative defense of
primary assumption of risk asserted by a defendant who was a coparticipant in the
sport or other recreational activity. For an instruction applicable to coaches,
instructors, or trainers, see CACI No. 409, Primary Assumption of Risk—Liability
of Instructors, Trainers, or Coaches. For an instruction applicable to facilities
owners and operators and to event sponsors, see CACI No. 410, Primary
Assumption of Risk—Liability of Facilities Owners and Operators and Event
Sponsors.
Primary assumption of risk generally absolves the defendant of a duty of care
toward the plaintiff with regard to injury incurred in the course of a sporting or
other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3
Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].) Element 1 sets forth the
exceptions in which there is a duty.
While duty is generally a question of law, there may be disputed facts that must be
resolved by a jury before it can be determined if the doctrine applies. (See Shin v.
Ahn (2007) 42 Cal.4th 482, 486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
234
totally outside the range of the ordinary activity involved in the sport.’ ” (Shin,
supra, 42 Cal.4th at p. 497.)
• “[W]hether defendant breached the limited duty of care he owed other golfers
by engaging in conduct that was ‘so reckless as to be totally outside the range
of the ordinary activity involved in [golf]’ depends on resolution of disputed
material facts. Thus, defendant’s summary judgment motion was properly
denied.” (Shin, supra, 42 Cal.4th at p. 486, internal citation omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of
further defining [defendant]’s duty, which would be a question of law for the
court. Rather, it requires application of the governing standard of care (the duty
not to increase the risks inherent in the sport) to the facts of this particular
case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski
Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of
snowboard jump increased inherent risks of snowboarding is question for jury];
Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial
jumps built by resort increased inherent risk of falling while skiing is question
for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th
112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor
league baseball team’s mascot increased inherent risk of spectator being hit by a
foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra,
138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84
Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court
to determine whether defendant’s conduct increased the risk inherent in
participating in a particular sport, but that trial court may receive expert
testimony on the customary practices in the sport to make that determination].)
[¶] Our conclusion it is for the trier of fact to determine whether [defendant]
breached his limited duty not to increase the risks inherent in the sport of
volleyball finds solid support in the Supreme Court’s most recent sports injury,
primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a
case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112–113 [86
Cal.Rptr.3d 588].)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question
of law and based on the general characteristics of the sport activity and the
parties’ relationship to it.” ((Griffın v. The Haunted Hotel, Inc. (2015) 242
Cal.App.4th 490, 501 [194 Cal.Rptr.3d 830].)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a
236
defendant’s duty of care in the primary assumption of risk context “is a legal
question which depends on the nature of the sport or activity . . . and on the
parties’ general relationship to the activity, and is an issue to be decided by the
court, rather than the jury.” ’ This statement of the rule is correct where there is
no dispute about the inherent risks, and such cases may be resolved on
summary judgment. [¶] However this statement is overly broad. Although the
risks inherent in many activities are not subject to reasonable dispute (e.g.,
being hit with a baseball during a game), the risks inherent in some activities
are not commonly known. In such cases, expert testimony may be required
‘ “for purposes of weighing whether the inherent risks of the activity were
increased by the defendant’s conduct.” ’ Thus, it is not entirely accurate to say
inherent risks of an activity always present purely legal questions, because
sometimes the nature of an activity and its risks must be gleaned from the
evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics.)
• “[Plaintiff] has repeatedly argued that primary assumption of the risk does not
apply because she did not impliedly consent to having a weight dropped on her
head. However, a plaintiff’s expectation does not define the limits of primary
assumption of the risk. ‘Primary assumption of risk focuses on the legal
question of duty. It does not depend upon a plaintiff’s implied consent to injury,
nor is the plaintiff’s subjective awareness or expectation relevant.’ ” (Cann v.
Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)
• “A jury could find that, by using a snowboard without the retention strap, in
violation of the rules of the ski resort and a county ordinance, defendant
unnecessarily increased the danger that his snowboard might escape his control
and injure other participants such as plaintiff. The absence of a retention strap
could therefore constitute conduct not inherent to the sport which increased the
risk of injury.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 829 [89
Cal.Rptr.2d 519].)
• “The existence and scope of a defendant’s duty depends on the role that
defendant played in the activity. Defendants were merely the hosts of a social
gathering at their cattle ranch, where [plaintiff] asked to ride one of their
horses; they were not instructors and did not assume any of the responsibilities
of an instructor.” (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1550–1551
[98 Cal.Rptr.3d 779], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Whether a duty exists ‘does not turn on the reasonableness or
unreasonableness of the plaintiff’s conduct, but rather on [(1)] the nature of the
activity or sport in which the defendant is engaged and [(2)] the relationship of
the defendant and the plaintiff to that activity or sport.’ It is the ‘nature of the
237
activity’ and the parties’ relationship to it that determines whether the doctrine
applies—not its characterization as a sporting event.” (McGarry v. Sax (2008)
158 Cal.App.4th 983, 999–1000 [70 Cal.Rptr.3d 519], internal citations
omitted.)
• “[T]o the extent that ‘ “ ‘a plaintiff unreasonably undertakes to encounter a
specific known risk imposed by a defendant’s negligence,’ ” ’ he or she is
subject to the defense of comparative negligence but not to an absolute defense.
This type of comparative negligence has been referred to as ‘ “secondary
assumption of risk.” ’ Assumption of risk that is based upon the absence of a
defendant’s duty of care is called ‘ “primary assumption of risk.” ’ ‘First, in
“primary assumption of risk” cases—where the defendant owes no duty to
protect the plaintiff from a particular risk of harm—a plaintiff who has suffered
such harm is not entitled to recover from the defendant, whether the plaintiff’s
conduct in undertaking the activity was reasonable or unreasonable. Second, in
“secondary assumption of risk” cases—involving instances in which the
defendant has breached the duty of care owed to the plaintiff—the defendant is
not entitled to be entirely relieved of liability for an injury proximately caused
by such breach, simply because the plaintiff’s conduct in encountering the risk
of such an injury was reasonable rather than unreasonable.’ ” (Kindrich v. Long
Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1259 [84 Cal.Rptr.3d 824],
original italics, internal citations omitted.)
• “Even were we to conclude that [plaintiff]’s decision to jump off the boat was a
voluntary one, and that therefore he assumed a risk inherent in doing so, this is
not enough to provide a complete defense. Because voluntary assumption of
risk as a complete defense in a negligence action was abandoned in Li v. Yellow
Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226], only
the absence of duty owed a plaintiff under the doctrine of primary assumption
of risk would provide such a defense. But that doctrine does not come into play
except when a plaintiff and a defendant are engaged in certain types of
activities, such as an ‘active sport.’ That was not the case here; plaintiff was
merely the passenger on a boat. Under Li, he may have been contributorily
negligent but this would only go to reduce the amount of damages to which he
is entitled.” (Kindrich, supra, 167 Cal.App.4th at p. 1258.)
• “Though most cases in which the doctrine of primary assumption of risk exists
involve recreational sports, the doctrine has been applied to dangerous activities
in other contexts (see, e.g., Saville v. Sierra College (2005) 133 Cal.App.4th
857 [36 Cal.Rptr.3d 515] [training in peace officer takedown maneuvers];
Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 [2
Cal.Rptr.3d 168] [training on physical restraint methods]; Aaris v. Las Virgenes
Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal.Rptr.2d 801] [practice
of cheerleader routines]; [Bushnell v. Japanese-American Religious & Cultural
Center], 43 Cal.App.4th 525 [50 Cal.Rptr.2d 671] [practice of moves in judo
class]; and Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [53
Cal.Rptr.2d 713] [injury to nurse’s aide by nursing home patient]).” (McGarry,
238
239
New September 2003; Revised April 2004, June 2012, December 2013
Directions for Use
This instruction sets forth a plaintiff’s response to a defendant’s assertion of the
affirmative defense of primary assumption of risk. Primary assumption of risk
generally absolves the defendant of a duty of care toward the plaintiff with regard
to injury incurred in the course of a sporting or other recreational activity covered
by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2,
834 P.2d 696].)
There are exceptions, however, in which there is a duty of care. Use the first option
for element 2 if it is alleged that the coach or trainer intended to cause the
student’s injury or engaged in conduct totally outside the range of the ordinary
activity involved in teaching or coaching the sport or activity. Use the second
option if it is alleged that the coach’s or trainer’s failure to use ordinary care
increased the risk of injury to the plaintiff, for example, by encouraging or
allowing him or her to participate in the sport or activity when he or she was
physically unfit to participate or by allowing the plaintiff to use unsafe equipment
or instruments. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120
240
Cal.Rptr.3d 90].) If the second option is selected, also give CACI No. 400,
Negligence—Essential Factual Elements.
While duty is a question of law, courts have held that whether the defendant has
unreasonably increased the risk is a question of fact for the jury. (See Luna v. Vela
(2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited
therein].) There may also be disputed facts that must be resolved by a jury before it
can be determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482,
486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 408, Primary Assumption of Risk—Liability of Coparticipant in Sport or
Other Recreational Activity. For an instruction on primary assumption of risk
applicable to facilities owners and operators and to event sponsors, see CACI No.
410, Primary Assumption of Risk—Liability of Facilities Owners and Operators
and Event Sponsors.
Sources and Authority
• “In order to support a cause of action in cases in which it is alleged that a
sports instructor has required a student to perform beyond the student’s capacity
or without providing adequate instruction, it must be alleged and proved that
the instructor acted with intent to cause a student’s injury or that the instructor
acted recklessly in the sense that the instructor’s conduct was ‘totally outside
the range of the ordinary activity’ involved in teaching or coaching the sport.”
(Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4
Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply
to skateboarding”], internal citations omitted.)
• “Here, we do not deal with the relationship between coparticipants in a sport, or
with the duty that an operator may or may not owe to a spectator. Instead, we
deal with the duty of a coach or trainer to a student who has entrusted himself
to the former’s tutelage. There are precedents reaching back for most of this
century that find an absence of duty to coparticipants and, often, to spectators,
241
but the law is otherwise as applied to coaches and instructors. For them, the
general rule is that coaches and instructors owe a duty of due care to persons in
their charge. The coach or instructor is not, of course, an insurer, and a student
may be held to notice that which is obvious and to ask appropriate questions.
But all of the authorities that comment on the issue have recognized the
existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528,
1535–1536 [17 Cal.Rptr.2d 89, internal citations omitted.)
• “[D]ecisions have clarified that the risks associated with learning a sport may
themselves be inherent risks of the sport, and that an instructor or coach
generally does not increase the risk of harm inherent in learning the sport
simply by urging the student to strive to excel or to reach a new level of
competence.” (Kahn, supra, 31 Cal.4th at p. 1006.)
• “To the extent a duty is alleged against a coach for ‘pushing’ and/or
‘challenging’ a student to improve and advance, the plaintiff must show that the
coach intended to cause the student’s injury or engaged in reckless
conduct—that is, conduct totally outside the range of the ordinary activity
involved in teaching or coaching the sport. Furthermore, a coach has a duty of
ordinary care not to increase the risk of injury to a student by encouraging or
allowing the student to participate in the sport when he or she is physically
unfit to participate or by allowing the student to use unsafe equipment or
instruments.” (Eriksson, supra, 191 Cal.App.4th at p. 845, internal citation
omitted.)
• “That an instructor might ask a student to do more than the student can manage
is an inherent risk of the activity. Absent evidence of recklessness, or other risk-
increasing conduct, liability should not be imposed simply because an instructor
asked the student to take action beyond what, with hindsight, is found to have
been the student’s abilities. To hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club,
LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)
• Coaches and sports instructors “owe students a duty ‘not to increase the risks
inherent in the learning process undertaken by the student.’ But this does not
require them to ‘fundamentally alter the nature of the sport and, in some
instances, effectively preclude participation altogether . . . .’ Instead, ‘[b]y
choosing to participate in a sport that poses the obvious possibility of injury, the
student athlete must learn to accept an adverse result of the risks inherent in the
sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437
[89 Cal.Rptr.2d 920], internal citations omitted.)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question
of law and based on the general characteristics of the sport activity and the
parties’ relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242
Cal.App.4th 490, 501 [194 Cal.Rptr.3d 830].)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a
242
defendant’s duty of care in the primary assumption of risk context “is a legal
question which depends on the nature of the sport or activity . . . and on the
parties’ general relationship to the activity, and is an issue to be decided by the
court, rather than the jury.” ’ This statement of the rule is correct where there is
no dispute about the inherent risks, and such cases may be resolved on
summary judgment. [¶] However this statement is overly broad. Although the
risks inherent in many activities are not subject to reasonable dispute (e.g.,
being hit with a baseball during a game), the risks inherent in some activities
are not commonly known. In such cases, expert testimony may be required
‘ “for purposes of weighing whether the inherent risks of the activity were
increased by the defendant’s conduct.” ’ . . . Thus, it is not entirely accurate to
say inherent risks of an activity always present purely legal questions, because
sometimes the nature of an activity and its risks must be gleaned from the
evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics, internal
citations omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of
further defining [defendant]’s duty, which would be a question of law for the
court. Rather, it requires application of the governing standard of care (the duty
not to increase the risks inherent in the sport) to the facts of this particular
case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski
Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of
snowboard jump increased inherent risks of snowboarding is question for jury];
Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial
jumps built by resort increased inherent risk of falling while skiing is question
for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th
112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor
league baseball team’s mascot increased inherent risk of spectator being hit by a
foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra,
138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84
Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court
to determine whether defendant’s conduct increased the risk inherent in
participating in a particular sport, but that trial court may receive expert
testimony on the customary practices in the sport to make that determination].)
[¶] Our conclusion it is for the trier of fact to determine whether [defendant]
breached his limited duty not to increase the risks inherent in the sport of
volleyball finds solid support in the Supreme Court’s most recent sports injury,
primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a
243
case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “The existence of a duty of care is a separate issue from the question whether
(on the basis of forseeability among other factors) a particular defendant
breached that duty of care, which is an essentially factual matter.” (Kockelman
v. Segal (1998) 61 Cal.App.4th 491, 498 [71 Cal.Rptr.2d 552].)
• “[A duty not to increase the risk] arises only if there is an ‘ “organized
relationship” ’ between the defendants and the participant in relation to the
sporting activity, such as exists between . . . a coach or instructor and his or
her students. [I]mposing such a duty in the context of these types of
relationships is justified because the defendants are ‘responsible for, or in
control of, the conditions under which the [participant] engaged in the sport.’ ”
(Bertsch, supra, 247 Cal.App.4th at pp. 1208−1209, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1339, 1340,
1343–1350
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶¶ 3:234–3:254.30 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
244
not to increase the risks inherent in the sport) to the facts of this particular
case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski
Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of
snowboard jump increased inherent risks of snowboarding is question for jury];
Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial
jumps built by resort increased inherent risk of falling while skiing is question
for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th
112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor
league baseball team’s mascot increased inherent risk of spectator being hit by a
foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra,
138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84
Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court
to determine whether defendant’s conduct increased the risk inherent in
participating in a particular sport, but that trial court may receive expert
testimony on the customary practices in the sport to make that determination].)
[¶] Our conclusion it is for the trier of fact to determine whether [defendant]
breached his limited duty not to increase the risks inherent in the sport of
volleyball finds solid support in the Supreme Court’s most recent sports injury,
primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a
case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “Although defendants generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself, it is well established that
defendants generally do have a duty to use due care not to increase the risks to
a participant over and above those inherent in the sport. Thus, although a ski
resort has no duty to remove moguls from a ski run, it clearly does have a duty
to use due care to maintain its towropes in a safe, working condition so as not
to expose skiers to an increased risk of harm. The cases establish that the latter
type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in
the sport) that is assumed by a participant.” (Knight, supra, 3 Cal.4th at pp.
315–316.)
• “Under Knight, defendants had a duty not to increase the inherent risks to
which spectators at professional baseball games are regularly exposed and
which they assume. As a result, a triable issue of fact remained, namely
whether the [defendants]’ mascot cavorting in the stands and distracting
plaintiff’s attention, while the game was in progress, constituted a breach of that
duty, i.e., constituted negligence in the form of increasing the inherent risk to
247
248
Every person has a right to expect that every other person will use
reasonable care [and will not violate the law], unless he or she knows,
or should know, that the other person will not use reasonable care [or
will violate the law].
exceptions are (1) where the defendant has a special relationship to the plaintiff,
(2) where the defendant has undertaken an obligation to protect the plaintiff, or
(3) where the defendant’s conduct created or increased the risk of harm through
the misconduct. (Rest.2d Torts, § 302B, com. e.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1311–1313
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.90 (Matthew
Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
250
251
253
People must be extremely careful when they deal with dangerous items
or participate in dangerous activities. [Insert type of dangerous item or
activity] is dangerous in and of itself. The risk of harm is so great that
the failure to use extreme caution is negligence.
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.14
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
255
encouraged to continue working under conditions where danger lurks but has
not materialized, he may be baffled in making an on-the-spot decision as to the
imminence of harm. All of these factors enter into a determination whether his
conduct falls below a standard of due care.” (Gyerman v. United States Lines
Co. (1972) 7 Cal.3d 488, 501 [102 Cal.Rptr. 795, 498 P.2d 1043], citation
omitted.)
Secondary Sources
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
257
258
negligence on the defendant’s part was not a proximate cause of the accident. In
this case, the presumption drops out, and the plaintiff must then prove the elements
of negligence without the benefit of the presumption of res ipsa loquitur. (See
Howe, supra, 189 Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res Ipsa Loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption
arises when the evidence satisfies three conditions: ‘(1) the accident must be of
a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff.’ A presumption affecting the burden
of producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant . . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’
the trier of fact determines whether defendant was negligent without regard to
the presumption, simply by weighing the evidence.” (Brown v. Poway Unified
School Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624],
internal citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was
the result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• The purpose of the second “control” requirement is to “link the defendant with
260
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of
negligence or lack of proximate cause that the injury claimed was the result of
that negligence. As a presumption affecting the burden of producing evidence
(as distinguished from a presumption affecting the burden of proof), if evidence
is presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of
the accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of
the presumed fact causes the presumption, as a matter of law, to disappear.’
When the presumptive effect vanishes, it is the plaintiff’s burden to introduce
actual evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving
rise to the presumption have been proved by a preponderance of the evidence, it
may nevertheless find the defendant negligent if it concludes from a
consideration of all the evidence that it is more probable than not that the
261
262
injury; (3) the injury resulted from the kind of occurrence the statute was
designed to prevent; and (4) the plaintiff was one of the class of persons the
statute was intended to protect. The first two elements are normally questions
for the trier of fact and the last two are determined by the trial court as a matter
of law. That is, the trial court decides whether a statute or regulation defines the
standard of care in a particular case.” (Jacobs Farm/Del Cabo, Inc. v. Western
Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529],
internal citations omitted; see also Cal. Law Revision Com. to Evid. Code,
§ 669.)
• “Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to
prove duty of care and standard of care. [Citation.] The plaintiff still has the
burden of proving causation.” (David v. Hernandez (2014) 226 Cal.App.4th
578, 584 [172 Cal.Rptr.3d 204].)
• “Where a statute establishes a party’s duty, ‘ “proof of the [party’s] violation of
a statutory standard of conduct raises a presumption of negligence that may be
rebutted only by evidence establishing a justification or excuse for the statutory
violation.” This rule, generally known as the doctrine of negligence per se,
means that where the court has adopted the conduct prescribed by statute as the
standard of care for a reasonable person, a violation of the statute is presumed
to be negligence.” (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263
[155 Cal.Rptr.3d 306], internal citation omitted.)
• “[I]n negligence per se actions, the plaintiff must produce evidence of a
violation of a statute and a substantial probability that the plaintiff’s injury was
caused by the violation of the statute before the burden of proof shifts to the
defendant to prove the violation of the statute did not cause the plaintiff’s
injury.” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371
[199 Cal.Rptr.3d 522].)
• “ ‘The significance of a statute in a civil suit for negligence lies in its
formulation of a standard of conduct that the court adopts in the determination
of such liability. The decision as to what the civil standard should be still rests
with the court, and the standard formulated by a legislative body in a police
regulation or criminal statute becomes the standard to determine civil liability
only because the court accepts it. In the absence of such a standard the case
goes to the jury, which must determine whether the defendant has acted as a
reasonably prudent man would act in similar circumstances. The jury then has
the burden of deciding not only what the facts are but what the unformulated
standard is of reasonable conduct. When a legislative body has generalized a
standard from the experience of the community and prohibits conduct that is
likely to cause harm, the court accepts the formulated standards and applies
them [citations], except where they would serve to impose liability without
fault.’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97,
863 P.2d 167].), internal citations omitted.)
• “There is no doubt in this state that a federal statute or regulation may be
adopted as a standard of care.” (DiRosa v. Showa Denko K. K. (1996) 44
264
265
267
269
270
271
New September 2003; Revised December 2009, June 2014, December 2014
Directions for Use
Business and Professions Code section 25602.1 imposes potential liability on those
who have or are required to have a liquor license for the selling, furnishing, or
giving away of alcoholic beverages to an obviously intoxicated minor. It also
imposes potential liability on a person who is not required to be licensed who sells
alcohol to an obviously intoxicated minor. (See Ennabe v. Manosa (2014) 58
Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].) In this latter case, omit
element 1, select “sold” in the opening paragraph and in element 2, and select
“selling” in element 6.
If the plaintiff is the minor who is suing for his or her own injuries (see Chalup v.
Aspen Mine Co. (1985) 175 Cal.App.3d 973, 974 [221 Cal.Rptr. 97]), modify the
instruction by substituting the appropriate pronoun for “[name of alleged minor]”
throughout.
For purposes of this instruction, a “minor” is someone under the age of 21. (Rogers
v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60].)
Sources and Authority
• Liability for Providing Alcohol to Minors. Business and Professions Code
section 25602.1.
• Sales Under the Alcoholic Beverage Control Act. Business and Professions
Code section 23025.
• “In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of
the plaintiff’s injuries or death, section 25602.1—the applicable statute in this
case—permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to sell
alcoholic beverages in certain places, and the defendant sold, furnished, or gave
the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was ‘any other person’ (i.e., neither licensed nor required to
be licensed), and he or she sold alcohol to the minor or caused it to be sold.
Whereas licensees (and those required to be licensed) may be liable if they
merely furnish or give an alcoholic beverage away, a nonlicensee may be liable
only if a sale occurs; that is, a nonlicensee, such as a social host, who merely
furnishes or gives drinks away—even to an obviously intoxicated
minor—retains his or her statutory immunity.” (Ennabe, supra, 58 Cal.4th at pp.
709–710, original italics.)
• “[W]e conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
by the Department of ABC, those without licenses but who are nevertheless
272
274
may not be held liable for the breach of a duty if such an immunity in fact
exists.” (Washington, supra, 38 Cal.App.4th at p. 896, internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 245–248
5 Levy et al., California Torts, Ch. 60, General Principles of Liability and
Immunity of Public Entities and Employees, § 60.22 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.61 (Matthew Bender)
45 California Forms of Pleading and Practice, Ch. 514, Schools: Injuries to
Students, § 514.17 (Matthew Bender)
19 California Points and Authorities, Ch. 196, Public Entities, § 196.182 (Matthew
Bender)
277
278
harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.”
(City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations
omitted.)
• “California does not recognize a distinct cause of action for ‘gross negligence’
independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th
826, 856 [120 Cal.Rptr.3d 90].)
• “Gross negligence is pleaded by alleging the traditional elements of negligence:
duty, breach, causation, and damages. However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072,
1082 [122 Cal.Rptr.3d 22], internal citation omitted.)
• “The theory that there are degrees of negligence has been generally criticized
by legal writers, but a distinction has been made in this state between ordinary
and gross negligence. Gross negligence has been said to mean the want of even
scant care or an extreme departure from the ordinary standard of conduct.” (Van
Meter v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644], internal
citation omitted.)
• “Numerous California cases have discussed the doctrine of gross negligence.
Invariably these cases have turned upon an interpretation of a statute which has
used the words ‘gross negligence’ in the text.” (Cont’l Ins. Co. v. Am. Prot.
Indus. (1987) 197 Cal.App.3d 322, 329 [242 Cal.Rptr. 784].)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41
Cal.4th at p. 777, original italics.)
• “ ‘Prosser on Torts (1941) page 260, also cited by the Van Meter court for its
definition of gross negligence, reads as follows: “Gross Negligence. This is very
great negligence, or the want of even scant care. It has been described as a
failure to exercise even that care which a careless person would use. Many
courts, dissatisfied with a term so devoid of all real content, have interpreted it
as requiring wilful misconduct, or recklessness, or such utter lack of all care as
will be evidence of either—sometimes on the ground that this must have been
the purpose of the legislature. But most courts have considered that ‘gross
negligence’ falls short of a reckless disregard of consequences, and differs from
ordinary negligence only in degree, and not in kind. So far as it has any
accepted meaning, it is merely an extreme departure from the ordinary standard
of care.” ’ ” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358
[257 Cal.Rptr. 356], original italics, internal citations omitted.)
• “Generally it is a triable issue of fact whether there has been such a lack of
280
282
In most cases, “unfitness” or “incompetence” (or both) will adequately describe the
particular risk that the employee represents. However, there may be cases in which
neither word adequately describes the risk that the employer should have known
about.
Sources and Authority
• “California case law recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit employee.”
(Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have
known that hiring the employee created a particular risk or hazard and that
particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including
negligent hiring, supervising, and retaining [employee], and failure to warn. To
prevail on his negligent hiring/retention claim, [plaintiff] will be required to
prove [employee] was [defendant employer]’s agent and [defendant employer]
knew or had reason to believe [employee] was likely to engage in sexual abuse.
On the negligent supervision and failure to warn claims, [plaintiff] will be
required to show [defendant employer] knew or should have known of
[employee]’s alleged misconduct and did not act in a reasonable manner when it
allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th
566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability.” (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that
if an enterprise hires individuals with characteristics which might pose a danger
to customers or other employees, the enterprise should bear the loss caused by
the wrongdoing of its incompetent or unfit employees. The tort has developed
in California in factual settings where the plaintiff’s injury occurred in the
workplace, or the contact between the plaintiff and the employee was generated
by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66
Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].)
• “To establish negligent supervision, a plaintiff must show that a person in a
supervisorial position over the actor had prior knowledge of the actor’s
propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902 [189 Cal.Rptr.3d 570].)
• “Apparently, [defendant] had no actual knowledge of [the employee]’s past. But
the evidence recounted above presents triable issues of material fact regarding
whether the [defendant] had reason to believe [the employee] was unfit or
whether the [defendant] failed to use reasonable care in investigating [the
284
Therefore, the jury needed to answer the question of whether [defendant] hired
[employee] before it could determine if [defendant] negligently hired, retained,
or supervised him.” (Jackson, supra, 233 Cal.App.4th at pp. 1187–1188.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1190
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-H, Negligence,
¶ 5:615 et seq. (The Rutter Group)
3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.22 (Matthew Bender)
286
288
New September 2003; Renumbered from CACI No. 410 December 2013
Directions for Use
This instruction is not intended for use for claims of statutory liability against
parents or guardians based on a minor’s willful conduct, e.g., Civil Code section
1714.1 (willful misconduct), section 1714.3 (discharging firearm), or Education
Code section 48904(a)(1) (willful misconduct).
Sources and Authority
• “While it is the rule in California . . . that there is no vicarious liability on a
parent for the torts of a child there is ‘another rule of the law relating to the
torts of minors, which is somewhat in the nature of an exception, and that is
that a parent may become liable for an injury caused by the child where the
parent’s negligence made it possible for the child to cause the injury
complained of, and probable that it would do so.’ ” (Ellis v. D’Angelo (1953)
116 Cal.App.2d 310, 317 [253 P.2d 675], internal citations omitted.)
• “Parents are responsible for harm caused by their children only when it has
been shown that ‘the parents as reasonable persons previously became aware of
289
habits or tendencies of the infant which made it likely that the child would
misbehave so that they should have restrained him in apposite conduct and
actions.’ ” (Reida v. Lund (1971) 18 Cal.App.3d 698, 702 [96 Cal.Rptr. 102],
internal citation omitted.)
• “In cases where the parent did not observe the child’s conduct which led to the
injury, the parent has been held liable where he had been aware of the child’s
dangerous propensity or habit and negligently failed to exercise proper control
or negligently failed to give appropriate warning. In other cases, where the
parent did not observe and was not in a position to control the conduct which
endangered the plaintiff, recovery was denied on the ground that there was no
showing that the parent knew of any dangerous tendency. What is said about
‘propensity’ or ‘habit’ in those cases has no applicability where the parent is
present and observes the dangerous behavior and has an opportunity to exercise
control but neglects to do so.” (Costello v. Hart (1972) 23 Cal.App.3d 898,
900–901 [100 Cal.Rptr. 554], internal citations omitted.)
• “ ‘The ability to control the child, rather than the relationship as such, is the
basis for a finding of liability on the part of a parent. . . . [The] absence of
such ability is fatal to a claim of legal responsibility.’ The ability to control is
inferred from the relationship of parent to minor child, as it is from the
relationship of custodian to charge; yet it may be disproved by the
circumstances surrounding the particular situation.” (Robertson v. Wentz (1986)
187 Cal.App.3d 1281, 1290 [232 Cal.Rptr. 634], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1227–1234
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, § 1.25
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.12; Ch. 8,
Vicarious Liability, § 8.08 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.16
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 367A, Minors: Tort Actions,
§ 367A.32 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.131
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.130 (Matthew
Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors, § 100A.251
(Matthew Bender)
1 California Civil Practice: Torts §§ 3:32–3:35 (Thomson Reuters)
429. Reserved for Future Use
290
New September 2003; Revised October 2004, June 2005, December 2005,
December 2007
Directions for Use
As phrased, this definition of “substantial factor” subsumes the “but for” test of
causation, that is, “but for” the defendant’s conduct, the plaintiff’s harm would not
have occurred. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d
913, 819 P.2d 872]; see Rest.2d Torts, § 431.) The optional last sentence makes this
explicit, and in some cases it may be error not to give this sentence. (See Soule v.
GM Corp. (1994) 8 Cal.4th 548, 572–573 [34 Cal.Rptr.2d 607, 882 P.2d 298];
Rest.2d Torts, § 432(1).)
“Conduct,” in this context, refers to the culpable acts or omissions on which a
claim of legal fault is based, e.g., negligence, product defect, breach of contract, or
dangerous condition of public property. This is in contrast to an event that is not a
culpable act but that happens to occur in the chain of causation, e.g., that the
plaintiff’s alarm clock failed to go off, causing her to be at the location of the
accident at a time when she otherwise would not have been there. The reference to
“conduct” may be changed as appropriate to the facts of the case.
The “but for” test of the last optional sentence does not apply to concurrent
independent causes, which are multiple forces operating at the same time and
independently, each of which would have been sufficient by itself to bring about
the same harm. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [135 Cal.Rptr.2d 629,
70 P.3d 1046]; Barton v. Owen (1977) 71 Cal.App.3d 484, 503–504 [139 Cal.Rptr.
494]; see Rest.2d Torts, § 432(2).) Accordingly, do not include the last sentence in
a case involving concurrent independent causes.
In cases of multiple (concurrent dependent) causes, CACI No. 431, Causation:
Multiple Causes, should also be given.
In asbestos-related cancer cases, Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d 1203] requires a different instruction
regarding exposure to a particular product. Give CACI No. 435, Causation for
Asbestos-Related Cancer Claims, and do not give this instruction.
291
another if the harm would have been sustained even if the actor had not been
negligent.’ . . . Subsection (2) states that if ‘two forces are actively operating
. . . and each of itself is sufficient to bring about harm to another, the actor’s
negligence may be found to be a substantial factor in bringing it about.’ ”
(Viner, supra, 30 Cal.4th at p. 1240, original italics.)
• “Because the ‘substantial factor’ test of causation subsumes the ‘but for’ test,
the ‘but for’ test has been phrased in terms of ‘substantial factor,’ as follows, in
the context, as here, of a combination of causes dependent on one another: A
defendant’s negligent conduct may combine with another factor to cause harm;
if a defendant’s negligence was a substantial factor in causing the plaintiff’s
harm, then the defendant is responsible for the harm; a defendant cannot avoid
responsibility just because some other person, condition, or event was also a
substantial factor in causing the plaintiff’s harm; but conduct is not a substantial
factor in causing harm if the same harm would have occurred without that
conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d
309].)
• “A tort is a legal cause of injury only when it is a substantial factor in
producing the injury. If the external force of a vehicle accident was so severe
that it would have caused identical injuries notwithstanding an abstract ‘defect’
in the vehicle’s collision safety, the defect cannot be considered a substantial
factor in bringing them about. [¶] The general causation instruction given by the
trial court correctly advised that plaintiff could not recover for a design defect
unless it was a ‘substantial factor’ in producing plaintiff’s ‘enhanced’ injuries.
However, this instruction dealt only by ‘negative implication’ with [defendant]’s
theory that any such defect was not a ‘substantial factor’ in this case because
this particular accident would have broken plaintiff’s ankles in any event. As we
have seen, [defendant] presented substantial evidence to that effect. [Defendant]
was therefore entitled to its special instruction, and the trial court’s refusal to
give it was error.” (Soule, supra, 8 Cal.4th at p. 572–573, original italics,
footnote and internal citations omitted.)
• “The first element of legal cause is cause in fact . . . . The ‘but for’ rule has
traditionally been applied to determine cause in fact. The Restatement formula
uses the term substantial factor ‘to denote the fact that the defendant’s conduct
has such an effect in producing the harm as to lead reasonable men to regard it
as a cause.’ ” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095 [44
Cal.Rptr.3d 14], internal citations omitted.)
• “If the accident would have happened anyway, whether the defendant was
negligent or not, then his or her negligence was not a cause in fact, and of
course cannot be the legal or responsible cause.” (Toste v. CalPortland
Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal.Rptr.3d 522].)
• “We have recognized that proximate cause has two aspects. ‘ “One is cause in
fact. An act is a cause in fact if it is a necessary antecedent of an event.” ’ This
is sometimes referred to as ‘but-for’ causation. In cases where concurrent
independent causes contribute to an injury, we apply the ‘substantial factor’ test
293
295
746−747 [184 Cal.Rptr.3d 79] [CACI No. 431 properly explained concurrent
substantial causes to the jury].)
• “For there to be comparative fault there must be more than one contributory or
concurrent legal cause of the injury for which recompense is sought.” (Doupnik
v. General Motors Corp. (1991) 225 Cal.App.3d 849, 866 [275 Cal.Rptr. 715].)
• “Because we conclude that, in this case, in which causation was the most
critical contested issue and in which there was substantial evidence of multiple
causes of [decedent]’ s death, the trial court improperly [refused to instruct] the
jury with respect to concurrent causation . . . .” (Logacz v. Limansky (1999) 71
Cal.App.4th 1149, 1152 [84 Cal.Rptr.2d 257].)
• “Clearly, where a defendant’s negligence is a concurring cause of an injury, the
law regards it as a legal cause of the injury, regardless of the extent to which it
contributes to the injury.” (Espinosa v. Little Company of Mary Hospital (1995)
31 Cal.App.4th 1304, 1317–1318 [37 Cal.Rptr.2d 541], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1193
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.280–165.284
(Matthew Bender)
297
negligent and that his negligence was an actual cause of the plaintiff’s injury,
the defendant should be held responsible for the plaintiff’s injury where the
injury was brought about by a later cause of independent origin. This question,
in turn, revolves around a determination of whether the later cause of
independent origin, commonly referred to as an intervening cause, was
foreseeable by the defendant or, if not foreseeable, whether it caused injury of a
type which was foreseeable. If either of these questions is answered in the
affirmative, then the defendant is not relieved from liability towards the
plaintiff; if, however, it is determined that the intervening cause was not
foreseeable and that the results which it caused were not foreseeable, then the
intervening cause becomes a supervening cause and the defendant is relieved
from liability for the plaintiff’s injuries.” (Akins v. County of Sonoma (1967) 67
Cal.2d 185, 199 [60 Cal.Rptr. 499, 430 P.2d 57].)
• “ ‘A superseding cause is an act of a third person or other force which by its
intervention prevents the actor from being liable for harm to another which his
antecedent negligence is a substantial factor in bringing about.’ If the cause is
superseding, it relieves the actor from liability whether or not that person’s
negligence was a substantial factor in bringing about the harm.” (Brewer v.
Teano (1995) 40 Cal.App.4th 1024, 1031 [47 Cal.Rptr.2d 348], internal citation
omitted; see Restatement 2d of Torts, § 440.)”
• “The rules set forth in sections 442–453 of the Restatement of Torts for
determining whether an intervening act of a third person constitutes a
superseding cause which prevents antecedent negligence of the defendant from
being a proximate cause of the harm complained of have been accepted in
California. Under these rules the fact that an intervening act of a third person is
done in a negligent manner does not make it a superseding cause if a
reasonable man knowing the situation existing when the act of the third person
is done would not regard it as highly extraordinary that the third person so
acted or the act is a normal response to a situation created by the defendant’s
conduct and the manner in which the intervening act is done is not
extraordinarily negligent.” (Stewart v. Cox (1961) 55 Cal.2d 857, 864 [13
Cal.Rptr. 521, 362 P.2d 345], internal citations omitted.)
• “This test is but another way of saying that foreseeable intervening ordinary
negligence will not supersede but such negligence, if ‘highly extraordinary,’ will
supersede. [¶] ‘[T]he fact that an intervening act of a third person is done in a
negligent manner does not make it a superseding cause if . . . the act is a
normal response to a situation created by the defendant’s conduct and the
manner in which the intervening act is done is not extraordinarily
negligent. . . .’ This test is but another way of saying a normal, but negligent,
intervening response will not supersede but an extraordinarily negligent
response will supersede.” (Martinez, supra, 68 Cal.App.4th at p. 701 [holding
that highly extraordinary negligence or extraordinarily negligent response
obviates need to prove unforeseeable risk of harm].)
• “Intervening negligence cuts off liability, and becomes known as a superseding
299
cause, if ‘ “it is determined that the intervening cause was not foreseeable and
that the results which it caused were not foreseeable . . . .” ’ ” (Martinez, supra,
68 Cal.App.4th at pp. 700–701, original italics.)
• “ ‘[T]he defense of “superseding cause[]” . . . absolves [the original] tortfeasor,
even though his conduct was a substantial contributing factor, when an
independent event [subsequently] intervenes in the chain of causation,
producing harm of a kind and degree so far beyond the risk the original
tortfeasor should have foreseen that the law deems it unfair to hold him
responsible.’ . . . [¶] To determine whether an independent intervening act was
reasonably foreseeable, we look to the act and the nature of the harm suffered.
To qualify as a superseding cause so as to relieve the defendant from liability
for the plaintiff’s injuries, both the intervening act and the results of that act
must not be foreseeable. Significantly, ‘what is required to be foreseeable is the
general character of the event or harm . . . not its precise nature or manner of
occurrence.’ ” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th
746, 755–756 [155 Cal.Rptr.3d 693], original italics, internal citations omitted.)
• “ ‘Third party negligence which is the immediate cause of an injury may be
viewed as a superseding cause when it is so highly extraordinary as to be
unforeseeable. . . . “The foreseeability required is of the risk of harm, not of
the particular intervening act. In other words, the defendant may be liable if his
conduct was ‘a substantial factor’ in bringing about the harm, though he neither
foresaw nor should have foreseen the extent of the harm or the manner in
which it occurred.” . . . It must appear that the intervening act has produced
“harm of a kind and degree so far beyond the risk the original tortfeasor should
have foreseen that the law deems it unfair to hold him
responsible.” . . . [¶] . . . [F]oreseeability is a question for the jury unless
undisputed facts leave no room for a reasonable difference of opinion. . . .
Thus, the issue of superseding cause is generally one of fact. . . .’ ” (Lawson v.
Safeway Inc. (2010) 191 Cal.App.4th 400, 417 [119 Cal.Rptr.3d 366].)
• “The intervening negligence (or even recklessness) of a third party will not be
considered a superseding cause if it is a ‘normal response to a situation created
by the defendant’s conduct’ and is therefore ‘ “. . . within the scope of the
reasons [for] imposing the duty upon [the defendant] to refrain from negligent
conduct” ’ in the first place.” (Pedeferri v. Seidner Enterprises (2013) 216
Cal.App.4th 359, 373 [163 Cal.Rptr.3d 55], internal citations omitted.)
• “Under the theory of supervening cause, the chain of causation that would
otherwise flow from an initial negligent act is broken when an independent act
intervenes and supersedes the initial act.” (Hardison v. Bushnell (1993) 18
Cal.App.4th 22, 26 [22 Cal.Rptr.2d 106].)
• “[T]he intervening and superseding act itself need not necessarily be a negligent
or intentional tort. For example, the culpability of the third person committing
the intervening or superseding act is just one factor in determining if an
intervening force is a new and independent superseding cause.” (Ash v. North
American Title Co. (2014) 223 Cal.App.4th 1258, 1277 [168 Cal.Rptr.3d 499]
300
301
act was reasonably foreseeable at the time of his negligent conduct.’ Moreover,
under section 449 of the Restatement Second of Torts that foreseeability may
arise directly from the risk created by the original act of negligence: ‘If the
likelihood that a third person may act in a particular manner is the hazard or
one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious, or criminal does not prevent the actor
from being liable for harm caused thereby.’ ” (Landeros v. Flood (1976) 17
Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], internal citations omitted.)
• “The trial court’s modification of CACI No. 433 appears to have been intended
to apply the principle of negligence law that unforeseeable criminal conduct
cuts off a tortfeasor’s liability. CACI No. 433 sets forth the heightened
foreseeability that is required before an intervening criminal act will relieve a
defendant of liability for negligence. A third party’s criminal conduct becomes
actionable if the negligent tortfeasor has created a situation that facilitated the
crime.” (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508 [155
Cal.Rptr.3d 137], internal citations omitted.)
• “Criminal conduct which causes injury will ordinarily be deemed the proximate
cause of an injury, superseding any prior negligence which might otherwise be
deemed a contributing cause.” (Koepke v. Loo (1993) 18 Cal.App.4th 1444,
1449 [23 Cal.Rptr.2d 34].)
• “The common law rule that an intervening criminal act is, by its very nature, a
superseding cause has lost its universal application and its dogmatic rigidity.”
(Kane, supra, 98 Cal.App.3d at p. 360.)
• “CACI No. 433 erroneously allowed [defendant] a complete defense based on a
heightened standard of foreseeability inapplicable to plaintiffs’ design defect
claims. Specifically, CACI No. 433 allowed [defendant] to secure a defense
verdict by showing it ‘could not have reasonably foreseen that another person
would be likely to take advantage of the situation created by . . . [defendant]’s
conduct to commit this type of act.’ However, [defendant] did not create a
situation that [third party] took advantage of in order to commit a crime. [Third
party] did not throw the concrete at [decedent]’s truck because he perceived a
defective angle or composition of the windshield. CACI No. 433 erroneously
introduced a test that does not make sense in this products liability case.”
(Collins, supra, 214 Cal.App.4th at p. 1509.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1214–1216
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303,
165.322 (Matthew Bender)
303
You may decide that more than one of the defendants was negligent, but
that the negligence of only one of them could have actually caused
[name of plaintiff]’s harm. If you cannot decide which defendant caused
[name of plaintiff]’s harm, you must decide that each defendant is
responsible for the harm.
However, if a defendant proves that [he/she/it] did not cause [name of
plaintiff]’s harm, then you must conclude that defendant is not
responsible.
305
aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been
invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s
injury but is nevertheless urged as an insubstantial contribution to the injury.
Misused in this way, the substantial factor test ‘undermines the principles of
comparative negligence, under which a party is responsible for his or her share
of negligence and the harm caused thereby.’ ” (Rutherford, supra, 16 Cal.4th at
p. 969, internal citations omitted.)
• “[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 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citation
omitted.)
• “Contrary to defendant’s assertion, the California Supreme Court’s decision in
Viner v. Sweet (2003) 30 Cal.4th 1232 [135 Cal.Rptr.2d 629, 70 P.3d 1046]
(Viner) did not alter the causation requirement in asbestos-related cases. In
Viner, the court noted that subsection (1) of section 432 of the Restatement
Second of Torts, which provides that ‘the actor’s negligent conduct is not a
substantial factor in bringing about harm to another if the harm would have
been sustained even if the actor had not been negligent,’ ‘demonstrates how the
“substantial factor” test subsumes the traditional “but for” test of causation.’
Defendant argues that Viner required plaintiffs to show that defendant’s product
‘independently caused [plaintiff’s] injury or that, but for that exposure,
[plaintiff] would not have contracted lung cancer.’ Viner, however, is a legal
malpractice case. It does not address the explicit holding in Rutherford that
‘plaintiffs may prove causation in asbestos-related cancer cases by
demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing
product in reasonable medical probability was a substantial factor in
contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled
or ingested, and hence to the risk of developing asbestos-related cancer, without
the need to demonstrate that fibers from the defendant’s particular product were
the ones, or among the ones, that actually produced the malignant growth.’ ”
Viner is consistent with Rutherford insofar as Rutherford requires proof that an
individual asbestos-containing product is a substantial factor contributing to the
plaintiff’s risk or probability of developing cancer.” (Jones v. John Crane, Inc.
(2005) 132 Cal.App.4th 990, 998, fn. 3 [35 Cal.Rptr.3d 144], internal citations
omitted.)
• “ ‘A threshold issue in asbestos litigation is exposure to the defendant’s
product. . . . If there has been no exposure, there is no causation.’ Plaintiffs
bear the burden of ‘demonstrating that exposure to [defendant’s] asbestos
products was, in reasonable medical probability, a substantial factor in causing
or contributing to [plaintiff’s] risk of developing cancer.’ ‘Factors relevant to
assessing whether such a medical probability exists include frequency of
exposure, regularity of exposure and proximity of the asbestos product to
[plaintiff].’ Therefore, ‘[plaintiffs] cannot prevail against [defendant] without
evidence that [plaintiff] was exposed to asbestos-containing materials
307
309
battery. See CACI No. 1305, Battery by Peace Offıcer. For additional authorities on
excessive force by a law enforcement officer, see the Sources and Authority to
these two CACI instructions.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are to be applied under California negligence law. (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].)
They are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 661 F.3d 460,
467–468.); additional factors may be added if appropriate to the facts of the case. If
negligence, civil rights, and battery claims are all involved, the instructions can be
combined so as to give the Graham factors only once. A sentence may be added to
advise the jury that the factors apply to all three claims.
Give optional factor (d) if the officer’s conduct leading up to the need to use force
is at issue. Liability can arise if the earlier tactical conduct and decisions show, as
part of the totality of circumstances, that the ultimate use of force was
unreasonable. In this respect, California negligence law differs from the federal
standard under the Fourth Amendment. (Hayes v. County of San Diego (2014) 57
Cal. 4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].)
Sources and Authority
• Use of Reasonable Force to Arrest. California Penal Code section 835a.
• “Consistent with these principles and the factors the high court has identified,
the federal court in this case did not instruct the jury to conduct some abstract
or nebulous balancing of competing interests. Instead, as noted above, it
instructed the jury to determine the reasonableness of the officers’ actions in
light of ‘the totality of the circumstances at the time,’ including ‘the severity of
the crime at issue, whether the plaintiff posed a reasonable threat to the safety
of the officer or others, and whether the plaintiff was actively resisting detention
or attempting to escape.’ The same consideration of the totality of the
circumstances is required in determining reasonableness under California
negligence law. Moreover, California’s civil jury instructions specifically direct
the jury, in determining whether police officers used unreasonable force for
purposes of tort liability, to consider the same factors that the high court has
identified and that the federal court’s instructions in this case set forth. (Judicial
Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in
arguing that the federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez,
supra, 46 Cal.4th at p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘ “the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests” ’ against the countervailing governmental interests at stake. Our
Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some
311
degree of physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . [T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. . . .” ’ In
calculating whether the amount of force was excessive, a trier of fact must
recognize that peace officers are often forced to make split-second judgments, in
tense circumstances, concerning the amount of force required.” (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal
citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’ ”
(Hayes v. County of San Diego (2014) 57 Cal. 4th 622, 632 [160 Cal.Rptr.3d
684, 305 P.3d 252].)
• “A police officer’s use of deadly force is reasonable if ‘ “ ‘the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.’ . . .” . . .’ ” (Brown, supra,
171 Cal.App.4th at p. 528.)
• “Law enforcement personnel’s tactical conduct and decisions preceding the use
of deadly force are relevant considerations under California law in determining
whether the use of deadly force gives rise to negligence liability. Such liability
can arise, for example, if the tactical conduct and decisions show, as part of the
totality of circumstances, that the use of deadly force was unreasonable.”
(Hayes, supra, 57 Cal.4th at p. 639.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424
312
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
441–449. Reserved for Future Use
313
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.150 (Matthew
Bender)
316
Derived from former CACI No. 450 December 2010; Revised December 2011
Directions for Use
Use this instruction for situations at the scene of an emergency not involving
medical, law enforcement, or emergency personnel. (See Health & Saf. Code,
317
under a duty to exercise due care in performance and is liable if (a) his failure
to exercise such care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking.” (Williams v. State of
California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137], internal
citations omitted.)
• “A police officer, paramedic or other public safety worker is as much entitled to
the benefit of this general rule as anyone else.” (Camp v. State of California
(2010) 184 Cal.App.4th 967, 975 [109 Cal.Rptr.3d 676].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a
danger has induced reliance, or when the actions of CHP place a person in peril
or increase the risk of harm. In other words, to create a special relationship and
a duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s
way [citations], or lulled a citizen into a false sense of security and then
withdrew essential safety precautions.” ’ Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative conduct or misfeasance on the part of CHP
that induces reliance or changes the risk of harm is required.” (Greyhound
Lines, Inc. v. Department of the California Highway Patrol (2013) 213
Cal.App.4th 1129, 1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• Statutory exceptions to Good Samaritan liability include immunities under
certain circumstances for medical licensees (Bus. & Prof. Code, §§ 2395–2398),
nurses (Bus. & Prof. Code, §§ 2727.5, 2861.5), dentists (Bus. & Prof. Code,
§ 1627.5), rescue teams (Health & Saf. Code, § 1317(f)), persons rendering
emergency medical services (Health & Saf. Code, § 1799.102), paramedics
(Health & Saf. Code, § 1799.104), and first-aid volunteers (Gov. Code,
§ 50086).
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1060–1065
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based On Omission To Act—Legal Duty Arising From “Special
Relationship,” ¶¶ 2:1985, 2:2005 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
319
320
undertaking is another application of the Good Samaritan rule. CACI No. 450A is
for use in a case in which the person aided is the injured plaintiff. (See
Restatement 2d of Torts, § 323.) This instruction is for use in a case in which the
defendant’s failure to exercise reasonable care in acting to aid one person has
resulted in harm to another person.
Select one or more of the three options for element 5 depending on the facts.
Sources and Authority
• Negligent Undertaking. Restatement Second of Torts section 324A.
• “Under well-established common law principles, a person has no duty to come
to the aid of another. If, however, a person elects to come to someone’s aid, he
or she has a duty to exercise due care. Thus, a ‘good Samaritan’ who attempts
to help someone might be liable if he or she does not exercise due care and
ends up causing harm.” (Van Horn v. Watson (2008) 45 Cal.4th 322, 324 [86
Cal.Rptr.3d 350, 197 P.3d 164], internal citations omitted.)
• “[T]he [Restatement Second of Torts] section 324A theory of
liability—sometimes referred to as the “Good Samaritan” rule—is a settled
principle firmly rooted in the common law of negligence. Section 324A
prescribes the conditions under which a person who undertakes to render
services for another may be liable to third persons for physical harm resulting
from a failure to act with reasonable care. Liability may exist if (a) the failure
to exercise reasonable care increased the risk of harm, (b) the undertaking was
to perform a duty the other person owed to the third persons, or (c) the harm
was suffered because the other person or the third persons relied on the
undertaking.” (Paz, supra, 22 Cal.4th at p. 553, original italics.)
• “Thus, as the traditional theory is articulated in the Restatement, and as we
have applied it in other contexts, a negligent undertaking claim of liability to
third parties requires evidence that: (1) the actor undertook, gratuitously or for
consideration, to render services to another; (2) the services rendered were of a
kind the actor should have recognized as necessary for the protection of third
persons; (3) the actor failed to exercise reasonable care in the performance of
the undertaking; (4) the actor’s failure to exercise reasonable care resulted in
physical harm to the third persons; and (5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the actor undertook to perform a duty
that the other owed to the third persons, or (c) the harm was suffered because
either the other or the third persons relied on the actor’s undertaking. [¶]
Section 324A’s negligent undertaking theory of liability subsumes the well-
known elements of any negligence action, viz., duty, breach of duty, proximate
cause, and damages.” (Paz, supra, 22 Cal.4th at p. 559, original italics, internal
citation omitted; see also Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763,
775 [180 Cal.Rptr.3d 479] [jury properly instructed on elements as set forth
above in Paz].)
• “The general rule is that a person who has not created a peril is not liable in
tort for failing to take affirmative action to protect another unless they have
322
some relationship that gives rise to a duty to act. However, one who undertakes
to aid another is under a duty to exercise due care in acting and is liable if the
failure to do so increases the risk of harm or if the harm is suffered because the
other relied on the undertaking. Section 324A integrates these two basic
principles in its rule.” (Paz. supra, 22 Cal.4th at pp. 558−559.)
• “[T]he ‘negligent undertaking’ doctrine, like the special relationship doctrine, is
an exception to the ‘no duty to aid’ rule.” (Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [186 Cal.Rptr.3d
26].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a
danger has induced reliance, or when the actions of CHP place a person in peril
or increase the risk of harm. In other words, to create a special relationship and
a duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s
way [citations], or lulled a citizen into a false sense of security and then
withdrew essential safety precautions.” ’ Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative conduct or misfeasance on the part of CHP
that induces reliance or changes the risk of harm is required.” (Greyhound
Lines, Inc. v. Department of the California Highway Patrol (2013) 213
Cal.App.4th 1129, 1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1996) Pleadings, § 553
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1060–1065
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2][d],
[5][c] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.150, 165.241
(Matthew Bender)
323
[Name of defendant] claims that [name of plaintiff] may not recover any
damages because [he/she] agreed before the incident that [he/she] would
not hold [name of defendant] responsible for any damages.
If [name of defendant] proves that there was such an agreement and that
it applies to [name of plaintiff]’s claim, then [name of defendant] is not
responsible for [name of plaintiff]’s harm[, unless you find that [name of
defendant] was grossly negligent or intentionally harmed [name of
plaintiff]].
[If you find that [name of defendant] was grossly negligent or
intentionally harmed [name of plaintiff], then the agreement does not
apply. You must then determine whether [he/she/it] is responsible for
[name of plaintiff]’s harm based on the other instructions that I have
given you.]
Jerid from reading the Release. There is nothing indicating that Jerid was
prevented from (1) reading the Release while he sat at the booth, or (2) taking
the Release, moving his truck out of the line, and reading the Release. In sum,
plaintiffs’ arguments do not persuade us that Jerid was denied a reasonable
opportunity to discover the true terms of the contract.” (Rosencrans, supra, 192
Cal.App.4th at pp. 1080–1081.)
• “Whether a contract provision is clear and unambiguous is a question of law,
not of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250
Cal.Rptr. 299].)
• “By signing as [decedent]’s parent, [plaintiff] approved of the terms of the
release and understood that her signature made the release ‘irrevocable and
binding.’ Under these circumstances, the release could not be disaffirmed. [¶]
Although [plaintiff]’s signature prevented the agreement from being disaffirmed,
it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th
at p. 721.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1282, 1292–1294
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.44
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.171
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.402 (Matthew
Bender)
327
Refrigerating Co. (1958) 157 Cal.App.2d 266, 274 [320 P.2d 583].) The exigent
nature of the circumstances effectively lowers the standard of care: “ ‘The test
is whether the actor took one of the courses of action which a standard man in
that emergency might have taken, and such a course is not negligent even
though it led to an injury which might have been prevented by adopting an
alternative course of action.’ [Citation.]” (Schultz v. Mathias (1970) 3
Cal.App.3d 904, 912–913 [83 Cal.Rptr. 888].)
• The doctrine of imminent peril does not apply to a person whose conduct
causes or contributes to the imminent peril. (Pittman v. Boiven (1967) 249
Cal.App.2d 207, 216 [57 Cal.Rptr. 319].)
• The doctrine applies when a person perceives danger to himself or herself as
well as when he or she perceives a danger to others. (Damele, supra, 219
Cal.App.3d at p. 36.)
• “[T]he mere appearance of an imminent peril to others—not an actual imminent
peril—is all that is required.” (Damele, supra, 219 Cal.App.3d at p. 37.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1282, 1292–1294
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.7
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03, 1.11,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.250 (Matthew
Bender)
329
[Name of plaintiff] claims that [he/she] was not at fault for [his/her] own
injury because [he/she] was attempting to rescue a person who was in
danger [as a result of [name of defendant]’s negligence].
To establish this claim, [name of plaintiff] must prove all of the
following:
1. That there was, or a reasonable person would have perceived
that there was, an emergency situation in which someone was in
actual or apparent danger of immediate injury;
2. That [the emergency/a danger to [name of plaintiff]] was created
by [name of defendant]’s negligence; and
3. That [name of plaintiff] was harmed while attempting to rescue
the person in danger.
[name of plaintiff]” in element 2. Also omit the bracketed material in the opening
sentence.
Sources and Authority
• “The cases have developed the rule that persons injured in the course of
undertaking a necessary rescue may, absent rash or reckless conduct on their
part, recover from the person whose negligence created the peril which
necessitated the rescue. [¶] Although its precise limits are not yet fully
developed, the rescue doctrine varies the ordinary rules of negligence in two
important respects: (1) it permits the rescuer to sue on the basis of defendant’s
initial negligence toward the party rescued, without the necessity of proving
negligence toward the rescuer, and (2) it substantially restricts the availability of
the defense of contributory negligence by requiring defendant to prove that the
rescuer acted rashly or recklessly under the circumstances.” (Solgaard, supra, 6
Cal.3d at p. 368, footnote omitted.)
• “The rescue doctrine contemplates a voluntary act by one who, in an emergency
and prompted by spontaneous human motive to save human life, attempts a
rescue that he had no duty to attempt by virtue of a legal obligation or duty
fastened on him by his employment.” (Bryant v. Glastetter (1995) 32
Cal.App.4th 770, 784 [38 Cal.Rptr.2d 291].)
• “[T]he rescue doctrine arose in an era of contributory negligence, where any
negligence on the part of a plaintiff barred the action. ‘The purpose of the
rescue doctrine when it was first created was to avoid having a plaintiff be
found contributorily negligent as a matter of law when he voluntarily placed
himself in a perilous position to prevent another person from suffering serious
injury or death, the courts often stating that the plaintiff’s recovery should not
be barred unless his rescue attempt was recklessly or rashly made.’ Most
defendants could point to some negligence by the rescuer and simply
approaching the danger could be construed as negligent, or as an assumption of
the risk. This advanced no tenable public policy: It deterred rescues and ran
counter to the human impulse to help others in need. Accordingly, the courts
ruled the act of approaching danger did not interrupt the normal causal reach of
tort liability and did not, of itself, establish contributory negligence.” (Sears v.
Morrison (1999) 76 Cal.App.4th 577, 581 [90 Cal.Rptr.2d 528], internal
citations omitted.)
• “In order to assert the rescue doctrine, the rescuer must show that there was
someone in peril and that he acted to rescue such person from the peril.”
(Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1252 [124
Cal.Rptr.3d 245].)
• “The evidence in the instant case was uncontradicted that defendant’s
employees . . . were in peril of their lives, that immediate action was required
to save or assist them, that plaintiff undertook to rescue them, and that he was
injured while in the course of doing so. It is apparent, therefore, that plaintiff
was, as a matter of law, a rescuer and entitled to the benefits of the rescuer
331
332
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1306–1308
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.41
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03[4],
1.30 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence,
§ 380.30[5][e][v] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.140 (Matthew
Bender)
333
damage, “the cause of action does not accrue prior to the maturation of
perceptible harm.” ’ ” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604
[129 Cal.Rptr.3d 525].)
• “ ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the
speculative nor uncertain character of damages nor the difficulty of proof will
toll the period of limitation.’ Cases contrast actual and appreciable harm with
nominal damages, speculative harm or the threat of future harm. The mere
breach of duty—causing only nominal damages, speculative harm or the threat
of future harm not yet realized—normally does not suffice to create a cause of
action.” (San Francisco Unified School Dist. v. W. R. Grace & Co. (1995) 37
Cal.App.4th 1318, 1326 [44 Cal.Rptr.2d 305], internal citations omitted.)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White
(2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of
fact . . . .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, §§ 71.01–71.06 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§§ 345.19, 345.20 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions,
§§ 143.20–143.65 (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.05, 4.14, 4.38, 4.39
335
New April 2007; Revised December 2007, April 2009, December 2009
Directions for Use
Read this instruction with the first option after CACI No. 454, Affırmative
Defense—Statute of Limitations, if the plaintiff seeks to overcome the statute-of-
limitations defense by asserting the “delayed-discovery rule” or “discovery rule.”
The discovery rule provides that the accrual date of a cause of action is delayed
until the plaintiff is aware of his or her injury and its negligent cause. (Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751 P.2d 923].) The
date to be inserted is the applicable limitation period before the filing date. For
example, if the limitation period is two years and the filing date is August 31,
2009, the date is August 31, 2007.
If the facts suggest that even if the plaintiff had conducted a timely and reasonable
investigation, it would not have disclosed the limitation-triggering information, read
the second option. (See Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797 [27
Cal.Rptr.3d 661, 110 P.3d 914] [fact that plaintiff suspected her injury was caused
by surgeon’s negligence and timely filed action for medical negligence against
health care provider did not preclude “discovery rule” from delaying accrual of
limitations period on products liability cause of action against medical staple
manufacturer whose role in causing injury was not known and could not have been
reasonably discovered within the applicable limitations period commencing from
date of injury].)
See also verdict form CACI No. VF-410, Statute of Limitations—Delayed
Discovery—Reasonable Investigation Would Not Have Disclosed Pertinent Facts.
Do not use this instruction for medical malpractice (see CACI No. 555, Affırmative
Defense—Statute of Limitations—Medical Malpractice—One-Year Limit, and CACI
336
reasonable person would have suspected the injury was caused by wrongdoing.
[Citation.] The first to occur under these two tests begins the limitations
period.’ ” (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1552
[178 Cal.Rptr.3d 897].)
• “While ignorance of the existence of an injury or cause of action may delay the
running of the statute of limitations until the date of discovery, the general rule
in California has been that ignorance of the identity of the defendant is not
essential to a claim and therefore will not toll the statute.” (Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 [30 Cal.Rptr.2d 440, 873
P.2d 613].)
• “[U]nder the delayed discovery rule, a cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause
of action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)
• “[A]s Fox teaches, claims based on two independent legal theories against two
separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)
• “A limitation period does not begin until a cause of action accrues, i.e., all
essential elements are present and a claim becomes legally actionable.
Developed to mitigate the harsh results produced by strict definitions of accrual,
the common law discovery rule postpones accrual until a plaintiff discovers or
has reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82
Cal.App.4th at p. 1029, internal citations omitted.)
• “A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ ” (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)
• “[T]he plaintiff may discover, or have reason to discover, the cause of action
even if he does not suspect, or have reason to suspect, the identity of the
defendant. That is because the identity of the defendant is not an element of
any cause of action. It follows that failure to discover, or have reason to
discover, the identity of the defendant does not postpone the accrual of a cause
of action, whereas a like failure concerning the cause of action itself does.
‘Although never fully articulated, the rationale for distinguishing between
ignorance’ of the defendant and ‘ignorance’ of the cause of action itself
‘appears to be premised on the commonsense assumption that once the plaintiff
is aware of’ the latter, he ‘normally’ has ‘sufficient opportunity,’ within the
‘applicable limitations period,’ ‘to discover the identity’ of the former. He may
‘often effectively extend[]’ the limitations period in question ‘by the filing’ and
338
340
[Name of plaintiff] claims that even if [his/her/its] lawsuit was not filed
on time, [he/she/it] may still proceed because [name of defendant] did or
said something that caused [name of plaintiff] to delay filing the lawsuit.
In order to establish the right to proceed, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] said or did something that caused [name
of plaintiff] to believe that it would not be necessary to file a
lawsuit;
2. That [name of plaintiff] relied on [name of defendant]’s conduct
and therefore did not file the lawsuit within the time otherwise
required;
3. That a reasonable person in [name of plaintiff]’s position would
have relied on [name of defendant]’s conduct; [and]
[4. That after the limitation period had expired, [name of
defendant]’s representations by words or conduct proved to not
be true; and]
5. That [name of plaintiff] proceeded diligently to file suit once [he/
she/it] discovered the need to proceed.
It is not necessary that [name of defendant] have acted in bad faith or
intended to mislead [name of plaintiff].
Cal.App.4th 1236, 1246 [150 Cal.Rptr.3d 446] [equitable estoppel to deny family
leave under California Family Rights Act].)
Most cases do not frame the issue as one of equitable estoppel and its four
elements. All that is required is that the defendant’s conduct actually have misled
the plaintiff, and that plaintiff reasonably have relied on that conduct. Bad faith or
an intent to mislead is not required. (Lantzy v. Centex Homes (2003) 31 Cal.4th
363, 384 [2 Cal.Rptr.3d 655, 73 P.3d 517]; Shaffer v. Debbas (1993) 17
Cal.App.4th 33, 43 [21 Cal.Rptr.2d 110].) Nor does it appear that there is a
requirement that the defendant specifically intended to induce the plaintiff to defer
filing suit. Therefore, no specific intent element has been included. However, the
California Supreme Court has stated that element 4 is to be given in a construction
defect case in which the defendant has assured the plaintiff that all defects will be
repaired. (See Lantzy, supra, 31 Cal.4th at p. 384.)
Sources and Authority
• “As the name suggests, equitable estoppel is an equitable issue for court
resolution.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory
verdicts as to questions of fact [in equitable actions], it is the duty of the trial
court to make its own independent findings and to adopt or reject the findings
of the jury as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146,
156 [85 Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 456 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
estoppel . . . .” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “Equitable tolling and equitable estoppel are distinct doctrines. ‘ “Tolling,
strictly speaking, is concerned with the point at which the limitations period
begins to run and with the circumstances in which the running of the limitations
period may be suspended. . . . Equitable estoppel, however, . . . comes into
play only after the limitations period has run and addresses . . . the
circumstances in which a party will be estopped from asserting the statute of
limitations as a defense to an admittedly untimely action because his conduct
has induced another into forbearing suit within the applicable limitations period.
[Equitable estoppel] is wholly independent of the limitations period itself and
takes its life . . . from the equitable principle that no man [may] profit from his
own wrongdoing in a court of justice.” ’ Thus, equitable estoppel is available
even where the limitations statute at issue expressly precludes equitable tolling.”
(Lantzy, supra, 31 Cal.4th at pp. 383–384, internal citations omitted.)
• “Accordingly, (1) if one potentially liable for a construction defect represents,
while the limitations period is still running, that all actionable damage has been
or will be repaired, thus making it unnecessary to sue, (2) the plaintiff
342
345
[Name of plaintiff] claims that even if [his/her/its] lawsuit was not filed
by [insert date from applicable statute of limitations], [he/she/it] may still
proceed because the deadline for filing the lawsuit was extended by the
time during which [specify prior proceeding that qualifies as the tolling
event, e.g., she was seeking workers’ compensation benefits]. In order to
establish the right to proceed, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] received timely notice that [name of
plaintiff] was [e.g., seeking workers’ compensation] instead of filing
a lawsuit;
2. That the facts of the two claims were so similar that an
investigation of the [e.g., workers’ compensation claim] gave or
would have given [name of defendant] the information needed to
defend the lawsuit; and
3. That [name of plaintiff] was acting reasonably and in good faith
by [e.g., seeking workers’ compensation].
For [name of defendant] to have received timely notice, [name of plaintiff]
must have filed the [e.g., workers’ compensation claim] by [insert date
from applicable statute of limitations] and the [e.g., claim] notified [name
of defendant] of the need to begin investigating the facts that form the
basis for the lawsuit.
In considering whether [name of plaintiff] acted reasonably and in good
faith, you may consider the amount of time after the [e.g., workers’
compensation claim] was [resolved/abandoned] before [he/she/it] filed the
lawsuit.
not enumerated in the statute.” (Laird, supra, 2 Cal.4th at p. 618 [applying rule
to one-year limitation period].)
• “We see no reason to apply the second sentence of section 340.5 to the one-
year period it does not mention, in addition to the three-year period it does
mention. The general purpose of MICRA does not require us to expand that
sentence beyond its language.” (Belton, supra, 20 Cal.4th at p. 934 [rejecting
application of rule to one-year limitation period].)
• “[E]quitable tolling has never been applied to allow a plaintiff to extend the
time for pursuing an administrative remedy by filing a lawsuit. Despite broad
language used by courts in employing the doctrine, equitable tolling has been
applied almost exclusively to extend statutory deadlines for judicial actions,
rather than deadlines for commencing administrative proceedings.” (Bjorndal v.
Superior Court (2012) 211 Cal.App.4th 1100, 1109 [150 Cal.Rptr.3d 405].)
Secondary Sources
Rylaarsdam et al., California Practice Guide: Civil Procedure Before Trial—Statutes
of Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
3 California Torts, Ch. 32, Liability of Attorneys, § 32.60[1][g.1] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.21 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.46
(Matthew Bender)
458–459. Reserved for Future Use
350
353
and the question of the owner’s negligence is not in the case.’ ” (Hillman v.
Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033].)
• “[I]f the animal which inflicted the injury is vicious and dangerous, known to
the defendant to be such, an allegation of negligence on the part of defendant is
unnecessary and the averment, if made, may be treated as surplusage.” (Baugh,
supra, 91 Cal.App.2d at p. 791.)
• “[A] wild animal is presumed to be vicious and since the owner of such an
animal . . . is an insurer against the acts of the animal to anyone who is
injured, and unless such person voluntarily or consciously does something
which brings the injury on himself, the question of the owner’s negligence is
not in the case.” Baugh, supra, 91 Cal.App.2d at p. 791.)
• “The court instructed the jury with respect to the liability of the keeper of a
vicious or dangerous animal, known to be such by its owner. Although plaintiff
has not raised any objection to this instruction, it was not proper in the instant
case since the animal was of the class of animals ferae naturae, of known
savage and vicious nature, and hence an instruction on the owner’s knowledge
of its ferocity was unnecessary.” (Baugh, supra, 91 Cal.App.2d at pp. 791–792.)
• “[Strict] liability has been imposed on ‘keepers of lions and tigers, bears,
elephants, wolves [and] monkeys.’ ” (Rosenbloom v. Hanour Corp. (1998) 66
Cal.App.4th 1477, 1479, fn. 1 [78 Cal.Rptr.2d 686].)
• “The owner of a naturally dangerous animal may be excused from the usual
duty of care: ‘In cases involving “primary assumption of risk”—where, by
virtue of the nature of the activity and the parties’ relationship to the activity,
the defendant owes no legal duty to protect the plaintiff from the particular risk
of harm that caused the injury—the doctrine . . . operates as a complete bar to
the plaintiff’s recovery.’ ” (Rosenbloom, supra, 66 Cal.App.4th at p. 1479,
internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1403
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.23 (Matthew Bender)
1 California Civil Practice: Torts §§ 2:20–2:21 (Thomson Reuters)
355
owner of a domestic animal that bites or injures another person knew or had
reason to know of the animal’s vicious propensities. If [defendant] knew or
should have known of his dog’s vicious propensities and failed to inform
[plaintiff] of such facts, he could be found to have exposed [plaintiff] to an
unknown risk and thereby be held strictly liable at common law for her injuries.
Under such circumstances, the defense of primary assumption of risk would not
bar [plaintiff]’s claim since she could not be found to have assumed a risk of
which she was unaware.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116
[47 Cal.Rptr.3d 553, 140 P.3d 848], original italics, internal citations omitted.)
• “The doctrine of strict liability for harm done by animals has developed along
two separate and independent lines: (1) Strict liability for damages by
trespassing livestock, and (2) strict liability apart from trespass (a) for damages
by animals of a species regarded as inherently dangerous, and (b) for damages
by animals of a species not so regarded but which, in the particular case,
possess dangerous propensities which were or should have been known to the
possessor.” (Thomas, supra, 206 Cal.App.4th at p. 665.)
• “California has long followed the common law rule of strict liability for harm
done by a domestic animal with known vicious or dangerous propensities
abnormal to its class.” (Drake v. Dean (1993) 15 Cal.App.4th 915, 921 [19
Cal.Rptr.2d 325].)
• Any propensity that is likely to cause injury under the circumstances is a
dangerous or vicious propensity within the meaning of the law. (Talizin v. Oak
Creek Riding Club (1959) 176 Cal.App.2d 429, 437 [1 Cal.Rptr. 514].)
• The question of whether a domestic animal is vicious or dangerous is ordinarily
a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601 [123
P.2d 560].)
• “ ‘The gist of the action is not the manner of keeping the vicious animal, but
the keeping him at all with knowledge of the vicious propensities. In such
instances the owner is an insurer against the acts of the animal, to one who is
injured without fault, and the question of the owner’s negligence is not in the
case.’ ” (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033],
internal citations omitted.)
• “The absolute duty to restrain the dog could not be invoked unless the jury
found, not only that the dog had the alleged dangerous propensity, but that
defendants knew or should have known that it had.” (Hillman, supra, 44 Cal.2d
at p. 628.)
• “[N]egligence may be predicated on the characteristics of the animal which,
although not abnormal to its class, create a foreseeable risk of harm. As to those
characteristics, the owner has a duty to anticipate the harm and to exercise
ordinary care to prevent the harm.” (Drake, supra, 15 Cal.App.4th at p. 929.)
• “ ‘It is well settled in cases such as this (the case involved a bull) that the
owner of an animal, not naturally vicious, is not liable for an injury done by it,
357
unless two propositions are established: 1. That the animal in fact was vicious,
and 2. That the owner knew it.” (Mann v. Stanley (1956) 141 Cal.App.2d 438,
441 [296 P.2d 921].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1414–1427
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.33 (Matthew Bender)
1 California Civil Practice: Torts, §§ 2:20–2:21 (Thomson Reuters West)
358
360
361
VF-400 NEGLIGENCE
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
362
VF-401 NEGLIGENCE
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
364
NEGLIGENCE VF-401
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
365
NEGLIGENCE VF-402
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
3. If [name of plaintiff] has proved any damages, then answer
question 4. If [name of plaintiff] has not proved any damages,
then stop here, answer no further questions, and have the
presiding juror sign and date this form.
4. Was [name of plaintiff] negligent?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If
you answered no, insert the number zero next to [name of
plaintiff]’s name in question 8, skip question 5, and answer
question 6.
5. Was [name of plaintiff]’s negligence a substantial factor in
causing [his/her] harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If
you answered no, insert the number zero next to [name of
plaintiff]’s name in question 8 and answer question 6.
6. Was [name/description of first nonparty] negligent?
6. Yes No
6. Was [name/description of second nonparty] negligent?
6. Yes No
367
VF-402 NEGLIGENCE
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
368
NEGLIGENCE VF-402
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No. 406,
Apportionment of Responsibility.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
This verdict form is designed for a single plaintiff, multiple defendants, and
multiple nonparties who are alleged to have been negligent. If there are multiple
plaintiffs, consider preparing a separate verdict form for each. If a coplaintiff is
alleged to have been negligent and that coplaintiff’s negligence is alleged to have
harmed the plaintiff, treat the allegedly negligent coplaintiff as a nonparty in
questions 6 and 7 and add his or her name to the list of contributing persons in
question 8 of the plaintiff’s verdict form.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
369
NEGLIGENCE VF-403
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, April 2009, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 408, Primary Assumption of
Risk—Liability of Coparticipant in Sport or Other Recreational Activity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 408, Primary Assumption of
Risk—Liability of Coparticipant in Sport or Other Recreational Activity.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
371
NEGLIGENCE VF-404
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, December 2010, June 2012,
December 2016
Directions for Use
This verdict form is based on CACI No. 409, Primary Assumption of
Risk—Liability of Instructors, Trainers, or Coaches.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
373
VF-404 NEGLIGENCE
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
374
VF-405 NEGLIGENCE
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
376
VF-406 NEGLIGENCE
Signed:
Presiding Juror
378
NEGLIGENCE VF-406
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 422, Providing Alcoholic Beverages to
Obviously Intoxicated Minors.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Omit question 1 if the defendant is a person such as a social host who, though not
required to be licensed, sells alcohol to an obviously intoxicated minor. (See
Ennabe v. Manosa (2014) 58 Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d
201].)
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the comparative fault of the plaintiff is an issue, this form should be modified.
See CACI No. VF-401, Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue, for a model form involving the issue of
comparative fault.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
379
NEGLIGENCE VF-407
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 460, Strict Liability for Ultrahazardous
Activities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
381
NEGLIGENCE VF-408
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 462, Strict Liability for Injury Caused by
Domestic Animal With Dangerous Propensities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
383
NEGLIGENCE VF-409
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 463, Dog Bite Statute (Civ. Code,
§ 3342)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
385
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
NEGLIGENCE VF-410
date, omit question 2. If the plaintiff claims that the delayed-discovery rule applies
to save the action, use the first option for question 2. If the plaintiff claims that a
reasonable investigation would not have disclosed the pertinent information before
the limitation date, use the second option for question 2.
The date to be inserted throughout is the applicable limitation period before the
filing date. For example, if the limitation period is two years and the filing date is
August 31, 2007, the date is August 31, 2005.
In question 1, “claimed harm” refers to all of the elements of the cause of action,
which must have occurred before the cause of action accrues and the limitation
period begins. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018,
1029 [98 Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term
to refer to specific facts that give rise to the cause of action.
The first option for question 2 may be modified to refer to specific facts that the
plaintiff may have known.
387
NEGLIGENCE VF-411
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-405 December 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 428, Parental Liability (Nonstatutory).
Questions 1 and 3 can be altered to correspond to one or both of the alternative
bracketed option in elements 1 and 3 of CACI No. 428.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
389
VF-411 NEGLIGENCE
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.3
VF-412–VF-499. Reserved for Future Use
390
MEDICAL NEGLIGENCE
MEDICAL NEGLIGENCE
392
395
New September 2003; Revised October 2004, December 2005, December 2010
Directions for Use
This instruction is intended to apply to nonspecialist physicians, surgeons, and
dentists. The standards of care for nurses, specialists, and hospitals are addressed in
separate instructions. (See CACI No. 502, Standard of Care for Medical
Specialists, CACI No. 504, Standard of Care for Nurses, and CACI No. 514, Duty
of Hospital.)
The second paragraph should be used if the court determines that expert testimony
is necessary to establish the standard of care, which is usually the case. (See Scott
v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542–1543 [111 Cal.Rptr.3d 36].)
If the standard of care is set by statute or regulation, refer to instructions on
negligence per se (CACI Nos. 418–421). (See Galvez v. Frields (2001) 88
Cal.App.4th 1410 [107 Cal.Rptr.2d 50].)
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
• “With unimportant variations in phrasing, we have consistently held that a
physician is required to possess and exercise, in both diagnosis and treatment,
that reasonable degree of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar circumstances.”
(Landeros v. Flood (1976) 17 Cal.3d 399, 408 [131 Cal.Rptr. 69, 551 P.2d
389].)
• “The courts require only that physicians and surgeons exercise in diagnosis and
treatment that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of the medical profession under similar
circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36 [210 Cal.Rptr.
762, 694 P.2d 1134].)
• “[T]he law imposes on individuals a duty to have medical education, training
396
and skill before practicing medicine and that practicing medicine without this
education, training and skill is negligent. . . . [A] breach of that portion of the
standard of care does not, in and of itself, establish actionable malpractice (i.e.,
one cannot recover from a person merely for lacking medical knowledge unless
that lack of medical knowledge caused injury to the plaintiff).” (Hinson v.
Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1119 [267
Cal.Rptr. 503], disapproved on other grounds in Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1228 [23 Cal.Rptr.2d 397, 859 P.2d 96].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating
to the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
• “As a general rule, the testimony of an expert witness is required in every
professional negligence case to establish the applicable standard of care,
whether that standard was met or breached by the defendant, and whether any
negligence by the defendant caused the plaintiff’s damages. A narrow exception
to this rule exists where ‘ “ ‘. . . the conduct required by the particular
circumstances is within the common knowledge of the layman.’ . . .
[Citations.]” ’ This exception is, however, a limited one. It arises when a foreign
object such as a sponge or surgical instrument, is left in a patient following
surgery and applies only when the plaintiff can invoke the doctrine of res ipsa
loquitur. ‘The “common knowledge” exception is generally limited to situations
in which . . . a layperson “. . . [can] say as a matter of common knowledge
. . . that the consequences of professional treatment were not such as ordinarily
would have followed if due care had been exercised.” . . .’ ” (Scott, supra, 185
Cal.App.4th at pp. 1542–1543, footnote and internal citations omitted.)
• “We have already held upon authority that the failure to remove a sponge from
the abdomen of a patient is negligence of the ordinary type and that it does not
involve knowledge of materia medica or surgery but that it belongs to that class
of mental lapses which frequently occur in the usual routine of business and
commerce, and in the multitude of commonplace affairs which come within the
group of ordinary actionable negligence. The layman needs no scientific
enlightenment to see at once that the omission can be accounted for on no other
theory than that someone has committed actionable negligence.” (Ales v. Ryan
(1936) 8 Cal.2d 82, 93 [64 P.2d 409].)
• The medical malpractice standard of care applies to veterinarians. (Williamson v.
Prida (1999) 75 Cal.App.4th 1417, 1425 [89 Cal.Rptr.2d 868].)
397
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 933, 934, 971, 975
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.1
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.11 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.42
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13,
295.43, 295.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et. seq. (Matthew Bender)
398
physician who must conform to the standards of the profession and who must
often make diagnoses and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and in predicting
whether a patient presents a serious danger of violence is comparable to the
judgment which doctors and professionals must regularly render under accepted
rules of responsibility.” (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d
425, 438 [131 Cal.Rptr. 14, 551 P.2d 334].)
• “[A] psychotherapist or other mental health care provider has a duty to use a
reasonable degree of skill, knowledge and care in treating a patient,
commensurate with that possessed and exercised by others practicing within that
specialty in the professional community.” (Kockelman v. Segal (1998) 61
Cal.App.4th 491, 505 [71 Cal.Rptr.2d 552].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating
to the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.2
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.85 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
400
Derived from former CACI No. 503 April 2007; Revised June 2013
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist for failure to protect a victim from a patient’s act of
violence after the patient communicated to the therapist a threat against the victim.
(See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14,
551 P.2d 334].) The liability imposed by Tarasoff is modified by the provisions of
Civil Code section 43.92(a). First read CACI No. 503B, Affırmative
Defense—Psychotherapist’s Communication of Threat to Victim and Law
Enforcement, if the therapist asserts that he or she is immune from liability under
Civil Code section 43.92(b) because he or she made reasonable efforts to
communicate the threat to the victim and to a law enforcement agency.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(a).
• “[T]herapists cannot escape liability merely because [the victim] was not their
patient. When a therapist determines, or pursuant to the standards of his
401
402
Derived from former CACI No. 503 April 2007; Revised June 2013
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425
[131 Cal.Rptr. 14, 551 P.2d 334]) if there is a dispute of fact regarding whether the
defendant made reasonable efforts to communicate to the victim and to a law
enforcement agency a threat made by the defendant’s patient. The therapist is
immune from liability under Tarasoff if he or she makes reasonable efforts to
communicate the threat to the victim and to a law enforcement agency. (Civ. Code,
§ 43.92(b).) CACI No. 503A, Psychotherapist’s Duty to Protect Intended Victim
From Patient’s Threat, sets forth the elements of a Tarasoff cause of action if the
defendant is not immune.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(b).
• Failure to inform a law enforcement agency concerning a homicidal threat made
by a patient against his work supervisor did not abrogate the “firefighter’s rule”
and, therefore, did not render the psychiatrist liable to a police officer who was
subsequently shot by the patient. (Tilley v. Schulte (1999) 70 Cal.App.4th 79,
85–86 [82 Cal.Rptr.2d 497].)
• “When the communication of the serious threat of physical violence is received
by the therapist from a member of the patient’s immediate family and is shared
for the purpose of facilitating and furthering the patient’s treatment, the fact that
the family member is not technically a ‘patient’ is not crucial to the statute’s
purpose.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d
864].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1050, 1051
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services and Civil Rights,
§ 361A.93 (Matthew Bender)
403
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
404
[A/An] [insert type of nurse] is negligent if [he/she] fails to use the level
of skill, knowledge, and care in diagnosis and treatment that other
reasonably careful [insert type of nurses] would use in similar
circumstances. This level of skill, knowledge, and care is sometimes
referred to as “the standard of care.”
[You must determine the level of skill, knowledge, and care that other
reasonably careful [insert type of nurses] would use in similar
circumstances based only on the testimony of the expert witnesses
[including [name of defendant]] who have testified in this case.]
P.2d 665].) Courts have observed that nurses are trained, “but to a lesser degree
than a physician, in the recognition of the symptoms of diseases and injuries.”
(Cooper v. National Motor Bearing Co. (1955) 136 Cal.App.2d 229, 238 [288
P.2d 581].)
• “[E]xpert opinion testimony is required to prove that a defendant nurse did not
meet the standard of care and therefore was negligent, ‘except in cases where
the negligence is obvious to laymen.’ ” (Massey, supra, 180 Cal.App.4th at pp.
694–695.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 995–997
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.52
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.84 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
seq. (Matthew Bender)
406
408
409
410
Secondary Sources
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.16 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.22,
175.23 (Matthew Bender)
411
412
413
operating surgeon, is under his special supervision and control during the
operation, the relationship of master and servant exists, and the surgeon is
liable, under the doctrine of respondeat superior, for the employee’s
negligence.’ ” (Thomas, supra, 47 Cal.App.4th at pp. 966–967, original italics.)
• This doctrine applies only to medical personnel who are actively participating in
the surgical procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)
• While the “captain of the ship” doctrine has never been expressly rejected, it
has been eroded by modern courts. “A theory that the surgeon directly controls
all activities of whatever nature in the operating room certainly is not realistic
in present day medical care.” (Truhitte, supra, 128 Cal.App.3d at p. 348,
original italics.)
• “[T]he Truhitte court ignores what we have already recognized as the special
relationship between a vulnerable hospital patient and the surgeon operating on
the patient. A helpless patient on the operating table who cannot understand or
control what is happening reasonably expects a surgeon to oversee her care and
to look out for her interests. We find this special relationship sufficient
justification for the continued application of captain of the ship doctrine.
Moreover, in light of the Supreme Court’s expressions of approval of the
doctrine . . . , we feel compelled to adhere to the doctrine.” (Baumgardner,
supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)
• Absent evidence of right to control, an operating surgeon is generally not
responsible for the conduct of anesthesiologists or others who independently
carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d
915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 976
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.25
(Matthew Bender)
415
416
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 977
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
417
419
421
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 986–989
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based On Omission To Act—Legal Duty Arising From “Special
Relationship”, ¶¶ 2:1911, 2:1982 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA
Provisions Affecting Damages, ¶¶ 3:282.11c, 3:282.11d (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.64
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
424
426
A patient must use reasonable care to provide for his or her own well-
being. This includes a responsibility to [follow [a/an] [insert type of
medical practitioner]’s instructions/seek medical assistance] when a
reasonable person in the same situation would do so.
[Name of defendant] claims that [name of plaintiff]’s harm was caused, in
whole or in part, by [name of plaintiff]’s negligence in failing to [follow
[name of defendant]’s instructions/seek medical assistance]. To succeed,
[name of defendant] must prove both of the following:
1. That [name of plaintiff] did not use reasonable care in [following
[name of defendant]’s instructions/seeking medical assistance];
and
2. That [name of plaintiff]’s failure to [follow [name of defendant]’s
instructions/seek medical assistance] was a substantial factor in
causing [his/her] harm.
prudent person determines the right of respondent to recover all of the special
damages, and the implied finding was that respondent was not arbitrary in not
promptly acceding to each suggestion of an operation.” (Dodds v. Stellar (1946)
77 Cal.App.2d 411, 422 [175 P.2d 607].)
• “Negligence, in fact, may often explain why the patient, to begin with, needed
and sought out the physician’s assistance. The health care professional, in this
instance, takes the patient as he finds him. Other than in very rare cases, the
only legitimate application of the doctrine of contributory fault is when it takes
place concurrently with or after the delivery of the practitioner’s care and
treatment.” (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 632 [183
Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1624
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.66
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.61 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.14
(Matthew Bender)
428
jury is required to find that the accident resulted from the defendant’s negligence
unless the defendant comes forward with evidence that would support a contrary
finding. (See Cal. Law Revision Com. comment to Evid. Code, § 646.) The last
two paragraphs of the instruction assume that the defendant has presented evidence
that would support a finding that the defendant was not negligent or that any
negligence on the defendant’s part was not a proximate cause of the accident. In
this case, the presumption drops out, and the plaintiff must then prove the elements
of negligence without the benefit of the presumption of res ipsa loquitur. (See
Howe, supra, 189 Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res ipsa loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption
arises when the evidence satisfies three conditions: ‘ “(1) the accident must be
of a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality within the
exclusive control of the defendant; (3) it must not have been due to any
voluntary action or contribution on the part of the plaintiff.” ’ A presumption
affecting the burden of producing evidence ‘require[s] the trier of fact to assume
the existence of the presumed fact’ unless the defendant introduces evidence to
the contrary. The presumed fact, in this context, is that ‘a proximate cause of
the occurrence was some negligent conduct on the part of the defendant. . . .’ If
the defendant introduces ‘evidence which would support a finding that he was
not negligent or that any negligence on his part was not a proximate cause of
the occurrence,’ the trier of fact determines whether defendant was negligent
without regard to the presumption, simply by weighing the evidence.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679,
843 P.2d 624], internal citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was
the result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
430
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• “In determining the applicability of res ipsa loquitur, courts have relied on both
expert testimony and common knowledge. The standard of care in a
professional negligence case can be proved only by expert testimony unless the
conduct required by the particular circumstances is within the common
knowledge of the layperson.” (Blackwell v. Hurst (1996) 46 Cal.App.4th 939,
943 [54 Cal.Rptr.2d 209], internal citations omitted.)
• “Under the doctrine of res ipsa loquitur and this common knowledge exception,
it is proper to instruct the jury that it can infer negligence from the happening
of the accident itself, if it finds based on common knowledge, the testimony of
physicians called as expert witnesses, and all the circumstances, that the injury
was more likely than not the result of negligence.” (Gannon v. Elliot (1993) 19
Cal.App.4th 1, 6 [23 Cal.Rptr.2d 86], internal citation omitted.)
• “The fact that a particular injury rarely occurs does not in itself justify an
inference of negligence unless some other evidence indicates negligence. To
justify res ipsa loquitur instructions, appellant must have produced sufficient
evidence to permit the jury to make the necessary decision. He must have
presented ‘some substantial evidence which, if believed by the jury, would
entitle it to draw an inference of negligence from the happening of the accident
itself.’ ” (Blackwell, supra, 46 Cal.App.4th at p. 944, internal citations omitted.)
• The purpose of the second “control” requirement is to “link the defendant with
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].) The control requirement is not absolute. (Zentz, supra, 39 Cal.2d at p.
443.)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of
431
negligence or lack of proximate cause that the injury claimed was the result of
that negligence. As a presumption affecting the burden of producing evidence
(as distinguished from a presumption affecting the burden of proof), if evidence
is presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of
the accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of
the presumed fact causes the presumption, as a matter of law, to disappear.’
When the presumptive effect vanishes, it is the plaintiff’s burden to introduce
actual evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving
rise to the presumption have been proved by a preponderance of the evidence, it
may nevertheless find the defendant negligent if it concludes from a
consideration of all the evidence that it is more probable than not that the
defendant was negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal
citation omitted.)
• “It follows that where part of the facts basic to the application of the doctrine
of res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” (Rimmele v.
Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions,
§§ 114–118
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11[2] (Matthew Bender)
432
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.50
(Matthew Bender)
519–530. Reserved for Future Use
433
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Select either or both of the two bracketed options in the first element depending on
the nature of the case. In a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred, give CACI No.
530B, Medical Battery—Conditional Consent.
Sources and Authority
• Battery may also be found if a substantially different procedure is performed:
“Where a doctor obtains consent of the patient to perform one type of treatment
and subsequently performs a substantially different treatment for which consent
was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8
Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “The battery theory should be reserved for those circumstances when a doctor
performs an operation to which the patient has not consented. When the patient
gives permission to perform one type of treatment and the doctor performs
another, the requisite element of deliberate intent to deviate from the consent
given is present. However, when the patient consents to certain treatment and
the doctor performs that treatment but an undisclosed inherent complication
with a low probability occurs, no intentional deviation from the consent given
appears; rather, the doctor in obtaining consent may have failed to meet his due
care duty to disclose pertinent information. In that situation the action should be
pleaded in negligence.” (Cobbs, supra, 8 Cal.3d at p. 240.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
434
436
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Give this instruction in a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred. If the claim is that
the defendant proceeded without any consent or deviated from the consent given,
give CACI No. 530A, Medical Battery.
Sources and Authority
• Battery may also be found if a conditional consent is violated: “[I]t is well
recognized a person may place conditions on [his or her] consent. If the actor
exceeds the terms or conditions of the consent, the consent does not protect the
actor from liability for the excessive act.” (Ashcraft v. King (1991) 228
Cal.App.3d 604, 610 [278 Cal.Rptr. 900].)
• Battery is an intentional tort. Therefore, a claim for battery against a doctor as a
violation of conditional consent requires proof that the doctor intentionally
violated the condition placed on the patient’s consent. (Piedra v. Dugan (2004)
123 Cal.App.4th 1483, 1498 [21 Cal.Rptr.3d 36], internal citations omitted.)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No.
437
530A. On the other hand, in a case involving conditional consent, the requisite
element of deliberate intent to deviate from the consent given cannot be
presumed simply from the act itself. This is because if the intent element is not
explicitly stated in the instruction, it would be possible for a jury (incorrectly)
to find a doctor liable for medical battery even if it believed the doctor
negligently forgot about the condition precedent.” (Dennis v. Southard (2009)
174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d 559], internal citation omitted.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324
[71 Cal.Rptr.3d 469].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 388–635
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew
Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
438
In this case [name of patient] could not consent to the [insert medical
procedure] because [he/she] was [insert reason—e.g., a minor/incompetent/
unconscious]. In this situation, the law allows [name of authorized person]
to give consent on behalf of [name of patient].
You must decide whether [name of authorized person] consented to the
[insert medical procedure] performed on [name of patient].
439
New September 2003; Revised December 2005, October 2008, June 2014
Directions for Use
This instruction should be read in conjunction with CACI No. 533, Failure to
Obtain Informed Consent—Essential Factual Elements. Do not give this instruction
with CACI No. 530A, Medical Battery, or CACI No. 530B, Medical
Battery—Conditional Consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316,
324 [71 Cal.Rptr.3d 469].)
If the patient is a minor or is incapacitated, tailor the instruction accordingly. If a
medical practitioner knows or should know of a patient’s unique concerns or lack
of familiarity with medical procedures, this knowledge may expand the scope of
required disclosures and require additional instructional language. (See Truman v.
Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902].)
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “From the foregoing axiomatic ingredients emerges a necessity, and a resultant
requirement, for divulgence by the physician to his patient of all information
relevant to a meaningful decisional process.” (Cobbs v. Grant (1972) 8 Cal.3d
229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “ ‘[A] physician has a fiduciary duty to disclose all information material to the
patient’s decision,’ when soliciting a patient’s consent to a medical procedure. A
cause of action premised on a physician’s breach of this fiduciary duty may
440
442
444
446
(1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations
omitted.)
• “The duty of reasonable disclosure was expanded in Truman v. Thomas [supra].
There, a doctor recommended that his patient undergo a risk-free diagnostic
procedure but failed to advise her of the risks involved in the failure to follow
his recommendation. The Supreme Court concluded that for a patient to make
an informed choice to decline a recommended procedure the patient must be
adequately advised of the risks of refusing to undergo the procedure. Thus, the
high court extended the duty to make disclosure to include recommended
diagnostic as well as therapeutic procedures and to include situations in which
the patient declines the recommended procedure.” (Vandi v. Permanente
Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].)
• “In a nutshell, a doctor has a duty to disclose all material information to his
patient which will enable that patient to make an informed decision regarding
the taking or refusal to take such a test.” (Moore v. Preventive Medicine
Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 400–404, 406,
407, 409, 410
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.33 (Matthew Bender)
536–549. Reserved for Future Use
448
449
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 398
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
450
[Name of defendant] claims that [he/she] did not have to inform [name of
patient] of the risks of the [insert medical procedure] because [name of
patient] asked not to be told of the risks.
If [name of defendant] has proved that [name of patient] told [him/her]
that [he/she] did not want to be informed of the risks of the [insert
medical procedure], then you must conclude that [name of defendant] was
not negligent in failing to inform [name of patient] of the risks.
451
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of [a/an] [insert medical procedure]. [A/An] [insert
type of medical practitioner] is not required to tell a patient about the
dangers of a simple procedure if it is commonly understood that the
dangers are not likely to occur.
If [name of defendant] has proved that [a/an] [insert medical procedure] is
a simple procedure, and that it is commonly understood that any
dangers are not likely to occur, then [name of defendant] was not
required to inform [name of plaintiff] of the risks.
453
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of the [insert medical procedure]. [A/An] [insert type
of medical practitioner] does not have to provide information about risks
if the information will so seriously upset the patient that the patient will
not be able to reasonably consider the risks of refusing to have the
medical procedure.
If [name of defendant] has proved that [name of plaintiff] would have
been so seriously upset by being told of the risks that [he/she] would not
have been able to reasonably consider the risks of refusing to have the
[insert medical procedure], then [name of defendant] was not required to
inform [name of plaintiff] of the risks.
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
455
[Name of defendant] claims that [he/she] did not have to obtain [name of
patient/authorized person]’s informed consent to the [insert medical
procedure] because an emergency existed. To succeed, [name of
defendant] must prove both of the following:
1. That [name of defendant] reasonably believed the [insert medical
procedure] had to be done immediately in order to preserve the
life or health of [name of patient]; and
2. That [insert one or more of the following:]
2. [[name of patient] was unconscious] [or]
2. [there was not enough time to inform [name of patient]] [or]
2. [there was not enough time to get consent from an authorized
person].
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.14, 31.62 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[7] (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.38 (Matthew
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
457
(See Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d 701]
[construing structurally similar Code Civ. Proc., § 340.6, on legal malpractice, to
place burden regarding delayed discovery on the defendant and disapproving
Burgon v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813 [155 Cal.Rptr.
763], which had reached the opposite result under Code Civ. Proc., § 340.5].) See
also CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit.
Sources and Authority
• Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section
340.5.
• Notice of Intent to Commence Action. Code of Civil Procedure section 364(a).
• 90-Day Extension of Limitation Period. Code of Civil Procedure section 364(d).
• “The one-year limitation period of section 340.5 is a codification of the
discovery rule, under which a cause of action accrues when the plaintiff is
aware, or reasonably should be aware, of ‘injury,’ a term of art which means
‘both the negligent cause and the damaging effect of the alleged wrongful
act.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 [170 Cal.Rptr.3d
125].)
• “When a plaintiff has information which would put a reasonable person on
inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused”
and the plaintiff has “become alerted to the necessity for investigation and
pursuit of her remedies,” the one-year period commences. “Possession of
‘presumptive’ as well as ‘actual’ knowledge will commence the running of the
statute.” ’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [16 Cal.Rptr.2d
714], internal citations omitted.)
• “We see no reason to apply the second sentence of section 340.5 to the one-
year period it does not mention, in addition to the three-year period it does
mention. The general purpose of MICRA does not require us to expand that
sentence beyond its language.” (Belton v. Bowers Ambulance Serv. (1999) 20
Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [Code Civ. Proc., § 352.1,
which tolls statutes of limitation for prisoners, applies to extend one-year period
of Code Civ. Proc., § 340.5].)
• “The implications of Belton’s analysis for our case here is inescapable. Like
tolling the statute of limitations for confined prisoners under section 352.1,
tolling under section 351 for a defendant’s absence from California is of general
applicability [and therefore extends the one-year period of Code of Civil
Procedure section 340.5]. (For other general tolling provisions, see § 352
[minors or insanity]; § 352.5 [restitution orders]; § 353.1 [court’s assumption of
attorney’s practice]; § 354 [war]; § 356 [injunction].)” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 643 [75 Cal.Rptr.3d 861].)
• “[A] plaintiff’s minority as such does not toll the limitations period of section
340.5. When the Legislature added the separate statute of limitations for minors
459
to section 340.5 in 1975, it clearly intended that the general provision for
tolling of statutes of limitation during a person’s minority (§ 352, subd. (a)(1))
should no longer apply to medical malpractice actions.” (Steketee v. Lintz
(1985) 38 Cal.3d 46, 53 [210 Cal.Rptr 781, 694 P.2d 1153], internal citations
omitted.)
• “Section 340.5 creates two separate statutes of limitations, both of which must
be satisfied if a plaintiff is to timely file a medical malpractice action. First, the
plaintiff must file within one year after she first ‘discovers’ the injury and the
negligent cause of that injury. Secondly, she must file within three years after
she first experiences harm from the injury. This means that if a plaintiff does
not ‘discover’ the negligent cause of her injury until more than three years after
she first experiences harm from the injury, she will not be able to bring a
malpractice action against the medical practitioner or hospital whose
malpractice caused her injury.” (Ashworth v. Mem’l Hosp. (1988) 206
Cal.App.3d 1046, 1054 [254 Cal.Rptr. 104], original italics.)
• “That legislative purpose [re: Code Civ. Proc., § 364] is best effectuated by
construing section 364(d) as tolling the one-year statute of limitations when
section 364(a)’s ninety-day notice of intent to sue is served during, but not
before, the last ninety days of the one-year limitations period. Because the
statute of limitations is tolled for 90 days and not merely extended by 90 days
from the date of service of the notice, this construction results in a period of 1
year and 90 days in which to file the lawsuit. In providing for a waiting period
of at least 90 days before suit can be brought, this construction achieves the
legislative objective of encouraging negotiated resolutions of disputes.” (Woods,
supra, 53 Cal.3d at p. 325.)
• “[I]f the act or omission that led to the plaintiff’s injuries was negligence in the
maintenance of equipment that, under the prevailing standard of care, was
reasonably required to treat or accommodate a physical or mental condition of
the patient, the plaintiff’s claim is one of professional negligence under section
340.5. But section 340.5 does not extend to negligence in the maintenance of
equipment and premises that are merely convenient for, or incidental to, the
provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229].)
• “[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions
alleging injury suffered as a result of negligence in . . . the provision of
medical care to patients.’ Driving to an accident victim is not the same as
providing medical care to the victim. A paramedic’s exercise of due care while
driving is not ‘necessary or otherwise integrally related to the medical treatment
and diagnosis of the patient”, at least when the patient is not in the vehicle.’ ”
(Aldana v. Stillwagon (2016) 205 Cal.Rptr.3d 719, 2 Cal.App.5th 1, 8], internal
citations omitted.)
Secondary Sources
Haning, et al., California Practice Guide: Personal Injury, Ch. 1-B, Initial
460
461
464
465
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 500, Medical Negligence—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
466
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2015, December
2016
Directions for Use
This verdict form is based on CACI No. 533, Failure to Obtain Informed
Consent—Essential Factual Elements, and CACI No. 550, Affırmative
Defense—Plaintiff Would Have Consented.
The special verdict forms in this section are intended only as models. They may
468
469
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2016
471
472
PROFESSIONAL NEGLIGENCE
473
negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491
P.2d 433].)
• “ ‘In addressing breach of duty, “the crucial inquiry is whether [the attorney’s]
advice was so legally deficient when it was given that he [or she] may be found
to have failed to use ‘such skill, prudence, and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the performance of the
tasks which they undertake.’ . . .” ’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
• “[I]f the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP
(2014) 228 Cal.App.4th 107, 112–113 [174 Cal.Rptr.3d 662].)
• “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of
fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
• “It is well settled that an attorney is liable for malpractice when his negligent
investigation, advice, or conduct of the client’s affairs results in loss of the
client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218
Cal.Rptr. 313, 705 P.2d 886].)
• “[A] lawyer holding himself out to the public and the profession as specializing
in an area of the law must exercise the skill, prudence, and diligence exercised
by other specialists of ordinary skill and capacity specializing in the same
field.” (Wright, supra, 47 Cal.App.3d at p. 810.)
• “To establish a [professional] malpractice claim, a plaintiff is required to present
expert testimony establishing the appropriate standard of care in the relevant
community. ‘Standard of care “ ‘is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations] . . . .’ ” [Citation.]’ ” (Quigley v.
McClellan (2013) 214 Cal.App.4th 1276, 1283 [154 Cal.Rptr.3d 719], internal
citations omitted.)
• “ ‘. . . “[W]here the failure of attorney performance is so clear that a trier of
fact may find professional negligence unassisted by expert testimony, then
expert testimony is not required.” In other words, if the attorney’s negligence is
readily apparent from the facts of the case, then the testimony of an expert may
not be necessary.’ ” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 [41
Cal.Rptr.2d 768], internal citations omitted.)
• “Where . . . the malpractice action is brought against an attorney holding
himself out as a legal specialist and the claim against him is related to his
expertise as such, then only a person knowledgeable in the specialty can define
the applicable duty of care and opine whether it was met.” (Wright, supra, 47
Cal.App.3d at pp. 810–811, footnote and internal citations omitted.)
• “The standard is that of members of the profession ‘in the same or a similar
locality under similar circumstances’. . . . The duty encompasses both a
knowledge of law and an obligation of diligent research and informed
475
476
479
possess knowledge of those plain and elementary principles of law which are
commonly known by well informed attorneys, and to discover those additional
rules of law which, although not commonly known, may readily be found by
standard research techniques.” (Smith v. Lewis (1975) 13 Cal.3d 349, 358 [118
Cal.Rptr. 621, 530 P.2d 589], overruled in part on other grounds in In re
Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d
561].)
• “In order to prevail on this theory and escape a negligence finding, an attorney
must show that there were unsettled or debatable areas of the law that were the
subject of the legal advice rendered and this advice was based upon ‘reasonable
research in an effort to ascertain relevant legal principles and to make an
informed decision as to a course of conduct based upon an intelligent
assessment of the problem.’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 378–379 [89 Cal.Rptr.3d 710].)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 326–329
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:234 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, §§ 32.11, 32.62
(Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, § 76.50 (Matthew Bender)
1 California Legal Forms, Ch. 1A, Role of Counsel in Starting a New Business,
§§ 1A.30–1A.32 (Matthew Bender)
481
482
483
or her own wrong. [Citation.] Second, to allow guilty defendants to shift their
punishment to their former attorneys would undermine the criminal justice
system. [Citation.] Third, “a defendant’s own criminal act remains the ultimate
source of his predicament irrespective of counsel’s subsequent negligence.”
[Citation.] Fourth, a guilty defendant who is convicted or given a longer
sentence as a result of counsel’s incompetence can obtain postconviction relief
on that basis; in contrast, “a civil matter lost through an attorney’s negligence is
lost forever.” [Citation.] Fifth, there are formidable practical problems with
criminal malpractice litigation, including the difficulty of quantifying damages
and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard
applicable in a criminal trial. [Citation.]’ ” (Khodayari v. Mashburn (2011) 200
Cal.App.4th 1184, 1193 [132 Cal.Rptr.3d 903].)
• “If the defendant has in fact committed a crime, the remedy of a new trial or
other relief is sufficient reparation in light of the countervailing public policies
and considering the purpose and function of constitutional guaranties.” Wiley v.
County of San Diego (1998) 19 Cal.4th 532, 543 [79 Cal.Rptr.2d 672, 966 P.2d
983].)
• “The question of actual innocence is inherently factual. While proof of the
government’s inability to prove guilt may involve technical defenses and
evidentiary rules, proof of actual innocence obliges the malpractice plaintiff ‘to
convince the civil jurors of his innocence.’ Thus, the determination of actual
innocence is rooted in the goal of reliable factfinding.” (Salisbury v. County of
Orange (2005) 131 Cal.App.4th 756, 764–765 [31 Cal.Rptr.3d 831], internal
citations omitted.)
• “[A]n individual convicted of a criminal offense must obtain reversal of his or
her conviction, or other exoneration by postconviction relief, in order to
establish actual innocence in a criminal malpractice action. . . . [P]ublic policy
considerations require that only an innocent person wrongly convicted be
deemed to have suffered a legally compensable harm. Unless a person convicted
of a criminal offense is successful in obtaining postconviction relief, the policies
reviewed in Wiley [supra] preclude recovery in a legal malpractice action.”
(Coscia, supra, 25 Cal.4th at p. 1201.)
• “[A] plaintiff must obtain postconviction relief in the form of a final disposition
of the underlying criminal case—for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus
relief—as a prerequisite to proving actual innocence in a malpractice action
against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p.
1205.)
• “[T]he rationale of Wiley and Coscia requires a plaintiff in a criminal legal
malpractice case to show actual innocence and postconviction exoneration on
any guilty finding for a lesser included offense, even though the plaintiff alleges
he received negligent representation only on the greater offense.” (Sangha v.
485
486
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037−1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6,
discovery of the negligent act or omission initiates the statutory period, and the
absence of injury or damages serves as a tolling factor.” (Adams v. Paul (1995)
11 Cal.4th 583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal
citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute
of limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273,
989 P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the
facts alleged to constitute defendant’s wrongdoing more than one year prior to
filing this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations
omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “We hold that a cause of action for legal malpractice does not accrue until the
client discovers, or should discover, the facts establishing the elements of his
cause of action.” (Neel, supra, 6 Cal.3d at p. 194.)
• “ ‘[W]here there is a professional relationship, the degree of diligence in
ferreting out the negligence for the purpose of the statute of limitations is
diminished. [Citation.]’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 315 [166 Cal.Rptr.3d 116].)
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. The mere breach of a professional duty, causing only
nominal damages, speculative harm, or the threat of future harm—not yet
realized—does not suffice to create a cause of action for negligence. Hence,
until the client suffers appreciable harm as a consequence of his attorney’s
negligence, the client cannot establish a cause of action for malpractice.” (Budd
v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal
citations omitted.)
489
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses
a particular phase of such a relationship-representation regarding a specific
subject matter. Moreover, the limitations period is not tolled when an attorney’s
subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d
392], original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section
340.6 apply to that firm; the term ‘attorney’ in section 340.6 may embrace the
entire partnership, law corporation, or other legal entity the client retains. [¶]
That either an attorney or a firm may be the subject of an action does not
support a reading under which representation by one attorney or firm might toll
the limitations period as to another no longer affiliated attorney or firm. Rather,
the text implies an action against a law firm is tolled so long as that firm
continues representation, just as an action against an attorney is tolled so long
as that attorney continues representation, but representation by one attorney or
firm does not toll claims that may exist against a different, unaffiliated attorney
or firm.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509
[66 Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC, supra, 222 Cal.App.4th at p. 314.)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
490
492
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037−1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6,
discovery of the negligent act or omission initiates the statutory period, and the
absence of injury or damages serves as a tolling factor.” (Adams v. Paul (1995)
11 Cal.4th 583, 598 fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations
omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute
of limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273,
989 P.2d 701], internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. The mere breach of a professional duty, causing only
nominal damages, speculative harm, or the threat of future harm—not yet
realized—does not suffice to create a cause of action for negligence. Hence,
until the client suffers appreciable harm as a consequence of his attorney’s
negligence, the client cannot establish a cause of action for malpractice.” (Budd
v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal
citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses
495
client actually has or reasonably should have no expectation that the attorney
will provide further legal services. . . . That may occur upon the attorney’s
express notification to the client that the attorney will perform no further
services, or, if the attorney remains silent, may be inferred from the
circumstances. Absent actual notice to the client that the attorney will perform
no further legal services or circumstances that reasonably should cause the
client to so conclude, a client should be entitled to rely on an attorney to
perform the agreed services and should not be required to interrupt the attorney-
client relationship by filing a malpractice complaint. After a client has no
reasonable expectation that the attorney will provide further legal services,
however, the client is no longer hindered by a potential disruption of the
attorney-client relationship and no longer relies on the attorney’s continuing
representation, so the tolling should end. To this extent and for these reasons,
we conclude that continuous representation should be viewed objectively from
the client’s perspective . . . .” (Laclette v. Galindo (2010) 184 Cal.App.4th 919,
928 [109 Cal.Rptr.3d 660], original italics.)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 573, 626–655
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.05
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, §§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
612–699. Reserved for Future Use
497
499
persons on the highway and must keep his car under such control as will enable
him to avoid a collision; failure to keep such a lookout constitutes negligence.”
(Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519,
524 [113 Cal.Rptr. 277].)
• On the lookout requirement, one court observed: “The driver of an automobile
is bound to use reasonable care to anticipate the presence on the highway of
others who have equal right to be there and the fact that his vision is
temporarily interfered with, either by the glaring sun or headlights, does not
relieve him from that duty.” (Hill v. Peres (1934) 136 Cal.App. 132, 137 [28
P.2d 946], internal citations omitted.)
• On the control requirement, one court observed: “Cases in which the problem
has been presented adhere to the view that a driver must at all times exercise
ordinary care to avoid a collision including swerving or altering his course, in
addition to applying his brakes, if that would be a reasonable means of avoiding
the collision.” (Guyton v. City of Los Angeles (1959) 174 Cal.App.2d 354, 362
[344 P.2d 910].)
• “The age of a minor who operates a motor vehicle will not excuse him from
liability for driving it in a negligent manner, and he will be required to meet the
standard established primarily for adults.” (Prichard v. Veterans Cab Co. (1965)
63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360].)
• Drivers with mental disabilities are required to exercise the ordinary care
required of an adult without such disability. (Fox v. City and County of San
Francisco (1975) 47 Cal.App.3d 164, 173 [120 Cal.Rptr. 779].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.1–4.5
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.01 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.10 (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 25:22
501
• “When, as here, each motorist has acted reasonably and the pedestrian has
failed to exercise due care for her own safety, the law of this state does not
permit the technical violation of the pedestrian’s right of way statute to impose
negligence on the motorists as a matter of law. The statute creates a
preferential, but not absolute, right in favor of the pedestrian who is still under
a duty to exercise ordinary care.” (Byrne v. City and County of San Francisco
(1980) 113 Cal.App.3d 731, 742 [170 Cal.Rptr. 302].)
• “ ‘Even where a right of way is given by statute, if conditions so require it to
avoid injury to others, the right of way must be yielded.’ ” (Bove v. Beckman
(1965) 236 Cal.App.2d 555, 563 [46 Cal.Rptr. 164], internal citation omitted.)
• “Although such a driver may have the right-of-way, he is not absolved of the
duty to exercise ordinary care; may not proceed blindly in disregard of an
obvious danger; and must be watchful of the direction in which danger is most
likely to be apprehended.” (Malone v. Perryman (1964) 226 Cal.App.2d 227,
234 [37 Cal.Rptr. 864].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 879, 880
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.15
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, §§ 82.10, 82.68 (Matthew Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters)
503
504
The statute just read to you uses the words “immediate hazard.” An
immediate hazard exists if the approaching vehicle is so near or is
approaching so fast that a reasonably careful person would realize that
there is a danger of collision [or accident].
505
The statute just read to you uses the word “hazard.” A “hazard” exists
if any approaching vehicle is so near or is approaching so fast that a
reasonably careful person would realize that there is a danger of a
collision [or accident].
[A driver who is attempting to make a left turn must make sure that no
oncoming vehicles are close enough to be a hazard before he or she
proceeds across each lane.]
506
A driver must use reasonable care when turning [or moving to the right
or to the left].
507
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[3][a] (Matthew
Bender)
509
The speed limit where the accident occurred was [insert number] miles
per hour.
The speed limit is a factor to consider when you decide whether or not
[name of plaintiff/name of defendant] was negligent. A driver is not
necessarily negligent just because he or she was driving faster than the
speed limit. However, a driver may be negligent even if he or she was
driving at or below the speed limit.
The maximum speed limit where the accident occurred was [insert
number] miles per hour.
511
The statute just read to you uses the term “under the influence.” A
driver is not necessarily “under the influence” just because he or she
has consumed some alcohol [or drugs]. A driver is “under the influence”
when he or she has consumed an amount of alcohol [or drugs] that
impairs his or her ability to drive in a reasonably careful manner.
certain time is a question of fact for the jury to decide.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319].)
• Driving while “under the influence” under Vehicle Code sections 23152 and
23153 is not the same as “being under the influence” of a controlled substance
under Health and Safety Code section 11550. Under the Vehicle Code
provisions, “the defendant’s ability to drive must actually be impaired,” while
the Health and Safety Code provision is violated as soon as the influence is
present “in any detectable manner.” (People v. Enriquez (1996) 42 Cal.App.4th
661, 665 [49 Cal.Rptr.2d 710].)
• Courts have also distinguished the “under the influence” standard from the
“obvious intoxication” standard used in Business and Professions Code section
25602.1. (Jones v. Toyota Motor Co. (1988) 198 Cal.App.3d 364, 368 [243
Cal.Rptr. 611]: “ ‘Under the influence’ is defined by a person’s capability to
drive safely, whereas ‘obvious intoxication’ is defined by a person’s
appearance.”)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 883, 884, 886
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.25
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.02[3][b] (Matthew
Bender)
2 California Civil Practice: Torts § 25:28 (Thomson Reuters)
513
515
516
should have used seat belts, if available to him. Second you must determine
with expert testimony the nature of injuries and damages Plaintiff would have
sustained if he had used seat belts.”
• “[Section 27315] permits the civil trial courts to instruct on the existence of the
seat belt statute in appropriate cases, while allowing the jury to decide what
weight, if any, to give the statute in determining the standard of reasonable
care.” (Housley, supra, 4 Cal.App.4th at p. 747.)
• “[N]othing in the statute prohibits a jury from knowing and considering its very
existence when determining the reasonableness of driving without a seat belt.”
(Housley, supra, 4 Cal.App.4th at p. 744.)
• “There was evidence presented that appellant’s failure to wear a seat belt
worsened his injuries. The foreseeability test clearly eliminates this act as a
supervening cause because it is the general likelihood of the type of injury that
must be unforeseeable in order to absolve defendant; the extent of injury need
not be foreseeable.” (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 28 [22
Cal.Rptr.2d 106].)
• “Expert testimony is not always required to prove that failure to use a seat belt
may cause at least some, if not all, of plaintiff’s claimed injuries. [¶] Depending
on the facts of the case, expert testimony may be necessary for the jury to
distinguish the injuries that [plaintiff] unavoidably sustained in the collision
from the injuries he could have avoided if he had worn a seat belt.” (Lara v.
Nevitt (2004) 123 Cal.App.4th 454, 458–459 [19 Cal.Rptr.3d 865], internal
citation omitted.)
• “The seat belt defense does not depend on a Vehicle Code violation nor is it
eviscerated by a Vehicle Code exemption from the requirement to wear seat
belts.” (Lara, supra, 123 Cal.App.4th at p. 461 fn. 3.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.71
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05[2] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.10 (Matthew Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters West)
713–719. Reserved for Future Use
518
[Name of plaintiff] claims that [he/she] was harmed and that [name of
defendant] is responsible for the harm because [name of defendant] gave
[name of driver] permission to operate the vehicle. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of driver] was negligent in operating the vehicle;
2. That [name of defendant] was an owner of the vehicle at the time
of the injury to [name of plaintiff]; and
3. That [name of defendant], by words or conduct, gave permission
to [name of driver] to use the vehicle.
In determining whether permission was given, you may consider the
relationship between the owner and the operator. [For example, if the
parties are related or the owner and the operator are employer and
employee, such a relationship may support a finding that there was
implied permission to use the vehicle.]
[If the vehicle owner has given a person permission to use the vehicle,
and that person authorizes a third person to operate the vehicle, the
third person may be considered to have used the vehicle with the
permission of the owner.]
Inc. (1961) 57 Cal.2d 43, 51 [17 Cal.Rptr. 828, 367 P.2d 420], internal citations
omitted.)
• “[P]ermission cannot be left to speculation or conjecture nor be assumed, but
must be affirmatively proved, and the fact of permission is just as important to
sustain the imposition of liability as is the fact of ownership.” (Scheff v. Roberts
(1950) 35 Cal.2d 10, 12 [215 P.2d 925], internal citations omitted.)
• “Where the issue of implied permissive use is involved, the general relationship
existing between the owner and the operator, is of paramount importance.
Where, for example, the parties are related by blood, or marriage, or where the
relationship between the owner and the operator is that of principal and agent,
weaker direct evidence will support a finding of such use than where the parties
are only acquaintances or strangers.” (Elkinton v. California State Automobile
Assn., Interstate Insurance Bureau (1959) 173 Cal.App.2d 338, 344 [343 P.2d
396], internal citations omitted.)
• “There is no doubt that the word ‘owner’ as used in [the predecessor to Vehicle
Code section 17150] for the purpose of creating a liability thereunder, is not
synonymous with that word as used in the ordinary sense of referring to a
person or persons whose title is good as against all others. Under the Vehicle
Code there may be several such ‘owners’ at any one time. One or more persons
may be an ‘owner,’ and thus liable for the injuries of a third party, even though
no such ‘owner’ possesses all of the normal incidents of ownership.” (Stoddart
v. Peirce (1959) 53 Cal.2d 105, 115 [346 P.2d 774], internal citation omitted.)
• “The question whether the [defendant] was an owner for purposes of imposition
of liability for negligence [under Vehicle Code section 17150] was one of fact.”
(Campbell v. Security Pacific Nat. Bank (1976) 62 Cal.App.3d 379, 385 [133
Cal.Rptr. 77].)
• “Strict compliance with Vehicle Code section 5602 [regarding the sale or
transfer of a vehicle] is required to enable a transferring owner to escape the
liability imposed by section 17150 on account of an accident occurring before
notice of the transfer is received by the Motor Vehicle Department.” (Laureano
v. Christensen (1971) 18 Cal.App.3d 515, 520–521 [95 Cal.Rptr. 872].)
• “[T]he true and actual owner of an automobile [is not] relieved from liability by
the expedient of registration in the name of another. . . . It is clear that it was
the legislative intent to make the actual owners of automobiles liable for the
negligence of those to whom permission is given to drive them. According to
the allegations of the complaint defendants . . . were in fact the true owners of
the car and had control of it, the registration being in the name of defendant
[driver] for the purpose of avoiding liability.” (McCalla v. Grosse (1941) 42
Cal.App.2d 546, 549–550 [109 P.2d 358].)
• “[I]t is a question of fact in cases of co-ownership, as it is in cases of single
ownership, whether the operation of an automobile is with or without the
consent, express or implied, of an owner who is not personally participating in
such operation. The mere fact of co-ownership does not necessarily or
520
conclusively establish that the common owners have consented to any usage or
possession among themselves of a type for which permission is essential.”
(Krum v. Malloy (1943) 22 Cal.2d 132, 136 [137 P.2d 18].)
• “The immunity of the negligent operator under the [Workers’ Compensation]
Act does not insulate a vehicle owner who is neither the plaintiff’s employer
nor co-employee from liability under section 17150. [¶] Since the owner’s
liability does not arise from the status or liability of the operator, the defenses
applicable to the operator are not available to the owner.” (Galvis v. Petito
(1993) 13 Cal.App.4th 551, 554 [16 Cal.Rptr.2d 560].)
• “The doctrine of ‘negligent entrustment’ is clearly distinguishable from the
theory of ‘vicarious liability.’ Negligent entrustment is a common law liability
doctrine. Conversely, the obligation of a lending owner of an automobile is one
of statutory liability. An owner of an automobile may be independently
negligent in entrusting it to an incompetent driver. California is one of several
states which recognizes the liability of an automobile owner who has entrusted
a car to an incompetent, reckless, or inexperienced driver, and has supplemented
the common law doctrine of negligent entrustment by enactment of a specific
consent statute.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 538 [55
Cal.Rptr. 741], internal citations omitted.)
• For purposes of liability under the permissive use statute, “[s]ince defendant
[car owner] had the opportunity of making such investigation as he deemed
necessary to satisfy himself as to the identity of the [renter] to whom he
intrusted his automobile, he should not be permitted to escape liability to a third
party because of any fraudulent misrepresentation made by the renter of the car
to him.” (Tuderios v. Hertz Drivurself Stations, Inc. (1945) 70 Cal.App.2d 192,
198 [160 P.2d 554].)
• “[T]he provisions of Proposition 51 do not operate to reduce the liability of
vehicle owners imposed by Vehicle Code section 17150.” (Rashtian v. BRAC-
BH, Inc. (1992) 9 Cal.App.4th 1847, 1849 [12 Cal.Rptr.2d 411].)
• “[I]f the evidence shows that an automobile was being driven by an employee
of the owner at the time of an accident, the jury may infer that the employee
was operating the automobile with the permission of the owner.” (Hicks v. Reis
(1943) 21 Cal.2d 654, 659 [134 P.2d 788], internal quotation marks and
citations omitted.)
• “The mere fact that at the time of an accident one is driving an automobile
belonging to another is not, of itself, sufficient to establish that the former was
driving the car with the permission of the owner.” (Di Rebaylio v. Herndon
(1935) 6 Cal.App.2d 567, 569 [44 P.2d 581].)
• “[I]mplied permission to use an automobile may be found even where the
owner and permittee expressly deny that permission was given.” (Anderson v.
Wagnon (1952) 110 Cal.App.2d 362, 366 [242 P.2d 915].)
• “[I]n determining whether there has been an implied permission, it is not
521
necessary that the owner have prior knowledge that the driver intends to use the
car, but it must be ‘under circumstances from which consent to use the car is
necessarily implied.’ ” (Mucci v. Winter (1951) 103 Cal.App.2d 627, 631 [230
P.2d 22], internal citation omitted.)
• For purposes of statutory vicarious liability, “if the owner entrusts his car to
another he invests him with the same authority to select an operator which the
owner has in the first instance. . . . [¶] . . . The owner is thus liable for
negligent acts by a subpermittee even though the subpermittee operated the
owner’s vehicle with authorization only from the permittee, since the foundation
of the statutory liability is the permission given to another to use an
instrumentality which if improperly used is a danger and menace to the public.”
(Peterson v. Grieger, Inc. (1961) 57 Cal.2d 43, 54 [17 Cal.Rptr. 828, 367 P.2d
420], internal quotation marks and citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1260–1265, 1271
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.28–4.32, 4.37
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.20 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, §§ 82.11, 82.16 (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) §§ 25:44–25:45
522
524
[Name of plaintiff] claims that [he/she] was harmed and that [name of
defendant] is responsible for the harm because [name of defendant] gave
[name of minor] permission to operate the vehicle. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of minor] was negligent in operating the vehicle;
2. That [name of plaintiff] was harmed;
3. That [name of minor]’s negligence was a substantial factor in
causing the harm; and
4. That [name of defendant], by words or conduct, gave [name of
minor] permission to use the vehicle.
526
17707] of the Vehicle Code, the legislature intended to create a limited liability
for imputed negligence against both the owner of an automobile and the signer
of a driver’s license. . . . We must assume the legislature intended to fix a
limited liability . . . for imputed negligence against the owner of an automobile
and the signer of a driver’s license or either of them and that it did not intend
to double that limited liability when the same individual was both the owner of
the machine and the signer of the license.” (Rogers v. Foppiano (1937) 23
Cal.App.2d 87, 92–93 [72 P.2d 239].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1256–1259
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.41, 4.43
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[2] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.134 (Matthew
Bender)
2 California Civil Practice: Torts § 25:52 (Thomson Reuters)
528
531
• “The effect of Vehicle Code sections 21055 and 21056 is: where the driver of
an authorized emergency vehicle is engaged in a specified emergency function
he may violate certain rules of the road, such as speed and right of way laws, if
he activates his red light and where necessary his siren in order to alert other
users of the road to the situation. In such circumstances the driver may not be
held to be negligent solely upon the violation of specified rules of the road, but
may be held to be negligent if he fails to exercise due regard for the safety of
others under the circumstances. Where the driver of an emergency vehicle fails
to activate his red light, and where necessary his siren, he is not exempt from
the rules of the road even though he may be engaged in a proper emergency
function, and negligence may be based upon the violation of the rules of the
road.” (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395,
402–403 [182 Cal.Rptr. 443], internal citations omitted.)
• “Notwithstanding [Vehicle Code section 17004], a public entity is liable for
injuries proximately caused by negligent acts or omissions in the operation of
any motor vehicle by an employee of the public entity, acting within the scope
of his or her employment.” (City of San Jose v. Superior Court (1985) 166
Cal.App.3d 695, 698 [212 Cal.Rptr. 661], internal citations omitted.)
• “If the driver of an authorized emergency vehicle is responding to an
emergency call and gives the prescribed warnings by red light and siren, a
charge of negligence against him may not be predicated on his violation of the
designated Vehicle Code sections; but if he does not give the warnings, the
contrary is true; and in the event the charged negligence is premised on conduct
without the scope of the exemption a common-law standard of care is
applicable.” (Grant v. Petronella (1975) 50 Cal.App.3d 281, 286 [123 Cal.Rptr.
399], internal citations omitted.)
• “Where the driver of an emergency vehicle responding to an emergency call
does not give the warnings prescribed by section 21055, the legislative warning
policy expressed in that section dictates the conclusion [that] the common-law
standard of care governing his conduct does not include a consideration of the
emergency circumstances attendant upon his response to an emergency call.”
(Grant, supra, 50 Cal.App.3d at p. 289, footnote omitted.)
• The exemption created by section 21055 is an affirmative defense, and the
defendant must prove compliance with the conditions. (Washington v. City and
County of San Francisco (1954) 123 Cal.App.2d 235, 242 [266 P.2d 828].)
• “In short the statute exempts the employer of such a driver from liability for
negligence attributable to his failure to comply with specified statutory
provisions, but it does not in any manner purport to exempt the employer from
liability due to negligence attributable to the driver’s failure to maintain that
standard of care imposed by the common law.” (Torres v. City of Los Angeles
(1962) 58 Cal.2d 35, 47 [22 Cal.Rptr. 866, 372 P.2d 906].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 297, 331–335
533
534
535
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
536
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
motor vehicles. The four questions here should be incorporated into the verdict
form regarding the underlying case. The special verdict forms in this section are
intended only as models. They may need to be modified depending on the facts of
the case.
This verdict form is based on CACI No. 720, Motor Vehicle Owner
Liability—Permissive Use of Vehicle, and CACI No. 721, Motor Vehicle Owner
Liability—Affırmative Defense—Use Beyond Scope of Permission.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
538
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 722, Adult’s Liability for Minor’s
Permissive Use of Motor Vehicle.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
540
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 723, Liability of Cosigner of Minor’s
Application for Driver’s License.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
542
findings that are required in order to calculate the amount of prejudgment interest.
543
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 724, Negligent Entrustment of Motor
Vehicle. Modify to include elements of negligence instruction against the driver if
plaintiff is suing both driver and owner.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
545
546
RAILROAD CROSSINGS
547
549
project and the State installs the warning devices using federal funds, [federal
regulations] establish a federal standard for the adequacy of those devices that
displaces state tort law addressing the same subject.” (Norfolk Southern Railway
Co., supra, 529 U.S. at p. 357.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.4
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
802. Reserved for Future Use
551
553
555
Railroad companies must post signs or other devices that give the public
reasonable warning of the presence of its tracks. A railroad company
must use reasonable care in the design, installation, operation, and
maintenance of its warning signals and protective systems. The amount
of care that is reasonable depends on the particular characteristics of
each crossing.
created by the presence of the device constitute a trap for persons relying upon
it for protection.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d 866, 869
[180 P.2d 896].)
• “Whatever may be the purpose of maintaining an automatic wig-wag signal at a
railroad crossing, even though it be intended to merely warn travelers of the
approach of trains, common justice demands that it shall be so constructed and
maintained that it will not lure travelers on the highway into danger. It follows
that a company which does maintain such a defective system will be held liable
for injuries sustained as the result of those imperfections, regardless of whether
the system was designed to warn travelers of the approach of trains rather than
to inform them of the danger from stationary cars which block the crossings.”
(Mallett v. Southern Pacific Co. (1937) 20 Cal.App.2d 500, 509 [68 P.2d 281].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.8–12.9
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
557
by the railroad with complete disregard for his own safety and recover damages
for injuries sustained by reason of his own failure to use reasonable care.” (Will,
supra, 18 Cal.2d at p. 475.)
• “Violation of the railroad’s statutory duty to sound bell and whistle at a
highway crossing does not absolve a driver from his failure to look and listen
and, if necessitated by circumstances such as obstructed vision, even to stop.”
(Wilkinson, supra, 224 Cal.App.2d at p. 489.)
• “It is settled that a railroad may not encourage persons traveling on highways to
rely on safety devices and then hold them to the same degree of care as if the
devices were not present.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d
866, 871 [180 P.2d 896].)
• “When a flagman or mechanical warning device has been provided at a railroad
crossing, the driver of an automobile is thereby encouraged to relax his
vigilance, and, in using other means to discover whether there is danger of
approaching trains, he is not required to exercise the same quantum of care as
would otherwise be necessary.” (Spendlove v. Pacific Electric Ry. Co. (1947) 30
Cal.2d 632, 634 [184 P.2d 873], internal citations omitted.)
• An instruction that a driver must stop, look, and listen when his or her view is
obstructed was held prejudicially erroneous in Anello v. Southern Pacific Co.
(1959) 174 Cal.App.2d 317, 322 [344 P.2d 843].
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.10–12.12
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.27 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads § 485.67
(Matthew Bender)
807–899. Reserved for Future Use
559
COMMON CARRIERS
561
562
compensation to carry the goods of others upon such terms as may be agreed
upon.’ ” (Id. at p. 788, internal citations omitted.)
• “ ‘[T]he law applicable to common carriers is peculiarly rigorous, and it ought
not to be extended to persons who have not expressly assumed that character, or
by their conduct and from the nature of their business justified the belief on the
part of the public that they intended to assume it.’ ” (Samuelson v. Public
Utilities Com. (1951) 36 Cal.2d 722, 730 [227 P.2d 256], internal citation
omitted.)
• “To be a common carrier, the entity merely must be of the character that
members of the general public may, if they choose, avail themselves of it.”
(Squaw Valley Ski Corp., supra, 2 Cal.App.4th at pp. 1509–1510, internal
citation omitted.)
• In Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 1038 [205 Cal.Rptr.
211], the court approved of an instruction stating that the plaintiff had the
burden of proving that the defendant “undertook either expressly or by course
of conduct generally and for all persons indifferently to carry and deliver them
for hire, so long as it had room.” (Id. at pp. 1047–1048.) The court also
approved of giving the jury the factors of regular place of business, advertising,
and standard charges. (Id. at p. 1048.) Note that these factors may not be
applicable in all cases.
• “Given the fact [defendant] indiscriminately offers its Shirley Lake chair lift to
the public to carry skiers at a fixed rate from the bottom to the top of the
Shirley Lake run, it logically comes within the Civil Code section 2168
definition of a common carrier.” (Squaw Valley Ski Corp., supra, 2 Cal.App.4th
at p. 1508.)
• “Plaintiff also argues the public policy of protecting passengers of a common
carrier for reward, as expressed in Civil Code section 2100, precludes limiting
defendant’s duty to riders on [bumper cars]. In Gomez v. Superior Court [(2005)
35 Cal.4th 1125, 1136, fn. 5 [29 Cal. Rptr. 3d 352, 113 P.3d 41]], we held that
an operator of a ‘roller coaster or similar amusement park ride can be a carrier
of persons for reward’ for purposes of Civil Code section 2100. At the same
time, however, we expressed no opinion ‘whether other, dissimilar, amusement
rides or attractions can be carriers of persons for reward.’ ” (Nalwa v. Cedar
Fair, L.P. (2012) 55 Cal.4th 1148, 1160 [150 Cal.Rptr.3d 551, 290 P.3d 1158]
[bumper car ride is not common carrier].)
• “In the situation at bar, [defendant]’s motor cars were customarily and daily
cruising the streets for patronage or awaiting calls of the public. It was a
common carrier in transporting such patrons. But when it agreed to act as
carrier of handicapped school children under agreement for its operators to
escort the pupils to and from their schools and homes to the cab and to render
such service exclusively for them at designated hours, the company ceased to
be a common carrier while transporting the specified children during such
hours.” (Hopkins v. Yellow Cab Co. (1952) 114 Cal.App.2d 394, 398 [250 P.2d
564
330].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 924
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.14
(Matthew Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
2 California Civil Practice: Torts §§ 28:1–28:2 (Thomson Reuters)
565
Bender)
2 California Civil Practice: Torts §§ 28:6–28:9 (Thomson Reuters)
567
569
570
571
While a common carrier must use the highest care for its passengers’
safety, passengers need only use reasonable care for their own safety.
572
A common carrier owes the highest care and vigilance to persons only
while they are passengers. [Name of plaintiff] claims that [he/she] was
[name of defendant]’s passenger at the time of the incident.
To establish that [name of plaintiff] was a passenger, [he/she] must prove
all of the following:
1. That [name of plaintiff] intended to become a passenger;
2. That [name of plaintiff] was accepted as a passenger by [name of
defendant]; and
3. That [name of plaintiff] placed [himself/herself] under the control
of [name of defendant].
To be a passenger, it is not necessary for the person to actually enter the
carrier’s vehicle [or name mode of travel, e.g., bus, train]; however, the
carrier must have taken some action indicating acceptance of the person
as a passenger. A person continues to be a passenger until he or she
safely leaves the carrier’s vehicle [or equipment].
A common carrier must use the highest care and vigilance in providing
its passengers with a safe place to get on and off its vehicles [or
equipment].
574
required degree of care, the carrier has or should have knowledge from which it
may reasonably be apprehended that an assault on a passenger may occur, and
has the ability in the exercise of that degree of care to prevent the injury.”
(Lopez, supra, 40 Cal.3d at p. 791, internal citation omitted.)
• There is no liability when a sudden assault occurs with no warning. (City and
County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 49 [36
Cal.Rptr.2d 372].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 930, 931
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.03[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 28:16
909–999. Reserved for Future Use
576
PREMISES LIABILITY
577
[Name of plaintiff] claims that [he/she] was harmed because of the way
[name of defendant] managed [his/her/its] property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] was negligent in the use or maintenance
of the property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1082–1086
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.01
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, §§ 170.01, 170.20 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.01 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 16:1–16:3 (Thomson Reuters)
579
grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882
P.2d 298].)
• “The distinction between artificial and natural conditions [has been] rejected.”
(Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371 [178 Cal.Rptr.
783, 636 P.2d 1121].)
• “It must also be emphasized that the liability imposed is for negligence. The
question is whether in the management of his property, the possessor of land
has acted as a reasonable person under all the circumstances. The likelihood of
injury to plaintiff, the probable seriousness of such injury, the burden of
reducing or avoiding the risk, the location of the land, and the possessor’s
degree of control over the risk-creating condition are among the factors to be
considered by the trier of fact in evaluating the reasonableness of a defendant’s
conduct.” (Sprecher, supra, 30 Cal.3d at p. 372.)
• “[A] landowner’s duty of care to avoid exposing others to a risk of injury is not
limited to injuries that occur on premises owned or controlled by the landowner.
Rather, the duty of care encompasses a duty to avoid exposing persons to risks
of injury that occur off site if the landowner’s property is maintained in such a
manner as to expose persons to an unreasonable risk of injury offsite. (Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38 [180 Cal.Rptr.3d
474].)
• “The duty which a possessor of land owes to others to put and maintain it in
reasonably safe condition is nondelegable. If an independent contractor, no
matter how carefully selected, is employed to perform it, the possessor is
answerable for harm caused by the negligent failure of his contractor to put or
maintain the buildings and structures in reasonably safe condition, irrespective
of whether the contractor’s negligence lies in his incompetence, carelessness,
inattention or delay.” (Brown, supra, 23 Cal.2d at p. 260.)
• “[A] defendant property owner’s compliance with a law or safety regulation, in
and of itself, does not establish that the owner has utilized due care. The
owner’s compliance with applicable safety regulations, while relevant to show
due care, is not dispositive, if there are other circumstances requiring a higher
degree of care.” (Lawrence, supra, 231 Cal.App.4th at p. 31.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1086
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.01
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, §§ 170.01, 170.03, 170.20 (Matthew Bender)
582
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.01 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.10, 334.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 16:3 (Thomson Reuters)
583
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.02–15.03
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.03–381.04 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.52 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 16:2
585
v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d
298].)
• “Because the owner is not the insurer of the visitor’s personal safety, the
owner’s actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a
defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]
defective condition of the premises, the owner or occupier “must have either
actual or constructive knowledge of the dangerous condition or have been able
by the exercise of ordinary care to discover the condition, which if known to
him, he should realize as involving an unreasonable risk to invitees on his
premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114
Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the
property or his employee acting within the scope of the employment, the owner
of the property cannot be permitted to assert that he had no notice or
knowledge of the defective or dangerous condition in an action by an invitee
for injuries suffered by reason of the dangerous condition. Under such
circumstances knowledge thereof is imputed to him. Where the dangerous
condition is brought about by natural wear and tear, or third persons, or acts of
God or by other causes which are not due to the negligence of the owner, or his
employees, then to impose liability the owner must have either actual or
constructive knowledge of the dangerous condition or have been able by the
exercise of ordinary care to discover the condition, which if known to him, he
should realize as involving an unreasonable risk to invitees on his premises. His
negligence in such cases is founded upon his failure to exercise ordinary care in
remedying the defect after he has discovered it or as a man of ordinary
prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d
798, 806 [117 P.2d 841], internal citation omitted.)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip-and-fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641],
internal citation omitted.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of
operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the
owner had knowledge of the dangerous condition that caused the accident.
Moreover, it would not be prudent to hold otherwise. Without this knowledge
requirement, certain store owners would essentially incur strict liability for slip-
and-fall injuries, i.e., they would be insurers of the safety of their patrons. For
587
example, whether the french fry was dropped 10 seconds or 10 hours before the
accident would be of no consequence to the liability finding. However, this is
not to say that a store owner’s business choices do not impact the negligence
analysis. If the store owner’s practices create a higher risk that dangerous
conditions will exist, ordinary care will require a corresponding increase in
precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479
[3 Cal.Rptr. 3d 813].)
• “Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of
the dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and therefore
must inspect them or take other proper means to ascertain their condition. And
if, by the exercise of reasonable care, he would have discovered the dangerous
condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325,
330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of
concealed dangerous conditions of which the agent has actual or constructive
knowledge. The agent’s actual or constructive knowledge of a dangerous
condition is imputed to his or her principal, the property owner, who shares
with the agent liability for damages proximately caused by a breach of this
duty.” (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155
Cal.Rptr.3d 739].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1119–1123
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.02 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.51 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
588
of the risk doctrine, i.e., where the condition is so apparent that the plaintiff
must have realized the danger involved, he assumes the risk of injury even if
the defendant was negligent. . . . [T]his type of assumption of the risk has now
been merged into comparative negligence.” (Donohue v. San Francisco Housing
Authority (1993) 16 Cal.App.4th 658, 665 [20 Cal.Rptr.2d 148], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1125–1127
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04[4]
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.20, 381.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.25 et seq.
(Matthew Bender)
590
[An owner of a business that is open to the public/A landlord] must use
reasonable care to protect [patrons/guests/tenants] from another
person’s harmful conduct on [his/her/its] property if the
[owner/landlord] can reasonably anticipate such conduct.
593
New September 2003; Revised April 2008, April 2009, December 2009, June 2010
Directions for Use
Give this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, CACI No. 1001, Basic Duty of Care, and CACI No. 1003, Unsafe
Conditions, if the injury occurred on rental property and the landlord is alleged to
be liable. Include the last paragraph if the property is not within the landlord’s
immediate control.
Include “or on renewal of a lease” for commercial tenancies. (See Mora v. Baker
Commodities, Inc. (1989) 210 Cal.App.3d 771, 781 [258 Cal.Rptr. 669].) While no
case appears to have specifically addressed a landlord’s duty to inspect on renewal
of a residential lease, it would seem impossible to impose such a duty with regard
to a month-to-month tenancy. Whether there might be a duty to inspect on renewal
of a long-term residential lease appears to be unresolved.
Under the doctrine of nondelegable duty, a landlord cannot escape liability for
failure to maintain property in a safe condition by delegating the duty to an
independent contractor. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th
721, 726 [28 Cal.Rptr.2d 672].) For an instruction for use with regard to a
landlord’s liability for the acts of an independent contractor, see CACI No. 3713,
Nondelegable Duty.
594
defects which are unknown and not apparent to the tenant and he fails to
disclose them to the tenant, where there is a nuisance existing on the property
at the time the lease is made or renewed, when a safety law has been violated,
or where the injury occurs on a part of the premises over which the landlord
retains control, such as common hallways, stairs, elevators, or roof. [¶] A
common element in these exceptions is that either at or after the time
possession is given to the tenant the landlord retains or acquires a recognizable
degree of control over the dangerous condition with a concomitant right and
power to obviate the condition and prevent the injury. In these situations, the
law imposes on the landlord a duty to use ordinary care to eliminate the
condition with resulting liability for injuries caused by his failure so to act.”
(Uccello, supra, 44 Cal.App.3d at p. 511, internal citations omitted.)
• “[W]here a landlord has relinquished control of property to a tenant, a ‘bright
line’ rule has developed to moderate the landlord’s duty of care owed to a third
party injured on the property as compared with the tenant who enjoys
possession and control. ‘ “Because a landlord has relinquished possessory
interest in the land, his or her duty of care to third parties injured on the land is
attenuated as compared with the tenant who enjoys possession and control.
Thus, before liability may be thrust on a landlord for a third party’s injury due
to a dangerous condition on the land, the plaintiff must show that the landlord
had actual knowledge of the dangerous condition in question, plus the right and
ability to cure the condition.” [¶] Limiting a landlord’s obligations releases it
from needing to engage in potentially intrusive oversight of the property, thus
permitting the tenant to enjoy its tenancy unmolested.’ ” (Salinas v. Martin
(2008) 166 Cal.App.4th 404, 412 [82 Cal.Rptr.3d 735], internal citations
omitted.)
• “[A] commercial landowner cannot totally abrogate its landowner
responsibilities merely by signing a lease. As the owner of property, a lessor out
of possession must exercise due care and must act reasonably toward the tenant
as well as to unknown third persons. At the time the lease is executed and upon
renewal a landlord has a right to reenter the property, has control of the
property, and must inspect the premises to make the premises reasonably safe
from dangerous conditions. Even if the commercial landlord executes a contract
which requires the tenant to maintain the property in a certain condition, the
landlord is obligated at the time the lease is executed to take reasonable
precautions to avoid unnecessary danger.” (Mora, supra, 210 Cal.App.3d at p.
781, internal citations omitted.)
• “[T]he landlord’s responsibility to inspect is limited. Like a residential landlord,
the duty to inspect charges the lessor ‘only with those matters which would
have been disclosed by a reasonable inspection.’ The burden of reducing or
avoiding the risk and the likelihood of injury will affect the determination of
what constitutes a reasonable inspection. The landlord’s obligation is only to do
what is reasonable under the circumstances. The landlord need not take
extraordinary measures or make unreasonable expenditures of time and money
596
[An owner of/A lessee of/An occupier of/One who controls] property
must avoid creating an unsafe condition on the surrounding public
streets or sidewalks.
599
property and the more reasonable it is to impose upon the landowner a duty to
maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del
Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)
• The requirement of due care in altering a sidewalk applies only to that portion
of the sidewalk that is actually altered: “The rule cited by plaintiff requires the
owner to keep the altered portion in reasonably safe condition or be liable for
injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays,
she slipped on the dog dropping, a hazard which defendant did not create.”
(Selger, supra, 222 Cal.App.3d at p. 1595.)
• “The duty to maintain portions of a sidewalk which have been altered for the
benefit of the property runs with the land, and a property owner cannot avoid
liability on the ground that the condition was created by or at the request of his
predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1090–1093
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29
(Matthew Bender)
601
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2011
Directions for Use
This instruction is for use if a concealed dangerous condition on property causes
injury to an employee of an independent contractor hired to perform work on the
property. For an instruction for injuries to others due to a concealed condition, see
CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on the
owner’s retained control, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control. For an
instruction for injuries based on the property owner’s providing defective
equipment, see CACI No. 1009D, Liability to Employees of Independent
Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
602
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
604
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant retained control over the safety conditions at
the worksite. For an instruction for injuries to others due to a concealed condition,
see CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on
unsafe conditions not discoverable by the plaintiff’s employer, see CACI No.
1009A, Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s providing
defective equipment, see CACI No. 1009D, Liability to Employees of Independent
Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s
injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115
Cal.Rptr.2d 853, 38 P.3d 1081].) However, the affirmative contribution need not be
active conduct but may be in the form of an omission to act. (Id. at p. 212, fn. 3.)
The advisory committee believes that the “affirmative contribution” requirement
605
simply means that there must be causation between the hirer’s conduct and the
plaintiff’s injury. Because “affirmative contribution” might be construed by a jury to
require active conduct rather than a failure to act, the committee believes that its
standard “substantial factor” element adequately expresses the “affirmative
contribution” requirement.
Sources and Authority
• “We conclude that a hirer of an independent contractor is not liable to an
employee of the contractor merely because the hirer retained control over safety
conditions at a worksite, but that a hirer is liable to an employee of a contractor
insofar as a hirer’s exercise of retained control affırmatively contributed to the
employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202, original italics.)
• “Imposing tort liability on a hirer of an independent contractor when the hirer’s
conduct has affirmatively contributed to the injuries of the contractor’s
employee is consistent with the rationale of our decisions in Privette, Toland
and Camargo because the liability of the hirer in such a case is not ‘ “in
essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or
omission’ of the hired contractor.” ’ To the contrary, the liability of the hirer in
such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27
Cal.4th at pp. 211–212, original italics, internal citations and footnote omitted.)
• “Such affirmative contribution need not always be in the form of actively
directing a contractor or contractor’s employee. There will be times when a
hirer will be liable for its omissions. For example, if the hirer promises to
undertake a particular safety measure, then the hirer’s negligent failure to do so
should result in liability if such negligence leads to an employee injury.”
(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
• “If a hirer entrusts work to an independent contractor, but retains control over
safety conditions at a jobsite and then negligently exercises that control in a
manner that affirmatively contributes to an employee’s injuries, the hirer is
liable for those injuries, based on its own negligent exercise of that retained
control.” (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446
[136 Cal.Rptr.3d 521].)
• “When the employer directs that work be done by use of a particular mode or
otherwise interferes with the means and methods of accomplishing the work, an
affirmative contribution occurs. When the hirer does not fully delegate the task
of providing a safe working environment but in some manner actively
participates in how the job is done, the hirer may be held liable to the employee
if its participation affirmatively contributed to the employee’s injury. [¶] By
contrast, passively permitting an unsafe condition to occur rather than directing
it to occur does not constitute affirmative contribution. The failure to institute
specific safety measures is not actionable unless there is some evidence that the
hirer or the contractor had agreed to implement these measures. Thus, the
failure to exercise retained control does not constitute an affirmative
contribution to an injury. Such affirmative contribution must be based on a
606
607
Derived from CACI No. 1009B April 2009; Revised December 2011
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant provided defective equipment. For an
instruction for injuries to others due to a concealed condition, see CACI No. 1003,
Unsafe Conditions. For an instruction for injuries based on unsafe concealed
conditions not discoverable by the plaintiff’s employer, see CACI No. 1009A,
Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s retained
control over the property, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
Sources and Authority
• “[W]hen a hirer of an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the injury of an
employee of the contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.” (Elsner v. Uveges (2004) 34
Cal.4th 915, 937 [22 Cal.Rptr.3d 530, 102 P.3d 915].)
• “ ‘[W]here the hiring party actively contributes to the injury by supplying
defective equipment, it is the hiring party’s own negligence that renders it
liable, not that of the contractor.’ ” (McKown v. Wal-Mart Stores, Inc. (2002) 27
Cal.4th 219, 225 [115 Cal.Rptr.2d 868, 38 P.3d 1094], internal citation omitted.)
608
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1117
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.24
(Matthew Bender)
609
Cal.Rptr.2d 148]. However, the issue has not been definitively resolved by the
California Supreme Court.
Sources and Authority
• Recreational Immunity. Civil Code section 846.
• “[A]n owner of . . . real property owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes or to give recreational
users warning of hazards on the property, unless: (1) the landowner willfully or
maliciously fails to guard or warn against a dangerous condition, use, structure
or activity; (2) permission to enter for a recreational purpose is granted for a
consideration; or (3) the landowner expressly invites rather than merely permits
the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th
1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)
• “Generally, whether one has entered property for a recreational purpose within
the meaning of the statute is a question of fact, to be determined through a
consideration of the ‘totality of the facts and circumstances, including . . . the
prior use of the land. While the plaintiff’s subjective intent will not be
controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p.
1102, internal citation omitted.)
• “The phrase ‘interest in real property’ should not be given a narrow or technical
interpretation that would frustrate the Legislature’s intention in passing and
amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266
Cal.Rptr. 491, 785 P.2d 1183].)
• “[D]efendants’ status as business invitees of the landowner does not satisfy the
prerequisite that the party seeking to invoke the immunity provisions of section
846 be ‘[a]n owner of any estate or any other interest in real property, whether
possessory or nonpossessory.’ Although such invitee may be entitled to be
present on the property during such time as the work is being performed, such
presence does not convey any estate or interest in the property.” (Jenson v.
Kenneth I. Mullen, Consulting Engineers, Inc. (1989) 211 Cal.App.3d 653, 658
[259 Cal.Rptr. 552].)
• “The concept of willful misconduct has a well-established, well-defined
meaning in California law. ‘Willful or wanton misconduct is intentional
wrongful conduct, done either with a knowledge that serious injury to another
will probably result, or with a wanton and reckless disregard of the possible
results.’ ” (New, supra, 171 Cal.App.3d at p. 689, internal citations omitted.)
• “Clearly, consideration means some type of entrance fee or charge for
permitting a person to use specially constructed facilities. There are many
amusement facilities in government-owned parks that charge admission fees and
a consideration in this or a similar context was intended.” (Moore v. City of
Torrance (1979) 101 Cal.App.3d 66, 72 [166 Cal.Rptr. 192], disapproved of on
other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33
Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168].)
611
612
615
If you find that the condition causing the risk of harm was created by
[name of defendant] or [his/her/its] employee acting within the scope of
[his/her] employment, then you must conclude that [name of defendant]
knew of this condition.
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
618
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential
Factual Elements, and CACI No. 1010, Affırmative Defense—Recreation
Immunity─Exceptions.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 5 should be modified if either of the other two exceptions to recreational
immunity from Civil Code section 846 is at issue. (See CACI No. 1010.)
If specificity is not required, users do not have to itemize all the damages listed in
620
621
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New February 2005; Revised April 2007, December 2009, December 2010,
December 2016
623
624
625
New September 2003; Revised October 2008, December 2015, June 2016
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• ‘The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions
626
under which a public entity may be held liable for injuries caused by a
dangerous condition of public property. Section 835 provides that a public
entity may be held liable for such injuries ‘if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury, that the injury
was proximately caused by the dangerous condition, [and] that the dangerous
condition created a reasonably foreseeable risk of the kind of injury which was
incurred.’ In addition, the plaintiff must establish that either: (a) ‘[a] negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition,’ or (b) ‘[t]he public
entity had . . . notice of the dangerous condition . . . a sufficient time prior to
the injury to have taken measures to protect against the dangerous condition.’ ”
(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105–1106 [190
Cal.Rptr.3d 850, 353 P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types
of cases. However, what distinguishes the two types of cases is not simply
whether the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
627
is per se culpable,’ plaintiff argues that the negligence that section 835,
subdivision (a), refers to is not common law negligence, but something that
exists whenever the public entity creates the dangerous condition of property.
We disagree. If the Legislature had wanted to impose liability whenever a
public entity created a dangerous condition, it would merely have required
plaintiff to establish that an act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition. Instead,
section 835, subdivision (a), requires the plaintiff to establish that a ‘negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition.’ (Italics added.)
Plaintiff’s interpretation would transform the highly meaningful words
‘negligent or wrongful’ into meaningless surplusage, contrary to the rule of
statutory interpretation that courts should avoid a construction that makes any
word surplusage.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121,
1135 [72 Cal.Rptr.3d 382, 176 P.3d 654], original italics, internal citation
omitted.)
• “In order to recover under Government Code section 835, it is not necessary for
plaintiff to prove a negligent act and notice; either negligence or notice will
suffice.” (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have
consistently refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the
public—proximately caused the fatal injuries their decedents suffered as a result
of the collision with [third party]’s car. But nothing in the statute requires
plaintiffs to show that the allegedly dangerous condition also caused the third
party conduct that precipitated the accident.” (Cordova, supra, 61 Cal.4th at p.
1106.)
• “The existence of a dangerous condition is ordinarily a question of fact but ‘can
628
629
1101. Control
631
• “An initial and essential element of recovery for premises liability under the
governing statutes is proof a dangerous condition existed. The law imposes no
duty on a landowner—including a public entity—to repair trivial defects, or ‘to
maintain [its property] in an absolutely perfect condition.’ ” (Stathoulis v. City
of Montebello (2008) 164 Cal.App.4th 559, 566 [78 Cal.Rptr.3d 910], internal
citations omitted.)
• “The status of a condition as ‘dangerous’ for purposes of the statutory definition
does not depend on whether the plaintiff or other persons were actually
exercising due care but on whether the condition of the property posed a
substantial risk of injury to persons who were exercising due care.” (Cole v.
Town of Los Gatos (2012) 205 Cal.App.4th 749, 768 [140 Cal.Rptr.3d 722],
original italics.)
• “[T]he fact the particular plaintiff may not have used due care is relevant only
to his [or her] comparative fault and not to the issue of the presence of a
dangerous condition.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th
1451, 1459 [192 Cal.Rptr.3d 376].)
• “The negligence of a plaintiff-user of public property . . . is a defense which
may be asserted by a public entity; it has no bearing upon the determination of
a ‘dangerous condition’ in the first instance. . . . If, however, it can be shown
that the property is safe when used with due care and that a risk of harm is
created only when foreseeable users fail to exercise due care, then such
property is not ‘dangerous’ within the meaning of section 830, subdivision (a).”
(Fredette, supra, 187 Cal.App.3d at p. 131, internal citation omitted.)
• “Even though it is foreseeable that persons may use public property without due
care, a public entity may not be held liable for failing to take precautions to
protect such persons.” (Fredette, supra, 187 Cal.App.3d at p. 132, internal
citation omitted.)
• “With respect to public streets, courts have observed ‘any property can be
dangerous if used in a sufficiently improper manner. For this reason, a public
entity is only required to provide roads that are safe for reasonably foreseeable
careful use. [Citation.] “If [] it can be shown that the property is safe when
used with due care and that a risk of harm is created only when foreseeable
users fail to exercise due care, then such property is not ‘dangerous’ within the
meaning of section 830, subdivision (a).” [Citation.]’ ” (Sun v. City of Oakland
(2008) 166 Cal.App.4th 1177, 1183 [83 Cal.Rptr.3d 372], internal citations
omitted.)
• “[A] prior dangerous condition may require street lighting or other means to
lessen the danger but the absence of street lighting is itself not a dangerous
condition.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124,
133 [142 Cal.Rptr.3d 633].)
• “Although public entities may be held liable for injuries occurring to reasonably
foreseeable users of the property, even when the property is used for a purpose
for which it is not designed or which is illegal, liability may ensue only if the
633
property creates a substantial risk of injury when it is used with due care.
Whether a condition creates a substantial risk of harm depends on how the
general public would use the property exercising due care, including children
who are held to a lower standard of care. (§ 830.) The standard is an objective
one; a plaintiff’s particular condition . . . , does not alter the standard.”
(Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466 [72
Cal.Rptr.2d 464], internal citations omitted.)
• “A public entity may be liable for a dangerous condition of public property
even where the immediate cause of a plaintiff’s injury is a third party’s
negligence if some physical characteristic of the property exposes its users to
increased danger from third party negligence. ‘But it is insufficient to show only
harmful third party conduct, like the conduct of a motorist. “ ‘[T]hird party
conduct, by itself, unrelated to the condition of the property, does not constitute
a “dangerous condition” for which a public entity may be held liable.’ ” . . .
There must be a defect in the physical condition of the property and that defect
must have some causal relationship to the third party conduct that injures the
plaintiff. . . .’ ” (Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1069–1070 [129 Cal.Rptr.3d 690], internal citation omitted.)
• “Nothing in the provisions of section 835, however, specifically precludes a
finding that a public entity may be under a duty, given special circumstances, to
protect against harmful criminal conduct on its property.” (Peterson, supra, 36
Cal.3d at pp. 810–811, internal citations omitted.)
• “Two points applicable to this case are . . . well established: first, that the
location of public property, by virtue of which users are subjected to hazards on
adjacent property, may constitute a ‘dangerous condition’ under sections 830
and 835; second, that a physical condition of the public property that increases
the risk of injury from third party conduct may be a ‘dangerous condition’
under the statutes.” (Bonanno v. Central Contra Costa Transit Authority (2003)
30 Cal.4th 139, 154 [132 Cal.Rptr.2d 341, 65 P.3d 807].)
• “[T]he absence of other similar accidents is ‘relevant to the determination of
whether a condition is dangerous.’ But the city cites no authority for the
proposition that the absence of other similar accidents is dispositive of whether
a condition is dangerous, or that it compels a finding of nondangerousness
absent other evidence.” (Lane v. City of Sacramento (2010) 183 Cal.App.4th
1337, 1346 [107 Cal.Rptr.3d 730], original italics, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 269
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.15
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[2][a] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
634
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
635
[Name of plaintiff] must prove that [name of defendant] had notice of the
dangerous condition before the incident occurred. To prove that there
was notice, [name of plaintiff] must prove:
[That [name of defendant] knew of the condition and knew or should
have known that it was dangerous. A public entity knows of a
dangerous condition if an employee knows of the condition and
reasonably should have informed the entity about it.]
[or]
[That the condition had existed for enough time before the incident and
was so obvious that the [name of defendant] reasonably should have
discovered the condition and known that it was dangerous.]
• “Whether the dangerous condition was obvious and whether it existed for a
sufficient period of time are threshold elements to establish a claim of
constructive notice. Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768],
internal citation omitted.)
• “ ‘It is well settled that constructive notice can be shown by the long continued
existence of the dangerous or defective condition, and it is a question of fact for
the jury to determine whether the condition complained of has existed for a
sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State
of California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal
citations omitted.)
• “Admissible evidence for establishing constructive notice is defined by
[Government Code section 835.2(b)] as including whether a reasonably
adequate inspection system would have informed the public entity, and whether
it maintained and operated such an inspection system with due care.” (Heskel,
supra, 227 Cal.App.4th at p. 317.)
• “In the instant case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is constructive notice,
the method of inspection has been held to be secondary.” (Superior Court of
San Mateo County, supra, 263 Cal.App.2d at p. 400, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 271
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.45–12.51
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
637
§§ 12.48–12.50
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
1105–1109. Reserved for Future Use
639
remove the immunity from the unimproved areas.’ ‘The reasonableness of this
rule is apparent. Otherwise, the immunity as to an entire park area improved in
any way would be demolished. [Citation.] This would, in turn, seriously thwart
accessibility and enjoyment of public lands by discouraging the construction of
such improvements as restrooms, fire rings, campsites, entrance gates, parking
areas and maintenance buildings.’ ” (Alana M., supra, 245 Cal.App.4th at pp.
1488−1489.)
• “It is now generally settled that human-altered conditions, especially those that
have existed for some years, which merely duplicate models common to nature
are still ‘natural conditions’ as a matter of law for the purposes of Government
Code section 831.2.” (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d
310, 314 [268 Cal.Rptr. 233].)
• “Immunity under section 831.2 exists even where the public entity’s nearby
improvements together with natural forces add to the buildup of sand on a
public beach.” (Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184,
188 [263 Cal.Rptr. 479].)
• “The statutory immunity is fully applicable to manmade lakes and reservoirs.
Moreover, section 831.2 has been broadly construed to provide immunity even
where a natural condition has been affected in some manner by human activity
or nearby improvements.” (Goddard, supra, 243 Cal.App.4th at p. 361, internal
citations omitted.)
• “The mere attachment of a rope on defendant’s undeveloped land by an
unknown third party did not change the ‘natural condition’ of the land.”
(Kuykendall v. State of California (1986) 178 Cal.App.3d 563, 566 [223
Cal.Rptr. 763].)
• “Essentially, [plaintiff]’s position is she was entitled to a campsite in the forest
safe from falling trees, but this ‘is exactly the type of complaint section 831.2
was designed to protect public entities against.’ ” (Alana M., supra, 245
Cal.App.4th at p. 1493.)
• “Given the intent of the Legislature in enacting section 831.2, we hold that wild
animals are a natural part of the condition of unimproved public property within
the meaning of the statute.” (Arroyo, supra, 34 Cal.App.4th at p. 762.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 250, 256
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability
For “Dangerous Conditions” Of Public Property, ¶ 2:2825 et seq. (The Rutter
Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.82–12.87
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
641
642
644
646
You may not find that [name of defendant]’s property was in a dangerous
condition just because it did not provide a [insert device or marking].
However, you may consider the lack of a [insert device or marking],
along with other circumstances shown by the evidence, in determining
whether [name of defendant]’s property was dangerous.
648
649
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 264, 265
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.76–12.79
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.304
(Matthew Bender)
650
652
655
New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and
Revised December 2014
Directions for Use
Give this instruction if the plaintiff claims that the public entity defendant has lost
its design immunity because of changed conditions since the design or plan was
originally adopted. Read either or both options for element 3 depending on the
facts of the case.
If the applicability of design immunity in the first instance is disputed, give CACI
No. 1123, Affırmative Defense—Design Immunity. Also in this case, the
introductory paragraph might begin with “Even if [name of defendant] proves both
of these elements” (from CACI No. 1123).
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and
CACI No. 1103, Notice, to define “dangerous condition” and “notice” in connection
with this instruction. Additionally, the meaning and legal requirements for a
“change of physical condition” have been the subject of numerous decisions
involving specific contexts. Appropriate additional instructions to account for these
decisions may be necessary.
Sources and Authority
• Design Immunity. Government Code section 830.6.
656
658
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
660
661
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, June 2010,
December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements, CACI No. 1111, Affırmative
Defense—Condition Created by Reasonable Act or Omission, and CACI No. 1112,
Affırmative Defense—Reasonable Act or Omission to Correct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
For questions 4 and 6, choose the first bracketed options if liability is alleged
because of an employee’s negligent conduct under Government Code section
835(a). Use the second bracketed options if liability is alleged for failure to act
after actual or constructive notice under Government Code section 835(b). Both
options may be given if the plaintiff is proceeding under both theories of liability.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
664
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1102–VF-1199. Reserved for Future Use
665
PRODUCTS LIABILITY
PRODUCTS LIABILITY
668
held strictly liable unless doing so will enhance product safety, maximize
protection to the injured plaintiff, and apportion costs among the defendants.
[Citations.]’ ” (Hernandezcueva, supra, 234 Cal.App.4th at p. 258.)
• “The component parts doctrine provides that the manufacturer of a component
part is not liable for injuries caused by the finished product into which the
component has been incorporated unless the component itself was defective and
caused harm.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 355 [135
Cal.Rptr.3d 288, 266 P.3d 987].)
• “The only exceptions to this rule [that a product manufacturer generally may
not be held strictly liable for harm caused by another manufacturer’s product]
arise when the defendant bears some direct responsibility for the harm, either
because the defendant’s own product contributed substantially to the harm, or
because the defendant participated substantially in creating a harmful combined
use of the products.” (O’Neil, supra, 53 Cal.4th at p. 362, internal citation
omitted.)
• “[T]o hold a defendant strictly liable under a marketing/distribution theory, the
plaintiff must demonstrate that: ‘(1) the defendant received a direct financial
benefit from its activities and from the sale of the product; (2) the defendant’s
role was integral to the business enterprise such that the defendant’s conduct
was a necessary factor in bringing the product to the initial consumer market;
and (3) the defendant had control over, or a substantial ability to influence, the
manufacturing or distribution process.’ ” (Arriaga, supra, 167 Cal.App.4th at p.
1535.)
• “[T]he doctrine of strict liability may not be restricted on a theory of privity of
contract. Since the doctrine applies even where the manufacturer has attempted
to limit liability, they further make it clear that the doctrine may not be limited
on the theory that no representation of safety is made to the bystander. [¶¶] If
anything, bystanders should be entitled to greater protection than the consumer
or user where injury to bystanders from the defect is reasonably foreseeable.
Consumers and users, at least, have the opportunity to inspect for defects and to
limit their purchases to articles manufactured by reputable manufacturers and
sold by reputable retailers, whereas the bystander ordinarily has no such
opportunities. In short, the bystander is in greater need of protection from
defective products which are dangerous, and if any distinction should be made
between bystanders and users, it should be made, contrary to the position of
defendants, to extend greater liability in favor of the bystanders.” (Elmore v.
American Motors Corp. (1969) 70 Cal.2d 578, 586 [75 Cal.Rptr. 652, 451 P.2d
84].)
• “Engineers who do not participate in bringing a product to market and simply
design a product are not subject to strict products liability.” (Romine v. Johnson
Controls, Inc. (2014) 224 Cal.App.4th 990, 1008 [169 Cal.Rptr.3d 208].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1428–1437
671
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1207, 2:1215 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.10
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.20 et seq.
(Matthew Bender)
672
New September 2003; Revised April 2009, December 2009, June 2011
Directions for Use
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case]; Cronin v. J.B.E.
Olson Corp. (1972) 8 Cal.3d 121, 125–126 [104 Cal.Rptr. 433, 501 P.2d 1153]
[product misuse asserted as a defense to manufacturing defect]; see also CACI No.
1245, Affırmative Defense—Product Misuse or Modification.) Product misuse is a
complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
Sources and Authority
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
673
675
676
[Name of plaintiff] claims the [product]’s design was defective because the
[product] did not perform as safely as an ordinary consumer would have
expected it to perform. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] did not perform as safely as an ordinary
consumer would have expected it to perform when used or
misused in an intended or reasonably foreseeable way;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s failure to perform safely was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, April 2009, December 2009, June
2011
Directions for Use
If both tests (the consumer expectation test and the risk-benefit test) for design
defect are asserted by the plaintiff, the burden-of-proof instructions must make it
clear that the two tests are alternatives. (Bracisco v. Beech Aircraft Corp. (1984)
159 Cal.App.3d 1101, 1106–1107 [206 Cal.Rptr. 431].)
The court must make an initial determination as to whether the consumer
expectation test applies to the product. In some cases, the court may determine that
the product is one to which the test may, but not necessarily does, apply, leaving
the determination to the jury. (See Saller v. Crown Cork & Seal Co., Inc. (2010)
187 Cal.App.4th 1220, 1233–1234 [115 Cal.Rptr.3d 151].) In such a case, modify
the instruction to advise the jury that it must first determine whether the product is
one about which an ordinary consumer can form reasonable minimum safety
expectations.
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit case]; see also CACI No. 1245,
Affırmative Defense—Product Misuse or Modification.) Product misuse is a
complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s
677
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
• “[A] product is defective in design either (1) if the product has failed to
perform as safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner, or (2) if, in light of the relevant
factors . . . , the benefits of the challenged design do not outweigh the risk of
danger inherent in such design.” (Barker v. Lull Engineering Co. (1978) 20
Cal.3d 413, 418 [143 Cal.Rptr. 225, 573 P.2d 443].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303 [144
Cal.Rptr.3d 326].)
• “The rationale of the consumer expectations test is that ‘[t]he purposes,
behaviors, and dangers of certain products are commonly understood by those
who ordinarily use them.’ Therefore, in some cases, ordinary knowledge of the
product’s characteristics may permit an inference that the product did not
perform as safely as it should. ‘If the facts permit such a conclusion, and if the
failure resulted from the product’s design, a finding of defect is warranted
without any further proof,’ and the manufacturer may not defend by presenting
expert evidence of a risk/benefit analysis. . . . Nonetheless, the inherent
complexity of the product itself is not controlling on the issue of whether the
consumer expectations test applies; a complex product ‘may perform so
unsafely that the defect is apparent to the common reason, experience, and
understanding of its ordinary consumers.’ ” (Saller, supra, 187 Cal.App.4th at p.
1232, original italics, internal citations omitted.)
678
opinion about the merits of the design.” (Soule, supra, 8 Cal.4th at p. 567,
original italics.)
• “If the facts permit an inference that the product at issue is one about which
consumers may form minimum safety assumptions in the context of a particular
accident, then it is enough for a plaintiff, proceeding under the consumer
expectation test, to show the circumstances of the accident and ‘the objective
features of the product which are relevant to an evaluation of its safety’
[citation], leaving it to the fact finder to ‘employ “[its] own sense of whether
the product meets ordinary expectations as to its safety under the circumstances
presented by the evidence.” ’ [Citations.] Expert testimony as to what
consumers ordinarily ‘expect’ is generally improper.” (Chavez, supra, 207
Cal.App.4th at p. 1303.)
• “That causation for a plaintiff’s injuries was proved through expert testimony
does not mean that an ordinary consumer would be unable to form assumptions
about the product’s safety. Accordingly, the trial court properly instructed the
jury on the consumer expectations test.” (Romine v. Johnson Controls, Inc.
(2014) 224 Cal.App.4th 990, 1004 [169 Cal.Rptr.3d 208], internal citations
omitted.)
• “An exception [to the rule that expert testimony is generally improper] exists
where the product is in specialized use with a limited group of consumers. In
such cases, ‘if the expectations of the product’s limited group of ordinary
consumers are beyond the lay experience common to all jurors, expert
testimony on the limited subject of what the product’s actual consumers do
expect may be proper.’ ” (McCabe v. American Honda Motor Co. (2002) 100
Cal.App.4th 1111, 1120 fn. 3 [123 Cal.Rptr.2d 303], internal citations omitted.)
• “In determining whether a product’s safety satisfies [the consumer expectation
test], the jury considers the expectations of a hypothetical reasonable consumer,
rather than those of the particular plaintiff in the case.” (Campbell v. General
Motors Corp. (1982) 32 Cal.3d 112, 126, fn. 6 [184 Cal.Rptr. 891, 649 P.2d
224].)
• “[E]vidence as to what the scientific community knew about the dangers . . .
and when they knew it is not relevant to show what the ordinary consumer of
[defendant]’s product reasonably expected in terms of safety at the time of
[plaintiff]’s exposure. It is the knowledge and reasonable expectations of the
consumer, not the scientific community, that is relevant under the consumer
expectations test.” (Morton v. Owens-Corning Fiberglas Corp. (1995) 33
Cal.App.4th 1529, 1536 [40 Cal.Rptr.2d 22].)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
680
681
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011
Directions for Use
If the plaintiff asserts both tests for design defect (the consumer expectation test
and the risk-benefit test), the instructions must make it clear that the two tests are
alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101,
1106–1107 [206 Cal.Rptr. 431].) Risk-benefit weighing is not a formal part of, nor
may it serve as a defense to, the consumer expectations test. (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
682
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590]; see also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.) Product misuse is a complete defense to
strict products liability if the defendant proves that an unforeseeable abuse or
alteration of the product after it left the manufacturer’s hands was the sole cause of
the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification
that was a substantial factor in, but not the sole cause of, plaintiff’s harm may also
be considered in determining the comparative fault of the plaintiff or of third
persons. See CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and
CACI No. 1207B, Strict Liability—Comparative Fault of Third Person.
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
• “ ‘[O]nce the plaintiff makes a prima facie showing that the injury was
proximately caused by the product’s design, the burden should appropriately
shift to the defendant to prove, in light of the relevant factors, that the product
is not defective.’ Appellants are therefore correct in asserting that it was not
their burden to show that the risks involved in the loader’s design—the lack of
mechanical safety devices, or of a warning—outweighed the benefits of these
aspects of its designs. The trial court’s instruction to the jury, which quite likely
would have been understood to place this burden on appellants, was therefore
an error.” (Lunghi v. Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485,
497–498 [200 Cal.Rptr. 387], internal citations omitted.)
• “[U]nder the risk/benefit test, the plaintiff may establish the product is defective
by showing that its design proximately caused his injury and the defendant then
fails to establish that on balance the benefits of the challenged design outweigh
the risk of danger inherent in such design. In such case, the jury must evaluate
the product’s design by considering the gravity of the danger posed by the
design, the likelihood such danger would occur, the feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the consumer resulting from an alternative design. ‘In such
683
cases, the jury must consider the manufacturer’s evidence of competing design
considerations . . . , and the issue of design defect cannot fairly be resolved by
standardless reference to the “expectations” of an “ordinary consumer.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233
[115 Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by
the nature of the product’s design. If this prima facie burden is met, the burden
of proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its
product was not defective because the plaintiff’s injury resulted from a misuse
of the product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics,
internal citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] standard, a jury may consider, among other relevant factors, the gravity
of the danger posed by the challenged design, the likelihood that such danger
would occur, the mechanical feasibility of a safer alternative design, the
financial cost of an improved design, and the adverse consequences to the
product and to the consumer that would result from an alternative design.’ ”
(Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 786–787 [64
Cal.Rptr.3d 908], internal citations omitted.)
• “[E]xpert evidence about compliance with industry standards can be considered
on the issue of defective design, in light of all other relevant circumstances,
even if such compliance is not a complete defense. An action on a design defect
theory can be prosecuted and defended through expert testimony that is
addressed to the elements of such a claim, including risk-benefit
considerations.” (Howard v. Omni Hotels Management Corp. (2012) 203
Cal.App.4th 403, 426 [136 Cal.Rptr.3d 739].)
684
685
New September 2003; Revised April 2009, December 2009, June 2011, December
2011
Directions for Use
With regard to element 2, it has been often stated in the case law that a
manufacturer is liable for failure to warn of a risk that is “knowable in light of
generally recognized and prevailing best scientific and medical knowledge
available.” (See, e.g., Anderson v. Owens-Corning Fiberglas Corp. (1991) 53
Cal.3d 987, 1002 [281 Cal.Rptr. 528, 810 P.2d 549]; Carlin v. Superior Court
(1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d 162, 920 P.2d 1347]; Saller v. Crown
Cork & Seal Company (2010) 187 Cal.App.4th 1220, 1239 [115 Cal.Rptr.3d 151];
686
Rosa v. City of Seaside (N.D. Cal. 2009) 675 F.Supp.2d 1006, 1012.) The advisory
committee believes that this standard is captured by the phrase “generally accepted
in the scientific community.” A risk may be “generally recognized” as a view
(knowledge) advanced by one body of scientific thought and experiment, but it may
not be the “prevailing” or “best” scientific view; that is, it may be a minority view.
The committee believes that when a risk is (1) generally recognized (2) as
prevailing in the relevant scientific community, and (3) represents the best
scholarship available, it is sufficient to say that the risk is knowable in light of “the
generally accepted” scientific knowledge.
The last bracketed paragraph should be read only in prescription product cases: “In
the case of prescription drugs and implants, the physician stands in the shoes of the
‘ordinary user’ because it is through the physician that a patient learns of the
properties and proper use of the drug or implant. Thus, the duty to warn in these
cases runs to the physician, not the patient.” (Valentine v. Baxter Healthcare Corp.
(1999) 68 Cal.App.4th 1467, 1483 [81 Cal.Rptr.2d 252].)
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case].) See also CACI
No. 1245, Affırmative Defense—Product Misuse or Modification. Product misuse is
a complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
Sources and Authority
• “Our law recognizes that even ‘ “a product flawlessly designed and produced
may nevertheless possess such risks to the user without a suitable warning that
it becomes ‘defective’ simply by the absence of a warning.” . . .’ Thus,
manufacturers have a duty to warn consumers about the hazards inherent in
their products. The purpose of requiring adequate warnings is to inform
consumers about a product’s hazards and faults of which they are unaware, so
that the consumer may then either refrain from using the product altogether or
avoid the danger by careful use.” (Taylor v. Elliott Turbomachinery Co., Inc.
(2009) 171 Cal.App.4th 564, 577 [90 Cal.Rptr.3d 414], internal citations and
footnote omitted.)
• “Negligence and strict products liability are separate and distinct bases for
687
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence
principles, and failure to warn claims are generally ‘ “rooted in negligence” to a
greater extent than’ manufacturing or design defect claims. Unlike those other
defects, a ‘ “warning defect” relates to a failure extraneous to the product itself’
and can only be assessed by examining the manufacturer’s conduct. These
principles notwithstanding, California law recognizes separate failure to warn
claims under both strict liability and negligence theories. In general, a product
seller will be strictly liable for failure to warn if a warning was feasible and the
absence of a warning caused the plaintiff’s injury. Reasonableness of the seller’s
failure to warn is immaterial in the strict liability context. Conversely, to prevail
on a claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], original italics, footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
• “The actual knowledge of the individual manufacturer, even if reasonably
prudent, is not the issue. We view the standard to require that the manufacturer
is held to the knowledge and skill of an expert in the field; it is obliged to keep
abreast of any scientific discoveries and is presumed to know the results of all
such advances.” (Carlin, supra, 13 Cal.4th at p. 1113, fn. 3.)
• “[A] defendant in a strict products liability action based upon an alleged failure
to warn of a risk of harm may present evidence of the state of the art, i.e.,
evidence that the particular risk was neither known nor knowable by the
application of scientific knowledge available at the time of manufacture and/or
distribution.” (Anderson, supra, 53 Cal.3d at p. 1004.)
• “[T]here can be no liability for failure to warn where the instructions or
warnings sufficiently alert the user to the possibility of danger.” (Aguayo v.
Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1042 [228 Cal.Rptr.
768], internal citation omitted.)
• “A duty to warn or disclose danger arises when an article is or should be
688
the defendant had issued adequate warnings.” (Huitt v. Southern California Gas
Co. (2010) 188 Cal.App.4th 1586, 1604 [116 Cal.Rptr.3d 453].)
• “When a manufacturer or distributor has no effective way to convey a product
warning to the ultimate consumer, the manufacturer should be permitted to rely
on downstream suppliers to provide the warning. ‘Modern life would be
intolerable unless one were permitted to rely to a certain extent on others doing
what they normally do, particularly if it is their duty to do so.’ ” (Persons v.
Salomon N. Am. (1990) 217 Cal.App.3d 168, 178 [265 Cal.Rptr. 773], internal
citation omitted.)
• “[A] manufacturer’s liability to the ultimate consumer may be extinguished by
‘intervening cause’ where the manufacturer either provides adequate warnings to
a middleman or the middleman alters the product before passing it to the final
consumer.” (Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 661 [74
Cal.Rptr.3d 359].)
• “ ‘A manufacturer’s duty to warn is a continuous duty which lasts as long as
the product is in use.’ . . . [T]he manufacturer must continue to provide
physicians with warnings, at least so long as it is manufacturing and distributing
the product.” (Valentine, supra, 68 Cal.App.4th at p. 1482.)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of
fact. . . . [A] manufacturer owes a foreseeable user of its product a duty to
warn of risks of using the product.’ ” (Wright v. Stang Manufacturing Co.
(1997) 54 Cal.App.4th 1218, 1235 [63 Cal.Rptr.2d 422].)
• “California law does not impose a duty to warn about dangers arising entirely
from another manufacturer’s product, even if it is foreseeable that the products
will be used together.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 361 [135
Cal.Rptr.3d 288, 266 P.3d 987].)
• “The O’Neil [supra] court concluded that Tellez-Cordova [Tellez-Cordova v.
Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577] marked an
exception to the general rule barring imposition of strict liability on a
manufacturer for harm caused by another manufacturer’s product. That
exception is applicable when ‘the defendant’s own product contributed
substantially to the harm . . . .’ In expounding the exception, the court rejected
the notion that imposition of strict liability on manufacturers is appropriate
when it is merely foreseeable that their products will be used in conjunction
with products made or sold by others. The O’Neil court further explained:
‘Recognizing a duty to warn was appropriate in Tellez-Cordova because there
the defendant’s product was intended to be used with another product for the
very activity that created a hazardous situation. Where the intended use of a
product inevitably creates a hazardous situation, it is reasonable to expect the
690
691
& Co., Inc. (1969) 272 Cal.App.2d 645, 649 [77 Cal.Rptr. 709] [weed killer];
Harris v. Belton (1968) 258 Cal.App.2d 595, 608 [65 Cal.Rptr. 808] [skin tone
cream].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467–1479
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.165 (Matthew Bender)
694
Derived from former CACI No. 1207 April 2009; Revised December 2009
Directions for Use
Give this instruction if the defendant alleges that the plaintiff’s own negligence
contributed to his or her harm. See also CACI No. 405, Comparative Fault of
Plaintiff. For an instruction on the comparative fault of a third person, see CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[W]e do not permit plaintiff’s own conduct relative to the product to escape
unexamined, and as to that share of plaintiff’s damages which flows from his
own fault we discern no reason of policy why it should, following Li, be borne
by others.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 [144
Cal.Rptr. 380, 575 P.2d 1162] [comparative fault applies to strict product
liability actions].)
• “[A] petitioner’s recovery may accordingly be reduced, but not barred, where
his lack of reasonable care is shown to have contributed to his injury.”
695
(Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152
Cal.Rptr. 172].)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• “While a jury may well find [plaintiff]’s conduct substantially contributed to the
accident [citing this instruction], we cannot say that conduct, even if sufficient
to establish criminal storage of a firearm, absolves [defendants], as a matter of
law, from all liability for a design defect that may otherwise be shown to exist
in the Glock 21. [Plaintiff]’s responsibility for his own injuries is
quintessentially a question for the jury.” (Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1308 [144 Cal.Rptr.3d 326], internal citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, § 1542
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
696
Derived from former CACI No. 1207 April 2009; Revised December 2009,
December 2015
Directions for Use
Give this instruction if the defendant has raised the issue of the comparative fault
of a third person who is not also a defendant at trial, including defendants who
settled before trial and nonjoined alleged tortfeasors. (See Dafonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; see also CACI No.
406, Apportionment of Responsibility.) For an instruction on the comparative fault
of the plaintiff, see CACI No. 1207A, Strict Liability—Comparative Fault of
Plaintiff.
This instruction may also be used to allocate liability between a negligent and a
strictly liable defendant (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322,
697
332 [146 Cal. Rptr. 550, 579 P.2d 441].) or between two strictly liable defendants
if multiple products are involved. (Arena v. Owens-Corning Fiberglas Corp. (1998)
63 Cal.App.4th 1178, 1198 [74 Cal.Rptr.2d 580].) However, there is no
comparative fault among entities in the distribution chain of the same product.
Each remains fully liable for the plaintiff’s economic and noneconomic damages.
(Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 623 [65 Cal.Rptr.2d
532].)
In the first sentence, include “also” if the defendant concedes some degree of
liability or alleges the comparative fault of the plaintiff, and select “fault” unless
the only basis for liability at issue is negligence. Include the last paragraph if any
of the defendants or others alleged to have contributed to the plaintiff’s harm are
not individuals.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[T]he comparative indemnity doctrine may be utilized to allocate liability
between a negligent and a strictly liable defendant.” (Safeway Stores, Inc.,
supra, 21 Cal.3d at p. 332.)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• ‘We conclude Proposition 51 is inapplicable; a strictly liable defendant may not
reduce or eliminate its responsibility to plaintiff for damages caused by a
defective product by shifting blame to others in the product’s chain of
distribution.” (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 623
[65 Cal.Rptr.2d 532].)
• “Proposition 51 is applicable in a strict liability asbestos exposure case where
multiple products cause the plaintiff’s injuries and the evidence provides a basis
to allocate liability for noneconomic damages between the defective products.
698
Where the evidence shows that a particular product is responsible for only a
part of plaintiff’s injury, Proposition 51 requires apportionment of the
responsibility for that part of the injury to that particular product’s chain of
distribution.” (Arena, supra, 63 Cal.App.4th at p. 1198.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, § 1542
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
1208–1219. Reserved for Future Use
699
the theory of strict liability in tort or on the theory of negligence. . . . Nor does
it appear that instructions on the two theories will be confusing to the jury.
There is nothing inconsistent in instructions on the two theories and to a large
extent the two theories parallel and supplement each other.” (Jiminez v. Sears,
Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681].)
• “The courts of this state are committed to the doctrine that the duty of care
exists in the absence of privity of contract not only where the article
manufactured is inherently dangerous but also where it is reasonably certain, if
negligently manufactured or constructed, to place life and limb in peril.”
(Sheward v. Virtue (1942) 20 Cal.2d 410, 412 [126 P.2d 345], internal citations
omitted.)
• Manufacturers or other suppliers of goods and buyers or users have a “special
relationship” giving rise to an affirmative duty to assist or protect. (6 Witkin,
Summary of Cal. Law (10th ed. 2005) §§ 1038–1042, 1048, 1049.)
• Restatement Second of Torts, section 388, comment (c), provides: “These rules
. . . apply to sellers, lessors, donors, or lenders, irrespective of whether the
chattel is made by them or by a third person. They apply to all kinds of
bailors. . . . They also apply to one who undertakes the repair of a chattel and
who delivers it back with knowledge that it is defective because of the work
which he is employed to do upon it.”
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1431
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.20
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.32
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.190 et seq.
(Matthew Bender)
701
can also take into account other applicable and relevant circumstances. As
framed by CACI No. 1221, the negligence inquiry asks if the manufacturer
failed to use the amount of care in designing the product that a reasonably
careful designer or manufacturer would have used in similar circumstances.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430
[136 Cal.Rptr.3d 739], internal citations omitted.)
• “[F]reedom from negligence does not inure to the manufacturer because it
purchased parts from another which were defective.” (Sheward v. Virtue (1942)
20 Cal.2d 410, 412 [126 P.2d 345].)
• “The duty of a manufacturer with respect to the design of products placed on
the market is defined in the Restatement Second of Torts, section 398: ‘A
manufacturer of a chattel made under a plan or design which makes it
dangerous for the uses for which it is manufactured is subject to liability to
others whom he should expect to use the chattel or to be endangered by its
probable use for physical harm caused by his failure to exercise reasonable care
in the adoption of a safe plan or design.’ Thus, the manufacturer must use
reasonable care ‘to so design his product as to make it not accident-proof, but
safe for the use for which it was [sic] intended.’ What is ‘reasonable care,’ of
course, varies with the facts of each case, but it involves a balancing of the
likelihood of harm to be expected from a machine with a given design and the
gravity of harm if it happens against the burden of the precaution which would
be effective to avoid the harm.” (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d
465, 470 [85 Cal.Rptr. 629, 467 P.2d 229], internal citation omitted.)
• “ ‘[T]he test of negligent design “involves a balancing of the likelihood of harm
to be expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” [Citation.] . . . “A manufacturer or other seller can be negligent in
marketing a product because of the way it was designed. In short, even if a
seller had done all that he could reasonably have done to warn about a risk or
hazard related to the way a product was designed, it could be that a reasonable
person would conclude that the magnitude of the reasonably foreseeable harm
as designed outweighed the utility of the product as so designed.” [Citation.]
Thus, “most of the evidentiary matters” relevant to applying the risk/benefit test
in strict liability cases “are similar to the issues typically presented in a
negligent design case.” ’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283,
1305 [144 Cal.Rptr.3d 326].)
• “A danger is unreasonable when it is foreseeable, and the manufacturer’s ability,
actual, constructive, or potential, to forestall unreasonable danger is the measure
of its duty in the design of its product.” (Balido v. Improved Machinery, Inc.
(1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other
grounds in Regents of University of California v. Hartford Accident &
Indemnity Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d
197].)
• “With respect to tests or inspections, it is well settled that where an article is
703
704
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [strict liability design defect risk-benefit case].) See
also CACI No. 1245, Affırmative Defense—Product Misuse or Modification.
Product misuse is a complete defense to strict products liability if the defendant
proves that an unforeseeable abuse or alteration of the product after it left the
manufacturer’s hands was the sole cause of the plaintiff’s injury. (Campbell v.
Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121];
see CACI No. 1245.) Misuse or modification that was a substantial factor in, but
not the sole cause of, plaintiff’s harm may also be considered in determining the
comparative fault of the plaintiff or of third persons. See CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person.
The last bracketed paragraph is to be used in prescription drug cases only.
Sources and Authority
• “[T]he manufacturer has a duty to use reasonable care to give warning of the
dangerous condition of the product or of facts which make it likely to be
dangerous to those whom he should expect to use the product or be endangered
by its probable use, if the manufacturer has reason to believe that they will not
realize its dangerous condition.” (Putensen v. Clay Adams, Inc. (1970) 12
Cal.App.3d 1062, 1076–1077 [91 Cal.Rptr. 319].)
• “Negligence law in a failure-to-warn case requires a plaintiff to prove that a
manufacturer or distributor did not warn of a particular risk for reasons which
fell below the acceptable standard of care, i.e., what a reasonably prudent
manufacturer would have known and warned about.” (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1305 [144 Cal.Rptr.3d 326], internal citation
omitted.)
• “Negligence and strict products liability are separate and distinct bases for
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence
principles, and failure to warn claims are generally ‘ “rooted in negligence” to a
greater extent than’ manufacturing or design defect claims. Unlike those other
defects, a ‘ “warning defect” relates to a failure extraneous to the product itself’
and can only be assessed by examining the manufacturer’s conduct. These
principles notwithstanding, California law recognizes separate failure to warn
claims under both strict liability and negligence theories. In general, a product
seller will be strictly liable for failure to warn if a warning was feasible and the
absence of a warning caused the plaintiff’s injury. Reasonableness of the seller’s
failure to warn is immaterial in the strict liability context. Conversely, to prevail
706
on a claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1171–1174A
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1271, 2:1295 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21, Ch. 7, Proof, § 7.05 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, 190.165 et seq.
(Matthew Bender)
707
1223. Negligence—Recall/Retrofit
709
Greenberg (1953) 40 Cal.2d 740, 742 [255 P.2d 810].) The bailor is not an
insurer or guarantor. (Tierstein, supra, 174 Cal.App.2d at p. 841.)
• Restatement Second of Torts, section 408, provides: “One who leases a chattel
as safe for immediate use is subject to liability to those whom he should expect
to use the chattel, or to be endangered by its probable use, for physical harm
caused by its use in a manner for which, and by a person for whose use, it is
leased, if the lessor fails to exercise reasonable care to make it safe for such use
or to disclose its actual condition to those who may be expected to use it.”
• This Restatement section was cited with approval in Rae v. California
Equipment Co. (1939) 12 Cal.2d 563, 569 [86 P.2d 352].
• “The general rule is that the only duty which a gratuitous bailor owes either to
the bailee or to third persons is to warn them of actually known defects which
render the chattel dangerous for the purpose for which it is ordinarily used; he
has no liability for injuries caused by defects in the subject matter of the
bailment of which he was not aware.” (Tierstein, supra, 174 Cal.App.2d at p.
841.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1506
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.053 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 413, Personal Property Leases,
§ 413.34 (Matthew Bender)
1225–1229. Reserved for Future Use
711
California Commercial Code. (See Orichian v. BMW of North America, LLC (2014)
226 Cal.App.4th 1322, 1333–1334 [172 Cal.Rptr.3d 876]; Comm. Code, § 2313.) If
a breach of written warranty under the federal Magnuson-Moss Warranty Act (see
15 U.S.C. § 2301 et seq.) is alleged, give the first option for element 1. (See 15
U.S.C. §§ 2310(d)(1), 2301(6).)
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d
57, 61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI
No. 1243, Notification/Reasonable Time.
Sources and Authority
• Express Warranties. California Uniform Commercial Code section 2313.
• Applicable to “Transactions in Goods.” California Uniform Commercial Code
section 2102.
• “Goods” Defined. California Uniform Commercial Code section 2105.
• Damages Under Commercial Code. California Uniform Commercial Code
section 2714.
• “An express warranty ‘is a contractual promise from the seller that the goods
conform to the promise. If they do not, the buyer is entitled to recover the
difference between the value of the goods accepted by the buyer and the value
of the goods had they been as warranted.’ ” (Dagher v. Ford Motor Co. (2015)
238 Cal.App.4th 905, 928 [190 Cal.Rptr.3d 261].)
• “A warranty relates to the title, character, quality, identity, or condition of the
goods. The purpose of the law of warranty is to determine what it is that the
seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d
13, 20 [220 Cal.Rptr. 392], internal citation omitted.)
• “The essential elements of a cause of action under the California Uniform
Commercial Code for breach of an express warranty to repair defects are (1) an
express warranty to repair defects given in connection with the sale of goods;
(2) the existence of a defect covered by the warranty; (3) the buyer’s notice to
the seller of such a defect within a reasonable time after its discovery; (4) the
seller’s failure to repair the defect in compliance with the warranty; and (5)
resulting damages.” (Orichian, supra, 226 Cal.App.4th at pp. 1333–1334,
internal citations omitted.)
• “Privity is not required for an action based upon an express warranty.” (Hauter
v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “Used car owners that obtain their vehicles via private sales and who comply
with the warranty terms may seek to enforce the express warranty against the
manufacturer by bringing an action under the Commercial Code based on
713
breach of express warranty. Such an action does not require that the plaintiff
purchase the vehicle from a retail seller.” (Dagher, supra, 238 Cal.App.4th at p.
928.)
• “ ‘The determination as to whether a particular statement is an expression of
opinion or an affirmation of a fact is often difficult, and frequently is dependent
upon the facts and circumstances existing at the time the statement is made.’ ”
(Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
• “Statements made by a seller during the course of negotiation over a contract
are presumptively affirmations of fact unless it can be demonstrated that the
buyer could only have reasonably considered the statement as a statement of the
seller’s opinion. Commentators have noted several factors which tend to
indicate an opinion statement. These are (1) a lack of specificity in the
statement made, (2) a statement that is made in an equivocal manner, or (3) a
statement which reveals that the goods are experimental in nature.” (Keith,
supra, 173 Cal.App.3d at p. 21.)
• “It is important to note . . . that even statements of opinion can become
warranties under the code if they become part of the basis of the bargain.”
(Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
• “The basis of the bargain requirement represents a significant change in the law
of warranties. Whereas plaintiffs in the past have had to prove their reliance
upon specific promises made by the seller, the Uniform Commercial Code
requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations
omitted.)
• “It is immaterial whether defendant had actual knowledge of the
contraindications. ‘The obligation of a warranty is absolute, and is imposed as a
matter of law irrespective of whether the seller knew or should have known of
the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969)
274 Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
• “[A] sale is ordinarily an essential element of any warranty, express or implied
. . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137
Cal.Rptr. 417], internal citations omitted.)
• “Neither Magnuson-Moss nor the California Uniform Commercial Code
requires proof that a defect substantially impairs the use, value, or safety of a
vehicle in order to establish a breach of an express or written warranty, as
required under Song-Beverly.” (Orichian, supra, 226 Cal.App.4th at p. 1331; fn.
9, see CACI No. 3204, “Substantially Impaired” Explained.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 56–66
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.23, 502.42–502.50, 502.140–502.150 (Matthew Bender)
714
20 California Points and Authorities, Ch. 206, Sales, § 206.60 et seq. (Matthew
Bender)
715
718
• Although privity appears to be required for actions based upon the implied
warranty of merchantability, there are exceptions to this rule, such as one for
members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for
employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr.
863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she
leases or negotiates the sale or lease of the product. (United States Roofing,
supra.)
Secondary Sources
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.220 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
721
[Name of plaintiff] claims that [he/she] was harmed by the [food product]
that was sold by [name of defendant] because the [food product] was not
fit for human consumption. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [ate/drank] a [food product] sold by [name
of defendant];
2. That, at the time of purchase, [name of defendant] was in the
business of selling the [food product] [or by [his/her] occupation
held [himself/herself/itself] out as having special knowledge or
skill regarding this [food product]];
3. That the [food product] was harmful when consumed;
4. That the harmful condition would not reasonably be expected by
the average consumer;
5. That [name of plaintiff] was harmed; and
6. That the [food product] was a substantial factor in causing [name
of plaintiff]’s harm.
723
New September 2003; Revoked June 2010; Restored and Revised December 2010
Sources and Authority
• Creation of Express Warranties. California Uniform Commercial Code section
2313.
• “The key under [California Uniform Commercial Code section 2313] is that the
seller’s statements—whether fact or opinion—must become ‘part of the basis of
the bargain.’ The basis of the bargain requirement represents a significant
change in the law of warranties. Whereas plaintiffs in the past have had to
prove their reliance upon specific promises made by the seller, the Uniform
Commercial Code requires no such proof. According to official comment 3 to
the Uniform Commercial Code following section 2313, ‘no particular reliance
. . . need be shown in order to weave [the seller’s affirmations of fact] into the
fabric of the agreement. Rather, any fact which is to take such affirmations,
once made, out of the agreement requires clear affirmative proof.’ ” (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 115 [120 Cal.Rptr. 681, 534 P.2d 377, internal
citations and footnote omitted.)
• “The California Supreme Court, in discussing the continued viability of the
reliance factor, noted that commentators have disagreed in regard to the impact
of this development. Some have indicated that it shifts the burden of proving
nonreliance to the seller, and others have indicated that the code eliminates the
concept of reliance altogether.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13,
22 [220 Cal.Rptr. 392], citing Hauter, supra, 14 Cal.3d at pp. 115–116.)
• “The official Uniform Commercial Code comment in regard to section 2-313
‘indicates that in actual practice affirmations of fact made by the seller about
the goods during a bargain are regarded as part of the description of those
724
parties in fact,’ not, as Keith would suggest, to proof that they were not an
inducement for the purchase. Relying on Keith, the court in effect equated the
concept of the ‘bargain in fact of the parties’ with the concept of reliance, but
. . . the two are not synonymous. Moreover, the opinion in Keith contradicts
itself on this matter. On the one hand the opinion states unequivocally that ‘[i]t
is clear’ section 2313 ‘purposefully abandoned’ the concept of reliance. On the
other hand, we must ask if section 2313 has eliminated the concept of reliance
from express warranty law all together, by what logic can reliance reappear, by
its absence, as an affirmative defense?” (Weinstat, supra, 180 Cal.App.4th at p.
1234, internal citation omitted.)
Secondary Sources
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.62
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 (Matthew Bender)
21 California Legal Forms, Ch. 52, Sales of Goods Under the Uniform Commercial
Code, § 52.290[1] (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or
Defending Action for Breach of Warranty, 24.36[4]
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
726
disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “Interpretation of a written document, where extrinsic evidence is unnecessary,
is a question of law for the trial court to determine.” (Temple v. Velcro USA,
Inc. (1983) 148 Cal.App.3d 1090, 1095 [196 Cal.Rptr. 531], internal citations
omitted.)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.23
(Matthew Bender)
728
730
732
user knows, or should know, of the item’s hazards. In view of this requirement,
the intermediary’s sophistication is not, as matter of law, sufficient to avert
liability; there must be a sufficient reason for believing that the intermediary’s
sophistication is likely to operate to protect the user, or that the user is likely to
discover the hazards in some other manner. The fact that the user is an
employee or servant of the sophisticated intermediary cannot plausibly be
regarded as a sufficient reason, as a matter of law, to infer that the latter will
protect the former. We therefore reject [defendant]’s contention that an
intermediary’s sophistication invariably shields suppliers from liability to the
intermediary’s employees or servants.” (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1296–1297 [164 Cal.Rptr.3d 112].)
• “In order to establish the defense, a manufacturer must demonstrate that
sophisticated users of the product know what the risks are, including the degree
of danger involved (i.e., the severity of the potential injury), and how to use the
product to reduce or avoid the risks, to the extent that information is known to
the manufacturer.” (Buckner, supra, 222 Cal.App.4th at p. 536.)
• “ ‘Under the “should have known” standard there will be some users who were
actually unaware of the dangers. However, the same could be said of the
currently accepted obvious danger rule; obvious dangers are obvious to most,
but are not obvious to absolutely everyone. The obvious danger rule is an
objective test, and the courts do not inquire into the user’s subjective
knowledge in such a case. In other words, even if a user was truly unaware of a
product’s hazards, that fact is irrelevant if the danger was objectively obvious.
[Citations.] Thus, under the sophisticated user defense, the inquiry focuses on
whether the plaintiff knew, or should have known, of the particular risk of harm
from the product giving rise to the injury.’ [Citation]” (Moran v. Foster Wheeler
Energy Corp. (2016) 246 Cal.App.4th 500, 511 [200 Cal.Rptr.3d 902].)
• “[S]peculation about a risk does not give rise to constructive knowledge of a
risk under the ‘should have known’ test.” (Scott v. Ford Motor Co. (2014) 224
Cal.App.4th 1492, 1501 [169 Cal.Rptr.3d 823], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467, 1537,
1541–1542
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1277 (The Rutter Group)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.185 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.246
(Matthew Bender)
735
New April 2009; Revised December 2009, June 2011, December 2013
Directions for Use
Give this instruction if the defendant claims a complete defense to strict product
liability because the product was misused or modified after it left the defendant’s
possession and control in an unforeseeable way, and the evidence permits defendant
to argue that the subsequent misuse or modification was the sole cause of the
plaintiff’s injury. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) If misuse or modification was a substantial
factor contributing to, but not the sole cause of, plaintiff’s harm, there is no
complete defense, but the conduct of the plaintiff or of third parties may be
considered under principles of comparative negligence or fault. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 15–21 [56 Cal.Rptr.2d 455].) See CACI
No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and CACI No. 1207B,
Strict Liability—Comparative Fault of Third Person.
Third party negligence that is the immediate cause of an injury may be viewed as a
superseding cause if it is so highly extraordinary as to be unforeseeable. Product
misuse or modification may be deemed to be a superseding cause, which provides a
complete defense to liability. (See Torres, supra, 49 Cal.App. 4th at pp. 18–19.)
Element 2 incorporates this aspect of superseding cause as an explanation of what
is meant by “sole cause.” If misuse or modification truly were the sole cause, the
product would not be defective.
It would appear that at least one court views superseding cause as a different
standard from sole cause. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
685 [115 Cal.Rptr.3d 590] [product misuse may serve as a complete defense when
the misuse was so unforeseeable that it should be deemed the sole or superseding
cause], original italics.)
736
of a kind and degree so far beyond the risk the original tortfeasor should have
foreseen that the law deems it unfair to hold him responsible.’ ” (Torres, supra,
49 Cal.App.4th at pp. 18–19, internal citations omitted.)
• “ ‘Misuse’ is a defense only when that misuse is the actual cause of the
plaintiff’s injury, not when some other defect produces the harm. This causation
is one of the elements of the ‘misuse’ affirmative defense and thus the burden
falls on the defendant to prove it.” (Huynh v. Ingersoll-Rand (1993) 16
Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296], internal citation omitted.)
• “[Defendant] further contends that [plaintiff]’s injuries arose not from a
defective product, but rather, from his parents’ modification of the product or
their negligent supervision of its use. These arguments cannot be advanced by
demurrer. Creation of an unreasonable risk of harm through product
modification or negligent supervision is not clearly established on the face of
[plaintiff]’s complaint. Instead, these theories must be pled as affirmative
defenses.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,
141 [229 Cal.Rptr. 605].)
• “[Defendant]’s alternative contention [plaintiff]’s failure to safely store the
Glock 21 was the sole proximate cause of his injuries is not an appropriate
ground for granting summary judgment. Product misuse, an affirmative defense,
is a superseding cause of injury that absolves a tortfeasor of his or her own
wrongful conduct only when the misuse was ‘ “so highly extraordinary as to be
unforeseeable.” ’ [citing this instruction] ‘However, foreseeability is a question
for the jury unless undisputed facts leave no room for a reasonable difference of
opinion.’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308 [144
Cal.Rptr.3d 326], internal citations omitted.)
• “[T]here are cases in which the modification of a product has been determined
to be so substantial and unforeseeable as to constitute a superseding cause of an
injury as a matter of law. However, foreseeability is a question for the jury
unless undisputed facts leave no room for a reasonable difference of opinion.
Thus, the issue of superseding cause is generally one of fact. Superseding cause
has been viewed as an issue of fact even in cases where ‘safety neglect’ by an
employer has increased the risk of injury, or modification of the product has
made it more dangerous.” (Torres, supra, 49 Cal.App.4th at p. 19, internal
citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1530, 1531
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1329 et seq. (The Rutter Group)
California Product Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.13[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.183 (Matthew Bender)
738
739
[Name of defendant] may not be held liable for design defects in the
[product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States approved reasonably precise specifications
for the [product];
3. That the [product] conformed to those specifications; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
742
[Name of defendant] may not be held liable for failure to warn about the
dangers in the use of the [product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States imposed reasonably precise specifications
on [name of defendant] regarding the provision of warnings for
the [product];
3. That the [product] conformed to those specifications regarding
warnings; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
States exercised its discretion and approved the warnings, if any; (2) the
contractor provided warnings that conformed to the approved warnings; and (3)
the contractor warned the United States of the dangers in the equipment’s use
about which the contractor knew, but the United States did not.’ ” (Oxford,
supra, 177 Cal.App.4th at p. 712.)
• “As in design defect cases, in order to satisfy the first condition—government
‘approval’—in failure to warn cases, the government’s involvement must
transcend rubber stamping. And where the government goes beyond approval
and actually determines for itself the warnings to be provided, the contractor
has surely satisfied the first condition because the government exercised its
discretion. The second condition in failure to warn cases, as in design defect
cases, assures that the defense protects the government’s, not the contractor’s,
exercise of discretion. Finally, the third condition encourages frank
communication to the government of the equipment’s dangers and increases the
likelihood that the government will make a well-informed judgment.” (Oxford,
supra, 177 Cal.App.4th at p. 712, quoting Tate, supra, 55 F.3d at p. 1157.)
• “Under California law, a manufacturer has a duty to warn of a danger when the
manufacturer has knowledge of the danger or has reason to know of it and has
no reason to know that those who use the product will realize its dangerous
condition. Whereas the government contractor’s defense may be used to trump a
design defect claim by proving that the government, not the contractor, is
responsible for the defective design, that defense is inapplicable to a failure to
warn claim in the absence of evidence that in making its decision whether to
provide a warning . . . , [defendant] was ‘acting in compliance with
“reasonably precise specifications” imposed on [it] by the United States.’ ”
(Butler v. Ingalls Shipbuilding (9th Cir. 1996) 89 F.3d 582, 586.)
• “In a failure-to-warn action, where no conflict exists between requirements
imposed under a federal contract and a state law duty to warn, regardless of any
conflict which may exist between the contract and state law design
requirements, Boyle commands that we defer to the operation of state law.”
(Butler, supra, 89 F.3d at p. 586.)
• “Defendants’ evidence did not establish as a matter of law the necessary
significant conflict between federal contracting requirements and state law.
Although defendants’ evidence did show that certain warnings were required by
the military specifications, that evidence did not establish that the specifications
placed any limitation on additional information from the manufacturers to users
of their products. Instead, the evidence suggested no such limitation existed.”
(Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1317 [273 Cal.Rptr. 214].)
• “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal
interests” ’ state law may be preempted or displaced by federal law, and that
civil liability arising from the performance of federal procurement contracts is
such an area. The court further determined that preemption or displacement of
state law occurs in an area of uniquely federal interests only where a
‘ “significant conflict” ’ exists between an identifiable federal policy or interest
744
and the operation of state law.” (Oxford, supra, 177 Cal.App.4th at p. 708,
quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
• “[T]he Supreme Court in Boyle did not expressly limit its holding to products
liability causes of action. Thus, the government contractor defense is applicable
to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
• “[T]he fact that a company supplies goods to the military does not, in and of
itself, immunize it from liability for the injuries caused by those goods. Where
the goods ordered by the military are those readily available, in substantially
similar form, to commercial users, the military contractor defense does not
apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806,
811.)
• “In our view, if a product is produced according to military specifications and
used by the military because of particular qualities which serve a military
purpose, and is incidentally sold commercially as well, that product may
nonetheless still qualify as military equipment under the military contractor
defense.” (Jackson, supra, 223 Cal.App.3d at p. 1319.)
• “While courts such as the court in Hawaii have sought to confine the
government contractor defense to products that are made exclusively for the
military, we agree with the court in Jackson that this limitation is unduly
confining. Though the court in Boyle discussed the parameters of the contractor
defense in terms of ‘military equipment,’ use of that term appears to have
followed from the facts of that case. Other courts considering this issue have
concluded the defense is not limited to military contracts. . . . [Boyle’s]
application focuses instead on whether the issue or area is one involving
‘uniquely federal interests’ and, if so, whether the application of state law
presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177
Cal.App.4th at p. 710; the split on this issue in the federal and other state courts
is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1538
1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)
2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
745
dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous. Good
butter is not unreasonably dangerous merely because, if such be the case, it
deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.”
• “Additional limitations on the scope of the immunity may be deduced from the
history and purpose of the Immunity Statute . . . .The statute’s express premise
. . . was ‘that suppliers of certain products which are “inherently unsafe,” but
which the public wishes to have available despite awareness of their dangers,
should not be responsible in tort for resulting harm to those who voluntarily
consumed the products despite such knowledge.’ . . . [T]he Immunity Statute
[is] based on the principle that ‘if a product is pure and unadulterated, its
inherent or unavoidable danger, commonly known to the community which
consumes it anyway, does not expose the seller to liability for resulting harm to
a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th
856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
• “The law should not ignore interactive effects that might render a product more
dangerous than is contemplated by the ordinary consumer who purchases it and
possesses the ordinary knowledge common to the community as to the product’s
characteristics. Therefore, when a court addresses whether a multi-ingredient
product is a common consumer product for purposes of Civil Code section
1714.45 and the ingredients have an interactive effect, the product and its
inherent dangers must be considered as a whole so that the interactive effects of
its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co.,
LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
• “The foregoing inferences preclude us from finding, as a matter of law, that
[product] was a common consumer product for purposes of Civil Code section
1714.45, subdivision (a). As a result, that factual question should be presented
to the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2010) Torts, § 1745 et seq.
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[5] (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.70 (Matthew Bender)
747
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
1249–1299. Reserved for Future Use
748
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
4. If [name of plaintiff] has proved any damages, answer question 5.
If [name of plaintiff] has not proved any damages, then stop here,
answer no further questions, and have the presiding juror sign
and date this form.
5. Was [name of plaintiff] negligent?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If
you answered no, insert the number zero next to [name of
plaintiff]’s name in question 9 and answer question 7.
6. Was [name of plaintiff]’s negligence a substantial factor in
causing [his/her] harm?
6. Yes No
6. If your answer to question 6 is yes, then answer questions 7 and
9. If you answered no, insert the number zero next to [name of
plaintiff]’s name in question 9 and answer question 7.
7. Was [name/description of other person] negligent?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, insert the number zero next to
[name/description of other person]’s name in question 9.
8. Was [name/description of other person]’s negligence a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If
you answered no, insert the number zero next to
[name/description of other person]’s name in question 9.
9. What percentage of responsibility for [name of plaintiff]’s harm
do you assign to:
750
[Name of defendant]: %
[Name of plaintiff]: %
[Name/description of other person]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, June 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1201, Strict Liability—Manufacturing
Defect—Essential Factual Elements, CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person. If product misuse or modification is
alleged as a complete defense (see CACI No. 1245, Affırmative Defense—Product
Misuse or Modification), questions 2 and 3 of CACI No. VF-1201, Strict Products
Liability—Design Defect—Consumer Expectation Test—Affırmative
Defense—Misuse or Modification, may be included after question 1.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the negligence or fault of more than one third person is alleged to have
contributed to the plaintiff’s injury, repeat questions 7 and 8.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
751
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
753
New September 2003; Revised October 2004, April 2007, April 2009, December
2010, June 2011, December 2011, December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 1203, Strict Liability—Design
Defect—Consumer Expectation Test—Essential Factual Elements, CACI No. 1204,
Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements─Shifting Burden of Proof, and CACI No. 1245, Affırmative
Defense—Product Misuse or Modification. If the comparative fault or negligence of
the plaintiff or of third persons is at issue, questions 6 through 9 of CACI No. VF-
1200, Strict Products Liability—Manufacturing Defect—Comparative Fault at
Issue, may be added at the end.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form can be used in a case in which the jury will decide design defect
under both the consumer expectation and the risk-benefit tests. If only the risk-
benefit test is at issue, omit questions 4 and 5. If only the consumer expectation
test is at issue, omit question 6. Modify the transitional language following
questions 5 and 6 if only one test is at issue in the case. Include question 4 if the
court has decided to give to the jury the preliminary question as to whether the
consumer expectation test can be applied to the product at issue in the case. (See
Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233–1234
[115 Cal.Rptr.3d 151].) An additional question may be needed if the defendant
claims that the plaintiff’s injuries were caused by some product other than the
defendant’s.
If specificity is not required, users do not have to itemize all the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
754
755
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2010, June 2011,
December 2011, December 2016
757
758
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
4. If [name of plaintiff] has proved any damages, answer question 5.
If [name of plaintiff] has not proved any damages, then stop here,
answer no further questions, and have the presiding juror sign
and date this form.
5. Was [name of plaintiff] negligent?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
6. Was [name of plaintiff]’s negligence a substantial factor in
causing [his/her] harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What percentage of responsibility for [name of plaintiff]’s harm
do you assign to:
[Name of defendant]: %
[Name of plaintiff]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
760
New September 2003; Revised April 2007, December 2009, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1220, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
761
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
763
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
764
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1230, Express Warranty—Essential
Factual Elements, and CACI No. 1240, Affırmative Defense to Express
Warranty—Not “Basis of Bargain.”
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that he or she made a
reasonable attempt to notify the defendant of the defect. Thus, if appropriate, the
following question should be added before the question regarding the plaintiff’s
harm: “Did [name of plaintiff] take reasonable steps to notify [name of defendant]
within a reasonable time that the [product] [was not/did not perform] as
requested?”
766
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Do not include question 2 if the affirmative defense is not at issue.
767
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1231, Implied Warranty of
Merchantability—Essential Factual Elements, and CACI No. 1242, Affırmative
Defense—Exclusion of Implied Warranties.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that he or she made a
reasonable attempt to notify the defendant of the defect. Thus, where appropriate,
the following question should be added prior to the question regarding the
plaintiff’s harm: “Did [name of plaintiff] take reasonable steps to notify [name of
769
defendant] within a reasonable time that the [product] [was not/did not perform] as
requested?”
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Question 2 should be modified if the defendant held himself or herself out as
having special knowledge or skill regarding the goods. Question 3 should be
modified if a different ground of liability is asserted under Commercial Code
section 2314(2). Question 6 should be modified if the defendant is asserting other
grounds under Commercial Code section 2316(3). This form should also be
modified if notification is an issue.
Do not include question 3 if the affirmative defense is not at issue.
770
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1232, Implied Warranty of Fitness for a
772
773
775
• “The crimes of assault and battery are intentional torts. In the perpetration of
such crimes negligence is not involved. As between the guilty aggressor and the
person attacked the former may not shield himself behind the charge that his
victim may have been guilty of contributory negligence, for such a plea is
unavailable to him.” (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 [59
Cal.Rptr. 382].)
• “ ‘It has long been established, both in tort and criminal law, that “the least
touching” may constitute battery. In other words, force against the person is
enough; it need not be violent or severe, it need not cause bodily harm or even
pain, and it need not leave any mark.’ ” (People v. Mansfield (1988) 200
Cal.App.3d 82, 88 [245 Cal.Rptr. 800], internal citations omitted.)
• “[T]he tort of battery generally is not limited to direct body-to-body contact. In
fact, the commentary to the Restatement Second of Torts clearly states that the
‘[m]eaning of “contact with another’s person” ’ . . . does not require that one
‘should bring any part of his own body in contact with another’s person. . . .
[One] is liable [for battery] in this Section if [one] throws a substance, such as
water, upon the other . . . .’ ” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219
Cal.App.4th 876, 881 [162 Cal.Rptr.3d 211].)
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains, supra, 150 Cal.App.3d at p. 938.)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions
on the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
• “In an action for civil battery the element of intent is satisfied if the evidence
shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.”
(Ashcraft, supra, 228 Cal.App.3d at p. 613, internal citation omitted.)
• “ ‘The usages of decent society determine what is offensive.’ ” (Barouh, supra,
26 Cal.App.4th at p. 46, fn. 5, internal citation omitted.)
• “Even though pushing a door cannot be deemed a harmful injury, the pushing
of a door which was touching the prosecutrix could be deemed an offensive
touching and a battery is defined as a harmful or offensive touching.” (People v.
Puckett (1975) 44 Cal.App.3d 607, 614–615 [118 Cal.Rptr. 884].)
• “ ‘If defendant unlawfully aims at one person and hits another he is guilty of
assault and battery on the party he hit, the injury being the direct, natural and
probable consequence of the wrongful act.’ ” (Singer v. Marx (1956) 144
Cal.App.2d 637, 642 [301 P.2d 440], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381–416
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
777
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.21 (Matthew
Bender)
1 California Civil Practice: Torts §§ 12:7–12:9 (Thomson Reuters)
778
one person to inflict immediate injury on the person of another then present.’ ”
(Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1603–1604 [146
Cal.Rptr.3d 585].)
• “A civil action for assault is based upon an invasion of the right of a person to
live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of
California (1944) 63 Cal.App.2d 1, 6–7 [146 P.2d 57], internal citation
omitted.)
• “The tort of assault is complete when the anticipation of harm occurs.”
(Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d
222, 232 [192 Cal.Rptr 492].)
“Furthermore, . . . ‘while apprehension of that contact is the basis of assault
[citation,] [m]ere words, however threatening, will not amount to an assault.
[Citations.]’ ” (Plotnik, supra, 208 Cal.App.4th at p. 1604.)
• Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381–416
Chin et al., California Practice Guide: Employment Litigation, Ch.5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[4] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
1 California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters West)
780
781
782
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 386–416
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
Bender)
1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18–12:19
783
785
identified and that the federal court’s instructions in this case set forth. (Judicial
Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in
arguing that the federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal. Rptr. 3d 1, 207 P.3d 506],
internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22,
58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 12:22 (Thomson Reuters)
788
790
1320. Intent
791
792
VF-1300. Battery
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
794
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
795
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual
Elements, and CACI No. 1304, Self-Defense/Defense of Others.
797
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
798
VF-1302. Assault
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, June 2005, April 2007, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1301, Assault—Essential Factual
Elements.
800
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
As appropriate to the facts of the case, read one of the bracketed alternative sets of
questions 1 and 2.
Give the bracketed words in question 2 only if the offensive nature of the conduct
is at issue. In most cases, it will be clear whether the alleged conduct was
offensive. The offensive nature of the conduct will most likely not be at issue if the
conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
801
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1305, Battery by Peace Offıcer.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
803
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1304–VF-1399. Reserved for Future Use
804
FALSE IMPRISONMENT
805
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 426–429
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§§ 42.01, 42.07, 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.40 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters West)
808
Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941 [163 Cal.Rptr.
335], internal citation omitted.) Where a defendant “knowingly [gives] the
police false or materially incomplete information, of a character that could be
expected to stimulate an arrest” . . . “such conduct can be a basis for imposing
liability for false imprisonment.” (Id. at p. 942.)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest.” (Cervantez v. J.C. Penney Co.
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• Penal Code section 830 and following provisions define who are peace officers
in California.
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 434–440
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
1 California Civil Practice: Torts § 13:20 (Thomson Reuters)
810
[Name of defendant] claims the arrest was not wrongful because [he/she]
had the authority to arrest [name of plaintiff] without a warrant.
[If [name of defendant] proves that [insert facts that, if proved, would
constitute reasonable cause to believe that plaintiff had committed a crime
in defendant’s presence], then [name of defendant] had the authority to
arrest [name of plaintiff] without a warrant.]
[or]
[If [name of defendant] proves that [insert facts that, if proved, would
establish that defendant had reasonable cause to believe that plaintiff had
committed a felony, whether or not a felony had actually been committed],
then [name of defendant] had the authority to arrest [name of plaintiff]
without a warrant.]
The question of the existence of probable cause to believe that one is guilty of
a crime must be determined as a matter of law from the facts and circumstances
of the case.” (Allen v. McCoy (1933) 135 Cal.App. 500, 507–508 [27 P.2d
423].)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest. Considerations of both a practical
and policy nature underlie this rule. The existence of justification is a matter
which ordinarily lies peculiarly within the knowledge of the defendant. The
plaintiff would encounter almost insurmountable practical problems in
attempting to prove the negative proposition of the nonexistence of any
justification. This rule also serves to assure that official intermeddling is
justified, for it is a serious matter to accuse someone of committing a crime and
to arrest him without the protection of the warrant process.” (Cervantez v. J. C.
Penney Co. (1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975],
footnote and internal citations omitted.)
• “The existence of probable cause depends upon facts known by the arresting
officer at the time of the arrest.” (Hamilton v. City of San Diego (1990) 217
Cal.App.3d 838, 844 [266 Cal.Rptr. 215], internal citations omitted.)
• “If the facts that gave rise to the arrest are undisputed, the issue of probable
cause is a question of law for the trial court. When, however, the facts that gave
rise to the arrest are controverted, the trial court must instruct the jury as to
what facts, if established, would constitute probable cause. ‘The trier of fact’s
function in false arrest cases is to resolve conflicts in the evidence. Accordingly,
where the evidence is conflicting with respect to probable cause, “ ‘it [is] the
duty of the court to instruct the jury as to what facts, if established, would
constitute probable cause.’ ” . . . The jury then decides whether the evidence
supports the necessary factual findings.’ ” (Levin v. United Air Lines, Inc.
(2008) 158 Cal.App.4th 1002, 1018–1019 [70 Cal.Rptr.3d 535], internal
citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
offense is apparent to the officer’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 436, 438
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.20 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.65 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:22–13:24 (Thomson Reuters)
812
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “ ‘[T]he delegation of the physical act of arrest need not be express, but may be
implied from the citizen’s act of summoning an officer, reporting the offense,
and pointing out the suspect.’ ” (Johanson v. Dept. of Motor Vehicles (1995) 36
Cal.App.4th 1209, 1216 [43 Cal.Rptr.2d 42], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 438, 439
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
814
[Name of defendant] claims the citizen’s arrest was not wrongful because
[he/she] had the authority to cause [name of plaintiff] to be arrested
without a warrant.
[If [name of defendant] proves that [name of plaintiff] committed or
attempted to commit a crime in [name of defendant]’s presence, then the
arrest was lawful.]
[or]
[If [name of defendant] proves that a felony was committed and that
[insert facts, that if proved, would establish that defendant had reasonable
cause to believe that plaintiff had committed a felony], then the arrest was
lawful.]
816
818
[Name of defendant] claims that the arrest was not wrongful. To succeed,
[name of defendant] must prove all of the following:
1. That the arrest warrant would have appeared valid to a
reasonably intelligent and informed person;
2. That [name of defendant] believed the warrant was valid; and
3. That [name of defendant] had a reasonable belief that [name of
plaintiff] was the person referred to in the warrant.
If [name of defendant] has proven all of the above, then the arrest was
not wrongful.
820
but one way of committing a false imprisonment, and they are distinguishable
only in terminology.” (Collins v. City and County of San Francisco (1975) 50
Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
• “In determining which delays are necessary, this court has rejected arguments
that the delay was ‘not unusual’ or made ‘the work of the police and the district
attorney easier.’ As the Court of Appeal recently observed, ‘[t]here is no
authority to delay for the purpose of investigating the case. Subject to obvious
health considerations the only permissible delay between the time of arrest and
bringing the accused before a magistrate is the time necessary: to complete the
arrest; to book the accused; to transport the accused to court; or the district
attorney to evaluate the evidence for the limited purpose of determining what
charge, if any, is to be filed; and to complete the necessary clerical and
administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates
(1988) 200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775], internal citations
omitted.)
• “Although both false imprisonment and malicious prosecution may cause a
person to be restrained or confined, under Asgari (Asgari v. City of Los Angeles
(1997) 15 Cal.4th 744 [63 Cal.Rptr.2d 842, 937 P.2d 273]) only damages
attributable to injuries arising from false arrest and false imprisonment are
compensable in an action under state law against a public entity and its
employees. False imprisonment ends at the point malicious prosecution begins
which, under Asgari, is the point at which the person is arraigned.” (County of
Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 220–221 [92
Cal.Rptr.2d 668].)
• “[W]here the arrest is lawful, subsequent unreasonable delay in taking the
person before a magistrate will not affect the legality of the arrest, although it
will subject the offending person to liability for so much of the imprisonment as
occurs after the period of necessary or reasonable delay.” (Dragna v. White
(1955) 45 Cal.2d 469, 473 [289 P.2d 428].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 445
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.26 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.24 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.110 et
seq. (Matthew Bender)
1 California Civil Practice: Torts §§ 13:31–13:34 (Thomson Reuters)
822
[Name of defendant] claims that the detention was not wrongful because
[he/she] had a right to detain [name of plaintiff] for questioning or other
limited investigation.
If [name of defendant] has proven that [insert facts, that if established,
would constitute a reasonable suspicion], then [name of defendant] had a
right to detain [name of plaintiff] for questioning or other limited
investigation.
824
[Name of defendant] claims that the detention was not wrongful because
[he/she] had a right to detain [name of plaintiff]. To succeed, [name of
defendant] must prove all of the following:
1. That [name of defendant] was the
[owner/employer/employee/agent] of a business;
2. That [name of defendant] had reasonable grounds to believe that
[name of plaintiff] had wrongfully [taken or damaged
merchandise or other personal property] [secured services] from
the business. If you find that [insert facts, that if established, would
constitute reasonable grounds], then [name of defendant] had
reasonable grounds to detain [name of plaintiff];
3. That [name of defendant] detained [name of plaintiff] for a
reasonable amount of time; and
4. That [name of defendant] detained [name of plaintiff] in a
reasonable manner.
• Penal Code section 490.5(f) provides, in part: “A merchant may detain a person
for a reasonable time for the purpose of conducting an investigation in a
reasonable manner whenever the merchant has probable cause to believe the
person to be detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant’s premises.”
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 431, 432
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment (Matthew
Bender)
1 California Civil Practice: Torts (Thomson West) § 13:11
1410–1499. Reserved for Future Use
826
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
828
findings that are required in order to calculate the amount of prejudgment interest.
829
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements, and CACI No. 1409, Common Law Right to Detain for
Investigation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
831
832
833
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 2 to direct the jury to skip question 3 and answer
question 4 if they find no harm. Then add a new question 4: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 3 that the jury should not answer question 4. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
834
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements, and CACI No. 1402, False Arrest
Without Warrant—Affırmative Defense—Peace Offıcer—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
836
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
837
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1403, False Arrest Without Warrant by
Private Citizen—Essential Factual Elements, and CACI No. 1404, False Arrest
Without Warrant—Affırmative Defense—Private Citizen—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
839
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
840
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With
Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
842
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
843
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With
Warrant—Essential Factual Elements, and CACI No. 1406, False Arrest With
Warrant—Peace Offıcer—Affırmative Defense—“Good-Faith” Exception.
The special verdict forms in this section are intended only as models. They may
845
846
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1407, Unnecessary Delay in Processing/
Releasing—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
848
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1408–VF-1499. Reserved for Future Use
849
MALICIOUS PROSECUTION
851
New September 2003; Revised April 2008, October 2008, June 2015
Directions for Use
Give this instruction in a malicious prosecution case based on an underlying
852
• “[T]he effect of the approved instruction [in Dreux v. Domec (1861) 18 Cal. 83]
was to impose liability upon one who had not taken part until after the
commencement of the prosecution.” (Lujan v. Gordon (1977) 70 Cal.App.3d
260, 263 [138 Cal.Rptr. 654].)
• “When, as here, the claim of malicious prosecution is based upon initiation of a
criminal prosecution, the question of probable cause is whether it was
objectively reasonable for the defendant . . . to suspect the plaintiff . . . had
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
465 [156 Cal.Rptr.3d 901].)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
• “Admittedly, the fact of the grand jury indictment gives rise to a prima facie
case of probable cause, which the malicious prosecution plaintiff must rebut.
However, as respondents’ own authorities admit, that rebuttal may be by proof
that the indictment was based on false or fraudulent testimony.” (Williams v.
Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 900 [195 Cal.Rptr. 448].)
• “Acquittal of the criminal charge, in the criminal action, did not create a
conflict of evidence on the issue of probable cause. [Citations.]” (Verdier v.
Verdier (1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123].)
• “ ‘[T]he plaintiff in a malicious prosecution action must plead and prove that
the prior judicial proceeding of which he complains terminated in his favor.’
Termination of the prior proceeding is not necessarily favorable simply because
the party prevailed in the prior proceeding; the termination must relate to the
merits of the action by reflecting either on the innocence of or lack of
responsibility for the misconduct alleged against him.” (Sagonowsky, supra, 64
Cal.App.4th at p. 128, internal citations omitted.)
• “ ‘The theory underlying the requirement of favorable termination is that it
tends to indicate the innocence of the accused, and coupled with the other
elements of lack of probable cause and malice, establishes the tort, that is, the
malicious and unfounded charge of crime against an innocent person.’ ” (Cote v.
Henderson (1990) 218 Cal.App.3d 796, 804 [267 Cal.Rptr. 274], quoting Jaffe
v. Stone (1941) 18 Cal.2d 146, 150 [114 P.2d 335].)
• “Where a proceeding is terminated other than on the merits, the reasons
underlying the termination must be examined to see if it reflects the opinion of
the court or the prosecuting party that the action would not succeed. If a
conflict arises as to the circumstances explaining a failure to prosecute an action
854
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.01–43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
856
is to be decided by the court as a matter of law. However, the jury may be required
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or did not know at the time.
(See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254
Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part
of the instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury to
decide.
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “Although the tort is usually called ‘malicious prosecution,’ the word
‘prosecution’ is not a particularly apt description of the underlying civil action.
The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to
the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486,
internal citations omitted.)
• “To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor; (2) was brought without probable cause;
and (3) was initiated with malice.” (Bertero v. National General Corp. (1974)
13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations
omitted.)
• “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it
threatens the efficient administration of justice. The individual is harmed
858
• “[I]t is not enough that the present plaintiff (former defendant) prevailed in the
action. The termination must ‘ “reflect on the merits,” ’ and be such that it
‘tended to indicate [the former defendant’s] innocence of or lack of
responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
• “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction,
laches, the statute of limitations or prematurity, does not constitute a favorable
termination because it does not reflect on the substantive merits of the
underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
• “[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a
motion for judgment of nonsuit is granted, ‘unless the court in its order for
judgment otherwise specifies, the judgment of nonsuit operates as an
adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment
of nonsuit should be grounds for a subsequent malicious prosecution action.
Some will be purely technical or procedural and will not reflect the merits of
the action. In such cases, trial courts should exercise their discretion to specify
that the judgment of nonsuit shall not operate as an adjudication upon the
merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
• “[A] malicious prosecution plaintiff is not precluded from establishing favorable
termination where severable claims are adjudicated in his or her favor.” (Sierra
Club Found., supra, 72 Cal.App.4th at p. 1153, internal citation omitted.)
• “ ‘ “A voluntary dismissal may be an implicit concession that the dismissing
party cannot maintain the action and may constitute a decision on the merits.
[Citations.] ‘It is not enough, however, merely to show that the proceeding was
dismissed.’ [Citation.] The reasons for the dismissal of the action must be
examined to determine whether the termination reflected on the merits.”
[Citations.]’ Whether that dismissal is a favorable termination for purposes of a
malicious prosecution claim depends on whether the dismissal of the [earlier]
Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of
the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205
Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
• “If a conflict arises as to the circumstances explaining a failure to prosecute an
action further, the determination of the reasons underlying the dismissal is a
question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations
omitted.)
• “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable
termination is normally not recognized. Under these latter circumstances, the
dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior
Court (1979) 95 Cal.App.3d 166, 184–185 [156 Cal.Rptr. 745], internal
citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882.)
• “Not every case in which a terminating sanctions motion is granted necessarily
results in a ‘favorable termination.’ But where the record from the underlying
860
• “Certain nonfinal rulings on the merits may serve as the basis for concluding
that there was probable cause for prosecuting the underlying case on which a
subsequent malicious prosecution action is based. This is based on the notion
that ‘[c]laims that have succeeded at a hearing on the merits, even if that result
is subsequently reversed by the trial or appellate court, are not so lacking in
potential merit that a reasonable attorney or litigant would necessarily have
recognized their frivolousness.’ Thus, for instance, the denial of a nonsuit
motion and a subsequent plaintiff’s jury verdict has been found sufficient to
constitute probable cause, even though the trial court or appellate court later
reverses that verdict. Similarly, the denial of a defense summary judgment
motion ‘normally establishes there was probable cause to sue, thus barring a
later malicious prosecution suit.’ ” (Yee v. Cheung (2013) 220 Cal.App.4th 184,
200–201 [162 Cal.Rptr.3d 851], internal citations omitted.)
• “California courts have held that victory at trial, though reversed on appeal,
conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance
(1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
• “ ‘[T]here may be situations where denial of summary judgment should not
irrefutably establish probable cause. For example, if denial of summary
judgment was induced by materially false facts submitted in opposition,
equating denial with probable cause might be wrong. Summary judgment might
have been granted but for the false evidence.’ ” (Antounian v. Louis Vuitton
Malletier (2010) 189 Cal.App.4th 438, 451 [117 Cal.Rptr.3d 3].)
• “[T]he fraud exception requires ‘ “knowing use of false and perjured
testimony.” ’ ” (Antounian, supra, 189 Cal.App.4th at p. 452.)
• “Probable cause may be present even where a suit lacks merit. . . . Suits which
all reasonable lawyers agree totally lack merit—that is, those which lack
probable cause—are the least meritorious of all meritless suits. Only this
subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76
Cal.App.4th at p. 382.)
• “[A]n attorney may be held liable for malicious prosecution for continuing to
prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004)
32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
• “[W]here several claims are advanced in the underlying action, each must be
based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459
[197 Cal.Rptr.3d 227].)
• “As an element of the tort of malicious prosecution, malice at its core refers to
an improper motive for bringing the prior action. As an element of liability it
reflects the core function of the tort, which is to secure compensation for harm
inflicted by misusing the judicial system, i.e., using it for something other than
to enforce legitimate rights and secure remedies to which the claimant may
tenably claim an entitlement. Thus the cases speak of malice as being present
when a suit is actuated by hostility or ill will, or for some purpose other than to
secure relief. It is also said that a plaintiff acts with malice when he asserts a
862
claim with knowledge of its falsity, because one who seeks to establish such a
claim ‘can only be motivated by an improper purpose.’ A lack of probable
cause will therefore support an inference of malice.” (Drummond, supra, 176
Cal.App.4th at pp. 451–452, original italics, internal citations omitted.)
• “A lack of probable cause is a factor that may be considered in determining if
the claim was prosecuted with malice [citation], but the lack of probable cause
must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213
Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
• “Because malice concerns the former plaintiff’s actual mental state, it
necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at
p. 452.)
• “Negligence does not equate with malice. Nor does the negligent filing of a
case necessarily constitute the malicious prosecution of that case.” (Grindle v.
Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
• “The motive of the defendant must have been something other than that of
bringing a perceived guilty person to justice or the satisfaction in a civil action
of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co.
(1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations
omitted.)
• “Malice does not require that the defendants harbor actual ill will toward the
plaintiff in the malicious prosecution case, and liability attaches to attitudes that
range ‘ “from open hostility to indifference. [Citations.]” ’ ” (Cole v. Patricia A.
Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113–1114 [142
Cal.Rptr.3d 646], internal citations omitted.)
• “ ‘Suits with the hallmark of an improper purpose’ include, but are not
necessarily limited to, ‘those in which: “ ‘. . . (1) the person initiating them
does not believe that his claim may be held valid; (2) the proceedings are begun
primarily because of hostility or ill will; (3) the proceedings are initiated solely
for the purpose of depriving the person against whom they are initiated of a
beneficial use of his property; (4) the proceedings are initiated for the purpose
of forcing a settlement which has no relation to the merits of the claim.’ ” ’
[Citation.] [¶] Evidence tending to show that the defendants did not subjectively
believe that the action was tenable is relevant to whether an action was
instituted or maintained with malice. [Citation.]’ ” (Oviedo, supra, 212
Cal.App.4th at pp. 113–114.)
• “Although Zamos [supra] did not explicitly address the malice element of a
malicious prosecution case, its holding and reasoning compel us to conclude
that malice formed after the filing of a complaint is actionable.” (Daniels,
supra, 182 Cal.App.4th at p. 226.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471, 474, 477–484,
486–512
863
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Liability
For Unfair Collection Practices—Tort Liability, ¶ 2:455 (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.01–43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
864
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
868
New September 2003; Renumbered from CACI No. 1506 June 2013
Directions for Use
For an instruction on scope of employment, see CACI No. 3720, Scope of
Employment, in the Vicarious Responsibility series.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• In Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d
470], the court concluded that “the failure to instruct under section 821.6 was
prejudicial error.” The court observed that “[d]efendants did not enjoy an
unqualified immunity from suit. Their immunity would have depended on their
proving by a preponderance of the evidence [that] they were acting within the
scope of their employment in doing the acts alleged to constitute malicious
prosecution.” (Ibid.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 368
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.31 (Matthew Bender)
869
871
New September 2003; Renumbered from CACI No. 1505 June 2013
Sources and Authority
• “ ‘Good faith reliance on the advice of counsel, after truthful disclosure of all
the relevant facts, is a complete defense to a malicious prosecution claim.’ The
burden of proving the advice of counsel defense is on [defendant].” (Nunez v.
Pennisi (2015) 241 Cal.App.4th 861, 876–877 [193 Cal.Rptr.3d 912], internal
citation omitted.)
• “[I]f the initiator acts in bad faith or withholds from counsel facts he knew or
should have known would defeat a cause of action otherwise appearing from
the information supplied, [the] defense fails.” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 53–54 [118 Cal.Rptr. 184, 529 P.2d 608].)
• “[T]he defense that a criminal prosecution was commenced upon the advice of
counsel is unavailing in an action for malicious prosecution if it appears . . .
that the defendant did not believe that the accused was guilty of the crime
charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d
886].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 509
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.07 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.37, 147.46 (Matthew Bender)
872
If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223, internal citation omitted.)
• “[W]hen evaluating a client’s case and making an initial assessment of
tenability, the attorney is entitled to rely on information provided by the client.
An exception to this rule exists where the attorney is on notice of specific
factual mistakes in the client’s version of events. Absent such notice, an
attorney ‘may, without being guilty of malicious prosecution, vigorously pursue
litigation in which he is unsure of whether his client or the client’s adversary is
truthful, so long as that issue is genuinely in doubt.’ A respected authority has
summed up the issue as follows: ‘Usually, the client imparts information upon
which the attorney relies in determining whether probable cause exists for
initiating a proceeding. The rule is that the attorney may rely on those
statements as a basis for exercising judgment and providing advice, unless the
client’s representations are known to be false.’ ” (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513 [126 Cal.Rprt.2d 747], disapproved on other
grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 972[12 Cal.Rptr.3d 54, 87
P.3d 802], internal citations omitted.)
• “The trial court found the undisputed facts establish that the lawyers had
probable cause to assert the fraudulent inducement claim. We agree. It is
undisputed that the allegations in the complaint accurately reflected the facts as
given to the lawyers by [client] and that she never told them those facts were
incorrect. The information provided to the lawyers, if true, was sufficient to
state a cause of action . . . .” (Swat-Fame, Inc. v. Goldstein (2002) 101
Cal.App.4th 613, 625 [124 Cal.Rptr.2d 556], disapproved on other grounds in
Zamos, supra, 32 Cal.4th at p. 972.)
• “Normally, the adequacy of a prefiling investigation is not relevant to the
determination of probable cause.” (Swat-Fame, Inc., supra, 101 Cal.App.4th at
p. 627, disapproved on other grounds in Zamos, supra, 32 Cal.4th at p. 972.)
• “If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471 et seq., 510
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.05 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.27 et seq. (Matthew Bender)
1512–1519. Reserved for Future Use
874
the first place). Hence, abuse of process claims typically arise for improper or
excessive attachments [citation] or improper use of discovery [citation].” (S.A.,
supra, 229 Cal.App.4th at pp. 41–42, original italics.)
• “[W]hile a defendant’s act of improperly instituting or maintaining an action
may, in an appropriate case, give rise to a cause of action for malicious
prosecution, the mere filing or maintenance of a lawsuit—even for an improper
purpose—is not a proper basis for an abuse of process action.” (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [141 Cal.Rptr.3d
338].)
• “Some definite act or threat not authorized by the process or aimed at an
objective not legitimate in the use of the process is required. And, generally, an
action lies only where the process is used to obtain an unjustifiable collateral
advantage. For this reason, mere vexation [and] harassment are not recognized
as objectives sufficient to give rise to the tort.” (Younger v. Solomon (1974) 38
Cal.App.3d 289, 297 [113 Cal.Rptr. 113], internal citations omitted.)
• “Process is action taken pursuant to judicial authority. It is not action taken
without reference to the power of the court.” (Adams v. Superior Court (1992) 2
Cal.App.4th 521, 530 [3 Cal.Rptr.2d 49].)
• “This broad reach of the ‘abuse of process’ tort can be explained historically,
since the tort evolved as a ‘catch-all’ category to cover improper uses of the
judicial machinery that did not fit within the earlier established, but narrowly
circumscribed, action of malicious prosecution.” (Younger, supra, 38 Cal.App.3d
at p. 296, internal citations omitted.)
• “ ‘The improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as the
surrender of property or the payment of money, by the use of the process as a
threat or a club.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232–233 [317
P.2d 613], internal citation omitted.)
• “[A]n improper purpose may consist in achievement of a benefit totally
extraneous to or of a result not within its legitimate scope. Mere ill will against
the adverse party in the proceedings does not constitute an ulterior or improper
motive.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 876 [168
Cal.Rptr. 361], internal citations omitted.)
• “Merely obtaining or seeking process is not enough; there must be subsequent
abuse, by a misuse of the judicial process for a purpose other than that which it
was intended to serve. The gist of the tort is the improper use of the process
after it is issued.” (Adams, supra, 2 Cal.App.4th at pp. 530–531, internal
citations omitted.)
• “ ‘ “Some definite act or threat not authorized by the process, or aimed at an
objective not legitimate in the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry out the process
to its authorized conclusion, even though with bad intentions.” ’ ” (Clark
876
Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874],
internal citations omitted.)
• “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt
malicious prosecution while still applying the privilege to abuse of process
causes of action.” (Abraham v. Lancaster Community Hospital (1990) 217
Cal.App.3d 796, 824 [266 Cal.Rptr. 360].)
• “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct
like the filing of a motion for a writ of sale, the filing of assessment liens, or
the filing of a mechanic’s lien. The privilege also applies to conduct or
publications occurring outside the courtroom, to conduct or publications which
are legally deficient for one reason or another, and even to malicious or
fraudulent conduct or publications.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th
130, 134 [100 Cal.Rptr.2d 602], internal citations omitted.)
• “The use of the machinery of the legal system for an ulterior motive is a classic
indicia of the tort of abuse of process. However, the tort requires abuse of legal
process, not just filing suit.” (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359
[82 Cal.Rptr.2d 281], internal citations omitted.)
• “We have located no authority extending the tort of abuse of process to
administrative proceedings. Application of the tort to administrative proceedings
would not serve the purpose of the tort, which is to preserve the integrity of the
court.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th
1811, 1822–1823 [31 Cal.Rptr.2d 229], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 517–528
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.20–43.25 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.51 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.70 et seq. (Matthew Bender)
1521–1529. Reserved for Future Use
877
[Name of plaintiff] claims damages for attorney fees and costs reasonably
and necessarily incurred in defending the underlying lawsuit.
If you find that [name of plaintiff] is entitled to recover damages from
[name of defendant], [name of plaintiff] is only entitled to attorney fees
and costs reasonably and necessarily incurred in defending those claims
that were brought without reasonable grounds. Those claims are
[specify]. [Name of plaintiff] is not entitled to recover attorney fees and
costs incurred in defending against the following claims: [specify].
[Name of defendant] must prove the amount of attorney fees and costs
that should be apportioned to those claims for which recovery is not
allowed.
(1974) 13 Cal.3d 43, 60 [118 Cal.Rptr. 184, 529 P.2d 608], internal citation
omitted.)
• “Defendants also charge that under the Bertero rule the apportionment of
damages between the theories of liability that are and are not supported by
probable cause is difficult and ‘highly speculative.’ There is no showing,
however, that juries cannot perform that task fairly and consistently if they are
properly instructed—they draw more subtle distinctions every day. Moreover,
any difficulty in this regard is chargeable to the tortfeasor . . . .” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 690 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
• “It was the defendants’ burden, however, not the [plaintiffs]’, to prove such an
allocation, just as it generally is the burden of the defendant in a malicious
prosecution action to prove certain attorney fees incurred in the underlying
action are not recoverable because they are attributable to claims that had been
properly pursued.” (Jackson, supra, 179 Cal.App.4th at p. 96.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 471 et seq.
Wegner, et al., California Practice Guide: Civil Trials& Evidence, Ch. 17-D, Costs,
¶ 17:91 et seq. (The Rutter Group)
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-E,
Attorney Fees As Costs, ¶ 17:150 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.08 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.18 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.45 (Matthew Bender)
1531–1599. Reserved for Future Use
879
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1500, Former Criminal Proceeding. This
form can be adapted to include the affirmative defense of reliance on counsel. See
VF-1502 for a form that includes this affirmative defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1500, Former Criminal
Proceeding, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
881
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2011,
December 2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings.
See VF-1502 for a form that includes the affirmative defense of reliance on
counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3).
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
883
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings,
and CACI No. 1510, Affırmative Defense—Reliance on Counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
885
886
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1502, Wrongful Use of Administrative
Proceedings. See VF-1502 for a form that includes the affirmative defense of
reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1502, elements 3 and 4.)
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
888
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
889
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1520, Abuse of Process—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1505–VF-1599. Reserved for Future Use
891
EMOTIONAL DISTRESS
893
been extreme and outrageous to result in liability. Otherwise stated, the court
determines whether severe emotional distress can be found; the jury determines
whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1614 [146 Cal.Rptr.3d 585].)
• “ ‘[I]t is generally held that there can be no recovery for mere profanity,
obscenity, or abuse, without circumstances of aggravation, or for insults,
indignities or threats which are considered to amount to nothing more than mere
annoyances.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128
[257 Cal.Rptr. 665], internal citations omitted.)
• “It is not enough that the conduct be intentional and outrageous. It must be
conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom
the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868,
903–904 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable man in a civilized society should be
expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78].)
• “ ‘The law limits claims of intentional infliction of emotional distress to
egregious conduct toward plaintiff proximately caused by defendant.’ The only
exception to this rule is that recognized when the defendant is aware, but acts
with reckless disregard of, the plaintiff and the probability that his or her
conduct will cause severe emotional distress to that plaintiff. Where reckless
disregard of the plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized as the element
establishing a higher degree of culpability which, in turn, justifies recovery of
greater damages by a broader group of plaintiffs than allowed on a negligent
infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp.
905–906, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 451–454
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-E,
Intentional Infliction Of Emotional Distress, ¶ 11:61 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.01 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 et seq. (Matthew Bender)
895
897
or position that gives him power to damage the plaintiff’s interests; (2) knows
the plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress. . . .’ ” (Molko v. Holy Spirit Ass’n
(1988) 46 Cal.3d 1092, 1122 [252 Cal.Rptr. 122, 762 P.2d 46], internal citation
omitted.)
• Relationships that have been recognized as significantly contributing to the
conclusion that particular conduct was outrageous include: employer-employee
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn.2 [86 Cal.Rptr.
88, 468 P.2d 216]), insurer-insured (Fletcher v. Western National Life Insurance
Co. (1970) 10 Cal.App.3d 376, 403–404 [89 Cal.Rptr. 78]), landlord-tenant
(Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281–282 [97 Cal.Rptr. 650]),
hospital-patient (Bundren v. Superior Court (1983) 145 Cal.App.3d 784,
791–792 [193 Cal.Rptr. 671]), attorney-client (McDaniel v. Gile (1991) 230
Cal.App.3d 363, 373 [281 Cal.Rptr. 242]), collecting creditors (Bundren, supra,
at p. 791, fn. 8), and religious institutions (Molko, supra, 46 Cal.3d at pp.
1122–1123).
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 451–454
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§§ 44.01, 44.03 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 (Matthew Bender)
899
900
901
903
906
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is
not a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “bystander” case is one in which a plaintiff seeks recovery for damages for
emotional distress suffered as a percipient witness of an injury to another person. If
the plaintiff is a direct victim of tortious conduct, use CACI No. 1620,
Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements. For instructions for use for
emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
907
911
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice,
then CACI No. 1623, Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious,
Oppressive, or Fraudulent Conduct—Essential Factual Elements, should be read.
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d
at p. 928.) In Wong v. Jing, an appellate court subsequently held that serious
emotional distress from negligence without other injury is the same as “severe”
emotional distress for the tort of intentional infliction of emotional distress. (Wong
v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in
the absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p.
986, internal citation omitted.)
• “[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases
where the feared cancer is at best only remotely possible, is to require a
showing of the actual likelihood of the feared cancer to establish its
significance.” (Potter, supra, 6 Cal.4th at p. 990.)
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for
intentional infliction of emotional distress]. Indeed, given the meaning of both
phrases, we can perceive no material distinction between them and can conceive
of no reason why either would, or should, describe a greater or lesser degree of
emotional distress than the other for purposes of establishing a tort claim
seeking damages for such an injury.” (Wong, supra, 189 Cal.App.4th at p.
1378.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
913
914
918
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
920
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
921
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
923
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements, and CACI No. 1605, Intentional Infliction of
Emotional Distress—Affırmative Defense-Privileged Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
924
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1601, Intentional Infliction of Emotional
Distress—Fear of Cancer, HIV, or AIDS.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
926
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
927
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1620, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
929
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1621, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Bystander—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
931
932
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1622, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
934
935
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
937
938
DEFAMATION
DEFAMATION
940
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she] proves by clear and convincing evidence that [name
of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, June 2016, December 2016
Directions for Use
Special verdict form CACI No. VF-1700, Defamation per se (Public Offıcer/Figure
and Limited Public Figure), should be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
• Slander Defined. Civil Code section 46.
• “Defamation is the intentional publication of a statement of fact that is false,
unprivileged, and has a natural tendency to injure or that causes special
damage.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 [183 Cal.Rptr.3d
867].)
• “The elements of a defamation claim are (1) a publication that is (2) false, (3)
942
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 [117
Cal.Rptr.3d 747].)
• “[S]tatements cannot form the basis of a defamation action if they cannot be
reasonably interpreted as stating actual facts about an individual. Thus,
rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of
contempt and language used in a loose, figurative sense will not support a
defamation action.” (Grenier, supra, 234 Cal.App.4th at p. 486.)
• “ ‘ “If no reasonable reader would perceive in a false and unprivileged
publication a meaning which tended to injure the subject’s reputation in any of
the enumerated respects, then there is no libel at all. If such a reader would
perceive a defamatory meaning without extrinsic aid beyond his or her own
intelligence and common sense, then . . . there is a libel per se. But if the
reader would be able to recognize a defamatory meaning only by virtue of his
or her knowledge of specific facts and circumstances, extrinsic to the
publication, which are not matters of common knowledge rationally attributable
to all reasonable persons, then . . . the libel cannot be libel per se but will be
libel per quod,” requiring pleading and proof of special damages.’ ” (Barker v.
Fox & Associates (2015) 240 Cal.App.4th 333, 351−352 [192 Cal.Rptr.3d 511].)
• “A slander that falls within the first four subdivisions of Civil Code section 46
is slander per se and requires no proof of actual damages. A slander that does
not fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
• “With respect to slander per se, the trial court decides if the alleged statement
falls within Civil Code section 46, subdivisions 1 through 4. It is then for the
trier of fact to determine if the statement is defamatory. This allocation of
responsibility may appear, at first glance, to result in an overlap of
responsibilities because a trial court determination that the statement falls within
those categories would seemingly suggest that the statement, if false, is
necessarily defamatory. But a finder of fact might rely upon extraneous
evidence to conclude that, under the circumstances, the statement was not
defamatory.” (The Nethercutt Collection, supra, 172 Cal.App.4th at pp.
368–369.)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from
the publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence
943
of actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the
evidence. You may in the exercise of your discretion award nominal damages
only, namely an insignificant sum such as one dollar.’ [¶] . . . [¶] . . . [T]he
instant instruction, which limits damages to ‘those damages that necessarily
result from the publication of defamatory matter,’ constitutes substantial
compliance with [Civil Code] section 3283. Thus, the instant instructions, ‘if
obeyed, did not allow the jurors to “enter the realm of speculation” regarding
future suffering.’ ” (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473
[48 Cal.Rptr.2d 235], internal citations omitted.)
• “In defamation actions generally, factual truth is a defense which it is the
defendant’s burden to prove. In a defamation action against a newspaper by a
private person suing over statements of public concern, however, the First
Amendment places the burden of proving falsity on the plaintiff. As a matter of
constitutional law, therefore, media statements on matters of public interest,
including statements of opinion which reasonably imply a knowledge of facts,
‘must be provable as false before there can be liability under state defamation
law.’ ” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382
[88 Cal.Rptr.2d 802], internal citations omitted.)
• In matters involving public concern, the First Amendment protection applies to
nonmedia defendants, putting the burden of proving falsity of the statement on
the plaintiff. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375
[54 Cal.Rptr.2d 781].)
• “Publication means communication to some third person who understands the
defamatory meaning of the statement and its application to the person to whom
reference is made. Publication need not be to the ‘public’ at large;
communication to a single individual is sufficient.” (Smith, supra, 72
Cal.App.4th at p. 645, internal citations omitted.)
• “[W]hen a party repeats a slanderous charge, he is equally guilty of defamation,
even though he states the source of the charge and indicates that he is merely
repeating a rumor.” (Jackson v. Paramount Pictures Corp. (1998) 68
Cal.App.4th 10, 26 [80 Cal.Rptr.2d 1], internal citation omitted.)
• “At common law, one who republishes a defamatory statement is deemed
thereby to have adopted it and so may be held liable, together with the person
who originated the statement, for resulting injury to the reputation of the
defamation victim. California has adopted the common law in this regard,
although by statute the republication of defamatory statements is privileged in
certain defined situations.” (Khawar v. Globe Internat. (1998) 19 Cal.4th 254,
268 [79 Cal.Rptr.2d 178, 965 P.2d 696], internal citations omitted.)
• The general rule is that “a plaintiff cannot manufacture a defamation cause of
action by publishing the statements to third persons; the publication must be
944
Broadcasting Co. (1989) 48 Cal.3d 711, 740–742 [257 Cal.Rptr. 708, 771 P.2d
406].)
• “Actual malice under the New York Times standard should not be confused with
the concept of malice as an evil intent or a motive arising from spite or ill
will. . . . In place of the term actual malice, it is better practice that jury
instructions refer to publication of a statement with knowledge of falsity or
reckless disregard as to truth or falsity.” (Masson, supra, 501 U.S. at pp.
510–511, internal citations omitted.)
• Actual malice “does not require that the reporter hold a devout belief in the
truth of the story being reported, only that he or she refrain from either
reporting a story he or she knows to be false or acting in reckless disregard of
the truth.” (Jackson, supra, 68 Cal.App.4th at p. 35.)
• “The law is clear [that] the recklessness or doubt which gives rise to actual or
constitutional malice is subjective recklessness or doubt.” (Melaleuca, Inc.,
supra, 66 Cal.App.4th at p. 1365.)
• To show reckless disregard, “[t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication. Publishing with such doubts shows reckless disregard for truth
or falsity and demonstrates actual malice.” (St. Amant, supra, 390 U.S. at p.
731.)
• “ ‘A defamation plaintiff may rely on inferences drawn from circumstantial
evidence to show actual malice. [Citation.] “A failure to investigate [fn.
omitted] [citation], anger and hostility toward the plaintiff [citation], reliance
upon sources known to be unreliable [citations], or known to be biased against
the plaintiff [citations]—such factors may, in an appropriate case, indicate that
the publisher himself had serious doubts regarding the truth of his
publication.” ’ ” (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 873 [162
Cal.Rptr.3d 188].)
• “ ‘ “[Evidence] of negligence, of motive and of intent may be adduced for the
purpose of establishing, by cumulation and by appropriate inferences, the fact of
a defendant’s recklessness or of his knowledge of falsity.” [Citations.] A failure
to investigate [citation], anger and hostility toward the plaintiff [citation],
reliance upon sources known to be unreliable [citations], or known to be biased
against the plaintiff [citations]—such factors may, in an appropriate case,
indicate that the publisher himself had serious doubts regarding the truth of his
publication. [¶] We emphasize that such evidence is relevant only to the extent
that it reflects on the subjective attitude of the publisher. [Citations.] The failure
to conduct a thorough and objective investigation, standing alone, does not
prove actual malice, nor even necessarily raise a triable issue of fact on that
controversy. [Citations.] Similarly, mere proof of ill will on the part of the
publisher may likewise be insufficient. [Citation.]’ ” (Young v. CBS
Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 563 [151 Cal.Rptr.3d 237],
quoting Reader’s Digest Assn., supra, 37 Cal.3d at pp. 257–258, footnote
omitted.)
946
• “An entity other than a natural person may be libeled.” (Live Oak Publishing
Co., supra, 234 Cal.App.3d at p. 1283.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529–555, 601–612
Chin, et al., California Practice Guide: Employment Litigation, Ch. 5-D,
Employment Torts And Related Claims—Defamation, ¶ 5:372 (The Rutter Group)
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, §§ 142.24–142.27
(Defamation) (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
947
New September 2003; Revised April 2008, June 2016, December 2016
Directions for Use
Special verdict form CACI No. VF-1701, Defamation per quod (Public Offıcer/
Figure and Limited Public Figure), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
• Slander Defined. Civil Code section 46.
• Special Damages. Civil Code section 48a(4)(b).
• “The elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong v. Jing (2011) 189 Cal.App.4th 1354, 1369 [117
Cal.Rptr.3d 747].)
949
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529–555, 601–612
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10–340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
951
New September 2003; Revised April 2008, October 2008, December 2009, June
2016, December 2016
Directions for Use
Special verdict form CACI No. VF-1702, Defamation per se (Private
Figure—Matter of Public Concern), should be used in this type of case.
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1700, Defamation per se—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
953
956
New September 2003; Revised April 2008, December 2009, June 2016, December
2016
Directions for Use
Special verdict form VF-1703, Defamation per quod (Private Figure—Matter of
Public Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
958
960
New September 2003; Revised April 2008, December 2009, June 2016, December
2016
Directions for Use
Special verdict form VF-1704, Defamation per se—Affırmative Defense—Truth
(Private Figure—Matter of Private Concern), may be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1700, Defamation per se—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has
a natural tendency to injure or which causes special damage.” (Smith v.
Maldonado (1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
• “The question whether a plaintiff is a public figure [or not] is to be determined
by the court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
962
964
New September 2003; Revised April 2008, December 2009, June 2016, December
2016
Directions for Use
Special verdict form VF-1705, Defamation per quod (Private Figure—Matter of
Private Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
966
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must
specially plead and prove those facts.” (Palm Springs Tennis Club, supra, 73
Cal.App.4th at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) allege his
interpretation of the defamatory meaning of the language (the “innuendo,”
. . . ); (2) support that interpretation by alleging facts showing that the readers
or hearers to whom it was published would understand it in that defamatory
sense (the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181
Cal.App.3d 377, 387 [226 Cal.Rptr. 354].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.”
(Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr.
838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• Private-figure plaintiffs must prove actual malice to recover punitive or
presumed damages for defamation if the matter is one of public concern. They
are required to prove only negligence to recover damages for actual injury to
reputation. (Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79
Cal.Rptr.2d 178, 965 P.2d 696].)
• If the language is not defamatory on its face, there is no distinction between
libel and slander: “In either case, the fact that a statement is not defamatory on
its face requires only that the plaintiff plead and prove the defamatory meaning
and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
• A plaintiff must prove that the defendant was at least negligent in failing to
ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
• “The question whether a plaintiff is a public figure is to be determined by the
court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
Secondary Sources
967
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529–555, 615
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12–340.13 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.20–142.32 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
968
969
natural and probable effect of the statement.” (Hofmann Co. v. E.I. Du Pont de
Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384].)
• “[S]ome statements are ambiguous and cannot be characterized as factual or
nonfactual as a matter of law. ‘In these circumstances, it is for the jury to
determine whether an ordinary reader would have understood the article as a
factual assertion . . . .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608
[284 Cal.Rptr. 244], internal citations omitted.)
• “Whether a challenged statement ‘declares or implies a provable false assertion
of fact is a question of law for the court to decide . . . , unless the statement is
susceptible of both an innocent and a libelous meaning, in which case the jury
must decide how the statement was understood.’ ” (Overhill Farms, Inc. v.
Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
• “We next turn to the broader context of his statements—posting on an Internet
site under an assumed user name. [Defendant] contends Internet fora are
notorious as ‘places where readers expect to see strongly worded opinions
rather than objective facts,’ and that ‘anonymous, or pseudonymous,’ opinions
should be ‘ “discount[ed] . . . accordingly.” ’ However, the mere fact speech is
broadcast across the Internet by an anonymous speaker does not ipso facto
make it nonactionable opinion and immune from defamation law.” (Bently
Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 429 [160 Cal.Rptr.3d
423], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 546, 547, 549
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.86 (Matthew Bender)
California Civil Practice: Torts §§ 21:20–21:21 (Thomson Reuters)
972
974
975
976
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 629–639
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.24 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.53
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.37 (Matthew Bender)
1 California Civil Practice: Torts §§ 21:55–21:57 (Thomson Reuters)
978
980
the term ‘published’ in its technical sense). [¶] [I]n defamation actions the
general rule is that publication occurs when the defendant communicates the
defamatory statement to a person other than the person being defamed. As also
has been noted, with respect to books and newspapers, publication occurs (and
the cause of action accrues) when the book or newspaper is first generally
distributed to the public.” (Shively, supra, 31 Cal.4th at pp. 1246–1247, internal
citations omitted.)
• “This court and other courts in California and elsewhere have recognized that in
certain circumstances it may be appropriate to apply the discovery rule to delay
the accrual of a cause of action for defamation or to impose an equitable
estoppel against defendants who assert the defense after the limitations period
has expired.” (Shively, supra, 31 Cal.4th at pp. 1248–1249.)
• “[A]pplication of the discovery rule to statements contained in books and
newspapers would undermine the single-publication rule and reinstate the
indefinite tolling of the statute of limitations intended to be cured by the
adoption of the single-publication rule. If we were to recognize delayed accrual
of a cause of action based upon the allegedly defamatory statement contained in
the book . . . on the basis that plaintiff did not happen to come across the
statement until some time after the book was first generally distributed to the
public, we would be adopting a rule subjecting publishers and authors to
potential liability during the entire period in which a single copy of the book or
newspaper might exist and fall into the hands of the subject of a defamatory
remark. Inquiry into whether delay in discovering the publication was
reasonable has not been permitted for publications governed by the single-
publication rule. Nor is adoption of the rule proposed by plaintiff appropriate
simply because the originator of a privately communicated defamatory
statement may, together with the author and the publisher of a book, be liable
for the defamation contained in the book. Under the rationale for the single-
publication rule, the originator, who is jointly responsible along with the author
and the publisher, should not be liable for millions of causes of action for a
single edition of the book. Similarly, consistent with that rationale, the
originator, like the author or the publisher, should not be subject to suit many
years after the edition is published.” (Shively, supra, 31 Cal.4th at p. 1251.)
• “The single-publication rule as described in our opinion in Shively and as
codified in Civil Code section 3425.3 applies without limitation to all
publications.” (Hebrew Academy of San Francisco, supra, 42 Cal.4th at p. 893.)
• “[T]he single-publication rule applies not only to books and newspapers that are
published with general circulation (as we addressed in Shively), but also to
publications like that in the present case that are given only limited circulation
and, thus, are not generally distributed to the public. Further, the discovery rule,
which we held in Shively does not apply when a book or newspaper is generally
distributed to the public, does not apply even when, as in the present case, a
publication is given only limited distribution.” (Hebrew Academy of San
Francisco, supra, 42 Cal.4th at p. 890.)
982
983
privilege set forth in section 47(c) has been established, defendants bore the
burden of proving not only that the allegedly defamatory statement was made
upon an occasion that falls within the common-interest privilege, but also that
the statement was made without malice. Defendants contend that, in California
and throughout the United States, the general rule is that, although a defendant
bears the initial burden of establishing that the allegedly defamatory statement
was made upon an occasion falling within the purview of the common-interest
privilege, once it is established that the statement was made upon such a
privileged occasion, the plaintiff may recover damages for defamation only if
the plaintiff successfully meets the burden of proving that the statement was
made with malice. As stated above, the Court of Appeal agreed with defendants
on this point. Although, as we shall explain, there are a few (primarily early)
California decisions that state a contrary rule, both the legislative history of
section 47(c) and the overwhelming majority of recent California decisions
support the Court of Appeal’s conclusion. Accordingly, we agree with the Court
of Appeal insofar as it concluded that the trial court erred in instructing the jury
that defendants bore the burden of proof upon the issue of malice, for purposes
of section 47(c).” (Lundquist, supra, 7 Cal.4th at pp. 1202–1203, internal
citations omitted.)
• “ ‘The burden is also upon the defendant to prove any affirmative defense upon
which he relies, including . . . that the communication is privileged. But when
the pleadings admit . . . such facts, manifestly the defendant is thereby relieved
of this burden.’ ‘Normally, privilege is an affirmative defense which must be
pleaded in the answer [citation]. However, if the complaint discloses existence
of a qualified privilege, it must allege malice to state a cause of action
[citation].’ Finally, ‘Ordinarily privilege must be specially pleaded by the
defendant, and the burden of proving it is on him. [Citations.] But where the
complaint shows that the communication or publication is one within the classes
qualifiedly privileged, it is necessary for the plaintiff to go further and plead
and prove that the privilege is not available as a defense in the particular case,
e.g., because of malice.’ ” (Smith, supra, 177 Cal.App.3d at pp. 630–631,
internal citations omitted.)
• “Civil Code section 47(b)(4) clearly describes the conditions for application of
the [litigation] privilege to a recorded lis pendens as follows: ‘A recorded lis
pendens is not a privileged publication unless it identifies an action previously
filed with a court of competent jurisdiction which affects the title or right of
possession of real property, as authorized or required by law.’ Those conditions
are (1) the lis pendens must identify a previously filed action and (2) the
previously filed action must be one that affects title or right of possession of
real property. We decline to add a third requirement that there must also be
evidentiary merit.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461,
476 [149 Cal.Rptr.3d 716], internal citation omitted.)
• “[T]he property owner may recover for the impairment of the vendibility ‘of his
property’ without showing that the loss was caused by prevention of a particular
987
sale. ‘The most usual manner in which a third person’s reliance upon
disparaging matter causes pecuniary loss is by preventing a sale to a particular
purchaser. . . . The disparaging matter may, if widely disseminated, cause
pecuniary loss by depriving its possessor of a market in which, but for the
disparagement, his land or other thing might with reasonable certainty have
found a purchaser.’ ” (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 424
[96 Cal.Rptr. 902].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts § 642
6 Witkin, Summary of California Law (10th ed. 2005) Torts § 1703
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.80 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.90
(Matthew Bender)
988
993
DEFAMATION VF-1700
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property,
business, trade, profession, or occupation? $ ]
[b. Expenses [name of plaintiff] had to pay
as a result of the defamatory statements? $ ]
[c. Harm to [name of plaintiff]’s reputation? $ ]
[d. Shame, mortification, or hurt feelings? $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her] reputation, and for shame,
mortification, or hurt feelings? You must award at least a
nominal sum. $
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What is your award of punitive damages, if any, against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
995
VF-1700 DEFAMATION
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1700, Defamation per se—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
996
VF-1701 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1701, Defamation per quod—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
998
DEFAMATION VF-1701
999
1000
DEFAMATION VF-1702
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property,
business, trade, profession, or occupation? $ ]
[b. Expenses [name of plaintiff] had to pay
as a result of the defamatory statements? $ ]
[c. Harm to [name of plaintiff]’s reputation? $ ]
[d. Shame, mortification, or hurt feelings? $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and 9
and answer question 10.]
ASSUMED DAMAGES
8. Did [name of plaintiff] prove by clear and convincing evidence
that [name of defendant] knew the statement was false or had
serious doubts about the truth of the statement?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
9. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her] reputation and for shame,
mortification, or hurt feelings? You must award at least a
nominal sum. $
9. Regardless of your answer to question 9, skip question 10 and
answer question 11.
PUNITIVE DAMAGES
10. Did [name of plaintiff] prove by clear and convincing evidence
that [name of defendant] knew the statement was false or had
serious doubts about the truth of the statement?
10. Yes No
1001
VF-1702 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1702, Defamation per se—Essential
Factual Elements (Private Figure-Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 12 if the issue of punitive damages has been bifurcated.
1002
DEFAMATION VF-1702
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1003
DEFAMATION VF-1703
1005
VF-1703 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure-Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 8 if, for example,
there are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 5 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1703, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Public Concern), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 11 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1006
1007
VF-1704 DEFAMATION
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property,
business, trade, profession, or occupation? $ ]
[b. Expenses [name of plaintiff] had to pay
as a result of the defamatory statements? $ ]
[c. Harm to [name of plaintiff]’s reputation? $ ]
[d. Shame, mortification, or hurt feelings? $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her] reputation and for shame,
mortification, or hurt feelings? You must award at least a
nominal sum. $
8. Regardless of your answer to question 8, answer question 9.
PUNITIVE DAMAGES
9. Has [name of plaintiff] proved by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What amount, if any, do you award as punitive damages against
[name of defendant]? $
Signed:
Presiding Juror
Dated:
1008
DEFAMATION VF-1704
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1704, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Private Concern), and CACI No.
1720, Affırmative Defense—Truth. Delete question 4 if the affirmative defense of
the truth is not at issue.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
Additional questions on the issue of punitive damages may be needed if the
defendant is a corporate or other entity.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1009
DEFAMATION VF-1705
VF-1705 DEFAMATION
[name of defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 7 if, for example,
there are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 4 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1705, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Private Concern), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 9 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1706–VF-1719. Reserved for Future Use
1012
VF-1720 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
DEFAMATION VF-1720
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1015
DEFAMATION VF-1721
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss $ ]
[b. Future economic loss $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
VF-1721 DEFAMATION
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1722–VF-1799. Reserved for Future Use
1018
1019
1020
RIGHT OF PRIVACY
1021
protection and giving rise to tort liability: (1) intrusion into private matters; (2)
public disclosure of private facts; (3) publicity placing a person in a false light;
and (4) misappropriation of a person’s name or likeness . . . .Prosser’s
classification was adopted by the Restatement Second of Torts in sections
652A–652E. California common law has generally followed Prosser’s
classification of privacy interests as embodied in the Restatement.” (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834,
865 P.2d 633].)
• The tort of intrusion “encompasses unconsented-to physical intrusion into the
home, hospital room or other place the privacy of which is legally recognized,
as well as unwarranted sensory intrusions such as eavesdropping, wiretapping,
and visual or photographic spying.” (Shulman v. Group W Productions, Inc.
(1998) 18 Cal.4th 200, 230 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal citation
omitted.)
• The right of privacy was first recognized in California in the case of Melvin v.
Reid (1931) 112 Cal.App. 285, 291 [297 P. 91]. The court found a legal
foundation for the tort in the right to pursue and obtain happiness found in
article I, section 1 of the California Constitution.
• “The foregoing arguments have been framed throughout this action in terms of
both the common law and the state Constitution. These two sources of privacy
protection ‘are not unrelated’ under California law. (Shulman, supra, 18 Cal.4th
200, 227; accord, Hill, supra, 7 Cal.4th 1, 27; but see Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 313, fn. 13 [127 Cal.Rptr.2d
482, 58 P.3d 339] [suggesting it is an open question whether the state
constitutional privacy provision, which is otherwise self-executing and serves as
the basis for injunctive relief, can also provide direct and sole support for a
damages claim].)” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286 [97
Cal.Rptr.3d 274, 211 P.3d 1063].)
• “[W]e will assess the parties’ claims and the undisputed evidence under the
rubric of both the common law and constitutional tests for establishing a
privacy violation. Borrowing certain shorthand language from Hill, supra, 7
Cal.4th 1, which distilled the largely parallel elements of these two causes of
action, we consider (1) the nature of any intrusion upon reasonable expectations
of privacy, and (2) the offensiveness or seriousness of the intrusion, including
any justification and other relevant interests.” (Hernandez, supra, 47 Cal.4th at
p. 288.)
• The element of intrusion “is not met when the plaintiff has merely been
observed, or even photographed or recorded, in a public place. Rather, ‘the
plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff.’ ”
(Sanders v. American Broadcasting Co. (1999) 20 Cal.4th 907, 914–915 [85
Cal.Rptr.2d 909, 978 P.2d 67], internal citations omitted.)
• “As to the first element of the common law tort, the defendant must have
1023
1025
“means that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” This point has been placed in brackets because
it may not be an issue in every case.
Sources and Authority
• “[T]he allegations involve a public disclosure of private facts. The elements of
this tort are ‘ “(1) public disclosure (2) of a private fact (3) which would be
offensive and objectionable to the reasonable person and (4) which is not of
legitimate public concern.” ’ The absence of any one of these elements is a
complete bar to liability.” (Moreno v. Hanford Sentinel, Inc. (2009) 172
Cal.App.4th 1125, 1129–1130 [91 Cal.Rptr.3d 858], internal citations omitted.)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)
• “Generally speaking, matter which is already in the public domain is not
private, and its publication is protected.” (Diaz v. Oakland Tribune (1983) 139
Cal.App.3d 118, 131 [188 Cal.Rptr. 762], internal citations omitted.) “[M]atter
which was once of public record may be protected as private facts where
disclosure of that information would not be newsworthy.” (Id. at p. 132.)
• “[W]e find it reasonable to require a plaintiff to prove, in each case, that the
publisher invaded his privacy with reckless disregard for the fact that reasonable
men would find the invasion highly offensive.” (Briscoe v. Reader’s Digest
Assn., Inc. (1971) 4 Cal.3d 529, 542–543 [93 Cal.Rptr. 866, 483 P.2d 34].)
• “If a jury finds that a publication discloses private facts which are ‘highly
offensive and injurious to the reasonable man’ [citation] then it would inter alia
also satisfy the reckless disregard requirement.” (Johnson v. Harcourt, Brace,
Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 891, fn. 11 [118 Cal.Rptr. 370].)
• “Diaz . . . expressly makes the lack of newsworthiness part of the plaintiff’s
case in a private facts action. . . . We therefore agree with defendants that
under California common law the dissemination of truthful, newsworthy
material is not actionable as a publication of private facts.” (Shulman v. Group
W Productions, Inc. (1998) 18 Cal.4th 200, 215 [74 Cal.Rptr.2d 843, 955 P.2d
469], internal citations omitted.)
• “In the matter before us, however, there is no indication that any issue of public
interest or freedom of the press was involved. ‘ “In determining what is a
matter of legitimate public interest, account must be taken of the customs and
conventions of the community; and in the last analysis what is proper becomes
a matter of the community mores. The line is to be drawn when the publicity
ceases to be the giving of information to which the public is entitled, and
becomes a morbid and sensational prying into private lives for its own sake,
with which a reasonable member of the public, with decent standards, would
1027
say that he had no concern.” ’ Put another way, morbid and sensational
eavesdropping or gossip ‘serves no legitimate public interest and is not
deserving of protection. [Citations.]’ ” (Catsouras v. Department of California
Highway Patrol (2010) 181 Cal.App.4th 856, 874 [104 Cal.Rptr.3d 352],
internal citation omitted.)
• “Almost any truthful commentary on public officials or public affairs, no matter
how serious the invasion of privacy, will be privileged.” (Briscoe, supra, 4
Cal.3d at p. 535, fn. 5.)
• “We have previously set forth criteria for determining whether an incident is
newsworthy. We consider ‘[1] the social value of the facts published, [2] the
depth of the article’s intrusion into ostensibly private affairs, and [3] the extent
to which the party voluntarily acceded to a position of public notoriety.’ ”
(Briscoe, supra, 4 Cal.3d at p. 541, internal citations omitted.)
• “[T]he right of privacy is purely personal. It cannot be asserted by anyone other
than the person whose privacy has been invaded.” (Moreno, supra, 172
Cal.App.4th at p. 1131.)
• “[L]imiting liability for public disclosure of private facts to those recorded in a
writing is contrary to the tort’s purpose, which has been since its inception to
allow a person to control the kind of information about himself made available
to the public—in essence, to define his public persona. While this restriction
may have made sense in the 1890’s—when no one dreamed of talk radio or
confessional television—it certainly makes no sense now. Private facts can be
just as widely disclosed—if not more so—through oral media as through written
ones. To allow a plaintiff redress for one kind of disclosure but not the other,
when both can be equally damaging to privacy, is a rule better suited to an era
when the town crier was the principal purveyor of news. It is long past time to
discard this outmoded rule.” (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th
808, 819 [154 Cal.Rptr.3d 275], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 664–667
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 20:1–20:2 (Thomson Reuters)
1028
Comment (a) to Restatement Second of Torts, section 652D states that “publicity”
“means that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” This point has been placed in brackets because
it may not be an issue in every case.
As reflected in the citations below, false light claims are subject to the same
constitutional protections that apply to defamation claims. Thus, a knowing
violation or reckless disregard for the plaintiff’s rights is required where the
plaintiff is a public figure or the subject matter of the communication is a matter of
public concern. If a false light claim is combined with a defamation or libel claim,
the standard applied in the instructions should be equivalent.
If plaintiff has combined a false light claim with a claim of defamation or libel, the
court should consider whether separate instructions on each claim should be given
in light of Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1385,
fn. 13 [88 Cal.Rptr.2d 802] and Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d
529, 543 [93 Cal.Rptr. 866, 483 P.2d 34].
Sources and Authority
• Restatement Second of Torts, section 652E provides:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion
of his privacy, if
(a) the false light in which the other was placed would be highly
offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light in which the
other would be placed.
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)
• “In order to be actionable, the false light in which the plaintiff is placed must
be highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation
omitted.)
• “When a false light claim is coupled with a defamation claim, the false light
claim is essentially superfluous, and stands or falls on whether it meets the
same requirements as the defamation cause of action.” (Eisenberg, supra, 74
Cal.App.4th at p. 1385, fn. 13, internal citations omitted.)
• “[A] ‘false light’ cause of action ‘is in substance equivalent to . . . [a] libel
1030
claim, and should meet the same requirements of the libel claim . . . including
proof of malice.’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal citation
omitted.)
• “The New York Times decision defined a zone of constitutional protection within
which one could publish concerning a public figure without fear of liability.
That constitutional protection does not depend on the label given the stated
cause of action; it bars not only actions for defamation, but also claims for
invasion of privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37
Cal.3d 244, 265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374 [87 S.Ct. 534, 17 L.Ed.2d 456], the
Court held that the New York Times v. Sullivan malice standard applied to a
privacy action that was based on a “false light” statute where the matter
involved a public figure. Given the similarities between defamation and false
light actions, it appears likely that the negligence standard for private figure
defamation plaintiffs announced in Gertz v. Robert Welch, Inc. (1974) 418 U.S.
323 [94 S.Ct. 2997, 41 L.Ed.2d 789] should apply to private figure false light
plaintiffs.
• Plaintiffs must comply with the retraction statute (Civ. Code, § 48a) to recover
more than special damages in a false light cause of action. (Briscoe, supra, 4
Cal.3d at p. 543.)
• “We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 673–675
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.04 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.33 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 20:12–20:15
1031
interference with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38
Cal.2d 273, 278–279 [239 P.2d 630].)
• “Even if each of these elements is established, however, the common law right
does not provide relief for every publication of a person’s name or likeness.
The First Amendment requires that the right to be protected from unauthorized
publicity ‘be balanced against the public interest in the dissemination of news
and information consistent with the democratic processes under the
constitutional guaranties of freedom of speech and of the press.’ ” (Gionfriddo,
supra, 94 Cal.App.4th at pp. 409–410, internal citations and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “[T]he fourth category of invasion of privacy, namely, appropriation, ‘has been
complemented legislatively by Civil Code section 3344, adopted in 1971.’ ”
(Eastwood, supra, 149 Cal.App.3d at pp. 416–417, original italics.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 676–678
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35, 429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.22 (Matthew Bender)
1 California Civil Practice: Torts § 20:16 (Thomson Reuters)
1034
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name
and likeness are protected under both the common law and under Civil Code
section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both
this instruction and CACI No. 1803, Appropriation of Name or Likeness, which
sets forth the common-law cause of action, will normally be given.
Different standards apply if the use is in connection with a news, public affairs, or
sports broadcast or account, or with a political campaign. (See Civ. Code,
§ 3344(d); Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198
Cal.Rptr. 342].) The plaintiff bears the burden of proving the nonapplicability of
these exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th
400, 416–417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no
question of fact with regard to this issue. See CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign, for an instruction to use if one of the exceptions
of Civil Code section 3344(d) applies.
1035
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g.,
not a “news” account) but that even if it were covered it is not protected under the
standards of Eastwood, then both this instruction and CACI No. 1804B should be
given in the alternative. In that case, it should be made clear to the jury that if the
plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth
in element 2, the claim is still viable if the plaintiff proves all the elements of
CACI No. 1804B.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section
3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe,
Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
(2000) 78 Cal.App.4th 362, 366–367 [92 Cal.Rptr.2d 713].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters., supra, 78 Cal.App.4th at p. 367.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
name or likeness to defendant’s advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy,
a plaintiff must present evidence of ‘all the elements of the common law cause
of action’ and must also prove ‘a knowing use by the defendant as well as a
direct connection between the alleged use and the commercial purpose.’ ”
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
Cal.Rptr.3d 200], internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are
cumulative and in addition to any provided for by law.” (Eastwood, supra, 149
Cal.App.3d at p. 417, fn. 6, internal citation omitted.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
1036
1037
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
Give this instruction if the plaintiff’s name or likeness has been used in connection
with a news, public affairs, or sports broadcast or account, or with a political
campaign. In this situation, consent is not required. (Civ. Code, § 3344(d).)
However, in Eastwood v. Superior Court, the court held that the constitutional
standards under defamation law apply under section 3344(d) and that the statute as
it applies to news does not provide protection for a knowing or reckless falsehood.
(Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr.
342].) Under defamation law, this standard applies only to public figures, and
private individuals may sue for negligent publication of defamatory falsehoods. (Id.
1038
at p. 424.) Presumably, the same distinction between public figures and private
individuals would apply under Civil Code section 3344(d). Element 4 provides for
the standards established and suggested by Eastwood.
Give CACI No. 1804A, Use of Name or Likeness, if there is no issue whether one
of the exceptions of Civil Code section 3344(d) applies. If plaintiff alleges that the
use was not covered by subdivision (d) (e.g., not a “news” account) but that even if
it were covered it is not protected under the standards of Eastwood, then both this
instruction and CACI No. 1804A should be given in the alternative. In that case, it
should be made clear to the jury that if the plaintiff fails to prove the
inapplicability of Civil Code section 3344(d) as set forth element 2 of CACI No.
1804A, the claim is still viable if the plaintiff proves all the elements of this
instruction.
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name
and likeness are protected under both the common law and under Civil Code
section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both
this instruction and CACI No. 1803, Appropriation of Name or Likeness, which
sets forth the common-law cause of action, will normally be given.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section
3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe,
Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Even though consent is not required, it may be an affirmative defense. CACI No.
1721, Affırmative Defense—Consent (to defamation), may be used in this situation.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
(2000) 78 Cal.App.4th 362, 366–367 [92 Cal.Rptr.2d 713].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters., supra, 78 Cal.App.4th at p. 367.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
name or likeness to defendant’s advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy,
a plaintiff must present evidence of ‘all the elements of the common law cause
of action’ and must also prove ‘a knowing use by the defendant as well as a
direct connection between the alleged use and the commercial purpose.’ ”
1039
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
Cal.Rptr.3d 200], internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are
cumulative and in addition to any provided for by law.” (Eastwood, supra, 149
Cal.App.3d at p. 417, fn. 6, internal citation omitted.)
• “The spacious interest in an unfettered press is not without limitation. This
privilege is subject to the qualification that it shall not be so exercised as to
abuse the rights of individuals. Hence, in defamation cases, the concern is with
defamatory lies masquerading as truth. Similarly, in privacy cases, the concern
is with nondefamatory lies masquerading as truth. Accordingly, we do not
believe that the Legislature intended to provide an exemption from liability for
a knowing or reckless falsehood under the canopy of ‘news.’ We therefore hold
that Civil Code section 3344, subdivision (d), as it pertains to news, does not
provide an exemption for a knowing or reckless falsehood.” (Eastwood, supra,
149 Cal.App.3d at p. 426, internal citations omitted.)
• The burden of proof as to knowing or reckless falsehood under Civil Code
section 3344(d) is on the plaintiff. (See Eastwood, supra, 149 Cal.App.3d at p.
426.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416–417
[114 Cal.Rptr.2d 307], internal citation omitted.)
• “We presume that the Legislature intended that the category of public affairs
would include things that would not necessarily be considered news. Otherwise,
the appearance of one of those terms in the subsection would be superfluous, a
reading we are not entitled to give to the statute. We also presume that the term
‘public affairs’ was intended to mean something less important than news.
Public affairs must be related to real-life occurrences.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 546 [18 Cal.Rptr.2d 790], internal citations
omitted.)
• “[N]o cause of action will lie for the ‘publication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
1040
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
790, 793 [40 Cal.Rptr.2d 639], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 681–683
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
1 California Civil Practice: Torts § 20:17 (Thomson Reuters)
1041
(2003) 30 Cal.4th 881, 891–892 [134 Cal.Rptr.2d 634, 69 P.3d 473], internal
citation omitted.)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th
at p. 400.)
• “Furthermore, in determining whether a work is sufficiently transformative,
courts may find useful a subsidiary inquiry, particularly in close cases: does the
marketability and economic value of the challenged work derive primarily from
the fame of the celebrity depicted? If this question is answered in the negative,
then there would generally be no actionable right of publicity. When the value
of the work comes principally from some source other than the fame of the
celebrity—from the creativity, skill, and reputation of the artist—it may be
presumed that sufficient transformative elements are present to warrant First
Amendment protection. If the question is answered in the affirmative, however,
it does not necessarily follow that the work is without First Amendment
protection—it may still be a transformative work.” (Comedy III Productions,
Inc., supra, 25 Cal.4th at p. 407.)
• “As the Supreme Court has stated, the central purpose of the inquiry into this
fair use factor ‘is to see . . . whether the new work merely “supersede[s] the
objects” of the original creation, or instead adds something new, with a further
purpose or different character, altering the first with new expression, meaning,
or message; it asks, in other words, whether and to what extent the new work is
“transformative.” ’ ” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 404,
internal citations omitted.)
• “We emphasize that the transformative elements or creative contributions that
require First Amendment protection are not confined to parody and can take
many forms, from factual reporting to fictionalized portrayal, from heavy-
handed lampooning to subtle social criticism.” (Comedy III Productions, Inc.,
supra, 25 Cal.4th at p. 406.)
• “[Defendant] contends the plaintiffs’ claims are barred by the transformative use
defense formulated by the California Supreme Court in Comedy III . . . . ‘The
defense is “a balancing test between the First Amendment and the right of
publicity based on whether the work in question adds significant creative
elements so as to be transformed into something more than a mere celebrity
likeness or imitation.” ’ ” (Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d
1172, 1177, internal citation omitted.)
• “Simply stated, the transformative test looks at ‘whether the celebrity likeness is
one of the “raw materials” from which an original work is synthesized, or
whether the depiction or imitation of the celebrity is the very sum and
substance of the work in question. We ask, in other words, whether a product
1043
1044
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 34
Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
• “The sense of an ever-increasing pressure on personal privacy notwithstanding,
it has long been apparent that the desire for privacy must at many points give
way before our right to know, and the news media’s right to investigate and
relate, facts about the events and individuals of our time.” (Shulman v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 208 [74 Cal. Rptr. 2d 843, 955 P.2d
469].)
• “The difficulty in defining the boundaries of the right, as applied in the
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When
words relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors
deserving consideration may include the medium of publication, the extent of
the use, the public interest served by the publication, and the seriousness of the
interference with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38
Cal.2d 273, 278–279 [239 P.2d 630].)
• “[T]he common law right does not provide relief for every publication of a
person’s name or likeness. The First Amendment requires that the right to be
protected from unauthorized publicity ‘be balanced against the public interest in
the dissemination of news and information consistent with the democratic
processes under the constitutional guaranties of freedom of speech and of the
press.’ ” (Gionfriddo, supra, 94 Cal.App.4th at pp. 409–410, internal citations
and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “In sum, when an artist is faced with a right of publicity challenge to his or her
work, he or she may raise as affirmative defense that the work is protected by
the First Amendment inasmuch as it contains significant transformative elements
or that the value of the work does not derive primarily from the celebrity’s
fame.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th
387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797].)
• “We have explained that ‘[o]nly if [a defendant] is entitled to the
[transformative] defense as a matter of law can it prevail on its motion to
strike,’ because the California Supreme Court ‘envisioned the application of the
defense as a question of fact.’ As a result, [defendant] ‘is only entitled to the
defense as a matter of law if no trier of fact could reasonably conclude that the
[game] [i]s not transformative.’ ” (Keller v. Elec. Arts Inc. (In re NCAA Student-
Athlete Name & Likeness Licensing Litig.) (9th Cir. 2013) 724 F.3d 1268, 1274,
original italics.)
1046
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th
at p. 400.)
• “The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ ” (Ross v. Roberts (2013) 222
Cal.App.4th 677, 687 [166 Cal.Rptr.3d 359].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2010) Torts, § 681 et seq.
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.35 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.27 (Matthew Bender)
1047
[Name of defendant] claims that even if [name of plaintiff] has proven all
of the above, [his/her/its] conduct was justified. [Name of defendant] must
prove that the circumstances justified the invasion of privacy because
the invasion of privacy substantially furthered [insert relevant legitimate
or compelling competing interest].
If [name of defendant] proves that [his/her/its] conduct was justified, then
you must find for [name of defendant] unless [name of plaintiff] proves
that there was a practical, effective, and less invasive method of
achieving [name of defendant]’s purpose.
Inc. (2009) 47 Cal.4th 272, 288 [97 Cal.Rptr.3d 274, 211 P.3d 1063], internal
citations omitted.)
• Note that whether the countervailing interest needs to be “compelling” or
“legitimate” depends on the status of the defendant. “In general, where the
privacy violation is alleged against a private entity, the defendant is not required
to establish a ‘compelling interest’ but, rather, one that is ‘legitimate’ or
‘important.’ ” (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d
46].)
Secondary Sources
7 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 575–603
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.06 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew
Bender)
18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights,
§ 183.20 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 20:18–20:20
1049
1050
by the other party, a substantial distinction has been recognized between the
secondhand repetition of the contents of a conversation and its simultaneous
dissemination to an unannounced second auditor, whether that auditor be a
person or a mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360–361
[212 Cal.Rptr. 143, 696 P.2d 637].)
• “We hold that an actionable violation of section 632 does not require disclosure
of a confidential communication to a third party.” (Friddle v. Epstein (1993) 16
Cal.App.4th 1649, 1660 [21 Cal.Rptr.2d 85].)
• “The right to recover [the] statutory minimum accrue[s] at the moment the
privacy act [is] violated.” (Friddle, supra, 16 Cal.App.4th at p. 1661.)
• “If the plaintiff has suffered injuries akin to those for emotional distress, ‘i.e.,
anxiety, embarrassment, humiliation, shame, depression, feelings of
powerlessness, anguish, etc.,’ these are ‘actual’ damages which shall be trebled.”
(Friddle, supra, 16 Cal.App.4th at p. 1660.)
• “Because the right to [the statutory] award accrues at the moment of the
violation, it is not barred by the judicial privilege. . . . Section 637.2 therefore
permits him to pursue his statutory remedy of a civil lawsuit for $3,000, even
though the judicial privilege bars his recovery for the only actual damage he
claims to have suffered.” (Ribas, supra, 38 Cal.3d at p. 365.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 660, 661, 666
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07[8] (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.283
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.25A (Matthew Bender)
1052
1054
1820. Damages
One who has established a cause of action for invasion of his privacy is
entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind
that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Note that this Restatement section has not been cited by any published
California cases.
• “Damages recoverable in California for invasion of a privacy right were
discussed in detail in Fairfield v. American Photocopy Equipment Co. The Court
of Appeal declared that because the interest involved privacy, the damages
flowing from its invasion logically would include an award for mental suffering
and anguish. Fairfield was an appropriation case, but the principles it laid down
concerning damage awards in privacy cases relied on a body of California law
which had already recognized violation of the right of privacy as a tort.” (Miller
v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484 [232 Cal.Rptr.
668], internal citation omitted.)
• “The elements of emotional distress damages, i.e., anxiety, embarrassment,
humiliation, shame, depression, feelings of powerlessness, anguish, etc., would
thus be subjects of legitimate inquiry by a jury in the action before us, taking
into account all of the consequences and events which flowed from the
actionable wrong.” (Miller, supra, 187 Cal.App.3d at p. 1485.)
• “The actual injury involved herein is not limited to out-of-pocket loss. It
generally includes ‘impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering.’ ” (Diaz, supra, 139
Cal.App.3d at p. 137, internal citation omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374, 384, fn. 9 [87 S.Ct. 534, 17 L.Ed.2d
456], the court stated: “In the ‘right of privacy’ cases the primary damage is the
mental distress from having been exposed to public view, although injury to
reputation may be an element bearing upon such damage.”
• “There is a distinction between causes of action for invasion of privacy and
defamation with regard to the respective interests protected and compensated by
each. ‘The gist of a cause of action in a privacy case is not injury to the
character or reputation but a direct wrong of a personal character resulting in
injury to the feelings without regard to any effect which the publication may
have on the property, business, pecuniary interest, or the standing of the
individual in the community. The right of privacy concerns one’s own peace of
mind, while the right of freedom from defamation concerns primarily one’s
reputation. The injury is mental and subjective.’ ” (Selleck v. Globe Int’l, Inc.
(1985) 166 Cal.App.3d 1123, 1135 [212 Cal.Rptr. 838], internal citations
omitted.)
• “California recognizes the right to profit from the commercial value of one’s
1056
1057
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [name of plaintiff] for the harm. This
compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages. [Name of
plaintiff] does not have to prove the exact amount of damages that will
provide reasonable compensation for the harm. However, you must not
speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Humiliation, embarrassment, and mental distress, including any
physical symptons;]
2. [Harm to [name of plaintiff]’s reputation;] [and]
3. [Insert other item(s) of claimed harm].
In addition, [name of plaintiff] may recover any profits that [name of
defendant] received from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [that have not already been
taken into account with regard to the above damages]. To establish the
amount of these profits you must:
1. Determine the gross, or total, revenue that [name of defendant]
received from the use;
2. Determine the expenses that [name of defendant] had in obtaining
the gross revenue; and
3. Deduct [name of defendant]’s expenses from the gross revenue.
[Name of plaintiff] must prove the amount of gross revenue, and [name of
defendant] must prove the amount of expenses.
The plaintiff might claim that he or she would have earned the same profits that
the defendant wrongfully earned. In such a case, to avoid a double recovery, the
advisory committee recommends computing damages to recover the defendant’s
wrongful profits separately from actual damages, that is, under the second part of
the instruction and not under actual damages item 3 (“other item(s) of claimed
harm”). See also CACI No. VF-1804, Privacy—Use of Name or Likeness. Give the
bracketed phrase in the paragraph that introduces the second part of the instruction
if the plaintiff alleges lost profits that are different from the defendant’s wrongful
profits and that are claimed under actual damages item 3.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “[Plaintiff] alleges, and submits evidence to show, that he was injured
economically because the ad will make it difficult for him to endorse other
automobiles, and emotionally because people may be led to believe he has
abandoned his current name and assume he has renounced his religion. These
allegations suffice to support his action. Injury to a plaintiff’s right of publicity
is not limited to present or future economic loss, but ‘may induce humiliation,
embarrassment, and mental distress.’ ” (Abdul-Jabbar v. General Motors Corp.
(9th Cir. 1996) 85 F.3d 407, 416, internal citation omitted.)
• “We can conceive no rational basis for the Legislature to limit the $750 as an
alternative to all other damages, including profits. If someone profits from the
unauthorized use of another’s name, it makes little sense to preclude the injured
party from recouping those profits because he or she is entitled to statutory
damages as opposed to actual damages. Similar reasoning appears to be
reflected in the civil jury instructions for damages under section 3344, which
provides: ‘If [name of plaintiff] has not proved the above damages, or has
proved an amount of damages less than $750, then you must award [him/her]
$750. [¶] In addition, [name of plaintiff] may recover any profits that [name of
defendant] received from the use of [name of plaintiff]’s [name . . . ] [that
have not already been taken into account in computing the above damages].’
(CACI No. 1821, italics omitted.).” (Orthopedic Systems, Inc., supra, 202
Cal.App.4th at p. 546.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1548–1556
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
1059
1060
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1800, Intrusion Into Private Affairs.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1062
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1801, Public Disclosure of Private Facts.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1064
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1065
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1802, False Light.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the conduct does not involve a matter of public concern, then substitute the
following for question number 3: “Was [name of defendant] negligent in
determining the truth of the information or whether a false impression would be
created by its publication?” If the conduct involved material that is not defamatory
on its face, the following question should be added to this form: “Did [name of
plaintiff] sustain harm to [his/her] property, business, profession, or occupation
[including money spent as a result of the statements(s)]?”
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
1067
1068
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1803, Appropriation of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1070
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [humiliation/embarrassment/
mental distress including any physical symptoms:] $ ]
[d. Future noneconomic loss, including
[humiliation/embarrassment/mental distress including any
physical symptomns:] $ ]
[d. TOTAL ACTUAL DAMAGES $
[7. Did [name of defendant] receive any profits from the use of [name
of plaintiff]’s [name/voice/signature/photograph/likeness] that you
did not include under [name of plaintiff]’s actual damages for lost
profits in Question 6 above?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What amount of those profits did [name of defendant] receive
from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness]?
8. TOTAL PROFITS RECEIVED BY DEFENDANT $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1072
New September 2003; Revised April 2007, April 2008, December 2010, June 2012,
December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 1804A, Use of Name or Likeness, and
CACI No. 1821, Damages for Use of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under Civil Code section 3344(a), the plaintiff may recover actual damages or
$750, whichever is greater. The plaintiff may also recover any profits that the
defendant received from the unauthorized use that were not taken into account in
calculating actual damages. (Orthopedic Systems Inc. v. Schlein (2011) 202
Cal.App.4th 529, 547 [135 Cal.Rptr.3d 200].) The advisory committee recommends
calculating the defendant’s profits to be disgorged separately from actual damages.
Questions 5 through 8 take the jury through the recommended course. If no actual
damages are sought, question 5 may be omitted and the jury instructed to enter
$750 as the total actual damages in question 6. If the jury awards actual damages
of less than $750, the court should raise the amount to $750. If there is no claim to
disgorge the defendant’s wrongful profits, questions 7 and 8 may be omitted.
Additional questions may be necessary if the facts implicate Civil Code section
3344(d) (see Directions for Use under CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign).
If specificity is not required, users do not have to itemize all the actual damages
listed in question 6 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1805–VF-1806. Reserved for Future Use
1073
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1809, Recording of Confidential
Information.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 4 and 5 do not have to be read if the plaintiff is seeking the statutory
penalty only.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
1075
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1808–VF-1899. Reserved for Future Use
1076
FRAUD OR DECEIT
1077
• “The elements of fraud that will give rise to a tort action for deceit are: “ ‘(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [64 Cal.Rptr.2d
843, 938 P.2d 903], internal quotation marks omitted.)
• “A complaint for fraud must allege the following elements: (1) a knowingly
false representation by the defendant; (2) an intent to deceive or induce
reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”
(Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52
Cal.Rptr.2d 650] [combining misrepresentation and scienter as a single
element].)
• “Puffing,” or sales talk, is generally considered opinion, unless it involves a
representation of product safety. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112
[120 Cal.Rptr. 681, 534 P.2d 377].)
• “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to
deceive, that distinguishes it from actionable negligent misrepresentation and
from nonactionable innocent misrepresentation. It is the element of intent which
makes fraud actionable, irrespective of any contractual or fiduciary duty one
party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce,
Fenner & Smith (1998) 68 Cal.App.4th 445, 482 [80 Cal.Rptr.2d 329], internal
citations omitted.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]he trial court failed to consider that a cause of action based in fraud may
arise from conduct that is designed to mislead, and not only from verbal or
written statements.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 839 [199 Cal.Rptr.3d 901].)
• “ ‘[F]alse representations made recklessly and without regard for their truth in
order to induce action by another are the equivalent of misrepresentations
knowingly and intentionally uttered.’ ” (Engalla, supra, 15 Cal.4th at p. 974,
quoting Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 55 [30
Cal.Rptr. 629].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “A ‘complete causal relationship’ between the fraud or deceit and the plaintiff’s
damages is required. . . . Causation requires proof that the defendant’s conduct
was a “ ‘substantial factor’ ” in bringing about the harm to the plaintiff.”
(Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658],
internal citations omitted.)
1079
1080
1901. Concealment
New September 2003; Revised October 2004, December 2012, June 2014, June
2015
Directions for Use
Give this instruction if it is alleged that the defendant concealed certain information
to the detriment of the plaintiff. (See Civ. Code, § 1710(3).) Element 2 may be
deleted if the third option for element 1 is selected.
Regarding element 1, before there can be liability for concealment, there must
1081
Central Pacific Bank (2012) 207 Cal.App.4th 859, 860 [143 Cal.Rptr.3d 711].)
• “In transactions which do not involve fiduciary or confidential relations, a cause
of action for non-disclosure of material facts may arise in at least three
instances: (1) the defendant makes representations but does not disclose facts
which materially qualify the facts disclosed, or which render his disclosure
likely to mislead; (2) the facts are known or accessible only to defendant, and
defendant knows they are not known to or reasonably discoverable by the
plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”
(Warner Construction Corp., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “[O]ther than the first instance, in which there must be a fiduciary relationship
between the parties, ‘the other three circumstances in which nondisclosure may
be actionable: presuppose[] the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise. . . . “[W]here
material facts are known to one party and not to the other, failure to disclose
them is not actionable fraud unless there is some relationship between the
parties which gives rise to a duty to disclose such known facts.” [Citation.]’ A
relationship between the parties is present if there is ‘some sort of transaction
between the parties. [Citations.] Thus, a duty to disclose may arise from the
relationship between seller and buyer, employer and prospective employee,
doctor and patient, or parties entering into any kind of contractual agreement.’ ”
(Hoffman, supra, 228 Cal.App.4th at p. 1187, original italics, internal citations
omitted.)
• “Even if a fiduciary relationship is not involved, a non-disclosure claim arises
when the defendant makes representations but fails to disclose additional facts
which materially qualify the facts disclosed, or which render the disclosure
likely to mislead.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634,
666 [51 Cal.Rptr.2d 907], internal citations omitted.)
• “ ‘[T]he rule has long been settled in this state that although one may be under
no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or
in response to inquiries, he is bound not only to state truly what he tells but
also not to suppress or conceal any facts within his knowledge which materially
qualify those stated. If he speaks at all he must make a full and fair
disclosure.” ’ ” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal.App.4th 603, 613 [7 Cal.Rptr.2d 859].)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “[P]laintiffs argue that actual reliance cannot logically be an element of a cause
of action for deceit based on an omission because it is impossible to
1083
demonstrate reliance on something that one was not told. In support of the
argument, plaintiffs cite Affıliated Ute Citizens v. United States, supra, 406 U.S.
128 (Ute) . . . , Interpreting Rule 10b-5, the high court held that ‘positive proof
of reliance is not a prerequisite to recovery’ in a case ‘involving primarily a
failure to disclose . . . .’ [¶] Contrary to plaintiffs’ assertion, it is not logically
impossible to prove reliance on an omission. One need only prove that, had the
omitted information been disclosed, one would have been aware of it and
behaved differently.” (Mirkin, supra, 5 Cal.4th at p. 1093.)
• “The fact that a false statement may be obviously false to those who are trained
and experienced does not change its character, nor take away its power to
deceive others less experienced. There is no duty resting upon a citizen to
suspect the honesty of those with whom he [or she] transacts business. Laws
are made to protect the trusting as well as the suspicious. [T]he rule of caveat
emptor should not be relied upon to reward fraud and deception.” (Boschma,
supra, 198 Cal.App.4th at p. 249, original italics.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 793–799
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 11-E,
Damages For Fraud, ¶ 11:354 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[2][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.26
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.70 et seq.
(Matthew Bender)
2 California Civil Practice: Torts, § 22:16 (Thomson Reuters)
1084
1086
to which plaintiff belongs, will rely on the representation in the course of the
transaction. [However,] [i]f others become aware of the representation and act
upon it, there is no liability even though defendant should reasonably have
foreseen such a possibility.’ ” (Public Employees’ Retirement System v. Moody’s
Investors Service, Inc. (2014) 226 Cal.App.4th 643, 667−668 [172 Cal.Rptr.3d
238].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 818–820, 823–826
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-H,
Negligent Misrepresentation, ¶ 5:781 et seq. (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-D, Negligent
Misrepresentation, ¶ 11:41 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.10 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.14
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.270 et seq.
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:13–22:15 (Thomson Reuters)
1090
implying facts which justify a belief in the truth of the opinion. [Citation.]’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1], internal citation omitted.)
• “[W]hen one of the parties possesses, or assumes to possess, superior
knowledge or special information regarding the subject matter of the
representation, and the other party is so situated that he may reasonably rely
upon such supposed superior knowledge or special information, a representation
made by the party possessing or assuming to possess such knowledge or
information, though it might be regarded as but the expression of an opinion if
made by any other person, is not excused if it be false.” (Jolley v. Chase Home
Finance, LLC (2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)
• “Since the appraisal is a value opinion performed for the benefit of the lender,
there is no representation of fact upon which a buyer may reasonably rely.”
(Graham, supra, 226 Cal.App.4th at p. 607.)
• “Whether a statement is nonactionable opinion or actionable misrepresentation
of fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65
Cal.App.4th 1069, 1080–1081 [76 Cal.Rptr.2d 911], internal citations omitted.)
• “If defendants’ assertion of safety is merely a statement of opinion—mere
‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “The alleged false representations in the subject brochures were not statements
of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the
DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that
promises of safety are not statements of opinion—they are ‘representations of
fact.’ ” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)
• “Under certain circumstances, expressions of professional opinion are treated as
representations of fact. When a statement, although in the form of an opinion, is
‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters
stated,’ it may be regarded as a positive assertion of fact. Moreover, when a
party possesses or holds itself out as possessing superior knowledge or special
information or expertise regarding the subject matter and a plaintiff is so
situated that it may reasonably rely on such supposed knowledge, information,
or expertise, the defendant’s representation may be treated as one of material
fact.” (Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 774–778
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.17
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50
1092
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)
1093
1094
1096
1907. Reliance
1098
1101
1102
1104
1106
[Name of plaintiff] may recover damages for profits [or other gains] [he/
she/it] would have made if the property had been as represented. [Name
of plaintiff] can recover these profits [or other gains] only if [he/she/it]
has proved all of the following:
1. That [name of plaintiff] acquired the property for the purpose of
using or reselling it for a [profit/gain];
2. That [name of plaintiff] reasonably relied on [name of defendant]’s
[false representation/failure to disclose/promise] in entering into
the transaction and in anticipating [profits/gains] from the use or
sale of the property; and
3. That [name of defendant]’s [false representation/failure to
disclose/promise] and [name of plaintiff]’s reliance on it were both
substantial factors in causing the lost profits.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
specifically, lost profits proximately caused are recoverable. The cases cited, the
arguments made concerning Civil Code section 3343 limitations are simply not
relevant to post-1971 proceedings, where profits are the claimed loss. Civil
Code section 3343 as amended, in so many words, authorizes recovery of lost
profits.” (Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 247 [137
Cal.Rptr. 244].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1714–1716
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1108
not apply.” (Channell v. Anthony (1976) 58 Cal.App.3d 290, 317 [129 Cal.Rptr.
704].)
The first element of this instruction should be modified in cases involving
promissory fraud: “In cases of promissory fraud, the damages are measured by
market value as of the date the promise was breached because that is the date when
the damage occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights
Dev. Co. (1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
For an instruction on lost profits, see CACI No. 3903N, Lost Profits (Economic
Damage).
Sources and Authority
• Fraud in Sale of Property: Seller’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
3343 are limited to recovery of damages by sellers of real property, while
subdivision (a)(4) deals with purchasers of real property.” (Channell, supra, 58
Cal.App.3d at p. 309, footnote omitted.)
• “Before 1935 the California courts had no statutory mandate on the measure of
damages for fraud. While the ‘benefit of the bargain’ measure of damages was
generally employed, on occasion California courts sometimes applied the ‘out
of pocket’ rule when the ‘loss of bargain’ rule was difficult to apply or would
work a hardship on plaintiff or defendant.” (Channell, supra, 58 Cal.App.3d at
p. 309, footnote omitted.)
• “The 1971 amendment to section 3343 took the form of an addition to the ‘out
of pocket’ rule. The statute had previously permitted recovery of ‘additional
damages,’ but the 1971 amendment enumerated specific types of consequential
damages which are included within the term ‘additional damages.’ ” (Channell,
supra, 58 Cal.App.3d at p. 312, footnote omitted.)
• “[T]he legislature clearly ruled out by the 1971 amendment any recovery of
damages for fraud measured by the traditional ‘loss of bargain’ formula.”
(Channell, supra, 58 Cal.App.3d at p. 313, footnote omitted.)
• “[O]ut of pocket” loss under section 3343 is “the difference between what
[plaintiffs] received for their property and the fair market value of the same at
the time of the transfer.” (Channell, supra, 58 Cal.App.3d at p. 314.)
• “[N]othing in section 3343 as amended . . . requires that a plaintiff show ‘out-
of-pocket’ loss (i.e., an amount by which the consideration paid exceeded the
value of the property received) in order to be entitled to any recovery for fraud
in a property transaction.” (Stout v. Turney (1978) 22 Cal.3d 718, 730 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In the absence of a fiduciary relationship, section 3343 governs the measure of
damages in fraudulent property transactions.” (Croeni v. Goldstein (1994) 21
Cal.App.4th 754, 759 [26 Cal.Rptr.2d 412].)
• “In the case of a seller . . . the defrauded victim is entitled to recover not only
1110
the difference between the actual value of that with which he parted and the
actual value of that which he received (out-of-pocket) but also any additional
damage arising from the particular transaction including any of the following: 1.
amounts expended in reliance upon the fraud; 2. amounts compensating for loss
of use and enjoyment of the property due to the fraud; and 3. an amount which
would compensate him for the profits or other gains by the use of the property
had he retained it.” (Channell, supra, 58 Cal.App.3d at p. 312, internal citation
omitted.)
• “What that time span [for damages for lost use and lost profits] should be
would be determined by the peculiar circumstances of the particular case before
the court and should present no insurmountable difficulty for a court in fixing a
reasonable period contemplated by the statute.” (Channell, supra, 58
Cal.App.3d at p. 317, footnote omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “Mental distress is not an element of damages allowable under Civil Code
section 3343.” (Channell, supra, 58 Cal.App.3d at p. 315, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1714–1716
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1111
date the promise was breached because that is the date when the damage
occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
(1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44
Cal.Rptr.2d 352, 900 P.2d 601], internal citations omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it).” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In fraud cases involving the ‘purchase, sale or exchange of property,’ the
Legislature has expressly provided that the ‘out-of-pocket’ rather than the
‘benefit-of-the-bargain’ measure of damages should apply. Civil Code section
3343 provides the exclusive measure of damages for fraud in such cases.”
(Fragale v. Faulkner (2003) 110 Cal.App.4th 229, 236 [1 Cal.Rptr.3d 616].)
• “Civil Code section 3343 does not apply, however, ‘when a victim is defrauded
by its fiduciaries.’ Instead, in the case of fraud by a fiduciary, ‘the “broader”
measure of damages provided by sections 1709 and 3333 applies.’ . . . [¶] In
the case of a negligent misrepresentation by a fiduciary, ‘a plaintiff is only
entitled to its actual or “out-of-pocket” losses suffered because of [the]
fiduciary’s negligent misrepresentation under section 3333.’ [¶] The Supreme
Court has not decided whether ‘the measure of damages under section 3333
might be greater for a fiduciary’s intentional misrepresentation . . . .’ ”
(Fragale, supra, 110 Cal.App.4th at pp. 236–237, original italics, internal
citations omitted.)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
greater for a fiduciary’s intentional misrepresentation, we need not address that
issue here.” (Alliance Mortgage Co., supra, 10 Cal.4th at pp. 1249–1250.)
• “To recover damages for fraud, a plaintiff must have sustained damages
1113
1114
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44 Cal.Rptr.2d 352, 900
P.2d 601]; Civ. Code, § 3343.) However, there is disagreement on the proper
measure if there is a fiduciary relationship.
Some courts have held that benefit-of-the-bargain damages are available if there is
both a fiduciary relationship and intentional misrepresentation. (See Fragale v.
Faulkner (2003) 110 Cal.App.4th 229, 235–239 [1 Cal.Rptr.3d 616]; Salahutdin v.
Valley of California, Inc. (1994) 24 Cal.App.4th 555, 564 [29 Cal.Rptr.2d 463]; see
also Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1383 [89 Cal.Rptr.3d 659].) At least one court has
held to the contrary, that only out-of-pocket losses may be recovered. (See Hensley
v. McSweeney (2001) 90 Cal.App.4th 1081, 1086 [109 Cal.Rptr.2d 489].)
This instruction should be modified in cases involving promissory fraud: “In cases
of promissory fraud, the damages are measured by market value as of the date the
promise was breached because that is the date when the damage occurred.”
(Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66
Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
Sources and Authority
• Damages for Fraud. Civil Code section 1709.
• Measure of Damages in Tort. Civil Code section 3333.
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. supra, 10 Cal.4th at p. 1240, internal citations
omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it.)” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
1116
1117
In a case such as this, that date is the date the complaining party learns, or at
least is put on notice, that a representation was false.” (Brandon G. v. Gray
(2003) 111 Cal.App.4th 29, 35 [3 Cal.Rptr.3d 330].)
• “This discovery element has been interpreted to mean ‘the discovery by the
aggrieved party of the fraud or facts that would lead a reasonably prudent
person to suspect fraud.’ ” (Doe v. Roman Catholic Bishop of Sacramento
(2010) 189 Cal.App.4th 1423, 1430 [117 Cal.Rptr.3d 597], original italics.)
• “Case law has interpreted this accrual provision to mean that ‘a cause of action
[under Code Civ. Proc., § 338(d)] accrues, and the limitations period
commences to run, when the aggrieved party could have discovered the . . .
mistake through the exercise of reasonable diligence.’ ” (Creditors Collection
Serv. v. Castaldi (1995) 38 Cal.App.4th 1039, 1044 [45 Cal.Rptr. 2d 511].)
• “One [exception to the limitations period] is the doctrine of fraudulent
concealment, which tolls the statute of limitations if a defendant’s deceptive
conduct ‘has caused a claim to grow stale.’ ” (Fuller v. First Franklin Financial
Corp. (2013) 216 Cal.App.4th 955, 962 [163 Cal.Rptr.3d 44].)
• “ ‘Technical rules as to when a cause of action accrues apply therefore only in
those cases which are free from fraud committed by the defendant. Said section
338, subdivision 4, . . . recognizes the nonapplicability of those technical rules
where the fraud of the defendant may be so concealed that in the absence of
circumstances imposing greater diligence on the plaintiff, the cause of action is
deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the
defendant by concealing his fraud, would effectively block recovery by the
plaintiff because of the intervention of the statute of limitations.’ ” (Snow v. A.
H. Robins Co. (1985) 165 Cal.App.3d 120, 127–128 [211 Cal.Rptr. 271],
internal citation omitted.)
• “[C]ourts have relied on the nature of the relationship between defendant and
plaintiff to explain application of the delayed accrual rule. The rule is generally
applicable to confidential or fiduciary relationships. The fiduciary relationship
carries a duty of full disclosure, and application of the discovery rule ‘prevents
the fiduciary from obtaining immunity for an initial breach of duty by a
subsequent breach of the obligation of disclosure.’ ” (Parsons v. Tickner (1995)
31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)
• “ ‘The provision tolling operation of [section 338(d)] until discovery of the
fraud has long been treated as an exception and, accordingly, this court has held
that if an action is brought more than three years after commission of the fraud,
plaintiff has the burden of pleading and proving that he did not make the
discovery until within three years prior to the filing of his complaint.’ ”
(Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701],
internal citation omitted.)
• “Only causes of action based on actual fraud are governed by section 338,
subdivision (d). This includes . . . causes of action based on fraudulent
concealment, which ‘is a species of fraud or deceit. [Citations.]’ ” (Stueve Bros.
1119
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 322 [166 Cal.Rptr.3d
116].)
• “[T]he section 338, subdivision (d), three-year statute of limitations applies to
an unjust enrichment cause of action based on mistake.” (Federal Deposit Ins.
Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original
italics.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 653–663
Rylaarsdam & Edmon, California Practice Guide: Civil Procedure Before Trial, Ch.
6-C, Answer, ¶¶ 6:462–6:462.2 (The Rutter Group)
California Civil Procedure Before Trial, Ch. 25, Answer (Cont.Ed.Bar 4th ed.)
§ 25.46
43 California Forms of Pleading and Practice, Ch. 489, Relief From Judgments and
Orders, § 489.261 (Matthew Bender)
7 California Points and Authorities, Ch. 70A, Defaults and Relief From Orders and
Judgments: Equitable Remedies, §§ 70A.32, 70A.52 et seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.42 (Matthew Bender)
1926–1999. Reserved for Future Use
1120
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016
Directions for Use
This verdict form is based on CACI No. 1900, Intentional Misrepresentation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. However, if both intentional misrepresentation and negligent
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
1122
alternative, the preferred practice would seem to be that this verdict form and VF-
1903, Negligent Misrepresentation, be kept separate and presented in the
alternative. If different damages are recoverable on different causes of action,
replace the damages tables in all of the verdict forms with CACI No. VF-3920,
Damages on Multiple Legal Theories.
With respect to the same misrepresentation, question 2 above cannot be answered
“yes” and question 3 of VF-1903 cannot also be answered “no.” The jury may
continue to answer the next question from one form or the other, but not both.
If both intentional and negligent misrepresentation are before the jury, it is
important to distinguish between a statement made recklessly and without regard
for the truth (see question 2 above) and one made without reasonable grounds for
believing it is true (see CACI No. VF-1903, question 3). Question 2 of VF-1903
should be included to clarify that the difference is that for negligent
misrepresentation, the defendant honestly believes that the statement is true. (See
Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407–408 [11 Cal.Rptr.2d 51, 834
P.2d 745].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1123
VF-1901. Concealment
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1901, Concealment.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Modify question 1 by referring to one of the other three grounds for concealment
listed in element 1 of CACI No. 1901, Concealment, depending on which ground is
applicable to the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1125
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1126
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2015, December 2016
Directions for Use
This verdict form is based on CACI No. 1902, False Promise.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If multiple promises are at issue, question 1 should be repeated to specify each
1128
one; for example: “1. Did [name of defendant] promise [name of plaintiff] that
[specify promise]?” The rest of the questions will need to be repeated for each
promise.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action (or from different promises), replace the damages tables in all of the verdict
forms with CACI No. VF-3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1129
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016
Directions for Use
This verdict form is based on CACI No. 1903, Negligent Misrepresentation.
The special verdict forms in this section are intended only as models. They may
1131
1132
TRESPASS
1133
possible confusion, give the third option to CACI No. 2004, “Intentional Entry”
Explained.
If plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 4, add “and” at the end of element 2, and
adjust punctuation accordingly:
If you find all of the above, then the law assumes that [name of plaintiff] has
been harmed and [name of plaintiff] is entitled to a nominal sum such as one
dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff]
proves the following:
The last sentence of the above paragraph, along with the final two elements of this
instruction, should be omitted if plaintiff is seeking nominal damages only. Read
“actually” in the fourth element only if nominal damages are also being sought.
Nominal damages alone are not available in cases involving intangible intrusions
such as noise and vibrations; proof of actual damage to the property is required:
“[T]he rule is that actionable trespass may not be predicated upon nondamaging
noise, odor, or light intrusion . . . .” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal
citation omitted.)
For an instruction on control of property, see CACI No. 1002, Extent of Control
Over Premises Area, in the Premises Liability series.
Sources and Authority
• “As a general rule, landowners and tenants have a right to exclude persons from
trespassing on private property; the right to exclude persons is a fundamental
aspect of private property ownership.” (Allred v. Harris (1993) 14 Cal.App.4th
1386, 1390 [18 Cal.Rptr.2d 530], internal citation omitted.)
• “Trespass is an unlawful interference with possession of property. The emission
of sound waves which cause actual physical damage to property constitutes a
trespass. Liability for trespass may be imposed for conduct which is intentional,
reckless, negligent or the result of an extra-hazardous activity.” (Staples, supra,
189 Cal.App.3d at p. 1406, internal citations omitted.)
• “California’s definition of trespass is considerably narrower than its definition of
nuisance. ‘ “A trespass is an invasion of the interest in the exclusive possession
of land, as by entry upon it . . . . A nuisance is an interference with the interest
in the private use and enjoyment of the land and does not require interference
with the possession.” ’ California has adhered firmly to the view that ‘[t]he
cause of action for trespass is designed to protect possessory—not necessarily
ownership—interests in land from unlawful interference.’ ” (Capogeannis v.
Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal
citations omitted.)
• “ ‘[A] trespass may be committed by the continued presence on the land of a
structure, chattel, or other thing which the actor has tortiously placed there,
whether or not the actor has the ability to remove it.’ Under this definition,
1135
1137
1139
necessary. (Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321
[43 Cal.Rptr. 542].)
It is no defense that the defendant mistakenly, but in good faith, believed that he or
she had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word
“intentionally” in element 2 might be confusing to the jury. To alleviate this
possible confusion, give the third option to CACI No. 2004, “Intentional Entry”
Explained. See also the Sources and Authority to CACI No. 2000,
Trespass—Essential Factual Elements.
Include the last paragraph if the plaintiff claims harm based on lost aesthetics and
functionality.
Sources and Authority
• Damages for Injury to Timber. Civil Code section 3346(a).
• “[T]he effect of [Civil Code] section 3346 as amended, read together with
[Code of Civil Procedure] section 733, is that the Legislature intended, insofar
as wilful and malicious trespass is concerned under either section, to leave the
imposition of treble damages discretionary with the court, but to place a floor
upon that discretion at double damages which must be applied whether the
trespass be wilful and malicious or casual and involuntary, etc. There are now
three measures of damages applicable to the pertinent types of trespass: (1) for
wilful and malicious trespass the court may impose treble damages but must
impose double damages; (2) for casual and involuntary trespass, etc., the court
must impose double damages; and (3) for trespass under authority actual
damages.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn.3 [199
Cal.Rptr.3d 705].)
• The damages provisions in sections 3346 and 733 must be “treated as penal and
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “Diminution in market value . . . is not an absolute limitation; several other
theories are available to fix appropriate compensation for the plaintiff’s
loss. . . . [¶] One alternative measure of damages is the cost of restoring the
property to its condition prior to the injury. Courts will normally not award
costs of restoration if they exceed the diminution in the value of the property;
the plaintiff may be awarded the lesser of the two amounts.” (Heninger v. Dunn
1141
(1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104], internal citations omitted.)
• “The rule precluding recovery of restoration costs in excess of diminution in
value is, however, not of invariable application. Restoration costs may be
awarded even though they exceed the decrease in market value if ‘there is a
reason personal to the owner for restoring the original condition,’ or ‘where
there is reason to believe that the plaintiff will, if fact, make the repairs.’ ”
(Heninger, supra, 101 Cal.App.3d at p. 863, internal citations omitted.)
• “Courts have stressed that only reasonable costs of replacing destroyed trees
with identical or substantially similar trees may be recovered.” (Heninger,
supra, 101 Cal.App.3d at p. 865.)
• “As a tree growing on a property line, the Aleppo pine tree was a ‘line tree.’
Civil Code section 834 provides: ‘Trees whose trunks stand partly on the land
of two or more coterminous owners, belong to them in common.’ As such,
neither owner ‘is at liberty to cut the tree without the consent of the other, nor
to cut away the part which extends into his land, if he thereby injures the
common property in the tree.’ ” (Kallis v. Sones (2012) 208 Cal.App.4th 1274,
1278 [146 Cal.Rptr.3d 419].)
• “[W]hen considering the diminished value of an injured tree, the finder of fact
may account for lost aesthetics and functionality.” (Rony v. Costa (2012) 210
Cal.App.4th 746, 755 [148 Cal.Rptr.3d 642].)
• “Although [plaintiff] never quantified the loss of aesthetics at $15,000, she need
not have done so. As with other hard-to-quantify injuries, such as emotional and
reputational ones, the trier of fact court was free to place any dollar amount on
aesthetic harm, unless the amount was ‘ “so grossly excessive as to shock the
moral sense, and raise a reasonable presumption that the [trier of fact] was
under the influence of passion or prejudice.” ’ ” (Rony, supra, 210 Cal.App.4th
at p. 756.)
• “[P]laintiffs here showed (i) the tree’s unusual size and form made it very
unusual for a ‘line tree’—it functioned more like two trees growing on the
separate properties; (ii) the tree’s attributes, such as its broad canopy, provided
significant benefits to the [plaintiffs’] property; and (iii) the [plaintiffs] placed
great personal value on the tree. The trial court correctly recognized that it
could account for these factors when determining damages, including whether
or not damages should be reduced.” (Kallis, supra, 208 Cal.App.4th at p. 1279.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1732−1734
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1142
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “ ‘ “ ‘[T]reble damages may only be awarded when the wrongdoer intentionally
acted wilfully or maliciously. The intent required is the intent to vex, harass, or
annoy or injure the plaintiff. It is a question of fact for the trial court whether
or not such intent exists.’ [Civil Code section 3346 and Code of Civil Procedure
section 733] are permissive and not mandatory and while they ‘prescribe the
degree of penalty to be invoked they commit to the sound discretion of the trial
court the facts and circumstances under which it shall be invoked.’ ” ’ ”
(Salazar, supra, 245 Cal.App.4th at p. 646, internal citation omitted.)
• “Although neither section [3346 or 733] expressly so provides, it is now settled
that to warrant such an award of treble damages it must be established that the
wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211
Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
• “A proper and helpful analogue here is the award of exemplary damages under
section 3294 of the Civil Code when a defendant has been guilty, inter alia, of
‘malice, express or implied.’ . . . ‘In order to warrant the allowance of such
damages the act complained of must not only be wilful, in the sense of
intentional, but it must be accompanied by some aggravating circumstance,
amounting to malice. Malice implies an act conceived in a spirit of mischief or
with criminal indifference towards the obligations owed to others. There must
be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient.’ . . .
Malice may consist of a state of mind determined to perform an act with
reckless or wanton disregard of or indifference to the rights of others. Since a
defendant rarely admits to such a state of mind, it must frequently be
established from the circumstances surrounding his allegedly malicious acts.”
(Caldwell, supra, 211 Cal.App.2d at pp. 763–764, internal citations omitted.)
• “Under [Health and Safety Code] section 13007, a tortfeasor generally is liable
to the owner of property for damage caused by a negligently set fire. ‘[T]he
statute places no restrictions on the type of property damage that is
compensable.’ Such damages might include, for example, damage to structures,
to movable personal property, to soil, or to undergrowth; damages may even
include such elements as the lost profits of a business damaged by fire. If the
fire also damages trees—that is, causes ‘injuries to . . . trees . . . upon the
land of another’—then the actual damages recoverable under section 13007 may
be doubled (for negligently caused fires) or trebled (for fires intended to spread
1144
1145
1147
(Matthew Bender)
1 California Civil Practice: Torts § 18:11 (Thomson Reuters West)
2006–2019. Reserved for Future Use
1149
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke, supra, 169
Cal.App.4th at p. 1552 [citing this instruction], internal citation omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
omitted.)
• “An essential element of a cause of action for nuisance is damage or injury.”
(Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [147
Cal.Rptr. 683].)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be
a public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “By analogy to the rules governing tort liability, courts apply the same elements
to determine liability for a public nuisance.” (People ex rel. Gallo, supra, 14
Cal.4th at p. 1105, fn. 3, internal citation omitted.)
• “The elements ‘of a cause of action for public nuisance include the existence of
a duty and causation.’ Public nuisance liability ‘does not hinge on whether the
defendant owns, possesses or controls the property, nor on whether he is in a
position to abate the nuisance; the critical question is whether the defendant
created or assisted in the creation of the nuisance.’ ” (Melton v. Boustred (2010)
183 Cal.App.4th 521, 542 [107 Cal.Rptr.3d 481], internal citations omitted.)
• “ ‘Where negligence and nuisance causes of action rely on the same facts about
lack of due care, the nuisance claim is a negligence claim.’ The nuisance claim
‘stands or falls with the determination of the negligence cause of action’ in such
cases.” (Melton, supra, 183 Cal.App.4th at p. 542, internal citations omitted.)
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 133
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
5-D, Common Law Environmental Hazards Liability, ¶¶ 5:140–5:179 (The Rutter
Group)
California Real Property Remedies and Damages (Cont.Ed.Bar 2d ed.) Ch. 11,
1152
1153
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016
Directions for Use
Element 8 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
1154
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160–165
[184 Cal.Rptr.3d 26].) For instruction on control of property, see CACI No. 1002,
Extent of Control Over Premises Area, in the Premises Liability series.
Sources and Authority
• “Nuisance” Defined. Civil Code section 3479.
• Acts Done Under Express Authority of Statute. Civil Code section 3482.
• “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by
decisions of this court. . . . ‘ “A statutory sanction cannot be pleaded in
justification of acts which by the general rules of law constitute a nuisance,
unless the acts complained of are authorized by the express terms of the statute
under which the justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated
that the Legislature contemplated the doing of the very act which occasions the
injury.” ’ ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142
Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
• “In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff’s property; proof of interference with the plaintiff’s use
and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal.Rptr.2d 724, 920 P.2d 669].)
• “[T]he essence of a private nuisance is its interference with the use and
enjoyment of land. The activity in issue must ‘disturb or prevent the
comfortable enjoyment of property,’ such as smoke from an asphalt mixing
plant, noise and odors from the operation of a refreshment stand, or the noise
and vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76
Cal.App.4th 521, 534 [90 Cal.Rptr.2d 491], internal citations omitted.)
• “Unlike public nuisance, which is an interference with the rights of the
community at large, private nuisance is a civil wrong based on disturbance of
rights in land. A nuisance may be both public and private, but to proceed on a
private nuisance theory the plaintiff must prove an injury specifically referable
to the use and enjoyment of his or her land. The injury, however, need not be
different in kind from that suffered by the general public.” (Koll-Irvine Center
Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041
[29 Cal.Rptr.2d 664], internal citation omitted.)
• “Examples of interferences with the use and enjoyment of land actionable under
a private nuisance theory are legion. ‘So long as the interference is substantial
and unreasonable, and such as would be offensive or inconvenient to the normal
person, virtually any disturbance of the enjoyment of the property may amount
to a nuisance.’ ” (Koll-Irvine Center Property Owners Assn., supra, 24
Cal.App.4th at p. 1041, internal citation omitted.)
• “The first additional requirement for recovery of damages on a nuisance theory
is proof that the invasion of the plaintiff’s interest in the use and enjoyment of
the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial
1155
actual damage.’ The Restatement recognizes the same requirement as the need
for proof of ‘significant harm,’ which it variously defines as ‘harm of
importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ and
an invasion that is ‘definitely offensive, seriously annoying or intolerable.’ The
degree of harm is to be judged by an objective standard, i.e., what effect would
the invasion have on persons of normal health and sensibilities living in the
same community? ‘If normal persons in that locality would not be substantially
annoyed or disturbed by the situation, then the invasion is not a significant one,
even though the idiosyncrasies of the particular plaintiff may make it
unendurable to him.’ This is, of course, a question of fact that turns on the
circumstances of each case.” (San Diego Gas & Electric Co., supra, 13 Cal.4th
at p. 938, internal citations omitted.)
• “The second additional requirement for nuisance is superficially similar but
analytically distinct: ‘The interference with the protected interest must not only
be substantial, but it must also be unreasonable’, i.e., it must be ‘of such a
nature, duration or amount as to constitute unreasonable interference with the
use and enjoyment of the land.’ The primary test for determining whether the
invasion is unreasonable is whether the gravity of the harm outweighs the social
utility of the defendant’s conduct, taking a number of factors into account.
Again the standard is objective: the question is not whether the particular
plaintiff found the invasion unreasonable, but ‘whether reasonable persons
generally, looking at the whole situation impartially and objectively, would
consider it unreasonable.’ And again this is a question of fact: ‘Fundamentally,
the unreasonableness of intentional invasions is a problem of relative values to
be determined by the trier of fact in each case in the light of all the
circumstances of that case.’ ” (San Diego Gas & Electric Co., supra, 13 Cal.4th
at pp. 938–939, internal citations omitted.)
• Appellant first argues that the judgment is erroneous because there is no
showing that any act or conduct of his caused the damage. It is true that there
is neither showing nor finding of any negligent or wrongful act or omission of
defendant proximately causing the falling of the trees. But no such showing is
required. If the trees remained upright, with some of their branches extending
over or upon plaintiff’s land, they clearly would constitute a nuisance, which
defendant could be required to abate.” (Mattos v. Mattos (1958) 162 Cal.App.2d
41, 42 [328 P.2d 269].)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke v. Oakwood
Worldwide (2009) 169 Cal.App.4th 1540, 1552 [87 Cal.Rptr.3d 602], internal
citations omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
1156
‘ “ ‘where liability for the nuisance is predicated on the omission of the owner
of the premises to abate it, rather than on his having created it, then negligence
is said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
omitted.)
• “We acknowledge that to recover on a nuisance claim the harm the plaintiff
suffers need not be a physical injury. Thus, the absence of evidence in this case
to establish that [plaintiff]’s physical injuries were caused by the stray voltage
would not preclude recovery on her nuisance claim.” (Wilson, supra, 234
Cal.App.4th at p. 159, internal citations omitted.)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be
a public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• Restatement Second of Torts, section 822 provides:
One is subject to liability for a private nuisance if, but only if, his conduct is a
legal cause of an invasion of another’s interest in the private use and
enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules
controlling liability for negligent or reckless conduct, or for
abnormally dangerous conditions or activities.
• Restatement Second of Torts, section 826 provides:
An intentional invasion of another’s interest in the use and enjoyment of land
is unreasonable if
(a) the gravity of the harm outweighs the utility of the actor’s
conduct, or
(b) the harm caused by the conduct is serious and the financial
burden of compensating for this and similar harm to others would
not make the continuation of the conduct not feasible.
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 153
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew
Bender)
1157
1158
2 Levy et al., California Torts, Ch. 17,Nuisance and Trespass, § 17.05 (Matthew
Bender)
9 California Real Estate Law and Practice, Ch. 320, The Law of Nuisance, § 320.15
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.20
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.47 (Matthew
Bender)
2023–2029. Reserved for Future Use
1161
sometimes harsh, the fact that plaintiff is neither aware of his cause of action
nor of the identity of a wrongdoer will not toll the statute. [¶] The harshness of
this rule has been ameliorated in some cases where it is manifestly unjust to
deprive plaintiffs of a cause of action before they are aware that they have been
injured. This modified rule has been applied to latent defects in real property
and improvements. In the case of such latent defects the statute of limitations
begins to run only when ‘noticeable damage occurs.’ ” (Leaf v. City of San
Mateo (1980) 104 Cal.App.3d 398, 406–407 [163 Cal.Rptr. 711], internal
citations omitted, disapproved on another ground in Trope v. Katz (1995) 11
Cal.4th 274, 292 [45 Cal.Rptr.2d 241, 902 P.2d 259], original italics.)
Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.09[5] (Matthew
Bender)
Brown et al., California Practice Guide: Civil Procedure Before Trial (The Rutter
Group) ¶¶ 6:462–6:462.2
2 California Real Property Remedies and Damages, Ch. 11, Remedies for Nuisance
and Trespass (Cont.Ed.Bar 2d ed.) §§ 11.38–11.40
1 California Forms of Pleading and Practice, Ch. 11, Adjoining Landowners,
§ 11.24 (Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240–225.245
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.44 (Matthew
Bender)
1165
If you decide that [name of plaintiff] has proved that [name of defendant]
committed a [trespass/nuisance], [name of plaintiff] may recover damages
that would reasonably compensate [him/her] for the annoyance and
discomfort caused by the injury to [his/her] peaceful enjoyment of the
property that [he/she] occupied.
1166
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1730
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.21
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
2032–2099. Reserved for Future Use
1167
VF-2000. Trespass
TRESPASS VF-2000
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1169
VF-2000 TRESPASS
1170
VF-2001 TRESPASS
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, October 2008,
December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements, and CACI No. 2005, Affırmative Defense—Necessity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of
plaintiff’s consent, question 3 can be modified, as in element 3 in CACI No. 2000.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1172
TRESPASS VF-2001
1173
TRESPASS VF-2002
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2001, Trespass—Extrahazardous Activities.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If there is an issue regarding whether the defendant exceeded the scope of
1175
VF-2002 TRESPASS
1176
VF-2003 TRESPASS
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements. The amount of actual damages found by the jury is to be
doubled. (See Civ. Code, § 3346(a).) The court can do the computation based on
the jury’s award.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of
plaintiff’s consent, question 3 can be modified, as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
1178
TRESPASS VF-2003
1179
TRESPASS VF-2004
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements, and CACI No. 2003, Damage to Timber—Willful and Malicious
Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
1181
VF-2004 TRESPASS
If there is an issue regarding whether the defendant exceeded the scope of the
plaintiff’s consent, question 3 can be modified as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1182
VF-2005 TRESPASS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1184
TRESPASS VF-2005
New September 2003; Revised April 2007, December 2007, December 2010,
December 2016
Directions for Use
This form is based on CACI No. 2020, Public Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations may be substituted in question 1 as in element 1 of CACI
No. 2020.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Depending on the facts of the case, question 1 can be modified, as in element 1 of
CACI No. 2020.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1185
TRESPASS VF-2006
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1187
VF-2006 TRESPASS
New September 2003; Revised April 2007, December 2007, December 2010,
December 2011, December 2016
Directions for Use
This form is based on CACI No. 2021, Private Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Depending on the facts of the case, question 2 can be modified, as in element 2 of
CACI No. 2021.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2007–VF-2099. Reserved for Future Use
1188
CONVERSION
1189
• “In a conversion action the plaintiff need show only that he was entitled to
possession at the time of conversion; the fact that plaintiff regained possession
of the converted property does not prevent him from suing for damages for the
conversion.” (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d
737, 748 [282 Cal.Rptr. 620], internal citation omitted.)
• “Neither legal title nor absolute ownership of the property is necessary. . . . A
party need only allege it is ‘entitled to immediate possession at the time of
conversion. . . .’ . . . However, a mere contractual right of payment, without
more, will not suffice.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal
citation omitted.)
• “The existence of a lien . . . can establish the immediate right to possess
needed for conversion. ‘One who holds property by virtue of a lien upon it may
maintain an action for conversion if the property was wrongfully disposed of by
the owner and without authority . . . .’ Thus, attorneys may maintain conversion
actions against those who wrongfully withhold or disburse funds subject to their
attorney’s liens.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal citation
omitted.)
• “Where the conduct complained of does not amount to a substantial interference
with possession or the right thereto, but consists of intermeddling with or use of
or damages to the personal property, the owner has a cause of action for
trespass or case, and may recover only the actual damages suffered by reason of
the impairment of the property or the loss of its use. As [plaintiff] was a
cotenant and had the right of possession of the realty, which included the right
to keep his personal property thereon, [defendant]’s act of placing the goods in
storage, although not constituting the assertion of ownership and a substantial
interference with possession to the extent of a conversion, amounted to an
intermeddling. Therefore, [plaintiff] is entitled to actual damages in an amount
sufficient to compensate him for any impairment of the property or loss of its
use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551–552 [176 P.2d 1], internal
citation omitted.)
• “[T]he law is well settled that there can be no conversion where an owner
either expressly or impliedly assents to or ratifies the taking, use or disposition
of his property.” (Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d
468, 474 [139 P.2d 80], internal citations omitted.)
• “As to intentional invasions of the plaintiff’s interests, his consent negatives the
wrongful element of the defendant’s act, and prevents the existence of a tort.
‘The absence of lawful consent,’ said Mr. Justice Holmes, ‘is part of the
definition of an assault.’ The same is true of false imprisonment, conversion,
and trespass.” (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552 [51 Cal.Rptr.
575], internal citations omitted.)
• “ ‘Money cannot be the subject of a cause of action for conversion unless there
is a specific, identifiable sum involved, such as where an agent accepts a sum of
money to be paid to another and fails to make the payment.’ A ‘generalized
1192
claim for money [is] not actionable as conversion.’ ” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
395 [58 Cal.Rptr.3d 516], internal citations omitted.)
• “Generally, conversion has been held to apply to the taking of intangible
property rights when ‘represented by documents, such as bonds, notes, bills of
exchange, stock certificates, and warehouse receipts.’ As one authority has
written, ‘courts have permitted a recovery for conversion of assets reflected in
such documents as accounts showing amounts owed, life insurance policies, and
other evidentiary documents. These cases are far removed from the paradigm
case of physical conversion; they are essentially financial or economic tort
cases, not physical interference cases.’ ” (Welco Electronics, Inc. v. Mora (2014)
223 Cal.App.4th 202, 209 [166 Cal.Rptr.3d 877], internal citation omitted.)
• “Credit card, debit card, or PayPal information may be the subject of a
conversion.” (Welco Electronics, Inc., supra, 223 Cal.App.4th at p. 212,
footnote omitted.)
• “One who buys property in good faith from a party lacking title and the right to
sell may be liable for conversion. The remedies for conversion include specific
recovery of the property, damages, and a quieting of title.” (State Farm Mut.
Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,
1081–1082 [62 Cal.Rptr.2d 178], internal citations omitted.)
• “[Conversion] must be knowingly or intentionally done, but a wrongful intent is
not necessary. Because the act must be knowingly done, ‘neither negligence,
active or passive, nor a breach of contract, even though it result in injury to, or
loss of, specific property, constitutes a conversion.’ It follows therefore that
mistake, good faith, and due care are ordinarily immaterial, and cannot be set
up as defenses in an action for conversion.” (Taylor v. Forte Hotels
International (1991) 235 Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189], internal
citations omitted.)
• “In order to establish a conversion, the plaintiff ‘must show an intention or
purpose to convert the goods and to exercise ownership over them, or to
prevent the owner from taking possession of his property.’ Thus, a necessary
element of the tort is an intent to exercise ownership over property which
belongs to another. For this reason, conversion is considered an intentional
tort.” (Collin v. American Empire Insurance Co. (1994) 21 Cal.App.4th 787,
812 [26 Cal.Rptr.2d 391], internal citations omitted.)
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
Cal.App.3d 1254, 1257 [209 Cal.Rptr. 309], internal citation omitted.)
• “A demand for return of the property is not a condition precedent to institution
of the action when possession was originally acquired by a tort as it was in this
case.” (Igauye v. Howard (1952) 114 Cal.App.2d 122, 127 [249 P.2d 558].)
• “ ‘Negligence in caring for the goods is not an act of dominion over them such
1193
1194
1197
1198
conversion, which is rebuttable, save and except when section 3337 applies.
Under Civil Code section 3337, a defendant cannot rebut the presumption by
claiming that he applied the converted property to plaintiff’s benefit when he
took unlawful possession of the property from the beginning. Consequently, the
effect of section 3337 is to prevent mitigation when property is stolen from the
plaintiff and subsequently applied to his benefit. In this situation, the defendant
will not be able to claim that his conversion benefited plaintiff; he will thereby
be prevented from claiming an offset derived from his original wrong. In
contrast to this situation, if the particular facts of a case indicate, as in the
instant case, that the possession was lawful before the conversion occurred . . .
Civil Code section 3337 is inapplicable, and a converter is not precluded from
claiming mitigation of damages.” (Dakota Gardens Apartment Investors “B” v.
Pudwill (1977) 75 Cal.App.3d 346, 351–352 [142 Cal.Rptr. 126].)
• “[W]e conclude that notwithstanding further developments in the law of
negligence, damages for emotional distress growing out of a defendant’s
conversion of personal property are recoverable.” (Gonzales, supra, 56
Cal.App.4th at p. 477, internal citations omitted.)
• “In the absence of special circumstances the appropriate measure of damages
for conversion of personal property is the fair market value of that property plus
interest from the date of conversion, the standard first listed in section 3336,
Civil Code. However, where proof establishes an injury beyond that which
would be adequately compensated by the value of the property and interest, the
court may award such amounts as will indemnify for all proximate reasonable
loss caused by the wrongful act. Where damages for loss of use exceeds the
legal rate of interest, it is appropriate to award the former, but not both.” (Lint
v. Chisholm (1981) 121 Cal.App.3d 615, 624–625 [177 Cal.Rptr. 314], internal
citations omitted.)
• “ ‘To entitle a party to such compensation the [evidence] should tend to show
that money was properly paid out and time properly lost in pursuit of the
property, and how much.’ Such evidence should be definite and certain.
Expenses ‘incurred in preparation for litigation and not in pursuit of property’
cannot be allowed as damages under Civil Code section 3336. Additionally, any
such compensation must be fair, i.e., reasonable.” (Haines v. Parra (1987) 193
Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178], internal citations omitted.)
• “[A]lthough good faith and mistake are not defenses to an action for
conversion, the plaintiff’s damages will be reduced if the defendant returns the
property or the plaintiff otherwise recovers the property.” (Krusi v. Bear, Stearns
& Co. (1983) 144 Cal.App.3d 664, 673 [192 Cal.Rptr. 793], internal citations
omitted.)
• “Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
• “Ordinarily ‘value of the property’ at the time of the conversion is determined
1200
by its market value at the time. However, ‘[w]here certain property has a
peculiar value to a person recovering damages for deprivation thereof, or injury
thereto, that may be deemed to be its value . . . against a willful wrongdoer.’ ”
(In re Brian S. (1982) 130 Cal.App.3d 523, 530 [181 Cal.Rptr. 778], internal
citations omitted.)
• “In an action for damages for conversion, it is the rule that the plaintiff,
although owning but a limited or qualified interest in the property, may, as
against a stranger who has no ownership therein, recover the full value of the
property converted.” (Camp v. Ortega (1962) 209 Cal.App.2d 275, 286 [25
Cal.Rptr. 873], internal citations omitted.)
• “A plaintiff seeking recovery under the alternative provision of the statute must
therefore plead and prove the existence of ‘special circumstances which require
a different measure of damages to be applied.’ Having done so, the trier of fact
must then determine ‘whether it was reasonably forseeable to a prudent person,
having regard for the accompanying circumstances, that injury or damage would
likely result from his wrongful act.’ ” (Krueger v. Bank of America (1983) 145
Cal.App.3d 204, 215 [193 Cal.Rptr. 322], internal citations omitted.)
• “Defendants contend that the anticipated loss of profits is not ‘the natural,
reasonable and proximate result of the wrongful act complained of,’ within the
meaning of section 3336. Although no California case which has applied the
alternative measure of damages in a conversion case has specifically defined
this language, we are satisfied that its meaning is synonymous with the term
‘proximate cause’ or ‘legal cause.’ These terms mean, in essence, ‘that there be
some reasonable connection between the act or omission of the defendant and
the damage which the plaintiff has suffered.’ In determining whether this
connection exists, the question is whether it was reasonably foreseeable to a
prudent person, having regard for the accompanying circumstances, that injury
or damage would likely result from his wrongful act. This question being one
of fact to be determined generally by the trier of fact.” (Myers, supra, 233
Cal.App.2d at pp. 119–120, internal citations omitted.)
• “In exceptional circumstances, to avoid injustice, loss of profits may be the
measure.” (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 794 [62 Cal.Rptr.
553], internal citation omitted.)
• Code of Civil Procedure section 1263.320(a) provides: “The fair market value
of the property taken is the highest price on the date of valuation that would be
agreed to by a seller, being willing to sell but under no particular or urgent
necessity for so doing, nor obliged to sell, and a buyer, being ready, willing,
and able to buy but under no particular necessity for so doing, each dealing
with the other with full knowledge of all the uses and purposes for which the
property is reasonably adaptable and available.”
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1722
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
1201
1202
VF-2100. Conversion
VF-2100 CONVERSION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2005; Revised December 2009, December 2010, June 2011,
December 2016
Directions for Use
This verdict form is based on CACI No. 2100, Conversion—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the case involves multiple items of personal property as to which the evidence
differs, users may need to modify question 2 to focus the jury on the different
items.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2101–VF-2199. Reserved for Future Use
1204
ECONOMIC INTERFERENCE
1205
the defendant’s conduct be wrongful apart from the interference with the
contract itself.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th
26, 55 [77 Cal.Rptr.2d 709, 960 P.2d 513], internal citations omitted.)
• “ ‘[A] person is not justified in inducing a breach of contract simply because he
is in competition with one of the parties to the contract and seeks to further his
own economic advantage at the expense of the other. [Citations.]’ This is
because, ‘[w]hatever interest society has in encouraging free and open
competition by means not in themselves unlawful, contractual stability is
generally accepted as of greater importance than competitive freedom.’ A party
may not, ‘under the guise of competition actively and affirmatively induce the
breach of a competitor’s contract.’ ” (I-CA Enterprises, Inc., supra, 235
Cal.App.4th at p. 290, internal citations omitted.)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 730–740
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.132 et seq. (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
1208
person in that business if the actor [¶] (a) does not employ improper means, and
[¶] (b) acts to protect his interest from being prejudiced by the relation[.]” ’ ”
(Asahi Kasei Pharma Corp, supra, 222 Cal.App. 4th at p. 962.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 741, 742, 759
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-E, Intentional
Interference With Contract Or Prospective Economic Advantage, ¶ 5:461 et seq.
(The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
1211
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 741–754, 759
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-E, Intentional
Interference With Contract Or Prospective Economic Advantage, ¶¶ 5:463, 5:470
(The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-G,
Intentional Interference With Contract Or Economic Advantage, ¶ 11:138.5 (The
Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.100–40.105 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, §§ 122.23, 122.32
(Matthew Bender)
1216
2203. Intent
1217
• Notably, one of “[t]he criteria for establishing [the existence of] a duty of care
is the ‘blameworthiness’ of the defendant’s conduct.” (Lange v. TIG Insurance
Co. (1999) 68 Cal.App.4th 1179, 1187 [81 Cal.Rptr.2d 39].) The Lange court
stated that in a negligent interference case “a defendant’s conduct is
blameworthy only if it was independently wrongful apart from the interference
itself.” (Ibid.) Thus, the “independently wrongful” element may, in effect, be
decided by the judge in the course of determining whether a duty of care was
owed.
• There is currently no cause of action for negligent interference with contractual
relations (see Fifield Manor v. Finston (1960) 54 Cal.2d 632, 636–637 [7
Cal.Rptr. 377, 354 P.2d 1073]): “Although the continuing validity of the so-
called ‘Fifield rule’ is questionable in light of the California Supreme Court’s
recognition in J’Aire of a cause of action for negligent interference with
prospective economic advantage, the Supreme Court has yet to disapprove
Fifield.” (LiMandri, supra, 52 Cal.App.4th at p. 349.)
• “Under the privilege of free competition, a competitor is free to divert business
to himself as long as he uses fair and reasonable means. Thus, the plaintiff must
present facts indicating the defendant’s interference is somehow wrongful—i.e.,
based on facts that take the defendant’s actions out of the realm of legitimate
business transactions.” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman,
Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153–1154 [265 Cal.Rptr.
330], internal citations omitted.)
• “Since the crux of the competition privilege is that one can interfere with a
competitor’s prospective contractual relationship with a third party as long as
the interfering conduct is not independently wrongful (i.e., wrongful apart from
the fact of the interference itself), Della Penna’s requirement that a plaintiff
plead and prove such wrongful conduct in order to recover for intentional
interference with prospective economic advantage has resulted in a shift of
burden of proof. It is now the plaintiff’s burden to prove, as an element of the
cause of action itself, that the defendant’s conduct was independently wrongful
and, therefore, was not privileged rather than the defendant’s burden to prove,
as an affirmative defense, that it’s [sic] conduct was not independently wrongful
and therefore was privileged.” (Bed, Bath & Beyond of La Jolla, Inc. v. La
Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 881 [60
Cal.Rptr.2d 830].)
• There are other privileges that a defendant could assert in appropriate cases,
such as the “manager’s privilege.” (See Halvorsen v. Aramark Uniform
Services, Inc. (1998) 65 Cal.App.4th 1383, 1391–1392 [77 Cal.Rptr.2d 383].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 751–754
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.104 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.33 (Matthew
1220
Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.36 (Matthew
Bender)
1221
1223
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 741
14 Witkin, Summary of California Law (10th ed. 2005) Wills, § 553
Ross et al., California Practice Guide: Probate, Ch. 15-A, Will Contests, ¶ 15:115.6
et seq. (The Rutter Group)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133[2][b] (Matthew Bender)
2206–2209. Reserved for Future Use
1224
1226
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2200, Inducing Breach of Contract.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1228
1229
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2201, Intentional Interference With
Contractual Relations—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
1231
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1232
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2202, Intentional Interference With
1234
1235
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of defendant]’s wrongful conduct a substantial factor
in causing harm to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1237
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2204, Negligent Interference With
Prospective Economic Relations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2204–VF-2299. Reserved for Future Use
1238
INSURANCE LITIGATION
INSURANCE LITIGATION
1240
1242
1245
• Temporary life insurance coverage “is not terminated until the applicant
receives from the insurer both a notice of the rejection of his application and a
refund of his premium.” (Smith v. Westland Life Insurance Co. (1975) 15 Cal.3d
111, 120 [123 Cal.Rptr. 649, 539 P.2d 433].)
• “Under California law, a contract of temporary insurance may arise from
completion of an application for insurance and payment of the first premium if
the language of the application would lead an ordinary lay person to conclude
that coverage was immediate.” (Ahern v. Dillenback (1991) 1 Cal.App.4th 36,
47 [1 Cal.Rptr.2d 339] [automobile insurance].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 37–39
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 2:134–2:137, 6:428–6:448
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies,
§ 9.07 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.19–120.20
(Matthew Bender)
1247
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 64
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Practice
And Procedure—Trial, ¶¶ 15:911–15:912 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502
(Matthew Bender)
1249
1250
forming the basis of its claim is within the basic scope of insurance coverage.
And, once an insured has made this showing, the burden is on the insurer to
prove the claim is specifically excluded.’ . . . [¶] We see no reason not to apply
this rule to a policy that has been lost or destroyed without fraudulent intent on
the part of the insured. Thus, the claimant has the burden of proving (1) the fact
that he or she was insured under the lost policy during the period in issue, and
(2) the substance of each policy provision essential to the claim for relief, i.e.,
essential to the particular coverage that the insured claims. Which provisions
those are will vary from case to case; the decisions often refer to them simply
as the material terms of the lost policy. In turn, the insurer has the burden of
proving the substance of any policy provision ‘essential to the . . . defense,’
i.e., any provision that functions to defeat the insured’s claim. Those provisions,
too, will be case specific.” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1068,
internal citations and footnotes omitted.)
• “A corollary of the rule that the contents of lost documents may be proved by
secondary evidence is that the law does not require the contents of such
documents be proved verbatim.” (Dart Industries, Inc., supra, 28 Cal.4th at p.
1069.)
• “The rule . . . for the admission of secondary evidence of a lost paper, requires
‘that a bona fide and diligent search has been unsuccessfully made for it in the
place where it was most likely to be found;’ and further, ‘the party is expected
to show that he has in good faith exhausted in a reasonable degree all the
sources of information and means of discovery which the nature of the case
would naturally suggest, and which were accessible to him.’ ” (Dart Industries,
Inc., supra, 28 Cal.4th at p. 1068, internal citation omitted.)
• “No fixed rule as to the necessary proof to establish loss [of a written
instrument], or what constitutes reasonable search, can be formulated. . . . The
sole object of such proof is to raise a reasonable presumption merely that the
instrument is lost, and this is a preliminary inquiry addressed to the discretion
of the judge.” (Kenniff v. Caulfield (1903) 140 Cal. 34, 41 [73 P. 803].)
• “Preliminary proof of the loss or destruction is required and it is committed to
the trial court’s discretion to determine whether the evidence so offered is or is
not sufficient.” (Guardianship of Levy (1955) 137 Cal.App.2d 237, 249 [290
P.2d 320].)
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 48–50,
59–60, 63, 65
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:978–15:994 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, § 8.8
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
1252
1253
You have heard evidence that the claimed loss was caused by a
combination of covered and excluded risks under the insurance policy.
When a loss is caused by a combination of covered and excluded risks
under the policy, the loss is covered only if the most important or
predominant cause is a covered risk.
[[Name of defendant] claims that [name of plaintiff]’s loss is not covered
because the loss was caused by a risk excluded under the policy. To
succeed, [name of defendant] must prove that the most important or
predominant cause of the loss was [describe excluded peril or event],
which is a risk excluded under the policy.]
[or]
[[Name of plaintiff] claims that the loss was caused by a risk covered
under the policy. To succeed, [name of plaintiff] must prove that the most
important or predominant cause of the loss was [describe covered peril
or event], which is a risk covered under the policy.]
in motion—is the cause to which the loss is to be attributed, though the other
causes may follow it, and operate more immediately in producing the disaster.”
(Sabella v. Wisler (1963) 59 Cal.2d 21, 31–32 [27 Cal.Rptr. 689, 377 P.2d 889],
internal quotation marks and citation omitted.)
• “Sabella defined ‘efficient proximate cause’ alternatively as the ‘one that sets
others in motion,’ and as ‘the predominating or moving efficient cause.’ We use
the term ‘efficient proximate cause’ (meaning predominating cause) when
referring to the Sabella analysis because we believe the phrase ‘moving cause’
can be misconstrued to deny coverage erroneously, particularly when it is
understood literally to mean the ‘triggering’ cause.” (Garvey v. State Farm Fire
& Casualty Co. (1989) 48 Cal.3d 395, 403 [257 Cal.Rptr. 292, 770 P.2d 704],
internal citations omitted.)
• “The efficient proximate cause referred to in Sabella has also been called the
predominant cause or the most important cause of the loss. ‘By focusing the
causal inquiry on the most important cause of a loss, the efficient proximate
cause doctrine creates a “workable rule of coverage that provides a fair result
within the reasonable expectations of both the insured and the insurer.” ’ ”
(Vardanyan v. AMCO Ins. Co. (2015) 243 Cal.App.4th 779, 787 [197
Cal.Rptr.3d 195], internal citation omitted.)
• “[T]he ‘cause’ of loss in the context of a property insurance contract is totally
different from that in a liability policy. This distinction is critical to the
resolution of losses involving multiple causes. Frequently property losses occur
which involve more than one peril that might be considered legally
significant. . . . ‘The task becomes one of identifying the most important cause
of the loss and attributing the loss to that cause.’ [¶] On the other hand, the
right to coverage in the third party liability insurance context draws on
traditional tort concepts of fault, proximate cause and duty.” (Garvey, supra, 48
Cal.3d at pp. 406–407, internal quotation marks, italics, and citations omitted.)
• “[I]n an action upon an all-risks policy (unlike a specific peril policy), the
insured does not have to prove that the peril proximately causing his loss was
covered by the policy. This is because the policy covers all risks save for those
risks specifically excluded by the policy. The insurer, though, since it is denying
liability upon the policy, must prove the policy’s noncoverage of the insured’s
loss—that is, that the insured’s loss was proximately caused by a peril
specifically excluded from the coverage of the policy.” (Vardanyan, supra, 243
Cal.App.4th at pp. 796−797, original italics.)
• “A policy cannot extend coverage for a specified peril, then exclude coverage
for a loss caused by a combination of the covered peril and an excluded peril,
without regard to whether the covered peril was the predominant or efficient
proximate cause of the loss. Other Coverage 9 identifies the perils that are
covered when the loss involves collapse. If any other peril contributes to the
loss, whether the loss is covered or excluded depends upon which peril is the
predominant cause of the loss. To the extent the term ‘caused only by one or
more’ of the listed perils can be construed to mean the contribution of any
1255
unlisted peril, in any way and to any degree, would result in the loss being
excluded from coverage, the provision is an unenforceable attempt to contract
around the efficient proximate cause doctrine. ¶ Accordingly, CACI No. 2306
. . . was the correct instruction to give to the jury.” Vardanyan, supra, 243
Cal.App.4th at p. 796.)
• “[T]he scope of coverage under an all-risk homeowner’s policy includes all
risks except those specifically excluded by the policy. When a loss is caused by
a combination of a covered and specifically excluded risks, the loss is covered
if the covered risk was the efficient proximate cause of the loss. . . . [T]he
question of what caused the loss is generally a question of fact, and the loss is
not covered if the covered risk was only a remote cause of the loss, or the
excluded risk was the efficient proximate, or predominate, cause.” (State Farm
Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2
Cal.Rptr.2d 183, 820 P.2d 285], internal citation omitted.)
• “[A]n insurer is not absolutely prohibited from drafting and enforcing policy
provisions that provide or leave intact coverage for some, but not all,
manifestations of a particular peril. This is, in fact, an everyday practice that
normally raises no questions regarding section 530 or the efficient proximate
cause doctrine.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th
747, 759 [27 Cal.Rptr.3d 648, 110 P.3d 903].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 6-E, First Party
Coverages—Causation Principles, ¶¶ 6:134–6:143, 6:253 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.42
3 California Insurance Law & Practice, Ch. 9, Homeowners and Related Policies,
§ 36.42 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.113
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.50 (Matthew
Bender)
1256
1259
New September 2003; Revised April 2004, October 2004, June 2015
Directions for Use
This instruction presents an insurer’s affirmative defense to a claim for coverage.
The defense is based on a misrepresentation or omission made by the insured in the
application for the insurance. (See Douglas v. Fid. Nat’l Ins. Co. (2014) 229
Cal.App.4th 392, 408 [177 Cal.Rptr.3d 271].) If the policy at issue is a standard
fire insurance policy, replace “intentionally or unintentionally” in element 2 with
“willfully.” (See Ins. Code, § 2071.) Otherwise, the insurer is not required to prove
an intent to deceive; negligence or inadvertence is enough if the misrepresentation
or omission is material. (Douglas, supra, 229 Cal.App.4th at p. 408.) Element 5
expresses materiality.
Element 3 applies only if plaintiff omitted information, not if he or she
misrepresented information.
While no intent to mislead is required, the insured must know the facts that
constitute the omission or misrepresentation (see element 4). For example, if the
application does not disclose that property on which insurance is sought is being
used commercially, the applicant must have known that the property is being used
commercially. (See Ins. Code, § 332.) It is not a defense, however, if the insured
gave incorrect or incomplete responses on the application because he or she failed
to appreciate the significance of some information known to him or her. (See
1260
Thompson v. Occidental Life Insurance Co. of California (1973) 9 Cal.3d 904, 916
[109 Cal.Rptr. 473, 513 P.2d 353].)
If it is alleged that omission occurred in circumstances other than a written
application, this instruction should be modified accordingly.
Sources and Authority
• Rescission of Contract. Civil Code section 1689(b)(1).
• Time of Insurer’s Rescission of Policy. Insurance Code section 650.
• Concealment by Failure to Communicate. Insurance Code section 330.
• Concealment Entitles Insurer to Rescind. Insurance Code section 331.
• Duty to Communicate in Good Faith. Insurance Code section 332.
• Materiality. Insurance Code section 334.
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “It is well established that material misrepresentations or concealment of
material facts in an application for insurance entitle an insurer to rescind an
insurance policy, even if the misrepresentations are not intentionally made.
Additionally, ‘[a] misrepresentation or concealment of a material fact in an
insurance application also establishes a complete defense in an action on the
policy. [Citations.] As with rescission, an insurer seeking to invalidate a policy
based on a material misrepresentation or concealment as a defense need not
show an intent to deceive. [Citations.]’ ” (Douglas, supra, 229 Cal.App.4th at p.
408, internal citations omitted.)
• “When the [automobile] insurer fails . . . to conduct . . . a reasonable
investigation [of insurability] it cannot assert . . . a right of rescission” under
section 650 of the Insurance Code as an affirmative defense to an action by an
injured third party. (Barrera v. State Farm Mutual Automobile Insurance Co.
(1969) 71 Cal.2d 659, 678 [79 Cal.Rptr. 106, 456 P.2d 674].)
• “[A]n insurer has a right to know all that the applicant for insurance knows
regarding the state of his health and medical history. Material misrepresentation
or concealment of such facts [is] grounds for rescission of the policy, and an
actual intent to deceive need not be shown. Materiality is determined solely by
the probable and reasonable effect [that] truthful answers would have had upon
the insurer. The fact that the insurer has demanded answers to specific questions
in an application for insurance is in itself usually sufficient to establish
materiality as a matter of law.” (Thompson, supra, 9 Cal.3d at pp. 915–916,
internal citations omitted.)
• “[I]f the applicant for insurance had no present knowledge of the facts sought,
or failed to appreciate the significance of information related to him, his
incorrect or incomplete responses would not constitute grounds for rescission.
1261
omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation ¶¶ 5:143–5:146,
5:153–5:159.1, 5:160–5:287, 15:241–15:256 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Rescission and Reformation, §§ 21.2–21.12, 21.35–21.37
2 California Insurance Law & Practice, Ch. 8, The Insurance Contract, § 8.10[1]
(Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.18
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250–120.251,
120.260 (Matthew Bender)
1263
[Name of insurer] claims that [name of insured] [is not entitled to recover
under/is not entitled to benefits under] the insurance policy because [he/
she] made a false claim. To establish this claim, [name of insurer] must
prove all of the following:
1. That [name of insured] made a claim for insurance benefits under
a policy with [name of insurer];
2. That [name of insured] represented to [name of insurer] that
[insert allegedly false representation];
3. That [name of insured]’s representation was not true;
4. That [name of insured] knew that the representation was not
true;
5. That [name of insured] intended that [name of insurer] rely on this
representation in [investigating/paying] [name of insured]’s claim
for insurance benefits; and
6. That the representation that [insert allegedly false representation],
if true, would affect a reasonable insurance company’s
[investigation of/decision to pay] a claim for insurance benefits.
1265
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because it did not receive timely
notice of the [lawsuit/[insert other]]. To succeed, [name of defendant] must
prove both of the following:
1. That [name of plaintiff] did not give [name of defendant] notice [or
that [name of defendant] did not receive notice by some other
means] [within the time specified in the policy/within a
reasonable time] of the [lawsuit/[insert other]]; and
2. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to give timely notice.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, with timely notice, it would have [taken steps that would
have substantially reduced or eliminated [name of plaintiff]’s liability]
[or] [settled for a substantially smaller amount].
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “If the insurer asserts that the underlying claim is not a covered occurrence or
is excluded from basic coverage, then earlier notice would only result in earlier
denial of coverage. To establish actual prejudice, the insurer must show a
substantial likelihood that, with timely notice, and notwithstanding a denial of
coverage or reservation of rights, it would have settled the claim for less or
taken steps that would have reduced or eliminated the insured’s liability.”
(Safeco Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992, 1004 [88
Cal.Rptr.3d 730].)
• “California’s ‘notice-prejudice’ rule operates to bar insurance companies from
disavowing coverage on the basis of lack of timely notice unless the insurance
company can show actual prejudice from the delay. The rule was developed in
the context of ‘occurrence’ policies.” (Pacific Employers Insurance Co., supra,
221 Cal.App.3d at p. 1357.)
• “[The notice-prejudice rule] does not apply to every time limit on any insurance
policy. [¶] Where the policy provides that special coverage for a particular type
of claim is conditioned on express compliance with a reporting requirement, the
time limit is enforceable without proof of prejudice. Such reporting time limits
often are found in provisions for expanded liability coverage that the insurer
usually does not cover. The insurer makes an exception and extends special
coverage conditioned on compliance with a reporting requirement and other
conditions. The reporting requirement becomes ‘the written notice necessary to
trigger the expanded coverage afforded’ by the special policy provision.”
(Venoco, Inc. v. Gulf Underwriters Ins. Co. (2009) 175 Cal.App.4th 750, 760
[96 Cal.Rptr.3d 409], internal citations omitted.)
• “With respect to notice provisions, one Court of Appeal has explained: ‘[A]n
“occurrence” policy provides coverage for any acts or omissions that arise
during the policy period even though the claim is made after the policy has
expired.’ . . . [¶] . . . [¶] Occurrence policies were developed to provide
coverage for damage caused by collision, fire, war, and other identifiable
events. . . . Because the occurrence of these events was relatively easy to
ascertain, the insurer was able to ‘conduct a prompt investigation of the incident
. . . .’ . . . Notice provisions contained in such occurrence policies were
‘included to aid the insurer in investigating, settling, and defending claims[.]’
. . . If an insured breaches a notice provision, resulting in substantial prejudice
to the defense, the insurer is relieved of liability.” (Belz v. Clarendon America
Ins. Co. (2007) 158 Cal.App.4th 615, 626 [69 Cal.Rptr.3d 864], internal citation
omitted.)
• “The ‘general rule’ is that an insurer is not bound by a judgment unless it had
notice of the pendency of the action. . . . However, if an insurer denies
coverage to the insured, the insured’s contractual obligation to notify the insurer
ceases.” (Samson v. Transamerica Insurance Co. (1981) 30 Cal.3d 220, 238
[178 Cal.Rptr. 343, 636 P.2d 32], internal citations omitted.)
1267
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:917–15:920
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, §§ 8.24–8.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.65[1]–[9] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.500
(Matthew Bender)
1268
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because [name of plaintiff] failed
to cooperate in [his/her/its] defense. To succeed, [name of defendant]
must prove all of the following:
1. That [name of plaintiff] failed to cooperate in the defense of the
lawsuit against [him/her/it];
2. That [name of defendant] used reasonable efforts to obtain [name
of plaintiff]’s cooperation; and
3. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to cooperate in [his/her/its] defense.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, if [name of plaintiff] had cooperated, [name of defendant]
would have [taken steps that would have substantially reduced or
eliminated [name of plaintiff]’s liability] [or] [settled for a substantially
smaller amount].
• “[W]e apprehend that Campbell stands for these propositions: (1) that breach by
an insured of a cooperation . . . clause may not be asserted by an insurer
unless the insurer was substantially prejudiced thereby; (2) that prejudice is not
presumed as a matter of law from such breach; (3) that the burden of proving
prejudicial breach is on the insurer; and (4) that, although the issue of prejudice
is ordinarily one of fact, it may be established as a matter of law by the facts
proved.” (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134,
141 [85 Cal.Rptr. 693].)
• “ ‘[C]ooperation clauses serve an important purpose. “[A] condition of a policy
requiring the cooperation and assistance of the assured in opposing a claim or
an action lodged against him by an injured person is material to the risk and of
the utmost importance in a practical sense. Without such cooperation and
assistance the insurer is severely handicapped and may in some instances be
absolutely precluded from advancing any defense.” . . . “[S]uch provisions
‘enable the [insurer] to possess itself of all knowledge, and all information as to
other sources and means of knowledge, in regard to facts, material to [its]
rights, to enable [it] to decide upon [its] obligations, and to protect [itself]
against false claims.’ ” . . . Where an insured violates a cooperation clause, the
insurer’s performance is excused if its ability to provide a defense has been
substantially prejudiced.’ ” (Belz v. Clarendon America Ins. Co. (2007) 158
Cal.App.4th 615, 626 [69 Cal.Rptr.3d 864].)
• “[A]n insurer, in order to establish it was prejudiced by the failure of the
insured to cooperate in his defense, must establish at the very least that if the
cooperation clause had not been breached there was a substantial likelihood the
trier of fact would have found in the insured’s favor.” (Billington v.
Interinsurance Exchange of Southern California (1969) 71 Cal.2d 728, 737 [79
Cal.Rptr. 326, 456 P.2d 982].)
• “[I]f the trial court finds . . . that the insurer failed to diligently seek its
insured’s presence a finding that he breached the cooperation clause would not
be justified.” (Billington, supra, 71 Cal.2d at p. 744.)
• “[P]rejudice is not shown simply by displaying end results; the probability that
such results could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:917–15:919
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Insured’s Role in Defense, §§ 11.2–11.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.64[1]–[11] (Matthew Bender)
1270
[Name of defendant] claims that it does not have to pay [specify, e.g., the
amount of the settlement] because [name of plaintiff] made a voluntary
payment. To succeed on this defense, [name of defendant] must prove the
following:
1. [Select either or both of the following:]
1. [That [name of plaintiff] made a payment to [name of third party
claimant] in [partial/full] settlement of [name of third party
claimant]’s claim against [name of plaintiff]; [or]]
1. [That [name of plaintiff] [made a payment/ [or] assumed an
obligation/ [or] incurred an expense] to [name] with regard to
[name of third party claimant]’s claim against [name of plaintiff]];
1. AND
2. That [name of defendant] did not give its consent or approval for
the [payment/ [or] obligation/ [or] expense].
settlement and then maintain or assign an action against the insurer for breach
of the duty to defend. In the subsequent action the amount of the settlement will
be presumptive evidence of the amount of the insured’s liability.” (21st Century
Ins. Co., supra, 240 Cal.App.4th at p. 328, original italics.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 320
Croskey et al., California Practice Guide: Insurance Litigation ¶¶ 7:439.5–7:439.10
(The Rutter Group)
California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar) §§ 2.7,
3.27, 8.32, 11.14, 23.38
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and
Contribution, § 300.73[6] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, §§ 308.500,
308.502 (Matthew Bender)
2323–2329. Reserved for Future Use
1273
conduct, regardless of the actor’s motive.’ . . . [A]n insured plaintiff need only
show, for example, that the insurer unreasonably refused to pay benefits or
failed to accept a reasonable settlement offer; there is no requirement to
establish subjective bad faith.” (Bosetti v. United States Life Ins. Co. in the City
of New York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d 744], original
italics, internal citations omitted.)
• “Bad faith may involve negligence, or negligence may be indicative of bad
faith, but negligence alone is insufficient to render the insurer liable.” Brown v.
Guarantee Ins. Co. (1957) 155 Cal.App.2d 679, 689 [319 P.2d 69].)
• “Thus, a breach of the implied covenant of good faith and fair dealing involves
something more than a breach of the contract or mistaken judgment. There must
be proof the insurer failed or refused to discharge its contractual duties not
because of an honest mistake, bad judgment, or negligence, ‘but rather by a
conscious and deliberate act, which unfairly frustrates the agreed common
purposes and disappoints the reasonable expectations of the other party thereby
depriving that party of the benefits of the agreement.’ ” (Century Surety Co. v.
Polisso (2006) 139 Cal.App.4th 922, 949 [43 Cal.Rptr.3d 468], internal citations
omitted.)
• “[I]f the insurer denies benefits unreasonably (i.e., without any reasonable basis
for such denial), it may be exposed to the full array of tort remedies, including
possible punitive damages.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1073 [56 Cal.Rptr.3d 312].)
• “Subterfuges and evasions violate the obligation of good faith in performance
even though the actor believes his conduct to be justified. But the obligation
goes further: bad faith may be overt or may consist of inaction, and fair dealing
may require more than honesty. A complete catalogue of types of bad faith is
impossible, but the following types are among those which have been
recognized in judicial decisions: evasion of the spirit of the bargain, lack of
diligence and slacking off, willful rendering of imperfect performance, abuse of
a power to specify terms, and interference with or failure to cooperate in the
other party’s performance.” (R. J. Kuhl Corp. v. Sullivan (1993) 13 Cal.App.4th
1589, 1602 [17 Cal.Rptr.2d 425].)
• “[A]n insurer is not required to pay every claim presented to it. Besides the
duty to deal fairly with the insured, the insurer also has a duty to its other
policyholders and to the stockholders (if it is such a company) not to dissipate
its reserves through the payment of meritless claims. Such a practice inevitably
would prejudice the insurance seeking public because of the necessity to
increase rates, and would finally drive the insurer out of business.” (Austero v.
National Cas. Co. (1978) 84 Cal.App.3d 1, 30 [148 Cal.Rptr. 653], overruled on
other grounds in Egan, supra, 24 Cal.3d at p. 824 fn. 7.)
• “Unique obligations are imposed upon true fiduciaries which are not found in
the insurance relationship. For example, a true fiduciary must first consider and
always act in the best interests of its trust and not allow self-interest to
1275
overpower its duty to act in the trust’s best interests. An insurer, however, may
give its own interests consideration equal to that it gives the interests of its
insured; it is not required to disregard the interests of its shareholders and other
policyholders when evaluating claims; and it is not required to pay noncovered
claims, even though payment would be in the best interests of its insured.”
(Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148–1149 [271
Cal.Rptr. 246], internal citations omitted.)
• “[I]n California, an insurer has the same duty to act in good faith in the
uninsured motorist context as it does in any other insurance context.” (Maslo v.
Ameriprise Auto & Home Ins. (2014) 227 Cal.App.4th 626, 636 [173
Cal.Rptr.3d 854].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 239
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 11-B, Theories
For Extracontractual Liability—In General, ¶¶ 11:7–11:8.1 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-A,
Definition of Terms, ¶¶ 12:1–12:10 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-B, Capsule
History Of Insurance “Bad Faith” Cases, ¶¶ 12:13–12:23 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-C, Theory
Of Recovery—Breach Of Implied Covenant Of Good Faith And Fair Dealing (“Bad
Faith”), ¶¶ 12:27–12:54 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-D, Who
May Sue For Tortious Breach Of Implied Covenant (Proper Plaintiffs),
¶¶ 12:56–12:90.17 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-E, Persons
Who May Be Sued For Tortious Breach Of Implied Covenant (Proper Defendants),
¶¶ 12:92–12:118 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-F,
Compare—Breach Of Implied Covenant By Insured, ¶¶ 12:119–12:121 (The Rutter
Group)
1 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar),
Overview of Rights and Obligations of Policy, §§ 2.9–2.15
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[1][a]–[c] (Matthew Bender)
1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of
the Parties, § 13.23 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, §§ 24.10, 24.20–24.21, 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24[1]
(Matthew Bender)
1276
1277
New September 2003; Revised December 2007, April 2008, December 2009,
December 2015
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
If there is a genuine issue as to the insurer’s liability under the policy for the claim
asserted by the insured, there can be no bad-faith liability imposed on the insurer
for advancing its side of that dispute. This is known as the “genuine dispute”
doctrine. The genuine-dispute doctrine is subsumed within the test of
reasonableness or proper cause (element 3). No specific instruction on the doctrine
need be given. (See McCoy v. Progressive West Ins. Co. (2009) 171 Cal.App.4th
785, 792–794 [90 Cal.Rptr.3d 74].)
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
1278
undisputed or indisputable that the basis for the insurer’s denial of benefits was
reasonable—for example, where even under the plaintiff’s version of the facts
there is a genuine issue as to the insurer’s liability under California law. . . .
On the other hand, an insurer is not entitled to judgment as a matter of law
where, viewing the facts in the light most favorable to the plaintiff, a jury could
conclude that the insurer acted unreasonably.’ ” (Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 724 [68 Cal.Rptr.3d 746, 171 P.3d 1082], original italics,
internal citations omitted.)
• “We evaluate the reasonableness of the insurer’s actions and decision to deny
benefits as of the time they were made rather than with the benefit of
hindsight.” (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 949 [43
Cal.Rptr.3d 468].)
• “[I]f the insurer denies benefits unreasonably (i.e., without any reasonable basis
for such denial), it may be exposed to the full array of tort remedies, including
possible punitive damages.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1073 [56 Cal.Rptr.3d 312].)
• “While many, if not most, of the cases finding a genuine dispute over an
insurer’s coverage liability have involved legal rather than factual disputes, we
see no reason why the genuine dispute doctrine should be limited to legal
issues. That does not mean, however, that the genuine dispute doctrine may
properly be applied in every case involving purely a factual dispute between an
insurer and its insured. This is an issue which should be decided on a case-by-
case basis.” (Chateau Chamberay Homeowners Assn., supra, 90 Cal.App.4th at
p. 348, original italics, footnote and internal citations omitted.)
• “[I]f the conduct of [the insurer] in defending this case was objectively
reasonable, its subjective intent is irrelevant.” (Bosetti v. United States Life Ins.
Co. in the City of New York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d
744]; cf. Carma Developers (Cal.), Inc. v. Marathon Development California,
Inc. (1992) 2 Cal.4th 342, 372 [6 Cal.Rptr.2d 467, 826 P.2d 710] [“[I]t has been
suggested the covenant has both a subjective and objective aspect—subjective
good faith and objective fair dealing. A party violates the covenant if it
subjectively lacks belief in the validity of its act or if its conduct is objectively
unreasonable.”].)
• “[W]hile an insurer’s subjective bad intentions are not a sufficient basis on
which to establish a bad faith cause of action, an insurer’s subjective mental
state may nonetheless be a circumstance to be considered in the evaluation of
the objective reasonableness of the insurer’s actions.” (Bosetti, supra, 175
Cal.App.4th at p. 1239, original italics.)
• “[A]n insured cannot maintain a claim for tortious breach of the implied
covenant of good faith and fair dealing absent a covered loss. If the insurer’s
investigation—adequate or not—results in a correct conclusion of no coverage,
no tort liability arises for breach of the implied convenant.” (Benavides v. State
Farm General Ins. Co. (2006) 136 Cal.App.4th 1241, 1250 [39 Cal.Rptr.3d
1280
650], internal citations omitted; cf. Brehm v. 21st Century Ins. Co. (2008) 166
Cal.App.4th 1225, 1236 [83 Cal.Rptr.3d 410] [“[B]reach of a specific provision
of the contract is not a necessary prerequisite to a claim for breach of the
implied covenant of good faith and fair dealing. . . . [E]ven an insurer that
pays the full limits of its policy may be liable for breach of the implied
covenant, if improper claims handling causes detriment to the insured”].)
• “ ‘[D]enial of a claim on a basis unfounded in the facts known to the insurer, or
contradicted by those facts, may be deemed unreasonable. “A trier of fact may
find that an insurer acted unreasonably if the insurer ignores evidence available
to it which supports the claim. The insurer may not just focus on those facts
which justify denial of the claim.” ’ ” (Maslo v. Ameriprise Auto & Home Ins.
(2014) 227 Cal.App.4th 626, 634 [173 Cal.Rptr.3d 854].)
• “We conclude . . . that the duty of good faith and fair dealing on the part of
defendant insurance companies is an absolute one. . . . [T]he nonperformance
by one party of its contractual duties cannot excuse a breach of the duty of
good faith and fair dealing by the other party while the contract between them
is in effect and not rescinded.” (Gruenberg, supra, 9 Cal.3d at p. 578.)
• “Thus, an insurer may be liable for bad faith in failing to attempt to effectuate a
prompt and fair settlement (1) where it unreasonably demands arbitration, or (2)
where it commits other wrongful conduct, such as failing to investigate a claim.
An insurer’s statutory duty to attempt to effectuate a prompt and fair settlement
is not abrogated simply because the insured’s damages do not plainly exceed
the policy limits. Nor is the insurer’s duty to investigate a claim excused by the
arbitrator’s finding that the amount of damages was lower than the insured’s
initial demand. Even where the amount of damages is lower than the policy
limits, an insurer may act unreasonably by failing to pay damages that are
certain and demanding arbitration on those damages.” (Maslo, supra, 227
Cal.App.4th at pp. 638–639 [uninsured motorist coverage case].)
• “[T]he insurer’s duty to process claims fairly and in good faith [is] a
nondelegable duty.” (Hughes v. Blue Cross of Northern California (1989) 215
Cal.App.3d 832, 848 [263 Cal.Rptr. 850].)
• “[I]n [a bad-faith action] ‘damages for emotional distress are compensable as
incidental damages flowing from the initial breach, not as a separate cause of
action.’ Such claims of emotional distress must be incidental to ‘a substantial
invasion of property interests.’ ” (Major v. Western Home Ins. Co. (2009) 169
Cal.App.4th 1197, 1214 [87 Cal.Rptr.3d 556], original italics, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 240–242
Croskey et al., California Practice Guide: Insurance Litigation. Ch. 12C-C, Bad
Faith—Requirements for First Party Bad Faith Action, ¶¶ 12:822–12:1016 (The
Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
1281
1282
New September 2003; Revised December 2005, December 2007, April 2008,
December 2015, June 2016
Directions for Use
This instruction sets forth a claim for breach of the implied covenant of good faith
and fair dealing based on the insurer’s failure or refusal to conduct a proper
investigation of the plaintiff’s claim. The claim alleges that the insurer acted
unreasonably, that is, without proper cause, by failing to properly investigate the
claim. (See Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146
Cal.App.4th 831, 837 [53 Cal.Rptr.3d 245].)
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “[A]n insurer may breach the covenant of good faith and fair dealing when it
1283
medical foundation.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713,
722 [68 Cal.Rptr.3d 746, 171 P.3d 1082], original italics.)
• “[W]hether an insurer breached its duty to investigate [is] a question of fact to
be determined by the particular circumstances of each case.” (Paulfrey v. Blue
Chip Stamps (1983) 150 Cal.App.3d 187, 196 [197 Cal.Rptr. 501].)
• “[L]iability in tort arises only if the conduct was unreasonable, that is, without
proper cause.” (Rappaport-Scott, supra, 146 Cal.App.4th at p. 837.)
• “[W]ithout actual presentation of a claim by the insured in compliance with
claims procedures contained in the policy, there is no duty imposed on the
insurer to investigate the claim.” (California Shoppers, Inc. v. Royal Globe
Insurance Co. (1985) 175 Cal.App.3d 1, 57 [221 Cal.Rptr. 171].)
• “It would seem reasonable that any responsibility to investigate on an insurer’s
part would not arise unless and until the threshold issue as to whether a claim
was filed, or a good faith effort to comply with claims procedure was made, has
been determined. In no event could an insured fail to keep his/her part of the
bargain in the first instance, and thereafter seek recovery for breach of a duty to
pay seeking punitive damages based on an insurer’s failure to investigate a
nonclaim.” (Paulfrey, supra, 150 Cal.App.3d at pp. 199–200.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 245
Croskey et al., California Practice Guide: Insurance Litigation, Chapter 12C-D, Bad
Faith—First Party Cases—Application—Matters Held “Unreasonable”
¶¶ 12:848–12:904 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Investigating the Claim, §§ 9.2, 9.14–9.22
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.04[1]–[3] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.153, 120.184
(Matthew Bender)
1285
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 11:46–11:47, 12:956–12:961
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.05 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.22 (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.383–120.384,
120.390 (Matthew Bender)
1288
New September 2003; Revised December 2007, June 2012, December 2012, June
2016
Directions for Use
This instruction is for use in an “excess judgment” case; that is one in which
judgment was against the insured for an amount over the policy limits, after the
insurer rejected a settlement demand within policy limits.
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
If it is alleged that a demand was made in excess of limits and there is a claim that
1289
the defendant should have contributed the policy limits, then this instruction will
need to be modified.
This instruction should also be modified if the insurer did not accept the policy-
limits demand because of potential remaining exposure to the insured, such as a
contractual indemnity claim or exposure to other claimants.
Under this instruction, if the jury finds that the policy-limits demand was
reasonable, then the insurer is automatically liable for the entire excess judgment.
Language from the California Supreme Court supports this view of what might be
called insurer “strict liability” if the demand is reasonable. (See Johansen v.
California State Auto. Assn. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123
Cal.Rptr. 288, 538 P.2d 744] [“[W]henever it is likely that the judgment against the
insured will exceed policy limits ‘so that the most reasonable manner of disposing
of the claim is a settlement which can be made within those limits, a consideration
in good faith of the insured’s interest requires the insurer to settle the claim,’ ”
italics added].)
However, there is language in numerous cases, including several from the
California Supreme Court, that would require the plaintiff to also prove that the
insurer’s rejection of the demand was “unreasonable.” (See, e.g., Hamilton v.
Maryland Cas. Co. (2002) 27 Cal.4th 718, 724–725 [117 Cal.Rptr.2d 318, 41 P.3d
128] [“An unreasonable refusal to settle may subject the insurer to liability for the
entire amount of the judgment rendered against the insured, including any portion
in excess of the policy limits,” italics added]; Graciano v. Mercury General Corp.
(2014) 231 Cal.App.4th 414, 425 [179 Cal.Rptr.3d 717] [claim for bad faith based
on an alleged wrongful refusal to settle also requires proof the insurer
unreasonably failed to accept an otherwise reasonable offer within the time
specified by the third party for acceptance, italics added].) Under this view, even if
the policy-limits demand was reasonable, the insurer may assert that it had a
legitimate reason for rejecting it. However, this option, if it exists, is not available
in a denial of coverage case. (Johansen, supra, 15 Cal.3d at pp. 15−16.)
None of these cases, however, neither those seemingly creating strict liability nor
those seemingly providing an opportunity for the insurer to assert that its rejection
was reasonable, actually discuss, analyze, and apply this standard to reach a result.
All are determined on other issues, leaving the pertinent language as arguably dicta.
For this reason, the committee has elected not to change the elements of the
instruction at this time. Hopefully, some day there will be a definitive resolution
from the courts. Until then, the need for an additional element requiring the
insurer’s rejection of the demand to have been unreasonable is a plausible, but
unsettled, requirement. For a thorough analysis of the issue, see the committee’s
report to the Judicial Council for its June 2016 meeting, found at https://jcc.legistar.
com/View.ashx?M=F&ID=4496094&GUID=53DBD55C-AF07-498F-B665-
D6BDD6DEFB28.
1290
Court (1999) 71 Cal.App.4th 782, 788 [84 Cal.Rptr.2d 43], internal citations
omitted.)
• “An insurer’s wrongful failure to settle may be actionable even without
rendition of an excess judgment. An insured may recover for bad faith failure to
settle, despite the lack of an excess judgment, where the insurer’s misconduct
goes beyond a simple failure to settle within policy limits or the insured suffers
consequential damages apart from an excess judgment.” (Howard v. American
National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 527 [115 Cal.Rptr.3d 42],
internal citations omitted.)
• “ ‘An insurer who denies coverage does so at its own risk and although its
position may not have been entirely groundless, if the denial is found to be
wrongful it is liable for the full amount which will compensate the insured for
all the detriment caused by the insurer’s breach of the express and implied
obligations of the contract.’ Accordingly, contrary to the defendant’s suggestion,
an insurer’s ‘good faith,’ though erroneous, belief in noncoverage affords no
defense to liability flowing from the insurer’s refusal to accept a reasonable
settlement offer.” (Johansen, supra, 15 Cal.3d at pp. 15−16, original italics,
footnotes and internal citation omitted.)
• “[W]here the kind of claim asserted is not covered by the insurance contract
(and not simply the amount of the claim), an insurer has no obligation to pay
money in settlement of a noncovered claim, because ‘The insurer does not . . .
insure the entire range of an insured’s well-being, outside the scope of and
unrelated to the insurance policy, with respect to paying third party
claims. . . .’ ” (Dewitt v. Monterey Ins. Co. (2012) 204 Cal.App.4th 233, 244
[138 Cal.Rptr.3d 705], original italics.)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
(1981) 30 Cal.3d 220, 243 [178 Cal.Rptr. 343, 636 P.2d 32], internal citation
omitted.)
• “An insurer that breaches its duty of reasonable settlement is liable for all the
insured’s damages proximately caused by the breach, regardless of policy limits.
Where the underlying action has proceeded to trial and a judgment in excess of
the policy limits has been entered against the insured, the insurer is ordinarily
liable to its insured for the entire amount of that judgment, excluding any
punitive damages awarded.” (Hamilton, supra, 27 Cal.4th at p. 725, internal
citations omitted.)
• “[I]nsurers do have a ‘selfish’ interest (that is, one that is peculiar to
themselves) in imposing a blanket rule which effectively precludes disclosure of
policy limits, and that interest can adversely affect the possibility that an excess
claim against a policyholder might be settled within policy limits. Thus, a
palpable conflict of interest exists in at least one context where there is no
formal settlement offer. We therefore conclude that a formal settlement offer is
not an absolute prerequisite to a bad faith action in the wake of an excess
1293
verdict when the claimant makes a request for policy limits and the insurer
refuses to contact the policyholder about the request.” (Boicourt v. Amex
Assurance Co. (2000) 78 Cal.App.4th 1390, 1398–1399 [93 Cal.Rptr.3d 763].)
• “For bad faith liability to attach to an insurer’s failure to pursue settlement
discussions, in a case where the insured is exposed to a judgment beyond policy
limits, there must be, at a minimum, some evidence either that the injured party
has communicated to the insurer an interest in settlement, or some other
circumstance demonstrating the insurer knew that settlement within policy limits
could feasibly be negotiated. In the absence of such evidence, or evidence the
insurer by its conduct has actively foreclosed the possibility of settlement, there
is no “opportunity to settle” that an insurer may be taxed with ignoring.” (Reid
v. Mercury Ins. Co. (2013) 220 Cal.App.4th 262, 272 [162 Cal.Rptr.3d 894].)
• “(4) [12:245] Insurer culpability required? A number of cases suggest that
some degree of insurer ‘culpability’ is required before an insurer’s refusal
to settle a third party claim can be found to constitute ‘bad faith.’ [Howard
v. American Nat’l Fire Ins. Co. (2010) 187 CA4th 498, 529, 115 CR3d 42, 69
(quoting text)]
(a) [12:246] Good faith or mistake as excuse: ‘If the insurer has exercised
good faith in all of its dealings . . . and if the settlement which it has rejected
has been fully and fairly considered and has been based upon an honest belief
that the insurer could defeat the action or keep any possible judgment within
the limits of the policy, and its judgments are based on a fair review of the
evidence after reasonable diligence in ascertaining the facts, and upon sound
legal advice, a court should not subject the insurer to further liability if it
ultimately turns out that its judgment is a mistaken judgment.’ [See Brown v.
Guarantee Ins. Co. (1957) 155 CA2d 679, 684, 319 P2d 69, 72 (emphasis
added); Howard v. American Nat’l Fire Ins. Co., supra, 187 CA4th at 529, 115
CR3d at 69—‘an insurer may reasonably underestimate the value of a case, and
thus refuse settlement’ on this basis (acknowledging but not applying rule)]
‘In short, so long as insurers are not subject to a strict liability standard, there
is still room for an honest, innocent mistake.’ [Walbrook Ins. Co. Ltd. v. Liberty
Mut. Ins. Co. (1992) 5 CA4th 1445, 1460, 7 CR2d 513, 521]
1) [12:246.1] Comment: These cases are difficult to reconcile with the
‘only permissible consideration’ standard of a ‘reasonable settlement
demand’ set out in Johansen and CACI 2334 (see ¶ 12:235.1). A possible
explanation is that these cases address the ‘reasonableness’ of the insurer’s
refusal to settle based on a dispute as to the value of the case (or other
matters unrelated to coverage), whereas Johansen addressed
‘reasonableness’ in the context of a coverage dispute (see ¶ 12:235). [See
Howard v. American Nat’l Fire Ins. Co., supra, 187 CA4th at 529, 115 CR3d
at 69 (quoting text)]” (Croskey et al., California Practice Guide: Insurance
Litigation, Ch. 12B-B, Bad Faith Refusal To Settle, ¶¶ 12:245–12:246.1 (The
Rutter Group), bold in original.)
1294
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 257–258
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-A, Implied
Covenant Liability—Introduction, ¶¶ 12:202–12:224 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-B, Bad
Faith Refusal To Settle, ¶¶ 12:226–12:548 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-C, Bad
Faith Liability Despite Settlement Of Third Party Claims, ¶¶ 12:575–12:581.12
(The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-D, Refusal
To Defend Cases, ¶¶ 12:582–12:686, (The Rutter Group)
2 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Actions for Failure to Settle, §§ 26.1–26.35
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.07[1]–[3] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.195, 120.199,
120.205, 120.207 (Matthew Bender)
1295
[Name of defendant] did not breach the obligation of good faith and fair
dealing if it reasonably relied on the advice of its lawyer. [Name of
defendant]’s reliance was reasonable if:
1. [Name of defendant] acted in reliance on the opinion and advice
of its lawyer;
2. The lawyer’s advice was based on full disclosure by [name of
defendant] of all relevant facts that it knew, or could have
discovered with reasonable effort;
3. [Name of defendant] reasonably believed the advice of the lawyer
was correct; [and]
4. In relying on its lawyer’s advice, [name of defendant] gave at least
as much consideration to [name of plaintiff]’s interest as it gave
its own interest; [and]
[5. [Name of defendant] was willing to reconsider and act accordingly
when it determined that the lawyer’s advice was incorrect.]
1298
New October 2004; Revised December 2007, December 2014, December 2015
Directions for Use
The instructions in this series assume that the plaintiff is an insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
The court will decide the issue of whether the claim was potentially covered by the
policy. (See California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175
Cal.App.3d 1, 52 [221 Cal.Rptr. 171].) If coverage depends on an unresolved
dispute over a factual question, the very existence of that dispute establishes a
possibility of coverage and thus a duty to defend. (North Counties Engineering,
Inc. v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 922 [169
Cal.Rptr.3d 726].) Therefore, the jury does not resolve factual disputes that
determine coverage.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “A breach of the duty to defend in itself constitutes only a breach of contract,
but it may also violate the covenant of good faith and fair dealing where it
involves unreasonable conduct or an action taken without proper cause. On the
1299
other hand, ‘[i]f the insurer’s refusal to defend is reasonable, no liability will
result.’ ” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. 78
Cal.App.4th 847, 881 [93 Cal.Rptr.2d 364], internal citations omitted.)
• “To prevail in an action seeking declaratory relief on the question of the duty to
defend, ‘the insured must prove the existence of a potential for coverage, while
the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy
coverage; the insurer must prove it cannot.’ The duty to defend exists if the
insurer ‘becomes aware of, or if the third party lawsuit pleads, facts giving rise
to the potential for coverage under the insuring agreement.’ ” (Delgado v.
Interinsurance Exchange of Automobile Club of Southern California (2009) 47
Cal.4th 302, 308 [97 Cal.Rptr.3d 298, 211 P.3d 1083], original italics, internal
citation omitted.)
• “ ‘[A]n insurer has a duty to defend an insured if it becomes aware of, or if the
third party lawsuit pleads, facts giving rise to the potential for coverage under
the insuring agreement. . . . This duty . . . is separate from and broader than
the insurer’s duty to indemnify. . . .’ ‘ “[F]or an insurer, the existence of a duty
to defend turns not upon the ultimate adjudication of coverage under its policy
of insurance, but upon those facts known by the insurer at the inception of a
third party lawsuit. . . . Hence, the duty ‘may exist even where coverage is in
doubt and ultimately does not develop.’ . . .” . . .’ ” (State Farm Fire &
Casualty Co. v. Superior Court (2008) 164 Cal.App.4th 317, 323 [78
Cal.Rptr.3d 828], internal citations omitted.)
• “If any facts stated or fairly inferable in the complaint, or otherwise known or
discovered by the insurer, suggest a claim potentially covered by the policy, the
insurer’s duty to defend arises and is not extinguished until the insurer negates
all facts suggesting potential coverage. On the other hand, if, as a matter of law,
neither the complaint nor the known extrinsic facts indicate any basis for
potential coverage, the duty to defend does not arise in the first instance.”
(GGIS Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1506
[86 Cal.Rptr.3d 515].)
• “In determining its duty to defend, the insurer must consider facts from any
source—the complaint, the insured, and other sources. An insurer does not have
a continuing duty to investigate the potential for coverage if it has made an
informed decision on coverage at the time of tender. However, where the
information available at the time of tender shows no coverage, but information
available later shows otherwise, a duty to defend may then arise.” (American
States Ins. Co. v. Progressive Casualty Ins. Co. (2009) 180 Cal.App.4th 18, 26
[102 Cal.Rptr.3d 591], internal citations omitted.)
• “The duty does not depend on the labels given to the causes of action in the
underlying claims against the insured; ‘instead it rests on whether the alleged
facts or known extrinsic facts reveal a possibility that the claim may be covered
by the policy.’ ” (Travelers Property Casualty Co. of America v. Charlotte
Russe Holding, Inc. (2012) 207 Cal.App.4th 969, 976 [144 Cal.Rptr.3d 12],
1300
soon as possible, both to protect the interests of the insured, and to limit its
own exposure to loss. . . . [T]he duty to defend must be assessed at the outset
of the case.’ It follows that a belated offer to pay the costs of defense may
mitigate damages but will not cure the initial breach of duty.” (Shade Foods,
Inc., supra, 78 Cal.App.4th at p. 881, internal citations omitted.)
• “When a complaint states multiple claims, some of which are potentially
covered by the insurance policy and some of which are not, it is a mixed
action. In these cases, ‘the insurer has a duty to defend as to the claims that are
at least potentially covered, having been paid premiums by the insured therefor,
but does not have a duty to defend as to those that are not, not having been
paid therefor.’ However, in a “ “mixed” action, the insurer has a duty to defend
the action in its entirety.’ Thereafter, the insurance company is entitled to seek
reimbursement for the cost of defending the claims that are not potentially
covered by the policy.” (Gonzalez v. Fire Ins. Exchange (2015) 234 Cal.App.4th
1220, 1231 [184 Cal.Rptr.3d 394], internal citations omitted.)
• “No tender of defense is required if the insurer has already denied coverage of
the claim. In such cases, notice of suit and tender of the defense are excused
because other insurer has already expressed its unwillingness to undertake the
defense.” (Croskey et al., California Practice Guide: Insurance Litigation,
¶ 7:614 (The Rutter Group).)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 297
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-D, Third
Party Cases—Refusal To Defend Cases, ¶¶ 12:598–12:650.5 (The Rutter Group)
2 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Actions for Failure to Defend, §§ 25.1–26.38
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, §§ 82.10–82.16 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
1302
(2007) 148 Cal.App.4th 1062, 1078 [56 Cal.Rptr.3d 312], internal citations
omitted.)
Include only the factors that are relevant to the case.
Sources and Authority
• Bad-Faith Insurance Practices. Insurance Code section 790.03.
• “[Plaintiff] was not seeking to recover on a claim based on a violation of
Insurance Code section 790.03, subdivision (h). Rather, her claim was based on
a claim of common law bad faith arising from [defendant]’s breach of the
implied covenant of good faith and fair dealing which she is entitled to pursue.
[Plaintiff]’s reliance upon the [expert’s] declaration was for the purpose of
providing evidence supporting her contention that [defendant] had breached the
implied covenant by its actions. This is a proper use of evidence of an insurer’s
violations of the statute and the corresponding regulations.” (Jordan, supra, 148
Cal.App.4th at p. 1078, original italics, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance §§ 252, 253, 255,
321
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 14-A, Statutory
and Administrative Regulation—The California Regulator, ¶ 14:109 et seq. (The
Rutter Group)
1 California Liability Insurance Practice: Claims and Litigation, Ch. 24, General
Principles of Contract and Bad Faith (Cont.Ed.Bar) § 24.30 et seq.
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.25
(Matthew Bender)
1 Rushing et al., Matthew Bender Practice Guide: California Unfair Competition
and Business Torts, Ch. 2, Unfair Competition, 2.11 (Matthew Bender)
2338–2349. Reserved for Future Use
1305
For instructions on damages for pain and suffering, see CACI No. 3905, Items of
Noneconomic Damage, and CACI No. 3905A, Physical Pain, Mental Suffering,
and Emotional Distress (Noneconomic Damage). For instructions on punitive
damages, see other instructions in the Damages series.
Sources and Authority
• “When an insurer’s tortious conduct reasonably compels the insured to retain an
attorney to obtain the benefits due under a policy, it follows that the insurer
should be liable in a tort action for that expense. The attorney’s fees are an
economic loss—damages—proximately caused by the tort.” (Brandt v. Superior
Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].)
• “The fees recoverable . . . may not exceed the amount attributable to the
attorney’s efforts to obtain the rejected payment due on the insurance contract.
Fees attributable to obtaining any portion of the plaintiff’s award which exceeds
the amount due under the policy are not recoverable. [¶] Since the attorney’s
fees are recoverable as damages, the determination of the recoverable fees must
be made by the trier of fact unless the parties stipulate otherwise.” (Brandt,
supra, 37 Cal.3d at p. 819.)
• “If . . . the matter is to be presented to the jury, the court should instruct along
the following lines: ‘If you find (1) that the plaintiff is entitled to recover on his
cause of action for breach of the implied covenant of good faith and fair
dealing, and (2) that because of such breach it was reasonably necessary for the
plaintiff to employ the services of an attorney to collect the benefits due under
the policy, then and only then is the plaintiff entitled to an award for attorney’s
fees incurred to obtain the policy benefits, which award must not include
attorney’s fees incurred to recover any other portion of the verdict.’ ” (Brandt,
supra, 37 Cal.3d at p. 820.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 13:120–13:144
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
General Principles of Contract and Bad Faith Actions, §§ 24.70–24.71
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[5][c] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 25, Uninsured Motorist Bad Faith
Litigation, §§ 25.40–25.44 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
1307
triable issue of material fact that it can. It must be allowed the attempt.” (Buss,
supra, 16 Cal.4th at p. 61.)
• “By law applied in hindsight, courts can determine that no potential for
coverage, and thus no duty to defend, ever existed. If that conclusion is
reached, the insurer, having reserved its right, may recover from its insured the
costs it expended to provide a defense which, under its contract of insurance, it
was never obliged to furnish.” (Scottsdale Ins. Co. v. MV Transportation (2005)
36 Cal.4th 643, 658 [31 Cal.Rptr.3d 147, 115 P.3d 460].)
• “ ‘Under the policy, the insurer does not have a duty to defend the insured as to
the claims that are not even potentially covered. With regard to defense costs
for these claims, the insurer has not been paid premiums by the insured. It did
not bargain to bear these costs. . . . The “enrichment” of the insured by the
insurer through the insurer’s bearing of unbargained-for defense costs is
inconsistent with the insurer’s freedom under the policy and therefore must be
deemed ‘unjust.’ ” If [insurer], after providing an entire defense, can prove that
a claim was ‘not even potentially covered because it did not even possibly
embrace any triggering harm of the specified sort within its policy period or
periods caused by an included occurrence,’ it should have that opportunity. This
task ‘ “if ever feasible,” may be “extremely difficult.” ’ ” (State v. Pac. Indem.
Co. (1998) 63 Cal.App.4th 1535, 1550 [75 Cal.Rptr.2d 69], internal citations
omitted.)
• “The cases which have considered apportionment of attorneys’ fees upon the
wrongful refusal of an insurer to defend an action against its insured generally
have held that the insurer is liable for the total amount of the fees despite the
fact that some of the damages recovered in the action against the insured were
outside the coverage of the policy.” (Hogan, supra, 3 Cal.3d at p. 564.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2010) Insurance, § 269
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.123
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.51 (Matthew
Bender)
2352–2359. Reserved for Future Use
1309
[Name of plaintiff] claims that [name of defendant] must pay [all or part
of] a judgment against [name of insured]. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] brought a lawsuit for [personal injury/
wrongful death/property damage] against [name of insured] and a
judgment was entered against [name of insured];
2. That [all or part of] [name of insured]’s liability under the
judgment is covered by an insurance policy with [name of
defendant]; and
3. The amount of the judgment [covered by the policy].
third party may directly sue an insurer only when there has been an assignment
of rights by, or a final judgment against, the insured.” (Shaolian v. Safeco
Insurance Co. (1999) 71 Cal.App.4th 268, 271 [83 Cal.Rptr.2d 702], internal
citations omitted.)
• “Under section 11580 a third party claimant bringing a direct action against an
insurer should . . . prove 1) it obtained a judgment for bodily injury, death, or
property damage, 2) the judgment was against a person insured under a policy
that insures against [the] loss or damage . . . , 3) the liability insurance policy
was issued by the defendant insurer, 4) the policy covers the relief awarded in
the judgment, 5) the policy either contains a clause that authorizes the claimant
to bring an action directly against the insurer or the policy was issued or
delivered in California and insures against [the] loss or damage . . . .” (Wright,
supra, 11 Cal.App.4th at p. 1015.)
• “Under Insurance Code section 11580, a third party creditor bringing a direct
action against an insurer to recover the proceeds of an insurance policy must
plead and prove not only that it obtained a judgment for bodily injury, but that
‘the judgment was against a person insured under a policy . . .’ and ‘the policy
covers the relief awarded in the judgment . . . .’ ” (Miller v. American Home
Assurance Co. (1996) 47 Cal.App.4th 844, 847–848 [54 Cal.Rptr.2d 765],
original italics, internal citation omitted.)
• “[Insurance Code Section 11580(b)(2)] and the standard policy language permit
an action against an insurer only when the underlying judgment is final and
‘final,’ for this purpose, means an appeal from the underlying judgment has
been concluded or the time within which to appeal has passed.” (McKee v.
National Union Fire Insurance Co. of Pittsburgh, PA. (1993) 15 Cal.App.4th
282, 285 [19 Cal.Rptr.2d 286].)
• “[W]here the insurer may be subject to a direct action under Insurance Code
section 11580 by a judgment creditor who has or will obtain a default judgment
in a third party action against the insured, intervention is appropriate. . . .
Where an insurer has failed to intervene in the underlying action or to move to
set aside the default judgment, the insurer is bound by the default judgment.”
(Reliance Insurance Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386–387
[100 Cal.Rptr.2d 807], internal citations omitted.)
• “The [standard] ‘no action’ clause gives the insurer the right to control the
defense of the claim—to decide whether to settle or to adjudicate the claim on
its merits. When the insurer provides a defense to its insured, the insured has no
right to interfere with the insurer’s control of the defense, and a stipulated
judgment between the insured and the injured claimant, without the consent of
the insurer, is ineffective to impose liability upon the insurer.” (Safeco Ins. Co.
of Am. v. Superior Court (1999) 71 Cal.App.4th 782, 787 [84 Cal.Rptr.2d 43],
internal citations omitted.)
• A standard “no action” clause in an indemnity insurance policy “provides that
[the insurer] may be sued directly if the amount of the insured’s obligation to
1311
pay was finally determined either by judgment against the insured after actual
trial or by ‘written agreement of the insured, the claimant and the company.’ ”
(Rose v. Royal Insurance Co. of America (1991) 2 Cal.App.4th 709, 716–717 [3
Cal.Rptr.2d 483].)
• “[A] trial does not have to be adversarial to be considered an ‘actual trial’ under
the ‘no action’ clause, or to be considered binding against the insurer in a
section 11580 proceeding. . . . [W]e conclude that the term ‘actual trial’ in the
standard ‘no action’ clause has two components: (1) an independent
adjudication of facts based on an evidentiary showing; and (2) a process that
does not create the potential for abuse, fraud or collusion.” (National Union
Fire Insurance Co. v. Lynette C. (1994) 27 Cal.App.4th 1434, 1449 [33
Cal.Rptr.2d 496].)
• “A defending insurer cannot be bound by a settlement made without its
participation and without any actual commitment on its insured’s part to pay the
judgment, even where the settlement has been found to be in good faith for
purposes of [Code of Civil Procedure] section 877.6.” (Hamilton v. Maryland
Casualty Co. (2002) 27 Cal.4th 718, 730 [117 Cal.Rptr.2d 318, 41 P.3d 128].)
• “[W]hen . . . a liability insurer wrongfully denies coverage or refuses to
provide a defense, then the insured is free to negotiate the best possible
settlement consistent with his or her interests, including a stipulated judgment
accompanied by a covenant not to execute. Such a settlement will raise an
evidentiary presumption in favor of the insured (or the insured’s assignee) with
respect to the existence and amount of the insured’s liability. The effect of such
presumption is to shift the burden of proof to the insurer to prove that the
settlement was unreasonable or the product of fraud or collusion. If the insurer
is unable to meet that burden of proof then the stipulated judgment will be
binding on the insurer and the policy provision proscribing a direct action
against an insurer except upon a judgment against the insured after an ‘actual
trial’ will not bar enforcement of the judgment.” (Pruyn v. Agricultural
Insurance Co. (1995) 36 Cal.App.4th 500, 509 [42 Cal.Rptr.2d 295].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:1028–15:1077, 15:1123–15:1136
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Claimant’s Direct Action for Recovery of Judgment, §§ 27.1–27.7, 27.17–27.27
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§§ 41.60–41.63 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.186, 120.198,
120.206 (Matthew Bender)
1312
Insurance (1982) 137 Cal.App.3d 685, 691 [187 Cal.Rptr. 214], internal
citations omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 2:50–2:64.2, 11:246–11:249
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Actions Against Agents and Brokers, §§ 29.7–29.8
5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents
and Brokers, § 61.04[3][a] (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.402 (Matthew
Bender)
2362–2399. Reserved for Future Use
1314
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1315
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, April 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2331, Breach of the Implied Obligation of
Good Faith and Fair Dealing—Failure or Delay in Payment (First
Party)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1317
1318
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2333, Bad Faith (First Party)—Breach of
Duty to Inform Insured of Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1320
1321
WRONGFUL TERMINATION
WRONGFUL TERMINATION
1324
1326
language for other similar employment decisions, depending on the facts of the
case.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Contractual Conditions Precedent. Civil Code section 1439.
• “Where there is no express agreement, the issue is whether other evidence of
the parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of
an actual mutual understanding on particular terms and conditions of
employment. If such evidence logically permits conflicting inferences, a
question of fact is presented. But where the undisputed facts negate the
existence or the breach of the contract claimed, summary judgment is proper.”
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352,
8 P.3d 1089], internal citations omitted.)
• The employee bears the ultimate burden of proving that he or she was
wrongfully terminated. (Pugh v. See’s Candies, Inc. (Pugh I) (1981) 116
Cal.App.3d 311, 330 [171 Cal.Rptr. 917].)
• “The presumption that an employment relationship of indefinite duration is
intended to be terminable at will is therefore ‘subject, like any presumption, to
contrary evidence. This may take the form of an agreement, express or implied,
that . . . the employment relationship will continue indefinitely, pending the
occurrence of some event such as the employer’s dissatisfaction with the
employee’s services or the existence of some “cause” for termination.’ ” (Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765
P.2d 373], internal citation omitted.)
• “In Foley, we identified several factors, apart from express terms, that may bear
upon ‘the existence and content of an . . . [implied-in-fact] agreement’ placing
limits on the employer’s right to discharge an employee. These factors might
include ‘ “the personnel policies or practices of the employer, the employee’s
longevity of service, actions or communications by the employer reflecting
assurances of continued employment, and the practices of the industry in which
the employee is engaged.” ’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 336–337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• Civil Code sections 1619–1621 together provide as follows: “A contract is
either express or implied. An express contract is one, the terms of which are
stated in words. An implied contract is one, the existence and terms of which
are manifested by conduct.”
• “ ‘Good cause’ or ‘just cause’ for termination connotes ‘ “a fair and honest
cause or reason,” ’ regulated by the good faith of the employer. The term is
relative. Whether good cause exists is dependent upon the particular
circumstances of each case. In deciding whether good cause exists, there must
be a balance between the employer’s interest in operating its business efficiently
and profitably and the employee’s interest in continued employment. Care must
1328
1329
1330
cause or reason,” ’ regulated by the good faith of the employer. The term is
relative. Whether good cause exists is dependent upon the particular
circumstances of each case. In deciding whether good cause exists, there must
be a balance between the employer’s interest in operating its business efficiently
and profitably and the employee’s interest in continued employment. Care must
be exercised so as not to interfere with the employer’s legitimate exercise of
managerial discretion. While the scope of such discretion is substantial, it is not
unrestricted. Good cause is not properly found where the asserted reasons for
discharge are ‘trivial, capricious, unrelated to business needs or goals, or
pretextual.’ Where there is a contract to terminate only for good cause, the
employer has no right to terminate for an arbitrary or unreasonable decision.”
(Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 994 [6
Cal.Rptr.2d 184], internal citations omitted, abrogated on another ground in
Guz, supra, 24 Cal.4th at p. 351.)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the
employment relationship is actually severed involuntarily by the employer’s
acts, against the employee’s will. As a result, a constructive discharge is legally
regarded as a firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp.
1245–1246, internal citation omitted.)
• “In order to amount to constructive discharge, adverse working conditions must
be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts
of [misconduct] are insufficient’ to support a constructive discharge claim.
Moreover, a poor performance rating or a demotion, even when accompanied
by reduction in pay, does not by itself trigger a constructive discharge.” (Turner,
supra, 7 Cal.4th at p. 1247, internal citation and fns. omitted.)
• “Whether conditions were so intolerable as to justify a reasonable employee’s
decision to resign is normally a question of fact.” (Valdez v. City of Los Angeles
(1991) 231 Cal.App.3d 1043, 1056 [282 Cal.Rptr. 726].)
• “In some circumstances, a single intolerable incident, such as a crime of
violence against an employee by an employer, or an employer’s ultimatum that
an employee commit a crime, may constitute a constructive discharge. Such
misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th
at p. 1247, fn. 3.)
• “[T]he standard by which a constructive discharge is determined is an objective
one-the question is ‘whether a reasonable person faced with the allegedly
intolerable employer actions or conditions of employment would have no
reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248,
internal citations omitted.)
• “In order to establish a constructive discharge, an employee must plead and
prove, by the usual preponderance of the evidence standard, that the employer
either intentionally created or knowingly permitted working conditions that were
1332
1333
(Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 380 [84
Cal.Rptr.3d 111], internal citations omitted.)
• “[M]ost cases applying California law . . . have held that an at-will provision
in an express written agreement, signed by the employee, cannot be overcome
by proof of an implied contrary understanding.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 340 fn. 10 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original
italics.)
• “Where there is no express agreement, the issue is whether other evidence of
the parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of
an actual mutual understanding on particular terms and conditions of
employment. If such evidence logically permits conflicting inferences, a
question of fact is presented.” (Guz, supra, 24 Cal.4th at p. 337, internal
citations omitted.)
• “The question whether such an implied-in-fact agreement [to termination only
for cause] exists is a factual question for the trier of fact unless the undisputed
facts can support only one reasonable conclusion.” (Faigin, supra, 211
Cal.App.4th at p. 739.)
• “In the employment context, factors apart from consideration and express terms
may be used to ascertain the existence and content of an employment
agreement, including ‘the personnel policies or practices of the employer, the
employee’s longevity of service, actions or communications by the employer
reflecting assurances of continued employment, and the practices of the industry
in which the employee is engaged.’ ” (Foley v. Interactive Data Corp. (1988)
47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)
• “[A]n employee’s mere passage of time in the employer’s service, even where
marked with tangible indicia that the employer approves the employee’s work,
cannot alone form an implied-in-fact contract that the employee is no longer at
will. Absent other evidence of the employer’s intent, longevity, raises and
promotions are their own rewards for the employee’s continuing valued service;
they do not, in and of themselves, additionally constitute a contractual guarantee
of future employment security.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 341–342 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original italics.)
• “We agree that disclaimer language in an employee handbook or policy manual
does not necessarily mean an employee is employed at will. But even if a
handbook disclaimer is not controlling in every case, neither can such a
provision be ignored in determining whether the parties’ conduct was intended,
and reasonably understood, to create binding limits on an employer’s statutory
right to terminate the relationship at will. Like any direct expression of
employer intent, communicated to employees and intended to apply to them,
such language must be taken into account, along with all other pertinent
evidence, in ascertaining the terms on which a worker was employed.” (Guz,
supra, 24 Cal.4th at p. 340, internal citations omitted.)
• “Conceptually, there is no rational reason why an employer’s policy that its
1335
employees will not be demoted except for good cause, like a policy restricting
termination or providing for severance pay, cannot become an implied term of
an employment contract. In each of these instances, an employer promises to
confer a significant benefit on the employee, and it is a question of fact whether
that promise was reasonably understood by the employee to create a contractual
obligation.” (Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454, 464 [46
Cal.Rptr.2d 427, 904 P.2d 834].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 233, 237, 238
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:81, 4:105, 4:112 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.6–8.16
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.05[2][a]–[e] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.13, 249.15, 249.50 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.25–100.27, 100.29, 100.34
(Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:14–6:16 (Thomson Reuters)
1336
Actions, §§ 8.22–8.25
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[5][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21, 249.63 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.27, 100.29, 100.34 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1339
[Name of plaintiff] claims that [name of defendant] did not have good
cause to [discharge/demote] [him/her] for misconduct. [Name of
defendant] had good cause to [discharge/demote] [name of plaintiff] for
misconduct if [name of defendant], acting in good faith, conducted an
appropriate investigation giving [him/her/it] reasonable grounds to
believe that [name of plaintiff] engaged in misconduct.
An appropriate investigation is one that is reasonable under the
circumstances and includes notice to the employee of the claimed
misconduct and an opportunity for the employee to answer the charge
of misconduct before the decision to [discharge/demote] is made. You
may find that [name of defendant] had good cause to [discharge/demote]
[name of plaintiff] without deciding if [name of plaintiff] actually engaged
in misconduct.
had engaged in the misconduct.’ ‘Cotran did not delineate the earmarks of an
appropriate investigation but noted that investigative fairness contemplates
listening to both sides and providing employees a fair opportunity to present
their position and to correct or contradict relevant statements prejudicial to their
case, without the procedural formalities of a trial.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 872–873 [172 Cal.Rptr.3d 732], internal
citations omitted.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either
on the ground that it is pretextual and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 329–330
[171 Cal.Rptr. 917], disapproved on other grounds in Guz v. Bechtel National
Inc. (2000) 24 Cal.4th 317, 350−351 [100 Cal. Rptr. 2d 352, 8 P.3d 1089],
internal citation omitted.)
• “[Plaintiff] contends that it was up to a jury to decide whether the [defendant]
‘honestly and objectively reasonably’ believed that her conduct was egregious
enough to be ‘gross misconduct’ and that the court therefore erred in granting
summary adjudication of her fourth cause of action for breach of contract.
Although the elements of the Cotran standard are triable to the jury, ‘if the
facts are undisputed or admit of only one conclusion, then summary judgment
may be entered . . . .’ ” (Serri, supra, 226 Cal.App.4th at p. 873.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 208, 209
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:270–4:271, 4:289 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[5][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21, 249.43 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.25, 100.29 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1341
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may
not be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-
Fox Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted.)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employee but
also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463
P.2d 426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In cases for wrongful demotion, the measure of damages is “the difference in
compensation before and after the demotion.” (Scott v. Pac. Gas & Elec. Co.
(1995) 11 Cal.4th 454, 468 [46 Cal.Rptr.2d 427, 904 P.2d 834].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 267, 268
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[3] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)
1343
In deciding whether the plaintiff could have obtained a substantially similar job, the
trier of fact may consider several factors, including salary, benefits, hours of work
per day, hours of work per year, locality, and availability of a merit-based system.
(See California School Employees Assn. v. Personnel Commission (1973) 30
Cal.App.3d 241, 250–255 [106 Cal.Rptr. 283].) Read only those factors that have
been shown by the evidence.
This instruction should be given in all employment cases, not just in breach of
contract cases. See Chin et al., California Practice Guide: Employment Litigation,
¶ 17:492 (Rutter Group).
This instruction should not be used for wrongful demotion cases.
Sources and Authority
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may
not be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-
Fox Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted; see also Rabago-Alvarez v. Dart Industries, Inc.
(1976) 55 Cal.App.3d 91, 98 [127 Cal.Rptr. 222] [“Plaintiff concedes that the
trial court was entitled to deduct her actual earnings”]; but see Villacorta v.
Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1432 [165 Cal.Rptr.3d 441]
[wages actually earned from an inferior job may not be used to mitigate
damages].)
• “[B]efore projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived . . . .” (Kao v. University of
San Francisco (2014) 229 Cal.App.4th 437, 454 [177 Cal.Rptr.3d 145].)
• “The burden is on the employer to prove that substantially similar employment
was available which the wrongfully discharged employee could have obtained
with reasonable effort.” (Chyten v. Lawrence & Howell Investments (1993) 23
Cal.App.4th 607, 616 [46 Cal.Rptr.2d 459].)
• “[W]e conclude that the trial court should not have deducted from plaintiff’s
recovery against defendant the amount that the court found she might have
earned in employment which was substantially inferior to her position with
defendant.” (Rabago-Alvarez, supra, 55 Cal.App.3d at p. 99.)
• “[I]n those instances where the jury determines the employee was fired from a
1345
substantially similar position for cause, any amount the employee with
reasonable effort could have earned by retaining that employment should be
deducted from the amount of damages which otherwise would have been
awarded to the employee under the terms of the original employment
agreement.” (Stanchfield, supra, 37 Cal.App.4th at pp. 1502–1503.)
• “The location of the new job is one of the factors to consider in determining
whether the new job is inferior.” (Villacorta, supra, 221 Cal.App.4th at p.
1432.)
• “There is some authority for the proposition that whether or not the other
employment is comparable or substantially similar or equivalent to the prior
position is a question of fact. On the other hand the issue of substantial
similarity or inferiority of employment is one that has often been decided as a
matter of law in California.” (California School Employees Assn., supra, 30
Cal.App.3d at pp. 253–254, internal citations omitted.)
• “The court could reasonably admit the evidence of other available jobs and
leave the question of their substantial similarity to the jury.” (Kao, supra, 229
Cal.App.4th at p. 454.)
• “[S]elf-employment is not unreasonable mitigation as long as the discharged
employee applies sufficient effort trying to make the business successful, even if
those efforts fail.” (Cordero-Sacks v. Housing Authority of City of Los Angeles
(2011) 200 Cal.App.4th 1267, 1284–1285 [134 Cal.Rptr.3d 883].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-F, Mitigation
Of Damages (Avoidable Consequences Doctrine), ¶¶ 17:490, 17:495, 17:497,
17:499–17:501 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.40–8.41
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[4] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.18, 249.65 (Matthew Bender)
2408–2419. Reserved for Future Use
1346
• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured
damage, however, is the contract amount reduced by compensation received
during the unexpired term; if, however, such other compensation has not been
received, the contract amount may still be reduced or eliminated by a showing
that the employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation ¶¶ 4:2, 4:47 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.2–8.20
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
1348
who has a contract for a specified term may not be terminated prior to the
term’s expiration based on an honest but mistaken belief that the employee
breached the contract: Such a right would treat a contract with a specified term
no better than an implied contract that has no term; such a right would dilute
the enforceability of the contract’s specified term because an employee who had
properly performed his or her contract could still be terminated before the
term’s end; and such a right would run afoul of the plain language of Labor
Code section 2924, which allows termination of an employment for a specified
term only ‘in case of any willful breach of duty . . . habitual neglect of . . .
duty or continued incapacity to perform it.’ Termination of employment for a
specified term, before the end of the term, based solely on the mistaken belief
of a breach, cannot be reconciled with either the governing statute’s text or
settled principles of contract law.” (Khajavi, supra, 84 Cal.App.4th at pp.
38–39.)
• Good cause in the context of wrongful termination based on an implied contract
“ ‘is quite different from the standard applicable in determining the propriety of
an employee’s termination under a contract for a specified term.’ ” (Khajavi,
supra, 84 Cal.App.4th at p. 58, internal citations omitted.)
• “An employer is justified in discharging his employee, when the latter fails to
perform his duty, even though injury does not result to the employer as a result
of the employee’s failure to do his duty.” (Bank of America National Trust &
Savings Ass’n v. Republic Productions, Inc. (1941) 44 Cal.App.2d 651, 654 [112
P.2d 972], internal citation omitted.)
• “To terminate an employment without the expiration of its contractual term
‘there must be good cause.’ The grounds for terminating such an employment
are stated in Labor Code section 2924. . . . It is therefore not every deviation
of the employee from the standard of performance sought by his employer that
will justify a discharge. There must be some ‘wilful act or wilful misconduct
. . .’ when the employee uses his best efforts to serve the interests of his
employer.” (Holtzendorff v. Housing Authority of the City of Los Angeles (1967)
250 Cal.App.2d 596, 610 [58 Cal.Rptr. 886], internal citation omitted.)
• “ ‘Willful’ disobedience of a specific, peremptory instruction of the master, if
the instruction be reasonable and consistent with the contract, is a breach of
duty—a breach of the contract of service; and, like any other breach of the
contract, of itself entitles the master to renounce the contract of employment.”
(May v. New York Motion Picture Corp. (1920) 45 Cal.App. 396, 403 [187 P.
785].)
• “An employment agreement that specifies the length of employment (e.g., two
years) limits the employer’s right to discharge the employee within that period.
Unless the agreement provides otherwise (e.g., by reserving the right to
discharge for cause), the employer may terminate employment for a specified
term only for [the grounds specified in Labor Code section 2924].” (Chin et al.,
California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:47 (The Rutter Group)
1350
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:47, 4:56, 4:57 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:47, 4:56, 4:57 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and
Discipline Claims, § 62.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63 (Matthew Bender)
1351
employment contract and that the measure of damages was the difference
between the amount Silva would have received under the contract and that
amount which Silva actually received from his other employment.” (Silva v.
McCoy (1968) 259 Cal.App.2d 256, 260 [66 Cal.Rptr. 364].)
• “The plaintiff has the burden of proving his damage. The law is settled that he
has the duty of minimizing that damage. While the contract wages are prima
facie [evidence of] his damage, his actual damage is the amount of money he
was out of pocket by reason of the wrongful discharge.” (Erler v. Five Points
Motors, Inc., supra, 249 Cal.App.2d at pp. 567–568.)
• “The burden of proof is on the party whose breach caused damage, to establish
matters relied on to mitigate damage.” (Steelduct Co. v. Henger-Seltzer Co.
(1945) 26 Cal.2d 634, 654 [160 P.2d 804], internal citations omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 17:81, 17:95, 17:105, 17:495
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
1353
1356
[Name of defendant] claims that [he/she/it] did not breach the duty to act
fairly and in good faith because [he/she/it] believed that there was a
legitimate and reasonable business purpose for the conduct.
To succeed, [name of defendant] must prove both of the following:
1. That [his/her/its] conduct was based on an honest belief that
[insert alleged mistake]; and
2. That, if true, [insert alleged mistake] would have been a legitimate
and reasonable business purpose for the conduct.
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.30 (Matthew Bender)
2425–2429. Reserved for Future Use
1358
New September 2003; Revised June 2013, June 2014, December 2014
Directions for Use
The judge should determine whether the purported reason for firing the plaintiff
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged
conduct would constitute a public-policy violation if proved.
Note that this instruction uses the term “substantial motivating reason” to express
causation between the public policy and the discharge (see element 3). “Substantial
motivating reason” has been held to be the appropriate standard for cases alleging
termination in violation of public policy. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.)
This instruction must be supplemented with CACI No. 2433, Wrongful Discharge
in Violation of Public Policy—Damages. If plaintiff alleges he or she was forced or
coerced to resign, then CACI No. 2431, Constructive Discharge in Violation of
Public Policy—Plaintiff Required to Violate Public Policy, or CACI No. 2432,
Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy, should be given instead. See also
CACI No. 2510, “Constructive Discharge” Explained.
This instruction may be modified for adverse employment actions other than
discharge, for example demotion, if done in violation of public policy. (See Garcia
1359
v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1561 [232 Cal.Rptr. 490],
disapproved on other grounds in Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1093
[4 Cal.Rptr.2d 874, 824 P.2d 680] [public policy forbids retaliatory action taken by
employer against employee who discloses information regarding employer’s
violation of law to government agency].) See also CACI No. 2509, “Adverse
Employment Action” Explained.
Sources and Authority
• “ ‘[W]hile an at-will employee may be terminated for no reason, or for an
arbitrary or irrational reason, there can be no right to terminate for an unlawful
reason or a purpose that contravenes fundamental public policy. Any other
conclusion would sanction lawlessness, which courts by their very nature are
bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc. (2007) 157
Cal.App.4th 1127, 1138–1139 [69 Cal.Rptr.3d 445], internal citations omitted.)
• “[W]hen an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort action
and recover damages traditionally available in such actions.” (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “The elements of a claim for wrongful discharge in violation of public policy
are (1) an employer-employee relationship, (2) the employer terminated the
plaintiff’s employment, (3) the termination was substantially motivated by a
violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau
v. Allen (2014) 229 Cal.App.4th 144, 154 [176 Cal.Rptr.3d 824].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890
[66 Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “Policies are not ‘public’ (and thus do not give rise to a common law tort
claim) when they are derived from statutes that ‘simply regulate conduct
between private individuals, or impose requirements whose fulfillment does not
implicate fundamental public policy concerns.’ ” (Diego v. Pilgrim United
Church of Christ (2014) 231 Cal.App.4th 913, 926 [180 Cal.Rptr.3d 359].)
• “[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt, supra, 1 Cal.4th at
pp. 1090–1091, internal citations and footnote omitted, overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
• “[T]ermination of an employee most clearly violates public policy when it
1360
1363
[Name of plaintiff] claims that [he/she] was forced to resign rather than
commit a violation of public policy. It is a violation of public policy
[specify claim in case, e.g., for an employer to require that an employee
engage in price fixing]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] required [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
fixing”];
3. That this requirement was so intolerable that a reasonable
person in [name of plaintiff]’s position would have had no
reasonable alternative except to resign;
4. That [name of plaintiff] resigned because of this requirement;
5. That [name of plaintiff] was harmed; and
6. That the requirement was a substantial factor in causing [name
of plaintiff]’s harm.
1364
Violations, §§ 5.45–5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.35–100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
1367
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged
conduct would constitute a public-policy violation if proved.
Whether conditions are so intolerable as to justify the employee’s decision to quit
rather than endure them is to be judged by an objective reasonable-employee
standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32
Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The
paragraph at the end of the instruction gives the jury additional guidance as to what
makes conditions intolerable. (See id. at p. 1247.) Note that in some circumstances,
a single intolerable incident, such as a crime of violence against an employee by an
employer, or an employer’s ultimatum that an employee commit a crime, may
constitute a constructive discharge. (Id. at p. 1247, fn.3.)
Sources and Authority
• “[W]hen an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort action
and recover damages traditionally available in such actions.” (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890
[66 Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that
impacts on an employer’s right to discharge employees when such regulations
implement fundamental public policy found in their enabling statutes.” (D’sa v.
Playhut, Inc. (2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal
citation omitted.)
• “Plaintiffs assert, in essence, that they were terminated for refusing to engage in
conduct that violated fundamental public policy, to wit, nonconsensual sexual
acts. They also assert, in effect, that they were discharged in retaliation for
attempting to exercise a fundamental right—the right to be free from sexual
assault and harassment. Under either theory, plaintiffs, in short, should have
been granted leave to amend to plead a cause of action for wrongful discharge
in violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276
Cal.Rptr. 130, 801 P.2d 373].)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the
employment relationship is actually severed involuntarily by the employer’s
1369
1371
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.18, 249.50–249.55, 249.80–249.81, 249.90
(Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.41–100.59 (Matthew Bender)
2434–2440. Reserved for Future Use
1374
Element 4 uses the term “substantial motivating reason” to express both intent and
causation between the the employee’s military service and the discharge.
“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 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
to cases alleging military service discrimination under section 394 has not been
addressed by the courts. However, military and veteran status is now a protected
category under the FEHA. (See Gov. Code, § 12940(a).
Sources and Authority
• Discrimination Against Members of the Military. Military and Veterans Code
section 394.
• Military and Veteran Status Protected Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “[I]ndividual employees may not be held personally liable under section 394 for
alleged discriminatory acts that arise out of the performance of regular and
necessary personnel management duties.” (Haligowski v. Superior Court (2011)
200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 355, 426
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
2442–2499. Reserved for Future Use
1376
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1378
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1380
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1382
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1384
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1386
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1389
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2430, Wrongful Discharge in Violation of
Public Policy—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1391
findings that are required in order to calculate the amount of prejudgment interest.
1392
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2431, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Violate Public Policy.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1394
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1395
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
1397
1398
1401
New September 2003; Revised April 2009, June 2011, June 2012, June 2013
Directions for Use
This instruction is intended for use when a plaintiff alleges disparate treatment
discrimination under the FEHA against an employer or other covered entity.
Disparate treatment occurs when an employer treats an individual less favorably
than others because of the individual’s protected status. In contrast, disparate
impact (the other general theory of discrimination) occurs when an employer has an
employment practice that appears neutral but has an adverse impact on members of
a protected group. For disparate impact claims, see CACI No. 2502, Disparate
Impact—Essential Factual Elements.
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
1402
• “At trial, the McDonnell Douglas test places on the plaintiff the initial burden
to establish a prima facie case of discrimination. This step is designed to
eliminate at the outset the most patently meritless claims, as where the plaintiff
is not a member of the protected class or was clearly unqualified, or where the
job he sought was withdrawn and never filled. While the plaintiff’s prima facie
burden is ‘not onerous’, he must at least show ‘ “actions taken by the employer
from which one can infer, if such actions remain unexplained, that it is more
likely than not that such actions were ‘based on a [prohibited] discriminatory
criterion . . . .’ . . . .” . . .’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 354–355 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. This presumption, though ‘rebuttable,’ is ‘legally
mandatory.’ Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s
evidence, and if the employer is silent in the face of the presumption, the court
must enter judgment for the plaintiff because no issue of fact remains in the
case.’ [¶] Accordingly, at this trial stage, the burden shifts to the employer to
rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a
genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its
action was taken for a legitimate, nondiscriminatory reason. [¶] If the employer
sustains this burden, the presumption of discrimination disappears. The plaintiff
must then have the opportunity to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer any other evidence of discriminatory
motive. In an appropriate case, evidence of dishonest reasons, considered
together with the elements of the prima facie case, may permit a finding of
prohibited bias. The ultimate burden of persuasion on the issue of actual
discrimination remains with the plaintiff.” (Guz, supra, 24 Cal.4th at pp.
355–356, internal citations omitted.)
• “The trial court decides the first two stages of the McDonnell Douglas test as
questions of law. If the plaintiff and defendant satisfy their respective burdens,
the presumption of discrimination disappears and the question whether the
defendant unlawfully discriminated against the plaintiff is submitted to the jury
to decide whether it believes the defendant’s or the plaintiff’s explanation.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965
[181 Cal.Rptr.3d 553].)
• “To succeed on a disparate treatment claim at trial, the plaintiff has the initial
burden of establishing a prima facie case of discrimination, to wit, a set of
circumstances that, if unexplained, permit an inference that it is more likely
than not the employer intentionally treated the employee less favorably than
others on prohibited grounds. Based on the inherent difficulties of showing
intentional discrimination, courts have generally adopted a multifactor test to
determine if a plaintiff was subject to disparate treatment. The plaintiff must
generally show that: he or she was a member of a protected class; was qualified
for the position he sought; suffered an adverse employment action, and there
were circumstances suggesting that the employer acted with a discriminatory
1404
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:2, 2:20 (Thomson Reuters)
1407
be unable to perform safely and efficiently the duties of the job involved.’ ”
(Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern
Bell Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
• “First, the employer must demonstrate that the occupational qualification is
‘reasonably necessary to the normal operation of [the] particular business.’
Secondly, the employer must show that the categorical exclusion based on [the]
protected class characteristic is justified, i.e., that ‘all or substantially all’ of the
persons with the subject class characteristic fail to satisfy the occupational
qualification.” (Johnson Controls, Inc. v. Fair Employment & Housing Com.
(1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408
F.2d at p. 235.)
• “Even if an employer can demonstrate that certain jobs require members of one
sex, the employer must also ‘bear the burden of proving that because of the
nature of the operation of the business they could not rearrange job
responsibilities . . .’ in order to reduce the BFOQ necessity.” (Johnson
Controls, Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th
Cir. 1982) 691 F.2d 1364, 1370–1371.)
• “Alternatively, the employer could establish that age was a legitimate proxy for
the safety-related job qualifications by proving that it is ‘impossible or highly
impractical’ to deal with the older employees on an individualized basis.”
(Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414–415 [105 S.Ct.
2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
• “The Fair Employment and Housing Commission has interpreted the BFOQ
defense in a manner incorporating all of the federal requirements necessary for
its establishment. . . . [¶] The standards of the Commission are . . . in
harmony with federal law regarding the availability of a BFOQ defense.”
(Bohemian Club, supra, 187 Cal.App.3d at p. 19.)
• “By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term
to qualifications that affect an employee’s ability to do the job.” (International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW, supra, 499 U.S. at p. 201.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 925
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 9:2380, 9:2382, 9:2400, 9:2430
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)
1409
1411
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A,
Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)
1412
1414
1416
New September 2003; Revised August 2007, April 2008, October 2008, April 2009,
June 2010, June 2012, December 2012, June 2013, June 2014, June 2016,
December 2016
Directions for Use
In elements 1 and 3, describe the protected activity in question. Government Code
section 12940(h) provides that it is unlawful to retaliate against a person “because
the person has opposed any practices forbidden under [Government Code sections
12900 through 12966] or because the person has filed a complaint, testified, or
assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or
1417
(Cf. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127−132 [199
Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is
only language required to express intent].) However, in cases such as Joaquin that
involve allegations of a prohibited motivating reason (based on a report of sexual
harassment) and a permitted motivating reason (based on a good faith belief that
the report was falsified), the instruction may need to be modified to make it clear
that plaintiff must prove that defendant acted based on the prohibited motivating
reason and not the permitted motivating reason.
Sources and Authority
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• Retaliation for Requesting Reasonable Accommodation for Religious Practice
and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).
• “Person” Defined Under Fair Employment and Housing Act. Government Code
section 12925(d).
• Prohibited Retaliation. Title 2 California Code of Regulations section 11021.
• “[I]n order to establish a prima facie case of retaliation under the FEHA, a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer’s action.
Once an employee establishes a prima facie case, the employer is required to
offer a legitimate, nonretaliatory reason for the adverse employment action. If
the employer produces a legitimate reason for the adverse employment action,
the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden
shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra,
36 Cal.4th at p. 1042, internal citations omitted.)
• “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court,
that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)
• “It is well established that a plaintiff in a retaliation case need only prove that a
retaliatory animus was at least a substantial or motivating factor in the adverse
employment decision.” (George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)
• “Retaliation claims are inherently fact-specific, and the impact of an employer’s
action in a particular case must be evaluated in context. Accordingly, although
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p.
1052.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
1419
Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations
omitted.)
• “[A]n employer generally can be held liable for the retaliatory actions of its
supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)
• “Plaintiff, although a partner, is a person whom section 12940, subdivision (h)
protects from retaliation for opposing the partnership-employer’s harassment
against those employees.” (Fitzsimons v. California Emergency Physicians
Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)
• “[A]n employer may be found to have engaged in an adverse employment
action, and thus liable for retaliation under section 12940(h), ‘by permitting
. . . fellow employees to punish [him] for invoking [his] rights.’ We therefore
hold that an employer may be held liable for coworker retaliatory conduct if the
employer knew or should have known of coworker retaliatory conduct and
either participated and encouraged the conduct, or failed to take reasonable
actions to end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196
Cal.App.4th 191, 214 [126 Cal.Rptr.3d 651], internal citation omitted.)
• “[T]he employer is liable for retaliation under section 12940, subdivision (h),
but nonemployer individuals are not personally liable for their role in that
retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “[U]nder certain circumstances, a retaliation claim may be brought by an
employee who has complained of or opposed conduct, even when a court or
jury subsequently determines the conduct actually was not prohibited by the
FEHA. Indeed, this precept is well settled. An employee is protected against
retaliation if the employee reasonably and in good faith believed that what he or
she was opposing constituted unlawful employer conduct such as sexual
harassment or sexual discrimination.” (Miller v. Department of Corr. (2005) 36
Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations
omitted.)
• “ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is
to prevent employers from deterring employees from asserting good faith
discrimination complaints . . . .’ Employer retaliation against employees who
are believed to be prospective complainants or witnesses for complainants
undermines this legislative purpose just as effectively as retaliation after the
filing of a complaint. To limit FEHA in such a way would be to condone ‘an
absurd result’ that is contrary to legislative intent. We agree with the trial court
that FEHA protects employees against preemptive retaliation by the employer.”
(Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)
• “ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s
proffered justification is mere pretext; i.e., that the presumptively valid reason
for the employer’s action was in fact a coverup. . . . In responding to the
employer’s showing of a legitimate reason for the complained-of action, the
plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken,
1421
1422
liability or limits available relief where, after a termination, the employer learns
for the first time about employee wrongdoing that would have led to the
discharge in any event. Employee wrongdoing in after-acquired-evidence cases
generally falls into one of two categories: (1) misrepresentations on a resume or
job application; or (2) posthire, on-the-job misconduct.” (Camp v. Jeffer,
Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d
329].)
• “The after-acquired-evidence doctrine serves as a complete or partial defense to
an employee’s claim of wrongful discharge . . . To invoke this doctrine, ‘. . .
the employer must establish “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it” . . . [T]he employer . . . must show that such a
firing would have taken place as a matter of “settled” company policy.’ ”
(Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845–846 [77
Cal.Rptr.2d 12], internal citations omitted.)
• “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge.” (McKennon v. Nashville
Banner Publishing Co. (1995) 513 U.S. 352, 362–363 [115 S.Ct. 879, 130
L.Ed.2d 852].)
• “Courts must tread carefully in applying the after-acquired-evidence doctrine to
discrimination claims . . . . Where, as here, the discriminatory conduct was
pervasive during the term of employment, therefore, it would not be sound
public policy to bar recovery for injuries suffered while employed. In applying
the after-acquired-evidence doctrine, the equities between employer and
employee can be balanced by barring all portions of the employment
discrimination claim tied to the employee’s discharge.” (Murillo, supra, 65
Cal.App.4th at pp. 849–850.)
• “As the Supreme Court recognized in McKennon, the use of after-acquired
evidence must ‘take due account of the lawful prerogatives of the employer in
the usual course of its business and the corresponding equities that it has arising
from the employee’s wrongdoing.’ We appreciate that the facts in McKennon
. . . presented a situation where balancing the equities should permit a finding
of employer liability—to reinforce the importance of antidiscrimination
laws—while limiting an employee’s damages—to take account of an employer’s
business prerogatives. However, the equities compel a different result where an
employee who is disqualified from employment by government-imposed
requirements nevertheless obtains a job by misrepresenting the pertinent
qualifications. In such a situation, the employee should have no recourse for an
alleged wrongful termination of employment.” (Camp, supra, 35 Cal.App.4th at
pp. 637–638, internal citation omitted.)
• “We decline to adopt a blanket rule that material falsification of an employment
application is a complete defense to a claim that the employer, while still
1424
would not in any event have been employed by the employer. In an appropriate
case, it would also prevent an employee from recovering any lost wages when
the employee’s wrongdoing is particularly egregious.” (Salas, supra, 59 Cal.4th
at p. 431, footnote omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 7-A, Employment
Discrimination—Title VII and the California Fair Employment and Housing Act,
¶¶ 7:930–7:932 (The Rutter Group)
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses--After-Acquired Evidence of Employee Misconduct, ¶¶ 16:615–16:616,
16:625, 16:635–16:637, 16:647 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.92 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.54[2] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)
1426
1428
In the second paragraph, insert the date on which the administrative complaint was
filed and the dates on which both sides allege that the complaint requirement was
triggered. The verdict form should ask the jury to specify the date that it finds that
the requirement accrued. If there are multiple claims with different continuing-
violation dates, repeat this paragraph for each claim.
The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This
burden of proof extends to any excuse or justification for the failure to timely file,
such as the continuing violation exception. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section
12960.
• “At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in
CACI No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice
or refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [DFEH] and obtaining a
right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, plaintiff has
the burden of proof to show his or her claims are timely under the continuing
violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “[Plaintiff] argued below, as she does on appeal, that her DFEH complaint was
timely under an equitable exception to the one-year deadline known as the
continuing violation doctrine. Under this doctrine, a FEHA complaint is timely
if discriminatory practices occurring outside the limitations period continued
into that period. A continuing violation exists if (1) the conduct occurring
within the limitations period is similar in kind to the conduct that falls outside
1430
the period; (2) the conduct was reasonably frequent; and (3) it had not yet
acquired a degree of permanence.” (Dominguez, supra, 168 Cal.App.4th at pp.
720–721, internal citations omitted.)
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of
disability, or ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
reasonable accommodation or end harassment will be futile. [¶] Thus, when an
employer engages in a continuing course of unlawful conduct under the FEHA
by refusing reasonable accommodation of a disabled employee or engaging in
disability harassment, and this course of conduct does not constitute a
constructive discharge, the statute of limitations begins to run, not necessarily
when the employee first believes that his or her rights may have been violated,
but rather, either when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s resignation, or when
the employee is on notice that further efforts to end the unlawful conduct will
be in vain. Accordingly, an employer who is confronted with an employee
seeking accommodation of disability or relief from disability harassment may
assert control over its legal relationship with the employee either by
accommodating the employee’s requests, or by making clear to the employee in
a definitive manner that it will not be granting any such requests, thereby
commencing the running of the statute of limitations.” (Richards v. CH2M Hill,
Inc. (2001) 26 Cal.4th 798, 823–824 [111 Cal.Rptr.2d 87, 29 P.3d 175], internal
citations omitted.)
• “[T]he Richards court interpreted section 12960 to mean that when a continuing
pattern of wrongful conduct occurs partly in the statutory period and partly
outside the statutory period, the limitations period begins to accrue once an
employee is on notice of the violation of his or her rights and on notice that
‘litigation, not informal conciliation, is the only alternative for the vindication
of his or her rights.’ ” (Acuna v. San Diego Gas & Electric Co. (2013) 217
Cal.App.4th 1402, 1412 [159 Cal.Rptr.3d 749].)
• “A continuing violation may be established by demonstrating ‘a company wide
policy or practice’ or ‘a series of related acts against a single individual.’ ‘The
continuing violation theory generally has been applied in the context of a
continuing policy and practice of discrimination on a company-wide basis; a
plaintiff who shows that a policy and practice operated at least in part within
the limitation period satisfies the filing requirements. “[A] systematic policy of
discrimination is actionable even if some or all of the events evidencing its
inception occurred prior to the limitations period. The reason is that the
continuing system of discrimination operates against the employee and violates
his or her rights up to a point in time that falls within the applicable limitations
period. Such continuing violations are most likely to occur in the matter of
placements or promotions.” ’ The plaintiff must demonstrate that at least one act
occurred within the filing period and that ‘the harassment is “more than the
1431
1432
1435
1438
Explained.)
In both elements 1 and 2, all of the supervisor’s specific acts need not be listed in
all cases. Depending on the facts, doing so may be too cumbersome and
impractical. If the specific acts are listed, the list should include all acts on which
plaintiff claims the decision maker relied, not just the acts admitted to have been
relied on by the decision maker.
Sources and Authority
• “This case presents the question whether an employer may be liable for
retaliatory discharge when the supervisor who initiates disciplinary proceedings
acts with retaliatory animus, but the cause for discipline is separately
investigated and the ultimate decision to discharge the plaintiff is made by a
manager with no knowledge that the worker has engaged in protected activities.
We hold that so long as the supervisor’s retaliatory motive was an actuating
. . . cause of the dismissal, the employer may be liable for retaliatory
discharge. Here the evidence raised triable issues as to the existence and effect
of retaliatory motive on the part of the supervisor, and as to whether the
manager and the intermediate investigator acted as tools or ‘cat’s paws’ for the
supervisor, that is, instrumentalities by which his retaliatory animus was carried
into effect to plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a “but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “This concept—which for convenience we will call the ‘defense of
ignorance’—poses few analytical challenges so long as the ‘employer’ is
conceived as a single entity receiving and responding to stimuli as a unitary,
indivisible organism. But this is often an inaccurate picture in a world where a
majority of workers are employed by large economic enterprises with layered
and compartmentalized management structures. In such enterprises, decisions
significantly affecting personnel are rarely if ever the responsibility of a single
actor. As a result, unexamined assertions about the knowledge, ignorance, or
motives of ‘the employer’ may be fraught with ambiguities, untested
1440
1441
the same evidence, i.e., the employer’s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive.
(See City and County of San Francisco v. Fair Employment and Housing Com.
(1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the
burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the
employee proves discrimination or retaliation and also pretext, the employer is
liable for all potential remedies including damages. But if the employee proves
discrimination or retaliation but fails to prove pretext, then a mixed-motive case is
presented. To avoid an award of damages, the employer then has the burden of
proving that it would have made the same decision anyway solely for the legitimate
reason, even though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a
substantial factor motivating a termination of employment, and when the
employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of
reinstatement. But the employer does not escape liability. In light of the FEHA’s
express purpose of not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this circumstance
could still be awarded, where appropriate, declaratory relief or injunctive relief
to stop discriminatory practices. In addition, the plaintiff may be eligible for
reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of
cases in which we have applied the clear and convincing standard, we hold that
preponderance of the evidence is the standard of proof applicable to an
employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the
employer, in the absence of any discrimination, would have made the same
decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p.
224, original italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful
termination should be instructed that it must find the employer’s action was
substantially motivated by discrimination before the burden shifts to the
employer to make a same-decision showing, and that a same-decision showing
precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56
Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[A] plaintiff has the initial burden to make a prima facie case of discrimination
1443
by showing that it is more likely than not that the employer has taken an
adverse employment action based on a prohibited criterion. A prima facie case
establishes a presumption of discrimination. The employer may rebut the
presumption by producing evidence that its action was taken for a legitimate,
nondiscriminatory reason. If the employer discharges this burden, the
presumption of discrimination disappears. The plaintiff must then show that the
employer’s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintiff may offer any other evidence of discriminatory
motive. The ultimate burden of persuasion on the issue of discrimination
remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
• “Following the California Supreme Court’s decision in Harris, . . . the Judicial
Council added CACI No. 2512, to be given when the employer presents
evidence of a legitimate reason for the adverse employment action, informing
the jurors that even if they find that discrimination was a substantial motivating
reason for the adverse action, if the employer establishes that the adverse action
nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff]
will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers
Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d
315].)
• “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes
to make a same-decision showing must concede that it had mixed motives for
taking the adverse employment action instead of denying a discriminatory
motive altogether. But there is no inconsistency when an employer argues that
its motive for discharging an employee was legitimate, while also arguing,
contingently, that if the trier of fact finds a mixture of lawful and unlawful
motives, then its lawful motive alone would have led to the discharge.’ ”
(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th
169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.
240].)
• “As a preliminary matter, we reject [defendant]’s claim that the jury could have
found no liability on the part of [defendant] had it been properly instructed on
the mixed-motive defense at trial. As discussed, the Supreme Court in Harris
held that the mixed-motive defense is available under the FEHA, but only as a
limitation on remedies and not as a complete defense to liability. Consequently,
when the plaintiff proves by a preponderance of the evidence that discrimination
was a substantial motivating factor in the adverse employment decision, the
employer is liable under the FEHA. When the employer proves by a
preponderance of the evidence that it would have made the same decision even
in the absence of such discrimination, the employer is still liable under the
FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive
relief, and where appropriate, attorney’s fees and costs. As presently drafted,
BAJI No. 12.26 does not accurately set forth the parameters of the defense as
articulated by the Supreme Court, but rather states that, in a mixed-motive case,
‘the employer is not liable if it can establish by a preponderance of the
1444
evidence that its legitimate reason, standing alone, would have induced it to
make the same decision.’ By providing that the mixed-motive defense, if
proven, is a complete defense to liability, [defendant]’s requested instruction
directly conflicts with the holding in Harris. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758],
internal citations omitted.)
• “Pretext may . . . be inferred from the timing of the company’s termination
decision, by the identity of the person making the decision, and by the
terminated employee’s job performance before termination.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 928,
950
7 Witkin, California Procedure (5th ed. 2008), Judgment § 217
3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23 (Matthew Bender)
1445
applied evenhandedly. But that does not mean that an employer conclusively
establishes the governing standard of competence in an employment
discrimination action merely by asserting that the plaintiff’s performance was
less than satisfactory. Evidence of the employer’s policies and practices,
including its treatment of other employees, may support a contention, and an
eventual finding, that the plaintiff’s job performance did in fact satisfy the
employer’s own norms.” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th
736, 742–743 [167 Cal.Rptr.3d 485].)
• “The central issue is and should remain whether the evidence as a whole
supports a reasoned inference that the challenged action was the product of
discriminatory or retaliatory animus. The employer’s mere articulation of a
legitimate reason for the action cannot answer this question; it can only dispel
the presumption of improper motive that would otherwise entitle the employee
to a judgment in his favor.” (Cheal, supra, 223 Cal.App.4th at p. 755.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 231 et seq.
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 915,
916, 918
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A,
Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201,
7:356, 7:391–7:392, 7:530, 7:531, 7:535 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.01 et seq. (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.11 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.23 (Matthew Bender)
2514–2519. Reserved for Future Use
1447
claims: quid pro quo and hostile work environment. Quid pro quo harassment
occurs when submission to sexual conduct is made a condition of concrete
employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)
• “A cause of action for quid pro quo harassment involves the behavior most
commonly regarded as sexual harassment, including, e.g., sexual propositions,
unwarranted graphic discussion of sexual acts, and commentary on the
employee’s body and the sexual uses to which it could be put. To state a cause
of action on this theory, it is sufficient to allege that a term of employment was
expressly or impliedly conditioned upon acceptance of a supervisor’s
unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20
Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
• “Cases based on threats which are carried out are referred to often as quid pro
quo cases, as distinct from bothersome attentions or sexual remarks that are
sufficiently severe or pervasive to create a hostile work environment. The terms
quid pro quo and hostile work environment are helpful, perhaps, in making a
rough demarcation between cases in which threats are carried out and those
where they are not or are absent altogether, but beyond this are of limited utility
. . . [¶] We do not suggest the terms quid pro quo and hostile work
environment are irrelevant to Title VII litigation. To the extent they illustrate the
distinction between cases involving a threat which is carried out and offensive
conduct in general, the terms are relevant when there is a threshold question
whether a plaintiff can prove discrimination in violation of Title VII. When a
plaintiff proves that a tangible employment action resulted from a refusal to
submit to a supervisor’s sexual demands, he or she establishes that the
employment decision itself constitutes a change in the terms and conditions of
employment that is actionable under Title VII. For any sexual harassment
preceding the employment decision to be actionable, however, the conduct must
be severe or pervasive.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S.
742, 751, 753–754 [118 S.Ct. 2257, 141 L.Ed.2d 633].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166,
7:168–7:169, 7:194 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources
Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
1449
1450
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015
Directions for Use
This instruction is for use in a hostile work environment case when the defendant
is an employer or other entity covered by the FEHA. For an individual defendant,
such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For a case in which the plaintiff is not the target
of the harassment, see CACI No. 2521B, Hostile Work Environment
1451
1455
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
not the target of the harassing conduct and the defendant is an employer or other
1456
entity covered by the FEHA. For an individual defendant, such as the alleged
harasser or plaintiff’s coworker, see CACI No. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. For a case in which the plaintiff is the target of the harassment, see
CACI No. 2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For an
instruction for use if the hostile environment is due to widespread sexual
favoritism, see CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing
Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
In element 6, select the applicable basis of employer liability: (a) vicarious liability
for a supervisor’s harassing conduct, or (b) the employer’s ratification of the
conduct. For a definition of “supervisor,” see CACI No. 2525,
Harassment—“Supervisor” Defined.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “The plaintiff’s work environment is affected not only by conduct directed at
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find
the environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
1457
actually altered the conditions of the victim’s employment, and there is no Title
VII violation.’ . . . California courts have adopted the same standard in
evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc.
(1999) 21 Cal.4th 121, 129–130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal
citations omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Lyle, supra, 38 Cal.4th
at p. 284, internal citations omitted.)
• “[U]nder the FEHA, an employer is strictly liable for all acts of sexual
harassment by a supervisor. (State Dep’t of Health Servs. v. Superior Court
(2003) 31 Cal.4th 1026, 1041 [6 Cal.Rptr.3d 441, 79 P.3d 556], original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
1459
1460
Derived from former CACI No. 2521 December 2007; Revised December 2015
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
sexual favoritism when the defendant is an employer or other entity covered by the
1461
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “The elements [of a prima facie claim of hostile-environment sexual
harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was
subject to unwelcome sexual harassment; (3) the harassment complained of was
based on sex; (4) the harassment complained of was sufficiently pervasive so as
to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “ ‘[N]ot all workplace conduct that may be described as “harassment” affects a
“term, condition, or privilege” of employment within the meaning of Title VII.
For sexual harassment to be actionable, it must be sufficiently severe or
pervasive “to alter the conditions of [the victim’s] employment and create an
abusive working environment.’ ” . . . ‘Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment—an
environment that a reasonable person would find hostile or abusive—is beyond
Title VII’s purview. Likewise, if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the conditions
of the victim’s employment, and there is no Title VII violation.’ . . . [¶]
California courts have adopted the same standard in evaluating claims under the
FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130
[87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2,
132 P.3d 211], internal citations omitted.)
• “The FEHA imposes two standards of employer liability for sexual harassment,
depending on whether the person engaging in the harassment is the victim’s
supervisor or a nonsupervisory coemployee. The employer is liable for
harassment by a nonsupervisory employee only if the employer (a) knew or
should have known of the harassing conduct and (b) failed to take immediate
and appropriate corrective action. This is a negligence standard. Because the
FEHA imposes this negligence standard only for harassment ‘by an employee
other than an agent or supervisor’, by implication the FEHA makes the
employer strictly liable for harassment by a supervisor.” (State Dep’t of Health
Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr.3d 441,
79 P.3d 556], original italics.)
1463
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1464
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
the target of the harassing conduct and the defendant is an individual such as the
alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI No.
2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is not the target of the harassment, see CACI No. 2522B,
Hostile Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Individual Defendant. For an instruction for use if the hostile
environment is due to sexual favoritism, see CACI No. 2522C, Hostile Work
Environment Harassment—Widespread Sexual Favoritism—Essential Factual
1465
1468
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
not the target of the harassing conduct and the defendant is an individual such as
the alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI
No. 2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is the target of the harassment, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
1469
she personally witnessed it. The reason for this is obvious: if the plaintiff does
not witness the incidents involving others, ‘those incidents cannot affect . . .
her perception of the hostility of the work environment.’ ” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d
2, 132 P.3d 211], internal citations omitted.)
• “The elements [of a prima facie claim of hostile-environment sexual
harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was
subject to unwelcome sexual harassment; (3) the harassment complained of was
based on sex; (4) the harassment complained of was sufficiently pervasive so as
to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “When the workplace is permeated with discriminatory intimidation, ridicule
and insult that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,’ the law is
violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409
[27 Cal.Rptr.2d 457], internal citation omitted.)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[A]lthough no California cases have directly addressed racial harassment in the
workplace, the California courts have applied the federal threshold standard to
claims of sexual harassment and held that FEHA is violated when the
harassment was ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457,
464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Lyle, supra, 38 Cal.4th
at p. 284, internal citations omitted.)
• “[A]llegations of a racially hostile work-place must be assessed from the
perspective of a reasonable person belonging to the racial or ethnic group of the
1471
plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
1472
Derived from former CACI No. 2522 December 2007; Revised December 2015
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
sexual favoritism when the defendant is an individual such as the alleged harasser
or plaintiff’s coworker. For an employer defendant, see CACI No. 2521C, Hostile
Work Environment Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. For a case in which the plaintiff is the
target of harassment based on a protected status such as gender, race, or sexual
1473
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “When the workplace is permeated with discriminatory intimidation, ridicule
and insult that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,’ the law is
violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409
[27 Cal.Rptr.2d 457], internal citation omitted.)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[A]lthough no California cases have directly addressed racial harassment in the
workplace, the California courts have applied the federal threshold standard to
claims of sexual harassment and held that FEHA is violated when the
harassment was ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457,
464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2,
132 P.3d 211], internal citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
1475
1476
Harassing conduct may include, but is not limited to, [any of the
following:]
[a. Verbal harassment, such as obscene language, demeaning
comments, slurs, [or] threats [or] [describe other form of verbal
harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or
physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or
drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet
postings].]
1479
environment to be abusive, the conduct has not actually altered the conditions
of the victim’s employment, and there is no Title VII violation.’ . . . California
courts have adopted the same standard in evaluating claims under the FEHA.”
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87
Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “Whether the sexual conduct complained of is sufficiently pervasive to create a
hostile or offensive work environment must be determined from the totality of
the circumstances. The plaintiff must prove that the defendant’s conduct would
have interfered with a reasonable employee’s work performance . . . and that
she was actually offended . . . . The factors that can be considered in
evaluating the totality of the circumstances are: (1) the nature of the unwelcome
sexual acts or works (generally, physical touching is more offensive than
unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the
total number of days over which all of the offensive conduct occurs; and (4) the
context in which the sexually harassing conduct occurred.” (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–610 [262 Cal.Rptr. 842],
internal citation omitted.)
• “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts
have held that acts of harassment cannot be occasional, isolated, sporadic, or
trivial, rather the plaintiff must show a concerted pattern of harassment of a
repeated, routine or a generalized nature.” (Fisher, supra, 214 Cal.App.3d at p.
610.)
• “The United States Supreme Court . . . has clarified that conduct need not
seriously affect an employee’s psychological well-being to be actionable as
abusive work environment harassment. So long as the environment reasonably
would be perceived, and is perceived, as hostile or abusive, there is no need for
it also to be psychologically injurious.” (Kelly-Zurian v. Wohl Shoe Co., Inc.
(1994) 22 Cal.App.4th 397, 412 [27 Cal.Rptr.2d 457], internal citations
omitted.)
• “As the Supreme Court recently reiterated, in order to be actionable, ‘. . . a
sexually objectionable environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.’ The work environment must be
viewed from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’ This determination requires judges and
juries to exercise ‘[c]ommon sense, and an appropriate sensitivity to social
context’ in order to evaluate whether a reasonable person in the plaintiff’s
position would find the conduct severely hostile or abusive.” (Beyda v. City of
Los Angeles (1998) 65 Cal.App.4th 511, 518–519 [76 Cal.Rptr.2d 547], internal
citations omitted.)
• “The requirement that the conduct be sufficiently severe or pervasive to create a
working environment a reasonable person would find hostile or abusive is a
crucial limitation that prevents sexual harassment law from being expanded into
a ‘general civility code.’ The conduct must be extreme: ‘ “simple teasing,” . . .
1481
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the “terms and conditions of
employment.” ’ ” (Jones v. Department of Corrections (2007) 152 Cal. App. 4th
1367, 1377 [62 Cal.Rptr. 3d 200], internal citations omitted.)
• “[E]mployment law acknowledges that an isolated incident of harassing conduct
may qualify as ‘severe’ when it consists of ‘a physical assault or the threat
thereof.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [95 Cal.Rptr.3d 636,
209 P.3d 963], original italics.)
• “In the present case, the jury was instructed as follows: ‘In order to find in
favor of Plaintiff on his claim of race harassment, you must find that Plaintiff
has proved by a preponderance of the evidence that the racial conduct
complained of was sufficiently severe or pervasive to alter the conditions of
employment. In order to find that racial harassment is “sufficiently severe or
pervasive,” the acts of racial harassment cannot be occasional, isolated,
sporadic, or trivial.’ . . . [W]e find no error in the jury instruction given here
. . . . [T]he law requires the plaintiff to meet a threshold standard of severity or
pervasiveness. We hold that the statement within the instruction that severe or
pervasive conduct requires more than ‘occasional, isolated, sporadic, or trivial’
acts was an accurate statement of that threshold standard.” (Etter v. Veriflo
Corp. (1998) 67 Cal.App.4th 457, 465–467 [79 Cal.Rptr.2d 33].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin, et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 10:160–10:249
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation (Thomson West) § 2:56
1482
other than an agent or supervisor’ by implication the FEHA makes the employer
strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal. 4th 1026, 1040–1041 [6 Cal. Rptr. 3d 441, 79
P.3d 556], internal citations omitted.)
• “Unlike discrimination in hiring, the ultimate responsibility for which rests with
the employer, sexual or other harassment perpetrated by a supervisor with the
power to hire, fire and control the victimized employee’s working conditions is
a particularly personal form of the type of discrimination which the Legislature
sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court
(1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable
for the harassing actions of its supervisors and agents, but that the employer is
only liable for harassment by a coworker if the employer knew or should have
known of the conduct and failed to take immediate corrective action. Thus,
characterizing the employment status of the harasser is very significant.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal
citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a
supervisor who personally engages in sexually harassing conduct is personally
liable under the FEHA. Second, . . . if the supervisor participates in the sexual
harassment or substantially assists or encourages continued harassment, the
supervisor is personally liable under the FEHA as an aider and abettor of the
harasser. Third, under the FEHA, the employer is vicariously and strictly liable
for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual
harassment committed by a supervisor or agent is broader than the liability
created by the common law principle of respondeat superior, respondeat
superior principles are nonetheless relevant in determining liability when, as
here, the sexual harassment occurred away from the workplace and not during
work hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider
general principles of agency law. An agent is one who represents a principal in
dealings with third persons. An agent is a person authorized by the principal to
conduct one or more transactions with one or more third persons and to
exercise a degree of discretion in effecting the purpose of the principal. A
supervising employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th
at p. 1328, internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of
1484
supervisory power, they are not required elements of . . . the FEHA definition
of supervisor. Indeed, many supervisors with responsibility to direct others
using their independent judgment, and whose supervision of employees is not
merely routine or clerical, would not meet these additional criteria though they
would otherwise be within the ambit of the FEHA supervisor definition.”
(Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)
• “Defendants take the position that the court’s modified instruction is,
nonetheless, accurate because the phrase ‘responsibility to direct’ is the
functional equivalent of being ‘fully accountable and responsible for the
performance and work product of the employees. . . .’ In this, they rely on the
dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it
relates to the issue before us, this definition is unhelpful for two reasons. First,
one can be accountable for one’s own actions without being accountable for
those of others. Second, the argument appears to ignore the plain language of
the statute which itself defines the circumstances under which the exercise of
the responsibility to direct will be considered supervisory, i.e., ‘if . . . [it] is not
of a merely routine or clerical nature, but requires the use of independent
judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources
Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:320.5,
10:320.6 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s
Individual Liability, ¶ 10:499 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, § 3.21
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
1485
Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th
886, 900–901 [172 Cal.Rptr.3d 465].)
Sources and Authority
• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts
of sexual harassment by a supervisor. But strict liability is not absolute liability
in the sense that it precludes all defenses. Even under a strict liability standard,
a plaintiff’s own conduct may limit the amount of damages recoverable or bar
recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042,
internal citations omitted.)
• “We emphasize that the defense affects damages, not liability. An employer that
has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care.
The avoidable consequences doctrine is part of the law of damages; thus, it
affects only the remedy available. If the employer establishes that the employee,
by taking reasonable steps to utilize employer-provided complaint procedures,
could have caused the harassing conduct to cease, the employer will nonetheless
remain liable for any compensable harm the employee suffered before the time
at which the harassment would have ceased, and the employer avoids liability
only for the harm the employee incurred thereafter.” (State Dept. of Health
Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
• “Under the avoidable consequences doctrine as recognized in California, a
person injured by another’s wrongful conduct will not be compensated for
damages that the injured person could have avoided by reasonable effort or
expenditure. The reasonableness of the injured party’s efforts must be judged in
light of the situation existing at the time and not with the benefit of hindsight.
‘The standard by which the reasonableness of the injured party’s efforts is to be
measured is not as high as the standard required in other areas of law.’ The
defendant bears the burden of pleading and proving a defense based on the
avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “Although courts explaining the avoidable consequences doctrine have
sometimes written that a party has a ‘duty’ to mitigate damages, commentators
have criticized the use of the term ‘duty’ in this context, arguing that it is more
accurate to state simply that a plaintiff may not recover damages that the
plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “We hold . . . that in a FEHA action against an employer for hostile
environment sexual harassment by a supervisor, an employer may plead and
prove a defense based on the avoidable consequences doctrine. In this particular
context, the defense has three elements: (1) the employer took reasonable steps
to prevent and correct workplace sexual harassment; (2) the employee
unreasonably failed to use the preventive and corrective measures that the
employer provided; and (3) reasonable use of the employer’s procedures would
1487
have prevented at least some of the harm that the employee suffered.” (State
Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)
• “This defense will allow the employer to escape liability for those damages, and
only those damages, that the employee more likely than not could have
prevented with reasonable effort and without undue risk, expense, or
humiliation, by taking advantage of the employer’s internal complaint
procedures appropriately designed to prevent and eliminate sexual harassment.”
(State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations
omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to
utilize employer-provided complaint procedures, could have caused the
harassing conduct to cease, the employer will nonetheless remain liable for any
compensable harm the employee suffered before the time at which the
harassment would have ceased, and the employer avoids liability only for the
harm the employee incurred thereafter.” (State Dept. of Health Services, supra,
31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that
employees victimized by a supervisor’s sexual harassment must always report
such conduct immediately to the employer through internal grievance
mechanisms. The employer may lack an adequate antiharassment policy or
adequate procedures to enforce it, the employer may not have communicated
the policy or procedures to the victimized employee, or the employee may
reasonably fear reprisal by the harassing supervisor or other employees.
Moreover, in some cases an employee’s natural feelings of embarrassment,
humiliation, and shame may provide a sufficient excuse for delay in reporting
acts of sexual harassment by a supervisor.” (State Dept. of Health Services,
supra, 31 Cal.4th at p. 1045.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2010) Torts, § 1624
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371,
10:375 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)
1488
New June 2006; Revised April 2007, June 2013, December 2015
Directions for Use
Give this instruction after the appropriate instructions in this series on the
underlying claim for discrimination, retaliation, or harassment if the employee also
claims that the employer failed to prevent the conduct. (See Gov. Code,
§ 12940(k).) Read the bracketed language in the opening paragraph beginning with
“based on” if the claim is for failure to prevent harassment or discrimination.
For guidance for a further instruction on what constitutes “reasonable steps,” see
section 11019(b)(4) of Title 2 of the California Code of Regulations.
Sources and Authority
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative
and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd.
(2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word
“tort” means a civil wrong, other than a breach of contract, for which the law
1489
will provide a remedy in the form of an action for damages.’ ‘It is well settled
the Legislature possesses a broad authority . . . to establish . . . tort causes of
action.’ Examples of statutory torts are plentiful in California law.” ’ Section
12960 et seq. provides procedures for the prevention and elimination of
unlawful employment practices. In particular, section 12965, subdivision (a)
authorizes the Department of Fair Employment and Housing (DFEH) to bring
an accusation of an unlawful employment practice if conciliation efforts are
unsuccessful, and section 12965, subdivision (b) creates a private right of action
for damages for a complainant whose complaint is not pursued by the DFEH.”
(Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73
Cal.Rptr.2d 596], internal citations omitted.)
• “With these rules in mind, we examine the section 12940 claim and finding
with regard to whether the usual elements of a tort, enforceable by private
plaintiffs, have been established: Defendants’ legal duty of care toward
plaintiffs, breach of duty (a negligent act or omission), legal causation, and
damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287,
internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940, subdivision (k).”
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184
Cal.Rptr.3d 774].)
• “Also, there is a significant question of how there could be legal causation of
any damages (either compensatory or punitive) from such a statutory violation,
where the only jury finding was the failure to prevent actionable harassment or
discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th
at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015), . . . states that the
failure to prevent instruction should be given ‘after the appropriate instructions
in this series on the underlying claim for . . . harassment if the employee also
claims that the employer failed to prevent the conduct.’ An instruction on the
elements of an underlying sexual harassment claim would be unnecessary if the
failure to take reasonable steps necessary to prevent a claim for harassment
could be based on harassing conduct that was not actionable harassment.”
(Dickson, supra, 234 Cal.App.4th at p. 1317.)
• “In accordance with . . . the fundamental public policy of eliminating
discrimination in the workplace under the FEHA, we conclude that retaliation is
a form of discrimination actionable under [Gov. Code] section 12940,
subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006)
144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other
grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “[Defendant] suggests that a separate element in CACI No. 2527 requiring
[plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a
1490
1491
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
In the introductory paragraph and in elements 3 and 6, select the bracketed
language on “history” of disability if the claim of discrimination is based on a
history of disability rather than a current actual disability.
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
Modify elements 3 and 6 if plaintiff was not actually disabled or had a history of
disability, but alleges discrimination because he or she was perceived to be
disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].) This can be done with language in element 3 that the employer
“treated [name of plaintiff] as if [he/she] . . . ” and with language in element 6
“That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of his or her association with
someone who was or was perceived to be disabled, give CACI No. 2547,
Disability-Based Associational Discrimination—Essential Factual Elements. (See
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
655−660 [163 Cal.Rptr.3d 392] [claim for “disability based associational
discrimination” adequately pled].)
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in element 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement
that medical condition limit major life activity].)
Regarding element 4, it is now settled that the ability to perform the essential
duties of the job is an element of the plaintiff’s burden of proof. (See Green v.
State of California (2007) 42 Cal.4th 254, 257–258 [64 Cal.Rptr.3d 390, 165 P.3d
118].)
Read the first option for element 5 if there is no dispute as to whether the
1493
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 5 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of his or her
disability.
If the existence of a qualifying disability is disputed, additional instructions
defining “physical disability,” “mental disability,” and “medical condition” may be
required. (See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section
12940(a)(1).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Disabled Person Protected.
Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that
such actions were based on a [prohibited] discriminatory criterion . . . .” ’ ”
. . .’ The prima facie burden is light; the evidence necessary to sustain the
burden is minimal. As noted above, while the elements of a plaintiff’s prima
facie case can vary considerably, generally an employee need only offer
sufficient circumstantial evidence to give rise to a reasonable inference of
1494
the discrimination claims based on the other factors listed in section 12940,
subdivision (a). These differences arise because (1) additional statutory
provisions apply to disability discrimination claims, (2) the Legislature made
separate findings and declarations about protections given to disabled persons,
and (3) discrimination cases involving race, religion, national origin, age and
sex, often involve pretexts for the adverse employment action—an issue about
motivation that appears less frequently in disability discrimination cases.”
(Wallace, supra, 245 Cal.App.4th at p. 122.)
• “Summary adjudication of the section 12940(a) claim . . . turns on . . .
whether [plaintiff] could perform the essential functions of the relevant job with
or without accommodation. [Plaintiff] does not dispute that she was unable to
perform the essential functions of her former position as a clothes fitter with or
without accommodation. Under federal law, however, when an employee seeks
accommodation by being reassigned to a vacant position in the company, the
employee satisfies the ‘qualified individual with a disability’ requirement by
showing he or she can perform the essential functions of the vacant position
with or without accommodation. The position must exist and be vacant, and the
employer need not promote the disabled employee. We apply the same rule
here. To prevail on summary adjudication of the section 12940(a) claim,
[defendant] must show there is no triable issue of fact about [plaintiff]’s ability,
with or without accommodation, to perform the essential functions of an
available vacant position that would not be a promotion.” (Nadaf-Rahrov v. The
Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d
190], original italics, internal citations omitted.)
• “To establish a prima facie case of mental disability discrimination under
FEHA, a plaintiff must show the following elements: (1) She suffers from a
mental disability; (2) she is otherwise qualified to do the job with or without
reasonable accommodation; and (3) she was subjected to an adverse
employment action because of the disability.” (Higgins-Williams v. Sutter
Medical Foundation (2015) 237 Cal.App.4th 78, 84 [187 Cal.Rptr.3d 745].)
• “At most, [plaintiff] alleges only that he anticipated becoming disabled for some
time after the organ donation. This is insufficient. [Plaintiff] cannot pursue a
cause of action for discrimination under FEHA on the basis of his ‘actual’
physical disability in the absence of factual allegations that he was in fact,
physically disabled.” (Rope, supra, 220 Cal.App.4th at p. 659.)
• “[Defendant] asserts the statute’s ‘regarded as’ protection is limited to persons
who are denied or who lose jobs based on an employer’s reliance on the
‘myths, fears or stereotypes’ frequently associated with disabilities. . . .
However, the statutory language does not expressly restrict FEHA’s protections
to the narrow class to whom [defendant] would limit its coverage. To impose
such a restriction would exclude from protection a large group of individuals,
like [plaintiff], with more mundane long-term medical conditions, the
significance of which is exacerbated by an employer’s failure to reasonably
accommodate. Both the policy and language of the statute offer protection to a
1496
person who is not actually disabled, but is wrongly perceived to be. The
statute’s plain language leads to the conclusion that the ‘regarded as’ definition
casts a broader net and protects any individual ‘regarded’ or ‘treated’ by an
employer ‘as having, or having had, any physical condition that makes
achievement of a major life activity difficult’ or may do so in the future. We
agree most individuals who sue exclusively under this definitional prong likely
are and will continue to be victims of an employer’s ‘mistaken’ perception,
based on an unfounded fear or stereotypical assumption. Nevertheless, FEHA’s
protection is nowhere expressly premised on such a factual showing, and we
decline the invitation to import such a requirement.” (Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 53 [43 Cal.Rptr.3d 874], original italics,
internal citations omitted.)
• “[T]he purpose of the ‘regarded-as’ prong is to protect individuals rejected from
a job because of the ‘myths, fears and stereotypes’ associated with disabilities.
In other words, to find a perceived disability, the perception must stem from a
false idea about the existence of or the limiting effect of a disability.” (Diffey v.
Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1037 [101
Cal.Rptr.2d 353], internal citation omitted.)
• “We say on this record that [defendant] took action against [plaintiff] based on
concerns or fear about his possible future disability. The relevant FEHA
definition of an individual regarded as disabled applies only to those who suffer
certain specified physical disabilities or those who have a condition with ‘no
present disabling effect’ but which ‘may become a physical disability . . . .’
According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating
him because of his association with his physically disabled sister. That is not a
basis for liability under the ‘regarded as’ disabled standard.” (Rope, supra, 220
Cal.App.4th at p. 659, internal citations omitted.)
• “ ‘An adverse employment decision cannot be made “because of” a disability,
when the disability is not known to the employer. Thus, in order to prove [a
discrimination] claim, a plaintiff must prove the employer had knowledge of the
employee’s disability when the adverse employment decision was made. . . .
While knowledge of the disability can be inferred from the circumstances,
knowledge will only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations . . . .” . . .’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)
• “[W]e interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of
threats or violence against coworkers. If employers are not permitted to make
this distinction, they are caught on the horns of a dilemma. They may not
discriminate against an employee based on a disability but, at the same time,
must provide all employees with a safe work environment free from threats and
violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125
1497
1499
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
1500
other courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that he or she was qualified for a
position in light of the potential accommodation. (See Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 978; see also Cuiellette, supra, 194 Cal.App.4th at p. 767
[plaintiff proves he or she is a qualified individual by establishing that he or she
can perform the essential functions of the position to which reassignment is
sought].) The question of whether the employee has to present evidence of other
suitable job descriptions and prove that a vacancy existed for a position that the
employee could do with reasonable accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “The essential elements of a failure to accommodate claim are: (1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the
employer failed to reasonably accommodate the plaintiff’s disability.”
(Cuiellette, supra, 194 Cal.App.4th at p. 766.)
• “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or
adjustment to the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Cuiellette, supra, 194 Cal.App.4th at p.
766.)
• “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations for individuals with disabilities.’ ” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 968 [181 Cal.Rptr.3d 553],
original italics.)
• “The examples of reasonable accommodations in the relevant statutes and
regulations include reallocating nonessential functions or modifying how or
when an employee performs an essential function, but not eliminating essential
functions altogether. FEHA does not obligate the employer to accommodate the
1502
individual unless the employer can demonstrate that doing so would impose an
‘undue hardship.’ ” (Prilliman, supra, 53 Cal.App.4th at p. 947.)
• “ ‘Ordinarily the reasonableness of an accommodation is an issue for the jury.’ ”
(Prilliman, supra, 53 Cal.App.4th at p. 954, internal citation omitted.)
• “[T]he duty of an employer to provide reasonable accommodation for an
employee with a disability is broader under the FEHA than under the ADA.”
(Bagatti, supra, 97 Cal.App.4th at p. 362.)
• “Under the FEHA . . . an employer is relieved of the duty to reassign a
disabled employee whose limitations cannot be reasonably accommodated in his
or her current job only if reassignment would impose an ‘undue hardship’ on its
operations or if there is no vacant position for which the employee is qualified.”
(Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [96 Cal.Rptr.2d
236].)
• “On these issues, which are novel to California and on which the federal courts
are divided, we conclude that employers must reasonably accommodate
individuals falling within any of FEHA’s statutorily defined ‘disabilities,’
including those ‘regarded as’ disabled, and must engage in an informal,
interactive process to determine any effective accommodations.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
• “Appellant also stated a viable claim under section 12940, subdivision (m),
which mandates that an employer provide reasonable accommodations for the
known physical disability of an employee. She alleged that she was unable to
work during her pregnancy, that she was denied reasonable accommodations for
her pregnancy-related disability and terminated, and that the requested
accommodations would not have imposed an undue hardship on [defendant]. A
finite leave of greater than four months may be a reasonable accommodation for
a known disability under the FEHA.” (Sanchez v. Swissport, Inc. (2013) 213
Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)
• “To the extent [plaintiff] claims the [defendant] had a duty to await a vacant
position to arise, he is incorrect. A finite leave of absence may be a reasonable
accommodation to allow an employee time to recover, but FEHA does not
require the employer to provide an indefinite leave of absence to await possible
future vacancies.” (Nealy, supra, 234 Cal.App.4th at pp. 377–378.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 762
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
1504
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
1505
1508
New September 2003; Revoked June 2013; Restored and Revised December 2013
Directions for Use
Give this instruction with CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements, or CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, or both,
if it is necessary to explain what is an “essential job duty.” (See Gov. Code,
1509
§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 743–744 [151 Cal.Rptr.3d 292].) While the employee has the
burden to prove that he or she can perform essential job duties, with or without
reasonable accommodation, it is unresolved which party has the burden of proving
that a job duty is essential. (See Lui v. City and County of San Francisco (2012)
211 Cal.App.4th 962, 972–973 [150 Cal.Rptr.3d 385].)
Sources and Authority
• Ability to Perform Essential Duties. Government Code section 12940(a)(1).
• “Essential Functions” Defined. Government Code section 12926(f).
• Evidence of Essential Functions. 2 California Code of Regulations section
11065(e)(2).
• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).
• “ ‘ “Essential functions” means the fundamental job duties of the employment
position the individual with a disability holds or desires. “Essential functions”
does not include the marginal functions of the position.’ ‘ “Marginal functions”
of an employment position are those that, if not performed, would not eliminate
the need for the job or that could be readily performed by another employee or
that could be performed in an alternative way.’ ‘A job function may be
considered essential for any of several reasons, including, but not limited to,
any one or more of the following: [¶] (A) . . . [T]he reason the position exists
is to perform that function. [¶] (B) . . . [T]he limited number of employees
available among whom the performance of that job function can be distributed.
[¶] [And] (C) . . . the incumbent in the position is hired for his or her expertise
or ability to perform the particular [highly specialized] function.’ ” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9],
internal citations omitted.)
• “The identification of essential job functions is a ‘highly fact-specific inquiry.’ ”
(Lui, supra, 211 Cal.App.4th at p. 971.)
• “It is clear that plaintiff bore the burden of proving ‘that he or she is a qualified
individual under the FEHA (i.e., that he or she can perform the essential
functions of the job with or without reasonable accommodation).’ It is less clear
whether that burden included the burden of proving what the essential functions
of the position are, rather than just plaintiff’s ability to perform the essential
functions. Under the ADA, a number of federal decisions have held that
‘[a]lthough the plaintiff bears the ultimate burden of persuading the fact finder
that he can perform the job’s essential functions, . . . “an employer who
disputes the plaintiff’s claim that he can perform the essential functions must
put forth evidence establishing those functions.” [Citation.]’ . . . Arguably,
plaintiff’s burden of proving he is a qualified individual includes the burden of
proving which duties are essential functions of the positions he seeks.
Ultimately, we need not and do not decide in the present case which party bore
the burden of proof on the issue at trial . . . .” (Lui, supra, 211 Cal.App.4th at
pp. 972–973, internal citations omitted.)
1510
• “The trial court’s essential functions finding is also supported by the evidence
presented by defendant corresponding to the seven categories of evidence listed
in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be
dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 936,
937
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 8:744, 9:2298, 9:2402–9:2403, 9:2405, 9:2420
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
1511
1513
1515
1520
1522
without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 936
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment And Housing Act (FEHA),
¶¶ 9:2213–9:2215 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14, 115.23, 115.34 (Matthew Bender)
2548–2559. Reserved for Future Use
1524
1525
New September 2003; Revised June 2012, December 2012, June 2013
Directions for Use
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Element 7 requires that the plaintiff’s failure to comply with the conflicting job
requirement be a substantial motivating reason for the employer’s adverse action.
(See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d
392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
Explained.) Read the first option if there is no dispute as to whether the employer’s
acts constituted an adverse employment action. Read the second option and also
give CACI No. 2509, “Adverse Employment Action” Explained, if whether there
was an adverse employment action is a question of fact for the jury. If constructive
discharge is alleged, give the third option for element 7 and also give CACI No.
2510, “Constructive Discharge” Explained.
Federal courts construing Title VII of the Civil Rights Act of 1964 have held that
the threat of an adverse employment action is a violation if the employee
acquiesces to the threat and foregoes religious observance. (See, e.g., EEOC v.
Townley Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no
case has been found that construes the FEHA similarly, element 7 may be modified
if the court agrees that this rule applies. In the first option, a threat of discharge or
discipline may be inserted as an “other adverse employment action.” Or in the
second option, “subjected [name of plaintiff] to” may be replaced with “threatened
[name of plaintiff] with.”
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l).
• Scope of Religious Protection. Government Code section 12926(p).
• Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).
• Undue Hardship. Cal. Code Regs., tit. 2, § 11062.
• “In evaluating an argument the employer failed to accommodate an employee’s
religious beliefs, the employee must establish a prima facie case that he or she
had a bona fide religious belief, of which the employer was aware, that conflicts
with an employment requirement . . . . Once the employee establishes a prima
facie case, then the employer must establish it initiated good faith efforts to
accommodate or no accommodation was possible without producing undue
hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345,
370 [58 Cal.Rptr.2d 747], internal citation omitted.)
1526
1527
New September 2003; Revoked December 2012; Restored and Revised June 2013
Directions for Use
“Undue hardship” for purposes of religious creed discrimination is defined in the
same way that it is defined for disability discrimination. (See Gov. Code,
§§ 12940(l)(1), 12926(u).) CACI No. 2545, Disability Discrimination—Affırmative
Defense—Undue Hardship, may be given in religious accommodation cases also.
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l)(1).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “If the employee proves a prima facie case and the employer fails to initiate an
accommodation for the religious practices, the burden is then on the employer
to prove it will incur an undue hardship if it accommodates that belief. ‘[T]he
extent of undue hardship on the employer’s business is at issue only where the
employer claims that it is unable to offer any reasonable accommodation
without such hardship.’ . . .” (Soldinger v. Northwest Airlines, Inc. (1996) 51
Cal.App.4th 345, 371 [58 Cal.Rptr.2d 747], internal citations omitted.)
• “It would be anomalous to conclude that by ‘reasonable accommodation’
Congress meant that an employer must deny the shift and job preference of
some employees, as well as deprive them of their contractual rights, in order to
accommodate or prefer the religious needs of others, and we conclude that Title
VII does not require an employer to go that far . . . ¶¶. Alternatively, the Court
of Appeals suggested that [the employer] could have replaced [plaintiff] on his
Saturday shift with other employees through the payment of premium
wages . . . . To require [the employer] to bear more than a de minimus cost
. . . is an undue hardship. Like abandonment of the seniority system, to require
[the employer] to bear additional costs when no such costs are incurred to give
other employees the days off that they want would involve unequal treatment of
employees on the basis of their religion.” (TWA v. Hardison (1977) 432 U.S. 63,
81, 84 [97 S.Ct. 2264, 53 L.Ed.2d 113], footnote omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 921
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
1528
California Fair Employment and Housing Act, ¶¶ 7:215, 7:305, 7:610, 7:631,
7:640–7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35[2][a]–[c], 115.54, 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Religion,
pp. 227–234 (2000 supp.) at pp. 100–105
2562–2569. Reserved for Future Use
1529
there must be a causal link between the adverse action and the damage (see
element 7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686,
713 [81 Cal.Rptr.3d 406].)
Element 5 requires that age discrimination be a substantial motivating reason for
the adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof
and producing evidence, which is used in California for disparate-treatment cases
under FEHA, the employee must first present a prima facie case of discrimination.
The burden then shifts to the employer to produce evidence of a nondiscriminatory
reason for the adverse action. At that point, the burden shifts back to the employee
to show that the employer’s stated reason was in fact a pretext for a discriminatory
act.
Whether or not the employee has met his or her prima facie burden, and whether
or not the employer has rebutted the employee’s prima facie showing, are questions
of law for the trial court, not questions of fact for the jury. (See Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d
448].) In other words, by the time that the case is submitted to the jury, the
plaintiff has already established his or her prima facie case, and the employer has
already proffered a legitimate, nondiscriminatory reason for the adverse
employment decision. The McDonnell Douglas shifting burden drops from the case.
The jury is left to decide which evidence it finds more convincing, that of the
employer’s discriminatory intent or that of the employer’s age-neutral reasons for
the employment decision. (See Muzquiz v. City of Emeryville (2000) 79
Cal.App.4th 1106, 1118, fn. 5 [94 Cal.Rptr.2d 579]).
Under FEHA, age-discrimination cases require the employee to show that his or
her job performance was satisfactory at the time of the adverse employment action
as a part of his or her prima facie case (see Sandell v. Taylor-Listug, Inc. (2010)
188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the employer’s
burden to produce evidence of a nondiscriminatory reason for the action. Poor job
performance is the most common nondiscriminatory reason that an employer
advances for the action. Even though satisfactory job performance may be an
element of the employee’s prima facie case, it is not an element that the employee
must prove to the trier of fact. Under element 5 and CACI No. 2507, the burden
remains with the employee to ultimately prove that age discrimination was a
substantial motivating reason for the action. (See Muzquiz, supra, 79 Cal.App.4th at
p. 1119.)
See also the Sources and Authority to CACI No. 2500, Disparate
Treatment—Essential Factual Elements.
1531
1533
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.43 (Matthew Bender)
2571–2599. Reserved for Future Use
1534
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
1536
1537
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements, and CACI No. 2501, Affırmative Defense—Bona fide
Occupational Qualification.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
alleges discrimination because he or she was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
1540
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1541
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1543
1544
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential
Factual Elements, CACI No. 2503, Affırmative Defense—Business Necessity/Job
Relatedness, and CACI No. 2504, Disparate Impact—Rebuttal to Business
Necessity/Job Relatedness Defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1547
findings that are required in order to calculate the amount of prejudgment interest.
1548
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, August 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2505, Retaliation—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Read the second option for question 2 in cases involving a pattern of employer
harassment consisting of acts that might not individually be sufficient to constitute
retaliation, but taken as a whole establish prohibited conduct. Give both options if
the employee presents evidence supporting liability under both a sufficient-single-
act theory or a pattern-of-harassment theory. Also select “conduct” in question 3 if
the second option or both options are included for question 2.
1550
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1551
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2015,
December 2016
Directions for Use
This verdict form is based on CACI No. 2520, Quid pro quo Sexual
Harassment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question number
1, as in element 1 in CACI No. 2520.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1553
1554
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521A. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
Modify question 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because he or she was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1557
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2521B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521B. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1560
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1563
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1565
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2522A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2522A.
Modify question 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because he or she was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1566
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1568
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1569
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the sexual favoritism a substantial factor in causing harm to
[name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1571
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 2522C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism— Essential Factual
Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 in CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1572
Signed:
Presiding Juror
1574
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2009, June
2010, December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2540. Depending on the facts of the case, other factual
scenarios can be substituted in questions 3 and 6, as in elements 3 and 6 of the
instruction.
For question 3, select the claimed basis of discrimination: an actual disability, a
history of a disability, a perceived disability, or a perceived history of a disability.
For an actual disability, select “know that [name of plaintiff] had.” For a perceived
disability, select “treat [name of plaintiff] as if [he/she] had.”
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in question 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1575
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1576
Signed:
Presiding Juror
1578
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in questions 3
and 4. (Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no
requirement that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1579
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, and
CACI No. 2545, Disability Discrimination—Affırmative Defense—Undue Hardship.
If a different affirmative defense is at issue, this form should be tailored
accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in questions 3
and 4. (Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no
requirement that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
1582
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1583
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If
you answered yes, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of plaintiff]’s failure to comply with the conflicting job
requirement a substantial motivating reason for [name of
defendant]’s [discharge of/refusal to hire/[other adverse
employment action]] [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
1585
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1586
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2012, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements (see Gov.
Code, §§ 12926(u), 12940(l)) and CACI No. 2561, Religious Creed
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 11 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
1589
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1590
[d. TOTAL $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2009; Revised December 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2546, Disability
Discrimination—Reasonable Accommodation—Failure to Engage in Interactive
Process.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in question 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement
that medical condition limit major life activity].)
Do not include the transitional language following question 7 and question 8 if the
only damages claimed are also claimed under Government Code section 12940(m)
on reasonable accommodation. Use CACI No. VF-2509, Disability
Discrimination—Reasonable Accommodation, or CACI No. VF-2510, Disability
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship, to claim these damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
There is a split of authority as to whether the employee must also prove that
1593
1594
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2010; Revised December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2527, Failure to Prevent Harassment,
Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity
Defendant. These questions should be added to the verdict form that addresses the
underlying claim of discrimination, retaliation, or harassment if the plaintiff also
asserts a separate claim against the employer for failure to prevent the underlying
conduct. The jury should not reach these questions unless it finds that the
underlying claim is proved.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1596
1598
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2516–VF-2599. Reserved for Future Use
1600
As approved at the
December 2016 Judicial Council Meeting
2
Judicial Council of California
Series 2600–5000
ISSN: 1549-7100
ISBN: 978-1-5221-2291-3 (print)
© 2017 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Table of Statutes, Table of Cases, or Index.
© 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS BOOK: Judicial Council of California Civil Jury Instructions (2017 edition)
Cite these instructions: “CACI No. .”
Cite these verdict forms: “CACI No. VF- .”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(2017–Pub.1283)
Table of Contents
Volume 1
USER GUIDE
iii
iv
Volume 2
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
vi
Volume 1
USER GUIDE
xi
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and
Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would
Not Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative
Defense—Good Faith Mistaken Belief
VF-2406. Wrongful Discharge in Violation of Public Policy
VF-2407. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
Violate Public Policy
VF-2408. Constructive Discharge in Violation of Public Policy—Plaintiff Required to En-
dure Intolerable Conditions for Improper Purpose That Violates Public Policy
VF-2409–VF-2499. Reserved for Future Use
xxix
Volume 2
xxxi
xxxvii
xlix
unable to do her job at defendant’s hospital, not her ability to do her essential
job functions ‘generally’ . . . .” (Lonicki v. Sutter Health Central (2008) 43
Cal.4th 201, 214 [74 Cal.Rptr.3d 570, 180 P.3d 321].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 942–944
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-A, Overview
Of Key Statutes, ¶ 12:32 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:146,
12:390, 12:421, 12:857, 12:1201, 12:1300 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other
Employee Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, §§ 8.25[2],
8.30[1], [2], 8.31[2], 8.32 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][a], [b] (Matthew Bender)
California Civil Practice: Employment Litigation § 5:40 (Thomson Reuters)
2601. Eligibility
To show that [he/she] was eligible for [family care/medical] leave, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of defendant] employed 50 or more employees within
75 miles of [name of plaintiff]’s workplace;
3. That at the time [name of plaintiff] [requested/began] leave, [he/
she] had more than 12 months of service with [name of defendant]
and had worked at least 1,250 hours for [name of defendant]
during the previous 12 months; and
4. That at the time [name of plaintiff] [requested/began] leave [name
of plaintiff] had taken no more than 12 weeks of family care or
medical leave in the 12-month period [define period].
For notice of the need for leave to be reasonable, [name of plaintiff] must
make [name of defendant] aware that [he/she] needs [family
care/medical] leave, when the leave will begin, and how long it is
expected to last. The notice can be verbal or in writing and does not
need to mention the law. An employer cannot require disclosure of any
medical diagnosis, but should ask for information necessary to decide
whether the employee is entitled to leave.
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 12-B, Family And
Medical Leave Act (FMLA)/California Family Rights Act (CFRA),
¶¶ 12:852–12:853, 12:855–12:857 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][e] (Matthew Bender)
10
11
12
14
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA
Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
16
17
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
19
20
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2620, CFRA Rights Retaliation—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
22
23
25
New September 2003; Revised December 2005, December 2013, June 2015
Directions for Use
This instruction is for use in a civil action for payment of wages. Depending on the
allegations in the case, the definition of “wages” may be modified to include
additional compensation, such as earned vacation, nondiscretionary bonuses, or
severance pay.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. All of the wage orders define hours worked as “the time during which
an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so.” (See,
e.g., Wage Order 4, subd. 2(K).) The two parts of the definition are independent
factors, each of which defines whether certain time spent is compensable as “hours
worked.” Thus, an employee who is subject to an employer’s control does not have
to be working during that time to be compensated. Courts have identified various
factors bearing on an employer’s control during on-call time. However, what
qualifies as hours worked is a question of law. (Mendiola v. CPS Security Solutions,
Inc. (2015) 60 Cal.4th 833, 838–840 [182 Cal.Rptr.3d 124, 340 P.3d 355].)
Therefore, the jury should not be instructed on the factors to consider in
determining whether the employer has exercised sufficient control over the
employee during the contested period to require compensation.
However, the jury should be instructed to find any disputed facts regarding the
factors. For example, one factor is whether a fixed time limit for the employee to
respond to a call was unduly restrictive. Whether there was a fixed time limit
would be a disputed fact for the jury. Whether it was unduly restrictive would be a
matter of law for the court.
26
The court may modify this instruction or write an appropriate instruction if the
defendant employer claims a permissible setoff from the plaintiff employee’s
unpaid wages. Under California Wage Orders, an employer may deduct from an
employee’s wages for cash shortage, breakage, or loss of equipment if the employer
proves that this was caused by a dishonest or willful act or by the gross negligence
of the employee. (See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 8.)
Sources and Authority
• Right of Action for Wage Claim. Labor Code section 218.
• Wages Due on Discharge. Labor Code section 201.
• Wages Due on Quitting. Labor Code section 202.
• “Wages” Defined, Labor Code section 200.
• Wages Partially in Dispute. Labor Code section 206(a).
• Deductions From Pay. Labor Code section 221, California Code of Regulations,
Title 8, section 11010, subdivision 8.
• Nonapplicability to Government Employers. Labor Code section 220
• Employer Not Entitled to Release. Labor Code section 206.5.
• Private Agreements Prohibited. Labor Code section 219(a).
• “As an employee, appellant was entitled to the benefit of wage laws requiring
an employer to promptly pay all wages due, and prohibiting the employer from
deducting unauthorized expenses from the employee’s wages, deducting for
debts due the employer, or recouping advances absent the parties’ express
agreement.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302,
1330 [200 Cal.Rptr.3d 315].)
• “The Labor Code’s protections are ‘designed to ensure that employees receive
their full wages at specified intervals while employed, as well as when they are
fired or quit,’ and are applicable not only to hourly employees, but to highly
compensated executives and salespeople.” (Davis, supra, 245 Cal.App.4th at p.
1331, internal citation omitted.)
• “[W]ages include not just salaries earned hourly, but also bonuses, profit-sharing
plans, and commissions.” (Davis, supra, 245 Cal.App.4th at p. 1332, fn. 20.)
• “[A]n employee’s on-call or standby time may require compensation.”
(Mendiola, supra, 60 Cal.4th at p. 840.)
• “[Labor Code] section 221 has long been held to prohibit deductions from an
employee’s wages for cash shortages, breakage, loss of equipment, and other
business losses that may result from the employee’s simple negligence.”
(Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 1118 [41
Cal.Rptr.2d 46].)
• “[A]n employer is not entitled to a setoff of debts owing it by an employee
against any wages due that employee.” (Barnhill v. Robert Saunders & Co.
27
28
New September 2003; Revised June 2005, June 2014, June 2015
Directions for Use
The court must determine the prevailing minimum wage rate from applicable state
or federal law. (See, e.g., Cal. Code Regs., tit. 8, § 11000.) The jury must be
instructed accordingly.
Both liquidated damages (See Lab. Code, § 1194.2) and civil penalties (See Lab.
Code, § 1197.1) may be awarded on a claim for nonpayment of minimum wage.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) The California Labor Code and the
IWC’s wage orders provide that certain employees are exempt from minimum wage
requirements (for example, outside salespersons; see Lab. Code, § 1171), and that
under certain circumstances employers may claim credits for meals and lodging
against minimum wage pay (see Cal. Code Regs., tit. 8, § 11000, subd. 3, § 11010,
subd. 10, and § 11150, subd. 10(B)). The assertion of an exemption from wage and
hour laws is an affirmative defense. (See generally Ramirez v. Yosemite Water Co.
(1999) 20 Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) The advisory
committee has chosen not to write model instructions for the numerous fact-specific
affirmative defenses to minimum wage claims. (Cf. CACI No. 2720, Affırmative
Defense—Nonpayment of Overtime—Executive Exemption, and CACI No. 2721,
Affırmative Defense—Nonpayment of Overtime—Administrative Exemption.)
29
30
New September 2003; Revised June 2005, June 2014, June 2015
Directions for Use
The court must determine the overtime compensation rate under applicable state or
federal law. (See, e.g., Lab. Code, §§ 1173, 1182; Cal. Code Regs., tit. 8, § 11000,
subd. 2, § 11010, subd. 4(A), and § 11150, subd. 4(A).) The jury must be instructed
accordingly. It is possible that the overtime rate will be different over different
periods of time.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code, and a series of 18 wage orders adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2014) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Both the Labor Code and the IWC wage
orders provide for certain exemptions from overtime laws. (See, e.g., Lab. Code,
§ 1171 [outside salespersons are exempt from overtime requirements]). The
assertion of an employee’s exemption is an affirmative defense, which presents a
mixed question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th
785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) For instructions on exemptions, see
CACI No. 2720, Affırmative Defense—Nonpayment of Overtime—Executive
Exemption, and CACI No. 2721, Affırmative Defense—Nonpayment of
Overtime—Administrative Exemption.
31
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and
Regulation of Hours Worked, §§ 3.03[1], 3.04[1], 3.07[1], 3.08[1], 3.09[1]; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.40 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:76 (Thomson Reuters)
33
• “Absent an explicit, mutual wage agreement, a fixed salary does not serve to
compensate an employee for the number of hours worked under statutory
overtime requirements. . . . [¶] Since there was no evidence of a wage
agreement between the parties that appellant’s . . . per week compensation
represented the payment of minimum wage or included remuneration for hours
worked in excess of 40 hours per week, . . . appellant incurred damages of
uncompensated overtime.” (Hernandez, supra, 199 Cal.App.3d at pp. 725–726,
internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
of Wages, ¶ 11:456 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment
of Overtime Compensation, ¶ 11:955.2 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1478.5 (The Rutter
Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial
Remedies Under Wage and Hour Laws, § 5.72[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.40 (Matthew Bender)
35
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant] for [unpaid wages/[insert other claim]], then [name of
plaintiff] may be entitled to receive an award of a civil penalty based on
the number of days [name of defendant] failed to pay [his/her] [wages/
other] when due.
To recover the civil penalty, [name of plaintiff] must prove all of the
following:
1. The date on which [name of plaintiff]’s employment ended;
2. [That [name of defendant] failed to pay all wages due by [insert
date];]
2. [or]
2. [The date on which [name of defendant] paid [name of plaintiff] all
wages due;]
3. [Name of plaintiff]’s daily wage rate at the time [his/her]
employment with [name of defendant] ended; and
4. That [name of defendant] willfully failed to pay these wages.
The term “wages” includes all amounts for labor performed by an
employee, whether the amount is calculated by time, task, piece,
commission, or some other method.
The term “willfully” means that the employer intentionally failed or
refused to pay the wages.
calculation of a daily wage rate, which can then be multiplied by the number of
days of nonpayment, up to 30 days.” (Mamika v. Barca (1998) 68 Cal.App.4th
487, 493 [80 Cal.Rptr.2d 175].)
• “ ‘A tender of the wages due at the time of the discharge, if properly made and
in the proper amount, terminates the further accumulation of penalty, but it does
not preclude the employee from recovering the penalty already accrued.’ ”
(Oppenheimer v. Sunkist Growers, Inc. (1957) 153 Cal.App.2d Supp. 897, 899
[315 P.2d 116], citation omitted.)
• “In light of the unambiguous statutory language, as well as the practical
difficulties that would arise under defendant’s interpretation, we conclude there
is but one reasonable construction: section 203(b) contains a single, three-year
limitations period governing all actions for section 203 penalties irrespective of
whether an employee’s claim for penalties is accompanied by a claim for
unpaid final wages.” (Pineda, supra, 50 Cal.4th at p. 1398.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 398, 399
Chin et al., California Practice Guide: Employment Litigation, Ch. 1-A,
Introduction—Background, ¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B,
Compensation—Coverage and Exemptions—In General, ¶ 11:121 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D,
Compensation—Payment of Wages, ¶¶ 11:456, 11:470.1, 11:510, 11:513–11:515
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J,
Compensation—Enforcing California Laws Regulating Employee Compensation,
¶¶ 11:1458–11:1459, 11:1461–11:1461.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B,
Remedies—Contract Damages, ¶ 17:148 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial
Remedies Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.16[2][d] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:74 (Thomson Reuters)
2705–2709. Reserved for Future Use
38
41
employee, not a union, since the latter can neither be fired nor quit.” (Service
Employees Internat. Union, Local 193, AFL-CIO v. Hollywood Park, Inc.
(1983) 149 Cal.App.3d 745, 765 [197 Cal.Rptr. 316].)
• “Labor Code section 1050 applies only to misrepresentations made to
prospective employers other than the defendant. [¶] . . . [T]he Legislature
intended that Labor Code section 1050 would apply only to misstatements to
other potential employers, not to misstatements made internally by employees
of the party to be charged.” (Kelly v. General Telephone Co. (1982) 136
Cal.App.3d 278, 288–289 [186 Cal.Rptr. 184].)
• A communication without malice solicited by a prospective employer from a
former employer would be privileged in accordance with Civil Code section
47(c). (See O’Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040,
1047 [238 Cal.Rptr. 715].)
• “We . . . recognize that ‘[t]he primary purpose of punitive damages is to
punish the defendant and make an example of him.’ Since this purpose is the
same as the treble damages authorized by Labor Code section 1054, we do not
sanction a double recovery for the plaintiff. In the new trial on damages, the
jury should be instructed on the subject of punitive damages based on malice or
oppression. Any verdict finding compensatory damages must be trebled by the
court. Plaintiff may then elect to have judgment entered in an amount which
reflects either the statutory trebling, or the compensatory and punitive
damages.” (Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [190 Cal.Rptr.
392].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 284, 349, 352, 354–359, 381, 413, 417
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 4:351, 5:532, 5:540, 5:892.10, 16:493
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, §§ 249.22[3][a], 249.31, 249.81 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:29 (Thomson Reuters)
2712–2719. Reserved for Future Use
43
employee is an exempt executive. (See Lab. Code, § 515(a).) The employer must
prove all of the elements. (United Parcel Service Wage & Hour Cases (2010) 190
Cal.App.4th 1001, 1014 [118 Cal.Rptr.3d 834].) For an instruction for the
affirmative defense of administrative exemption, see CACI No. 2721, Affırmative
Defense—Nonpayment of Overtime—Administrative Exemption.
This instruction is based on Industrial Welfare Commission Wage Order 9, which is
applicable to the transportation industry. (See 8 Cal. Code Regs., § 11090.)
Different wage orders are applicable to different industries. (See Lab. Code, § 515.)
The requirements of the executive exemptions under the various wage orders are
essentially the same. (Cf., e.g., 8 Cal. Code Regs., § 11040, Wage Order 4,
applicable to persons employed in professional, technical, clerical, mechanical, and
similar occupations.).
The exemption requires that the employee be primarily engaged in duties that
“meet the test of the exemption.” (See 8 Cal. Code Regs., § 11090 sec. 1(A)(1)(e),
sec. 2(J) (“primarily” means more than one-half the employee’s work time).) This
requirement is expressed in element 5. However, the contours of executive duties
are quite detailed in the wage orders, which incorporate federal regulations under
the Fair Labor Standards Act and also provide some specific examples. (See also
Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 [85 Cal.Rptr.2d 844,
978 P.2d 2].) In many cases, it will be advisable to instruct further with details
from the applicable wage order and regulations as to what constitutes “executive
duties” in element 5.
Include the optional last paragraph if a particular work activity arguably involves
more than one purpose and could be characterized as exempt or nonexempt,
depending on its primary purpose.
This instruction may be expanded to provide examples of the specific exempt and
nonexempt activities relevant to the work at issue. (See, e.g., Heyen v. Safeway,
Inc. (2013) 216 Cal.App.4th 795, 808–809 [157 Cal.Rptr.3d 280].)
Sources and Authority
• Exemptions to Overtime Requirements. Labor Code section 515(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “In order to discharge its burden to show [plaintiff] was exempt as an executive
employee pursuant to Wage Order 9, [defendant] was required to demonstrate
the following: (1) his duties and responsibilities involve management of the
enterprise or a ‘customarily recognized department or subdivision thereof’; (2)
he customarily and regularly directs the work of two or more employees; (3) he
has the authority to hire or terminate employees, or his suggestions as to hiring,
firing, promotion or other changes in status are given ‘particular weight’; (4) he
customarily and regularly exercises discretion and independent judgment; (5) he
is primarily engaged in duties that meet the test of the exemption; and (6) his
45
monthly salary is equivalent to no less than two times the state minimum wage
for full-time employment.” (United Parcel Service Wage & Hour Cases, supra,
190 Cal.App.4th at p. 1014 [citing 8 Cal. Code Regs., § 11090, subd. 1(A)(1)].)
• “Determining whether or not all of the elements of the exemption have been
established is a fact-intensive inquiry.” (United Parcel Service Wage & Hour
Cases, supra, 190 Cal.App.4th at p. 1014.)
• “Review of the determination that [plaintiff] was not an exempt employee is a
mixed question of law and fact. Whether an employee satisfies the elements of
the exemption is a question of fact reviewed for substantial evidence. The
appropriate manner of evaluating the employee’s duties is a question of law that
we review independently.” (Heyen, supra, 216 Cal.App.4th at p. 817, internal
citations omitted.)
• “The appropriateness of any employee’s classification as exempt must be based
on a review of the actual job duties performed by that employee. Wage Order 9
expressly provides that ‘[t]he work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the
amount of time the employee spends on such work, together with the employer’s
realistic expectations and the realistic requirements of the job, shall be
considered . . . .’ No bright-line rule can be established classifying everyone
with a particular job title as per se exempt or nonexempt—the regulations
identify job duties, not job titles. ‘A job title alone is insufficient to establish the
exempt status of an employee. The exempt or nonexempt status of any
particular employee must be determined on the basis of whether the employee’s
salary and duties meet the requirements of the regulations . . . .’ ” (United
Parcel Service Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1014–1015,
original italics, internal citation omitted.)
• “[T]he federal regulations incorporated into Wage Order 7 do not support the
‘multi-tasking’ standard proposed by [defendant]. Instead, they suggest, as the
trial court correctly instructed the jury, that the trier of fact must categorize
tasks as either ‘exempt’ or ‘nonexempt’ based on the purpose for which
[plaintiff] undertook them.” (Heyen, supra, 216 Cal.App.4th at p. 826.)
• “Wage Order 4 refers to compensation in the form of a ‘salary.’ It does not
define the term. The regulation does not use a more generic term, such as
‘compensation’ or ‘pay.’ Either of these terms would encompass hourly wages, a
fixed annual salary, and anything in between. ‘Salary’ is a more specific form of
compensation. A salary is generally understood to be a fixed rate of pay as
distinguished from an hourly wage. Thus, use of the word ‘salary’ implies that
an exempt employee’s pay must be something other than an hourly wage.
California’s Labor Commission noted in an opinion letter dated March 1, 2002,
that the Division of Labor Standards Enforcement (DLSE) construes the IWC
wage orders to incorporate the federal salary-basis test for purposes of
determining whether an employee is exempt or nonexempt.” (Negri v. Koning &
Associates (2013) 216 Cal.App.4th 392, 397–398 [156 Cal.Rptr.3d 697, footnote
omitted.)
46
• “The rule is that state law requirements for exemption from overtime pay must
be at least as protective of the employee as the corresponding federal standards.
Since federal law requires that, in order to meet the salary basis test for
exemption the employee would have to be paid a predetermined amount that is
not subject to reduction based upon the number of hours worked, state law
requirements must be at least as protective.” (Negri, supra, 216 Cal.App.4th at
p. 398, internal citation omitted.)
• “Under California law, to determine whether an employee was properly
classified as ‘exempt,’ the trier of fact must look not only to the ‘work actually
performed by the employee during the . . . workweek,’ but also to the
‘employer’s realistic expectations and the realistic requirements of the job.’ ”
(Heyen, supra, 216 Cal.App.4th at p. 828.)
• “Having recognized California’s distinctive quantitative approach to determining
which employees are outside salespersons, we must then address an issue
implicitly raised by the parties that caused some confusion in the trial court and
the Court of Appeal: Is the number of hours worked in sales-related activities to
be determined by the number of hours that the employer, according to its job
description or its estimate, claims the employee should be working in sales, or
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an
outside salesperson, must steer clear of these two pitfalls by inquiring into the
realistic requirements of the job. In so doing, the court should consider, first
and foremost, how the employee actually spends his or her time. But the trial
court should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 361
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, § 2.04 (Matthew
Bender)
47
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
48
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an
outside salesperson, must steer clear of these two pitfalls by inquiring into the
realistic requirements of the job. In so doing, the court should consider, first
and foremost, how the employee actually spends his or her time. But the trial
court should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 361
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, § 2.04 (Matthew
Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
2722–2731. Reserved for Future Use
53
56
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2700, Nonpayment of Wages—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
57
findings that are required in order to calculate the amount of prejudgment interest.
58
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2701, Nonpayment of Minimum
Wage—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. If there are multiple causes
of action, users may wish to combine the individual forms into one form. If
different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
59
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
60
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
61
New September 2003; Revised December 2010, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
62
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
63
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2704, Damages—Waiting-Time Penalty for
Nonpayment of Wages. Depending on the facts of the case, other factual scenarios
can be substituted in questions 2, 3, and 4, as in elements 2, 3, and 4 in the
instruction.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
64
plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2710, Solicitation of Employee by
66
67
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2711, Preventing Subsequent Employment
by Misrepresentation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
69
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2706–VF-2799. Reserved for Future Use
70
WORKERS’ COMPENSATION
71
relationship sufficient to bring the act into play cannot be determined simply
from technical contractual or common law conceptions of employment but must
instead be resolved by reference to the history and fundamental purposes
underlying the Workmen’s Compensation Act.” (Laeng v. Workmen’s Comp.
Appeals Bd. (1972) 6 Cal.3d 771, 777 [100 Cal.Rptr. 377, 494 P.2d 1], internal
citations omitted.)
• “[C]ourts generally are more exacting in requiring proof of an employment
relationship when such a relationship is asserted as a defense by the employer
to a common law action.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 808
[247 Cal.Rptr. 347], internal citation omitted.)
• “The question of whether a person is an employee may be one of fact, of mixed
law and fact, or of law only. Where the facts are undisputed, the question is one
of law, and the Court of Appeal may independently review those facts to
determine the correct answer.” (Barragan v. Workers’ Comp. Appeals Bd. (1987)
195 Cal.App.3d 637, 642 [240 Cal.Rptr. 811], internal citations omitted.)
• “An employee may have more than one employer for purposes of workers’
compensation, and, in situations of dual employers, the second or ‘special’
employer may enjoy the same immunity from a common law negligence action
on account of an industrial injury as does the first or ‘general’ employer.
Identifying and analyzing such situations ‘is one of the most ancient and
complex questions of law in not only compensation but tort law.’ ” (Santa Cruz
Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 578 [239 Cal.Rptr.
578], internal citation omitted.)
• “In determining whether an employee is covered within the compensation
system and thus entitled to recover compensation benefits, the ‘definitional
reach of these covered employment relationships is very broad.’ A covered
employee is ‘every person in the service of an employer under any appointment
or contract of hire or apprenticeship, express or implied, oral or written.’ ‘Any
person rendering service for another, other than as an independent contractor, or
unless expressly excluded herein, is presumed to be an employee.’ . . . [T]hese
provisions mandate a broad and generous interpretation in favor of inclusion in
the system. Necessarily the other side of that coin is a presumption against the
availability of a tort action where an employment relation exists. One result
cannot exist without the other. Further, this result does not depend upon
‘informed consent,’ but rather on the parties’ legal status. . . . [W]here the facts
of employment are not disputed, the existence of a covered relationship is a
question of law.” (Santa Cruz Poultry, Inc., supra, 194 Cal.App.3d at pp.
583–584, internal citations omitted.)
• “Generally, ‘in the course of employment’ refers to the time and place of the
injury. The phrase ‘arise out of employment’ refers to a causal connection
between the employment and the injury.” (Atascadero Unified School Dist. v.
Workers’ Compensation Appeals Bd. (2002) 98 Cal.App.4th 880, 883 [120
Cal.Rptr.2d 239].)
• “The concept of ‘scope of employment’ in tort is more restrictive than the
75
77
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 43
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:655, 5:656–5:657, 15:527, 15:566–15:567, 15:570–15:571
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§§ 20.12[1][b], 20.41 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.17, 577.314[2] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
80
dual capacity doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30
Cal.Rptr.2d 18, 872 P.2d 559], internal citation omitted.)
• “In general, the Workers’ Compensation Act provides an employee with his or
her exclusive remedy for a work-related injury. Subject to narrow exceptions,
‘where the . . . conditions of compensation concur,’ an injured employee
cannot maintain a civil action against his or her employer or another
employee.” (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430
[124 Cal.Rptr.2d 227], internal citation omitted.)
• “[A]n employee seeking to state a cause of action against an employer under
section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the
trier of fact, establish the existence of three essential elements: (1) the employer
knew that the plaintiff had suffered a work-related injury; (2) the employer
concealed that knowledge from the plaintiff; and (3) the injury was aggravated
as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002)
99 Cal.App.4th 80, 89–90 [120 Cal.Rptr.2d 741], internal citation omitted.)
• “While there are no cases defining the term ‘fraudulent concealment’ as used in
the section, its general meaning is not difficult to discern. According to both
statute and case law, the failure to disclose facts may constitute fraud if the
party with knowledge has a duty to make disclosure. We have no reason to
believe that the term ‘fraudulent concealment’ as used in subdivision (b)(2) was
intended to have a meaning other than this.” (Foster v. Xerox Corp. (1985) 40
Cal.3d 306, 309–310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations
omitted.)
• “An employer’s actual knowledge of the existence of an employee’s injury
connected with the employment is a necessary prerequisite to establishing a
claim against the employer for fraudulent concealment under section 3602(b)(2).
This principle is based on the rationale that an employer cannot be held liable
under section 3602(b)(2) for concealing something of which it had no
knowledge.” (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations
omitted.)
• “In order to succeed in their attempt to remove their case from the workers’
compensation law, appellants first had to show an ‘injury.’ They then had to
prove that the injury was aggravated by Firestone’s fraudulent concealment of
the existence of the injury and its connection with the employment.” (Santiago
v. Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274
Cal.Rptr. 576], internal citation omitted.)
• “The Supreme Court in Johns-Manville recognized that the aggravation of an
injury that results when an employer fraudulently conceals the injury’s cause is
a harm distinct from the injury itself. For this reason, aggravation that results
when an employer fraudulently conceals an injury’s cause remains actionable
even though the injured party has recovered worker’s compensation benefits for
the injury itself.” (Aerojet General Corp. v. Superior Court (1986) 177
Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)
82
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 44, 45
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 15:526.1, 15:570, 15:570.5–15:570.6, 15:590
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][c] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][d] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.314[3], 577.525 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
83
• “The language ‘provided for the employee’s use’ indicates the product must be
given or furnished to the employee in order for the employee to accomplish
some task.” (Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567,
1574 [7 Cal.Rptr.2d 264].)
• “Our interpretation is in accord with that of commentators who have noted that
the exception of subdivision (b)(3) requires the employee to come into contact
with the defective product as a consumer.” (Behrens, supra, 4 Cal.App.4th at p.
1574, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 63
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶ 15:571
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][d] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][e] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[4] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
85
not meet the requirements of section 4558 cannot be bootstrapped onto a civil
action for damages which is properly brought under section 4558.” (Award
Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134 [279 Cal.Rptr.
459].)
• “In all its pertinent uses, then, the term ‘die’ refers to a tool that imparts shape
to material by pressing or impacting against or through the material, that is, by
punching, stamping or extruding; in none of its uses does the term refer to a
tool that imparts shape by cutting along the material in the manner of a blade.”
(Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 [92 Cal.Rptr.2d
465, 991 P.2d 1256].)
• “[U]nder subdivisions (a)(2) and (c), liability for ‘failure to install’ a point of
operation guard under section 4558 must be predicated upon evidence that the
‘manufacturer’ either provided or required such a device, which was not
installed by the employer.” (Flowmaster, Inc. v. Superior Court (1993) 16
Cal.App.4th 1019, 1027 [20 Cal.Rptr.2d 666].)
• “We find that the term guard, as used in section 4558, is meant to include the
myriad apparatus which are available to accomplish the purpose of keeping the
hands of workers outside the point of operation whenever the ram is capable of
descending. Because we find that the term guard is not a specific legal term of
art, we hold that the trial court properly provided the jury with a dictionary
definition of the term guard to explain its meaning under section 4558.”
(Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [282 Cal.Rptr. 161],
internal citation omitted; cf. Gonzalez v. Seal Methods, Inc. (2014) 223
Cal.App.4th 405, 410 [166 Cal.Rptr.3d 895] [point of operation guard does not
include unattached device, such as a safety block, that the worker moves into
and out of the point of operation].)
• “Physical removal, for the purpose of liability under section 4558, means to
render a safeguarding apparatus, whether a device or point of operation guard,
dysfunctional or unavailable for use by the operator for the particular task
assigned.” (Bingham, supra, 231 Cal.App.3d at p. 68.)
• “Nothing in the language, history or objectives underlying section 4558
convinces us that the Legislature intended that section 4558 would immunize
employers who design, manufacture and install their own power presses without
point of operation guards. A manufacturer is defined broadly in section 4558 as
a ‘designer, fabricator, or assembler of a power press.’ An ‘employer’ is not
excluded from the definition of a manufacturer, nor would doing so promote the
objectives of the statute.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp.
1029–1030, internal citation omitted.)
• “The element of knowledge requires ‘actual awareness’ by the employer—rather
than merely constructive knowledge—that a point of operation guard has either
been provided for or is required to prevent the probability of serious injury or
death.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1031–1032, internal
citation and footnote omitted.)
88
• “Liability under section 4558 can only be imposed if the employer fails to use
or removes a safety device required by the manufacturer of the press.
Essentially, the culpable conduct is the employer’s ignoring of the
manufacturer’s safety directive . . . . ‘From the plain language of section 4558,
it is clear that an exception to the exclusivity of workers’ compensation only
arises for a power press injury where the employer has been expressly informed
by the manufacturer that a point of operation guard is required, where the
employer then affirmatively removes or fails to install such guard, and where
the employer does so under conditions known by the employer to create a
probability of serious injury or death.’ ” (Aguilera v. Henry Soss & Co. (1996)
42 Cal.App.4th 1724, 1730 [50 Cal.Rptr.2d 477], internal citation omitted.)
• “As defined in the statute, ‘specifically authorized’ requires an ‘affirmative
instruction’ by the employer, as distinguished from mere acquiescence in or
ratification of an act or omission.” (Mora v. Hollywood Bed & Spring (2008)
164 Cal.App.4th 1061, 1068 [79 Cal.Rptr.3d 640].)
• “Specific authorization demands evidence of an affirmative instruction or other
wilful acts on the part of the employer despite actual knowledge of the
probability of serious harm.” (Flowmaster, Inc., supra, 16 Cal.App.4th at p.
1032, internal citation and footnote omitted.)
• “[I]mputation solely because of an agency relationship cannot bring an
employer within the reach of section 4558. Only an employer who directly
authorized by an affirmative instruction the removal or failure to install a guard
may be sued at law under section 4558.” (Watters Associates v. Superior Court
(1990) 218 Cal.App.3d 1322, 1325 [267 Cal.Rptr. 696].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 49–51, 102
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSH) Actions Relating To Occupational Safety And Health, ¶ 13:953 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶ 15:572 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][e] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][f] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[5] (Matthew Bender)
89
90
[Name of defendant] claims that [he/she] is not responsible for any harm
that [name of plaintiff] may have suffered because [he/she] was [name of
defendant]’s co-employee and therefore can recover only under
California’s Workers’ Compensation Act. To succeed, [name of
defendant] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] were [name of
employer]’s employees;
2. That [name of employer] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]]; and
3. That [name of defendant] was acting in the scope of [his/her]
employment at the time [name of plaintiff] claims [he/she] was
harmed.
92
cause of action in the employee but severely limited a preexisting right to freely
sue a fellow employee for damages.’ ” (Torres v. Parkhouse Tire Service, Inc.
(2001) 26 Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal
citations and footnotes omitted.)
• “[W]e conclude an ‘unprovoked physical act of aggression’ is unprovoked
conduct intended to convey an actual, present, and apparent threat of bodily
injury. A ‘threat,’ of course, is commonly understood as ‘an expression of
intention to inflict evil, injury, or damage’ and as ‘[a] communicated intent to
inflict harm or loss on another . . . .’ Thus, ‘unprovoked physical act of
aggression’ logically contemplates intended injurious conduct. By adding the
term ‘willful,’ the Legislature has underscored the need for an intent to bring
about the consequences of that expression, i.e., an intent to inflict injury or
harm.” (Torres, supra, 26 Cal.4th at p. 1005, internal citations omitted.)
• “As with other mental states, plaintiffs may rely on circumstantial evidence to
prove the intent to injure.” (Torres, supra, 26 Cal.4th at p. 1009.)
• “[T]o invoke civil liability under section 3601, subdivision (a)(1), a physical act
causing a reasonable fear of harm must be pleaded and proved, but the resulting
harm need not also be physical.” (Iverson v. Atlas Pacific Engineering (1983)
143 Cal.App.3d 219, 225 [191 Cal.Rptr. 696].)
• “We agree that conduct constituting a common law assault may be actionable
under section 3601(a)(1), provided that the conduct was intended to injure
. . . .” (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829 [12
Cal.Rptr.2d 405].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres, supra, 26 Cal.4th at p. 1006, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:624, 13:951, 13:962, 15:546, 15:569, 15:632
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
94
95
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
2813–2899. Reserved for Future Use
97
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2801, Employer’s Willful Physical
Assault—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that defendant engaged in conduct other than that which is
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2801.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
99
101
6. Answer question 7.
7. Subtract the total amount in question 6 from the total amount in
question 5. This is the amount [name of plaintiff] is entitled to
recover. $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2802, Fraudulent Concealment of
Injury—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
questions 5 and 6, and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
102
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2803, Employer’s Defective
Product—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
104
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
105
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2011,
December 2016
107
108
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2811, Co-Employee’s Willful and
Unprovoked Physical Act of Aggression—Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant engaged in conduct other than that
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2811.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
110
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
111
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2812, Injury Caused by Co-Employee’s
Intoxication—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
113
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2806–VF-2899. Reserved for Future Use
114
115
118
error. We agree that when the issue is properly raised and an instruction is
requested, the FELA requires jury instructions on the duty to provide a
reasonably safe place to work.” (Ragsdell v. Southern Pacific Transportation
Co. (9th Cir. 1982) 688 F.2d 1281, 1283, internal citations omitted.)
• “The test of negligence in supplying the employee a safe place to work is
‘whether reasonable men, examining the circumstances and the likelihood of
injury, would have taken those steps necessary to remove the danger.’ ”
(Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244 [53
Cal.Rptr. 851], internal citations omitted.)
• The duty to use reasonable care “is a duty which becomes ‘more imperative’ as
the risk increases. ‘Reasonable care becomes then a demand of higher
supremacy, and yet, in all cases it is a question of the reasonableness of the
care—reasonableness depending upon the danger attending the place or the
machinery.’ ” (Bailey v. Central Vermont Ry., Inc. (1943) 319 U.S. 350, 353 [63
S.Ct. 1062, 87 L.Ed. 1444], internal citation omitted.)
• “The employer is not the insurer of the safety of its employees and the test of
the employer’s liability to an injured employee is whether ordinary care was
used by the employer in regard to the risk.” (Baez v. Southern Pacific Co.
(1962) 210 Cal.App.2d 714, 717 [26 Cal.Rptr. 899], internal citation omitted.)
• The U.S. Supreme Court has held that an independent contractor is an “agent”
for purposes of establishing an employer’s liability under the FELA if the
contractor performs “operational activities” of the employer. (Sinkler v. Missouri
Pacific Railroad Co. (1958) 356 U.S. 326, 331–332 [78 S.Ct. 758, 2 L.Ed.2d
799].)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
120
121
2903. Causation—Negligence
123
v. Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
• “Under this statute the test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
(Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506 [77 S.Ct.
443, 1 L.Ed.2d 493].)
• “In sum, the understanding of Rogers we here affirm ‘has been accepted as
settled law for several decades.’ ‘Congress has had [more than 50] years in
which it could have corrected our decision in [Rogers] if it disagreed with it,
and has not chosen to do so.’ Countless judges have instructed countless juries
in language drawn from Rogers. To discard or restrict the Rogers instruction
now would ill serve the goals of ‘stability’ and ‘predictability’ that the doctrine
of statutory stare decisis aims to ensure.” (CSX Transp., Inc. v. McBride (2011)
— U.S. —, — [131 S.Ct. 2630, 2641, 180 L.Ed.2d 637], internal citations
omitted.)
• “The common law concept of proximate cause . . . has not been adopted as the
causation test in F.E.L.A. cases. Causation in an F.E.L.A. case exists even if
there is a plurality of causes, including the negligence of the defendant or of a
third person. The negligence of the employer need not be the sole cause or even
a substantial cause of the ensuing injury.” (Parker v. Atchison, Topeka and
Santa Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 123
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.42
(Matthew Bender)
125
126
the Boiler Inspection Act (BIA), the court may wish to add an introductory
instruction that would alert the jury to the difference between the two claims.
Do not give a comparative fault instruction if the case is brought under this theory.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• Assumption of Risk Under the FELA. Title 45 United States Code section 54.
• FELA Regulations Deemed to Be Statutes. Title 45 United States Code section
54a.
• Railroad Safety Requirements. Title 49 United States Code section 20302(a).
• Installation of Railroad Signal System. Title 49 United States Code section
20502(b).
• Use of Locomotive or Tender. Title 49 United States Code section 20701.
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence
based on failure of the SAA-mandated safety appliances to function. When such
strict liability does not apply, i.e., the injury does not result from defective
equipment covered by the SAA, the employee must establish common law
negligence. The Supreme Court has also recognized that the SAA imposes a
duty on railroads extending to nonemployee travelers at railway/highway
crossings, who must bring a common law tort action in state court (absent
diversity) and must prove negligence.” (Carrillo v. ACF Industries, Inc. (1999)
20 Cal.4th 1158, 1170, fn. 4 [86 Cal.Rptr.2d 832, 980 P.2d 386], internal
citations omitted.)
• “[An] FSAA violation is per se negligence in a FELA suit. In other words, the
injured employee has to show only that the railroad violated the FSAA, and the
railroad is strictly liable for any injury resulting from the violation.” (Phillips v.
CSX Transportation Co. (4th Cir. 1999) 190 F.3d 285, 288, original italics.)
• “ ‘The BIA and the SAA are regarded as amendments to the FELA. The BIA
supplements the FELA to provide additional public protection and facilitate
employee recovery. . . . [T]he BIA imposes on the carrier an absolute duty to
maintain the locomotive, and all its parts and appurtenances, in proper
condition, and safe to operate without unnecessary peril to life or limb.’ ”
(Fontaine v. National Railroad Passenger Corp. (1997) 54 Cal.App.4th 1519,
1525 [63 Cal.Rptr.2d 644], internal citation omitted.)
• “[N]either contributory negligence nor assumption of the risk is a defense to a
BIA violation which has contributed to the cause of an injury.” (Fontaine,
supra, 54 Cal.App.4th at p. 1525.)
• “Where an inefficient brake causes an injury the carrier in interstate commerce
128
under the Safety Appliance Act cannot escape liability, and proof of negligence
on the part of the railroad is unnecessary.” (Leet v. Union Pacific Railroad Co.
(1943) 60 Cal.App.2d 814, 817 [142 P.2d 37].)
• “Proof of a BIA violation is enough to establish negligence as a matter of law,
and neither contributory negligence nor assumption of risk can be raised as a
defense.” (Law v. General Motors Corp. (9th Cir. 1997) 114 F.3d 908, 912,
internal citations omitted.)
• “The purpose in enacting the BIA was to protect train service employees and
the traveling public from defective locomotive boilers and equipment. ‘[I]t has
been held consistently that the [BIA] supplements the [FELA] by imposing on
interstate railroads “an absolute and continuing duty” to provide safe
equipment.’ In addition to the civil penalty, a person harmed by violation of the
BIA is given recourse to sue under FELA, which applies only to railroad
employees injured while engaged in interstate commerce. FELA provides the
exclusive remedy for recovery of damages against a railroad by its employees.
FELA liability is expressly limited to common carriers.” (Viad Corp. v. Superior
Court (1997) 55 Cal.App.4th 330, 335 [64 Cal.Rptr.2d 136], internal citations
omitted, disapproved on other grounds in Scheiding v. General Motors Corp.
(2000) 22 Cal.4th 471, 484, fn. 6 [93 Cal.Rptr.2d 342, 993 P.2d 996].)
• “The test for coverage under the amendment is not whether the employee is
engaged in transportation, but rather whether what he does in any way furthers
or substantially affects transportation.” (Reed v. Pennsylvania Railroad Co.
(1956) 351 U.S. 502, 505 [76 S.Ct. 958, 100 L.Ed. 1366].)
• “Where more than one inference can be drawn from the evidence, the question
whether an employee was, at the time of receiving the injury sued for, engaged
in interstate commerce, is for the jury.” (Sullivan v. Matt (1955) 130 Cal.App.2d
134, 139 [278 P.2d 499], internal citations omitted.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.45
(Matthew Bender)
129
130
[Name of plaintiff] must prove that [he/she] did not know, and could not
reasonably have known, before [date three years before action was
commenced],
1. That [he/she] had been harmed; and
2. That the harm was potentially caused by [his/her] work with
[name of defendant].
You will be asked a question about this on a special [verdict
form/interrogatory].
131
be deemed pro hac vice employees of the railroad.” (Kelley, supra, 419 U.S. at
p. 330.)
• “The determination of whether a worker is a borrowed servant is accomplished
by ascertaining who has the power to control and direct the servants in the
performance of their work, distinguishing between authoritative direction and
control, and mere suggestion as to details or the necessary cooperation, where
the work furnished is part of a larger undertaking. There is thus a distinction
between ‘authoritative direction and control’ by a railroad, and the ‘minimum
cooperation necessary to carry out a coordinated undertaking’ which does not
amount to control or supervision. The control need not be exercised; it is
sufficient if the right to direct the details of the work is present. (Collins, supra,
207 Cal.App.4th at p. 879.)
• “The special employment relationship and its consequent imposition of liability
upon the special employer flows from the borrower’s power to supervise the
details of the employee’s work. Mere instruction by the borrower on the result
to be achieved will not suffice.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d
486, 492 [162 Cal.Rptr. 320, 606 P.2d 355] [not a FELA case].)
• “The question of whether a special employment relationship exists is generally
a question of fact reserved for the jury.” (Collins, supra, 207 Cal.App.4th at p.
878.)
• Contract terms are not conclusive evidence of the existence of the right to
control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr.
671, 588 P.2d 811] [not a FELA case].)
• Restatement Second of Agency, section 220 provides:
(1) A servant is a person employed to perform services in the affairs
of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right
to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among others,
are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
134
136
Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt, supra, 605 F.3d at p. 690, fn. 3.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 118
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
139
140
(Feichko v. Denver & Rio Grande Western Railroad Co. (10th Cir. 2000) 213
F.3d 586, 592, internal citations omitted.)
• Restatement Second of Agency, section 229, provides:
(1) To be within the scope of the employment, conduct must be of
the same general nature as that authorized, or incidental to the
conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following
matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of the
master or, if within the enterprise, has not been entrusted to
any servant;
(f) whether or not the master has reason to expect that such an
act will be done;
(g) the similarity in quality of the act done to the act
authorized;
(h) whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
• “The Restatement at § 229 sets forth intelligent factors for a factfinder to
consider in determining whether this has happened. We emphasize that no one
factor is dispositive; establishing one or more factors is not equivalent to
establishing scope of employment.” (Wilson v. Chicago, Milwaukee, St. Paul &
Pacific Railroad Co. (7th Cir. 1988) 841 F.2d 1347, 1355.)
• “[A]s a general rule, courts have held that an employee injured while
commuting to and from work is not covered by FELA.” (Ponce, supra, 103
F.Supp.2d at p. 1057.) However, FELA may apply if the injury occurs on the
employer’s work site “while the employee is attempting to report to or leave the
job within a reasonable time of his or her shift, and is exposed to risks not
confronted by the public generally.” (Ibid.)
142
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2927–2939. Reserved for Future Use
143
144
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [name of plaintiff] for the harm. This
compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of plaintiff] does not have to prove 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 [name of
plaintiff]:
since held that the absence in the Act of specific provisions governing the
measure of damages in FELA actions does not affect their availability as before
the Act.” (Hall v. Minnesota Transfer Railway Co. (D.Minn. 1971) 322 F.Supp.
92, 94.)
• “The seaman may thus recover for all of his pecuniary damages including such
damages as the cost of employing someone else to perform those domestic
services that he would otherwise have been able to render but is now incapable
of doing.” (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723
[Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp.
(1990) 498 U.S. 19, 32–33 [111 S.Ct. 317, 112 L.Ed.2d 275].)
• “Although our decision in Jones & Laughlin makes clear that no single method
for determining present value is mandated by federal law and that the method
of calculating present value should take into account inflation and other sources
of wage increases as well as the rate of interest, it is equally clear that an utter
failure to instruct the jury that present value is the proper measure of a damages
award is error.” (St. Louis Southwestern Railway, supra, 470 U.S. at p. 412.)
• “Damages for the injury of loss of earning capacity may be recovered in a
FELA action. ‘Earning capacity means the potential for earning money in the
future . . . .’ The appropriate measure is the present value of the total amount
of future earnings.” (Bissett v. Burlington Northern Railroad Co. (8th Cir. 1992)
969 F.2d 727, 731, internal citations omitted.)
• “[W]e see no reason, and defendant has presented us with no reason, to create
in FELA cases an exception to the general rule that the defendant has the
burden of proving that the plaintiff could, with reasonable effort, have mitigated
his damages.” (Jones v. Consolidated Rail Corp. (6th Cir. 1986) 800 F.2d 590,
594.)
• “The federal and state courts have held with virtual unanimity over more than
seven decades that prejudgment interest is not available under the FELA.”
(Monessen Southwestern Railway Co. v. Morgan (1988) 486 U.S. 330, 338 [108
S.Ct. 1837, 100 L.Ed.2d 349].)
• “We therefore reaffirm the conclusion . . . that punitive damages are
unavailable under the FELA.” (Wildman v. Burlington Northern Railroad Co.
(9th Cir. 1987) 825 F.2d 1392, 1395, internal citation omitted.)
• “We have held specifically that the spouse of an injured railroad employee may
not sue for loss of consortium under FELA.” (Kelsaw v. Union Pacific Railroad
Co. (9th Cir. 1982) 686 F.2d 819, 820, internal citation omitted.)
• 45 U.S.C. section 55 provides: “Any contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by this [chapter], shall to that
extent be void: Provided, That in any action brought against any such common
carrier under or by virtue of any of the provisions of this [chapter], such
common carrier may set off therein any sum it has contributed or paid to any
146
insurance, relief benefit, or indemnity that may have been paid to the injured
employee or the person entitled thereto on account of the injury or death for
which said action was brought.”
• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the
employer has undertaken voluntarily to indemnify itself against possible
liabilities under the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984)
726 F.2d 448, 450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he
should not be allowed to set off compensation from a ‘collateral source’ against
the amount he owes on account of his tort.” (Russo v. Matson Navigation Co.
(9th Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and
that the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.43,
485.44 (Matthew Bender)
147
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant] for the death of [name of decedent], you also must
decide how much money will reasonably compensate [name of plaintiff]
for this loss. This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of plaintiff] does not have to prove the exact amount of
these damages. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The reasonable value of money, goods, and services that [name of
decedent] would have provided [name of plaintiff] during either
the life expectancy that [name of decedent] had before [his/her]
death or the life expectancy of [name of plaintiff], whichever is
shorter;
2. [The monetary value of [name of minor child]’s loss of any care,
attention, instruction, training, advice, and guidance from [name
of decedent];]
3. Any pain and suffering that [name of decedent] experienced as a
result of [his/her] injuries; and
4. The reasonable expense of medical care and supplies reasonably
needed by and actually provided to [name of decedent].
Do not include in your award any compensation for [name of plaintiff]’s
grief, sorrow, or mental anguish or the loss of [name of decedent]’s
society or companionship.
In deciding a person’s life expectancy, consider, among other factors,
that person’s health, habits, activities, lifestyle, and occupation. Life
expectancy tables are evidence of a person’s life expectancy but are not
conclusive.
Any award you make for the value of any money and services that you
decide [name of decedent] would have provided [name of plaintiff] in the
future should be reduced to present value. Any award you make for the
value of any money and services you decide [name of decedent] would
have provided [name of plaintiff] between the date of [his/her] death on
[date of death] and the present should not be reduced to present value.
[In computing damages, consider the losses suffered by all plaintiffs and
return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
148
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he
should not be allowed to set off compensation from a ‘collateral source’ against
the amount he owes on account of his tort.” (Russo v. Matson Navigation Co.
(9th Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and
that the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
2 Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 21,
Jurisdiction, § 21.01[3] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.36,
485.43, 485.44 (Matthew Bender)
2943–2999. Reserved for Future Use
151
FELA VF-2900
VF-2900 FELA
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2900, FELA—Essential Factual Elements, and
CACI No. 2904, Comparative Fault.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
The breakdown of damages is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
154
FELA VF-2900
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
155
FELA VF-2901
Signed:
Presiding Juror
Dated:
157
VF-2901 FELA
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2920, Essential Factual Elements—Federal Safety
Appliance Act or Boiler Inspection Act.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
The breakdown of damages is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2902–VF-2999. Reserved for Future Use
158
CIVIL RIGHTS
CIVIL RIGHTS
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)
3061. Discrimination in Business Dealings—Essential Factual Elements (Civ.
Code, § 51.5)
3062. Gender Price Discrimination—Essential Factual Elements (Civ. Code,
§ 51.6)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code,
§ 51.7)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code,
§ 51.7)
3065. Sexual Harassment in Defined Relationship—Essential Factual Elements
(Civ. Code, § 51.9)
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
3069. Harassment in Educational Institution (Ed. Code, § 220)
3070. Disability Discrimination—Access Barriers to Public
Facility—Construction-Related Accessibility Standards Act—Essential
Factual Elements (Civ. Code, §§ 54.3, 55.56)
3071. Retaliation for Refusing to Authorize Disclosure of Medical
Information—Essential Factual Elements (Civ. Code, § 56.20(b))
3072–3099. Reserved for Future Use
VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C. § 1983)
VF-3001. Public Entity Liability (42 U.S.C. § 1983)
VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
VF-3003–VF-3009. Reserved for Future Use
VF-3010. Excessive Use of Force—Unreasonable Arrest or Other Seizure (42
U.S.C. § 1983)
VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C. § 1983)
VF-3012. Unreasonable Search—Search Without a Warrant (42 U.S.C. § 1983)
VF-3013. Unreasonable Search—Search Without a Warrant—Affirmative
Defense—Search Incident to Lawful Arrest (42 U.S.C. § 1983)
VF-3014–VF-3019. Reserved for Future Use
VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities
VF-3024–VF-3029. Reserved for Future Use
160
CIVIL RIGHTS
161
• “By the plain terms of § 1983, two—and only two—allegations are required in
order to state a cause of action under that statute. First, the plaintiff must allege
that some person has deprived him of a federal right. Second, he must allege
that the person who has deprived him of that right acted under color of state or
territorial law.” (Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 890 [104 Cal.Rptr.3d 352].)
• “Section 1983 can also be used to enforce federal statutes. For a statutory
provision to be privately enforceable, however, it must create an individual
right.” (Henry A. v. Willden (9th Cir. 2012) 678 F.3d 991, 1005, internal citation
omitted.)
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d
920].)
• “The jury was properly instructed on [plaintiff]’s burden of proof and the
particular elements of the section 1983 claim. (CACI No. 3000.)” (King v. State
of California (2015) 242 Cal.App.4th 265, 280 [195 Cal.Rptr.3d 286].)
• “ ‘State courts look to federal law to determine what conduct will support an
action under section 1983. The first inquiry in any section 1983 suit is to
identify the precise constitutional violation with which the defendant is
charged.’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 203 [73
Cal.Rptr.2d 571], internal citations omitted.)
• “ ‘Qualified immunity is an affirmative defense against section 1983 claims. Its
purpose is to shield public officials “from undue interference with their duties
and from potentially disabling threats of liability.” The defense provides
immunity from suit, not merely from liability. Its purpose is to spare defendants
the burden of going forward with trial.’ Because it is an immunity from suit,
not just a mere defense to liability, it is important to resolve immunity questions
at the earliest possible stage in litigation. Immunity should ordinarily be
resolved by the court, not a jury.” (Martinez v. County of Los Angeles (1996) 47
Cal.App.4th 334, 342 [54 Cal.Rptr.2d 772], internal citations omitted.)
• “Constitutional torts employ the same measure of damages as common law torts
and are not augmented ‘based on the abstract “value” or “importance” of
constitutional rights . . . .’ Plaintiffs have the burden of proving compensatory
damages in section 1983 cases, and the amount of damages depends ‘largely
upon the credibility of the plaintiffs’ testimony concerning their injuries.’ ”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321 [103 Cal.Rptr.2d
339], internal citations omitted.)
• “[E]ntitlement to compensatory damages in a civil rights action is not a matter
of discretion: ‘Compensatory damages . . . are mandatory; once liability is
found, the jury is required to award compensatory damages in an amount
appropriate to compensate the plaintiff for his loss.’ ” (Hazle v. Crofoot (9th Cir.
2013) 727 F.3d 983, 992.)
• “[T]he state defendants’ explanation of the jury’s zero-damages award as
163
allocating all of [plaintiff]’s injury to absent persons reflects the erroneous view
that not only could zero damages be awarded to [plaintiff], but that [plaintiff]’s
damages were capable of apportionment. [Plaintiff] independently challenges the
jury instruction and verdict form that allowed the jury to decide this question,
contending that the district judge should have concluded, as a matter of law,
that [plaintiff] was entitled to compensatory damages and that defendants were
jointly and severally liable for his injuries. He is correct. The district judge
erred in putting the question of apportionment to the jury in the first place,
because the question of whether an injury is capable of apportionment is a legal
one to be decided by the judge, not the jury.” (Hazle, supra, 727 F.3d at pp.
994–995.)
• “An individual acts under color of state law when he or she exercises power
‘possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’ ” (Naffe v. Frey (9th Cir. 2015) 789
F.3d 1030, 1036.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],’ ” does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman
v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “A state employee who is off duty nevertheless acts under color of state law
when (1) the employee ‘purport[s] to or pretend[s] to act under color of law,’
(2) his ‘pretense of acting in the performance of his duties . . . had the purpose
and effect of influencing the behavior of others,’ and (3) the harm inflicted on
plaintiff ‘related in some meaningful way either to the officer’s governmental
status or to the performance of his duties,’ ” (Naffe, supra, 789 F.3d at p. 1037,
internal citations omitted.)
• “[P]rivate parties ordinarily are not subject to suit under section 1983, unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private
164
165
New September 2003; Revised December 2010; Renumbered from CACI No. 3007
and Revised December 2012
Directions for Use
Give this instruction and CACI No. 3002, “Offıcial Policy or Custom” Explained,
if the plaintiff seeks to hold a local governmental entity liable for a civil rights
violation based on the entity’s official policy or custom. First give CACI No. 3000,
Violation of Federal Civil Rights—In General—Essential Factual Elements, and the
instructions on the particular constitutional violation alleged.
In element 3, a constitutional violation is not always based on intentional conduct.
Insert the appropriate level of scienter. For example, Eighth Amendment cases
involving failure to provide a prisoner with proper medical care require “deliberate
indifference.” (See Hudson v. McMillian (1992) 503 U.S. 1, 5 [112 S.Ct. 995, 117
L.Ed.2d 156].) And Fourth Amendment claims require an “unreasonable” search or
seizure. (See Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento
(1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834].)
For other theories of liability against a local governmental entity, see CACI No.
3003, Local Government Liability—Failure to Train—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
166
169
New September 2003; Revised June 2012; Renumbered from CACI No. 3008
December 2012
Directions for Use
These definitions are selected examples of official policy drawn from the cited
cases. The instruction may need to be adapted to the facts of a particular case. The
court may need to instruct the jury regarding the legal definition of “policymakers.”
In some cases, it may be necessary to include additional provisions addressing
factors that may indicate an official custom in the absence of a formal policy. The
Ninth Circuit has held that in some cases the plaintiff is entitled to have the jury
instructed that evidence of governmental inaction—specifically, failure to
investigate and discipline employees in the face of widespread constitutional
violations—can support an inference that an unconstitutional custom or practice has
been unofficially adopted. (Hunter v. County of Sacramento (9th Cir. 2011) 652
F.3d 1225, 1234, fn. 8.)
Sources and Authority
• “The [entity] may not be held liable for acts of [employees] unless ‘the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers’ or if the constitutional deprivation was ‘visited pursuant to
governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ ” (Redman v.
County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1443–1444, internal
citation omitted.)
• “[T]he official municipal policy in question may be either formal or informal.”
(Castro v. Cnty. of L.A. (9th Cir. 2015) 797 F.3d 654, 670.)
• “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
170
the theory that the relevant practice is so widespread as to have the force of
law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117
S.Ct. 1382, 137 L.Ed.2d 626].)
• “A formal policy exists when ‘a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.’. When
pursuing a Monell claim stemming from a formal policy, a plaintiff must prove
that the municipality ‘acted with the state of mind required to prove the
underlying violation.’ “(Castro, supra, 797 F.3d at pp. 670–671, internal citation
omitted.)
• “An informal policy, on the other hand, exists when a plaintiff can prove the
existence of a widespread practice that, although not authorized by an ordinance
or an express municipal policy, is ‘so permanent and well settled as to
constitute a custom or usage with the force of law.’ Such a practice, however,
cannot ordinarily be established by a single constitutional deprivation, a random
act, or an isolated event. Instead, a plaintiff . . . must show a pattern of similar
incidents in order for the factfinder to conclude that the alleged informal policy
was ‘so permanent and well settled’ as to carry the force of law.” (Castro,
supra, 797 F.3d at p. 671, internal citations omitted.)
• “While a rule or regulation promulgated, adopted, or ratified by a local
governmental entity’s legislative body unquestionably satisfies Monell’s policy
requirement, a ‘policy’ within the meaning of § 1983 is not limited to official
legislative action. Indeed, a decision properly made by a local governmental
entity’s authorized decisionmaker—i.e., an official who ‘possesses final
authority to establish [local government] policy with respect to the [challenged]
action’—may constitute official policy. ‘Authority to make municipal policy
may be granted directly by legislative enactment or may be delegated by an
official who possesses such authority, and of course whether an official had final
policymaking authority is a question of state law.’ ” (Thompson v. City of Los
Angeles (9th Cir. 1989) 885 F.2d 1439, 1443, internal citations and footnote
omitted.)
• “As with other questions of state law relevant to the application of federal law,
the identification of those officials whose decisions represent the official policy
of the local governmental unit is itself a legal question to be resolved by the
trial judge before the case is submitted to the jury.” (Jett v. Dallas Independent
School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct. 2702, 105 L.Ed.2d 598].)
• “[I]t is settled that whether an official is a policymaker for a county is
dependent on an analysis of state law, not fact.” (Pitts v. County of Kern (1998)
17 Cal.4th 340, 352 [70 Cal.Rptr.2d 823, 949 P.2d 920], internal citations
omitted.)
• “Once those officials who have the power to make official policy on a particular
issue have been identified, it is for the jury to determine whether their decisions
have caused the deprivation of rights at issue by policies which affirmatively
171
173
New September 2003; Revised December 2010, December 2011; Renumbered from
CACI No. 3009 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the entity’s failure to adequately train its
officers or employees. First give CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, and the instructions on the
particular constitutional violation alleged.
The inadequate training must amount to a deliberate indifference to constitutional
rights. (Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249.)
Element 2 expresses this deliberate-indifference standard. Deliberate indifference
requires proof of a pattern of violations in all but a few very rare situations in
which the unconstitutional consequences of failing to train are patently obvious.
(See Connick v. Thompson (2011) — U.S. —, — [131 S.Ct. 1350, 1361, 179
L.Ed.2d 417].) Delete the bracketed language in element 2 unless the facts present
the possibility of liability based on patently obvious violations.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
174
177
New December 2010; Renumbered from CACI No. 3010 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the acts of an official with final policymaking
authority. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
Liability may be based on either the official’s personal acts or policy decision that
led to the violation or the official’s subsequent ratification of the acts or decision of
another. (See Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346–1347.) If
both theories are alleged in the alternative, include “either” in element 1. Include
178
180
New April 2007; Renumbered from CACI No. 3013 December 2010; Revised
December 2011; Renumbered from CACI No. 3017 December 2012; Revised June
2013
Directions for Use
Read this instruction in cases in which a supervisor is alleged to be personally
liable for the violation of the plaintiff’s civil rights under Title 42 United States
Code section 1983.
For certain constitutional violations, deliberate indifference based on knowledge
and acquiescence is insufficient to establish the supervisor’s liability. The supervisor
must act with the purpose necessary to establish the underlying violation. (Ashcroft
v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for
claim of invidious discrimination in violation of the First and Fifth Amendments,
plaintiff must plead and prove that defendant acted with discriminatory purpose].)
In such a case, element 3 requires not only express approval, but also
discriminatory purpose. The United States Supreme Court has found constitutional
torts to require specific intent in three situations: (1) due process claims for injuries
caused by a high-speed chase (See Cnty. of Sacramento v. Lewis (1998) 523 U.S.
833, 836 [118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for
injuries suffered during the response to a prison disturbance (See Whitley v. Albers
(1986) 475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3)
invidious discrimination under the equal protection clause and the First Amendment
free exercise clause. (See Ashcroft v. Iqbal, supra, 556 U.S. at pp. 676–677.)
The Ninth Circuit has held that deliberate indifference based on knowledge and
181
establish a Bivens violation will vary with the constitutional provision at issue.’
Allegations that the [defendants] knowingly acquiesced in their subordinates’
discrimination did not suffice to state invidious racial discrimination claims
against them, because such claims require specific intent—something that
knowing acquiescence does not establish. On the other hand, because Eighth
Amendment claims for cruel and unusual punishment generally require only
deliberate indifference (not specific intent), a Sheriff is liable for prisoner abuse
perpetrated by his subordinates if he knowingly turns a blind eye to the abuse.
The Sheriff need not act with the purpose that the prisoner be abused. Put
simply, constitutional tort liability after Iqbal depends primarily on the requisite
mental state for the violation alleged.” (OSU Student Alliance, supra, 699 F.3d
at p. 1071, internal citations omitted.)
• “ ‘[S]upervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy “itself is a repudiation of constitutional rights” and is the “moving force
of a constitutional violation.” ’ ” (Crowley v. Bannister (9th Cir. 2013) 734 F.3d
967, 977.)
• “When a supervisory official advances or manages a policy that instructs its
adherents to violate constitutional rights, then the official specifically intends for
such violations to occur. Claims against such supervisory officials, therefore, do
not fail on the state of mind requirement, be it intent, knowledge, or deliberate
indifference. Iqbal itself supports this holding. There, the Court rejected the
invidious discrimination claims against [supervisory defendants] because the
complaint failed to show that those defendants advanced a policy of purposeful
discrimination (as opposed to a policy geared simply toward detaining
individuals with a ‘suspected link to the [terrorist] attacks’), not because it
found that the complaint had to allege that the supervisors intended to
discriminate against [plaintiff] in particular. Advancing a policy that requires
subordinates to commit constitutional violations is always enough for § 1983
liability, no matter what the required mental state, so long as the policy
proximately causes the harm—that is, so long as the plaintiff’s constitutional
injury in fact occurs pursuant to the policy.” (OSU Student Alliance, supra, 699
F.3d at p. 1076.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 347
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 8
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State
Law—General Principles, ¶ 7.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
184
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.20[4] (Matthew Bender)
3006–3019. Reserved for Future Use
185
New September 2003; Revised June 2012; Renumbered from CACI No. 3001
December 2012; Revised June 2015, June 2016
Directions for Use
The “official duties” referred to in element 3 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
The three factors (a), (b), and (c) listed are often referred to as the “Graham
factors.” (See Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104
186
L.Ed.2d 443].) The Graham factors are not exclusive. (See Glenn v. Wash. County
(9th Cir. 2011) 661 F.3d 460, 467–468.) Additional factors may be added if
appropriate to the facts of the case.
Additional considerations and verdict form questions will be needed if there is a
question of fact as to whether the defendant law enforcement officer had time for
reflective decision-making before applying force. If the officers’ conduct required a
reaction to fast-paced circumstances presenting competing public safety obligations,
the plaintiff must prove intent to harm. (See Green v. County of Riverside (2015)
238 Cal.App.4th 1363, 1372 [190 Cal.Rptr.3d 693].)
No case has yet determined, and therefore it is unclear, whether the defense has
either the burden of proof or the burden of producing evidence on reaction to fast-
paced circumstances. (See Evid. Code, §§ 500 [party has burden of proof as to each
fact the existence or nonexistence of which is essential to the claim for relief or
defense asserted], 550 [burden of producing evidence as to particular fact is on
party against whom a finding on the fact would be required in absence of further
evidence].)
For an instruction for use in a negligence claim under California common law
based on the same event and facts, see CACI No. 440, Unreasonable Force by Law
Enforcement Offıcer in Arrest or Other Seizure─Essential Factual Elements. For an
instruction for use alleging excessive force as a battery, see CACI No. 1305,
Battery by Police Offıcer.
Sources and Authority
• “In addressing an excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly infringed by the
challenged application of force. In most instances, that will be either the Fourth
Amendment’s prohibition against unreasonable seizures of the person, or the
Eighth Amendment’s ban on cruel and unusual punishments, which are the two
primary sources of constitutional protection against physically abusive
governmental conduct.” (Graham, supra, 490 U.S. at p. 395, internal citations
and footnote omitted.)
• “Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens
the right ‘to be secure in their persons . . . against unreasonable . . . seizures’
of the person.” (Graham, supra, 490 U.S. at p. 394.)
• “[A]ll claims that law enforcement officers have used excessive force—deadly
or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive due process’
approach.” (Graham, supra, 490 U.S. at p. 395.)
• “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” (Graham, supra, 490 U.S. at p. 396.)
187
an immediate threat when they released [dog] was unjustified. Thus, viewing
the evidence in the light most favorable to [plaintiff], the City has failed to
show that there are no questions of fact precluding summary judgment in its
favor. [¶][¶] The district court found otherwise, reasoning that the ‘officers
reasonably and objectively feared for their own safety and any possible
hostage’s safety,’ because they were searching for a ‘burglary suspect . . . at
night,’ because they ‘did not know whether the suspect was armed,’ and
because the door . . . was “ ‘ajar, but no lights were on inside.’ [¶] A
reasonable jury could easily disagree with this portrayal. The district court’s
reasoning assumes that any person inside an office building where a security
alarm has been tripped at night necessarily poses an immediate threat to their
safety or that of others. We find this assumption unwarranted. These facts,
standing alone, do not provide an ‘articulable basis for believing that” the
occupant is ‘armed or that [she or] he posed an immediate threat to anyone’s
safety.’ ” (Lowry, supra, 818 F.3d at pp. 849−851, footnotes omitted.)
• “To be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’s Fourth Amendment interests’ against
the government’s interests. But in weighing the evidence in favor of the
officers, rather than the [plaintiffs], the district court unfairly tipped the
reasonableness inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro.
Police Dep’t (9th Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)
• “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
constitutional liability.” (Hayes, supra, 57 Cal.4th at p. 639.)
• “[S]tate negligence law, which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law, which tends to focus more narrowly on the moment when deadly force is
used.” (Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “We are cognizant of the Supreme Court’s command to evaluate an officer’s
actions ‘from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police
officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.’ This does not mean, however, that a Fourth
Amendment violation will be found only in those rare instances where an
officer and his attorney are unable to find a sufficient number of compelling
adjectives to describe the victim’s conduct. Nor does it mean that we can base
our analysis on what officers actually felt or believed during an incident. Rather,
we must ask if the officers’ conduct is ‘ “objectively reasonable” in light of the
facts and circumstances confronting them’ without regard for an officer’s
subjective intentions.” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3d 805, 831,
internal citations omitted.)
• “[A]n officer may not use deadly force to apprehend a suspect where the
suspect poses no immediate threat to the officer or others. On the other hand, it
189
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
(Heck v. Humphrey (1994) 512 U.S. 477, 486–487 [114 S.Ct. 2364, 129
L.Ed.2d 383], footnotes and internal citation omitted.)
• “Heck requires the reviewing court to answer three questions: (1) Was there an
underlying conviction or sentence relating to the section 1983 claim? (2) Would
a ‘judgment in favor of the plaintiff [in the section 1983 action] “necessarily
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” (Fetters, supra, 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section
1983 claim would establish beyond all doubt the invalidity of the criminal
outcome; rather, a court need only ‘consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence.’ ”
(Fetters, supra, 243 Cal.App.4th at p. 841, original italics.)
• “[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the
arresting officer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though,
requires a separate analysis. ‘For example, a defendant might resist a lawful
arrest, to which the arresting officers might respond with excessive force to
subdue him. The subsequent use of excessive force would not negate the
lawfulness of the initial arrest attempt, or negate the unlawfulness of the
criminal defendant’s attempt to resist it. Though occurring in one continuous
chain of events, two isolated factual contexts would exist, the first giving rise to
criminal liability on the part of the criminal defendant, and the second giving
rise to civil liability on the part of the arresting officer.’ ” (Yount v. City of
Sacramento (2008) 43 Cal.4th 885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471],
original italics.)
• “[T]he district court effectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the question whether
[officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was
lawful, the district judge implied simultaneously that [plaintiff] was in fact
resisting or failing to obey the police officer’s lawful instructions. Presuming
such resistance could certainly have influenced the jury’s assessment of ‘the
need for force,’ as well as its consideration of the other Graham factors,
including ‘whether [the suspect] is actively resisting arrest or attempting to
192
193
New April 2009; Revised December 2009; Renumbered from CACI No. 3014
December 2012, June 2016
Directions for Use
Give this instruction in a false arrest case brought under title 42 United States Code
section 1983. For an instruction for false arrest under California law, see CACI No.
1401, False Arrest Without Warrant by Peace Offıcer—Essential Factual Elements.
The ultimate determination of whether the arresting officer had probable cause
(element 1) is to be made by the court as a matter of law. (Hunter v. Bryant (1991)
502 U.S. 224, 227–228 [112 S.Ct. 534, 116 L.Ed.2d 589].) However, in exercising
this role, the court does not sit as the trier of fact. It is still the province of the jury
to determine the facts on conflicting evidence as to what the arresting officer knew
at the time. (See Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010,
1018–1023; see also King v. State of California (2015) 242 Cal.App.4th 265, 289
[195 Cal.Rptr.3d 286].) Include “without probable cause” in element 1 and the last
optional paragraph if the jury will be asked to find facts with regard to probable
cause.
The “official duties” referred to in element 2 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 2.
194
arrest, she can make a prima facie case simply by showing that the arrest was
conducted without a valid warrant. At that point, the burden shifts to the
defendant to provide some evidence that the arresting officers had probable
cause for a warrantless arrest. The plaintiff still has the ultimate burden of
proof, but the burden of production falls on the defendant.” (Dubner v. City &
County of San Francisco (9th Cir. 2001) 266 F.3d 959, 965.)
• “There is no bright-line rule to establish whether an investigatory stop has risen
to the level of an arrest. Instead, this difference is ascertained in light of the
‘ “totality of the circumstances.” ’ This is a highly fact-specific inquiry that
considers the intrusiveness of the methods used in light of whether these
methods were ‘reasonable given the specific circumstances.’ ” (Green v. City &
County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047, original italics,
internal citations omitted.)
• “Because stopping an automobile and detaining its occupants, ‘even if only for
a brief period and for a limited purpose,’ constitutes a ‘seizure’ under the Fourth
Amendment, an official must have individualized ‘reasonable suspicion’ of
unlawful conduct to carry out such a stop.” (Tarabochia v. Adkins (9th Cir.
2014) 766 F.3d 1115, 1121, internal citation omitted.)
• “ ‘[Q]ualified immunity is a question of law, not a question of fact. [Citation.]
But Defendants are only entitled to qualified immunity as a matter of law if,
taking the facts in the light most favorable to [the plaintiff], they violated no
clearly established constitutional right. The court must deny the motion for
judgment as a matter of law if reasonable jurors could believe that Defendants
violated [the plaintiff’s] constitutional right, and the right at issue was clearly
established.’ ‘The availability of qualified immunity after a trial is a legal
question informed by the jury’s findings of fact, but ultimately committed to the
court’s judgment.’ “ ‘[D]eference to the jury’s view of the facts persists
throughout each prong of the qualified immunity inquiry.’ ” ‘[T]he jury’s view
of the facts must govern our analysis once litigation has ended with a jury’s
verdict.’ ‘Where, as here, the legal question of qualified immunity turns upon
which version of the facts one accepts, the jury, not the judge, must determine
liability.’ ” (King, supra, 242 Cal.App.4th at p. 289, internal citations omitted.)
• “[I]f what the policeman knew prior to the arrest is genuinely in dispute, and if
a reasonable officer’s perception of probable cause would differ depending on
the correct version, that factual dispute must be resolved by a fact finder.
[Citations.] [¶] . . . [W]e do not find the facts relative to probable cause to
arrest, and the alleged related conspiracy, so plain as to lead us to only a single
conclusion, i.e., a conclusion in defendants’ favor. The facts are complex,
intricate and in key areas contested. Even more important, the inferences to be
drawn from the web of facts are disputed and unclear—and are likely to depend
on credibility judgments.” (King, supra, 242 Cal.App.4th at p. 291, internal
citations omitted.)
196
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, § 181
5 Levy et al., California Torts, Ch. 60, Principles of Liability and Immunity of
Public Entities and Employees, § 60.06 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.36A
(Matthew Bender)
1 Civil Rights Actions, Ch. 2, Institutional and Individual Immunity, ¶ 2.03
(Matthew Bender)
197
New September 2003; Renumbered from CACI No. 3002 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’ ”
198
(United Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865
F.2d 1539, 1540, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
200
New September 2003; Renumbered from CACI No. 3003 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’ ”
(Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52
Cal.Rptr.2d 777], internal citation omitted.)
• “ ‘The Fourth Amendment prohibits only unreasonable searches . . . . [¶] The
test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v.
201
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private
parties involved in such a conspiracy may be liable under section 1983.”
(United Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865
F.2d 1539, 1540, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
203
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required. To succeed, [name of defendant] must
prove all of the following:
1. That the search was conducted as part of a lawful arrest of
[name of plaintiff];
2. That [name of defendant] searched only [name of plaintiff] and the
area within which [he/she] might have gained possession of a
weapon or might have destroyed or hidden evidence; and
3. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor].
New September 2003; Renumbered from CACI No. 3004 December 2012
Directions for Use
For instructions regarding whether an arrest is lawful, see instructions in the False
Imprisonment series (CACI Nos. 1400–1409).
This instruction is not intended for use in cases involving automobile searches:
“[W]e hold that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.” (New York v. Belton (1981)
453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768], footnotes omitted.)
Sources and Authority
• “Searches incident to lawful arrest constitute a well-established exception to the
warrant requirement of the Fourth Amendment.” (Hallstrom v. Garden City (9th
Cir. 1993) 991 F.2d 1473, 1477, internal citations omitted.)
• “Under applicable federal law, a lawful custodial arrest creates a situation which
justifies the full contemporaneous search without a warrant of the person
arrested and of the immediately surrounding area. Such searches are considered
valid because of the need to remove weapons and to prevent the concealment or
destruction of evidence.” (People v. Gutierrez (1984) 163 Cal.App.3d 332,
334–335 [209 Cal.Rptr. 376], internal citations omitted.)
204
205
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required because [name of plaintiff/third person]
consented to the search. To succeed, [name of defendant] must prove
both of the following:
1. That [[name of plaintiff]/[name of third person], who controlled or
reasonably appeared to have control of the area,] knowingly and
voluntarily consented to the search; and
2. That the search was reasonable under all of the circumstances.
[[Name of third person]’s consent is insufficient if [name of plaintiff] was
physically present and expressly refused to consent to the search.]
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor(s)].
New September 2003; Revised April 2009; Renumbered from CACI No. 3005
December 2012
Directions for Use
Give the optional paragraph after element 2 if the defendant relied on the consent
of someone other than the plaintiff to initiate the search. (See Georgia v. Randolph
(2006) 547 U.S. 103, 106 [126 S.Ct. 1515, 164 L.Ed.2d 208].)
Sources and Authority
• “The Fourth Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects. The
prohibition does not apply, however, to situations in which voluntary consent
has been obtained, either from the individual whose property is searched or
from a third party who possesses common authority over the premises.” (Illinois
v. Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148],
internal citations omitted.)
• “ ‘[C]ommon authority’ rests ‘on mutual use of the property by persons
generally having joint access or control for most purposes . . . .’ The burden of
establishing that common authority rests upon the State.” (Illinois v. Rodriguez,
supra, 497 U.S. at p. 181, internal citation omitted.)
• “The Fourth Amendment recognizes a valid warrantless entry and search of
206
premises when police obtain the voluntary consent of an occupant who shares,
or is reasonably believed to share, authority over the area in common with a
co-occupant who later objects to the use of evidence so obtained. The question
here is whether such an evidentiary seizure is likewise lawful with the
permission of one occupant when the other, who later seeks to suppress the
evidence, is present at the scene and expressly refuses to consent. We hold that,
in the circumstances here at issue, a physically present co-occupant’s stated
refusal to permit entry prevails, rendering the warrantless search unreasonable
and invalid as to him.” (Georgia, supra, 547 U.S. at p. 106, internal citations
omitted.)
• “Where consent is relied upon to justify the lawfulness of a search, the
government ‘has the burden of proving that the consent was, in fact, freely and
voluntarily given.’ ‘The issue of whether or not consent to search was freely
and voluntarily given is one of fact to be determined on the basis of the totality
of the circumstances.’ ” (U.S. v. Henry (9th Cir. 1980) 615 F.2d 1223, 1230,
internal citations omitted.)
• “Whether consent was voluntarily given ‘is to be determined from the totality
of all the circumstances.’ We consider the following factors to assess whether
the consent was voluntary: (1) whether the person was in custody; (2) whether
the officers had their guns drawn; (3) whether a Miranda warning had been
given; (4) whether the person was told that he had the right not to consent; and
(5) whether the person was told that a search warrant could be obtained.
Although no one factor is determinative in the equation, ‘many of this court’s
decisions upholding consent as voluntary are supported by at least several of the
factors.’ ” (U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026–1027, internal
citations omitted.)
• “ ‘The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a balancing
of the need for the particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v.
County of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834],
internal citation omitted.)
• “The Fourth Amendment proscribes only ‘unreasonable’ searches and seizures.
However, the reasonableness of a search or a seizure depends ‘not only on
when it is made, but also on how it is carried out.’ In other words, even when
supported by probable cause, a search or seizure may be invalid if carried out
in an unreasonable fashion. [¶] Whether an otherwise valid search or seizure
was carried out in an unreasonable manner is determined under an objective
test, on the basis of the facts and circumstances confronting the officers.”
(Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873, 875, original italics, internal
citation omitted.)
207
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
208
New September 2003; Renumbered from CACI No. 3006 December 2012
Sources and Authority
• “Absent consent, exigent circumstances must exist for a warrantless entry into a
home, despite probable cause to believe that a crime has been committed or that
incriminating evidence may be found inside. Such circumstances are ‘few in
number and carefully delineated.’ ‘Exigent circumstances’ means ‘an emergency
situation requiring swift action to prevent imminent danger to life or serious
damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.’ ” (Conway v. Pasadena Humane Society (1996) 45
Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777], internal citation omitted.)
• “Before agents of the government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091,
80 L.Ed.2d 732].)
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
209
interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police
officers’ ‘community caretaking function’ and allows them ‘to respond to
emergency situations’ that threaten life or limb; this exception does ‘not [derive
from] police officers’ function as criminal investigators.’ By contrast, the
‘exigency’ exception does derive from the police officers’ investigatory function;
it allows them to enter a home without a warrant if they have both probable
cause to believe that a crime has been or is being committed and a reasonable
belief that their entry is ‘necessary to prevent . . . the destruction of relevant
evidence, the escape of the suspect, or some other consequence improperly
frustrating legitimate law enforcement efforts.’ (Hopkins v. Bonvicino (9th Cir.
2009) 573 F.3d 752, 763, original italics, internal citations omitted.)
• “[D]etermining whether an official had ‘reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a] “question[] of fact to be
determined by a jury.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1475 [150 Cal.Rptr.3d 735].)
• “There is no litmus test for determining whether exigent circumstances exist,
and each case must be decided on the facts known to the officers at the time of
the search or seizure. However, two primary considerations in making this
determination are the gravity of the underlying offense and whether the delay in
seeking a warrant would pose a threat to police or public safety.” (Conway,
supra, 45 Cal.App.4th at p. 172.)
• “ ‘[W]hile the commission of a misdemeanor offense,’ such as the petty theft
that [defendants] were investigating, ‘is not to be taken lightly, it militates
against a finding of exigent circumstances where the offense . . . is not
inherently dangerous.’ ” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d
1178, 1189.)
• “Finally, even where exigent circumstances exist, ‘[t]he search must be “strictly
circumscribed by the exigencies which justify its initiation.” ’ ‘An exigent
circumstance may justify a search without a warrant. However, after the
emergency has passed, the [homeowner] regains his right to privacy, and . . . a
second entry [is unlawful].’ ” (Conway, supra, 45 Cal.App.4th at p. 173,
internal citation omitted.)
• “ ‘Exigent circumstances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police
were to delay a search [] until a warrant could be obtained.’ Mere speculation is
not sufficient to show exigent circumstances. Rather, ‘the government bears the
burden of showing the existence of exigent circumstances by particularized
evidence.’ This is a heavy burden and can be satisfied ‘only by demonstrating
specific and articulable facts to justify the finding of exigent circumstances.’
Furthermore, ‘the presence of exigent circumstances necessarily implies that
there is insufficient time to obtain a warrant; therefore, the government must
show that a warrant could not have been obtained in time.’ ” (U.S. v. Reid (9th
Cir. 2000) 226 F.3d 1020, 1027–1028, internal citations omitted.)
210
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
211
was imminent.” (Ryburn v. Huff (2012) — U.S. —, — [132 S.Ct. 987, 992, 181
L.Ed.2d 966].)
• “[O]fficer safety may also fall under the emergency rubric.” (Sandoval, supra,
756 F.3d at p. 1163.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3028–3039. Reserved for Future Use
213
New September 2003; Revised December 2010, June 2011; Renumbered from CACI
No. 3011 December 2012; Revised December 2014, June 2015
Directions for Use
Give this instruction in a case involving conduct that allegedly created a substantial
risk of serious harm to an inmate. (See Farmer v. Brennan (1994) 511 U.S. 825
[114 S.Ct. 1970, 128 L.Ed.2d 811].) For an instruction on deprivation of medical
care, see CACI No. 3041, Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care. For an instruction involving the deprivation of
necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil Rights—Eight
Amendment—Deprivation of Necessities.
In prison-conditions cases, the inmate must show that the defendant was
deliberately indifferent to his or her health or safety. (Farmer, supra, 511 U.S. at p.
834.) “Deliberate indifference” involves a two part inquiry. First, the inmate must
show that the prison officials were aware of a “substantial risk of serious harm” to
the inmate’s health or safety. Second, the inmate must show that the prison officials
214
had no “reasonable” justification for the conduct, in spite of that risk. (Thomas v.
Ponder (9th Cir. 2010) 611 F.3d 1144, 1150.) Elements 3 and 4 express the
deliberate-indifference components.
The “official duties” referred to in element 5 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 5.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475,
125 L.Ed.2d 22].)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The precise role of legitimate penological interests is not entirely clear in the
215
216
New September 2003; Revised December 2010; Renumbered from CACI No. 3012
December 2012; Revised June 2014, December 2014, June 2015
Directions for Use
Give this instruction in a case involving the deprivation of medical care to a
prisoner. For an instruction on the creation of a substantial risk of serious harm, see
CACI No. 3040, Violation of Prisoner’s Federal Civil Rights—Eighth
217
upon the failure to provide medical treatment, first the plaintiff must show a
serious medical need by demonstrating that failure to treat a prisoner’s
condition could result in further significant injury or the unnecessary and
wanton infliction of pain. Second, a plaintiff must show the defendant’s
response to the need was deliberately indifferent.’ The ‘deliberate indifference’
prong requires ‘(a) a purposeful act or failure to respond to a prisoner’s pain or
possible medical need, and (b) harm caused by the indifference.’ ‘Indifference
may appear when prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown in the way in which prison [officials]
provide medical care.’ ‘[T]he indifference to [a prisoner’s] medical needs must
be substantial. Mere “indifference,” “negligence,” or “medical malpractice” will
not support this [claim].’ Even gross negligence is insufficient to establish
deliberate indifference to serious medical needs.” (Lemire v. Cal. Dep’t of Corr.
& Rehab. (9th Cir. 2013) 726 F.3d 1062, 1081–1082, internal citations omitted.)
• “Indications that a plaintiff has a serious medical need include ‘[t]he existence
of an injury that a reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition that significantly
affects an individual’s daily activities; or the existence of chronic and
substantial pain.’ ” (Colwell v. Bannister (9th Cir. 2014) 763 F.3d 1060, 1066.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The subjective standard of deliberate indifference requires ‘more than ordinary
lack of due care for the prisoner’s interests or safety.’ The state of mind for
deliberate indifference is subjective recklessness. But the standard is ‘less
stringent in cases involving a prisoner’s medical needs . . . because “the State’s
responsibility to provide inmates with medical care ordinarily does not conflict
with competing administrative concerns.” ’ ” (Snow v. McDaniel (9th Cir. 2012)
681 F.3d 978, 985, internal citations omitted.)
• “[D]eliberate indifference ‘may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.’ . . . . ‘[A] prisoner need not
show his harm was substantial.’ ” (Wilhelm v. Rotman (9th Cir. 2012) 680 F.3d
1113, 1122, internal citation omitted.)
• “[A]llegations that a prison official has ignored the instructions of a prisoner’s
treating physician are sufficient to state a claim for deliberate indifference.”
(Wakefield v. Thompson (9th Cir. 1999) 177 F.3d 1160, 1165.)
• “[A] complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a constitutional
219
violation merely because the victim is a prisoner.” (Estelle, supra, 429 U.S. at
p. 106.)
• “ ‘A difference of opinion between a physician and the prisoner—or between
medical professionals—concerning what medical care is appropriate does not
amount to deliberate indifference.’ Rather, ‘[t]o show deliberate indifference, the
plaintiff “must show that the course of treatment the doctors chose was
medically unacceptable under the circumstances” and that the defendants “chose
this course in conscious disregard of an excessive risk to plaintiff’s health.” ’ ”
(Colwell, supra, 763 F.3d at p. 1068.)
• “It has been recognized . . . that inadequate medical treatment may, in some
instances, constitute a violation of 42 United States Code section 1983. In Sturts
v. City of Philadelphia, for example, the plaintiff alleged that defendants acted
‘carelessly, recklessly and negligently’ when they failed to remove sutures from
his eye, neck and face. The court concluded that although plaintiff was alleging
inadequate medical treatment, he had stated a cause of action under section
1983: ‘. . . where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally
reluctant to second guess medical judgments. In some cases, however, the
medical attention rendered may be so woefully inadequate as to amount to no
treatment at all, thereby rising to the level of a § 1983 claim. . . .’ ” (Ochoa v.
Superior Court (1985) 39 Cal.3d 159, 176–177 [216 Cal.Rptr. 661, 703 P.2d 1],
internal citations omitted.)
• “Because society does not expect that prisoners will have unqualified access to
health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are ‘serious.’ ” (Hudson v. McMillian
(1992) 503 U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citation
omitted.)
• “[T]here is a two-pronged test for evaluating a claim for deliberate indifference
to a serious medical need: First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s condition could result in
further significant injury or the unnecessary and wanton infliction of pain.
Second, the plaintiff must show the defendant’s response to the need was
deliberately indifferent. This second prong . . . is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical
need and (b) harm caused by the indifference.” (Akhtar v. Mesa (9th Cir. 2012)
698 F.3d 1202, 1213.)
• “A prison medical official who fails to provide needed treatment because he
lacks the necessary resources can hardly be said to have intended to punish the
inmate. The challenged instruction properly advised the jury to consider the
resources [defendant] had available in determining whether he was deliberately
indifferent.” (Peralta, supra, 744 F.3d at p. 1084.)
• “[T]rial judges in prison medical care cases should not instruct jurors to defer to
the adoption and implementation of security-based prison policies, unless a
220
19A California Points and Authorities, Ch. 196, Public Entities, § 196.183
(Matthew Bender)
222
New September 2003; Revised June 2010; Renumbered from CACI No. 3010
December 2010; Renumbered from CACI No. 3013 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
223
There is law suggesting that the jury should give deference to prison officials in the
adoption and execution of policies and practices that in their judgment are needed
to preserve discipline and to maintain internal security in a prison. This principle is
covered in the final sentence by the term “good faith.”
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d
920].)
• “The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who
may not, for example, use excessive physical force against prisoners. The
Amendment also imposes duties on these officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’ ” (Farmer v. Brennan (1994)
511 U.S. 825, 832 [114 S.Ct. 1970, 128 L.Ed.2d 811], internal citations
omitted.)
• “[A]pplication of the deliberate indifference standard is inappropriate when
authorities use force to put down a prison disturbance. Instead, ‘the question
whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on “whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” ’ ” (Hudson v. McMillian (1992) 503 U.S. 1, 6 [112 S.Ct. 995,
117 L.Ed.2d 156], internal citations omitted.)
• “[W]e hold that whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” (Hudson, supra, 503 U.S. at pp. 6–7, internal citations omitted.)
• “Whether the prison disturbance is a riot or a lesser disruption, corrections
officers must balance the need ‘to maintain or restore discipline’ through force
against the risk of injury to inmates. Both situations may require prison officials
to act quickly and decisively. Likewise, both implicate the principle that ‘prison
administrators . . . should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.’ ”
(Hudson, supra, 503 U.S. at p. 6, internal citations omitted.)
• “[T]his Court rejected the notion that ‘significant injury’ is a threshold
224
225
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 826
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.01 (Matthew Bender)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.70 (Matthew Bender)
226
justification for the conduct, in spite of that risk. (Thomas, supra, 611 F.3d at p.
1150.) Elements 4 and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475,
125 L.Ed.2d 22].)
• “Prison officials have a duty to ensure that prisoners are provided adequate
shelter, food, clothing, sanitation, medical care, and personal safety.” (Johnson
v. Lewis (9th Cir. 2000) 217 F.3d 726, 731, internal citations omitted.)
• “[E]xtreme deprivations are required to make out a conditions-of-confinement
claim. Because routine discomfort is ‘part of the penalty that criminal offenders
pay for their offenses against society,’ ‘only those deprivations denying “the
minimal civilized measure of life’s necessities” are sufficiently grave to form
the basis of an Eighth Amendment violation.’ ” (Hudson v. McMillian (1992)
503 U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citations omitted.)
• “[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious,’
a prison official’s act or omission must result in the denial of ‘the minimal
civilized measure of life’s necessities,’ . . . .” (Farmer, supra, 511 U.S. at p.
834, internal citations omitted.)
• “ ‘[O]nly the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison
official must have a ‘sufficiently culpable state of mind.’ In prison-conditions
cases that state of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations omitted.)
• “[A]n inmate seeking to prove an Eighth Amendment violation must
‘objectively show that he was deprived of something “sufficiently serious,” ’ and
‘make a subjective showing that the deprivation occurred with deliberate
indifference to the inmate’s health or safety.’ The second step, showing
‘deliberate indifference,’ involves a two part inquiry. First, the inmate must
show that the prison officials were aware of a ‘substantial risk of serious harm’
to an inmate’s health or safety. This part of our inquiry may be satisfied if the
inmate shows that the risk posed by the deprivation is obvious. Second, the
inmate must show that the prison officials had no ‘reasonable’ justification for
the deprivation, in spite of that risk.” (Thomas, supra, 611 F.3d at p. 1150,
footnote and internal citations omitted.)
228
• “Next, the inmate must ‘make a subjective showing that the deprivation
occurred with deliberate indifference to the inmate’s health or safety.’ To satisfy
this subjective component of deliberate indifference, the inmate must show that
prison officials ‘kn[e]w[] of and disregard[ed]’ the substantial risk of harm, but
the officials need not have intended any harm to befall the inmate; ‘it is enough
that the official acted or failed to act despite his knowledge of a substantial risk
of serious harm.’ ” (Lemire v. Cal. Dep’t of Corr. & Rehab. (9th Cir. 2013) 726
F.3d 1062, 1074, internal citations omitted.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply
to Eighth Amendment claims. The existence of a legitimate penological
justification has, however, been used in considering whether adverse treatment
is sufficiently gratuitous to constitute punishment for Eighth Amendment
purposes.” (Grenning v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2010) Constitutional Law, § 816
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
18 California Points and Authorities, Ch. 196, Public Entities, § 196.183 (Matthew
Bender)
3044–3049. Reserved for Future Use
229
New June 2010; Revised December 2010, Renumbered from CACI No. 3016 and
Revised December 2012, June 2013
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, if the claimed civil rights
violation is retaliation for exercising constitutionally protected rights. The
retaliation should be alleged generally in element 1 of CACI No. 3000.
The constitutionally protected activity refers back to the right alleged to have been
violated in element 3 of CACI No. 3000. Whether plaintiff was engaged in a
constitutionally protected activity will usually have been resolved by the court as a
matter of law. If so, include the optional statement in the opening paragraph and
omit element 1. If there is a question of fact that the jury must resolve with regard
to the constitutionally protected activity, include element 1 and give the last part of
the instruction.
There is perhaps some uncertainty with regard to the requirement in element 3 that
the retaliatory act may be motivated, in part, by the protected activity. While the
element is so stated in Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th
230
1049, 1062–1063 [99 Cal.Rptr.3d 661], the court also was of the view that the
defendant may avoid liability by proving that, notwithstanding a retaliatory motive,
it also had legitimate reasons for its actions and would have taken the same steps
for those reasons alone. (Id. at pp. 1086–1087, finding persuasive Greenwich
Citizens Comm. v. Counties of Warren & Washington Indus. Dev. Agency (2d Cir.
1996) 77 F.3d 26, 30.) Therefore, the fact that retaliation may have motivated the
defendant only in part may not always be sufficient for liability. In the Ninth
Circuit, there is authority for both a “but-for” and a “substantial or motivating
factor” standard. (Compare Karl v. City of Mountlake Terrace (9th Cir. 2012) 678
F.3d 1062, 1072 [defendant may show that: (1) the adverse employment action was
based on protected and unprotected activities; and (2) defendant would have taken
the adverse action if the proper reason alone had existed] with Blair v. Bethel Sch.
Dist. (9th Cir. 2010) 608 F.3d 540, 543 [third element expressed as “there was a
substantial causal relationship between the constitutionally protected activity and
the adverse action”].)
Sources and Authority
• “Where, as here, the plaintiff claims retaliation for exercising a constitutional
right, the majority of federal courts require the plaintiff to prove that (1) he or
she was engaged in constitutionally protected activity, (2) the defendant’s
retaliatory action caused the plaintiff to suffer an injury that would likely deter
a person of ordinary firmness from engaging in that protected activity, and (3)
the retaliatory action was motivated, at least in part, by the plaintiff’s protected
activity.” (Tichinin, supra, 177 Cal.App.4th at pp. 1062–1063.)
• “[A]ctions that are otherwise proper and lawful may nevertheless be actionable
if they are taken in retaliation against a person for exercising his or her
constitutional rights.” (Tichinin, supra, 177 Cal.App.4th at p. 1084.)
• “[A]n individual has a right ‘to be free from police action motivated by
retaliatory animus but for which there was probable cause.’ ” (Ford v. City of
Yakima (9th Cir. 2013) 706 F.3d 1188, 1193.)
• “Probable cause is not irrelevant to an individual’s claim that he was booked
and jailed in retaliation for his speech. Probable cause for the initial arrest can
be evidence of a police officer’s lack of retaliatory animus for subsequently
booking and jailing an individual. However, that determination should be left to
the trier of fact once a plaintiff has produced evidence that the officer’s conduct
was motivated by retaliatory animus.” (Ford, supra, 706 F.3d at p. 1194 fn.2,
internal citation omitted.)
• “[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury—i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights—because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
231
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
• “Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300–1301,
internal citation omitted.)
• “To show that retaliation was a substantial or motivating factor behind an
adverse employment action, a plaintiff can (1) introduce evidence that the
speech and adverse action were proximate in time, such that a jury could infer
that the action took place in retaliation for the speech; (2) introduce evidence
that the employer expressed opposition to the speech; or (3) introduce evidence
that the proffered explanations for the adverse action were false and pretextual.”
(Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)
• “To satisfy the [causation] requirement, the evidence must be sufficient to
establish that the officers’ desire to chill [plaintiff]’s speech was a but-for cause
of their conduct. In other words, would [plaintiff] have been booked and jailed,
rather than cited and arrested, but for the officers’ desire to punish [him] for his
speech?” (Ford, supra, 706 F.3d at p. 1194.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl, supra, 678 F.3d at pp. 1072–1073, internal
citation omitted.)
• “While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez
v. Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
• “We employ a ‘sequential five-step series of questions’ to determine whether an
employer impermissibly retaliated against an employee for protected speech: (1)
whether the plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3) whether the
plaintiff’s protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for
treating the employee differently from other members of the general public; and
(5) whether the state would have taken the adverse employment action even
absent the protected speech.” (Anthoine, supra, 605 F.3d at p. 748.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 820,
885A
232
233
If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their
homes [without prior judicial authorization] absent such a showing. [Citation.]
Officials, including social workers, who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ Because ‘the same legal standard applies in evaluating Fourth and
Fourteenth Amendment claims for the removal of children,” we may “analyze
[the claims] together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473−1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires
an official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d
990, 1000, internal citations omitted.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Importantly, ‘social workers who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ ” (Kirkpatrick v. County of Washoe (9th Cir. 2015) 792 F.3d 1184,
1194, original italics.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at
a hospital as part of a child abuse investigation, such that a reasonable person
235
in the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial
rights.” (Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure.’ In such cases, . . . a plaintiff must
‘convince the trier of fact that he actually suffered distress because of the denial
of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal
citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042,
55 L.Ed.2d 252].)
Secondary Sources
3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State Law--
Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.29 et seq. (Matthew Bender)
3052–3059. Reserved for Future Use
236
New September 2003; Revised December 2011, June 2012; Renumbered from CACI
No. 3020 December 2012; Revised June 2013, June 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and 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
237
discrimination based on age. Furthermore, the Act targets not just the practice
of outright exclusion, but pricing differentials as well.” (Javorsky, supra, 242
Cal.App.4th at p. 1394, internal citations omitted.)
• “[T]he language and history of the Unruh Act indicate that the legislative object
was to prohibit intentional discrimination in access to public accommodations.
We have been directed to no authority, nor have we located any, that would
justify extension of a disparate impact test, which has been developed and
applied by the federal courts primarily in employment discrimination cases, to a
general discrimination-in-public-accommodations statute like the Unruh Act.
Although evidence of adverse impact on a particular group of persons may have
probative value in public accommodations cases and should therefore be
admitted in appropriate cases subject to the general rules of evidence, a plaintiff
must nonetheless plead and prove a case of intentional discrimination to recover
under the Act.” (Harris, supra, 52 Cal.3d at p. 1149.)
• “On examining the language, statutory context, and history of section 51,
subdivision (f), we conclude . . . [t]he Legislature’s intent in adding
subdivision (f) was to provide disabled Californians injured by violations of the
ADA with the remedies provided by section 52. A plaintiff who establishes a
violation of the ADA, therefore, need not prove intentional discrimination in
order to obtain damages under section 52.” (Munson, supra, 46 Cal.4th at p.
665.)
• “Civil Code section 51, subdivision (f) states: ‘A violation of the right of any
individual under the federal [ADA] shall also constitute a violation of this
section.’ The ADA provides in pertinent part: ‘No individual shall be
discriminated against on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation by any person who . . . operates a place of
public accommodation.’ The ADA defines discrimination as ‘a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.’ ” (Baughman v. Walt Disney World Co. (2013) 217
Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825], internal citations omitted.)
• “ ‘Although the Unruh Act proscribes “any form of arbitrary discrimination,”
certain types of discrimination have been denominated “reasonable” and,
therefore, not arbitrary.’ Thus, for example, ‘legitimate business interests may
justify limitations on consumer access to public accommodations.’ ” (Hankins v.
El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520 [74 Cal.Rptr.2d
684], internal citations omitted.)
• “Discrimination may be reasonable, and not arbitrary, in light of the nature of
the enterprise or its facilities, legitimate business interests (maintaining order,
complying with legal requirements, and protecting business reputation or
240
242
New September 2003; Revised June 2012; Renumbered from CACI No. 3021 and
Revised December 2012; Revised June 2013, December 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Under the Unruh Civil Rights Act (see CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements), the California Supreme Court has held that
intentional discrimination is required. (See Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159–1162 [278 Cal.Rptr. 614, 805 P.2d 873].) While there
is no similar California case imposing an intent requirement under Civil Code
section 51.5, Civil Code section 51.5 requires that the discrimination be on account
of the protected category. (Civ. Code, § 51.5(a).) The kinds of prohibited conduct
would all seem to involve intentional acts. (See Nicole M. v. Martinez Unified Sch.
Dist. (N.D. Cal. 1997) 964 F.Supp. 1369, 1389, superseded by statute on other
grounds as stated in Sandoval v. Merced Union High Sch. (E.D. Cal. 2006) 2006
U.S. Dist. LEXIS 28446.) The intent requirement is encompassed within the
motivating-reason element (element 2).
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 [94 Cal.Rptr.3d 685, 208 P.3d 623].). Because this
exception is based on statutory construction of the Unruh Act (see Civ. Code,
§ 51(f)), the committee does not believe that it applies to section 51.5, which
contains no similar language.
Note that there are two causation elements. There must be a causal link between
the discriminatory intent and the adverse action (see element 2), and there must be
a causal link between the adverse action and the harm (see element 4).
Element 2 uses the term “substantial motivating reason” to express 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 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies under Civil
Code section 51.5 has not been addressed by the courts.
For an instruction on damages under Civil Code section 51.5, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a).); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
244
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 (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 [219 Cal.Rptr. 133, 707
P.2d 195].)
The judge may decide the issue of whether the defendant is a business
establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986)
178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be
needed if there are factual issues. This element has been omitted from the
instruction because it is unlikely to go to a jury.
Conceptually, this instruction has some overlap with CACI No. 3060, Unruh Civil
Rights Act—Essential Factual Elements. For a discussion of the basis of this
instruction, see Jackson v. Superior Court (1994) 30 Cal.App.4th 936, 941 [36
Cal.Rptr.2d 207].
Sources and Authority
• Discrimination in Business Dealings. Civil Code section 51.5.
• Protected Characteristics. Civil Code section 51(b).
• “In 1976 the Legislature added Civil Code section 51.5 to the Unruh Civil
Rights Act and amended Civil Code section 52 (which provides penalties for
those who violate the Unruh Civil Rights Act), in order to, inter alia, include
section 51.5 in its provisions.” (Pines v. Tomson (1984) 160 Cal.App.3d 370,
384 [206 Cal.Rptr. 866], footnote omitted.)
• “[I]t is clear from the cases under section 51 that the Legislature did not intend
in enacting section 51.5 to limit the broad language of section 51 to include
only selling, buying or trading. Both sections 51 and 51.5 have been liberally
applied to all types of business activities. Furthermore, section 51.5 forbids a
business to ‘discriminate against’ ‘any person’ and does not just forbid a
business to ‘boycott or blacklist, refuse to buy from, sell to, or trade with any
person.’ ” (Jackson, supra, 30 Cal.App.4th at p. 941, internal citation and
footnote omitted.)
• “Although the phrase ‘business establishment of every kind whatsoever’ has
been interpreted by the Supreme Court and the Court of Appeal in the context
of section 51, we are aware of no case which interprets that term in the context
of section 51.5. We believe, however, that the Legislature meant the identical
language in both sections to have the identical meaning.” (Pines, supra, 160
Cal.App.3d at p. 384, internal citations omitted.)
• “[T]he classifications specified in section 51.5, which are identical to those of
section 51, are likewise not exclusive and encompass other personal
characteristics identified in earlier cases.” (Roth v. Rhodes (1994) 25
Cal.App.4th 530, 538 [30 Cal.Rptr.2d 706], internal citations omitted.)
245
• “[T]he analysis under Civil Code section 51.5 is the same as the analysis we
have already set forth for purposes of the [Unruh Civil Rights] Act.” (Semler v.
General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 [127
Cal.Rptr.3d 794].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 898–914
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
246
New September 2003; Renumbered from CACI No. 3022 December 2012; Revised
June 2013
Directions for Use
For an instruction on damages under Civil Code section 51.6, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
It is possible that elements 2 and 3 are not needed if only the statutory minimum
$4000 award is sought. With regard to the Unruh Act (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 [219 Cal.Rptr. 133, 707
P.2d 195].)
The judge may decide the issue of whether the defendant is a business
establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986)
178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be
needed if there are factual issues. This element has been omitted from the
instruction because it is unlikely to go to a jury.
Sources and Authority
• Gender Price Discrimination. Civil Code section 51.6.
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
247
248
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023A December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving actual acts
of violence alleged to have been committed by the defendant against the plaintiff.
For an instruction involving only threats of violence, see CACI No. 3064, Threats
of Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s acts.
“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 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
249
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and
provides for a civil remedy for violation of that right. Nothing in the statute
requires that a plaintiff prove that the offending act was motivated by hate.”
(Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150
Cal.Rptr.3d 861].)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d
152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other
grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133,
707 P.2d 195].)
Secondary Sources
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
250
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023B December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving threats of
violence alleged to have been directed by the defendant toward the plaintiff. For an
instruction involving actual acts of violence, see CACI No. 3063, Acts of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s threats.
“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
251
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
No published California appellate opinion establishes elements 3 and 4. However,
the Ninth Circuit Court of Appeals and the California Fair Employment and
Housing Commission have held that a reasonable person in the plaintiff’s position
must have been intimidated by the actions of the defendant and have perceived a
threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc.
(9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co.
Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and
provides for a civil remedy for violation of that right. Nothing in the statute
requires that a plaintiff prove that the offending act was motivated by hate.”
(Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150
Cal.Rptr.3d 861].)
• “The test is: ‘would a reasonable person, standing in the shoes of the plaintiff,
have been intimidated by the actions of the defendant and have perceived a
threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal
citation omitted.)
• “When a threat of violence would lead a reasonable person to believe that the
threat will be carried out, in light of the ‘entire factual context,’ including the
surrounding circumstances and the listeners’ reactions, then the threat does not
receive First Amendment protection, and may be actionable under the Ralph
Act. The only intent requirement is that respondent ‘intentionally or knowingly
communicates his [or her] threat, not that he intended or was able to carry out
his threat.’ A threat exists if the ‘target of the speaker reasonably believes that
252
the speaker has the ability to act him or herself or to influence others. . . . It is
the perception of a reasonable person that is dispositive, not the actual intent of
the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp.
55–56, internal citations omitted.)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d
152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other
grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133,
707 P.2d 195].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A,
Employment Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
253
New September 2003; Revised April 2008; Renumbered from CACI No. 3024
December 2012
Directions for Use
Select either or both options for element 2 depending on the defendant’s conduct.
See also CACI No. 2524, “Severe or Pervasive” Explained.
Sources and Authority
• Sexual Harassment in Defined Relationship. Civil Code section 51.9.
• “[The] history of the [1999] amendments to Civil Code section 51.9 leaves no
doubt of the Legislature’s intent to conform the requirements governing liability
for sexual harassment in professional relationships outside the workplace to
those of the federal law’s Title VII and California’s FEHA, both of which
pertain to liability for sexual harassment in the workplace. Under both laws, an
employee plaintiff who cannot prove a demand for sexual favors in return for a
job benefit (that is, quid pro quo harassment) must show that the sexually
harassing conduct was so pervasive or severe as to alter the conditions of
employment. With respect to liability under section 51.9, which covers a wide
254
255
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]
256
[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
257
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.”
258
• “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
2 Wilcox, 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)
259
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [him/her] for the harm. This compensation is
called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of 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 [name of
plaintiff]:
[Insert item(s) of claimed harm.]
In addition, you may award [name of plaintiff] up to three times the
amount of [his/her] actual damages as a penalty against [name of
defendant].
New September 2003; Revised June 2012; Renumbered from CACI No. 3026
December 2012; Revised June 2013
Directions for Use
Give this instruction for violations of the Unruh Civil Rights Act in which actual
damages are claimed. (See Civ. Code, § 51; CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements.) This instruction may also be given for claims
under Civil Code section 51.5 (see CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements) and Civil Code section 51.6 (see CACI No.
3062, Gender Price Discrimination—Essential Factual Elements). If the only claim
is for statutory damages of $4,000 (see Civ. Code, § 52(a)), this instruction is not
needed. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133,
707 P.2d 195] [Unruh Act violations are per se injurious; Civ. Code, § 52(a)
provides for minimum statutory damages for every violation regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].)
See the instructions in the Damages series (CACI Nos. 3900 et seq.) for additional
instructions on actual damages and punitive damages. Note that the statutory
minimum amount of recovery for a plaintiff is $4,000 in addition to actual
damages. If the verdict is for less than that amount, the judge should modify the
verdict to reflect the statutory minimum.
260
261
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you must award the following:
1. Actual damages sufficient to reasonably compensate [name of
plaintiff] for the harm;
2. A civil penalty of $25,000; and
3. Punitive damages.
[Name of plaintiff] must prove the amount of [his/her] actual damages.
However, [name of 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 actual damages claimed by [name
of plaintiff]:
[Insert item(s) of claimed harm.]
New September 2003; Revised June 2012; Renumbered from CACI No. 3027
December 2012
Directions for Use
Give this instruction for violations of the Ralph Act. (See Civ. Code, § 51.7; CACI
No. 3063, Acts of Violence—Ralph Act—Essential Factual Elements, and CACI No.
3064, Threats of Violence—Ralph Act—Essential Factual Elements.) This
instruction may also be given for claims under Civil Code section 51.9 (see CACI
No. 3065, Sexual Harassment in Defined Relationship—Essential Factual Elements)
with item 2 omitted. (See Civ. Code, § 52(b)(2).)
See the Damages series (CACI Nos. 3900 et seq.) for additional instructions on
actual damages and punitive damages. CACI No. 3942, Punitive
Damages—Individual Defendant—Bifurcated Trial (Second Phase), instructs the
jury on how to calculate the amount of punitive damages.
Sources and Authority
• Remedies Under Ralph Act. Civil Code section 52(b).
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 898–914
Chin, et al., California Practice Guide: Employment Litigation, Ch. 7-G, Unruh
Civil Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
262
263
New April 2009; Renumbered from CACI No. 3028 December 2012
Directions for Use
This instruction does not include language that elaborates on what does or does not
constitute “deliberate indifference” beyond the broad standard of “clearly
unreasonable in light of all the known circumstances.” In Donovan v. Poway
Unified School Dist., the court noted that “deliberate indifference” will often be a
fact-based question for which bright line rules are ill-suited. However, the court
noted numerous examples from federal cases in which the standard was applied.
The failure of school officials to undertake a timely investigation of a complaint of
discrimination may amount to deliberate indifference. School officials also must
take timely and reasonable measures to end known harassment. A response may be
clearly unreasonable if a school official ignores a complaint of discrimination or if
the initial measures chosen to respond to the harassment are ineffective. (Donovan
v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d
285].) Any of these factors that are applicable to the facts of the case may be
added at the end of the instruction.
Sources and Authority
• Harassment in Educational Institution. Education Code section 201.
• Discrimination in Educational Institutions. Education Code section 220.
• Duty to Inform of Remedies. Education Code section 262.3(b).
264
• “We conclude that to prevail on a claim under section 220 for peer sexual
orientation harassment, a plaintiff must show (1) he or she suffered “severe,
pervasive and offensive” harassment that effectively deprived the plaintiff of the
right of equal access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the school district
acted with ‘deliberate indifference’ in the face of such knowledge. We further
conclude that from the words of section 262.3, subdivision (b), as well as from
other markers of legislative intent, money damages are available in a private
enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p.
579.)
• “Like Title IX, . . . enforcement of the Education Code’s antidiscrimination law
rests on the assumption of ‘actual notice’ to the funding recipient. . . . [¶¶] We
decline to adopt a liability standard for damages under section 220 based on
principles of respondeat superior and/or constructive notice, particularly in light
of the circumstances presented here when the claim of discrimination is not, for
example, based on an official policy of the District, but is instead the result of
peer sexual orientation harassment and the District’s response (or lack thereof)
to such harassment. . . . [N]egligence principles should not apply to impose
liability under a statutory scheme when administrative enforcement of that
scheme contemplates actual notice to the funding recipient, with an opportunity
to take corrective action before a private action may lie. By requiring actual
notice, we ensure liability for money damages under section 220 is based on a
funding recipient’s own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at
pp. 604–605, original italics, internal citations omitted.)
• “The decisions of federal courts interpreting Title IX provide a meaningful
starting point to determine whether the response of defendants here amounted to
deliberate indifference under section 220. Under federal law, deliberate
indifference is a ‘ “very high standard.” ’ Actions that in hindsight are
‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167
Cal.App.4th at p. 610, internal citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 798
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-
Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.32A (Matthew Bender)
265
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.)
267
• “ ‘[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)
268
270
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
272
[policy/custom]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011;
Renumbered from CACI No. VF-3005 December 2012; Revised December 2016
274
275
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2011; Renumbered from CACI No. VF-3006 December 2012; Revised December
2016
Directions for Use
This verdict form is based on CACI No. 3003, Local Government
Liability—Failure to Train—Essential Factual Elements. It should be given with
CACI No. VF-3000, Violation of Federal Civil Rights—In General, to impose
liability on the governmental entity for the acts of its officer or employee.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
277
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3003–VF-3009. Reserved for Future Use
278
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3001 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3020, Excessive Use of
Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
280
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3002 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3022, Unreasonable Search—Search With
a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
282
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3003 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search—Search
Without a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
284
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3004 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search—Search
286
287
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011;
Renumbered from CACI No. VF-3007 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3042, Violation of Prisoner’s Federal
Civil Rights—Eighth Amendment—Excessive Force.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
289
findings that are required in order to calculate the amount of prejudgment interest.
290