2018 Caci

Judicial Council of California
Civil Jury Instructions

CACI*
* Pronounced “Casey”
As approved at the
November 2017 Judicial Council Meeting
1
Series 100–2500

Advisory Committee on Civil Jury Instructions
Hon. Martin J. Tangeman, Chair
LexisNexis Matthew Bender
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ISSN: 1549-7100
ISBN: 978-1-5221-4412-0 (print)
© 2017 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
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CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2018 edition)
Cite these instructions: “CACI No. _________.”
Cite these verdict forms: “CACI No. VF-_________.”
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(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

Preface to CACI Updates
This edition of CACI includes a number of additions and changes to the instructions, which
were first published in 2003. In providing these updates, the Judicial Council Advisory
Committee on Civil Jury Instructions is fulfilling its charge to maintain CACI. The committee
is also striving to add instructions in new areas of the law and to augment existing areas.
The impetus for the revisions came from several sources including CACI users who
detected changes in the law or who simply sought to do a better job of explaining the law in
plain English. Responding to feedback from users is consistent with the Advisory
Committee’s goal to act as a vehicle for maintaining CACI as the work product of the legal
community. We hope that our hundreds of contributors view our role in the same way and that
they will continue to support us.
November 2017
Hon. Martin J. Tangeman
Court of Appeal, Second District
Chair, Advisory Committee on Civil Jury Instructions
____________________________________________________________________________
The Advisory Committee on Civil Jury Instructions welcomes comments. Send

comments by e-mail to: [email protected]
Or you may send print comments by regular mail to:
Advisory Committee on Civil Jury Instructions—Attn. Bruce Greenlee

Legal Services Office
455 Golden Gate Avenue
San Francisco, CA 94102-3588

Table of New, Revised, Renumbered,
and Revoked CACI
November 2017
This 2018 Edition of CACI includes all of the new, revised, revoked, and renumbered
California Civil Jury Instructions approved by the Judicial Council of California at its
November 2017 meeting.
PRETRIAL
117. Wealth of Parties (new)
CONTRACTS
314. Interpretation—Disputed Words (sources and authority)
336. Affirmative Defense—Waiver (sources and authority)
NEGLIGENCE
400. Negligence—Essential Factual Elements (sources and authority)
405. Comparative Fault of Plaintiff (sources and authority)
411. Reliance on Good Conduct of Others (sources and authority)
426. Negligent Hiring, Supervision, or Retention of Employee (sources and authority)
435. Causation for Asbestos-Related Cancer Claims (sources and authority)
454. Affirmative Defense—Statute of Limitations (sources and authority)
455. Statute of Limitations—Delayed Discovery (sources and authority)
456. Defendant Estopped From Asserting Statute of Limitations Defense (sources and authority)
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding (sources and authority)
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) (revised)
MOTOR VEHICLES AND HIGHWAY SAFETY

701. Definition of Right-of-Way (sources and authority)
COMMON CARRIERS
902. Duty of Common Carrier (sources and authority)
PREMISES LIABILITY
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846) (revised)
DANGEROUS CONDITION OF PUBLIC PROPERTY

1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6) (sources and authority)
vii

Table of New, Revised, Renumbered, and Revoked CACI
PRODUCT LIABILITY
1200. Strict Liability—Essential Factual Elements (sources and authority)
1205. Strict Liability—Failure to Warn—Essential Factual Elements (sources and authority)
1207B. Strict Liability—Comparative Fault of Third Person (sources and authority)
MALICIOUS PROSECUTION
1500. Former Criminal Proceeding─Essential Factual Elements (sources and authority)
1501. Wrongful Use of Civil Proceedings (sources and authority)
DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
(sources and authority)
1709. Retraction: News Publication or Broadcast (Civ. Code, § 48a) (renumbered from CACI No. 1722)
1720. Affirmative Defense—Truth (sources and authority)
1722. Affirmative Defense—Statute of Limitations—Defamation (renumbered from CACI No. 1724)
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d)) (new)
1730. Slander of Title—Essential Factual Elements (sources and authority)
RIGHT OF PRIVACY
1801. Public Disclosure of Private Facts (sources and authority)
1802. False Light (revised)
1803. Appropriation of Name or Likeness─Essential Factual Elements (revised)
VF-1803. Privacy—Appropriation of Name or Likeness (revised)
FRAUD OR DECEIT
1901. Concealment (sources and authority)
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)
2020. Public Nuisance—Essential Factual Elements (revised)
2031. Damages for Annoyance and Discomfort—Trespass or Nuisance (revised)
CONVERSION
2100. Conversion—Essential Factual Elements (sources and authority)
INSURANCE LITIGATION
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual Elements (sources
and authority)
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered Claims (sources and
authority)
WRONGFUL TERMINATION
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements (sources and
authority)
viii

FAIR EMPLOYMENT AND HOUSING ACT
2509. “Adverse Employment Action” Explained (sources and authority)
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements (sources and
authority)
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m)) (sources and authority)
2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code, §§ 12926(f),
12940(a)(1)) (sources and authority)
2545. Disability Discrimination—Affirmative Defense—Undue Hardship (sources and authority)
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process
(Gov. Code, § 12940(n)) (sources and authority)
CALIFORNIA FAMILY RIGHTS ACT

2600. Violation of CFRA Rights—Essential Factual Elements (sources and authority)
2602. Reasonable Notice of CFRA Leave (sources and authority)
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(l)) (sources and
authority)
LABOR CODE ACTIONS

2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption (sources and authority)
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption (sources and
authority)
WORKERS’ COMPENSATION
2805. Employee Not Within Course of Employment—Employer Conduct Unrelated to Employment
(new)
CIVIL RIGHTS
3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42 U.S.C. § 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42 U.S.C. § 1983)
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42
U.S.C. § 1983) (sources and authority)
3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements (42 U.S.C.
§ 1983) (sources and authority)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
(revised)
3052. Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983) (sources and
authority)
3053. Retaliation for Exercise of Free Speech Rights—Essential Factual Elements (42 U.S.C. § 1983)
(new)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7) (sources and
authority)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7) (sources and
authority)
ix

3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1) (sources and authority)
ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT

3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30) (sources and
authority)
VF-3102. Neglect—Individual or Individual and Employer Defendants (Welf. & Inst. Code,
§§ 15610.57, 15657; Civ. Code, § 3294(b)) (revised)
CARTWRIGHT ACT
3430. “Noerr-Pennington” Doctrine (sources and authority)
EMINENT DOMAIN
3501. “Fair Market Value” Explained (sources and authority)
VICARIOUS RESPONSIBILITY
3705. Existence of “Agency” Relationship Disputed (revised)
3724. Social or Recreational Activities (renumbered from CACI No. 3726)
3725. Going-and-Coming Rule—Vehicle-Use Exception (sources and authority)
3726. Going-and-Coming Rule—Business-Errand Exception (renumbered from CACI No. 3724)
3727. Going-and-Coming Rule—Compensated Travel Time Exception (new)
DAMAGES
3903A. Medical Expenses—Past and Future (Economic Damage) (sources and authority)
3903C. Past and Future Lost Earnings (Economic Damage) (sources and authority)
3903J. Damage to Personal Property (Economic Damage) (sources and authority)
3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) (sources and
authority)
3927. Aggravation of Preexisting Condition or Disability (sources and authority)
3943. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Trial Not Bifurcated (sources and authority)
Employee—Bifurcated Trial (First Phase) (sources and authority)
3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated (sources and authority)
3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase) (sources and authority)
3947. Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated (sources and
authority)
3948. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based on Acts of
Named Individual)—Bifurcated Trial (First Phase) (sources and authority)
BREACH OF FIDUCIARY DUTY

4111. Constructive Fraud (Civ. Code, § 1573) (new)
UNIFORM FRAUDULENT TRANSACTIONS ACT

4207. Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1)) (revised)
CONSTRUCTION LAW

4560. Recovery of Payments to Unlicensed Contractor (Bus. & Prof. Code, § 7031(b)) (sources and
authority)
WHISTLEBLOWER PROTECTION
4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential Factual Elements
(Health & Saf. Code, § 1278.5) (revoked)
CONSUMERS LEGAL REMEDIES ACT (new series)

4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770) (new)
4701. Consumers Legal Remedies Act—Notice Requirement for Damages (Civ. Code, § 1782) (new)
4702. Consumers Legal Remedies Act—Statutory Damages—Senior or Disabled Plaintiff (Civ. Code,
§ 1780(b)) (new)
4710. Consumers Legal Remedies Act—Affirmative Defense—Bona Fide Error and Correction (Civ.
Code, § 1784) (new)
CONCLUDING INSTRUCTIONS
5012. Introduction to Special Verdict Form (sources and authority)
xi

Table of Renumbered and Revoked
Instructions
214 Revoked December 2012
408 Renumbered to 470 May 2017
409 Renumbered to 471 May 2017
410 Renumbered to 428 and replaced by new 410 December 2013
410 Renumbered to 472 410 May 2017
450 Revoked June 2010; replaced by 450A, 450B December 2010
450A Derived from 450 December 2010
450B Derived from 450 December 2010
470 Renumbered from 408 May 2017
VF-405 Renumbered to VF-411 December 2015
VF-411 Renumbered from VF-405 December 2015
503 Replaced by 503A, 503B April 2007
503A Derived from 503 April 2007
503B Derived from 503 April 2007
605 Renumbered to 4106 December 2007
802 Revoked February 2007
1009 Replaced by 1009A, 1009B February 2007
1009A Derived from 1009 February 2007
1009B Derived from 1009 February 2007
1009C Revoked December 2011
1009D Derived from 1009B April 2009
1124 Renumbered from 1123 December 2014
1240 Revoked June 2010; restored December 2010
VF-1202 Revoked December 2014
1503 Revoked October 2008; replaced by former 1506 December 2013
1504 Revoked October 2008
1505 Renumbered to 1510 June 2013
1709 Renumbered from 1722 November 2017
xiii

Derived, Renumbered, Replaced, Revoked CACI
1722 Renumbered to 1709 November 2017
1724 Renumbered to new 1722 November 2017
1808 Revoked June 2015
VF-2302 Revoked April 2008
2440 Revoked June 2013; restored December 2013; renumbered to 4600 June 2015
2521 Replaced by 2521A, 2521B, 2521C December 2007
2521C Derived from 2521 December 2007
2522 Replaced by 2522A, 2522B, 2522C December 2007
2522C Derived from 2522 December 2007
2543 Revoked June 2013; restored December 2013
2561 Revoked December 2012; restored June 2013
VF-2506 Replaced by VF-2506A, VF-2506B, VF-2506C December 2007
VF-2506A Derived from VF-2506 December 2007
VF-2506B Derived from VF-2506 December 2007
VF-2506C Derived from VF-2506 December 2007
VF-2507 Replaced by VF-2507A, VF-2507B, VF-2507C December 2007
VF-2507A Derived from VF-2507 December 2007
VF-2507B Derived from VF-2507 December 2007
VF-2507C Derived from VF-2507 December 2007
2730 Revoked June 2014; restored December 2014; renumbered to 4603 June 2015
3001 Renumbered to 3020 and replaced by former 3007 December 2012
xiv

3010 Renumbered to 3013 and replaced by new 3010 December 2010; renumbered
to 3004 December 2012
3013 Renumbered to 3017 and replaced by new 3013 December 2010; renumbered
to 3042 December 2012
3023 Replaced by 3023A, 3023B December 2009; replaced by former 3003 De-
cember 2012
3023A Derived from 3023 December 2009; renumbered to 3063 December 2012
3023B Derived from 3023 December 2009; renumbered to 3064 December 2012
3027 Renumbered to 3068 December 2012; replaced by new 3027 December 2013
VF-3001 Renumbered to VF-3010 and replaced by former VF-3005 December 2012
3102 Replaced by 3102A, 3102B October 2008
3102A Derived from 3102 October 2008
3102B Derived from 3102 October 2008
3230 Renumbered to 3206 and replaced by new 3230 June 2012
xv

3509 Renumbered to 3509A May 2017
3509A Renumbered from 3509 May 2017
3511 Renumbered to 3511A May 2017
3511A Renumbered from 3511 May 2017
3904 Renumbered to 3904A December 2010
4606 Revoked November 2017
4600 Renumbered from 2440 June 2015
xvi

Judicial Council Advisory Committee on Civil Jury Instructions

Chair
Committee Members
HON. SUZANNE R. BOLANOS MR. MICHAEL A. KELLY
HON. ROBERT P. DAHLQUIST HON. JAMES T. LATTING
HON. ELENA J. DUARTE HON. MONICA MARLOW
MR. JONATHAN M. EISENBERG MR. JULIAN W. POON
HON. JANET M. FRANGIE HON. JAMES A. RICHMAN
HON. DONALD R. FRANSON, JR. MR. TODD M. SCHNEIDER
MR. ROBERT A. GOODIN MR. RICHARD L. SEABOLT
MR. MATTHEW HAWKINS MS. CHRISTINE SPAGNOLI
HON. JUDY H. HERSHER MS. MARY-CHRISTINE SUNGAILA
HON. RAYMOND J. IKOLA HON. JOHN SHEPARD WILEY JR.
PROF. MARGARET Z. JOHNS
Administrative Director, Staff to the Judicial Council

MARTIN HOSHINO
Legal Services Office

Ms. Deborah Brown, Chief Counsel
Mr. Bruce Greenlee, Attorney
xvii

Chair
Hon. Tani G. Cantil-Sakauye
Supreme Court
Hon. Ming W. Chin
Courts of Appeal
Hon. Harry E. Hull, Jr. Hon. Douglas P. Miller
Hon. James M. Humes
Trial Courts
Hon. Maria O. Anderson Hon. Samuel K. Feng
Hon. C. Todd Botke Hon. Harold W. Hopp
Hon. Stacy Boulware Eurie Hon. Dalila Carrol Lyons
Hon. Kevin C. Brazile Hon. Gary Nadler
Hon. Kyle S. Brodie Hon. David M. Rubin
Legislature
Hon. Richard Bloom Hon. Hannah-Beth Jackson
State Bar
Ms. Rachel W. Hill Ms. Donna D’Angelo Melby
Ms. Audra Ibarra Ms. Gretchen Nelson
Mr. Patrick M. Kelly
Advisory Members
Mr. Jake Chatters Hon. Stuart M. Rice
Ms. Kimberly Flener Mr. Michael M. Roddy
Hon. Scott M. Gordon Hon. Marsha G. Slough
Hon. Patricia M. Lucas Hon. Kenneth K. So
Hon. Shama Kakim Mesiwala Ms. Andrea K. Wallin-Rohmann
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.
xix

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
xxi

Preface
Vice-Chair, Task Force on Jury Instructions
Chair, Civil Instruction Section
xxii

Judicial Council Task Force on Jury Instructions
Civil Instructions Subcommittee
Hon. James D. Ward, Chair Hon. Carolyn B. Kuhl

Prof. Lee Campbell Ms. Edith R. Matthai
Mr. William B. Chapman Hon. Michael B. Orfield
Hon. H. Walter Croskey Hon. Stuart R. Pollak
Hon. Barton C. Gaut Mr. Tyler Pon
Ms. Janet M. Green Hon. Ignazio J. Ruvolo
Hon. Joseph B. Harvey Mr. Daniel U. Smith
Hon. Harry E. Hull, Jr. Ms. Christine Spagnoli
Mr. Michael A. Kelly Hon. Lynn O’Malley Taylor
xxiii

Table of Contents
Volume 1
USER GUIDE
SERIES 100 PRETRIAL
SERIES 200 EVIDENCE
SERIES 300 CONTRACTS
SERIES 400 NEGLIGENCE
SERIES 500 MEDICAL NEGLIGENCE
SERIES 600 PROFESSIONAL NEGLIGENCE
SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY
SERIES 800 RAILROAD CROSSINGS
SERIES 900 COMMON CARRIERS
SERIES 1000 PREMISES LIABILITY
SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
SERIES 1200 PRODUCTS LIABILITY
SERIES 1300 ASSAULT AND BATTERY
SERIES 1400 FALSE IMPRISONMENT
SERIES 1500 MALICIOUS PROSECUTION
SERIES 1600 EMOTIONAL DISTRESS
SERIES 1700 DEFAMATION
SERIES 1800 RIGHT OF PRIVACY
SERIES 1900 FRAUD OR DECEIT
xxv

SERIES 2000 TRESPASS
SERIES 2100 CONVERSION
SERIES 2200 ECONOMIC INTERFERENCE
SERIES 2300 INSURANCE LITIGATION
SERIES 2400 WRONGFUL TERMINATION
SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT
xxvi

Volume 2
SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
SERIES 2700 LABOR CODE ACTIONS
SERIES 2800 WORKERS’ COMPENSATION
SERIES 2900 FEDERAL EMPLOYERS’ LIABILITY ACT
SERIES 3000 CIVIL RIGHTS
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTEC-

TION ACT
SERIES 3200 SONG-BEVERLY CONSUMER WARRANTY ACT
SERIES 3300 UNFAIR PRACTICES ACT
SERIES 3400 CARTWRIGHT ACT
SERIES 3500 EMINENT DOMAIN
SERIES 3600 CONSPIRACY
SERIES 3700 VICARIOUS RESPONSIBILITY
SERIES 3800 EQUITABLE INDEMNITY
SERIES 3900 DAMAGES
SERIES 4000 LANTERMAN-PETRIS-SHORT ACT
SERIES 4100 BREACH OF FIDUCIARY DUTY
SERIES 4200 UNIFORM FRAUDULENT TRANSACTIONS ACT
SERIES 4300 UNLAWFUL DETAINER
SERIES 4400 TRADE SECRETS
SERIES 4500 CONSTRUCTION LAW
SERIES 4600 WHISTLEBLOWER PROTECTION
xxvii

SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
SERIES 4800–4900 Reserved for Future Use
SERIES 5000 CONCLUDING INSTRUCTIONS
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
xxviii

Volume 1 Table of Contents
USER GUIDE
SERIES 100 PRETRIAL

100. Preliminary Admonitions
101. Overview of Trial
102. Taking Notes During the Trial
103. Multiple Parties
104. Nonperson Party
105. Insurance
106. Evidence
107. Witnesses
108. Duty to Abide by Translation Provided in Court
109. Removal of Claims or Parties
110. Service Provider for Juror With Disability
111. Instruction to Alternate Jurors
112. Questions From Jurors
113. Bias
114. Bench Conferences and Conferences in Chambers
115. “Class Action” Defined (Plaintiff Class)
116. Why Electronic Communications and Research Are Prohibited
117. Wealth of Parties
118–199. Reserved for Future Use
SERIES 200 EVIDENCE

200. Obligation to Prove—More Likely True Than Not True
201. Highly Probable—Clear and Convincing Proof
202. Direct and Indirect Evidence
203. Party Having Power to Produce Better Evidence
204. Willful Suppression of Evidence
205. Failure to Explain or Deny Evidence
206. Evidence Admitted for Limited Purpose
207. Evidence Applicable to One Party
208. Deposition as Substantive Evidence
209. Use of Interrogatories of a Party
210. Requests for Admissions
xxix

211. Prior Conviction of a Felony
212. Statements of a Party Opponent
213. Adoptive Admissions
214. Reserved for Future Use
215. Exercise of a Communication Privilege
216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913)
217. Evidence of Settlement
218. Statements Made to Physician (Previously Existing Condition)
219. Expert Witness Testimony
220. Experts—Questions Containing Assumed Facts
221. Conflicting Expert Testimony
222. Evidence of Sliding-Scale Settlement
223. Opinion Testimony of Lay Witness
224. Testimony of Child

300. Breach of Contract—Introduction
301. Third-Party Beneficiary
302. Contract Formation—Essential Factual Elements
303. Breach of Contract—Essential Factual Elements
304. Oral or Written Contract Terms
305. Implied-in-Fact Contract
306. Unformalized Agreement
307. Contract Formation—Offer
308. Contract Formation—Revocation of Offer
309. Contract Formation—Acceptance
310. Contract Formation—Acceptance by Silence
311. Contract Formation—Rejection of Offer
312. Substantial Performance
313. Modification
314. Interpretation—Disputed Words
315. Interpretation—Meaning of Ordinary Words
316. Interpretation—Meaning of Technical Words
317. Interpretation—Construction of Contract as a Whole
318. Interpretation—Construction by Conduct
319. Interpretation—Reasonable Time
xxx

320. Interpretation—Construction Against Drafter
321. Existence of Condition Precedent Disputed
322. Occurrence of Agreed Condition Precedent
323. Waiver of Condition Precedent
324. Anticipatory Breach
325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
326. Assignment Contested
327. Assignment Not Contested
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Elements
330. Affirmative Defense—Unilateral Mistake of Fact
331. Affirmative Defense—Bilateral Mistake
332. Affirmative Defense—Duress
333. Affirmative Defense—Economic Duress
334. Affirmative Defense—Undue Influence
335. Affirmative Defense—Fraud
336. Affirmative Defense—Waiver
337. Affirmative Defense—Novation
338. Affirmative Defense—Statute of Limitations
350. Introduction to Contract Damages
351. Special Damages
352. Loss of Profits—No Profits Earned
353. Loss of Profits—Some Profits Earned
354. Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements on Real
Property
355. Obligation to Pay Money Only
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ. Code, § 3306)
357. Seller’s Damages for Breach of Contract to Purchase Real Property
358. Mitigation of Damages
359. Present Cash Value of Future Damages
360. Nominal Damages
361. Reliance Damages
370. Common Count: Money Had and Received
371. Common Count: Goods and Services Rendered
xxxi

372. Common Count: Open Book Account
373. Common Count: Account Stated
374. Common Count: Mistaken Receipt
380. Agreement Formalized by Electronic Means—Uniform Electronic Transactions Act
(Civ. Code, § 1633.1 et seq.)
VF-300. Breach of Contract
VF-301. Breach of Contract—Affirmative Defense—Unilateral Mistake of Fact
VF-302. Breach of Contract—Affirmative Defense—Duress
VF-303. Breach of Contract—Contract Formation at Issue
VF-304. Breach of Implied Covenant of Good Faith and Fair Dealing
VF-305–VF-399. Reserved for Future Use

400. Negligence—Essential Factual Elements
401. Basic Standard of Care
402. Standard of Care for Minors
403. Standard of Care for Physically Disabled Person
404. Intoxication
405. Comparative Fault of Plaintiff
406. Apportionment of Responsibility
407. Comparative Fault of Decedent
411. Reliance on Good Conduct of Others
412. Duty of Care Owed Children
413. Custom or Practice
414. Amount of Caution Required in Dangerous Situations
415. Employee Required to Work in Dangerous Situations
416. Amount of Caution Required in Transmitting Electric Power
417. Special Doctrines: Res ipsa loquitur
418. Presumption of Negligence per se
419. Presumption of Negligence per se (Causation Only at Issue)
420. Negligence per se: Rebuttal of the Presumption of Negligence (Violation Excused)
421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor
Excused)
xxxii

422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code,
§ 25602.1)
423. Public Entity Liability for Failure to Perform Mandatory Duty
424. Negligence Not Contested—Essential Factual Elements
425. “Gross Negligence” Explained
426. Negligent Hiring, Supervision, or Retention of Employee
427. Furnishing Alcoholic Beverages to Minors (Civ. Code, § 1714(d))
428. Parental Liability (Nonstatutory)
429. Negligent Sexual Transmission of Disease
430. Causation: Substantial Factor
431. Causation: Multiple Causes
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding Cause
434. Alternative Causation
435. Causation for Asbestos-Related Cancer Claims
440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure—Essential
Factual Elements
450A. Good Samaritan—Nonemergency
450B. Good Samaritan—Scene of Emergency
450C. Negligent Undertaking
451. Affirmative Defense—Contractual Assumption of Risk
452. Sudden Emergency
453. Injury Incurred in Course of Rescue
455. Statute of Limitations—Delayed Discovery
456. Defendant Estopped From Asserting Statute of Limitations Defense
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding
460. Strict Liability for Ultrahazardous Activities—Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements
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
xxxiii

470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or
Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and
Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation Involving
Inherent Risk
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)

500. Medical Negligence—Essential Factual Elements
501. Standard of Care for Health Care Professionals
502. Standard of Care for Medical Specialists
503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat
503B. Affirmative Defense—Psychotherapist’s Communication of Threat to Victim and
Law Enforcement
504. Standard of Care for Nurses
505. Success Not Required
506. Alternative Methods of Care
507. Duty to Warn Patient
508. Duty to Refer to a Specialist
509. Abandonment of Patient
xxxiv

510. Derivative Liability of Surgeon
511. Wrongful Birth—Sterilization/Abortion—Essential Factual Elements
512. Wrongful Birth—Essential Factual Elements
513. Wrongful Life—Essential Factual Elements
514. Duty of Hospital
515. Duty of Hospital to Provide Safe Environment
516. Duty of Hospital to Screen Medical Staff
517. Affirmative Defense—Patient’s Duty to Provide for His or Her Own Well-Being
518. Medical Malpractice: Res ipsa loquitur
530A. Medical Battery
530B. Medical Battery—Conditional Consent
531. Consent on Behalf of Another
532. Informed Consent—Definition
533. Failure to Obtain Informed Consent—Essential Factual Elements
534. Informed Refusal—Definition
535. Risks of Nontreatment—Essential Factual Elements
550. Affirmative Defense—Plaintiff Would Have Consented
552. Affirmative Defense—Simple Procedure
553. Affirmative Defense—Emotional State of Patient
554. Affirmative Defense—Emergency
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit
(Code Civ. Proc., § 340.5)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit
VF-500. Medical Negligence
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff Would
Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative Defense—Emergency

600. Standard of Care
601. Damages for Negligent Handling of Legal Matter
xxxv

603. Alternative Legal Decisions or Strategies
604. Referral to Legal Specialist
606. Legal Malpractice Causing Criminal Conviction—Actual Innocence
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit

701. Definition of Right-of-Way
702. Waiver of Right-of-Way
703. Definition of “Immediate Hazard”
704. Left Turns (Veh. Code, § 21801)
705. Turning (Veh. Code, § 22107)
706. Basic Speed Law (Veh. Code, § 22350)
707. Speed Limit (Veh. Code, § 22352)
708. Maximum Speed Limit (Veh. Code, §§ 22349, 22356)
709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code, § 21950)
711. The Passenger’s Duty of Care for Own Safety
712. Affirmative Defense—Failure to Wear a Seat Belt
720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
721. Motor Vehicle Owner Liability—Affirmative Defense—Use Beyond Scope of
Permission
722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
723. Liability of Cosigner of Minor’s Application for Driver’s License
724. Negligent Entrustment of Motor Vehicle
730. Emergency Vehicle Exemption (Veh. Code, § 21055)
731. Definition of “Emergency” (Veh. Code, § 21055)
xxxvi

VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
VF-701. Motor Vehicle Owner Liability—Permissive Use of Vehicle—Affirmative
Defense—Use Beyond Scope of Permission
VF-702. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
VF-703. Liability of Cosigner of Minor’s Application for Driver’s License
VF-704. Negligent Entrustment of Motor Vehicle

800. Basic Standard of Care for Railroads
801. Duty to Comply With Safety Regulations
803. Regulating Speed
804. Lookout for Crossing Traffic
805. Installing Warning Systems
806. Comparative Fault—Duty to Approach Crossing With Care

900. Introductory Instruction
901. Status of Common Carrier Disputed
902. Duty of Common Carrier
903. Duty to Provide and Maintain Safe Equipment
904. Duty of Common Carrier Toward Disabled/Infirm Passengers
905. Duty of Common Carrier Toward Minor Passengers
906. Duty of Passenger for Own Safety
907. Status of Passenger Disputed
908. Duty to Protect Passengers From Assault

1000. Premises Liability—Essential Factual Elements
1001. Basic Duty of Care
1002. Extent of Control Over Premises Area
1003. Unsafe Conditions
1004. Obviously Unsafe Conditions
1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal Conduct of
Others
xxxvii

1006. Landlord’s Duty
1007. Sidewalk Abutting Property
1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained
Control
1009C. Reserved for Future Use
1009D. Liability to Employees of Independent Contractors for Unsafe
Conditions—Defective Equipment
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846)
1011. Constructive Notice Regarding Dangerous Conditions on Property
1012. Knowledge of Employee Imputed to Owner
VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue
VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity—Exceptions
VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue

1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code,
§ 835)
1101. Control
1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
1103. Notice (Gov. Code, § 835.2)
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
1110. Affirmative Defense—Natural Conditions (Gov. Code, § 831.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code,
§ 835.4(a))
1112. Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code,
§ 835.4(b))
1120. Failure to Provide Traffic Control Signals (Gov. Code, § 830.4)
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code, § 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov.
Code, § 831)
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
1124. Loss of Design Immunity (Cornette)
xxxviii

VF-1100. Dangerous Condition of Public Property
VF-1101. Dangerous Condition of Public Property—Affirmative Defense—Reasonable Act
or Omission (Gov. Code, § 835.4)

1200. Strict Liability—Essential Factual Elements
1201. Strict Liability—Manufacturing Defect—Essential Factual Elements
1202. Strict Liability—“Manufacturing Defect” Explained
1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential Factual
Elements
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof
1205. Strict Liability—Failure to Warn—Essential Factual Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not Prescription
Drugs)—Essential Factual Elements
1207A. Strict Liability—Comparative Fault of Plaintiff
1207B. Strict Liability—Comparative Fault of Third Person
1221. Negligence—Basic Standard of Care
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements
1223. Negligence—Recall/Retrofit
1224. Negligence—Negligence for Product Rental/Standard of Care
1230. Express Warranty—Essential Factual Elements
1231. Implied Warranty of Merchantability—Essential Factual Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual Elements
1233. Implied Warranty of Merchantability for Food—Essential Factual Elements
1240. Affirmative Defense to Express Warranty—Not “Basis of Bargain”
1241. Affirmative Defense—Exclusion or Modification of Express Warranty
1242. Affirmative Defense—Exclusion of Implied Warranties
1243. Notification/Reasonable Time
1244. Affirmative Defense—Sophisticated User
1245. Affirmative Defense—Product Misuse or Modification
1246. Affirmative Defense—Design Defect—Government Contractor
xxxix

1247. Affirmative Defense—Failure to Warn—Government Contractor
1248. Affirmative Defense—Inherently Unsafe Consumer Product
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse or
Modification
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit Test
VF-1203. Strict Products Liability—Failure to Warn
VF-1204. Products Liability—Negligence—Comparative Fault of Plaintiff at Issue
VF-1205. Products Liability—Negligent Failure to Warn
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not “Basis of
Bargain”
VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative
Defense—Exclusion of Implied Warranties
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular Purpose

1300. Battery—Essential Factual Elements
1301. Assault—Essential Factual Elements
1302. Consent Explained
1303. Invalid Consent
1304. Affirmative Defense—Self-Defense/Defense of Others
1305. Battery by Peace Officer
1306. Sexual Battery—Essential Factual Elements
1320. Intent
1321. Transferred Intent
VF-1300. Battery
VF-1301. Battery—Self-Defense/Defense of Others at Issue
VF-1302. Assault
VF-1303. Battery by Peace Officer
xl

1400. No Arrest Involved—Essential Factual Elements
1401. False Arrest Without Warrant by Peace Officer—Essential Factual Elements
1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause
to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable
Cause to Arrest
1405. False Arrest With Warrant—Essential Factual Elements
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
1407. Unnecessary Delay in Processing/Releasing—Essential Factual Elements
1408. Affirmative Defense—Police Officer’s Lawful Authority to Detain
1409. Common Law Right to Detain for Investigation
VF-1400. False Imprisonment—No Arrest Involved
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain
for Investigation
VF-1402. False Arrest Without Warrant
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable
Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable
Cause to Arrest
VF-1405. False Arrest With Warrant
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing

1500. Former Criminal Proceeding—Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Public Entities and Employees (Gov. Code, § 821.6)
1504. Former Criminal Proceeding—“Actively Involved” Explained
1510. Affirmative Defense—Reliance on Counsel
1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s Reliance on
Information Provided by Client
xli

1520. Abuse of Process—Essential Factual Elements
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
VF-1500. Malicious Prosecution—Former Criminal Proceeding
VF-1501. Malicious Prosecution—Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative
Defense—Reliance on Counsel
VF-1503. Malicious Prosecution—Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process

1600. Intentional Infliction of Emotional Distress—Essential Factual Elements
1601. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
1602. Intentional Infliction of Emotional Distress—“Outrageous Conduct” Defined
1603. Intentional Infliction of Emotional Distress—“Reckless Disregard” Defined
1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress” Defined
1605. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
1620. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements
Injury—Bystander—Essential Factual Elements
Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct—Essential Factual Elements
VF-1600. Intentional Infliction of Emotional Distress
VF-1601. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim
xlii

Injury—Bystander
Injury—Fear of Cancer, HIV, or AIDS
Conduct

1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1706. Definition of Statement
1707. Fact Versus Opinion
1708. Coerced Self-Publication
1709. Retraction: News Publication or Broadcast (Civ. Code, § 48a)
1720. Affirmative Defense—Truth
1721. Affirmative Defense—Consent
1722. Affirmative Defense—Statute of Limitations—Defamation
1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
1730. Slander of Title—Essential Factual Elements
1731. Trade Libel—Essential Factual Elements
VF-1700. Defamation per se (Public Officer/Figure and Limited Public Figure)
VF-1701. Defamation per quod (Public Officer/Figure and Limited Public Figure)
VF-1702. Defamation per se (Private Figure—Matter of Public Concern)
xliii

VF-1703. Defamation per quod (Private Figure—Matter of Public Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of
Private Concern)
VF-1705. Defamation per quod (Private Figure—Matter of Private Concern)
VF-1720. Slander of Title
VF-1721. Trade Libel
Table A. Defamation Per Se
Table B. Defamation Per Quod

1800. Intrusion Into Private Affairs
1801. Public Disclosure of Private Facts
1802. False Light
1803. Appropriation of Name or Likeness—Essential Factual Elements
1804A. Use of Name or Likeness (Civ. Code, § 3344)
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports
Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment
(Comedy III)
1807. Affirmative Defense—Invasion of Privacy Justified
1808. Stalking (Civ. Code, § 1708.7)
1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ.
Code, § 1708.85)
1820. Damages
1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
VF-1800. Privacy—Intrusion Into Private Affairs
VF-1801. Privacy—Public Disclosure of Private Facts
VF-1802. Privacy—False Light
VF-1803. Privacy—Appropriation of Name or Likeness
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
xliv


1900. Intentional Misrepresentation
1901. Concealment
1902. False Promise
1903. Negligent Misrepresentation
1904. Opinions as Statements of Fact
1905. Revoked
1906. Misrepresentations Made to Persons Other Than the Plaintiff
1907. Reliance
1908. Reasonable Reliance
1910. Real Estate Seller’s Nondisclosure of Material Facts
1920. Buyer’s Damages for Purchase or Acquisition of Property
1921. Buyer’s Damages for Purchase or Acquisition of Property—Lost Profits
1922. Seller’s Damages for Sale or Exchange of Property
1923. Damages—“Out of Pocket” Rule
1924. Damages—“Benefit of the Bargain” Rule
1925. Affirmative Defense—Statute of Limitations—Fraud or Mistake
VF-1900. Intentional Misrepresentation
VF-1901. Concealment
VF-1902. False Promise
VF-1903. Negligent Misrepresentation

2000. Trespass—Essential Factual Elements
2001. Trespass—Extrahazardous Activities
2002. Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346)
2003. Damage to Timber—Willful and Malicious Conduct
2004. “Intentional Entry” Explained
2005. Affirmative Defense—Necessity
2020. Public Nuisance—Essential Factual Elements
xlv

2021. Private Nuisance—Essential Factual Elements
2022. Private Nuisance—Balancing-Test Factors—Seriousness and Public Benefit
2030. Affirmative Defense—Statute of Limitations—Trespass or Private Nuisance
2031. Damages for Annoyance and Discomfort—Trespass or Nuisance
VF-2000. Trespass
VF-2001. Trespass—Affirmative Defense—Necessity
VF-2002. Trespass—Extrahazardous Activities
VF-2003. Trespass to Timber (Civ. Code, § 3346)
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346; Code
Civ. Proc., § 733)
VF-2005. Public Nuisance
VF-2006. Private Nuisance

2100. Conversion—Essential Factual Elements
2101. Trespass to Chattels—Essential Factual Elements
2102. Presumed Measure of Damages for Conversion (Civ. Code, § 3336)
VF-2100. Conversion

2200. Inducing Breach of Contract
2201. Intentional Interference With Contractual Relations—Essential Factual Elements
2202. Intentional Interference With Prospective Economic Relations—Essential Factual
Elements
2203. Intent
2204. Negligent Interference With Prospective Economic Relations
2205. Intentional Interference With Expected Inheritance—Essential Factual Elements
2210. Affirmative Defense—Privilege to Protect Own Financial Interest
VF-2200. Inducing Breach of Contract
VF-2201. Intentional Interference With Contractual Relations
VF-2202. Intentional Interference With Prospective Economic Relations
xlvi

VF-2203. Negligent Interference With Prospective Economic Relations

2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual Elements
2301. Breach of Insurance Binder—Essential Factual Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual Elements
2303. Affirmative Defense—Insurance Policy Exclusion
2304. Exception to Insurance Policy Exclusion—Burden of Proof
2305. Lost or Destroyed Insurance Policy
2306. Covered and Excluded Risks—Predominant Cause of Loss
2307. Insurance Agency Relationship Disputed
2308. Affirmative Defense—Misrepresentation or Concealment in Insurance
Application—Essential Factual Elements
2309. Termination of Insurance Policy for Fraudulent Claim
2320. Affirmative Defense—Failure to Provide Timely Notice
2321. Affirmative Defense—Insured’s Breach of Duty to Cooperate in Defense
2322. Affirmative Defense—Insured’s Voluntary Payment
2330. Implied Obligation of Good Faith and Fair Dealing Explained
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in
Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential Factual
Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights—Essential
Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Within Liability
Policy Limits—Essential Factual Elements
2335. Bad Faith—Advice of Counsel
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual
Elements
2337. Factors to Consider in Evaluating Insurer’s Conduct
2350. Damages for Bad Faith
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered Claims
2360. Judgment Creditor’s Action Against Insurer—Essential Factual Elements
xlvii

2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements
VF-2300. Breach of Contractual Duty to Pay a Covered Claim
VF-2301. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or
Delay in Payment
VF-2302. Reserved for Future Use
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights

2400. Breach of Employment Contract—Unspecified Term—“At-Will” Presumption
2401. Breach of Employment Contract—Unspecified Term—Essential Factual Elements
2402. Breach of Employment Contract—Unspecified Term—Constructive
Discharge—Essential Factual Elements
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact Promise Not
to Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause” Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good Cause”
Defined—Misconduct
2406. Breach of Employment Contract—Unspecified Term—Damages
2407. Affirmative Defense—Employee’s Duty to Mitigate Damages
2420. Breach of Employment Contract—Specified Term—Essential Factual Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense (Lab. Code,
§ 2924)
2422. Breach of Employment Contract—Specified Term—Damages
2423. Breach of the Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
2424. Breach of the Implied Covenant of Good Faith and Fair Dealing—Good Faith
Mistaken Belief Defense
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy
2433. Wrongful Discharge in Violation of Public Policy—Damages
xlviii

2441. Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet.
Code, § 394)
VF-2400. Breach of Employment Contract—Unspecified Term
VF-2401. Breach of Employment Contract—Unspecified Term—Constructive Discharge
VF-2402. Breach of Employment Contract—Specified Term
VF-2403. Breach of Employment Contract—Specified Term—Good-Cause Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair Dealing
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
Endure Intolerable Conditions for Improper Purpose That Violates Public Policy

2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))
2501. Affirmative Defense—Bona fide Occupational Qualification
2502. Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))
2503. Affirmative Defense—Business Necessity/Job Relatedness
2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense
2505. Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))
2506. Limitation on Remedies—After-Acquired Evidence
2507. “Substantial Motivating Reason” Explained
2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(d))—Plaintiff
Alleges Continuing Violation
2509. “Adverse Employment Action” Explained
2510. “Constructive Discharge” Explained
2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)
2512. Limitation on Remedies—Same Decision
2513. Business Judgment
2520. Quid pro quo Sexual Harassment—Essential Factual Elements
2521A. Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential
Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(j))
2521B. Hostile Work Environment Harassment—Conduct Directed at Others—Essential
xlix

2521C. Hostile Work Environment Harassment—Widespread Sexual Favoritism—Essential
Factual Elements—Individual Defendant (Gov. Code, § 12940(j))
2523. “Harassing Conduct” Explained
2524. “Severe or Pervasive” Explained
2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a
Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements
(Gov. Code, § 12940(m))
2542. Disability Discrimination—“Reasonable Accommodation” Explained
2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code,
§§ 12926(f), 12940(a)(1))
2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk
2545. Disability Discrimination—Affirmative Defense—Undue Hardship
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
Interactive Process (Gov. Code, § 12940(n))
2547. Disability-Based Associational Discrimination—Essential Factual Elements
2548. Disability Discrimination—Refusal to Make Reasonable Accommodation in Housing
(Gov. Code, § 12927(c)(1))
2549. Disability Discrimination—Refusal to Permit Reasonable Modification to Housing
Unit (Gov. Code, § 12927(c)(1))
2560. Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements (Gov. Code, § 12940(l))
2561. Religious Creed Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))
2570. Age Discrimination—Disparate Treatment—Essential Factual Elements
l

VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
VF-2501. Disparate Treatment—Affirmative Defense—Bona fide Occupational
Qualification (Gov. Code, § 12940(a))
VF-2502. Disparate Impact (Gov. Code, § 12940(a))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative Defense—Business
Necessity/Job Relatedness—Rebuttal to Business Necessity/Job Relatedness
Defense
VF-2504. Retaliation (Gov. Code, § 12940(h))
VF-2505. Quid pro quo Sexual Harassment
VF-2506A. Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Employer or Entity Defendant (Gov. Code, § 12940(j))
VF-2506B. Hostile Work Environment Harassment—Conduct Directed at
Others—Employer or Entity Defendant (Gov. Code, § 12940(j))
VF-2506C. Hostile Work Environment Harassment—Widespread Sexual
Favoritism—Employer or Entity Defendant (Gov. Code, § 12940(j))
Plaintiff—Individual Defendant (Gov. Code, § 12940(j))
Others—Individual Defendant (Gov. Code, § 12940(j))
Favoritism—Individual Defendant (Gov. Code, § 12940(j))
VF-2508. Disability Discrimination—Disparate Treatment
VF-2509. Disability Discrimination—Reasonable Accommodation (Gov. Code,
§ 12940(m))
VF-2510. Disability Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, § 12940(m))
VF-2511. Religious Creed Discrimination—Failure to Accommodate (Gov. Code,
§ 12940(l))
VF-2512. Religious Creed Discrimination—Failure to Accommodate—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12926(u), 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
VF-2514. Failure to Prevent Harassment, Discrimination, or Retaliation
VF-2515. Limitation on Remedies—Same Decision
li

2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice of CFRA Leave
2603. “Comparable Job” Explained
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613. Affirmative Defense—Key Employee
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(l))
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation

2700. Nonpayment of Wages—Essential Factual Elements (Lab. Code, §§ 201, 202, 218)
2701. Nonpayment of Minimum Wage—Essential Factual Elements (Lab. Code, § 1194)
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (Lab. Code,
§ 1194)
2703. Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked
2704. Damages—Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203,
218)
2710. Solicitation of Employee by Misrepresentation—Essential Factual Elements (Lab.
Code, § 970)
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual
Elements (Lab. Code, § 1050)
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
liii

2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab.
Code, § 1019)
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code, § 1050)

2800. Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation
2801. Employer’s Willful Physical Assault—Essential Factual Elements (Lab. Code,
§ 3602(b)(1))
2802. Fraudulent Concealment of Injury—Essential Factual Elements (Lab. Code,
§ 3602(b)(2))
2803. Employer’s Defective Product—Essential Factual Elements (Lab. Code, § 3602(b)(3))
2804. Removal or Noninstallation of Power Press Guards—Essential Factual Elements (Lab.
Code, § 4558)
2805. Employee Not Within Course of Employment—Employer Conduct Unrelated to
Employment
2810. Co-Employee’s Affirmative Defense—Injury Covered by Workers’ Compensation
2811. Co-Employee’s Willful and Unprovoked Physical Act of Aggression—Essential
Factual Elements (Lab. Code, § 3601(a)(1))
2812. Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements (Lab.
Code, § 3601(a)(2))
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1))
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2))
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression (Lab. Code,
§ 3601(a)(1))
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2))
liv

2900. FELA—Essential Factual Elements
2901. Negligence—Duty of Railroad
2902. Negligence—Assignment of Employees
2903. Causation—Negligence
2904. Comparative Fault
2905. Compliance With Employer’s Requests or Directions
2920. Federal Safety Appliance Act or Boiler Inspection Act—Essential Factual Elements
2921. Causation Under FSAA or BIA
2922. Statute of Limitations—Special Verdict Form or Interrogatory
2923. Borrowed Servant/Dual Employee
2924. Status as Defendant’s Employee—Subservant Company
2925. Status of Defendant as Common Carrier
2926. Scope of Employment
2940. Income Tax Effects of Award
2941. Introduction to Damages for Personal Injury
2942. Damages for Death of Employee
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act

3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42
U.S.C. § 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42
U.S.C. § 1983)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
3003. Local Government Liability—Failure to Train—Essential Factual Elements (42
U.S.C. § 1983)
3004. Local Government Liability—Act or Ratification by Official With Final Policymaking
Authority—Essential Factual Elements (42 U.S.C. § 1983)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual
Elements (42 U.S.C. § 1983)
lv

3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3023. Unreasonable Search—Search Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3024. Affirmative Defense—Search Incident to Lawful Arrest
3025. Affirmative Defense—Consent to Search
3026. Affirmative Defense—Exigent Circumstances
3040. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial Risk
of Serious Harm (42 U.S.C. § 1983)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (42
U.S.C. § 1983)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive Force
(42 U.S.C. § 1983)
3043. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities (42 U.S.C. § 1983)
3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
3052. Use of Fabricated Evidence (42 U.S.C. § 1983)
3053. Retaliation for Exercise of Free Speech Rights—Essential Factual Elements (42
U.S.C. § 1983)
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
lvi

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))
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-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-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 USC § 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-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5, 52(a))
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
VF-3033. Ralph Act (Civ. Code, § 51.7)
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9)
VF-3035. Bane Act (Civ. Code, § 52.1)
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL

PROTECTION ACT
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. & Inst. Code, § 15657.5)
3102A. Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3102B. Employer Liability for Enhanced Remedies—Employer Defendant Only (Welf. &
lvii

Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.63)
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)
3112. “Dependent Adult” Explained (Welf. & Inst. Code, § 15610.23)
3113. “Recklessness” Explained
3114. “Malice” Explained
3115. “Oppression” Explained
3116. “Fraud” Explained
3117. Financial Abuse—“Undue Influence” Explained
VF-3100. Financial Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
VF-3101. Financial Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.30,
15657.5(b))
§§ 15610.57, 15657; Civ. Code, § 3294(b))
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.57, 15657;
Civ. Code, § 3294(b))
VF-3104. Physical Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.63,
15657; Civ. Code, § 3294(b))
VF-3106. Abduction—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.06,
15657.05; Civ. Code, § 3294(b))
Table A. Elder Abuse: Causes of Action, Remedies, and Employer Liability

3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
lviii

3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable
Number of Repair Opportunities—Essential Factual Elements (Civ. Code,
§ 1793.2(d))
3202. “Repair Opportunities” Explained
3203. Reasonable Number of Repair Opportunities—Rebuttable Presumption (Civ. Code,
§ 1793.22(b))
3204. “Substantially Impaired” Explained
3205. Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30
Days—Essential Factual Elements (Civ. Code, § 1793.2(b))
3206. Breach of Disclosure Obligations—Essential Factual Elements
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements
3211. Breach of Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
3212. Duration of Implied Warranty
3220. Affirmative Defense—Unauthorized or Unreasonable Use
3221. Affirmative Defense—Disclaimer of Implied Warranties
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)
3230. Continued Reasonable Use Permitted
3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6)
3240. Reimbursement Damages—Consumer Goods (Civ. Code, §§ 1793.2(d)(1), 1794(b))
3241. Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2),
1794(b))
3242. Incidental Damages
3243. Consequential Damages
3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
VF-3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities (Civ. Code, § 1793.2(d))
VF-3201. Consequential Damages
Repair Opportunities—Affirmative Defense—Unauthorized or Unreasonable Use
(Civ. Code, § 1793.2(d))
VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil Penalty Sought
VF-3204. Breach of Implied Warranty of Merchantability
VF-3205. Breach of Implied Warranty of Merchantability—Affirmative
lix

Defense—Disclaimer of Implied Warranties
VF-3206. Breach of Disclosure Obligations

3300. Locality Discrimination—Essential Factual Elements
3301. Below Cost Sales—Essential Factual Elements
3302. Loss Leader Sales—Essential Factual Elements
3303. Definition of “Cost”
3304. Presumptions Concerning Costs—Manufacturer
3305. Presumptions Concerning Costs—Distributor
3306. Methods of Allocating Costs to an Individual Product
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3330. Affirmative Defense to Locality Discrimination Claim—Cost Justification
3331. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales,
and Secret Rebates—Functional Classifications
Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer Meeting
Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
VF-3300. Locality Discrimination
VF-3301. Locality Discrimination Claim—Affirmative Defense—Cost Justification
VF-3302. Below Cost Sales
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-out, Discontinued,
Damaged, or Perishable Items
VF-3304. Loss Leader Sales
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting Competition
VF-3306. Secret Rebates
VF-3307. Secret Rebates Claim—Affirmative Defense—Functional Classifications
lx

3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
Fixing—Essential Factual Elements
3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Essential Factual Elements
3402. Horizontal Restraints—Dual Distributor Restraints—Essential Factual Elements
3403. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation—Essential Factual Elements
3404. Horizontal Restraints—Group Boycott—Rule of Reason—Essential Factual Elements
3405. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason—Essential
Factual Elements
3406. Horizontal and Vertical Restraints—“Agreement” Explained
3407. Horizontal and Vertical Restraints—Agreement Between Company and Its Employee
3408. Vertical Restraints—“Coercion” Explained
3409. Vertical Restraints—Termination of Reseller
3410. Vertical Restraints—Agreement Between Seller and Reseller’s Competitor
3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
3412. Rule of Reason—“Market Power” Explained
3413. Rule of Reason—“Product Market” Explained
3414. Rule of Reason—“Geographic Market” Explained
3420. Tying—Real Estate, Products, or Services—Essential Factual Elements (Bus. & Prof.
Code, § 16720)
3421. Tying—Products or Services—Essential Factual Elements (Bus. & Prof. Code,
§ 16727)
3422. Tying—“Separate Products” Explained
3423. Tying—“Economic Power” Explained
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3440. Damages
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price Fixing
VF-3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce
Commerce—Affirmative Defense—In Pari Delicto
lxi

VF-3403. Horizontal Restraints—Dual Distributor Restraints
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation
VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
VF-3406. Horizontal and Vertical Restraints (Use for Direct Competitors or
Supplier/Reseller Relations)—Other Unreasonable Restraint of Trade—Rule of
Reason
Reason Affirmative Defense—“Noerr-Pennington” Doctrine
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof. Code, § 16720)
VF-3409. Tying—Products or Services (Bus. & Prof. Code, § 16727)

3501. “Fair Market Value” Explained
3502. “Highest and Best Use” Explained
3503. Change in Zoning or Land Use Restriction
3504. Project Enhanced Value
3505. Information Discovered after Date of Valuation
3506. Effect of Improvements
3507. Personal Property and Inventory
3508. Bonus Value of Leasehold Interest
3509A. Precondemnation Damages—Unreasonable Delay (Klopping Damages)
3509B. Precondemnation Damages—Public Entity’s Authorized Entry to Investigate
Property’s Suitability (Code Civ. Proc., § 1245.060)
3510. Value of Easement
3511A. Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410, 1263.420(a))
3511B. Damage to Remainder During Construction (Code Civ. Proc., § 1263.420(b))
3512. Severance Damages—Offset for Benefits
3513. Goodwill
3514. Burden of Proof
3515. Valuation Testimony
3516. View
3517. Comparable Sales (Evid. Code, § 816)
VF-3500. Fair Market Value Plus Goodwill
lxii

VF-3501. Fair Market Value Plus Severance Damages
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property

3600. Conspiracy—Essential Factual Elements
3601. Ongoing Conspiracy
3602. Affirmative Defense—Agent and Employee Immunity Rule
3610. Aiding and Abetting Tort—Essential Factual Elements

3700. Introduction to Vicarious Responsibility
3701. Tort Liability Asserted Against Principal—Essential Factual Elements
3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
3703. Legal Relationship Not Disputed
3704. Existence of “Employee” Status Disputed
3705. Existence of “Agency” Relationship Disputed
3706. Special Employment—Lending Employer Denies Responsibility for Worker’s Acts
3707. Special Employment—Joint Responsibility
3708. Peculiar-Risk Doctrine
3709. Ostensible Agent
3710. Ratification
3711. Partnerships
3712. Joint Ventures
3713. Nondelegable Duty
3721. Scope of Employment—Peace Officer’s Misuse of Authority
3722. Scope of Employment—Unauthorized Acts
3723. Substantial Deviation
3724. Social or Recreational Activities
3725. Going-and-Coming Rule—Vehicle-Use Exception
3726. Going-and-Coming Rule—Business-Errand Exception
3727. Going-and-Coming Rule—Compensated Travel Time
lxiii

VF-3700. Negligence—Vicarious Liability

3800. Comparative Fault Between and Among Tortfeasors
3801. Implied Contractual Indemnity
SERIES 3900 DAMAGES

3900. Introduction to Tort Damages—Liability Contested
3901. Introduction to Tort Damages—Liability Established
3902. Economic and Noneconomic Damages
3903. Items of Economic Damage
3903A. Medical Expenses—Past and Future (Economic Damage)
3903B. Medical Monitoring—Toxic Exposure (Economic Damage)
3903C. Past and Future Lost Earnings (Economic Damage)
3903D. Lost Earning Capacity (Economic Damage)
3903E. Loss of Ability to Provide Household Services (Economic Damage)
3903F. Damage to Real Property (Economic Damage)
3903G. Loss of Use of Real Property (Economic Damage)
3903H. Damage to Annual Crop (Economic Damage)
3903I. Damage to Perennial Crop (Economic Damage)
3903J. Damage to Personal Property (Economic Damage)
3903K. Loss or Destruction of Personal Property (Economic Damage)
3903L. Damage to Personal Property Having Special Value (Civ. Code, § 3355) (Economic
Damage)
3903M. Loss of Use of Personal Property (Economic Damage)
3903N. Lost Profits (Economic Damage)
3903O. Injury to Pet—Costs of Treatment (Economic Damage)
3904A. Present Cash Value
3904B. Use of Present-Value Tables
3905. Items of Noneconomic Damage
3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
3920. Loss of Consortium (Noneconomic Damage)
3921. Wrongful Death (Death of an Adult)
3922. Wrongful Death (Parents’ Recovery for Death of a Minor Child)
lxiv

3923. Public Entities—Collateral Source Payments (Gov. Code, § 985)
3924. No Punitive Damages
3925. Arguments of Counsel Not Evidence of Damages
3926. Settlement Deduction
3927. Aggravation of Preexisting Condition or Disability
3928. Unusually Susceptible Plaintiff
3929. Subsequent Medical Treatment or Aid
3930. Mitigation of Damages (Personal Injury)
3931. Mitigation of Damages (Property Damage)
3932. Life Expectancy
3933. Damages From Multiple Defendants
3934. Damages on Multiple Legal Theories
3935. Prejudgment Interest (Civ. Code, § 3288)
3940. Punitive Damages—Individual Defendant—Trial Not Bifurcated
3941. Punitive Damages—Individual Defendant—Bifurcated Trial (First Phase)
3942. Punitive Damages—Individual Defendant—Bifurcated Trial (Second Phase)
Employee—Trial Not Bifurcated
Employee—Bifurcated Trial (First Phase)
3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated
3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase)
3947. Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated
3948. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (First Phase)
3949. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (Second Phase)
3960. Comparative Fault of Plaintiff—General Verdict
3961. Duty to Mitigate Damages for Past Lost Earnings
3962. Duty to Mitigate Damages for Future Lost Earnings
3963. No Deduction for Workers’ Compensation Benefits Paid
3964. Jurors Not to Consider Attorney Fees and Court Costs
VF-3900. Punitive Damages
VF-3901. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent
or Employee
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VF-3902. Punitive Damages—Entity Defendant
VF-3903. Punitive Damages—Entity Defendant—Ratification
VF-3904. Punitive Damages—Entity Defendant—Authorization
VF-3905. Damages for Wrongful Death (Death of an Adult)
VF-3906. Damages for Wrongful Death (Parents’ Recovery for Death of a Minor Child)
VF-3907. Damages for Loss of Consortium (Noneconomic Damage)
VF-3920. Damages on Multiple Legal Theories

4000. Conservatorship—Essential Factual Elements
4001. “Mental Disorder” Explained
4002. “Gravely Disabled” Explained
4003. “Gravely Disabled” Minor Explained
4004. Issues Not to Be Considered
4005. Obligation to Prove—Reasonable Doubt
4006. Sufficiency of Indirect Circumstantial Evidence
4007. Third Party Assistance
4008. Third Party Assistance to Minor
4009. Physical Restraint
4010. Limiting Instruction—Expert Testimony
4011. History of Disorder Relevant to the Determination of Grave Disability
4012. Concluding Instruction
4013. Disqualification From Voting
VF-4000. Conservatorship—Verdict Form

4100. “Fiduciary Duty” Explained
4101. Failure to Use Reasonable Care—Essential Factual Elements
4102. Duty of Undivided Loyalty—Essential Factual Elements
4103. Duty of Confidentiality—Essential Factual Elements
4104. Duties of Escrow Holder
4105. Duties of Stockbroker—Speculative Securities
4106. Breach of Fiduciary Duty by Attorney—Essential Factual Elements
lxvi

4107. Duty of Disclosure by Real Estate Broker to Client
4108. Failure of Seller’s Real Estate Broker to Conduct Reasonable Inspection—Essential
Factual Elements (Civ. Code, § 2079)
4109. Duty of Disclosure by Seller’s Real Estate Broker to Buyer
4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple
Listing Service—Essential Factual Elements (Civ. Code, § 1088)
4111. Constructive Fraud (Civ. Code, § 1573)
SERIES 4200 UNIFORM FRAUDULENT TRANSACTIONS ACT

4200. Actual Intent to Hinder, Delay, or Defraud a Creditor—Essential Factual Elements
(Civ. Code, § 3439.04(a)(1))
4201. Factors to Consider in Determining Actual Intent to Hinder, Delay, or Defraud (Civ.
Code, § 3439.04(b))
4202. Constructive Fraudulent Transfer—No Reasonably Equivalent Value
Received—Essential Factual Elements (Civ. Code, § 3439.04(a)(2))
4203. Constructive Fraudulent Transfer—Insolvency—Essential Factual Elements (Civ.
Code, § 3439.05)
4204. “Transfer” Explained
4205. “Insolvency” Explained
4206. Presumption of Insolvency
4207. Affirmative Defense—Good Faith (Civ Code, § 343908(a), (f)(1))
4208. Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ.
Code, § 3439.09)
VF-4200. Actual Intent to Hinder, Delay, or Defraud Creditor—Affirmative Defense—Good
Faith
VF-4201. Constructive Fraudulent Transfer—No Reasonably Equivalent Value Received
VF-4202. Constructive Fraudulent Transfer—Insolvency

4301. Expiration of Fixed-Term Tenancy—Essential Factual Elements
4302. Termination for Failure to Pay Rent—Essential Factual Elements
4303. Sufficiency and Service of Notice of Termination for Failure to Pay Rent
4304. Termination for Violation of Terms of Lease/Agreement—Essential Factual Elements
lxvii

4305. Sufficiency and Service of Notice of Termination for Violation of Terms of
Agreement
4306. Termination of Month-to-Month Tenancy—Essential Factual Elements
4307. Sufficiency and Service of Notice of Termination of Month-to-Month Tenancy
4308. Termination for Nuisance or Unlawful Use—Essential Factual Elements (Code Civ.
Proc, § 1161(4))
4309. Sufficiency and Service of Notice of Termination for Nuisance or Unlawful Use
4320. Affirmative Defense—Implied Warranty of Habitability
4321. Affirmative Defense—Retaliatory Eviction—Tenant’s Complaint (Civ. Code,
§ 1942.5)
4322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected Activity
(Civ. Code, § 1942.5(c))
4323. Affirmative Defense—Discriminatory Eviction (Unruh Act)
4324. Affirmative Defense—Waiver by Acceptance of Rent
4325. Affirmative Defense—Failure to Comply With Rent Control Ordinance
4326. Affirmative Defense—Repair and Deduct
4327. Affirmative Defense—Landlord’s Refusal of Rent
4328. Affirmative Defense—Tenant Was Victim of Domestic Violence, Sexual Assault,
Stalking, Elder/Dependent Adult Abuse, or Human Trafficking (Code Civ. Proc.,
§ 1161.3)
4340. Damages for Reasonable Rental Value
4341. Statutory Damages on Showing of Malice (Code Civ. Proc., § 1174(b))
4342. Reduced Rent for Breach of Habitability
VF-4300. Termination Due to Failure to Pay Rent
VF-4301. Termination Due to Failure to Pay Rent—Affirmative Defense—Breach of
Implied Warranty of Habitability
VF-4302. Termination Due to Violation of Terms of Lease/Agreement

4400. Misappropriation of Trade Secrets—Introduction
4401. Misappropriation of Trade Secrets—Essential Factual Elements
4402. “Trade Secret” Defined
4403. Secrecy Requirement
4404. Reasonable Efforts to Protect Secrecy
lxviii

4405. Misappropriation by Acquisition
4406. Misappropriation by Disclosure
4407. Misappropriation by Use
4408. Improper Means of Acquiring Trade Secret
4409. Remedies for Misappropriation of Trade Secret
4410. Unjust Enrichment
4411. Punitive Damages for Willful and Malicious Misappropriation
4412. “Independent Economic Value” Explained
4420. Affirmative Defense—Information Was Readily Ascertainable by Proper Means
4421. Affirmative Defense—Statute of Limitations—Three-Year Limit (Civ. Code,
§ 3426.6)
VF-4400. Misappropriation of Trade Secrets

4500. Breach of Implied Warranty of Correctness of Plans and Specifications—Essential
Factual Elements
4501. Owner’s Liability for Failing to Disclose Important Information Regarding a
Construction Project—Essential Factual Elements
4502. Breach of Implied Covenant to Provide Necessary Items Within Owner’s
Control—Essential Factual Elements
4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Essential Factual Elements
4511. Affirmative Defense—Contractor Followed Plans and Specifications
4520. Contractor’s Claim for Changed or Extra Work
4521. Owner’s Claim That Contract Procedures Regarding Change Orders Were Not
Followed
4522. Waiver of Written Approval or Notice Requirements for Changed or Additional Work
4523. Contractor’s Claim for Additional Compensation—Abandonment of Contract
4524. Contractor’s Claim for Compensation Due Under Contract—Substantial Performance
4530. Owner’s Damages for Breach of Construction Contract—Work Does Not Conform to
Contract
4531. Owner’s Damages for Breach of Construction Contract—Failure to Complete Work
lxix

4532. Owner’s Damages for Breach of Construction Contract—Liquidated Damages Under
Contract for Delay
4540. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work
4541. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work—Total Cost Recovery
4542. Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit
Recovery
4543. Contractor’s Damages for Breach of Construction Contract—Owner-Caused Delay or
Acceleration
4544. Contractor’s Damages for Breach of Construction Contract—Inefficiency Because of
Owner Conduct
4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect (Code Civ.
Proc., § 337.1)
4551. Affirmative Defense—Statute of Limitations—Latent Construction Defect (Code Civ.
Proc., § 337.15)
4552. Affirmative Defense—Work Completed and Accepted—Patent Defect
4560. Recovery of Payments to Unlicensed Contractor (Bus & Prof Code, § 7031(b))
4561. Damages—All Payments Made to Unlicensed Contractor
VF-4500. Owner’s Failure to Disclose Important Information Regarding Construction
Project
VF-4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Affirmative Defense—Contractor Followed Plans and Specifications
VF-4520. Contractor’s Claim for Changed or Extra Work—Owner’s Response That
Contract Procedures Not Followed—Contractor’s Claim of Waiver

4600. False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code,
§ 12653)
4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Essential Factual Elements (Gov. Code, § 8547.8(c))
4602. Affirmative Defense—Same Decision (Gov. Code, § 8547.8(e))
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
lxx

4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
4605. Whistleblower Protection—Health or Safety Complaint—Essential Factual Elements
(Lab. Code, § 6310)
4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential Factual
Elements (Health & Saf. Code, § 1278.5)
VF-4600. False Claims Act: Whistleblower Protection (Gov. Code, § 12653)
VF-4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c))
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code,
§§ 1102.5, 1102.6)

4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770)
4701. Consumers Legal Remedies Act—Notice Requirement for Damages (Civ. Code,
§ 1782)
4702. Consumers Legal Remedies Act—Statutory Damages—Senior or Disabled Plaintiff
(Civ. Code, § 1780(b))
4710. Consumers Legal Remedies Act—Affirmative Defense—Bona Fide Error and
Correction (Civ. Code, § 1784)

5000. Duties of the Judge and Jury
5001. Insurance
5002. Evidence
5003. Witnesses
5007. Removal of Claims or Parties and Remaining Claims and Parties
5009. Predeliberation Instructions
5011. Reading Back of Trial Testimony in Jury Room
5012. Introduction to Special Verdict Form
lxxi

5013. Deadlocked Jury Admonition
5014. Substitution of Alternate Juror
5015. Instruction to Alternate Jurors on Submission of Case to Jury
5016. Judge’s Commenting on Evidence
5017. Polling the Jury
5018. Audio or Video Recording and Transcription
5020. Demonstrative Evidence
5021. Electronic Evidence
5090. Final Instruction on Discharge of Jury
VF-5000. General Verdict Form—Single Plaintiff—Single Defendant—Single Cause of
Action
VF-5001. General Verdict Form—Single Plaintiff—Single Defendant—Multiple Causes of
Action
lxxii

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lxxiv

Publisher’s Editorial Staff
JENIFER S. SWIRNOFF, J.D.
Editorial Director
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Director, Content Operations
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Index Editor
lxxv

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Guide for Using Judicial Council of

California Civil Jury Instructions
Ease of understanding by jurors, without sacrificing accuracy, is the primary goal of

these Judicial Council instructions. A secondary goal is ease of use by lawyers. This
guide provides an introduction to the instructions, explaining conventions and features
that will assist in the use of both the print and electronic editions.
Jury Instructions as a Statement of the Law: While jury instructions are not a
primary source of the law, they are a statement or compendium of the law, a secondary
source. That the instructions are in plain English does not change their status as an
accurate statement of the law.
Instructions Approved by Rule of Court: Rule 2.1050 of the California Rules of
Court provides: “The California jury instructions approved by the Judicial Council are
the official instructions for use in the state of California . . . The Judicial Council
endorses these instructions for use and makes every effort to ensure that they
accurately state existing law . . . Use of the Judicial Council instructions is strongly
encouraged.”
Using the Instructions
Revision Dates: The original date of approval and all revision dates of each
instruction are presented. An instruction is considered as having been revised if there
is a nontechnical change to the title, instruction text, or Directions for Use. Additions
or changes to the Sources and Authority and Secondary Sources do not generate a new
revision date.
Directions for Use: The instructions contain Directions for Use. The directions alert
the user to special circumstances involving the instruction and may include references
to other instructions that should or should not be used. In some cases the directions
include suggestions for modifications or for additional instructions that may be
required. Before using any instruction, reference should be made to the Directions for
Use.
Sources and Authority: Each instruction sets forth the primary sources that present
the basic legal principles that support the instruction. Applicable statutes are listed
along with quoted material from cases that pertain to the subject matter of the
instruction. Authorities are included to support the text of the instruction, the burden
of proof, and matters of law and of fact.
Cases included in the Sources and Authority should be treated as a digest of relevant
citations. They are not meant to provide a complete analysis of the legal subject of the
instruction. Nor does the inclusion of an excerpt necessarily mean that the committee
views it as binding authority. Rather, they provide a starting point for further legal
research on the subject. The standard is that the committee believes that the excerpt
would be of interest and relevant to CACI users.
1
Copyright Judicial Council of California

0002 [ST: 1] [ED: 100000] [REL: 17] Composed: Thu Nov 9 21:12:18 EST 2017
USER GUIDE
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
(which is also not disputed in this case).
2

USER GUIDE
Irrelevant Factors: Factors are matters that the jury might consider in determining
whether a party’s burden of proof on the elements has been met. A list of possible
factors may include some that have no relevance to the case and on which no evidence
was presented. These irrelevant factors may safely be omitted from the instruction.
Burdens of Proof: The applicable burden of proof is included within each instruction
explaining a cause of action or affirmative defense. The drafters felt that placing the
burden of proof in that position provided a clearer explanation for the jurors.
Affirmative Defenses: For ease of understanding by users, all instructions explaining
affirmative defenses use the term “affirmative defense” in the title.
Titles and Definitions
Titles of Instructions: Titles to instructions are directed to lawyers and sometimes use
words and phrases not used in the instructions themselves. Since the title is not a part
of the instruction, the titles may be removed before presentation to the jury.
Definitions of Legal Terms: The instructions avoid separate definitions of legal terms
whenever possible. Instead, definitions have been incorporated into the language of the
instructions. In some instances (e.g., specific statutory definitions) it was not possible
to avoid providing a separate definition.
Evidence
Circumstantial Evidence: The words “indirect evidence” have been substituted for
the expression “circumstantial evidence.” In response to public comment on the
subject, however, the drafters added a sentence indicating that indirect evidence is
sometimes known as circumstantial evidence.
Preponderance of the Evidence: To simplify the instructions’ language, the drafters
avoided the phrase preponderance of the evidence and the verb preponderate. The
instructions substitute in place of that phrase reference to evidence that is “more likely
to be true than not true.”
Using Verdict Forms
Verdict Forms are Models: A large selection of special verdict forms accompanies
the instructions. Users of the forms must bear in mind that these are models only.
Rarely can they be used without modifications to fit the circumstances of a particular
case.
Purpose of Verdict Forms: The special verdict forms generally track the elements of
the applicable cause of action. Their purpose is to obtain the jury’s finding on the
elements defined in the instructions. “The special verdict must present the conclusions
of fact as established by the evidence, and not the evidence to prove them; and those
conclusions of fact must be so presented as that nothing shall remain to the court but
to draw from them conclusions of law.” (Code Civ. Proc., § 624; see Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 285 [73 Cal.Rptr.2d 596].) Modifi-
cations made to the instructions in particular cases ordinarily will require correspond-
ing modifications to the special verdict form.
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
3

USER GUIDE
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].)
November 2017
Chair, Judicial Council Advisory Committee on Civil Jury Instructions

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PRETRIAL

105. Insurance
106. Evidence
107. Witnesses
113. Bias

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

PRETRIAL INSTRUCTIONS CACI No. 100
Do not do any research on your own or as a group. Do not use

dictionaries, the Internet, or other reference materials. Do not
investigate the case or conduct any experiments. Do not contact anyone
to assist you, such as a family accountant, doctor, or lawyer. Do not visit
or view the scene of any event involved in this case or use any Internet
maps or mapping programs or any other program or device to search
for or to view any place discussed in the testimony. If you happen to
pass by the scene, do not stop or investigate. If you do need to view the
scene during the trial, you will be taken there as a group under proper
supervision.
[If you violate any of these prohibitions on communications and
research, including prohibitions on electronic communications and
research, you may be held in contempt of court or face other sanctions.
That means that you may have to serve time in jail, pay a fine, or face
other punishment for that violation.]
It is important that you keep an open mind throughout this trial.
Evidence can only be presented a piece at a time. Do not form or
express an opinion about this case while the trial is going on. You must
not decide on a verdict until after you have heard all the evidence and
have discussed it thoroughly with your fellow jurors in your
deliberations.
Do not concern yourselves with the reasons for the rulings I will make
during the course of the trial. Do not guess what I may think your
verdict should be from anything I might say or do.
When you begin your deliberations, you may discuss the case only in
the jury room and only when all the jurors are present.
You must decide what the facts are in this case. Do not let bias,
sympathy, prejudice, or public opinion influence your verdict.
At the end of the trial, I will explain the law that you must follow to
reach your verdict. You must follow the law as I explain it to you, even
if you do not agree with the law.
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

CACI No. 100 PRETRIAL INSTRUCTIONS
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

• An instruction to disregard any appearance of bias on the part of the judge is

proper and may cure any error in a judge’s comments. (Gist v. French (1955)
136 Cal.App.2d 247, 257–259 [288 P.2d 1003], disapproved on other grounds in
Deshotel v. Atchinson, Topeka & Santa Fe Ry. Co. (1958) 50 Cal.2d 664, 667
[328 P.2d 449] and West v. City of San Diego (1960) 54 Cal.2d 469, 478 [6
Cal.Rptr. 289, 353 P.2d 929].) “It is well understood by most trial judges that it
is of the utmost importance that the trial judge not communicate in any manner
to the jury the judge’s opinions on the case submitted to the jury, because juries
tend to attach inflated importance to any such communication, even when the
judge has no intention whatever of influencing a jury’s determination.”
(Dorshkind v. Harry N. Koff Agency, Inc. (1976) 64 Cal.App.3d 302, 307 [134
Cal.Rptr. 344].)
Secondary Sources
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§ 322.50 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.05
California Judges Benchbook: Civil Proceedings─Trial (2d ed.) §§ 13.6, 14.50,
14.51, 14.58 (Cal CJER 2010)

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

to object and to ask me to decide if the evidence is permitted by the

rules. Usually, I will decide immediately, but sometimes I may have to
hear arguments outside of your presence.
After the evidence has been presented, I will instruct you on the law
that applies to the case and the attorneys will make closing arguments.
What the parties say in closing argument is not evidence. The
arguments are offered to help you understand the evidence and how the
law applies to it.
New September 2003; Revised February 2007, June 2010

Directions for Use
This instruction is intended to provide a “road map” for the jurors. This instruction
should be read in conjunction with CACI No. 100, Preliminary Admonitions.
The bracketed second, third, and fourth paragraphs are optional. The court may
wish to use these paragraphs to provide the jurors with an explanation of the claims
and defenses that are at issue in the case. Include the third and fourth paragraphs if
a cross-complaint is also being tried. Include the last sentence in the second and
fourth paragraphs if affirmative defenses are asserted on the complaint or cross-
complaint.
The sixth paragraph presents the order of proof. If there is a cross-complaint,
include the last two sentences. Alternatively, the parties may stipulate to a different
order of proof—for example, by agreeing that some evidence will apply to both the
complaint and the cross-complaint. In this case, customize this paragraph to
correspond to the stipulation.
• Pretrial Instructions on Trial Issues and Procedure. Rule 2.1035 of the
California Rules of Court.
• Order of Trial Proceedings. Code of Civil Procedure section 607.
• “[W]e can understand that it might not have seemed like [cross-complainants]
were producing much evidence on their cross-complaint at trial. Most of the
relevant (and undisputed) facts bearing on the legal question of whether [cross-
defendants] had a fiduciary duty and, if so, violated it, had been brought out in
plaintiffs’ case-in-chief. But just because the undisputed evidence favoring the
cross-complaint also happened to come out on plaintiffs’ case-in-chief does not
mean it was not available to support the cross-complaint.” (Le v. Pham (2010)
180 Cal.App.4th 1201, 1207 [103 Cal.Rptr.3d 606], original italics.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 147
Wagner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group)
¶¶ 1:427–1:432; 4:460–4:463
11

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]].
New September 2003; Revised April 2007, December 2007

Directions for Use
This instruction may be given as an introductory instruction or as a concluding
instruction after trial. (See CACI No. 5010, Taking Notes During the Trial).
The bracketed paragraph should not be read if a court reporter is not being used to
record the trial proceedings.
In the last paragraph, specify the court’s disposition of the notes after trial. No
statute or rule of court requires any particular disposition.
• Juror Notes. Rule 2.1031 of the California Rules of Court.
• “Because of [the risks of note-taking], a number of courts have held that a
cautionary instruction is required. For example, [one court] held that the
instruction should include ‘an explanation . . . that [jurors] should not permit
their note-taking to distract them from the ongoing proceedings; that their notes
are only an aid to their memory and should not take precedence over their
independent recollection; that those jurors who do not take notes should rely on
their independent recollection of the evidence and not be influenced by the fact
13

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)
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.]
New September 2003; Revised April 2009

Directions for Use
The CACI instructions require the use of party names rather than party-status
words like “plaintiff” and “defendant.” In multiparty cases, it is important to name
only the parties in each instruction to whom the instruction applies. For example,
an instruction on loss of consortium (see CACI No. 3920) will not apply to all
plaintiffs. Instructions on vicarious liability (see CACI No. 3700 et seq.) will not
apply to all defendants. Unless all or nearly all of the instructions will apply to all
of the parties, give the first option for the last paragraph.
• “We realize, of course, that multiple defendants are involved and that each
defendant is entitled to instructions on, and separate consideration of, every
defense available and applicable to it. The purpose of this rule is to insure that
the jury will distinguish and evaluate the separate facts relevant to each
defendant.” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 58 [148
Cal.Rptr. 596, 583 P.2d 121], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 67 et seq.
27 California Forms of Pleading and Practice, Ch. 318, Judgments, § 318.15
(Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 5,
Parties, 5.30 et seq.
15

A [corporation/partnership/city/county/[other entity]], [name of entity], is

a party in this lawsuit. [Name of entity] is entitled to the same fair and
impartial treatment that you would give to an individual. You must
decide this case with the same fairness that you would use if you were
deciding the case between individuals.
When I use words like “person” or “he” or “she” in these instructions
to refer to a party, those instructions also apply to [name of entity].
New September 2003

Directions for Use
This instruction should be given as an introductory instruction if one of the parties
is an entity. Select the type of entity and insert the name of the entity where
indicated in the instruction.
• Corporations Have Powers of Natural Person. Corporations Code section 207.
• “Person” Includes Corporation. Civil Code section 14.
• As a general rule, a corporation is considered to be a legal entity that has an
existence separate from that of its shareholders. (Erkenbrecher v. Grant (1921)
187 Cal. 7, 9 [200 P. 641].)
• “In general, any person or entity has capacity to sue or defend a civil action in
the California courts. This includes artificial ‘persons’ such as corporations,
partnerships and associations.” (American Alternative Energy Partners II, 1985
v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 559 [49 Cal.Rptr.2d 686],
internal citations omitted.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Corporations, § 1, p. 775
Parties, 5.13–5.17
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.
New September 2003

• Evidence of Insurance Inadmissible. Evidence Code section 1155.
• As a rule, evidence that the defendant has insurance is both irrelevant and
prejudicial to the defendant. (Neumann v. Bishop (1976) 59 Cal.App.3d 451,
469 [130 Cal.Rptr. 786].)
• Generally, evidence that the plaintiff was insured is not admissible under the
“collateral source rule.” (Helfend v. Southern California Rapid Transit Dist.
(1970) 2 Cal.3d 1, 16–18 [84 Cal.Rptr. 173, 465 P.2d 61]; Acosta v. Southern
California Rapid Transit Dist. (1970) 2 Cal.3d 19, 25–26 [84 Cal.Rptr. 184, 465
P.2d 72].)
• Evidence of insurance coverage may be admissible where it is coupled with
other relevant evidence, provided that the probative value of the other evidence
outweighs the prejudicial effect of the mention of insurance. (Blake v. E.
Thompson Petroleum Repair Co., Inc. (1985) 170 Cal.App.3d 823, 831 [216
Cal.Rptr. 568].)
• An instruction to disregard whether a party has insurance may, in some cases,
cure the effect of counsel’s improper reference to insurance. (Scally v. Pacific
Gas & Electric Co. (1972) 23 Cal.App.3d 806, 814 [100 Cal.Rptr. 501].)
Secondary Sources
7 Witkin, California Procedure (4th ed. 1997) Trial, §§ 230–233
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.32–34.36
California Practice Guide: Civil Trials and Evidence, § 5:371
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, §§ 50.20, 50.32 (Matthew Bender)
Bender)
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.
• “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

of the attorney. Properly stipulated facts may not be contradicted. (Palmer v.

City of Long Beach (1948) 33 Cal.2d 134, 141–142 [199 P.2d 952].)
• Courts have held that “attempts to suggest matters of an evidentiary nature to a
jury other than by the legitimate introduction into evidence is misconduct
whether by questions on cross-examination, argument or other means.” (Smith v.
Covell (1980) 100 Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
• Courts have stated that “[t]he right to object on appeal to misconduct or
improper argument, even when prejudicial, is generally waived in the absence
of a proper objection and request the jury be admonished.” (Atkins v. Bisigier
(1971) 16 Cal.App.3d 414, 427 [94 Cal.Rptr. 49]; Horn v. Atchison, Topeka &
Santa Fe Ry. Co. (1964) 61 Cal.2d 602, 610 [39 Cal.Rptr. 721, 394 P.2d 561].)
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 281, 282
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, §§ 21.01, 21.03 (Matthew Bender)
§§ 322.56–322.57 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.61, 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 3.52, 4.99, 5.40,
5.49, 5.69, 12.9, 12.35 (Cal CJER 2010)
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

instruction after trial. (See CACI No. 5003, Witnesses.)

• Role of Jury. Evidence Code section 312.
• Considerations for Evaluating the Credibility of Witnesses. Evidence Code
section 780.
• Direct Evidence of Single Witness Sufficient. Evidence Code section 411.
• “It should certainly not be of importance to tell the ordinary man of the world
that he should distrust the statements of a witness whom he believes to be a
liar.” (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 671 [288 P.
834].)
Secondary Sources
1A California Trial Guide, Unit 22, Rules Affecting Admissibility of Evidence,
Bender)
21

Some testimony will be given in [insert language other than English]. An

interpreter will provide a translation for you at the time that the
testimony is given. You must rely solely on the translation provided by
the interpreter, even if you understand the language spoken by the
witness. Do not retranslate any testimony for other jurors. If you believe
the court interpreter translated testimony incorrectly, let me know
immediately by writing a note and giving it to the [clerk/bailiff/court
attendant].
New September 2003; Revised April 2004, June 2011

• It is misconduct for a juror to retranslate for other jurors testimony that has
been translated by the court-appointed interpreter. (People v. Cabrera (1991)
230 Cal.App.3d 300, 303 [281 Cal.Rptr. 238].)
• “It is well-settled a juror may not conduct an independent investigation into the
facts of the case or gather evidence from outside sources and bring it into the
jury room. It is also misconduct for a juror to inject his or her own expertise
into the jury’s deliberation.” (People v. Cabrera, supra, 230 Cal.App.3d at p.
303.)
• “If [the juror] believed the court interpreter was translating incorrectly, the
proper action would have been to call the matter to the trial court’s attention,
not take it upon herself to provide her fellow jurors with the ‘correct’
translation.” (People v. Cabrera, supra, 230 Cal.App.3d at p. 304.)
Secondary Sources
1 California Trial Guide, Unit 3, Other Non-Evidentiary Motions, § 3.32 (Matthew
Bender)
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.10, 91.12 (Matthew Bender)
2010)
22

[[Name of plaintiff]’s claim for [insert claim] is no longer an issue in this

case.]
[[Name of party] is no longer a party to this case.]
Do not speculate as to why this [claim/person] is no longer involved in
this case. You should not consider this during your deliberations.
New September 2003

Directions for Use
This instruction may be read during trial as appropriate.
Secondary Sources
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 9.62, 9.78 (Cal
CJER 2010)
23

During trial, [name of juror] will be assisted by a [insert service provider].

The [insert service provider] is not a member of the jury and is not to
participate in the deliberations in any way other than as necessary to
provide the service to [name of juror].
New September 2003

Directions for Use
This instruction should be read along with other introductory instructions at the
beginning of the trial if appropriate.
• Eligibility to Serve as Juror. Code of Civil Procedure section 203(a)(6).
• Service Provider for Juror With Disability. Code of Civil Procedure section 224.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 320, 330
322.40 (Matthew Bender)
Ch. 8, Interpreters, 8.32
2010)
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.
New October 2004

Directions for Use
If an alternate juror is substituted, see CACI No. 5014, Substitution of Alternate
Juror.
• Alternate Jurors. Code of Civil Procedure section 234.
• “Alternate jurors are members of the jury panel which tries the case. They are
selected at the same time as the regular jurors. They take the same oath and are
subject to the same qualifications as the regular jurors. Alternate jurors hear the
same evidence and are subject to the same admonitions as the regular jurors
and, unless excused by the court, are available to participate as regular jurors.”
(Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144],
Secondary Sources
§§ 322.44, 322.52, 322.101 (Matthew Bender)
1 California Trial Guide, Unit 10, Voir Dire Examination, § 10.01 et seq. (Matthew
Bender)
Ch. 6, Jury Selection, 6.08[4]
2010)
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.
• 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)
§§ 91.01–91.03 (Matthew Bender)
CJER 2010)
27

113. Bias
Each one of us has biases about or certain perceptions or stereotypes of

other people. We may be aware of some of our biases, though we may
not share them with others. We may not be fully aware of some of our
other biases.
Our biases often affect how we act, favorably or unfavorably, toward
someone. Bias can affect our thoughts, how we remember, what we see
and hear, whom we believe or disbelieve, and how we make important
decisions.
As jurors you are being asked to make very important decisions in this
case. You must not let bias, prejudice, or public opinion influence your
decision. You must not be biased in favor of or against any party or
witness because of his or her disability, gender, race, religion, ethnicity,
sexual orientation, age, national origin, [or] socioeconomic status[, or
[insert any other impermissible form of bias]].
Your verdict must be based solely on the evidence presented. You must
carefully evaluate the evidence and resist any urge to reach a verdict
that is influenced by bias for or against any party or witness.
New June 2010; Revised December 2012

• Conduct Exhibiting Bias Prohibited. Standard 10.20(a)(2) of the California
Standards of Judicial Administration.
• Judge Must Perform Duties Without Bias. Canon 3(b)(5) of the California Code
of Judicial Ethics.
Secondary Sources
Witkin, California Procedure (5th ed. 2008) Trial, § 132
1 California Trial Guide, Unit 10, Voir Dire Examination, §§ 10.03[1], 10.21[2],
10.50, 10.80, 10.100 (Matthew Bender)
Ch. 6, Jury Selection, § 6.21
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.
New December 2010

Directions for Use
This instruction is based on Model Instruction 1.17 of the federal Ninth Circuit
Court of Appeals. It may be used to explain to the jury why there may be
discussions at the bench that the jury will not be able to hear, and why sometimes
the judge will call a recess for discussions outside of the presence of the jury.
Secondary Sources
Bender)
1 California Trial Guide, Unit 4, Pretrial Evidentiary Motions, § 4.10[1] (Matthew
Bender)
Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 2, Public Access to Trials and Records, 2.05
29

A class action is a lawsuit that has been brought by one or more

plaintiffs on behalf of a larger group of people who have similar legal
claims. All of these people together are called a “class.” [Name of
plaintiff] brings this action as the class representative.
In a class action, the claims of many individuals can be resolved at the
same time instead of requiring each member to sue separately. Because
of the large number of claims that are at issue in this case, not everyone
in the class will testify. You may assume that the evidence at this [stage
of the] trial applies to all class members [except as I specifically tell you
otherwise]. All members of the class will be bound by the result of this
trial.
In this case, the class(es) consist(s) of the following:
[Describe each class, e.g.,
Original Homebuyers: All current homeowners in the Happy Valley
subdivision in Pleasantville, California, who purchased homes that were
constructed and marketed by [name of defendant]. (“Class of Original
Purchasers”)
Subsequent Homebuyers: All current homeowners in the Happy Valley
subdivisions in Pleasantville, California, who purchased homes that were
constructed and marketed by [name of defendant] from another homeowner.
(“Class of Later Purchasers”)].
New June 2011

Directions for Use
The first paragraph may be modified for use with a defendant class. If in the course
of the trial the court decertifies the class or one of the classes as to some or all
issues, a concluding instruction explaining the effect of the decertification should be
given.
In the second paragraph, if class evidence and individual evidence will be received
in separate stages of the trial, include the first bracketed language. If both class
evidence and individual evidence will be received together, include the second
bracketed language and specify the class evidence in a separate instruction.
• Right to Bring Class Action. Code of Civil Procedure section 382.
• “Courts long have acknowledged the importance of class actions as a means to
prevent a failure of justice in our judicial system. ‘ “By establishing a technique
whereby the claims of many individuals can be resolved at the same time, the
30

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,
4 California Points and Authorities, Ch. 41, Class and Representative Actions,
§ 41.30 et seq. (Matthew Bender)
Class Actions, 33.04
31

116. Why Electronic Communications and Research Are

Prohibited
I know that many of us are used to communicating and perhaps even

learning by electronic communications and research. However, there are
good reasons why you must not electronically communicate or do any
research on anything having to do with this trial or the parties.
In court, jurors must make important decisions that have consequences
for the parties. Those decisions must be based only on the evidence that
you hear in this courtroom.
The evidence that is presented in court can be tested; it can be shown to
be right or wrong by either side; it can be questioned; and it can be
contradicted by other evidence. What you might read or hear on your
own could easily be wrong, out of date, or inapplicable to this case.
The parties can receive a fair trial only if the facts and information on
which you base your decisions are presented to you as a group, with
each juror having the same opportunity to see, hear, and evaluate the
evidence.
Also, a trial is a public process that depends on disclosure in the
courtroom of facts and evidence. Using information gathered in secret
by one or more jurors undermines the public process and violates the
rights of the parties.
New June 2011

Directions for Use
Give this instruction after CACI No. 100, Preliminary Admonitions, in order to
provide more information to the jury as to the reasons why independent electronic
research using the internet and electronic communications are prohibited.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 330 et seq.
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-F, Juror
Misconduct During Trial, ¶¶ 7:110, 7:113.1 (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-F, Juror
Misconduct During Deliberations, ¶¶ 15:206–15:210 (The Rutter Group)
4 Johnson, California Trial Guide, Unit 91, Jury Deliberations and Rendition of
Verdict, § 91.10 et seq. (Matthew Bender)
32

Ch. 17, Dealing With the Jury, 17.21

California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 5.129, 14.50,
14.51 (Cal CJER 2010)
33

In reaching a verdict, you may not consider the wealth or poverty of

any party. The parties’ wealth or poverty is not relevant to any of the
issues that you must decide.
New November 2017

Directions for Use
This instruction may be given unless liability and punitive damages are to be
decided in a nonbifurcated trial. The defendant’s wealth is relevant to punitive
damages. (Adams v. Murakami (1991) 54 Cal.3d 105, 108 [284 Cal.Rptr. 318, 813
P.2d 1348].) Otherwise, the wealth or lack of it is not relevant. (Hoffman v. Brandt
(1966) 65 Cal.2d 549, 552–553 [55 Cal.Rptr. 417, 421 P.2d 425].) If this
instruction is given in a nonbifurcated trial, it should be modified to clarify that the
prohibition on considering wealth applies only to liability and compensatory
damages, and not to punitive damages. For discussion of the role of a defendant’s
financial condition with regard to punitive damages, see the punitive damages
instructions in the Damages series, CACI Nos. 3940–3949.
• “Justice is to be accorded to rich and poor alike, and a deliberate attempt by
counsel to appeal to social or economic prejudices of the jury, including the
wealth or poverty of the litigants, is misconduct where the asserted wealth or
poverty is not relevant to the issues of the case. The possibility, even if true,
that a judgment for plaintiffs would mean that defendant would have to go to
the Laguna Honda Home, had no relevance to the issues of the case, and the
argument of defense counsel was clearly a transparent attempt to appeal to the
sympathies of the jury on the basis of the claimed lack of wealth of the
defendant. As such, it was clearly misconduct.” (Hoffman, supra, 65 Cal.2d at
pp. 552–553, internal citations omitted.)
• “[W]here liability and punitive damages are tried in a single proceeding,
evidence of wealth is admissible. ‘[W]hile in the ordinary action for damages
information regarding the adversary’s financial status is inadmissible, this is not
so in an action for punitive damages. In such a case evidence of defendant’s
financial condition is admissible at the trial for the purpose of determining the
amount that it is proper to award [citations]. The relevancy of such evidence
lies in the fact that punitive damages are not awarded for the purpose of
rewarding the plaintiff but to punish the defendant. Obviously, the trier of fact
cannot measure the ‘punishment’ without knowledge of defendant’s ability to
respond to a given award.’ ” (Las Palmas Associates v. Las Palmas Center
Associates (1991) 235 Cal.App.3d 1220, 1243 [1 Cal.Rptr.2d 301], original
italics.)
34

• “In an action for damages, a showing of poverty of the plaintiff is highly

prejudicial; if such evidence is deliberately introduced, it may constitute
reversible error.” (Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [84 Cal.Rptr.
220].)
Secondary Sources
Witkin, California Procedure (5th ed. 2008) Trial, §§ 215, 216
4 Levy et al., California Torts, Ch. 54, Punitive Damages, § 54.24 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[14]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.141 et seq.
(Matthew Bender)
35


EVIDENCE

37

A party must persuade you, by the evidence presented in court, that

what he or she is required to prove is more likely to be true than not
true. This is referred to as “the burden of proof.”
After weighing all of the evidence, if you cannot decide that something
is more likely to be true than not true, you must conclude that the party
did not prove it. You should consider all the evidence, no matter which
party produced the evidence.
In criminal trials, the prosecution must prove that the defendant is
guilty beyond a reasonable doubt. But in civil trials, such as this one,
the party who is required to prove something need prove only that it is
more likely to be true than not true.
New September 2003; Revised February 2005

Directions for Use
Evidence Code section 502 requires the court to instruct the jury regarding which
party bears the burden of proof on each issue and the requisite degree of proof.
For an instruction on clear and convincing evidence, see CACI No. 201, Highly
Probable—Clear and Convincing Proof.
• Burden of Proof—Preponderance of Evidence. Evidence Code section 115.
• Party With Burden of Proof. Evidence Code section 500.
• Each party is entitled to the benefit of all the evidence, including the evidence
produced by an adversary. (Williams v. Barnett (1955) 135 Cal.App.2d 607, 612
[287 P.2d 789]; 7 Witkin, California Procedure (4th ed. 1997) Trial, § 305, p.
352.)
• The general rule in California is that “ ‘[i]ssues of fact in civil cases are
determined by a preponderance of testimony.’ ” (Weiner v. Fleischman (1991)
54 Cal.3d 476, 483 [286 Cal.Rptr. 40, 816 P.2d 892], citation omitted.)
• The preponderance-of-the-evidence standard “simply requires the trier of fact
‘to believe that the existence of a fact is more probable than its nonexistence.’ ”
(In re Angelia P. (1981) 28 Cal.3d 908, 918 [171 Cal.Rptr. 637, 623 P.2d 198],
citation omitted.)
• “Preponderance of the evidence” “ ‘means what it says, viz., that the evidence
on one side outweighs, preponderates over, is more than, the evidence on the
other side, not necessarily in number of witnesses or quantity, but in its effect
on those to whom it is addressed.’ ” (Glage v. Hawes Firearms Co. (1990) 226
38

EVIDENCE CACI No. 200
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
(Matthew Bender)
39

Certain facts must be proved by clear and convincing evidence, which is

a higher burden of proof. This means the party must persuade you that
it is highly probable that the fact is true. I will tell you specifically
which facts must be proved by clear and convincing evidence.
New September 2003; Revised October 2004, June 2015

Directions for Use
Evidence Code section 502 requires the court to instruct the jury regarding which
party bears the burden of proof on each issue and the requisite degree of proof.
This instruction should be read immediately after CACI No. 200, Obligation to
Prove—More Likely True Than Not True, if the jury will have to decide an issue by
means of the clear-and-convincing evidence standard.
• Burden of Proof. Evidence Code section 115.
• Party With Burden of Proof. Evidence Code section 500.
• “Proof by clear and convincing evidence is required ‘where particularly
important individual interests or rights are at stake,’ such as the termination of
parental rights, involuntary commitment, and deportation. However, ‘imposition
of even severe civil sanctions that do not implicate such interests has been
permitted after proof by a preponderance of the evidence.’ ” (Weiner v.
Fleischman (1991) 54 Cal.3d 476, 487 [286 Cal.Rptr. 40, 816 P.2d 892]
(quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389–390).)
• “ ‘Clear and convincing’ evidence requires a finding of high probability.” (In re
Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rptr. 637, 623 P.2d 198].)
• “We decline to hold that CACI No. 201 should be augmented to require that
‘the evidence must be “so clear as to leave no substantial doubt” and
“sufficiently strong as to command the unhesitating assent of every reasonable
mind.” ’ Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent
authority mandates that augmentation, and the proposed additional language is
dangerously similar to that describing the burden of proof in criminal cases.”
(Nevarrez v. San Marino Skilled Nursing & Wellness Center (2013) 221
Cal.App.4th 102, 114 [163 Cal.Rptr.3d 874].)
Secondary Sources
§§ 39, 40
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 45.4, 45.21
40


(Matthew Bender)
1 Cathcart et al., Matthew Bender Practice Guide: California Debt Collection and
Enforcement of Judgments, Ch. 9, Burdens of Proof and Persuasion, 9.16
41

Evidence can come in many forms. It can be testimony about what

someone saw or heard or smelled. It can be an exhibit admitted into
evidence. It can be someone’s opinion.
Direct evidence can prove a fact by itself. For example, if a witness
testifies she saw a jet plane flying across the sky, that testimony is direct
evidence that a plane flew across the sky. Some evidence proves a fact
indirectly. For example, a witness testifies that he saw only the white
trail that jet planes often leave. This indirect evidence is sometimes
referred to as “circumstantial evidence.” In either instance, the witness’s
testimony is evidence that a jet plane flew across the sky.
As far as the law is concerned, it makes no difference whether evidence
is direct or indirect. You may choose to believe or disbelieve either kind.
Whether it is direct or indirect, you should give every piece of evidence
whatever weight you think it deserves.
New September 2003; Revised December 2012

Directions for Use
An instruction concerning the effect of circumstantial evidence must be given on
request when it is called for by the evidence. (Shepherd v. Walley (1972) 28
Cal.App.3d 1079, 1084 [105 Cal.Rptr. 387]; Calandri v. Ione Unified School Dist.
(1963) 219 Cal.App.2d 542, 551 [33 Cal.Rptr. 333]; Trapani v. Holzer (1958) 158
Cal.App.2d 1, 6 [321 P.2d 803].)
• Direct Evidence. Evidence Code section 410.
• Inference. Evidence Code section 600(b).
• The Assembly Committee on Judiciary Comment to section 600 observes:
“Under the Evidence Code, an inference is not itself evidence; it is the result of
reasoning from evidence.”
• “[T]he fact that evidence is ‘circumstantial’ does not mean that it cannot be
‘substantial.’ Relevant circumstantial evidence is admissible in California.
Moreover, the jury is entitled to accept persuasive circumstantial evidence even
where contradicted by direct testimony.” (Hasson v. Ford Motor Co. (1977) 19
Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857], overruled on other grounds
in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “The terms ‘indirect evidence’ and ‘circumstantial evidence’ are interchangeable
and synonymous.” (People v. Yokum (1956) 145 Cal.App.2d 245, 250 [302 P.2d
406], disapproved on other grounds, People v. Cook (1983) 33 Cal.3d 400, 413
42

[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
Bender)
43

You may consider the ability of each party to provide evidence. If a

party provided weaker evidence when it could have provided stronger
evidence, you may distrust the weaker evidence.
New September 2003

Directions for Use
An instruction on failure to produce evidence should not be given if there is no
evidence that the party producing inferior evidence had the power to produce
superior evidence. (Thomas v. Gates (1899) 126 Cal. 1, 6 [58 P. 315]; Hansen v.
Warco Steel Corp. (1965) 237 Cal.App.2d 870, 876 [47 Cal.Rptr. 428]; Holland v.
Kerr (1953) 116 Cal.App.2d 31, 37 [253 P.2d 88].)
The reference to “stronger evidence” applies to evidence that is admissible. This
instruction should not be construed to apply to evidence that the court has ruled
inadmissible. (Hansen, supra, 237 Cal.App.2d at p. 877.)
For willful suppression of evidence, see CACI No. 204, Willful Suppression of
Evidence.
• Power to Produce Better Evidence. Evidence Code section 412.
• Section 412 does not incorporate the “best evidence rule,” but instead deals
with “stronger and more satisfactory” evidence. (Largey v. Intrastate
Radiotelephone, Inc. (1982) 136 Cal.App.3d 660, 672 [186 Cal.Rptr. 520]
(giving of instruction was proper because corporate records concerning date of
meeting could have been stronger evidence than recollection of participants
several years later).)
• This inference was a mandatory presumption under former Code of Civil
Procedure section 1963(6). It is now considered a permissible inference. (See 3
Witkin, California Evidence (4th ed. 2000) § 114, p. 152.)
Secondary Sources
Bender)
2010)
44

You may consider whether one party intentionally concealed or

destroyed evidence. If you decide that a party did so, you may decide
that the evidence would have been unfavorable to that party.
New September 2003; Revised October 2004

Directions for Use
This instruction should be given only if there is evidence of suppression. (In re
Estate of Moore (1919) 180 Cal. 570, 585 [182 P. 285]; Sprague v. Equifax, Inc.
(1985) 166 Cal.App.3d 1012, 1051 [213 Cal.Rptr. 69]; County of Contra Costa v.
Nulty (1965) 237 Cal.App.2d 593, 598 [47 Cal.Rptr. 109].)
If there is evidence that a party improperly altered evidence (as opposed to
concealing or destroying it), users should consider modifying this instruction to
account for that circumstance.
In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12 [74
Cal.Rptr.2d 248, 954 P.2d 511], a case concerning the tort of intentional spoliation
of evidence, the Supreme Court observed that trial courts are free to adapt standard
jury instructions on willful suppression to fit the circumstances of the case,
“including the egregiousness of the spoliation and the strength and nature of the
inference arising from the spoliation.”
• Willful Suppression of Evidence. Evidence Code section 413.
• Former Code of Civil Procedure section 1963(5) permitted the jury to infer
“[t]hat the evidence willfully suppressed would be adverse if produced.”
Including this inference in a jury instruction on willful suppression is proper
because “Evidence Code section 413 was not intended as a change in the law.”
(Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 994 [16
Cal.Rptr.2d 787], disapproved of on other grounds in Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d
179].)
• “The rule of [present Evidence Code section 413] . . . is predicated on
common sense, and public policy. The purpose of a trial is to arrive at the true
facts. A trial is not a game where one counsel safely may sit back and refuse to
produce evidence where in the nature of things his client is the only source
from which that evidence may be secured. A defendant is not under a duty to
produce testimony adverse to himself, but if he fails to produce evidence that
would naturally have been produced he must take the risk that the trier of fact
will infer, and properly so, that the evidence, had it been produced, would have
been adverse.” (Williamson v. Superior Court of Los Angeles County (1978) 21
45

CACI No. 204 EVIDENCE
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
Secondary Sources
Bender)
CJER 2010)
46

If a party failed to explain or deny evidence against [him/her/it] when

[he/she/it] could reasonably be expected to have done so based on what
[he/she/it] knew, you may consider [his/her/its] failure to explain or deny
in evaluating that evidence.
It is up to you to decide the meaning and importance of the failure to
explain or deny evidence against the party.

Directions for Use
This instruction should be given only if there is a failure to deny or explain a fact
that is material to the case.
• Failure to Explain or Deny. Evidence Code section 413.
Secondary Sources
Cotchett, California Courtroom Evidence, § 11.04 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93[3] (Matthew
Bender)
4 California Trial Guide, Unit. 90, Closing Argument, § 90.30[2] (Matthew Bender)
2010)
47

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.
New September 2003

Directions for Use
Where appropriate, an instruction limiting the purpose for which evidence is to be
considered must be given upon request. (Evid. Code, § 355; Daggett v. Atchison,
Topeka & Santa Fe Ry. Co. (1957) 48 Cal.2d 655, 665–666 [313 P.2d 557];
Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388,
412 [264 Cal.Rptr. 779].) It is recommended that the judge call attention to the
purpose to which the evidence applies.
For an instruction on evidence applicable to one party or a limited number of
parties, see CACI No. 207, Evidence Applicable to One Party.
• Evidence Admitted for Limited Purpose. Evidence Code section 355.
• Refusal to give a requested instruction limiting the purpose for which evidence
is to be considered may constitute error. (Adkins v. Brett (1920) 184 Cal. 252,
261–262 [193 P. 251].)
• Courts have observed that “[w]here the information is admitted for a purpose
other than showing the truth of the matter asserted . . . , prejudice is likely to
be minimal and a limiting instruction under section 355 may be requested to
control the jury’s use of the information.” (Korsak v. Atlas Hotels, Inc. (1992) 2
• An adverse party may be excused from the requirement of requesting a limiting
instruction and may be permitted to assert error if the trial court unequivocally
rejects the argument upon which a limiting instruction would be based. (Warner
Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 298–299 [85
Cal.Rptr. 444, 466 P.2d 996].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32–36
Evidence, § 21.21 (Matthew Bender)
(Matthew Bender)
48

California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 4.106, 13.26

(Cal CJER 2010)
49

[During the trial, I explained that certain evidence could be considered

as to only one party. You may not consider that evidence as to any other
party.]
[During the trial, I explained that certain evidence could be considered
as to one or more parties but not to every party. You may not consider
that evidence as to any other party.]
New September 2003

Directions for Use
If appropriate, an instruction limiting the parties to whom evidence applies must be
given on request. (Evid. Code, § 355.) It is recommended that the judge call
attention to the party or parties to which the evidence applies.
For an instruction on evidence admissible for a limited purpose, see CACI
No. 206, Evidence Admitted for Limited Purpose.
• Evidence Applicable to One Party. Evidence Code section 355.
Secondary Sources
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 4.106, 13.26
(Cal CJER 2010)
50

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.

• How Testimony is Taken. Code of Civil Procedure section 2002.
• Use of Deposition at Trial. Code of Civil Procedure section 2025.620.
• Admissibility of Former Testimony. Evidence Code sections 1291(a), 1292(a).
• “Former Testimony” Defined. Evidence Code section 1290(c).
• “Admissions contained in depositions and interrogatories are admissible in
evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp.
(1975) 48 Cal.App.3d 376, 380 [121 Cal.Rptr. 768].)
• “The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds the witness unavailable as a witness within
the meaning of section 240 of the Evidence Code.” (Chavez v. Zapata Ocean
Resources, Inc. (1984) 155 Cal.App.3d 115, 118 [201 Cal.Rptr. 887], citation
omitted.)
Secondary Sources
§§ 20.30–20.38, Unit 40, Hearsay, §§ 40.60–40.61 (Matthew Bender)
5 Levy et al., California Torts, Ch. 72, Discovery, § 72.41 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 193, Discovery: Depositions,
§§ 193.90–193.96 (Matthew Bender)
Matthew Bender Practice Guide: California Civil Discovery, Ch. 6, Oral
Depositions in California
51

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.
New September 2003

• Use of Interrogatories at Trial. Code of Civil Procedure section 2030.410.
• “Admissions contained in depositions and interrogatories are admissible in
evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp.
(1975) 48 Cal.App.3d 376, 380 [121 Cal.Rptr. 768].)
Secondary Sources
16 California Forms of Pleading and Practice, Ch. 194, Discovery: Interrogatories,
Matthew Bender Practice Guide: California Civil Discovery, Ch. 9, Interrogatories,
9.29
52

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.]
New September 2003

Directions for Use
The bracketed phrase should be given if there are multiple parties.
• Requests for Admission. Code of Civil Procedure section 2033.010.
• “As Professor Hogan points out, ‘[t]he request for admission differs
fundamentally from the other five discovery tools (depositions, interrogatories,
inspection demands, medical examinations, and expert witness exchanges).
These other devices have as their main thrust the uncovering of factual data that
may be used in proving things at trial. The request for admission looks in the
opposite direction. It is a device that seeks to eliminate the need for proof in
certain areas of the case.’ ” (Brigante v. Huang (1993) 20 Cal.App.4th 1569,
1577 [25 Cal.Rptr.2d 354] (quoting 1 Hogan, Modern California Discovery (4th
ed. 1988) § 9.1, p. 533).)
• All parties to the action may rely on admissions. (See Swedberg v. Christiana
Community Builders (1985) 175 Cal.App.3d 138, 143 [220 Cal.Rptr. 544].)
Secondary Sources
2 Witkin, California Evidence (4th ed. 2000) Discovery, §§ 157–167, 177
16 California Forms of Pleading and Practice, Ch. 196, Discovery: Requests for
Admissions, § 196.19 (Matthew Bender)
Matthew Bender Practice Guide: California Civil Discovery, Ch. 12, Requests for
Admissions
53

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.

Directions for Use
Include the word “only” unless the court has admitted the evidence for some other
purpose, in which case, include the next-to-last sentence. For example, a prior
alcohol-related conviction might be relevant to show conscious disregard if the
claim involves conduct while under the influence.
• Admissibility of Evidence of Prior Felony Conviction. Evidence Code section
788.
• The standards governing admissibility of prior convictions in civil cases are
different from those in criminal proceedings. In Robbins v. Wong (1994) 27
Cal.App.4th 261, 273 [32 Cal.Rptr.2d 337], the court observed: “Given the
significant distinctions between the rights enjoyed by criminal defendants and
civil litigants, and the diminished level of prejudice attendant to felony
impeachment in civil proceedings, it is not unreasonable to require different
standards of admissibility in civil and criminal cases.” (Id. at p. 273.)
In Robbins, the court concluded that article I, section 28(f) of the California
Constitution, as well as any Supreme Court cases on this topic in the criminal
arena, does not apply to civil cases. (Robbins, supra, 27 Cal.App.4th at p. 274.)
However, the court did hold that the trial court “may utilize such decisions to
formulate guidelines for the judicial weighing of probative value against
prejudicial effect under section 352.” (Ibid.)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 304, 306,
307, 320
Bender)
Ch. 11, Questioning Witnesses and Objections, 11.64
2010)
54

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.
New September 2003

Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard a
statement offered as evidence if it finds that the preliminary facts do not exist. For
adoptive admissions, see CACI No. 213, Adoptive Admissions.
• Determination of Preliminary Facts. Evidence Code section 403.
• Statements of Party. Evidence Code section 1220.
The Law Revision Commission comment to this section observes that “[t]he
rational underlying this exception is that the party cannot object to the lack of
the right to cross-examine the declarant since the party himself made the
statement.”
• There is no requirement that the prior statement of a party must have been
against his or her interests when made in order to be admissible. Any prior
statement of a party may be offered against him or her in trial. (1 Witkin,
California Evidence (4th ed. 2000) Hearsay § 93.)
• The cautionary instruction regarding admissions is derived from common law,
formerly codified at Code of Civil Procedure section 2061. The repeal of this
section did not affect decisional law concerning the giving of the cautionary
instruction. (People v. Beagle (1972) 6 Cal.3d 441, 455, fn. 4 [99 Cal.Rptr. 313,
492 P.2d 1].)
• The purpose of the cautionary instruction has been stated as follows:
“Ordinarily there is strong reasoning behind the principle that a party’s
extrajudicial admissions or declarations against interest should be viewed with
55

caution. . . . No class of evidence is more subject to error or abuse inasmuch

as witnesses having the best of motives are generally unable to state the exact
language of an admission and are liable, by the omission or the changing of
words, to convey a false impression of the language used.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 214 [57 Cal.Rptr. 319].)
• The need to give the cautionary instruction appears to apply to both civil and
criminal cases. (See People v. Livaditis (1992) 2 Cal.4th 759, 789 [9
Cal.Rptr.2d 72, 831 P.2d 297] (conc. opn. of Mosk, J.).)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 90–93, 125
2 California Trial Guide, Unit 40, Hearsay, § 40.30 (Matthew Bender)
Bender)
56

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.]

Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard
the evidence of an adoptive admission if it finds that the preliminary facts do not
exist.
For statements of a party opponent, see CACI No. 212, Statements of a Party
Opponent. Evasive conduct falls under this instruction rather than under CACI
No. 212.
• Determination of Preliminary Facts. Evidence Code section 403.
• Adoptive Admissions. Evidence Code section 1221.
• “When a person makes a statement in the presence of a party to an action under
circumstances that would normally call for a response if the statement were
untrue, the statement is admissible for the limited purpose of showing the
party’s reaction to it. His silence, evasion, or equivocation may be considered as
a tacit admission of the statements made in his presence.” (In re Estate of
57

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
58

[Name of party/witness] has an absolute right not to disclose what [he/

she] told [his/her] [doctor/attorney/[other]] in confidence because the law
considers this information privileged. Do not consider, for any reason at
all, the fact that [name of party/witness] did not disclose what [he/she]
told [his/her] [doctor/attorney/[other]]. Do not discuss that fact during
your deliberations or let it influence your decision in any way.

Directions for Use
This instruction must be given upon request, if appropriate and the court has
determined that the privilege has not been waived. (Evid. Code, § 913(b).)
• No Presumption on Exercise of Privilege. Evidence Code section 913(b).
• The comment to Evidence Code section 913 notes that this statute “may modify
existing California law as it applies in civil cases.” Specifically, the comment
notes that section 913 in effect overrules two Supreme Court cases: Nelson v.
Southern Pacific Co. (1937) 8 Cal.2d 648 [67 P.2d 682] and Fross v. Wotton
(1935) 3 Cal.2d 384 [44 P.2d 350]. The Nelson court had held that evidence of
a person’s exercise of the privilege against self-incrimination in a prior
proceeding may be shown for impeachment purposes if he or she testifies in a
self-exculpatory manner in a subsequent proceeding. Language in Fross
indicated that unfavorable inferences may be drawn in a civil case from a
party’s claim of the privilege against self-incrimination during the case itself.
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, §§ 97–99
3 California Trial Guide, Unit 51, Privileges, §§ 51.01–51.32 (Matthew Bender)
Matthew Bender Practice Guide: California Civil Discovery, Ch. 2, Scope of
Discovery, 2.09–2.24
2010)
59

216. Exercise of Right Not to Incriminate Oneself (Evid. Code,

§ 913)
[Name of party/witness] has an absolute constitutional right not to give

testimony that might tend to incriminate [himself/herself]. Do not
consider, for any reason at all, the fact that [name of party/witness]
invoked the right not to testify. Do not discuss that fact during your
deliberations or let it influence your decision in any way.

Directions for Use
The privilege against self-incrimination may be asserted in a civil proceeding.
(Kastigar v. United States (1972) 406 U.S. 441, 444 [92 S.Ct. 1653, 32 L.Ed.2d
212]; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1443 [67 Cal.Rptr.2d 759].)
Under California law, neither the court nor counsel may comment on the fact that a
witness has claimed a privilege, and the trier of fact may not draw any inference
from the refusal to testify as to the credibility of the witness or as to any matter at
issue in the proceeding. (Evid. Code, § 913(a); see People v. Doolin (2009) 45
Cal.4th 390, 441–442 [87 Cal.Rptr.3d 209, 198 P.3d 11].)
Therefore, the issue of a witness’s invocation of the Fifth Amendment right not to
self-incriminate is raised outside the presence of the jury, and the jury is not
informed of the matter. This instruction is intended for use if the circumstances
presented in a case result in the issue being raised in the presence of the jury and a
party adversely affected requests a jury instruction. (See Evid. Code, § 913(b).)
• No Presumption From Exercise of Fifth Amendment Privilege. Evidence Code
section 913.
• Privilege to Refuse to Disclose Incriminating Information. Evidence Code
section 940.
• “[I]n any proceeding, civil or criminal, a witness has the right to decline to
answer questions which may tend to incriminate him in criminal activity.”
(Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793],
internal citation omitted.)
• “A defendant may not bring a civil action to a halt simply by invoking the
privilege against self-incrimination.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036,
1055 [151 Cal.Rptr.3d 65].)
• “[T]he privilege may not be asserted by merely declaring that an answer will
incriminate; it must be ‘evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
60

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
61

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)
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)
2010)
62

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.
New September 2003

Directions for Use
Evidence of prior settlement is not automatically admissible: “Even if it appears
that a witness could have been influenced in his testimony by the payment of
money or the obtaining of a dismissal, the party resisting the admission of such
evidence may still appeal to the court’s discretion to exclude it under section 352
of the code.” (Granville v. Parsons (1968) 259 Cal.App.2d 298, 305 [66 Cal.Rptr.
149].)
• Evidence of Settlement. Evidence Code section 1152(a).
• “While evidence of a settlement agreement is inadmissible to prove liability, it
is admissible to show bias or prejudice of an adverse party. Relevant evidence
includes evidence relevant to the credibility of a witness.” (Moreno v. Sayre
(1984) 162 Cal.App.3d 116, 126 [208 Cal.Rptr. 444], internal citations omitted.)
• “[E]vidence of a plaintiff’s settlement with one or more defendants is admissible
at trial to prove witness bias and to prevent collusion.” (Diamond v. Reshko
(2015) 239 Cal.App.4th 828, 843 [191 Cal.Rptr.3d 438].)
• “[A] term in a settlement agreement requiring the settling defendant to stay in
the case during trial is not per se improper, but the settling defendant’s position
should be revealed to the court and jury to avoid committing a fraud on the
court, and to permit the trier of fact to properly weigh the settling defendant’s
testimony.” (Diamond, supra, 239 Cal.App.4th at p. 844.)
• “[T]he good faith settlement determination did not limit the trial court’s
authority to admit evidence of that settlement at trial. To the contrary, . . . the
decision whether to admit evidence of the settlement was for the trial court to
make.” (Diamond, supra, 239 Cal.App.4th at p. 846.)
• “The bias inherent in a settling defendant’s realignment with the plaintiff’s
interest may or may not affect the conduct of the plaintiff or settling defendant
at trial, but that is a question for the jury to decide.” (Diamond, supra, 239
Cal.App.4th at p. 848.)
63

Secondary Sources
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Bender)
64

218. Statements Made to Physician (Previously Existing

Condition)
[Insert name of health-care provider] has testified that [insert name of

patient] made statements to [him/her] about [name of patient]’s medical
history. These statements helped [name of health-care provider] diagnose
the patient’s condition. You can use these statements to help you
examine the basis of [name of health-care provider]’s opinion. You cannot
use them for any other purpose.
[However, a statement by [name of patient] to [name of health-care
provider] about [his/her] current medical condition may be considered as
evidence of that medical condition.]
New September 2003; Revised June 2006

Directions for Use
This instruction does not apply to, and should not be used for, a statement of the
patient’s then-existing physical sensation, mental feeling, pain, or bodily health.
Such statements are admissible as an exception to the hearsay rule under Evidence
Code section 1250. This instruction also does not apply to statements of a patient
regarding a prior mental or physical state if he or she is unavailable as a witness.
(Evid. Code, § 1251.)
This instruction also does not apply to, and should not be used for, statements of a
party that are offered into evidence by an opposing party. Such statements are
admissible as an exception to the hearsay rule under Evidence Code section 1220.
See CACI No. 212, Statements of a Party Opponent.
• Statements of Party. Evidence Code section 1220.
• Statements pointing to the cause of a physical condition may be admissible if
they are made by a patient to a physician. The statement must be required for
proper diagnosis and treatment and is admissible only to show the basis of the
physician’s medical opinion. (People v. Wilson (1944) 25 Cal.2d 341, 348 [153
P.2d 720]; Johnson v. Aetna Life Insurance Co. (1963) 221 Cal.App.2d 247, 252
[34 Cal.Rptr. 484]; Willoughby v. Zylstra (1935) 5 Cal.App.2d 297, 300–301 [42
P.2d 685].)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 196
65

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.
New September 2003

Directions for Use
This instruction should not be given for expert witness testimony on the standard of
care in professional malpractice cases if the testimony is uncontradicted.
Uncontradicted testimony of an expert witness on the standard of care in a
professional malpractice case is conclusive. (Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 632–633 [85 Cal.Rptr.2d 386]; Conservatorship of McKeown
(1994) 25 Cal.App.4th 502, 509 [30 Cal.Rptr.2d 542]; Lysick v. Walcom (1968) 258
Cal.App.2d 136, 156 [65 Cal.Rptr. 406].) In all other cases, the jury may reject
expert testimony, provided that the jury does not act arbitrarily. (McKeown, supra,
25 Cal.App.4th at p. 509.)
Do not use this instruction in eminent domain and inverse condemnation cases.
(See Aetna Life and Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d
865, 877 [216 Cal.Rptr. 831]; CACI No. 3515, Valuation Testimony.)
For an instruction on hypothetical questions, see CACI No. 220,
Experts—Questions Containing Assumed Facts. For an instruction on conflicting
expert testimony, see CACI No. 221, Conflicting Expert Testimony.
• Qualification as Expert. Evidence Code section 720(a).
• “Under Evidence Code section 720, subdivision (a), a person is qualified to
testify as an expert if he or she ‘has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates. [T]he determinative issue in each case must be
whether the witness has sufficient skill or experience in the field so that his
66

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],
• 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
67

testimony is not contradicted.” (Howard, supra, 72 Cal.App.4th at p. 633,

citations omitted.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 26–44
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.04 (Matthew
Bender)
3A California Trial Guide, Unit 60, Opinion Testimony, § 60.05 (Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
(Matthew Bender)
68

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.
New September 2003

Directions for Use
Juries may be instructed that they should weigh an expert witness’s response to a
hypothetical question based on their assessment of the accuracy of the assumed
facts in the hypothetical question. (Treadwell v. Nickel (1924) 194 Cal. 243,
263–264 [228 P. 25].)
For an instruction on expert witnesses generally, see CACI No. 219, Expert
Witness Testimony. For an instruction on conflicting expert testimony, see CACI
No. 221, Conflicting Expert Testimony.
• The value of an expert’s opinion depends on the truth of the facts assumed.
(Richard v. Scott (1978) 79 Cal.App.3d 57, 63 [144 Cal.Rptr. 672].)
• “Generally, an expert may render opinion testimony on the basis of facts given
‘in a hypothetical question that asks the expert to assume their truth.’ ” (People
v. Vang (2011) 52 Cal.4th 1038, 1045 [132 Cal.Rptr.3d 373, 262 P.3d 581].)
• Hypothetical questions must be based on facts that are supported by the
evidence: “It was decided early in this state that a hypothetical question to an
expert must be based upon facts shown by the evidence and that the appellate
court will place great reliance in the trial court’s exercise of its discretion in
passing upon a sufficiency of the facts as narrated.” (Hyatt v. Sierra Boat Co.
(1978) 79 Cal.App.3d 325, 339 [145 Cal.Rptr. 47].)
• “A hypothetical question need not encompass all of the evidence. ‘It is true that
“it is not necessary that the question include a statement of all the evidence in
the case. The statement may assume facts within the limits of the evidence, not
unfairly assembled, upon which the opinion of the expert is required, and
considerable latitude must be allowed in the choice of facts as to the basis upon
which to frame a hypothetical question.” On the other hand, the expert’s
opinion may not be based “on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural factors . . . .” ’ ” (People v. Vang,
supra, 52 Cal.4th at p. 1046, internal citation omitted.)
• Hypothetical questions should not omit essential material facts. (Coe v. State
69

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
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)
Bender)
2010)
70

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.
New September 2003

Directions for Use
Unless the issue is one that can be resolved only with expert testimony, the jury
should not be instructed that they must accept the entire testimony of the expert
whose testimony appears to be entitled to greater weight. (Santa Clara County
Flood Control and Water Conservation Dist. v. Freitas (1960) 177 Cal.App.2d 264,
268–269 [2 Cal.Rptr. 129].)
For an instruction on expert witnesses generally, see CACI No. 219, Expert
Witness Testimony. For an instruction on hypothetical questions, see CACI
No. 220, Experts—Questions Containing Assumed Facts.
• “[C]redibility 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].)
• “[W]e rely upon the rule of Sargon [Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747 [149 Cal.Rptr.3d 614, 288 P.3d
1237]] that although trial courts ‘have a substantial “gatekeeping”
responsibility’ in evaluating proposed expert opinion, the gate tended is not a
partisan checkpoint.” (Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th
477, 492 [199 Cal.Rptr.3d 583], internal citation omitted.)
Secondary Sources
Bender)
71

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.
New April 2007; Revised June 2016

Directions for Use
Use this instruction for cases involving sliding scale or “Mary Carter” settlement
agreements if a party who settled appears at trial as a witness. A “Mary Carter”
agreement calls for the settling defendant to participate in the trial on the plaintiff’s
behalf, and provides for a settling defendant to be credited for amounts the plaintiff
recovers from nonsettling defendants. It is secret and raises concerns of collusion
and the potential for fraud. The interests of the parties are realigned in a manner
not apparent to the trier of fact. (Diamond v. Reshko (2015) 239 Cal.App.4th 828,
843, fn. 7 [191 Cal.Rptr.3d 438].)
The court must give this instruction on the motion of any party unless it finds that
disclosure will create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury. (Code Civ. Proc., § 877.5(a)(2).)
If the settling defendant is an entity, insert the name of the witness who testified on
behalf of the entity and include the bracketed language in the third paragraph.
See CACI No. 217, Evidence of Settlement. See also CACI No. 3926, Settlement
Deduction.
• Evidence of Settlement. Code of Civil Procedure section 877.5(a)(2).
• “[W]hen a defendant is a party to a sliding scale settlement, which is also
called a ‘Mary Carter’ agreement, that agreement must be disclosed to the jury
if the settling defendant testifies at trial, unless the court finds that the
disclosure will create a substantial danger of undue prejudice.” (Diamond,
supra, 239 Cal.App.4th at p. 843.)
72

• Evidence of a settlement agreement is admissible to show bias or prejudice of

an adverse party. Relevant evidence includes evidence relevant to the credibility
of a witness. (Moreno v. Sayre (1984) 162 Cal.App.3d 116, 126 [208 Cal.Rptr.
444].)
• Evidence of a prior settlement is not automatically admissible. “Even if it
appears that a witness could have been influenced in his testimony by the
payment of money or the obtaining of a dismissal, the party resisting the
admission of such evidence may still appeal to the court’s discretion to exclude
it under section 352 of the code.” (Granville v. Parsons (1968) 259 Cal.App.2d
298, 305 [66 Cal.Rptr. 149].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 101
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.27
(Matthew Bender)
Settlement and Release, 37.25
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and
Contribution, § 300.73[10] (Matthew Bender)
46 California Forms of Pleading and Practice, Ch. 520, Settlement and Release,
§ 520.16[3] (Matthew Bender)
73

A witness [who was not testifying as an expert] gave an opinion during

the trial. You may, but are not required to, accept that opinion. You
may give the opinion whatever weight you think is appropriate.
Consider the extent of the witness’s opportunity to perceive the matters
on which the opinion is based, the reasons the witness gave for the
opinion, and the facts or information on which the witness relied in
forming that opinion. You must decide whether information on which
the witness relied was true and accurate. You may disregard all or any
part of an opinion that you find unbelievable, unreasonable, or
unsupported by the evidence.
New April 2008

Directions for Use
Give the bracketed phrase in the first sentence regarding the witness not testifying
as an expert if an expert witness also testified in the case.
• Opinion Testimony of Lay Witness. Evidence Code section 800.
• Foundation for Opinion Testimony of Lay Witness. Evidence Code section 802.
• Character Evidence. Evidence Code section 1100.
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 3–25
Wegner et al., California Practice Guide: Civil Trial and Evidence (The Rutter
Group) ¶¶ 8:643–8:681
Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed.) §§ 29.1–29.17
Bender)
1 Cotchett, California Courtroom Evidence, Ch. 17, Nonexpert and Expert Opinion,
2010)
74

You have heard testimony from a witness who is [ ] years old. As

with any other witness, you must decide whether the child gave truthful
and accurate testimony.
In evaluating a child’s testimony, you should consider all of the factors
surrounding that testimony, including the child’s age and ability to
perceive, understand, remember, and communicate.
You should not discount or distrust testimony just because a witness is a
child.
New April 2008

• Minors Qualified to Testify. Evidence Code section 700.
• Evaluation of Child’s Testimony in Criminal Trial. Penal Code section 1127f.
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation, §§ 13, 100, 232
Wegner et al., California Practice Guide: Civil Trial and Evidence (The Rutter
Group) ¶¶ 8:228–8:230
Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed.) § 26.2
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.111, 551.113,
1 Cotchett, California Courtroom Evidence, Ch. 16, Competency, Oath,
Confrontation, Experts, Interpreters, Credibility, and Hypnosis, § 16.01 (Matthew
Bender)
2010)
75


CONTRACTS

313. Modification
325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential
Factual Elements
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual
Elements
77

CONTRACTS

354. Owner’s/Lessee’s Damages for Breach of Contract to Construct
Improvements on Real Property
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ.
Code, § 3306)
380. Agreement Formalized by Electronic Means—Uniform Electronic
Transactions Act (Civ. Code, § 1633.1 et seq.)
78

[Name of plaintiff] claims that [he/she/it] and [name of defendant] entered

into a contract for [insert brief summary of alleged contract].
[Name of plaintiff] claims that [name of defendant] breached this contract
by [briefly state the alleged breach].
[Name of plaintiff] also claims that [name of defendant]’s breach of this
contract caused harm to [name of plaintiff] for which [name of defendant]
should pay.
[Name of defendant] denies [insert denial of any of the above claims].
[Name of defendant] also claims [insert affırmative defense].

Directions for Use
This instruction is designed to introduce the jury to the issues involved in the case.
It should be read before the instructions on the substantive law.
• The Supreme Court has observed that “[c]ontract and tort are different branches
of law. Contract law exists to enforce legally binding agreements between
parties; tort law is designed to vindicate social policy.” (Applied Equipment
Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514 [28 Cal.Rptr.2d
475, 869 P.2d 454].)
• “The differences between contract and tort give rise to distinctions in assessing
damages and in evaluating underlying motives for particular courses of conduct.
Contract damages seek to approximate the agreed-upon performance . . . and
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 expectations of the parties are not
recoverable.” (Applied Equipment Corp., supra, 7 Cal.4th at p. 515, internal
citations omitted.)
• Certain defenses are decided as questions of law, not as questions of fact. These
defenses include frustration of purpose, impossibility, and impracticability.
(Oosten v. Hay Haulers Dairy Employees and Helpers Union (1955) 45 Cal.2d
784, 788 [291 P.2d 17]; Mitchell v. Ceazan Tires, Ltd. (1944) 25 Cal.2d 45, 48
[153 P.2d 53]; Autry v. Republic Productions, Inc. (1947) 30 Cal.2d 144, 157
[180 P.2d 888]; Glen Falls Indemnity Co. v. Perscallo (1950) 96 Cal.App.2d
799, 802 [216 P.2d 567].)
• “Defendant contends that frustration is a question of fact resolved in its favor
by the trial court. The excuse of frustration, however, like that of impossibility,
79

CACI No. 300 CONTRACTS
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
80

[Name of plaintiff] is not a party to the contract. However, [name of

plaintiff] may be entitled to damages for breach of contract if [he/she/it]
proves that [insert names of the contracting parties] intended for [name of
plaintiff] to benefit from their contract.
It is not necessary for [name of plaintiff] to have been named in the
contract. In deciding what [insert names of the contracting parties]
intended, you should consider the entire contract and the circumstances
under which it was made.
New September 2003

Directions for Use
This topic may or may not be a question for the jury to decide. Third-party
beneficiary status may be determined as a question of law if there is no conflicting
extrinsic evidence. (Kalmanovitz v. Bitting (1996) 43 Cal.App.4th 311, 315 [50
Cal.Rptr.2d 332].)
These pattern jury instructions may need to be modified in cases brought by
plaintiffs who are third-party beneficiaries.
• Contract for Benefit of Third Person. Civil Code section 1559.
• A third party may qualify as a beneficiary under a contract where the
contracting parties must have intended to benefit that individual and such intent
appears from the terms of the agreement. (Brinton v. Bankers Pension Services,
Inc. (1999) 76 Cal.App.4th 550, 558 [90 Cal.Rptr.2d 469].) However, “[i]nsofar
as intent to benefit a third person is important in determining his right to bring
an action under a contract, it is sufficient that the promisor must have
understood that the promisee had such intent. No specific manifestation by the
promisor of an intent to benefit the third person is required.” (Lucas v. Hamm
(1961) 56 Cal.2d 583, 591 [15 Cal.Rptr. 821, 364 P.2d 685].)
• “Traditional third party beneficiary principles do not require that the person to
be benefited be named in the contract.” (Harper v. Wausau Insurance Corp.
• Civil Code section 1559 excludes enforcement of a contract by persons who are
only incidentally or remotely benefited by the agreement. (Lucas, supra, 56
Cal.2d at p. 590.)
• “Whether a third party is an intended beneficiary or merely an incidental
beneficiary to the contract involves construction of the parties’ intent, gleaned
from reading the contract as a whole in light of the circumstances under which
81

it was entered. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26
• 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
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
82

[Name of plaintiff] claims that the parties entered into a contract. To

prove that a contract was created, [name of plaintiff] must prove all of
the following:
1. That the contract terms were clear enough that the parties could
understand what each was required to do;
2. That the parties agreed to give each other something of value [a
promise to do something or not to do something may have
value]; and
3. That the parties agreed to the terms of the contract.
[When you examine whether the parties agreed to the terms of the
contract, ask yourself if, under the circumstances, a reasonable person
would conclude, from the words and conduct of each party, that there
was an agreement. You may not consider the parties’ hidden intentions.]
If [name of plaintiff] did not prove all of the above, then a contract was
not created.
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.
• Essential Elements of Contract. Civil Code section 1550.
• Who May Contract. Civil Code section 1556.
• Consent. Civil Code section 1565.
83

• Mutual Consent. Civil Code section 1580.

• Good Consideration. Civil Code section 1605.
• Writing Is Presumption of Consideration. Civil Code section 1614.
• Burden of Proof on Consideration. Civil Code section 1615.
• “Whether parties have reached a contractual agreement and on what terms are
questions for the fact finder when conflicting versions of the parties’
negotiations require a determination of credibility.” (Hebberd-Kulow
Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 [159
Cal.Rptr.3d 869].)
• “Whether a contract is illegal or contrary to public policy is a question of law
to be determined from the circumstances of each particular case.” (Jackson v.
Rogers & Wells (1989) 210 Cal.App.3d 336, 349–350 [258 Cal.Rptr. 454].)
• “In order for acceptance of a proposal to result in the formation of a contract,
the proposal ‘must be sufficiently definite, or must call for such definite terms
in the acceptance, that the performance promised is reasonably certain.’
[Citation.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793,
811 [71 Cal.Rptr.2d 265].)
• “Whether a contract is sufficiently definite to be enforceable is a question of
law for the court.” (Ladas v. California State Automobile Assn. (1993) 19
Cal.App.4th 761, 770, fn. 2 [23 Cal.Rptr.2d 810].)
• “[T]he presumption of consideration under [Civil Code] section 1614 affects the
burden of producing evidence and not the burden of proof.” (Rancho Santa Fe
Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 884 [268 Cal.Rptr. 505].)
• “Being an affirmative defense, lack of consideration must be alleged in answer
to the complaint.” (National Farm Workers Service Center, Inc. v. M. Caratan,
Inc. (1983) 146 Cal.App.3d 796, 808 [194 Cal.Rptr. 617].)
• “Consideration consists not only of benefit received by the promisor, but of
detriment to the promisee. . . . ‘It matters not from whom the consideration
moves or to whom it goes. If it is bargained for and given in exchange for the
promise, the promise is not gratuitous.’ ” (Flojo Internat., Inc. v. Lassleben
(1992) 4 Cal.App.4th 713, 719 [6 Cal.Rptr.2d 99], internal citation omitted.)
• “The failure to specify the amount or a formula for determining the amount of
the bonus does not render the agreement too indefinite for enforcement. It is not
essential that the contract specify the amount of the consideration or the means
of ascertaining it.” (Moncada v. West Coast Quartz Corp. (2013) 221
• “Contract formation is governed by objective manifestations, not subjective
intent of any individual involved. The test is ‘what the outward manifestations
of consent would lead a reasonable person to believe.’ ” (Roth v. Malson (1998)
67 Cal.App.4th 552, 557 [79 Cal.Rptr.2d 226], internal citations omitted.)
• “The manifestation of assent to a contractual provision may be ‘wholly or partly
84

CONTRACTS CACI No. 302
by written or spoken words or by other acts or by failure to act.’ ” (Merced

County Sheriff’s Employees’ Assn. v. County of Merced (1987) 188 Cal.App.3d
662, 670 [233 Cal.Rptr. 519] (quoting Rest. 2d Contracts, § 19).)
• “A letter of intent can constitute a binding contract, depending on the
expectations of the parties. These expectations may be inferred from the
conduct of the parties and surrounding circumstances.” (California Food Service
Corp., Inc. v. Great American Insurance Co. (1982) 130 Cal.App.3d 892, 897
[182 Cal.Rptr. 67], internal citations omitted.)
• “If words are spoken under circumstances where it is obvious that neither party
would be entitled to believe that the other intended a contract to result, there is
no contract.” (Fowler v. Security-First National Bank (1956) 146 Cal.App.2d
37, 47 [303 P.2d 565].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 116 et seq.
140.20–140.25 (Matthew Bender)
Bender)
Contractual Provisions, §§ 75.10, 75.11 (Matthew Bender)
85

To recover damages from [name of defendant] for breach of contract,

[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
contract;
[2. That [name of plaintiff] did all, or substantially all, of the
significant things that the contract required [him/her/it] to do;]
[2. [or]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[3. [or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
excused];]
[4. That [name of defendant] failed to do something that the contract
required [him/her/it] to do;]
[4. [or]
[4. That [name of defendant] did something that the contract
prohibited [him/her/it] from doing;]
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s breach of contract was a substantial
factor in causing [name of plaintiff]’s harm.
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
86

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].)
• Contract Defined. Civil Code section 1549.
87

• “A contract is a voluntary and lawful agreement, by competent parties, for a

good consideration, to do or not to do a specified thing.” (Robinson v. Magee
(1858) 9 Cal. 81, 83.)
• “To prevail on a cause of action for breach of contract, the plaintiff must prove
(1) the contract, (2) the plaintiff’s performance of the contract or excuse for
nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the
plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 [169
Cal.Rptr.3d 475].)
• “Implicit in the element of damage is that the defendant’s breach caused the
plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th
1305, 1352 [90 Cal.Rptr.3d 589], original italics.)
• “It is elementary a plaintiff suing for breach of contract must prove it has
performed all conditions on its part or that it was excused from performance.
Similarly, where 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], internal citation omitted.)
• “When a party’s failure to perform a contractual obligation constitutes a
material breach of the contract, the other party may be discharged from its duty
to perform under the contract. Normally the question of whether a breach of an
obligation is a material breach, so as to excuse performance by the other party,
is a question of fact. Whether a partial breach of a contract is material depends
on ‘the importance or seriousness thereof and the probability of the injured
party getting substantial performance.’ ‘A material breach of one aspect of a
contract generally constitutes a material breach of the whole contract.’ ”
(Brown, supra, 192 Cal.App.4th at pp. 277–278, internal citations omitted.)
• “Whether breach of the agreement not to molest bars [plaintiff]’s recovery of
agreed support payments raises the question whether the two covenants are
dependent or independent. If the covenants are independent, breach of one does
not excuse performance of the other. (Verdier, supra, 133 Cal.App.2d at p. 334.)
• “The determination of whether a promise is an independent covenant, so that
breach of that promise by one party does not excuse performance by the other
party, is based on the intention of the parties as deduced from the agreement.
The trial court relied upon parol evidence to determine the content and
interpretation of the fee-sharing agreement between the parties. Accordingly,
that determination is a question of fact that must be upheld if based on
substantial evidence.” (Brown, supra, 192 Cal.App.4th at p. 279, internal
citation omitted.)
• “The wrongful, i.e., the unjustified or unexcused, failure to perform a contract is
a breach. Where the nonperformance is legally justified, or excused, there may
be a failure of consideration, but not a breach.” (1 Witkin, Summary of
California Law (10th ed. 2005) Contracts, § 847, original italics, internal
citations omitted.) “Ordinarily, a breach is the result of an intentional act, but
88

negligent performance may also constitute a breach, giving rise to alternative

contract and tort actions.” (Ibid., original italics.)
• “b. Excuse. The non-occurrence of a condition of a duty is said to be ‘excused’
when the condition need no longer occur in order for performance of the duty
to become due. The non-occurrence of a condition may be excused on a variety
of grounds. It may be excused by a subsequent promise, even without
consideration, to perform the duty in spite of the non-occurrence of the
condition. See the treatment of ‘waiver’ in § 84, and the treatment of discharge
in §§ 273–85. It may be excused by acceptance of performance in spite of the
non-occurrence of the condition, or by rejection following its non-occurrence
accompanied by an inadequate statement of reasons. See §§ 246–48. It may be
excused by a repudiation of the conditional duty or by a manifestation of an
inability to perform it. See § 255; §§ 250–51. It may be excused by prevention
or hindrance of its occurrence through a breach of the duty of good faith and
fair dealing (§ 205). See § 239. And it may be excused by impracticability. See
§ 271. These and other grounds for excuse are dealt with in other chapters of
this Restatement. This Chapter deals only with one general ground, excuse to
avoid forfeiture. See § 229.” (Rest.2d of Contracts, § 225.)
• “ ‘ “Where a party’s breach by non-performance contributes materially to the
non-occurrence of a condition of one of his duties, the non-occurrence is
excused.” [Citation.]’ ” (Stephens & Stephens XII, LLC, supra, 231 Cal. App.
4th at p. 1144.)
• “ ‘Causation of damages in contract cases, as in tort cases, requires that the
damages be proximately caused by the defendant’s breach, and that their causal
occurrence be at least reasonably certain.’ A proximate cause of loss or damage
is something that is a substantial factor in bringing about that loss or damage.”
(U.S. Ecology, Inc., supra, 129 Cal.App.4th at p. 909, internal citations
omitted.)
• “An essential element of [breach of contract] claims is that a defendant’s
alleged misconduct was the cause in fact of the plaintiff’s damage. [¶ ] The
causation analysis involves two elements. ‘ “One is cause in fact. An act is a
cause in fact if it is a necessary antecedent of an event.” [Citation.]’ The second
element is proximate cause. ‘ “[P]roximate cause ‘is ordinarily concerned, not
with the fact of causation, but with the various considerations of policy that
limit an actor’s responsibility for the consequences of his conduct.’ ” ’ ”
(Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239
Cal.App.4th 1088, 1102–1103 [192 Cal.Rptr.3d 354], footnote and internal
citation omitted.)
• “Determining whether a defendant’s misconduct was the cause in fact of a
plaintiff’s injury involves essentially the same inquiry in both contract and tort
cases.” (Tribeca Companies, LLC, supra, 239 Cal.App.4th at p. 1103.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847
89


(Matthew Bender)
Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.03–22.50
90

[Contracts may be written or oral.]

[Contracts may be partly written and partly oral.]
Oral contracts are just as valid as written contracts.

Directions for Use
Give the bracketed alternative that is most applicable to the facts of the case.
If the written agreement is fully integrated, the second option may not be
appropriate. Parol evidence is inadmissible if the judge finds that the written
agreement is fully integrated. (Code Civ. Proc., § 1856(d).) The parol evidence rule
generally prohibits the introduction of extrinsic evidence—oral or written—to vary
or contradict the terms of an integrated written instrument. (EPA Real Estate
Partnership v. Kang (1992) 12 Cal.App.4th 171, 175 [15 Cal.Rptr.2d 209]; see Civ.
Code, § 1625; Code Civ. Proc., § 1856(a).)
There are, however, exceptions to the parol evidence rule. (See, e.g., Riverisland
Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th
1169, 1174−1175 [151 Cal.Rptr.3d 93, 291 P.3d 316] [fraud exception]; see also
Code Civ. Proc., § 1856.) If an exception has been found as a matter of law, the
second option may be given. If there are questions of fact regarding the
applicability of an exception, additional instructions on the exception will be
necessary.
• Oral Contracts. Civil Code section 1622.
• Statute of Frauds. Civil Code section 1624.
• “This question posed by defendant [may a contract be partly written and partly
oral] must be answered in the affirmative in this sense: that a contract or
agreement in legal contemplation is neither written nor oral, but oral or written
evidence may be received to establish the terms of the contract or agreement
between the parties. . . . A so-called partly written and partly oral contract is in
legal effect a contract, the terms of which may be proven by both written and
oral evidence.” (Lande v. Southern California Freight Lines (1948) 85
Cal.App.2d 416, 420–421 [193 P.2d 144].)
• “When the parties to a written contract have agreed to it as an ‘integration’—a
complete and final embodiment of the terms of an agreement—parol evidence
cannot be used to add to or vary its terms . . . [However,] ‘[w]hen only part of
the agreement is integrated, the same rule applies to that part, but parol
evidence may be used to prove elements of the agreement not reduced to
91

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)
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.12 (Matthew Bender)
92

In deciding whether a contract was created, you should consider the

conduct and relationship of the parties as well as all the circumstances
of the case.
Contracts can be created by the conduct of the parties, without spoken
or written words. Contracts created by conduct are just as valid as
contracts formed with words.
Conduct will create a contract if the conduct of both parties is
intentional and each knows, or has reason to know, that the other party
will interpret the conduct as an agreement to enter into a contract.
New September 2003

• Contract May Be Express or Implied. Civil Code sections 1619.
• Express Contract. Civil Code section 1620.
• Implied Contract. Civil Code section 1621.
• “Unlike the ‘quasi-contractual’ quantum meruit theory which operates without
an actual agreement of the parties, an implied-in-fact contract entails an actual
contract, but one manifested in conduct rather than expressed in words.”
(Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455 [78 Cal.Rptr.2d 101].)
• “An implied-in-fact contract is based on the conduct of the parties. Like an
express contract, an implied-in-fact contract requires an ascertained agreement
of the parties.” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636
[198 Cal.Rptr.3d 211], internal citation omitted.)
• Express and implied-in-fact contracts have the same legal effect, but differ in
how they are proved at trial: “ ‘Contracts may be express or implied. These
terms, however, do not denote different kinds of contracts, but have reference to
the evidence by which the agreement between the parties is shown. If the
agreement is shown by the direct words of the parties, spoken or written, the
contract is said to be an express one. But if such agreement can only be shown
by the acts and conduct of the parties, interpreted in the light of the subject-
matter and of the surrounding circumstances, then the contract is an implied
one.’ ” (Marvin v. Marvin (1976) 18 Cal.3d 660, 678, fn. 16 [134 Cal.Rptr. 815,
557 P.2d 106], internal citation omitted.)
• “As to the basic elements [of a contract cause of action], there is no difference
between an express and implied contract. . . . While an implied in fact contract
may be inferred from the conduct, situation or mutual relation of the parties, the
very heart of this kind of agreement is an intent to promise.” (Division of Labor
93

Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268,

275 [137 Cal.Rptr. 855]; see also Friedman v. Friedman (1993) 20 Cal.App.4th
876, 888 [24 Cal.Rptr.2d 892].)
• The formation of an implied contract can become an issue for the jury to
decide: “Whether or not an implied contract has been created is determined by
the acts and conduct of the parties and all the surrounding circumstances
involved and is a question of fact.” (Del E. Webb Corp. v. Structural Materials
Co. (1981) 123 Cal.App.3d 593, 611 [176 Cal.Rptr. 824], internal citation
omitted.)
• “Whether an implied contract exists ‘ “ ‘is usually a question of fact for the trial
court. Where evidence is conflicting, or where reasonable conflicting inferences
may be drawn from evidence which is not in conflict, a question of fact is
presented for decision of the trial court. . . .’ [Citation.]” ’ ” (Unilab Corp,
Secondary Sources
or Defending Existence of Contract—Absence of Essential Element, 13.07
94

[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.

Directions for Use
Give this instruction if the parties agreed to contract terms with the intention of
reducing their agreement to a written and signed contract, but an alleged breach
occurred before the written contract was completed and signed. For other situations
involving the lack of a final written contract, see CACI No. 304, Oral or Written
Contract Terms, and CACI No. 305, Implied-in-Fact Contract.
Do not give this instruction unless the defendant has testified or offered other
evidence in support of his or her contention.
• “Where the writing at issue shows ‘no more than an intent to further reduce the
informal writing to a more formal one’ the failure to follow it with a more
formal writing does not negate the existence of the prior contract. However,
where the writing shows it was not intended to be binding until a formal written
contract is executed, there is no contract.” (Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307 [87 Cal.Rptr.2d 822], internal citations
omitted.)
• The execution of a formalized written agreement is not necessarily essential to
the formation of a contract that is made orally: “[I]f the respective parties orally
agreed upon all of the terms and conditions of a proposed written agreement
with the mutual intention that the oral agreement should thereupon become
binding, the mere fact that a formal written agreement to the same effect has
not yet been signed does not alter the binding validity of the oral agreement.
[Citation.]” (Banner Entertainment, Inc. v. Superior Court (1998) 62
• If the parties have agreed not to be bound until the agreement is reduced to
writing and signed by the parties, then the contract will not be effective until
the formal agreement is signed. (Beck v. American Health Group International,
Inc. (1989) 211 Cal.App.3d 1555, 1562 [260 Cal.Rptr. 237].)
95

• “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.,
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 133, 134
(Matthew Bender)
or Defending Existence of Contract—Absence of Essential Element, 13.07[3]
96

Both an offer and an acceptance are required to create a contract.

[Name of defendant] contends that a contract was not created because
there was never any offer. To overcome this contention, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] communicated to [name of defendant] that
[he/she/it] was willing to enter into a contract with [name of
defendant];
2. That the communication contained specific terms; and
3. That, based on the communication, [name of defendant] could
have reasonably concluded that a contract with these terms
would result if [he/she/it] accepted the offer.
If [name of plaintiff] did not prove all of the above, then a contract was
not created.
New September 2003

Directions for Use
This instruction assumes that the defendant is claiming the plaintiff never made an
offer. Change the identities of the parties in the indented paragraphs if, under the
facts of the case, the roles of the parties are switched (e.g., if defendant was the
alleged offeror). If the existence of an offer is not contested, then this instruction is
unnecessary.
• Courts have adopted the definition of “offer” found at Restatement Second of
Contracts, section 24: “An offer is the manifestation of willingness to enter into
a bargain, so made as to justify another person in understanding that his assent
to that bargain is invited and will conclude it.” (City of Moorpark v. Moorpark
Unified School Dist. (1991) 54 Cal.3d 921, 930 [1 Cal.Rptr.2d 896, 819 P.2d
854].)
• Under basic contract law “ ‘[a]n offer must be sufficiently definite, or must call
for such definite terms in the acceptance that the performance promised is
reasonably certain.’ ” (Ladas v. California State Automobile Assn. (1993) 19
• “The trier of fact must determine ‘whether a reasonable person would
necessarily assume . . . a willingness to enter into contract.’ [Citation.]” (In re
97

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
(Matthew Bender)
98


[Name of defendant] contends that the offer was withdrawn before it was
accepted. To overcome this contention, [name of plaintiff] must prove one
of the following:
1. That [name of defendant] did not withdraw the offer; or
2. That [name of plaintiff] accepted the offer before [name of
defendant] withdrew it; or
3. That [name of defendant]’s withdrawal of the offer was never
communicated to [name of plaintiff].
If [name of plaintiff] did not prove any of the above, then a contract was
not created.
New September 2003

Directions for Use
This instruction assumes that the defendant is claiming to have revoked his or her
alleged offeree).
• Revocation Before Acceptance. Civil Code section 1586.
• Methods for Revocation. Civil Code section 1587.
• “It is a well-established principle of contract law that an offer may be revoked
by the offeror any time prior to acceptance.” (T. M. Cobb Co., Inc. v. Superior
Court (1984) 36 Cal.3d 273, 278 [204 Cal.Rptr. 143, 682 P.2d 338].)
• “ ‘Under familiar contract law, a revocation of an offer must be directed to the
offeree.’ [Citation.]” (Moffett v. Barclay (1995) 32 Cal.App.4th 980, 983 [38
Cal.Rptr.2d 546].)
Secondary Sources
99


100


[Name of defendant] contends that a contract was not created because
the offer was never accepted. To overcome this contention, [name of
plaintiff] must prove both of the following:
1. That [name of defendant] agreed to be bound by the terms of the
offer. [If [name of defendant] agreed to be bound only on certain
conditions, or if [he/she/it] introduced a new term into the
bargain, then there was no acceptance]; and
2. That [name of defendant] communicated [his/her/its] agreement to
[name of plaintiff].
If [name of plaintiff] did not prove both of the above, then a contract
was not created.
New September 2003

Directions for Use
This instruction assumes that the defendant is claiming to have not accepted
plaintiff’s offer. Change the identities of the parties in the indented paragraphs if,
under the facts of the case, the roles of the parties are switched (e.g., if defendant
was the alleged offeror).
• Acceptance. Civil Code section 1585.
• “[T]erms proposed in an offer must be met exactly, precisely and unequivocally
for its acceptance to result in the formation of a binding contract; and a
qualified acceptance amounts to a new proposal or counteroffer putting an end
to the original offer.” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th
851, 855–856 [70 Cal.Rptr.2d 595].)
• “[I]t is not necessarily true that any communication other than an unequivocal
acceptance is a rejection. Thus, an acceptance is not invalidated by the fact that
it is ‘grumbling,’ or that the offeree makes some simultaneous ‘request.’
Nevertheless, it must appear that the ‘grumble’ does not go so far as to make it
doubtful that the expression is really one of assent. Similarly, the ‘request’ must
not add additional or different terms from those offered. Otherwise, the
‘acceptance’ becomes a counteroffer.” (Guzman v. Visalia Community Bank
• “The interpretation of the purported acceptance or rejection of an offer is a
101

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
(Matthew Bender)
102

Ordinarily, if a party does not say or do anything in response to

another party’s offer, then he or she has not accepted the offer.
However, if [name of plaintiff] proves that both [he/she/it] and [name of
defendant] understood silence or inaction to mean that [name of
defendant] had accepted [name of plaintiff]’s offer, then there was an
acceptance.
New September 2003

Directions for Use
This instruction assumes that the defendant is claiming to have not accepted
plaintiff’s offer. Change the identities of the parties in the last two sets of brackets
if, under the facts of the case, the roles of the parties are switched (e.g., if
defendant was the alleged offeror).
This instruction should be read in conjunction with and immediately after CACI
No. 309, Contract Formation—Acceptance, if acceptance by silence is an issue.
• Consent by Acceptance of Benefits. Civil Code section 1589.
• Because acceptance must be communicated, “[s]ilence in the face of an offer is
not an acceptance, unless there is a relationship between the parties or a
previous course of dealing pursuant to which silence would be understood as
acceptance.” (Southern California Acoustics Co., Inc. v. C. V. Holder, Inc.
(1969) 71 Cal.2d 719, 722 [79 Cal.Rptr. 319, 456 P.2d 975].)
• Acceptance may also be inferred from inaction where one has a duty to act, and
from retention of the offered benefit. (Golden Eagle Insurance Co. v. Foremost
Insurance Co. (1993) 20 Cal.App.4th 1372, 1386 [25 Cal.Rptr.2d 242].)
Secondary Sources
(Matthew Bender)
103

[Name of defendant] contends that the offer to enter into a contract

terminated because [name of plaintiff] rejected it. To overcome this
contention, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] did not reject [name of defendant]’s offer;
and
2. That [name of plaintiff] did not make any additions or changes to
the terms of [name of defendant]’s offer.
If [name of plaintiff] did not prove both of the above, then a contract
was not created.
New September 2003

Directions for Use
Note that rejections of a contract offer, or proposed alterations to an offer, are
effective only if they are communicated to the other party. (See Beverly Way
Associates v. Barham (1990) 226 Cal.App.3d 49, 55 [276 Cal.Rptr. 240].) If it is
necessary for the jury to make a finding regarding the issue of communication then
this instruction may need to be modified.
This instruction assumes that the defendant is claiming plaintiff rejected defendant’s
alleged offeree).
Conceptually, this instruction dovetails with CACI No. 309, Contract
Formation—Acceptance. This instruction is designed for the situation where a party
has rejected an offer by not accepting it on its terms.
• Acceptance. Civil Code section 1585.
• Cases provide that “a qualified acceptance amounts to a new proposal or
counter-offer putting an end to the original offer. . . . A counter-offer containing
a condition different from that in the original offer is a new proposal and, if not
accepted by the original offeror, amounts to nothing.” (Apablasa v. Merritt and
Co. (1959) 176 Cal.App.2d 719, 726 [1 Cal.Rptr. 500], internal citations
omitted.) More succinctly: “The rejection of an offer kills the offer.” (Stanley v.
Robert S. Odell and Co. (1950) 97 Cal.App.2d 521, 534 [218 P.2d 162].)
• “[T]erms proposed in an offer must be met exactly, precisely and unequivocally
for its acceptance to result in the formation of a binding contract; and a
104

qualified acceptance amounts to a new proposal or counteroffer putting an end

to the original offer.” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th
851, 855–856 [70 Cal.Rptr.2d 595].)
• The original offer terminates as soon as the rejection is communicated to the
offeror: “It is hornbook law that an unequivocal rejection by an offeree,
communicated to the offeror, terminates the offer; even if the offeror does no
further act, the offeree cannot later purport to accept the offer and thereby
create enforceable contractual rights against the offeror.” (Beverly Way
Associates, supra, 226 Cal.App.3d at p. 55.)
Secondary Sources
(Matthew Bender)
Contractual Provisions, §§ 75.212–75.214 (Matthew Bender)
105

[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
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.
New September 2003

Directions for Use
• “ ‘Substantial performance means that there has been no willful departure from
the terms of the contract, and no omission of any of its essential parts, and that
the contractor has in good faith performed all of its substantive terms. If so, he
will not be held to have forfeited his right to a recovery by reason of trivial
defects or imperfections in the work performed.’ ” (Connell v. Higgins (1915)
170 Cal. 541, 556 [150 P. 769], citation omitted.)
• The Supreme Court has cited the following passage from Witkin with approval:
“At common law, recovery under a contract for work done was dependent upon
a complete performance, although hardship might be avoided by permitting
recovery in quantum meruit. The prevailing doctrine today, which finds its
application chiefly in building contracts, is that substantial performance is
sufficient, and justifies an action on the contract, although the other party is
entitled to a reduction in the amount called for by the contract, to compensate
for the defects. What constitutes substantial performance is a question of fact,
but it is essential that there be no wilful departure from the terms of the
contract, and that the defects be such as may be easily remedied or
compensated, so that the promisee may get practically what the contract calls
for.” (Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 186–187 [14
Cal.Rptr. 297, 363 P.2d 313]; see also Kossler v. Palm Springs Developments,
Ltd. (1980) 101 Cal.App.3d 88, 101 [161 Cal.Rptr. 423].)
• “ ‘Whether, in any case, such defects or omissions are substantial, or merely
106

unimportant mistakes that have been or may be corrected, is generally a

question of fact.’ ” (Connell, supra, 170 Cal. at pp. 556–557, internal citation
omitted.)
• “The doctrine of substantial performance has been recognized in California
since at least 1921, when the California Supreme Court decided the landmark
case of Thomas Haverty Co. v. Jones [citation], in which the court stated: ‘The
general rule on the subject of [contractual] performance is that “Where a person
agrees to do a thing for another for a specified sum of money to be paid on full
performance, he is not entitled to any part of the sum until he has himself done
the thing he agreed to do, unless full performance has been excused, prevented,
or delayed by the act of the other party, or by operation of law, or by the act of
God or the public enemy.” [Citation.] [¶] . . . [I]t is settled, especially in the
case of building contracts, where the owner has taken possession of the building
and is enjoying the fruits of the contractor’s work in the performance of the
contract, that if there has been a substantial performance thereof by the
contractor in good faith, where the failure to make full performance can be
compensated in damages, to be deducted from the price or allowed as a
counterclaim, and the omissions and deviations were not willful or fraudulent,
and do not substantially affect the usefulness of the building for the purposes
for which it was intended, the contractor may, in an action upon the contract,
recover the amount unpaid of his contract price less the amount allowed as
damages for the failure in strict performance. [Citations.]’ ” (Murray’s Iron
Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1291–1292 [71 Cal.Rptr.3d
317].)
Secondary Sources
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.30, 50.31 (Matthew
Bender)
Defending Action for Breach of Contract, 22.08[2], 22.16[2], 22.37, 22.69
107

313. Modification
[Name of party claiming modification] claims that the original contract

was modified or changed. [Name of party claiming modification] must
prove that the parties agreed to the modification. [Name of other party]
denies that the contract was modified.
The parties to a contract may agree to modify its terms. You must
decide whether a reasonable person would conclude from the words and
conduct of the parties that they agreed to modify the contract. You
cannot consider the parties’ hidden intentions.
[A contract in writing may be modified by a contract in writing.]
[A contract in writing may be modified by an oral agreement to the
extent the oral agreement is carried out by the parties.]
[A contract in writing may be modified by an oral agreement if the
parties agree to give each other something of value.]
[An oral contract may be modified by consent of the parties, in writing,
without an agreement to give each other something of value.]

• Modification. Civil Code section 1698.
• The Law Revision Commission comment to this section observes: “The rules
provided by subdivisions (b) and (c) merely describe cases where proof of an
oral modification is permitted; these rules do not, however, affect in any way
the burden of the party claiming that there was an oral modification to produce
sufficient evidence to persuade the trier of fact that the parties actually did
make an oral modification of the contract.”
• Modification of Oral Contract. Civil Code section 1697.
• “It is axiomatic that the parties to an agreement may modify it.” (Vella v.
Hudgins (1984) 151 Cal.App.3d 515, 519 [198 Cal.Rptr. 725].)
• “Another issue of fact appearing in the evidence is whether the written contract
was modified by executed oral agreements. This can be a question of fact. An
agreement to modify a written contract will be implied if the conduct of the
parties is inconsistent with the written contract so as to warrant the conclusion
that the parties intended to modify it.” (Daugherty Co. v. Kimberly-Clark Corp.
(1971) 14 Cal.App.3d 151, 158 [92 Cal.Rptr. 120], internal citation omitted.)
• “Modification is a change in the obligation by a modifying agreement which
requires mutual assent.” (Wade v. Diamond A Cattle Co. (1975) 44 Cal.App.3d
453, 457 [118 Cal.Rptr. 695].)
108

• “A contract can, of course, be subsequently modified with the assent of the

parties thereto, provided the same elements essential to the validity of the
original contract are present.” (Carlson, Collins, Gordon & Bold v. Banducci
• “Generally speaking, a commitment to perform a preexisting contractual
obligation has no value. In contractual parlance, for example, doing or
promising to do something one is already legally bound to do cannot constitute
the consideration needed to support a binding contract.” (Auerbach v. Great
Western Bank (1999) 74 Cal.App.4th 1172, 1185 [88 Cal.Rptr.2d 718].)
• Consideration is unnecessary if the modification is to correct errors and
omissions. (Texas Co. v. Todd (1937) 19 Cal.App.2d 174, 185–186 [64 P.2d
1180].)
Secondary Sources
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶¶ 8:3050–8:3202 (The Rutter Group)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.520–50.523 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.21, 77.121,
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58
109

[Name of plaintiff] and [name of defendant] dispute the meaning of the

following words in their contract: [insert disputed language].
[Name of plaintiff] claims that the words mean [insert plaintiff’s
interpretation]. [Name of defendant] claims that the words mean [insert
defendant’s interpretation]. [Name of plaintiff] must prove that [his/her/its]
interpretation is correct.
In deciding what the words of a contract mean, you must decide what
the parties intended at the time the contract was created. You may
consider the usual and ordinary meaning of the language used in the
contract as well as the circumstances surrounding the making of the
contract.
[The following instructions may also help you interpret the words of the
contract:]

Directions for Use
Give this instruction if there is conflicting extrinsic evidence as to what the parties
intended the language of their contract to mean. While interpretation of a contract
can be a matter of law for the court (Parsons v. Bristol Development Co. (1965) 62
Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839]), it is a question of fact for the
jury if ascertaining the intent of the parties at the time the contract was executed
depends on the credibility of extrinsic evidence. (City of Hope National Medical
Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [75 Cal.Rptr.3d 333, 181 P.3d
142].)
Read any of the instructions (as appropriate) on tools for interpretation (CACI
Nos. 315 through 320) after reading the last bracketed sentence.
• Contract Interpretation: Intent. Civil Code section 1636.
• Contracts Explained by Circumstances. Civil Code section 1647.
• “Juries are not prohibited from interpreting contracts. Interpretation of a written
instrument becomes solely a judicial function only when it is based on the
words of the instrument alone, when there is no conflict in the extrinsic
evidence, or a determination was made based on incompetent evidence. But
when, as here, ascertaining the intent of the parties at the time the contract was
executed depends on the credibility of extrinsic evidence, that credibility
determination and the interpretation of the contract are questions of fact that
may properly be resolved by the jury.” (City of Hope National Medical Center,
110

supra, 43 Cal.4th at p. 395, footnote and internal citations omitted.)

• “This rule—that the jury may interpret an agreement when construction turns on
the credibility of extrinsic evidence—is well established in our case law.
California’s jury instructions reflect this (Judicial Council of Cal. Civ. Jury
Instns. (2008) CACI No. 314) . . . , as do authoritative secondary sources.”
(City of Hope National Medical Center, supra, 43 Cal.4th at pp. 395−396,
• “The trial court’s determination of whether an ambiguity exists is a question of
law, subject to independent review on appeal. The trial court’s resolution of an
ambiguity is also a question of law if no parol evidence is admitted or if the
parol evidence is not in conflict. However, where the parol evidence is in
conflict, the trial court’s resolution of that conflict is a question of fact and must
be upheld if supported by substantial evidence. Furthermore, ‘[w]hen two
equally plausible interpretations of the language of a contract may be made . . .
parol evidence is admissible to aid in interpreting the agreement, thereby
presenting a question of fact which precludes summary judgment if the
evidence is contradictory.’ ” (WYDA Associates v. Merner (1996) 42
• “In interpreting a contract, the objective intent, as evidenced by the words of
the contract is controlling. We interpret the intent and scope of the agreement
by focusing on the usual and ordinary meaning of the language used and the
circumstances under which the agreement was made.” (Lloyd’s Underwriters v.
Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 1197–1198 [32 Cal.Rptr.2d
144], internal citations omitted.)
• “Ordinarily, even in an integrated contract, extrinsic evidence can be admitted
to explain the meaning of the contractual language at issue, although it cannot
be used to contradict it or offer an inconsistent meaning. The language, in such
a case, must be ‘ “reasonably susceptible” ’ to the proposed meaning.” (Hot
Rods, LLC v. Northrop Grumman Systems Corp. (2015) 242 Cal.App.4th 1166,
1175–1176 [196 Cal.Rptr.3d 53].)
• “[I]t is indisputably the law that ‘when ambiguous terms in a memorandum are
disputed, extrinsic evidence is admissible to resolve the uncertainty.’ The
agreement must still provide the essential terms, and it is ‘clear that extrinsic
evidence cannot supply those required terms.’ ‘It can, however, be used to
explain essential terms that were understood by the parties but would otherwise
be unintelligible to others.’ ” (Jacobs v. Locatelli (2017) 8 Cal.App.5th 317, 325
[213 Cal.Rptr.3d 514], original italics, internal citations omitted.)
Secondary Sources
(Matthew Bender)
111

a Particular Construction of Contract, 21.04[2][b], 21.14[2]
112

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.

Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
• Words to Be Understood in Usual Sense. Civil Code section 1644.
• “Generally speaking, words in a contract are to be construed according to their
plain, ordinary, popular or legal meaning, as the case may be. However,
particular expressions may, by trade usage, acquire a different meaning in
reference to the subject matter of a contract. If both parties are engaged in that
trade, the parties to the contract are deemed to have used them according to
their different and peculiar sense as shown by such trade usage and parol
evidence is admissible to establish the trade usage even though the words in
their ordinary or legal meaning are entirely unambiguous. [Citation.]” (Hayter
Trucking Inc. v. Shell Western E & P, Inc. (1993) 18 Cal.App.4th 1, 15 [22
Cal.Rptr.2d 229].)
Secondary Sources
(Matthew Bender)
113

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.

Directions for Use
• Technical Words. Civil Code section 1645.
• “The ‘clear and explicit’ meaning of these provisions, interpreted in their
‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or
a special meaning is given to them by usage’ [citation], controls judicial
interpretation.” (Cooper Companies, Inc. v. Transcontinental Insurance Co.
Secondary Sources
(Matthew Bender)
114

In deciding what the words of a contract meant to the parties, you

should consider the whole contract, not just isolated parts. You should
use each part to help you interpret the others, so that all the parts make
sense when taken together.

Directions for Use
• Effect to Be Given to Every Part of Contract. Civil Code section 1641.
• “[T]he contract must be construed as a whole and the intention of the parties
must be ascertained from the consideration of the entire contract, not some
isolated portion.” (County of Marin v. Assessment Appeals Bd. of Marin County
(1976) 64 Cal.App.3d 319, 324–325 [134 Cal.Rptr. 349].)
• “Any contract must be construed as a whole, with the various individual
provisions interpreted together so as to give effect to all, if reasonably possible
or practicable.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith
• “[W]e should interpret contractual language in a manner which gives force and
effect to every clause rather than to one which renders clauses nugatory.” (Titan
Corp. v. Aetna Casualty and Surety Co. (1994) 22 Cal.App.4th 457, 473–474
[27 Cal.Rptr.2d 476].)
• “Nor are we persuaded by [defendant]’s related claim that it was improper for
[plaintiff]’s counsel to tell the jurors, during closing argument, that in resolving
witness credibility issues they should consider the ‘big picture’ and not get lost
in the minutiae of the contractual language.” (City of Hope National Medical
Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 394 [75 Cal.Rptr.3d 333, 181
P.3d 142].)
Secondary Sources
(Matthew Bender)
115

116

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.

Directions for Use
• “In construing contract terms, the construction given the contract by the acts
and conduct of the parties with knowledge of its terms, and before any
controversy arises as to its meaning, is relevant on the issue of the parties’
intent.” (Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc.
• “This rule of practical construction is predicated on the common sense concept
that ‘actions speak louder than words.’ Words are frequently but an imperfect
medium to convey thought and intention. When the parties to a contract
perform under it and demonstrate by their conduct that they knew what they
were talking about the courts should enforce that intent.” (Crestview Cemetery
Assn. v. Dieden (1960) 54 Cal.2d 744, 754 [8 Cal.Rptr. 427, 356 P.2d 171].)
• “The conduct of the parties after execution of the contract and before any
controversy has arisen as to its effect affords the most reliable evidence of the
parties’ intentions.” (Kennecott Corp. v. Union Oil Co. of California (1987) 196
Cal.App.3d 1179, 1189 [242 Cal.Rptr. 403].)
• “[T]his rule is not limited to the joint conduct of the parties in the course of
performance of the contract. As stated in Corbin on Contracts, ‘The practical
interpretation of the contract by one party, evidenced by his words or acts, can
be used against him on behalf of the other party, even though that other party
had no knowledge of those words or acts when they occurred and did not
concur in them. In the litigation that has ensued, one who is maintaining the
same interpretation that is evidenced by the other party’s earlier words, and
acts, can introduce them to support his contention.’ We emphasize the conduct
of one party to the contract is by no means conclusive evidence as to the
meaning of the contract. It is relevant, however, to show the contract is
reasonably susceptible to the meaning evidenced by that party’s conduct.”
(Southern California Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839,
851 [44 Cal.Rptr.2d 227], internal citations omitted.)
117

Secondary Sources
(Matthew Bender)
118

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.

Directions for Use
• Time of Performance of Contract. Civil Code section 1657.
• “[A]s the contract was silent as to the time of delivery a reasonable time for
performance must be implied.” (Palmquist v. Palmquist (1963) 212 Cal.App.2d
322, 331 [27 Cal.Rptr. 744].)
• “The question of what constituted a reasonable time was of course one of fact.”
(Lyon v. Goss (1942) 19 Cal.2d 659, 673 [123 P.2d 11].)
• “[W]hat constitutes a reasonable time is a question of fact, depending upon the
situation of the parties, the nature of the transaction, and the facts of the
particular case.” (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836 [52
Cal.Rptr. 1, 415 P.2d 816].)
Secondary Sources
(Matthew Bender)
Defending Action for Breach of Contract, 22.46
119

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].

Directions for Use
• Language Interpreted Against Party Causing Uncertainty. Civil Code section
1654.
• “[T]his [Civil Code section 1654] canon applies only as a tie breaker, when
other canons fail to dispel uncertainty.” Pacific Gas & Electric Co. v. Superior
Court (1993) 15 Cal.App.4th 576, 596 [19 Cal.Rptr.2d 295], disapproved on
other grounds in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th
362, 376–377 [36 Cal.Rptr.2d 581, 885 P.2d 994].)
• “The trial court’s instruction . . . embodies a general rule of contract
interpretation that was applicable to the negotiated agreement between [the
parties]. It may well be that in a particular situation the discussions and
exchanges between the parties in the negotiation process may make it difficult
or even impossible for the jury to determine which party caused a particular
contractual ambiguity to exist, but this added complexity does not make the
underlying rule irrelevant or inappropriate for a jury instruction. We conclude,
accordingly, that the trial court here did not err in instructing the jury on Civil
Code section 1654’s general rule of contract interpretation.” (City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 398 [75
Cal.Rptr.3d 333, 181 P.3d 142].)
• “[I]f the uncertainty is not removed by application of the other rules of
interpretation, a contract must be interpreted most strongly against the party
who prepared it. This last rule is applied with particular force in the case of
adhesion contracts.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 801
[79 Cal.Rptr.2d 273], internal citations omitted.)
• “[T]he doctrine of contra proferentem (construing ambiguous agreements
against the drafter) applies with even greater force when the person who
prepared the writing is a lawyer.” Mayhew v. Benninghoff (1997) 53
120


Secondary Sources
(Matthew Bender)
121

[Name of defendant] claims that the contract with [name of plaintiff]

provides that [he/she/it] was not required to [insert duty] unless [insert
condition precedent].
[Name of defendant] must prove that the parties agreed to this condition.
If [name of defendant] proves this, then [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].
New September 2003

Directions for Use
This instruction should only be given if both the existence and the occurrence of a
condition precedent are contested. If only the occurrence of a condition precedent
is contested, use CACI No. 322, Occurrence of Agreed Condition Precedent.
• Conditional Obligation. Civil Code section 1434.
• Condition Precedent. Civil Code section 1436.
• “Under the law of contracts, parties may expressly agree that a right or duty is
conditional upon the occurrence or nonoccurrence of an act or event.” (Platt
Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313 [24 Cal.Rptr.2d 597, 862
P.2d 158].)
• “A conditional obligation is one in which ‘the rights or duties of any party
thereto depend upon the occurrence of an uncertain event.’ ‘[P]arties may
expressly agree that a right or duty is conditional upon the occurrence or
nonoccurrence of an act or event.’ A condition in a contract may be a condition
precedent, concurrent, or subsequent. ‘[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.’ ” (JMR
Construction Corp. v. Environmental Assessment & Remediation Management,
Inc. (2015) 243 Cal.App.4th 571, 593 [198 Cal.Rptr.3d 47].)
• “The existence of a condition precedent normally depends upon the intent of the
parties as determined from the words they have employed in the contract.”
(Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 464 [201
Cal.Rptr.3d 148].)
• “[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
122


• “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
Bender)
Defending Action for Breach of Contract, 22.19, 22.66
123

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].
New September 2003

Directions for Use
If both the existence and the occurrence of a condition precedent are contested, use
CACI No. 321, Existence of Condition Precedent Disputed.
• Conditional Obligation. Civil Code section 1434.
• Condition Precedent. Civil Code section 1436.
• “A conditional obligation is one in which ‘the rights or duties of any party
thereto depend upon the occurrence of an uncertain event.’ ‘[P]arties may
expressly agree that a right or duty is conditional upon the occurrence or
nonoccurrence of an act or event.’ A condition in a contract may be a condition
precedent, concurrent, or subsequent.” (JMR Construction Corp. v.
Environmental Assessment & Remediation Management, Inc. (2015) 243
• “[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].)
• “Under the law of contracts, parties may expressly agree that a right or duty is
conditional upon the occurrence or nonoccurrence of an act or event.” (Platt
Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313 [24 Cal.Rptr.2d 597, 862
P.2d 158].)
• “The existence of a condition precedent normally depends upon the intent of the
parties as determined from the words they have employed in the contract.”
(Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 464 [201
Cal.Rptr.3d 148].)
• “ ‘[G]enerally, a party’s failure to perform a condition precedent will preclude
124

an action for breach of contract.’ ” (Stephens & Stephens XII, LLC, supra, 231
• “[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
• “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
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
Bender)
Defending Action for Breach of Contract, 22.19, 22.66
125

[Name of plaintiff] and [name of defendant] agreed in their contract that

[name of defendant] would not have to [insert duty] unless [insert
condition precedent]. That condition did not occur. Therefore, [name of
defendant] contends that [he/she/it] did not have to [insert duty].
To overcome this contention, [name of plaintiff] must prove by clear and
convincing evidence that [name of defendant], by words or conduct, gave
up [his/her/its] right to require [insert condition precedent] before having
to [insert duty].

Directions for Use
For an instruction on waiver as an affirmative defense, see CACI No. 336,
Affırmative Defense—Waiver.
• “Ordinarily, a plaintiff cannot recover on a contract without alleging and
proving performance or prevention or waiver of performance of conditions
precedent and willingness and ability to perform conditions concurrent.”
(Roseleaf Corp. v. Radis (1953) 122 Cal.App.2d 196, 206 [264 P.2d 964].)
• “ ‘[C]ase law is clear that “ ‘[w]aiver is the intentional relinquishment of a
known right after knowledge of the facts.’ [Citations.] The burden . . . 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’ [citation].” [Citations.] The waiver may be either
express, based on the words of the waiving party, or implied, based on conduct
indicating an intent to relinquish the right.” (Stephens & Stephens XII, LLC v.
Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1148 [180 Cal.Rptr.3d
683].)
• “All case law on the subject of waiver is unequivocal: ‘ “Waiver always rests
upon intent.’ ” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout
III, Ltd. (1994) 30 Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515] [plaintiff’s claim
that defendant waived occurrence of conditions must be proved by clear and
convincing evidence].)
• “A condition is waived when a promisor by his words or conduct justifies the
promisee in believing that a conditional promise will be performed despite the
failure to perform the condition, and the promisee relies upon the promisor’s
manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210
Cal.App.2d 258, 264 [26 Cal.Rptr. 610].)
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
126

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
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
127

A party can breach, or break, a contract before performance is required

by clearly and positively indicating, by words or conduct, that he or she
will not or can not meet the requirements of the contract.
If [name of plaintiff] proves that [he/she/it] would have been able to
fulfill the terms of the contract and that [name of defendant] clearly and
positively indicated, by words or conduct, that [he/she/it] would not or
could not meet the contract requirements, then [name of defendant]
breached the contract.
New September 2003

• Anticipatory Breach. Civil Code section 1440.
• “Repudiation of a contract, also known as “anticipatory breach,” occurs when a
party announces an intention not to perform prior to the time due for
performance.” (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co.
• Courts have defined anticipatory breach as follows: “An anticipatory breach of
contract occurs on the part of one of the parties to the instrument when he
positively repudiates the contract by acts or statements indicating that he will
not or cannot substantially perform essential terms thereof, or by voluntarily
transferring to a third person the property rights which are essential to a
substantial performance of the previous agreement, or by a voluntary act which
renders substantial performance of the contract impossible or apparently
impossible.” (C. A. Crane v. East Side Canal & Irrigation Co. (1935) 6
Cal.App.2d 361, 367 [44 P.2d 455].)
• Anticipatory breach can be express or implied: “An express repudiation is a
clear, positive, unequivocal refusal to perform; an implied repudiation results
from conduct where the promisor puts it out of his power to perform so as to
make substantial performance of his promise impossible.” (Taylor v. Johnston
(1975) 15 Cal.3d 130, 137 [123 Cal.Rptr. 641, 539 P.2d 425].)
• “In the event the promisor repudiates the contract before the time for his or her
performance has arrived, the plaintiff has an election of remedies—he or she
may ‘treat the repudiation as an anticipatory breach and immediately seek
damages for breach of contract, thereby terminating the contractual relation
between the parties, or he [or she] can treat the repudiation as an empty threat,
wait until the time for performance arrives and exercise his [or her] remedies
for actual breach if a breach does in fact occur at such time.’ ” (Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489 [59 Cal.Rptr.2d 20, 926
P.2d 1114].)
128

• Anticipatory breach can be used as an excuse for plaintiff’s failure to

substantially perform. (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d
19, 29 [142 P.2d 22].)
• “Although it is true that an anticipatory breach or repudiation of a contract by
one party permits the other party to sue for damages without performing or
offering to perform its own obligations, this does not mean damages can be
recovered without evidence that, but for the defendant’s breach, the plaintiff
would have had the ability to perform.” (Ersa Grae Corp. v. Fluor Corp. (1991)
Secondary Sources
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.15, 77.361
(Matthew Bender)
Defending Action for Breach of Contract, 22.23
129

325. Breach of Implied Covenant of Good Faith and Fair

Dealing—Essential Factual Elements
In every contract or agreement there is an implied promise of good

faith and fair dealing. This means that each party will not do anything
to unfairly interfere with the right of any other party to receive the
benefits of the contract; however, the implied promise of good faith and
fair dealing cannot create obligations that are inconsistent with the
terms of the contract. [Name of plaintiff] claims that [name of defendant]
violated the duty to act fairly and in good faith. To establish this claim,
contract;
[2. That [name of plaintiff] did all, or substantially all of the
significant things that the contract required [him/her/it] to do [or
that [he/she/it] was excused from having to do those things;]
[3. That all conditions required for [name of defendant]’s
performance [had occurred/ [or] were excused];]
4. That [name of defendant] unfairly interfered with [name of
plaintiff]’s right to receive the benefits of the contract; and
5. That [name of plaintiff] was harmed by [name of defendant]’s
conduct.
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
130

claims rests on different facts and different harm].)

It has been noted that one may bring a claim for breach of the implied covenant
without also bringing a claim for breach of other contract terms. (See Careau &
Co., supra, 222 Cal.App.4th at p. 1395.) Thus it would seem that a jury should be
able to find a breach of the implied covenant even if it finds for the defendant on
all other breach of contract claims.
• “There is an implied covenant of good faith and fair dealing in every contract
that neither party will do anything which will injure the right of the other to
receive the benefits of the agreement.” (Comunale v. Traders & General Ins.
Co. (1958) 50 Cal.2d 654, 658 [328 P.2d 198], internal citation omitted.)
• “ ‘ “Every contract imposes upon each party a duty of good faith and fair
dealing in its performance and its enforcement.” ’ [] The covenant of good faith
finds particular application in situations where one party is invested with a
discretionary power affecting the rights of another. Such power must be
exercised in good faith.” (Carma Developers (Cal.), Inc. v. Marathon
Development California, Inc. (1992) 2 Cal.4th 342, 371–372 [6 Cal.Rptr.2d 467,
826 P.2d 710], internal citations omitted.)
• “When one party to a contract retains the unilateral right to amend the
agreement governing the parties’ relationship, its exercise of that right is
constrained by the covenant of good faith and fair dealing which precludes
amendments that operate retroactively to impair accrued rights.” (Cobb v.
Ironwood Country Club (2015) 233 Cal.App.4th 960, 963 [183 Cal.Rptr.3d
282].)
• “The covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually made. The
covenant thus cannot ‘ “ ‘be endowed with an existence independent of its
contractual underpinnings.’ ” ’ It cannot impose substantive duties or limits on
the contracting parties beyond those incorporated in the specific terms of their
agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349–350 [100
Cal.Rptr.2d 352, 8 P.3d 1089], original italics, internal citations omitted.)
• “The implied covenant of good faith and fair dealing rests upon the existence of
some specific contractual obligation. ‘The covenant of good faith is read into
contracts in order to protect the express covenants or promises of the contract,
not to protect some general public policy interest not directly tied to the
contract’s purpose.’ . . . ‘In essence, the covenant is implied as a supplement to
the express contractual covenants, to prevent a contracting party from engaging
in conduct which (while not technically transgressing the express covenants)
frustrates the other party’s rights to the benefits of the contract.’ ” (Racine &
Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th
1026, 1031–1032 [14 Cal.Rptr.2d 335], internal citations omitted.)
• “There is no obligation to deal fairly or in good faith absent an existing
131

contract. If there exists a contractual relationship between the parties . . . the

implied covenant is limited to assuring compliance with the express terms of
the contract, and cannot be extended to create obligations not contemplated in
the contract.” (Racine & Laramie, Ltd., supra, 11 Cal.App.4th at p. 1032,
• “Although breach of the implied covenant often is pleaded as a separate count,
a breach of the implied covenant is necessarily a breach of contract.” (Digerati
Holdings, LLC, supra, 194 Cal.App.4th at p. 885.)
• “ ‘[B]reach of a specific provision of the contract is not . . . necessary’ to a
claim for breach of the implied covenant of good faith and fair dealing.”
(Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th
1230, 1244 [160 Cal.Rptr.3d 718].)
• “The issue of whether the implied covenant of good faith and fair dealing has
been breached is ordinarily ‘a question of fact unless only one inference [can]
be drawn from the evidence.’ ” (Hicks v. E.T. Legg & Associates (2001) 89
• “If the allegations do not go beyond the statement of a mere contract breach
and, relying on the same alleged acts, simply seek the same damages or other
relief already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated. Thus, absent
those limited cases where a breach of a consensual contract term is not claimed
or alleged, the only justification for asserting a separate cause of action for
breach of the implied covenant is to obtain a tort recovery.” (Careau & Co.,
supra, 222 Cal.App.3d at p. 1395.)
• “[W]e believe that the gravamen of the two counts differs. The gravamen of the
breach of contract count is [cross defendants’] alleged failure to comply with
their express contractual obligations specified in paragraph 37 of the cross-
complaint, while the gravamen of the count for breach of the implied covenant
of good faith and fair dealing is their alleged efforts to undermine or prevent
the potential sale and distribution of the film, both by informing distributors that
the film was unauthorized and could be subject to future litigation and by
seeking an injunction. (Digerati Holdings, LLC, supra, 194 Cal. App. 4th at p.
885.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 798, 800–802
140.50 et seq. (Matthew Bender)
Defending Action for Breach of Duty of Good Faith and Fair Dealing, 23.05
132

[Name of plaintiff] was not a party to the original contract. However,

[name of plaintiff] may bring a claim for breach of the contract if [he/
she/it] proves that [name of assignor] transferred [his/her/its] rights
under the contract to [name of plaintiff]. This transfer is referred to as
an “assignment.”
[Name of plaintiff] must prove that [name of assignor] intended to
transfer [his/her/its] contract rights to [name of plaintiff]. In deciding
[name of assignor]’s intent, you should consider the entire transaction
and the conduct of the parties to the assignment.
[A transfer of contract rights does not necessarily have to be made in
writing. It may be oral or implied by the conduct of the parties to the
assignment.]
New February 2005

Directions for Use
The bracketed third paragraph should be used only in cases involving a transfer
that may be made without a writing.
• Oral Assignments. Civil Code section 1052.
• “While no particular form of assignment is required, it is essential to the
assignment of a right that the assignor manifest an intention to transfer the
right.” (Sunburst Bank v. Executive Life Insurance Co. (1994) 24 Cal.App.4th
1156, 1164 [29 Cal.Rptr.2d 734], internal citations omitted.)
• “The burden of proving an assignment falls upon the party asserting rights
thereunder. In an action by an assignee to enforce an assigned right, the
evidence must not only be sufficient to establish the fact of assignment when
that fact is in issue, but the measure of sufficiency requires that the evidence of
assignment be clear and positive to protect an obligor from any further claim by
the primary obligee.” (Cockerell v. Title Insurance & Trust Co. (1954) 42
Cal.2d 284, 292 [267 P.2d 16], internal citations omitted.)
• “The accrued right to collect the proceeds of the fire insurance policy is a chose
in action, and an effective assignment thereof may be expressed orally as well
as in writing; may be the product of inference; and where the parties to a
transaction involving such a policy by their conduct indicate an intention to
transfer such proceeds, the courts will imply an assignment thereof. In making
such a determination, substance and not form controls.” (Greco v. Oregon
Mutual Fire Insurance Co. (1961) 191 Cal.App.2d 674, 683 [12 Cal.Rptr. 802],
133

• “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
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,
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
134

[Name of plaintiff] was not a party to the original contract. However,

[he/she/it] may bring a claim for breach of contract because [name of
assignor] transferred the rights under the contract to [name of plaintiff].
This transfer is referred to as an “assignment.”
New February 2005

Directions for Use
This instruction is intended to explain to the jury why a party not named in the
original contract is nevertheless a party to the case.
• Oral Assignment. Civil Code section 1052.
• “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
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,
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
135

328. Breach of Implied Duty to Perform With Reasonable

Care—Essential Factual Elements
The parties’ contract requires that [name of defendant] [specify

performance alleged to have been done negligently, e.g., install cable
television service]. It is implied in the contract that this performance will
be done competently and with reasonable care. [Name of plaintiff] claims
that [name of defendant] breached this implied condition. To establish
this claim, [name of plaintiff] must prove all of the following:
contract;
[2. That [name of plaintiff] did all, or substantially all of the
significant things that the contract required [him/her/it] to do;]
[or]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
excused];]
4. That [name of defendant] failed to use reasonable care in [specify
performance]; and
conduct.
New June 2015

Directions for Use
Give this instruction if the plaintiff alleges harm from the defendant’s failure to
perform a contractual obligation with reasonable care. Every contract includes an
implied duty to perform required acts competently. (Holguin v. Dish Network LLC
(2014) 229 Cal.App.4th 1310, 1324 [178 Cal.Rptr.3d 100].) If negligent
performance is alleged, the jury should be instructed that the contract contains this
implied duty. The jury must then decide whether the duty has been breached. It
must also find all of the other elements required for breach of contract. (See CACI
No. 303, Breach of Contract—Essential Factual Elements.)
This instruction may be adapted for use as an affirmative defense if the defendant
136

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.
• “[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
(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
137

[Name of defendant] claims that there was no contract because [he/she/it]

was mistaken about [insert description of mistake]. To succeed, [name of
defendant] must prove all of the following:
1. That [name of defendant] was mistaken about [insert description of
mistake];
2. That [name of plaintiff] knew [name of defendant] was mistaken
and used that mistake to take advantage of [him/her/it];
3. That [name of defendant]’s mistake was not caused by [his/her/its]
excessive carelessness; and
4. That [name of defendant] would not have agreed to enter into the
contract if [he/she/it] had known about the mistake.
If you decide that [name of defendant] has proved all of the above, then
no contract was created.

Directions for Use
If the mistake is one of law, this may not be a jury issue.
This instruction does not contain the requirement that the mistake be material to the
contract because the materiality of a representation is a question of law. (Merced
County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d
765, 772 [284 Cal.Rptr. 680].) Accordingly, the judge would decide whether an
alleged mistake was material, and that mistake would be inserted into this
instruction.
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Mistake. Civil Code section 1576.
• Mistake of Fact. Civil Code section 1577.
• “It is settled that to warrant a unilateral rescission of a contract because of
mutual mistake, the mistake must relate to basic or material fact, not a collateral
matter.” (Wood v. Kalbaugh (1974) 39 Cal.App.3d 926, 932 [114 Cal.Rptr.
673].)
• “A mistake need not be mutual. Unilateral mistake is ground for relief where
the mistake is due to the fault of the other party or the other party knows or has
reason to know of the mistake. . . . To rely on a unilateral mistake of fact, [the
party] must demonstrate his mistake was not caused by his ‘neglect of a legal
duty.’ Ordinary negligence does not constitute the neglect of a legal duty as that
138

term is used in section 1577.” (Architects & Contractors Estimating Service,

Inc. v. Smith (1985) 164 Cal.App.3d 1001, 1007–1008 [211 Cal.Rptr. 45],
• To prevail on a unilateral mistake claim, the defendant must prove that the
plaintiff knew that the defendant was mistaken and that plaintiff used that
mistake to take advantage of the defendant: “Defendants contend that a material
mistake of fact—namely, the defendants’ belief that they would not be obligated
to install a new roof upon the residence—prevented contract formation. A
unilateral mistake of fact may be the basis of relief. However, such a unilateral
mistake may not invalidate a contract without a showing that the other party to
the contract was aware of the mistaken belief and unfairly utilized that mistaken
belief in a manner enabling him to take advantage of the other party.” (Meyer v.
Benko (1976) 55 Cal.App.3d 937, 944 [127 Cal.Rptr. 846], internal citations
omitted.)
• “Failure to make reasonable inquiry to ascertain or effort to understand the
meaning and content of the contract upon which one relies constitutes neglect
of a legal duty such as will preclude recovery for unilateral mistake of fact.”
(Wal-Noon Corporation v. Hill (1975) 45 Cal.App.3d 605, 615 [119 Cal.Rptr.
646].) However, “[o]rdinary negligence does not constitute the neglect of a
legal duty as that term is used in section 1577.” (Architects & Contractors
Estimating Service, Inc. v. Smith, supra, 164 Cal.App.3d at p. 1008.)
• Neglect of legal duty has been equated with “gross negligence,” which is
defined as “the want of even scant care or an extreme departure from the
ordinary standard of conduct.” (Van Meter v. Bent Construction Co. (1956) 46
Cal.2d 588, 594 [297 P.2d 644].)
Secondary Sources
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.50–215.57, 215.141 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.90 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.350 (Matthew
Bender)
or Defending Existence of Contract—Mistake, 16.08[2], 16.13–16.16, 16.18
139

[Name of defendant] claims that there was no contract because both

parties were mistaken about [insert description of mistake]. To succeed,
[name of defendant] must prove both of the following:
1. That both parties were mistaken about [insert description of
mistake]; and
2. That [name of defendant] would not have agreed to enter into this
contract if [he/she/it] had known about the mistake.
If you decide that [name of defendant] has proved both of the above,
then no contract was created.
New September 2003

Directions for Use
This instruction does not contain the requirement that the mistake be material to the
contract because the materiality of a representation is a question of law. (Merced
County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d
765, 772 [284 Cal.Rptr. 680].) Accordingly, the judge would decide whether an
alleged mistake was material, and that mistake would be inserted into this
instruction.
If the mistake is one of law, this may not be a jury issue.
• When Consent Not Free. Civil Code section 1567.
• Consent Obtained by Fraud. Civil Code section 1568.
• Mistake. Civil Code section 1576.
• Mistake of Fact. Civil Code section 1577.
• Mistake of Law. Civil Code section 1578.
• Rescission of Contract. Civil Code section 1689.
• “A mistake of fact may be urged as a defense to an action upon a contract only
if the mistake is material to the contract.” (Edwards v. Lang (1961) 198
Cal.App.2d 5, 12 [18 Cal.Rptr. 60].)
• “A ‘mistake’ within the meaning of subdivision (b)(1) of section 1689 of the
Civil Code can be either one of fact or of law. ‘Generally a mistake of fact
occurs when a person understands the facts to be other than they are . . . .’
When both parties understand the facts other than they are, the mistake
necessarily is mutual and thus becomes a basis for rescission.” (Crocker-Anglo
Nat’l Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496 [36 Cal.Rptr. 806],
140

• “[T]o warrant a unilateral rescission of a contract because of mutual mistake,

the mistake must relate to basic or material fact, not a collateral matter.” (Wood
v. Kalbaugh (1974) 39 Cal.App.3d 926, 932 [114 Cal.Rptr 673].)
• “Where, as here, the extrinsic evidence is not in conflict, the determination of
whether a mutual mistake occurred is a question of law.” (Hess v. Ford Motor
Co. (2002) 27 Cal.4th 516, 527 [117 Cal. Rptr. 2d 220, 41 P.3d 46].)
• “Ordinary negligence does not bar a claim for mutual mistake because ‘ “[t]here
is an element of carelessness in nearly every case of mistake . . . .” ’ ‘Only
gross negligence or ‘preposterous or irrational’ conduct will [bar] mutual
mistake.’ ” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218
• “Where parties are aware at the time the contract is entered into that a doubt
exists in regard to a certain matter and contract on that assumption, the risk of
the existence of the doubtful matter is assumed as an element of the bargain.”
(Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 885 [124 Cal.Rptr
577].)
Secondary Sources
Bender)
or Defending Existence of Contract—Mistake, 16.08[1], 16.09, 16.11, 16.18
141

[Name of defendant] claims that there was no contract because [his/her]

consent was given under duress. To succeed, [name of defendant] must
prove all of the following:
1. That [name of plaintiff] used a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract;
2. That [name of defendant] was so afraid or intimidated by the
wrongful act or wrongful threat that [he/she] did not have the
free will to refuse to consent to the contract; and
3. That [name of defendant] would not have consented to the
contract without the wrongful act or wrongful threat.
An act or a threat is wrongful if [insert relevant rule—e.g., “a criminal
act is threatened”].

Directions for Use
Use CACI No. 333, Affırmative Defense—Economic Duress, in cases involving
economic duress.
• Duress. Civil Code section 1569.
• Menace. Civil Code section 1570.
• “Menace” is considered to be duress: “Under the modern rule, ‘ “[d]uress,
which includes whatever destroys one’s free agency and constrains [her] to do
what is against [her] will, may be exercised by threats, importunity or any
species of mental coercion. It is shown where a party ‘intentionally used threats
or pressure to induce action or nonaction to the other party’s detriment.’ ” ’ The
coercion must induce the assent of the coerced party, who has no reasonable
alternative to succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d
66, 84 [260 Cal.Rptr. 403], internal citations omitted.)
• “Duress envisions some unlawful action by a party by which one’s consent is
obtained through fear or threats.” (Keithley v. Civil Service Bd. of The City of
Oakland (1970) 11 Cal.App.3d 443, 450 [89 Cal.Rptr. 809], internal citations
omitted.)
• Duress is found only where fear is intentionally used as a means of procuring
142

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
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
Bender)
143

or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]
144

[Name of defendant] claims that there was no contract because [his/her/

its] consent was given under duress. To succeed, [name of defendant]
must prove all of the following:
1. That [name of plaintiff] used a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract;
2. That a reasonable person in [name of defendant]’s position would
have believed that he or she had no reasonable alternative except
to consent to the contract; and
3. That [name of defendant] would not have consented to the
contract without the wrongful act or wrongful threat.
An act or a threat is wrongful if [insert relevant rule, e.g., “a bad-faith
breach of contract is threatened”].
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].)
• “The doctrine of ‘economic duress’ can apply when one party has done a
145

wrongful act which is sufficiently coercive to cause a reasonably prudent

person, faced with no reasonable alternative, to agree to an unfavorable
contract. The party subjected to the coercive act, and having no reasonable
alternative, can then plead ‘economic duress’ to avoid the contract.” (CrossTalk
Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644 [76 Cal.Rptr.2d
615], internal citation omitted.)
• The nonexistence of a “reasonable alternative” is a question of fact. (CrossTalk
Productions, Inc., supra, 65 Cal.App.4th at p. 644.)
• “ ‘At the outset it is helpful to acknowledge the various policy considerations
which are involved in cases involving economic duress. Typically, those
claiming such coercion are attempting to avoid the consequences of a
modification of an original contract or of a settlement and release agreement.
On the one hand, courts are reluctant to set aside agreements because of the
notion of freedom of contract and because of the desirability of having private
dispute resolutions be final. On the other hand, there is an increasing
recognition of the law’s role in correcting inequitable or unequal exchanges
between parties of disproportionate bargaining power and a greater willingness
to not enforce agreements which were entered into under coercive
circumstances.’ ” (Rich & Whillock, Inc., supra, 157 Cal.App.3d at p. 1158.)
• “ ‘As it has evolved to the present day, the economic duress doctrine is not
limited by early statutory and judicial expressions requiring an unlawful act in
the nature of a tort or a crime. . . . Instead, the doctrine now may come into
play upon the doing of a wrongful act which is sufficiently coercive to cause a
reasonably prudent person faced with no reasonable alternative to succumb to
the perpetrator’s pressure. . . . The assertion of a claim known to be false or a
bad faith threat to breach a contract or to withhold a payment may constitute a
wrongful act for purposes of the economic duress doctrine. . . . Further, a
reasonably prudent person subject to such an act may have no reasonable
alternative but to succumb when the only other alternative is bankruptcy or
financial ruin. . . .’ ” (Chan, supra, 188 Cal.App.4th at pp. 1173–1174.)
• “ ‘It is not duress . . . to take a different view of contract rights, even though
mistaken, from that of the other contracting party, and it is not duress to refuse,
in good faith, to proceed with a contract, even though such refusal might later
be found to be wrong. [¶] . . . “A mere threat to withhold a legal right for the
enforcement of which a person has an adequate [legal] remedy is not
duress.” ’ ” (River Bank America, supra, 38 Cal.App.4th at p. 1425.)
• “[W]rongful acts will support a claim of economic duress when ‘a reasonably
prudent person subject to such an act may have no reasonable alternative but to
succumb when the only other alternative is bankruptcy or financial ruin.’ ”
(Uniwill, supra, 124 Cal.App.4th at p. 545.)
• “Economic duress has been recognized as a basis for rescinding a settlement.
However, the courts, in desiring to protect the freedom of contracts and to
accord finality to a privately negotiated dispute resolution, are reluctant to set
146

aside settlements and will apply ‘economic duress’ only in limited

circumstances and as a ‘last resort.’ ” (San Diego Hospice v. County of San
Diego (1995) 31 Cal.App.4th 1048, 1058 [37 Cal.Rptr.2d 501].)
• “Required criteria that must be proven to invalidate a settlement agreement are:
‘(1) the debtor knew there was no legitimate dispute and that it was liable for
the full amount; (2) the debtor nevertheless refused in bad faith to pay and
thereby created the economic duress of imminent bankruptcy; (3) the debtor,
knowing the vulnerability its own bad faith had created, used the situation to
escape an acknowledged debt; and (4) the creditor was forced to accept an
inequitably low amount. . . .’ ” (Perez, supra, 157 Cal.App.4th at pp. 959–960.)
Secondary Sources
Undue Influence, and Mistake, §§ 215.22, 215.122 (Matthew Bender)
Influence, and Mistake, § 92.24 (Matthew Bender)
17.03–17.06, 17.20–17.24[2]
147

[Name of defendant] claims that no contract was created because [he/she]

was unfairly pressured by [name of plaintiff] into consenting to the
contract.
To succeed, [name of defendant] must prove both of the following:
1. That [name of plaintiff] used
1. [a relationship of trust and confidence] [or]
1. [[name of defendant]’s weakness of mind] [or]
1. [[name of defendant]’s needs or distress]
1. to induce or pressure [name of defendant] into consenting to the
contract; and
2. That [name of defendant] would not otherwise have consented to
the contract.
If you decide that [name of defendant] has proved both of the above,
then no contract was created.
New September 2003

• Undue Influence. Civil Code section 1575.
• The question of undue influence is decided as a question of fact: “[D]irect
evidence of undue influence is rarely obtainable and, thus the court is normally
relegated to determination by inference from the totality of facts and
circumstances. Indeed, there are no fixed definitions or inflexible formulas.
Rather, we are concerned with whether from the entire context it appears that
one’s will was overborne and he was induced to do or forbear to do an act
which he would not do, or would do, if left to act freely.” (Keithley v. Civil
Service Bd. of the City of Oakland (1970) 11 Cal.App.3d 443, 451 [89 Cal.Rptr.
• “In essence, undue influence consists of the use of excessive pressure by a
dominant person over a servient person resulting in the apparent will of the
servient person being in fact the will of the dominant person. The undue
susceptibility to such overpersuasive influence may be the product of physical
or emotional exhaustion or anguish which results in one’s inability to act with
unencumbered volition.” (Keithley, supra, 11 Cal.App.3d at p. 451.)
• Whether or not the parties have a confidential relationship is a question of fact:
148

“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
Undue Influence, and Mistake, §§ 215.40–215.42, 215.130–215.132 (Matthew
Bender)
Bender)
17.03–17.06, 17.25–17.28
149

[Name of defendant] claims that no contract was created because [his/

her/its] consent was obtained by fraud. To succeed, [name of defendant]
1. That [name of plaintiff] represented that [insert alleged fraudulent
statement];
2. That [name of plaintiff] knew that the representation was not
true;
3. That [name of plaintiff] made the representation to persuade
[name of defendant] to agree to the contract;
4. That [name of defendant] reasonably relied on this representation;
and
5. That [name of defendant] would not have entered into the
contract if [he/she/it] had known that the representation was not
true.
New September 2003

Directions for Use
This instruction covers intentional misrepresentation under the first alternative
presented in Civil Code section 1572. The other types of fraud that are set forth in
section 1572 are negligent misrepresentation, concealment of a material fact, and
false promise.
If the case involves an alleged negligent misrepresentation, substitute the following
for element 2: “That [name of plaintiff] had no reasonable grounds for believing
the representation was true.”
If the case involves concealment, the following may be substituted for element 1:
“That [name of plaintiff] intentionally concealed an important fact from [name of
defendant], creating a false representation.” See CACI No. 1901, Concealment, for
alternative ways of proving this element.
If the case involves a false promise, substitute the following for element 1: “That
[name of plaintiff] made a promise that [he/she/it] did not intend to perform” and
insert the word “promise” in place of the word “representation” throughout the
remainder of the instruction.
150

• Actual Fraud. Civil Code section 1572.

• Fraud can be found in making a misstatement of fact, as well as in the
concealment of a fact: “Actual fraud involves conscious misrepresentation, or
concealment, or non-disclosure of a material fact which induces the innocent
party to enter the contract.” (Odorizzi v. Bloomfield School Dist. (1966) 246
Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Fraud may be asserted as an affirmative defense: “One who has been induced to
enter into a contract by false and fraudulent representations may rescind the
contract; or he may affirm it, keeping what he has received under it, and
maintain an action to recover damages he has sustained by reason of the fraud;
or he may set up such damages as a complete or partial defense if sued on the
contract by the other party.” (Grady v. Easley (1941) 45 Cal.App.2d 632, 642
[114 P.2d 635].)
• “It is well established that a defrauded defendant may set up the fraud as a
defense and, in fact, may even recoup his damages by counterclaim in an action
brought by the guilty party to the contract. The right to avoid for fraud,
however, is lost if the injured party, after acquiring knowledge of the fraud,
manifests an intention to affirm the contract.” (Bowmer v. H. C. Louis, Inc.
Secondary Sources
Bender)
17.03–17.09, 17.12–17.18
151

[Name of defendant] claims that [he/she/it] did not have to [insert

description of performance] because [name of plaintiff] gave up [his/her/
its] right to have [name of defendant] perform [this/these] obligation[s].
This is called a “waiver.”
To succeed, [name of defendant] must prove both of the following by
clear and convincing evidence:
1. That [name of plaintiff] knew [name of defendant] was required to
[insert description of performance]; and
2. That [name of plaintiff] freely and knowingly gave up [his/her/its]
right to have [name of defendant] perform [this/these]
obligation[s].
A waiver may be oral or written or may arise from conduct that shows
that [name of plaintiff] gave up that right.
If [name of defendant] proves that [name of plaintiff] gave up [his/her/its]
right to [name of defendant]’s performance of [insert description of
performance], then [name of defendant] was not required to perform
[this/these] obligation[s].
New September 2003

Directions for Use
This issue is decided under the “clear and convincing” standard of proof. See
CACI No. 201, Highly Probable—Clear and Convincing Proof.
• “Waiver is the intentional relinquishment of a known right after knowledge of
the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)
• “ ‘ “The waiver may be either express, based on the words of the waiving party,
or implied, based on conduct indicating an intent to relinquish the right.
[Citation.]” [Citation.] Thus, “California courts will find waiver when a party
intentionally relinquishes a right or when that party’s acts are so inconsistent
with an intent to enforce the right as to induce a reasonable belief that such
right has been relinquished.” [Citation.]’ [Citation.]” (Wind Dancer Production
Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 [215 Cal.Rptr.3d
835].)
• “Acceptance of benefits under a lease is conduct that supports a finding of
waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179
152

• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
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].)
• When the injured party with knowledge of the breach continues to accept
performance from the guilty party, such conduct may constitute a waiver of the
breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440–441 [6 P.2d 71].)
• 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].)
• “[N]otwithstanding a provision in a written contract that expressly precludes
oral modification, the parties may, by their words or conduct, waive the
enforcement of a contract provision if the evidence shows that was their intent.”
(Wind Dancer Production Group, supra, 10 Cal.App.5th at p. 80.)
• “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].)
• “The trial court correctly instructed the jury that the waiver of a known right
must be shown by clear and convincing 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
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
153

[Name of defendant] claims that the original contract with [name of

plaintiff] cannot be enforced because the parties substituted a new and
different contract for the original.
To succeed, [name of defendant] must prove that all parties agreed, by
words or conduct, to cancel the original contract and to substitute a
new contract in its place.
If you decide that [name of defendant] has proved this, then the original
contract is not enforceable.

Directions for Use
If the contract in question is not the original contract, specify which contract it is
instead of “original.”
Although there is language in Alexander v. Angel (1951) 37 Cal.2d 856, 860–861
[236 P.2d 561] that could be read to suggest that a novation must be proved by the
higher standard of clear and convincing proof, an examination of the history of that
language and the cases upon which the language in Alexander depends (Columbia
Casualty Co. v. Lewis (1936) 14 Cal.App.2d 64, 72 [57 P.2d 1010] and Houghton v.
Lawton (1923) 63 Cal.App. 218, 223 [218 P. 475]) demonstrates that the original
use of the term “clear and convincing,” carried forward thereafter without analysis,
was intended only to convey the concept that a novation must clearly be shown and
may not be presumed. The history of the language does not support a requirement
that a party alleging a novation must prove there is a high probability (i.e., clear
and convincing proof) that the parties agreed to a novation. See also, sections 279
and 280 of the Restatement Second of Contracts. A party alleging a novation must
prove that the facts supporting the novation are more likely to be true than not true.
• Novation. Civil Code sections 1530. 1531.
• “A novation is a substitution, by agreement, of a new obligation for an existing
one, with intent to extinguish the latter. A novation is subject to the general
rules governing contracts and requires an intent to discharge the old contract, a
mutual assent, and a consideration.” (Klepper v. Hoover (1971) 21 Cal.App.3d
460, 463 [98 Cal.Rptr. 482].)
• Conduct may form the basis for a novation although there is no express writing
or agreement. (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762,
773 [97 P.2d 798].)
• Novation is a question of fact, and the burden of proving it is upon the party
154

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
(Matthew Bender)
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
a Particular Construction of Contract, 21.58[3]
155

[Name of defendant] contends that [name of plaintiff]’s lawsuit was not

filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date two or four years before date of filing].
New December 2007

Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable four-year period for breach of a written contract (see
Code Civ. Proc., § 337(1)) or two-year period for breach of an oral contract. (See
Code Civ. Proc., § 339(1).) Do not use this instruction for breach of a California
Uniform Commercial Code sales contract. (See Com. Code, § 2725.)
If the contract either shortens or extends the limitation period, use the applicable
period from the contract instead of two years or four years.
If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation
defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be
adapted for use.
• Four-Year Statute of Limitations: Contract. Code of Civil Procedure section
337(1).
• Two-Year Statute of Limitations: Contract. Code of Civil Procedure section
339(1).
• “In general, California courts have permitted contracting parties to modify the
length of the otherwise applicable California statute of limitations, whether the
contract has extended or shortened the limitations period.” (Hambrecht & Quist
Venture Partners v. Am. Medical Internat. (1995) 38 Cal.App.4th 1532, 1547
[46 Cal.Rptr.2d 33].)
• “A contract cause of action does not accrue until the contract has been
breached.” (Spear v. Cal. State Automobile Ass’n (1992) 2 Cal.4th 1035, 1042
[9 Cal.Rptr.2d 381, 831 P.2d 821].)
• “The claim accrues when the plaintiff discovers, or could have discovered
through reasonable diligence, the injury and its cause.” (Angeles Chem. Co. v.
Spencer & Jones (1996) 44 Cal.App.4th 112, 119 [51 Cal.Rptr.2d 594].)
• “[T]he discovery rule may be applied to breaches [of contract] which can be,
and are, committed in secret and, moreover, where the harm flowing from those
breaches will not be reasonably discoverable by plaintiffs until a future time.”
(Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 4–5 [131
156

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
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
157

If you decide that [name of plaintiff] has proved [his/her/its] claim

against [name of defendant] for breach of contract, you also must decide
how much money will reasonably compensate [name of plaintiff] for the
harm caused by the breach. This compensation is called “damages.” The
purpose of such damages is to put [name of plaintiff] in as good a
position as [he/she/it] would have been if [name of defendant] had
performed as promised.
To recover damages for any harm, [name of plaintiff] must prove that
when the contract was made, both parties knew or could reasonably
have foreseen that the harm was likely to occur in the ordinary course
of events as result of the breach of the contract.
[Name of plaintiff] also must prove the amount of [his/her/its] damages
according to the following instructions. [He/She/It] does not have to
prove the exact amount of damages. You must not speculate or guess in
awarding damages.
[Name of plaintiff] claims damages for [identify general damages claimed].
New September 2003; Revised October 2004, December 2010

Directions for Use
This instruction should always be read before any of the following specific
damages instructions. (See CACI Nos. 351–360.)
• Contract Damages. Civil Code section 3300.
• Damages Must Be Clearly Ascertainable. Civil Code section 3301.
• Damages No Greater Than Benefit of Full Performance. Civil Code section
3358.
• Damages Must Be Reasonable. Civil Code section 3359.
• “The basic object of damages is compensation, and in the law of contracts the
theory is that the party injured by a breach should receive as nearly as possible
the equivalent of the benefits of performance. The aim is to put the injured
party in as good a position as he would have been had performance been
rendered as promised. This aim can never be exactly attained yet that is the
problem the trial court is required to resolve.” (Brandon & Tibbs v. George
Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 455 [277 Cal.Rptr.
• “The damages awarded should, insofar as possible, place the injured party in
158

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,
• “ ‘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,
• [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
159

reasonable basis of computation be used, and the result reached can be a

reasonable approximation.” (Acree v. General Motors Acceptance Corp. (2001)
92 Cal.App.4th 385, 398 [112 Cal.Rptr.2d 99], footnotes and internal citations
omitted.)
• “Under contract principles, the nonbreaching party is entitled to recover only
those damages, including lost future profits, which are ‘proximately caused’ by
the specific breach. Or, to put it another way, the breaching party is only liable
to place the nonbreaching party in the same position as if the specific breach
had not occurred. Or, to phrase it still a third way, the breaching party is only
responsible to give the nonbreaching party the benefit of the bargain to the
extent the specific breach deprived that party of its bargain.” (Postal Instant
Press v. Sealy (1996) 43 Cal.App.4th 1704, 1709 [51 Cal.Rptr.2d 365], internal
citations omitted.)
• “[D]amages for mental suffering and emotional distress are generally not
recoverable in an action for breach of an ordinary commercial contract in
California.” (Erlich, supra, 21 Cal.4th 543 at p. 558, internal citations omitted.)
• “Cases permitting recovery for emotional distress typically involve mental
anguish stemming from more personal undertakings the traumatic results of
which were unavoidable. Thus, when the express object of the contract is the
mental and emotional well-being of one of the contracting parties, the breach of
the contract may give rise to damages for mental suffering or emotional
distress.” (Erlich, supra, 21 Cal.4th at p. 559, internal citations omitted.)
• “The right to recover damages for emotional distress for breach of mortuary and
crematorium contracts has been well established in California for many years.”
(Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 803 [7 Cal.Rptr.2d 82],
Secondary Sources
California Breach of Contract Remedies (Cont.Ed.Bar 1980; 2001 supp.) Recovery
of Money Damages, §§ 4.1–4.9
13 California Forms of Pleading and Practice, Ch. 140, Contracts,
§§ 140.55–140.56, 140.100–140.106 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.70 et seq.
(Matthew Bender)
Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.20 et seq.
(Matthew Bender)
Opposing Damages in Contract Actions, 7.03 et seq.
160

[Name of plaintiff] [also] claims damages for [identify special damages].

To recover for this harm, [name of plaintiff] must prove that when the
parties made the contract, [name of defendant] knew or reasonably
should have known of the special circumstances leading to the harm.
New September 2003

Directions for Use
Before giving this instruction, the judge should determine whether a particular item
of damage qualifies as “special.”
• Measure of Contract Damages. Civil Code section 3300.
• “ ‘Unlike general damages, special damages are those losses that do not arise
directly and inevitably from any similar breach of any similar agreement.
Instead, they are secondary or derivative losses arising from circumstances that
are particular to the contract or to the parties. Special damages are recoverable
if the special or particular circumstances from which they arise were actually
communicated to or known by the breaching party (a subjective test) or were
matters of which the breaching party should have been aware at the time of
contracting (an objective test). [Citations.] Special damages “will not be
presumed from the mere breach” but represent loss that ‘occurred by reason of
injuries following from’ the breach.’ ” (Schellinger Brothers v. Cotter (2016) 2
• “Special damages must fall within the rule of Hadley v. Baxendale, . . . that is,
they must reasonably be supposed to have been contemplated or foreseeable by
the parties when making the contract as the probable result of a breach.”
(Sabraw v. Kaplan (1962) 211 Cal.App.2d 224, 227 [27 Cal.Rptr. 81], internal
citations omitted.)
• “Parties may voluntarily assume the risk of liability for unusual losses, but to
do so they must be told, at the time the contract is made, of any special harm
likely to result from a breach [citations]. Alternatively, the nature of the contract
or the circumstances in which it is made may compel the inference that the
defendant should have contemplated the fact that such a loss would be ‘the
probable result’ of the defendant’s breach. [Citation.] Not recoverable as special
damages are those ‘beyond the expectations of the parties.’ [Citation.] Special
damages for breach of contract are limited to losses that were either actually
foreseen [citation] or were ‘reasonably foreseeable’ when the contract was
formed.” (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258,
1269–1270 [168 Cal.Rptr.3d 499].)
161

• “When reference is made to the terms of the contract alone, there is ordinarily
little difficulty in determining what damages arise from its breach in the usual
course of things, and the parties will be presumed to have contemplated such
damages only. But where it is claimed the circumstances show that a special
purpose was intended to be accomplished by one of the parties (a failure to
accomplish which by means of the contract would cause him greater damage
than would ordinarily follow from a breach by the other party), and such
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
• “ ‘[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
162


15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.13
(Matthew Bender)
(Matthew Bender)
Opposing Damages in Contract Actions, 7.04[6], 7.08[3]
163

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.
New September 2003

Directions for Use
This instruction applies to both past and future lost profit claims. Read this
instruction in conjunction with CACI No. 350, Introduction to Contract Damages,
or CACI No. 351, Special Damages.
Insertion of specified types of costs to be deducted from gross earnings is optional,
depending on the facts of the case. Other types of costs may be inserted as
appropriate.
• “Lost profits may be recoverable as damages for breach of a contract. ‘[T]he
general principle [is] that damages for the loss of prospective profits are
recoverable where the evidence makes reasonably certain their occurrence and
extent.’ Such damages must ‘be proven to be certain both as to their occurrence
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
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,
164


• “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
• “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, Ltd., supra,
35 Cal.App.4th at p. 1700, internal citations omitted.)
• “It is the generally accepted rule, in order to recover damages projected into the
future, that a plaintiff must show with reasonable certainty that detriment from
the breach of contract will accrue to him in the future. Damages which are
remote, contingent, or merely possible cannot serve as a legal basis for
recovery.” (California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175
Secondary Sources
165


(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages, § 65.21 (Matthew Bender)
Opposing Damages in Contract Actions, 7.12
166

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.
computing the loss.
New September 2003

Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages, or CACI No. 351, Special Damages.
Insertion of specified types of costs to be deducted from gross earnings is optional,
depending on the facts of the case. Other types of costs may be inserted as
appropriate.
• “Lost profits may be recoverable as damages for breach of a contract. ‘[T]he
general principle [is] that damages for the loss of prospective profits are
recoverable where the evidence makes reasonably certain their occurrence and
extent.’ Such damages must ‘be proven to be certain both as to their occurrence
167

and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
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,
• “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
• “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,
168

Ltd., supra, 35 Cal.App.4th at p. 1700, internal citations omitted.)

• “It is the generally accepted rule, in order to recover damages projected into the
future, that a plaintiff must show with reasonable certainty that detriment from
the breach of contract will accrue to him in the future. Damages which are
remote, contingent, or merely possible cannot serve as a legal basis for
recovery.” (California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175
Secondary Sources
(Matthew Bender)
169

354. Owner’s/Lessee’s Damages for Breach of Contract to

Construct Improvements on Real Property
To recover damages for breach of a contract to construct improvements

on real property, [name of plaintiff] must prove:
[[The reasonable cost to [name of plaintiff] of completing the work;]
[And the value of loss of use of the property;]
[And the reasonable cost of alternative housing from the date the
work was to have been completed until the date the work was
completed;]
[Less any amounts unpaid under the contract with [name of
defendant];]]
[or]
[The difference between the fair market value of the [lessee’s
interest in the] property and its fair market value had the
improvements been constructed.]
New September 2003

Directions for Use
Damages. The bracketed options state alternative measures of damage. Choose the
option appropriate to the facts of the case. For a definition of “fair market value,”
see CACI No. 3501, “Fair Market Value” Explained.
• “The proper measure of damages for breach of a contract to construct
improvements on real property where the work is to be done on plaintiff’s
property is ordinarily the reasonable cost to the plaintiff of completing the work
and not the difference between the value of the property and its value had the
improvements been constructed. A different rule applies, however, where
improvements are to be made on property not owned by the injured party. ‘In
that event the injured party is unable to complete the work himself and, subject
to the restrictions of sections 3300 and 3359 of the Civil Code, the proper
measure of damages is the difference in value of the property with and without
the promised performance, since that is the contractual benefit of which the
injured party is deprived.’ ” (Glendale Fed. Sav. & Loan Assn. v. Marina View
Heights Dev. Co., (1977) 66 Cal.App.3d 101, 123–124 [135 Cal.Rptr. 802],
• “If the work were to be done on plaintiffs’ property the proper measure of
170

damages would ordinarily be the reasonable cost to plaintiffs of completing the

work. A different rule applies, however, when the improvements are to be made
on property that is not owned by the injured party.” (Coughlin v. Blair (1953)
41 Cal.2d 587, 600 [262 P.2d 305], internal citations omitted.)
• “It is settled . . . that the measure of damages for the breach of a building
construction contract is ordinarily such sum as is required to make the building
conform to the contract. In such situations, the diminution of value rule cannot
be invoked and the measure of damages is not the difference between the actual
value of the property and its value had it been constructed in accordance with
the plans and specifications.” (Kitchel v. Acree (1963) 216 Cal.App.2d 119, 123
• “The available damages for defective construction are limited to the cost of
repairing the home, including lost use or relocation expenses, or the diminution
in value.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 561 [87 Cal.Rptr.2d 886,
• “Where the measure of damages turns on the value of property, whether
liability sounds in tort or breach of contract, the normal standard is market
value. The definition of market value and the principles governing its
ascertainment are the same as those applicable to the valuation of property in
eminent domain proceedings and in ad valorem taxation of property. In
Sacramento etc. R. R. Co. v. Heilbron, market value was defined as ‘the highest
price estimated in terms of money which the land would bring if exposed for
sale in the open market, with reasonable time allowed in which to find a
purchaser, buying with knowledge of all of the uses and purposes to which it
was adapted and for which it was capable.’ That classic exposition with
subsequent refinements has always been the accepted definition of market value
in California.” (Glendale Federal Savings & Loan Assn., supra, 66 Cal.App.3d
at pp. 141–142, internal citations and footnote omitted.)
Secondary Sources
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.100 (Matthew
Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts And Subcontracts,
§ 30D.223 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 10, Seeking
or Opposing Statutory Remedies in Contract Actions, 10.05
171

To recover damages for the breach of a contract to pay money, [name of

plaintiff] must prove the amount due under the contract.
New September 2003

Directions for Use
Damages. If there is a dispute as to the appropriate rate of interest, the jury should
be instructed to determine the rate. Otherwise, the judge should calculate the
interest and add the appropriate amount of interest to the verdict.
• Damages for Breach of Obligation to Pay Money. Civil Code section 3302.
• Interest on Contract Damages. Civil Code section 3289.
• “The section is part of the original Civil Code and was intended to codify a
common-law rule of damages for breach of a contract to pay a liquidated sum.
In Siminoff v. Jas. H. Goodman & Co. Bank, the court after careful and
extensive analysis concluded that section 3302 was not intended to abolish the
common-law measure of damages for dishonor of a check. Hartford, in
reaching the opposite conclusion, failed even to note the common-law rule or
the California cases which had followed it, and did not discuss the strong
arguments in its favor advanced in the Siminoff opinion. The Hartford holding
on section 3302 no longer applies to the instant problem since section 3320
clearly constitutes ‘a legislative recognition that a depositor whose check is
wrongfully dishonored may thereby sustain “actual damage” beyond the amount
of the check’ and thus supersedes the Hartford holding on the measure of
damages.” (Weaver v. Bank of America National Trust & Savings Assn. (1963)
59 Cal.2d 428, 436, fn. 11 [30 Cal.Rptr. 4, 380 P.2d 644], internal citations
omitted.)
Secondary Sources
Opposing Damages in Contract Actions, 7.04[7][a]
172

356. Buyer’s Damages for Breach of Contract for Sale of Real

Property (Civ. Code, § 3306)
To recover damages for the breach of a contract to sell real property,

[name of plaintiff] must prove:
1. The difference between the fair market value of the property on
the date of the breach and the contract price;
2. The amount of any payment made by [name of plaintiff] toward
the purchase;
3. The amount of any reasonable expenses for examining title and
preparing documents for the sale;
4. The amount of any reasonable expenses in preparing to occupy
the property; and
5. [Insert item(s) of claimed consequential damages].
New September 2003

Directions for Use
Damages. If the appropriate rate of interest is in dispute, the jury should be
instructed to determine the rate. Otherwise, the judge should calculate the interest
and add the appropriate amount of interest to the verdict.
For a definition of “fair market value,” see CACI No. 3501, “Fair Market Value”
Explained.
• Damages for Breach of Contract to Convey Real Property. Civil Code section
3306.
• Interest on Contract Damages. Civil Code section 3289
• “ ‘The rules of damages for a breach of a contract to sell or buy real property
are special and unique. To the extent that the measure of compensatory damages
available to a buyer or seller of real property for a breach of a contract are
different from the general measure of compensatory damages for a breach of
contract, the special provisions for damages for a breach of a real property sales
contract prevail.’ ” (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739,
751 [118 Cal.Rptr.3d 531].)
• “A simple reading of the statute discloses that by its explicit terms it is
adaptable only to a failure to convey, and not to a delay in conveying.”
(Christensen v. Slawter (1959) 173 Cal.App.2d 325, 330 [343 P.2d 341].)
• “This court itself has recently described section 3306 as providing for ‘loss-of-
173

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
• “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
• 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,
• “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
174

double recovery for plaintiff.” (Stevens Group Fund IV, supra, 1 Cal.App.4th at
p. 892.)
• “[T]he phrase ‘to enter upon the land’ refers to the taking of possession rather
than the use of the property.” (Schellinger Brothers v. Cotter (2016) 2
• “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
Secondary Sources
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,
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
Opposing Damages in Contract Actions, 7.04[7][f]
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
175

357. Seller’s Damages for Breach of Contract to Purchase Real

Property
To recover damages for the breach of a contract to buy real property,

[name of plaintiff] must prove:
1. The difference between the amount that was due to [name of
plaintiff] under the contract and the fair market value of the
property at the time of the breach; [and]
2. [Insert item(s) of claimed consequential damages, e.g., resale
expenses].
New September 2003

Directions for Use
Damages. If there is a dispute regarding the appropriate rate of interest, the jury
should be instructed to determine the rate. Otherwise, the judge should calculate the
interest and add the appropriate amount of interest to the verdict.
For a definition of “fair market value,” see CACI No. 3501, “Fair Market Value”
Explained.
• Damages for Breach of Contract to Purchase Real Property. Civil Code section
3307.
• “It is generally accepted that the equivalent of value to the seller is fair market
value. Fair market value is reckoned ‘in terms of money.’ ” (Abrams v. Motter
(1970) 3 Cal.App.3d 828, 840–841 [83 Cal.Rptr. 855], internal citations
omitted.)
• “The “value of the property” to [plaintiff] is to be determined as of the date of
the breach of the agreement by [defendant].” (Allen v. Enomoto (1964) 228
Cal.App.2d 798, 803 [39 Cal.Rptr. 815], internal citation omitted.)
• There can be no damages where the value to the owner equals or exceeds the
contract price. (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 792 [62 Cal.Rptr.
• “[T]he view that this section is exclusive, and precludes other consequential
damages occasioned by the breach, was rejected in Royer v. Carter. Under Civil
Code, section 3300, other damages are recoverable, usually embracing the out-
of-pocket expenses lost by failure of the transaction.” (Wade v. Lake County
Title Co. (1970) 6 Cal.App.3d 824, 830 [86 Cal.Rptr. 182], internal citation
omitted.)
• “[C]ourts have permitted consequential damages, only where the seller has
176

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],
• “[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,
• “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
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),
177

11-C, § C., Seller’s Remedies Upon Buyer’s Breach—Damages and Specific

Performance
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
Opposing Damages in Contract Actions, 7.04[7][f]
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
178

If [name of defendant] breached the contract and the breach caused

harm, [name of plaintiff] is not entitled to recover damages for harm
that [name of defendant] proves [name of plaintiff] could have avoided
with reasonable efforts or expenditures. You should consider the
reasonableness of [name of plaintiff]’s efforts in light of the
circumstances facing [him/her/it] at the time, including [his/her/its]
ability to make the efforts or expenditures without undue risk or
hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/it] spent for this
purpose.
New September 2003

• “ ‘ “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of . . . a breach of contract . . . has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.” ’ Under the doctrine, ‘[a]
plaintiff may not recover for damages avoidable through ordinary care and
reasonable exertion.’ However, ‘[t]he duty to mitigate damages does not require
an injured party to do what is unreasonable or impracticable.’ ” (Agam v. Gavra
omitted.)
• ‘The rule of mitigation of damages has no application where its effect would be
to require the innocent party to sacrifice and surrender important and valuable
rights.” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32
Cal.Rptr.2d 329].)
• “Whether a plaintiff acted reasonably to mitigate damages . . . is a factual
matter to be determined by the trier of fact . . . .” (Agam, supra, 236
• “A plaintiff who suffers damage as a result of either a breach of contract or a
tort has a duty to take reasonable steps to mitigate those damages and will not
be able to recover for any losses which could have been thus avoided.” (Shaffer
v. Debbas (1993) 17 Cal.App.4th 33, 41 [21 Cal.Rptr.2d 110], internal citation
omitted.)
• “A party injured by a breach of contract is required to do everything reasonably
possible to negate his own loss and thus reduce the damages for which the
other party has become liable. The plaintiff cannot recover for harm he could
have foreseen and avoided by such reasonable efforts and without undue
179

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
• “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
(Matthew Bender)
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
180

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.]
New September 2003; Revised December 2010, June 2013

Directions for Use
Give this instruction if future damages are sought and there is evidence from which
a reduction to present value can be made. Give the next-to-last sentence if there
has been expert testimony on reduction to present value. Unless there is a
stipulation, expert testimony will usually be required to accurately establish present
values for future losses. Give the last sentence if there has been a stipulation as to
the interest rate to use or any other facts related to present cash value.
It would appear that because reduction to present value benefits the defendant, the
defendant bears the burden of proof on the discount rate. (See Wilson v. Gilbert
(1972) 25 Cal.App.3d 607, 613–614 [102 Cal.Rptr. 31] [no error to refuse
instruction on reduction to present value when defendant presented no evidence].)
Present-value tables may assist the jury in making its determination of present cash
value. Tables, worksheets, and an instruction on how to use them are provided in
CACI No. 3904B, Use of Present-Value Tables.
• Future Damages. Civil Code section 3283.
• “In an action for damages for such a breach, the plaintiff in that one action
recovers all his damages, past and prospective. A judgment for the plaintiff in
such an action absolves the defendant from any duty, continuing or otherwise,
to perform the contract. The judgment for damages is substituted for the
wrongdoer’s duty to perform the contract.” (Coughlin v. Blair (1953) 41 Cal.2d
587, 598 [262 P.2d 305], internal citations omitted.)
181

• “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.
Secondary Sources
(Matthew Bender)
Opposing Damages in Contract Actions, 7.09[3]
182

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.
New September 2003

• Nominal Damages. Civil Code section 3360.
• “A plaintiff is entitled to recover nominal damages for the breach of a contract,
despite inability to show that actual damage was inflicted upon him, since the
defendant’s failure to perform a contractual duty is, in itself, a legal wrong that
is fully distinct from the actual damages. The maxim that the law will not be
concerned with trifles does not, ordinarily, apply to violation of a contractual
right. Accordingly, nominal damages, which are presumed as a matter of law to
stem merely from the breach of a contract may properly be awarded for the
violation of such a right. And, by statute, such is also the rule in California.”
(Sweet v. Johnson (1959) 169 Cal.App.2d 630, 632–633 [337 P.2d 499], internal
citations omitted.)
• “With one exception . . . an unbroken line of cases holds that nominal damages
are limited to an amount of a few cents or a dollar.” (Avina v. Spurlock (1972)
28 Cal.App.3d 1086, 1089 [105 Cal.Rptr. 198], internal citations omitted.)
Secondary Sources
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.14,
Opposing Damages in Contract Actions, 7.04[11]
183

If you decide that [name of defendant] breached the contract, [name of

plaintiff] may recover the reasonable amount of money that [he/she/it]
spent in preparing for contract performance. These amounts are called
“reliance damages.” [Name of plaintiff] must prove the amount that [he/
she/it] was induced to spend in reliance on the contract.
If [name of plaintiff] proves reliance damages, [name of defendant] may
avoid paying [some/ [or] all] of those damages by proving [include one
or both of the following]:
[1. That [some/ [or] all] of the money that [name of plaintiff] spent in
reliance was unnecessary;]
[1. [or]
[2. That [name of plaintiff] would have suffered a loss even if [name
of defendant] had fully performed [his/her/its] obligations under
the contract].
New December 2015

• “One proper ‘measure of damages for breach of contract is the amount
expended [by the nonbreaching party] on the faith of the contract.’ ” (Agam v.
Gavra (2015) 236 Cal.App.4th 91, 105 [186 Cal.Rptr.3d 295].)
• “Where, without fault on his part, one party to a contract who is willing to
perform it is prevented from doing so by the other party, the primary measure
of damages is the amount of his loss, which may consist of his reasonable
outlay or expenditure toward performance, and the anticipated profits which he
would have derived from performance.” (Buxbom v. Smith (1944) 23 Cal.2d
535, 541 [145 P.2d 305].)
• “This measure of damages often is referred to as ‘reliance damages.’ It has been
held to apply where, as here, ‘one party to an established business association
fails and refuses to carry out the terms of the agreement, and thereby deprives
the other party of the opportunity to make good in the business . . . .’ ” (Agam,
supra, 236 Cal.App.4th at p. 105, internal citations omitted.)
• “The lost earnings found by the jury constituted harm flowing not from the
breach of any contract but from plaintiff’s entry into the contract in the
expectation of receiving the promised options. Such ‘reliance’ damages may
sometimes be recovered on a contract claim ‘[a]s an alternative’ to expectation
damages.” (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775,
788 [211 Cal.Rptr.3d 743], original italics.)
• “[I]n the context of reliance damages, the plaintiff bears the burden to establish
184

the amount he or she expended in reliance on the contract. The burden then
shifts to the defendant to show (1) the amount of plaintiff’s expenses that were
unnecessary and/or (2) how much the plaintiff would have lost had the
defendant fully performed (i.e., absent the breach). The plaintiff’s recovery must
be reduced by those amounts.” (Agam, supra, 236 Cal.App.4th at p. 107,
• “Concerning reliance damages, Restatement [Second of Contracts] section 349
provides as follows: ‘As an alternative to the measure of damages stated in
[Restatement section] 347, the injured party has a right to damages based on his
reliance interest, including expenditures made in preparation for performance or
in performance, less any loss that the party in breach can prove with
reasonable certainty the injured party would have suffered had the contract
been performed.’ ” (US Ecology, Inc. v. State of California (2005) 129
Cal.App.4th 887, 907 [28 Cal.Rptr.3d 894], original italics.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2010) Contracts, § 869 et seq.
(Matthew Bender)
(Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
185

[Name of plaintiff] claims that [name of defendant] owes [him/her/it]

money. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] received money that was intended to be
used for the benefit of [name of plaintiff];
2. That the money was not used for the benefit of [name of
plaintiff]; and
3. That [name of defendant] has not given the money to [name of
plaintiff].
New June 2005

Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of their case.
• “ ‘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.)
• “ ‘A cause of action for money had and received is stated if it is alleged [that]
the defendant “is indebted to the plaintiff in a certain sum ‘for money had and
received by the defendant for the use of the plaintiff.’ ” . . .’ The claim is
viable ‘ “wherever one person has received money which belongs to another,
and which in equity and good conscience should be paid over to the latter.” ’ As
juries are instructed in CACI No. 370, the plaintiff must prove that the
186

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)
• “ ‘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
• “ ‘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
• “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
omitted.)
187

• “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
• “The cause of action [for money had and received] is available where, as here,
the plaintiff has paid money to the defendant pursuant to a contract which is
void for illegality.” (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 [33
• “ ‘It is well established in our practice that an action for money had and
received will lie to recover money paid by mistake, under duress, oppression or
where an undue advantage was taken of plaintiffs’ situation whereby money was
exacted to which the defendant had no legal right.’ ” (J.C. Peacock, Inc. v.
Hasko (1961) 196 Cal.App.2d 353, 361 [16 Cal.Rptr. 518], internal citations
omitted.)
Secondary Sources
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.24[1], 121.51 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.25 (Matthew Bender)
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
188


money for [goods delivered/services rendered]. To establish this claim,
1. That [name of defendant] requested, by words or conduct, that
[name of plaintiff] [perform services/deliver goods] for the benefit
of [name of defendant];
2. That [name of plaintiff] [performed the services/delivered the
goods] as requested;
3. That [name of defendant] has not paid [name of plaintiff] for the
[services/goods]; and
4. The reasonable value of the [goods/services] that were provided.
New June 2005

“ ‘ “Quantum meruit refers to the well-established principle that ‘the law implies
a promise to pay for services performed under circumstances disclosing that they
were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a
party need not prove the existence of a contract [citations], but it must show the
circumstances were such that ‘the services were rendered under some
understanding or expectation of both parties that compensation therefor was to
be made.’ ” [Citation.]’ ‘The underlying idea behind quantum meruit is the law’s
distaste for unjust enrichment. If one has received a benefit which one may not
justly retain, one should “restore the aggrieved party to his [or her] former
position by return of the thing or its equivalent in money.” [Citation.]’ “ ‘The
measure of recovery in quantum meruit is the reasonable value of the services
rendered provided they were of direct benefit to the defendant.” [Citations.]’ In
other words, quantum meruit is equitable payment for services already
rendered.” (E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th
1123, 1127–1128 [172 Cal.Rptr.3d 778], original italics, internal citations
omitted.)
189

• “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],
• “[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
omitted.)
omitted.)
190

Secondary Sources
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.25, 121.55–121.58 (Matthew Bender)
Particulars, §§ 44.33, 44.40 (Matthew Bender)
9.02, 9.15, 9.32
191


money on an open book account. To establish this claim, [name of
1. That [name of plaintiff] and [name of defendant] had (a) financial
transaction(s);
2. That [name of plaintiff] kept an account of the debits and credits
involved in the transaction(s);
3. That [name of defendant] owes [name of plaintiff] money on the
account; and
4. The amount of money that [name of defendant] owes [name of
plaintiff].
New December 2005

Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of the case.
• “ ‘A book account may be deemed to furnish the foundation for a suit in
assumpsit . . . only 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.’ . . . ‘The term
“account,” . . . clearly requires the recording of sufficient information regarding
the transaction involved in the suit, from which the debits and credits of the
respective parties may be determined, so as to permit the striking of a balance
to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955)
132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
• “A book account is defined . . . as ‘a detailed statement, kept in a book, in the
nature of debit and credit, arising out of contract or some fiduciary relation.’ It
is, of course, necessary for the book to show against whom the charges are
made. It must also be made to appear in whose favor the charges run. This may
be shown by the production of the book from the possession of the plaintiff and
his identification of it as the book in which he kept the account between him
and the debtor. An open book account may consist of a single entry reflecting
the establishment of an account between the parties, and may contain charges
alone if there are no credits to enter. Money loaned is the proper subject of an
open book account. Of course a mere private memorandum does not constitute
192

a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d
• “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].)
without specifying the nature of the claim. . . . . Because of the uninformative
justice and right, should be returned . . . . The plaintiff’s right to recover is
omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
193

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
omitted.)
Secondary Sources
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.20, 8.47 (Matthew Bender)
Particulars, § 43.28 (Matthew Bender)
9.02, 9.15, 9.32
194


money on an account stated. To establish this claim, [name of plaintiff]
1. That [name of defendant] owed [name of plaintiff] money from
previous financial transactions;
2. That [name of plaintiff] and [name of defendant], by words or
conduct, agreed that the amount stated in the account was the
correct amount owed to [name of plaintiff];
3. That [name of defendant], by words or conduct, promised to pay
the stated amount to [name of plaintiff];
4. That [name of defendant] has not paid [name of plaintiff] [any/all]
of the amount owed under this account; and
5. The amount of money [name of defendant] owes [name of plaintiff].
New December 2005

• “The essential elements of an account stated are: (1) previous transactions
between the parties establishing the relationship of debtor and creditor; (2) an
agreement between the parties, express or implied, on the amount due from the
debtor to the creditor; (3) a promise by the debtor, express or implied, to pay
the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600
• “The agreement of the parties necessary to establish an account stated need not
be express and frequently is implied from the circumstances. In the usual
situation, it comes about by the creditor rendering a statement of the account to
the debtor. If the debtor fails to object to the statement within a reasonable
time, the law implies his agreement that the account is correct as rendered.”
(Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)
• “An account stated is an agreement, based on the prior transactions between the
parties, that the items of the account are true and that the balance struck is due
and owing from one party to another. When the account is assented to, ‘ “it
becomes a new contract. An action on it is not founded upon the original items,
but upon the balance agreed to by the parties. . . .” Inquiry may not be had
into those matters at all. It is upon the new contract by and under which the
parties have adjusted their differences and reached an agreement.’ ” (Gleason v.
Klamer (1980) 103 Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal
citations omitted.)
195

• “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
• “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
• “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.)
196


omitted.)
Secondary Sources
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender)
9.02, 9.15, 9.32
197


money [that was paid/for goods that were received] by mistake. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [paid [name of defendant] money/sent
goods to [name of defendant]] by mistake;
2. That [name of defendant] did not have a right to [that money/the
goods];
3. That [name of plaintiff] has asked [name of defendant] to return
the [money/goods];
4. That [name of defendant] has not returned the [money/goods] to
[name of plaintiff]; and
5. The amount of money that [name of defendant] owes [name of
plaintiff].
New December 2005

• “It is well settled that no contract is necessary to support an action for money
had and received other than the implied contract which results by operation of
law where one person receives the money of another which he has no right,
conscientiously, to retain. Under such circumstances the law will imply a
promise to return the money. The action is in the nature of an equitable one and
is based on the fact that the defendant has money which, in equity and good
conscience, he ought to pay to the plaintiffs. Such an action will lie where the
money is paid under a void agreement, where it is obtained by fraud or where it
was paid by a mistake of fact.” (Stratton v. Hanning (1956) 139 Cal.App.2d
• Restatement First of Restitution, section 28, provides:
A person who has paid money to another because of a mistake of fact and who
198

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],
omitted.)
omitted.)
199


Secondary Sources
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, § 121.25
(Matthew Bender)
9.02, 9.15, 9.32
200

380. Agreement Formalized by Electronic Means—Uniform

Electronic Transactions Act (Civ. Code, § 1633.1 et seq.)
[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.]
New December 2012; Revised December 2016

Directions for Use
This instruction is for use if the plaintiff is relying on the Uniform Electronic
Transactions Act (UETA, Civ. Code, § 1633.1 et seq.) to prove contract formation.
If there are other contested issues as to whether a contract was formed, also give
CACI No. 303, Breach of Contract—Essential Factual Elements.
The first paragraph asserts that electronic means were used to supply some or all of
the essential elements of the contract. Give the third paragraph if a law requires a
person to provide, send, or deliver information in writing to another person. (See
Civ. Code, § 1633.8(a).)
The most likely jury issue is whether the parties agreed to rely on electronic
records to finalize their agreement. Whether the parties agree to conduct a
transaction by electronic means is determined from the context and surrounding
circumstances, including the parties’ conduct. (See Civ. Code, § 1633.5(b).)
The UETA does not specify any particular transmissions that meet the definition of
“electronic record,” such as e-mail or fax. (See Civ. Code, § 1633.2(g).)
Nevertheless, there would seem to be little doubt that e-mail and fax meet the
definition. The parties will probably stipulate accordingly, or the court may find
that the particular transmission at issue meets the definition as a matter of law.
If a law requires a signature, an electronic signature satisfies the law. (Civ. Code,
§ 1633.7(d).) The UETA defines an electronic signature as an electronic sound,
symbol, or process attached to or logically associated with an electronic record and
201

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.
• “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
• “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
• “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
202

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
or Defending Existence of Contract—Failure to Comply With Applicable
Formalities, 15.32
(Matthew Bender)
27 California Legal Forms: Transaction Guide, Ch. 75, Formation of Contracts and
203

We answer the questions submitted to us as follows:

1. Did [name of plaintiff] and [name of defendant] enter into a
contract?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
[2. Did [name of plaintiff] do all, or substantially all, of the
significant things that the contract required [him/her/it] to do?
[2. Yes No
[2. If your answer to question 2 is yes, [skip question 3 and] answer
question 4. If you answered no, [answer question 3 if excuse is at
issue/stop here, answer no further questions, and have the
presiding juror sign and date this form].]
[3. Was [name of plaintiff] excused from having to do all, or
substantially all, of the significant things that the contract
required [him/her/it] to do?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If
have the presiding juror sign and date this form.]
[4. Did all the conditions that were required for [name of
defendant]’s performance occur?
[4. Yes No
question 6. If you answered no, [answer question 5 if waiver or
excuse is at issue/stop here, answer no further questions, and
have the presiding juror sign and date this form].]
[5. Were the required conditions that did not occur
[excused/waived]?
[5. Yes No
204

CONTRACTS VF-300
6. [Did [name of defendant] fail to do something that the contract

6. Yes No]
6. [or]
6. [Did [name of defendant] do something that the contract
prohibited [him/her/it] from doing?
6. Yes No]
6. If your answer to [either option for] question 6 is yes, then
answer question 7. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
7. Was [name of plaintiff] harmed by [name of defendant]’s breach of
contract?
7. Yes No
8. What are [name of plaintiff]’s damages?
[a. Past [economic] loss [including [insert
descriptions of claimed damages]]: $ ]
[b. Future [economic] loss [including [insert
descriptions of claimed damages]]: $ ]
[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.
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.
205

VF-300 CONTRACTS
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
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.
206

VF-301. Breach of Contract—Affirmative Defense—Unilateral

Mistake of Fact

1. Was [name of defendant] mistaken about [insert description of
mistake]?
1. Yes No
2. Did [name of plaintiff] know that [name of defendant] was
mistaken and use that mistake to take advantage of [him/her/it]?
2. Yes No
3. Was [name of defendant]’s mistake caused by [his/her/its]
excessive carelessness?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If
you answered yes, stop here, answer no further questions, and
4. Would [name of defendant] have agreed to enter into the contract
if [he/she/it] had known about the mistake?
4. Yes No
Signed:
Presiding Juror
Dated:
New April 2004; Revised December 2010

Directions for Use
207

VF-301 CONTRACTS
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.
208


1. Did [name of plaintiff] use a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract?
1. Yes No
2. Was [name of defendant] so afraid or intimidated by the wrongful
act or wrongful threat that [he/she] did not have the free will to
refuse to consent to the contract?
2. Yes No
3. Would [name of defendant] have consented to the contract
without the wrongful act or wrongful threat?
3. Yes No
Signed:
Presiding Juror
Dated:

Directions for Use
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. 332, Affırmative Defense—Duress. 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.
209

VF-302 CONTRACTS
210


1. Were the contract terms clear enough so that the parties could
understand what each was required to do?
1. Yes No
2. Did the parties agree to give each other something of value?
2. Yes No
3. Did the parties agree to the terms of the contract?
3. Yes No
[4. Did [name of plaintiff] do all, or substantially all, of the
[4. Yes No
presiding juror sign and date the form].]
[5. Yes No
[6. Yes No
211

VF-303 CONTRACTS

question 8. If you answered no, [answer question 7 if excuse_or
waiver is at issue/stop here, answer no further questions, and
[excused/waived]?
[7. Yes No
8. [Did [name of defendant] fail to do something that the contract
8. Yes No]
8. [or]
8. [Did [name of defendant] do something that the contract
prohibited [him/her/it] from doing?
8. Yes No]
9. Was [name of plaintiff] harmed by [name of defendant]’s breach of
contract?
9. Yes No
[a. Past [economic] loss [including] [insert descriptions of claimed
damages]:
[a. $ ]
[b. Future [economic] loss [including] [insert descriptions of
claimed damages]:]
[b. $ ]
[b. TOTAL $
212

CONTRACTS VF-303
Signed:
Presiding Juror
Dated:
New October 2004; Revised December 2010, June 2015

Directions for Use
This verdict form is based on CACI No. 302, Contract Formation—Essential
Factual Elements, and CACI No. 303, Breach of Contract—Essential Factual
Elements. The elements concerning the parties’ legal capacity and legal purpose
will likely not be issues for the jury. If the jury is needed to make a factual
determination regarding these issues, appropriate questions may be added to this
verdict form.
Note that questions 6 and 7 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 8. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an
additional question on excuse on waiver should be included after question 8.
If specificity is not required, users do not have to itemize all the damages listed in
213

VF-303 CONTRACTS

214

VF-304. Breach of Implied Covenant of Good Faith and Fair

Dealing

1. Did [name of plaintiff] and [name of defendant] enter into a
contract?
1. Yes No
[2. [Did [name of plaintiff] do all, or substantially all, of the
[2. Yes No]
presiding juror sign and date this form].]
[3. Yes No
[4. Yes No
question 6. If you answered no, [answer question 5 if waiver or
excuse is at issue/stop here, answer no further questions, and
have the presiding juror sign and date this form].]
[excused/waived]?
[5. Yes No
215

VF-304 CONTRACTS
6. Did [name of defendant] unfairly interfere with [name of

plaintiff]’s right to receive the benefits of the contract?
6. Yes No
7. Was [name of plaintiff] harmed by [name of defendant]’s
interference?
7. Yes No
[a. Past [economic] loss [including [insert
descriptions of claimed damages]]:
$ ]
[b. Future [economic] loss [including [insert
descriptions of claimed damages]]:
$ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
New June 2014; Revised June 2015

Directions for Use
This verdict form is based on CACI No. 325, Breach of Implied Covenant of Good
Faith and Fair Dealing—Essential Factual Elements.
The special verdict forms in this series are intended only as models. They may
216

CONTRACTS VF-304
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 specificity is not required, users do not have to itemize the damages listed in
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].)
217


NEGLIGENCE

404. Intoxication
420. Negligence per se: Rebuttal of the Presumption of Negligence (Violation
Excused)
421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of
Minor Excused)
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. &
Prof. Code, § 25602.1)
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as
Superseding Cause
219

NEGLIGENCE

440. Unreasonable Force by Law Enforcement Officer in Arrest or Other
Seizure─Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual
Elements
470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in
Sport or Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors,
Trainers, or Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners
and Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation
Involving Inherent Risk
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of
Others Not at Issue
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or
Coaches
220

NEGLIGENCE
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-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation
Would Not Have Disclosed Pertinent Facts
221

[Name of plaintiff] claims that [he/she] was harmed by [name of

defendant]’s negligence. To establish this claim, [name of plaintiff] must
1. That [name of defendant] was negligent;
3. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised February 2005, 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.
• 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].)
• “The first element, duty, ‘may be imposed by law, be assumed by the defendant,
or exist by virtue of a special relationship.’ ” (Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].)
• “[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
222

NEGLIGENCE CACI No. 400
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
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,
• “[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
223

CACI No. 400 NEGLIGENCE
conduct.” (Laabs v. Southern California Edison Company (2009) 175

• “[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
of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227
• “ ‘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.)
• “A special relationship exists when ‘the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some control over the
plaintiff’s welfare. [Citation.]’ . . . ‘Generally, a greater degree of care is owed
to children because of their lack of capacity to appreciate risks and avoid
danger. [Citation.] Consequently, California courts have frequently recognized
special relationships between children and their adult caregivers that give rise to
a duty to prevent harms caused by the intentional or criminal conduct of third
parties.’ ” (Doe, supra, 8 Cal.App.5th at p. 1129, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 956–964, 988–990,
993–996
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.4–1.18
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.02, 1.12,
Ch. 2, Causation, § 2.02, Ch. 3, Proof of Negligence, § 3.01 (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)
224

Negligence is the failure to use reasonable care to prevent harm to

oneself or to others.
A person can be negligent by acting or by failing to act. A person is
negligent if he or she does something that a reasonably careful person
would not do in the same situation or fails to do something that a
reasonably careful person would do in the same situation.
You must decide how a reasonably careful person would have acted in
[name of plaintiff/defendant]’s situation.
New September 2003

• “The formulation of the standard of care is a question of law for the court.
Once the court has formulated the standard, its application to the facts of the
case is a task for the trier of fact if reasonable minds might differ as to whether
a party’s conduct has conformed to the standard.” (Ramirez v. Plough, Inc
(1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167], internal citations
omitted.)
• Restatement Second of Torts, section 282, defines negligence as “conduct which
falls below the standard established by law for the protection of others against
unreasonable risk of harm.”
• Restatement Second of Torts, section 283, provides: “Unless the actor is a child,
the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable man under like circumstances.”
• The California Supreme Court has stated: “Because application of [due care] is
inherently situational, the amount of care deemed reasonable in any particular
case will vary, while at the same time the standard of conduct itself remains
constant, i.e., due care commensurate with the risk posed by the conduct taking
into consideration all relevant circumstances. [Citations].” (Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d
685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464
[303 P.2d 1041].)
• The proper conduct of a reasonable person in a particular situation may become
settled by judicial decision or may be established by statute or administrative
regulation. (Ramirez, supra, 6 Cal.4th at p. 547.) (See CACI Nos. 418 to 421
on negligence per se.)
• Negligence can be found in the doing of an act, as well as in the failure to do
an act. (Rest.2d Torts, § 284.)
225

Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 867, 868
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
226

[Name of plaintiff/defendant] is a child who was years old at the

time of the incident. Children are not held to the same standards of
behavior as adults. A child is required to use the amount of care that a
reasonably careful child of the same age, intelligence, knowledge, and
experience would use in that same situation.
New September 2003

• “Children are judged by a special subjective standard. . . . They are only
required to exercise that degree of care expected of children of like age,
experience and intelligence.” (Daun v. Truax (1961) 56 Cal.2d 647, 654 [16
Cal.Rptr. 351, 365 P.2d 407].)
• If the negligence is negligence per se, violation of a statute will create a
presumption of negligence that “may be rebutted by a showing that the child, in
spite of the violation of the statute, exercised the care that children of his
maturity, intelligence and capacity ordinarily exercise under similar
circumstances.” (Daun, supra, 56 Cal.2d at p. 655.)
• Restatement Second of Torts, section 283A, provides: “If the actor is a child,
the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable person of like age, intelligence, and experience under like
circumstances.”
• The standard of care for minors is not the standard of an “average” child of the
same age; the standard is subjective, based on the conduct of a child of the
same age, intelligence, and experience as the minor plaintiff or defendant.
(Cummings v. County of Los Angeles (1961) 56 Cal.2d 258, 263 [14 Cal.Rptr.
668, 363 P.2d 900].)
• An exception to this reduced standard of care may be found if the minor was
engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co.
(1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v.
Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d
Torts, § 283A, com. c.)
• Children under the age of five are incapable of contributory negligence as a
matter of law. (Christian v. Goodwin (1961) 188 Cal.App.2d 650, 655 [10
Cal.Rptr. 507].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 998–1000
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31
227

(Matthew Bender)
Bender)
(Matthew Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors (Matthew
Bender)
228

A person with a physical disability is required to use the amount of care

that a reasonably careful person who has the same physical disability
would use in the same situation.
New September 2003

Directions for Use
By “same” disability, this instruction is referring to the effect of the disability, not
the cause.
• Liability of Person of “Unsound Mind.” Civil Code section 41.
• Restatement Second of Torts, section 283C, provides: “If the actor is ill or
otherwise physically disabled, the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable man under like
disability.” (See also Conjorsky v. Murray (1955) 135 Cal.App.2d 478, 482 [287
P.2d 505]; Jones v. Bayley (1942) 49 Cal.App.2d 647, 654 [122 P.2d 293].)
• Persons with mental illnesses are not covered by the same standard as persons
with physical illnesses. (See Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1323
[53 Cal.Rptr.2d 635].)
• Restatement Second of Torts, section 283B, provides: “Unless the actor is a
child, his insanity or other mental deficiency does not relieve the actor from
liability for conduct which does not conform to the standard of a reasonable
man under like circumstances.”
• As to contributory negligence, the courts agree with the Restatement’s position
that mental deficiency that falls short of insanity does not excuse conduct that is
otherwise contributory negligence. (Fox v. City and County of San Francisco
(1975) 47 Cal.App.3d 164, 169 [120 Cal.Rptr. 779]; Rest.2d Torts, § 464, com.
g.)
Secondary Sources
Bender)
229

404. Intoxication
A person is not necessarily negligent just because he or she used alcohol

[or drugs]. However, people who drink alcohol [or take drugs] must act
just as carefully as those who do not.
New September 2003

Directions for Use
This instruction should be given only if there is evidence of alcohol or drug
consumption. This instruction is not intended for situations in which intoxication is
grounds for a negligence per se instruction (e.g., driving under the influence).
• Mere consumption of alcohol is not negligence in and of itself: “The fact that a
person when injured was intoxicated is not in itself evidence of contributory
negligence, but it is a circumstance to be considered in determining whether his
intoxication contributed to his injury.” (Coakley v. Ajuria (1930) 209 Cal. 745,
752 [290 P. 33].)
• Intoxication is not generally an excuse for failure to comply with the
reasonable-person standard. (Cloud v. Market Street Railway Co. (1946) 74
Cal.App.2d 92, 97 [168 P.2d 191].)
• Intoxication is not negligence as a matter of law, but it is a circumstance for the
jury to consider in determining whether such intoxication was a contributing
cause of an injury and is also a question of fact for the jury. (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319]; Barr v. Scott (1955) 134
Cal.App.2d 823, 827–828 [286 P.2d 552]; see also Emery v. Los Angeles Ry.
Corp. (1943) 61 Cal.App.2d 455, 461 [143 P.2d 112].)
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, §§ 20.02, 20.04 (Matthew
Bender)
Bender)
230

[Name of defendant] claims that [name of plaintiff]’s own negligence

contributed to [his/her] harm. To succeed on this claim, [name of
defendant] must prove both of the following:
1. That [name of plaintiff] was negligent; and
2. That [name of plaintiff]’s negligence was a substantial factor in
causing [his/her] harm.
If [name of defendant] proves the above, [name of plaintiff]’s damages are
reduced by your determination of the percentage of [name of plaintiff]’s
responsibility. I will calculate the actual reduction.

Directions for Use
This instruction should not be given absent substantial evidence that plaintiff was
negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
If there are multiple defendants or alleged nondefendant torteasors, also give CACI
No. 406, Apportionment of Responsibility.
• “[W]e conclude that: . . . The doctrine of comparative negligence is preferable
to the ‘all-or-nothing’ doctrine of contributory negligence from the point of
view of logic, practical experience, and fundamental justice; . . . .” (Li v. Yellow
Cab Co. (1975) 13 Cal.3d 804, 808 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “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].)
• “Where contributory negligence is asserted as a defense, and where there is
‘some evidence of a substantial character’ to support a finding that such
negligence occurred, it is prejudicial error to refuse an instruction on this issue,
since defendant is thereby denied a basic theory of his defense.” (Hasson v.
Ford Motor Co. (1977) 19 Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857].)
• “The use by the trial court of the phrase ‘contributory negligence’ in instructing
‘on the concept of comparative negligence is innocuous. Li v. Yellow Cab Co.
[citation] abolished the legal doctrine, but not the phrase or the concept of
231

‘contributory negligence.’ A claimant’s negligence contributing causally to his

own injury may be considered now not as a bar to his recovery, but merely as a
factor to be considered in measuring the amount thereof.” (Bradfield v. Trans
World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
• “Generally, a defendant has the burden of establishing that some nonzero
percentage of fault is properly attributed to the plaintiff, other defendants, or
nonparties to the action.” (Pfeifer, supra, 220 Cal.App.4th at p. 1285.)
• [W]ithin the comparative fault system, when an employer is liable solely on a
theory of respondeat superior, ‘the employer’s share of liability for the
plaintiff’s damages corresponds to the share of fault that the jury allocates to the
employee.’ ” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261
[218 Cal.Rptr.3d 664].)
• “[P]retreatment negligence by the patient does not warrant a jury instruction on
contributory or comparative negligence. This view is supported by comment m
to section 7 of the Restatement Third of Torts: Apportionment of Liability,
which states: ‘[I]n a case involving negligent rendition of a service, including
medical services, a factfinder does not consider any plaintiff’s conduct that
created the condition the service was employed to remedy.’ ” (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 (11th ed. 2017) Torts, §§ 1138, 1450–1460
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.04 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
(Matthew Bender)
Bender)
232

[[Name of defendant] claims that the [negligence/fault] of [insert name(s)

or description(s) of nonparty tortfeasor(s)] [also] contributed to [name of
plaintiff]’s harm. To succeed on this claim, [name of defendant] must
prove both of the following:
1. That [insert name(s) or description(s) of nonparty tortfeasor(s)]
[was/were] [negligent/at fault]; and
2. That the [negligence/fault] of [insert name(s) or description(s) of
nonparty tortfeasor(s)] was a substantial factor in causing [name
of plaintiff]’s harm.]
If you find that the [negligence/fault] of more than one person including
[name of defendant] [and] [[name of plaintiff]/ [and] [name(s) or
description(s) of nonparty tortfeasor(s)]] was a substantial factor in
causing [name of plaintiff]’s harm, you must then decide how much
responsibility each has by assigning percentages of responsibility to each
person listed on the verdict form. The percentages must total 100
percent.
You will make a separate finding of [name of plaintiff]’s total damages, if
any. In determining an amount of damages, you should not consider any
person’s assigned percentage of responsibility.
[“Person” can mean an individual or a business entity.]
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
233

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.
• 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
234

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
• “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,
• “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
235

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)
Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)
(Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)
Contribution, § 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04
et seq. (Matthew Bender)
(Matthew Bender)
236

[Name of defendant] claims that [name of decedent]’s own negligence

contributed to [his/her] death. To succeed on this claim, [name of
1. That [name of decedent] was negligent; and
2. That [name of decedent]’s negligence was a substantial factor in
causing [his/her] death.
reduced by your determination of the percentage of [name of decedent]’s

Directions for Use
This instruction should not be given absent evidence that the decedent was
negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
• “[P]rinciples of comparative fault and equitable indemnification support an
apportionment of liability among those responsible for the loss, including the
decedent, whether it be for personal injury or wrongful death.” (Horwich v.
Superior Court (1999) 21 Cal.4th 272, 285 [87 Cal.Rptr.2d 222, 980 P.2d 927].)
• “[I]n wrongful death actions, the fault of the decedent is attributable to the
surviving heirs whose recovery must be offset by the same percentage.
[Citation.]” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1395 [273
Cal.Rptr. 231].)
Secondary Sources
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, § 55.05
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 181, Death and Survival Actions,
6 California Points and Authorities, Ch. 66, Death and Survival Actions, § 66.20 et
seq. (Matthew Bender)
237

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].
New September 2003

Directions for Use
This instruction should not be used if the only other actor is the plaintiff and there
is no evidence that the plaintiff acted unreasonably. (Springer v. Reimers (1970) 4
Cal.App.3d 325, 336 [84 Cal.Rptr. 486].)
• “[E]very person has a right to presume that every other person will perform his
duty and obey the law and in the absence of reasonable grounds to think
otherwise, it is not negligence to assume that he is not exposed to danger which
could come to him only from violation of law or duty by such other person.”
(Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523 [105
Cal.Rptr. 904].)
• “However, this rule does not extend to a person who is not exercising ordinary
care, nor to one who knows or, by the exercise of such care, would know that
the law is not being observed.” (Malone v. Perryman (1964) 226 Cal.App.2d
227, 234 [37 Cal.Rptr. 864].)
• “[CACI No. 411] is a pattern jury instruction designed for use in civil
negligence cases involving a plaintiff suing a defendant for failing to prevent
harm caused by a third party. The principle it espouses is essentially that a
defendant will not be liable for harm caused by a third party’s negligent or
criminal conduct, unless the third party’s conduct was foreseeable . . . .”
(People v. Elder (2017) 11 Cal.App.5th 123, 135 [217 Cal.Rptr.3d 493].)
• “[Defendant], if exercising ordinary care himself, was entitled to assume that
plaintiff’s employer had furnished to plaintiff a safe place within which to work
and he could further assume that the plaintiff would reasonably use the
protection afforded to him by the employer.” (Tucker v. Lombardo (1956) 47
Cal.2d 457, 467 [303 P.2d 1041] [approved language in jury instruction].)
• “If there is evidence on both sides of the question as to whether the conduct of
a third person is or is not foreseeable, the jury instruction is correct. Its
application or effect will depend on the finding of the jury as to whether the act
of the third person should have been anticipated or foreseen.” (Whitton v. State
of California (1979) 98 Cal.App.3d 235, 246 [159 Cal.Rptr. 405].)
• “If the likelihood that a third person may act in a particular manner is the
238

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.” (Bigbee v. Pacific
Telephone and Telegraph Co. (1983) 34 Cal.3d 49, 58 [192 Cal.Rptr. 857, 665
P.2d 947]; see also Rest.2d Torts, § 449.)
• “Foreseeability, when analyzed to determine the existence or scope of a duty, is
a question of law to be decided by the court.” (Ann M. v. Pacific Plaza
Shopping Center (1993) 6 Cal.4th 666, 678 [25 Cal.Rptr.2d 137, 863 P.2d 207],
disapproved on other grounds in Reid v. Google Inc. (2010) 50 Cal.4th 512, 527
fn. 5 [113 Cal.Rptr.3d 327, 235 P.3d 988].)
Secondary Sources
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)
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.120 et seq.
(Matthew Bender)
239

An adult must anticipate the ordinary behavior of children. An adult

must be more careful when dealing with children than with other
adults.
New September 2003

Directions for Use
This instruction is to be used where the plaintiff seeks damages for injury to a
minor.
For standard of care for minors, see CACI No. 402, Standard of Care for Minors.
• “ ‘A child of immature years is expected to exercise only such care as pertains
to childhood, and all persons dealing with such a child are chargeable with such
knowledge. As a result, one dealing with children is bound to exercise a greater
amount of caution than he would were he dealing with an adult.’ [Citations].”
(Kataoka v. May Dept. Stores Co. (1943) 60 Cal.App.2d 177, 182–183 [140
P.2d 467].)
• Schwartz v. Helms Bakery, Ltd. (1967) 67 Cal.2d 232, 240, 243 [60 Cal.Rptr.
510, 430 P.2d 68]; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 37 [286 P.2d
21].
• “A greater degree of care is generally owed to children because of their lack of
capacity to appreciate risks and to avoid danger.” (McDaniel v. Sunset Manor
Co. (1990) 220 Cal.App.3d 1, 7 [269 Cal.Rptr. 196], citing Casas v. Maulhardt
Buick, Inc. (1968) 258 Cal.App.2d 692, 697–700 [66 Cal.Rptr. 44].)
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.31 (Matthew Bender)
California Products Liability Actions, Ch. 10, Trial, § 10.05 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 364, Minors (Matthew Bender)
Bender)
Bender)
240

You may consider customs or practices in the community in deciding

whether [name of plaintiff/defendant] acted reasonably. Customs and
practices do not necessarily determine what a reasonable person would
have done in [name of plaintiff/defendant]’s situation. They are only
factors for you to consider.
Following a custom or practice does not excuse conduct that is
unreasonable. You should consider whether the custom or practice itself
is reasonable.
New September 2003

Directions for Use
An instruction stating that evidence of custom is not controlling on the issue of
standard of care should not be given in professional malpractice cases in which
expert testimony is used to set the standard of care. (See Osborn v. Irwin Memorial
Blood Bank (1992) 5 Cal.App.4th 234, 277 [7 Cal.Rptr.2d 101].) The instruction
may be used if the standard of care is within common knowledge. (See Leonard v.
Watsonville Community Hospital (1956) 47 Cal.2d 509, 519 [305 P.2d 36].)
This instruction is also inappropriate in cases involving strict liability (Titus v.
Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, 378 [154 Cal.Rptr. 122]) or cases
involving negligence in the use of public roads (Shuff v. Irwindale Trucking Co.
(1976) 62 Cal.App.3d 180, 187 [132 Cal.Rptr. 897]).
• Evidence of custom and practice is relevant, but not conclusive, on the issue of
the standard of care in cases of ordinary negligence. (Holt v. Department of
Food and Agriculture (1985) 171 Cal.App.3d 427, 435 [218 Cal.Rptr. 1].)
• Restatement Second of Torts, section 295A, provides: “In determining whether
conduct is negligent, the customs of the community, or of others under like
circumstances, are factors to be taken into account, but are not controlling
where a reasonable man would not follow them.”
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.30, Ch. 3, Proof of
Negligence, § 3.33 (Matthew Bender)
Bender)
241


Bender)
242

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.
New September 2003

Directions for Use
An instruction on the standard of care for extremely dangerous activities is proper
only “in situations where the nature of the activity or substance is so inherently
dangerous or complex, as such, that the hazard persists despite the exercise of
ordinary care.” (Benwell v. Dean (1964) 227 Cal.App.2d 226, 233 [38 Cal.Rptr.
542]; see also Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 544 [67
Cal.Rptr. 775, 439 P.2d 903].)
This instruction should not be given at the same time as an instruction pertaining to
standard of care for employees who have to work in dangerous situations. In
appropriate cases, juries may be instructed that a person of ordinary prudence is
required to exercise extreme caution when engaged in a dangerous activity.
(Borenkraut v. Whitten (1961) 56 Cal.2d 538, 544–546 [15 Cal.Rptr. 635, 364 P.2d
467].) However, this rule does not apply when a person’s lawful employment
requires that he or she must work in a dangerous situation. (McDonald v. City of
Oakland (1967) 255 Cal.App.2d 816, 827 [63 Cal.Rptr. 593].) This is because
“reasonable men who are paid to give at least part of their attention to their job”
may not be as able to maintain the same standards for personal safety as
nonemployees. (Young v. Aro Corp. (1974) 36 Cal.App.3d 240, 245 [111 Cal.Rptr.
535].) (See CACI No. 415, Employee Required to Work in Dangerous Situations.)
• Even a slight deviation from the standards of care will constitute negligence in
cases involving dangerous instrumentalities. (Borenkraut, supra, 56 Cal.2d at p.
545.)
• Dangerous instrumentalities include fire, firearms, explosive or highly
inflammable materials, and corrosive or otherwise dangerous or noxious fluids.
(Warner v. Santa Catalina Island Co. (1955) 44 Cal.2d 310, 317 [282 P.2d 12].)
• In Menchaca, the Court held that “[d]riving a motor vehicle may be sufficiently
dangerous to warrant special instructions, but it is not so hazardous that it
always requires ‘extreme caution.’ ” (Menchaca, supra, 68 Cal.2d at p. 544.)
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence, §§ 1.02, 1.30 (Matthew Bender)
243

(Matthew Bender)
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
244

An employee required to work under dangerous conditions must use the

amount of care for [his/her] own safety that a reasonably careful
employee would use under the same conditions.
In deciding whether [name of plaintiff] was negligent, you should
consider how much attention [his/her] work demanded. You should also
consider whether [name of plaintiff]’s job required [him/her] to take
risks that a reasonably careful person would not normally take under
ordinary circumstances.
New September 2003

Directions for Use
This type of instruction should not be given in cases involving freeway collisions
between private and commercial vehicles. (Shuff v. Irwindale Trucking Co. (1976)
62 Cal.App.3d 180, 187 [132 Cal.Rptr. 897].)
An instruction on this principle is “aimed at situations where the employment
conditions lessen the plaintiff’s ability to take precautions.” (Von Beltz v. Stuntman,
Inc. (1989) 207 Cal.App.3d 1467, 1485 [255 Cal.Rptr. 755].) It does not apply
where the plaintiff has ample opportunity to consider various precautions (ibid.) or
when employees act pursuant to choice rather than necessity. (Roberts v. Guillory
(1972) 25 Cal.App.3d 859, 861–862].)
• This type of instruction “soften[ed] the impact of instructing on the issue of
contributory negligence” (Young v. Aro Corp. (1974) 36 Cal.App.3d 240, 244
[111 Cal.Rptr. 535]) at a time when contributory negligence was a complete bar
to a plaintiff’s recovery. The instruction may be given in cases involving
comparative fault. (See, e.g., Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123,
136–137 [1 Cal.Rptr.2d 747].)
• “It has long been recognized that ‘where a person must work in a position of
possible danger the amount of care which he is bound to exercise for his own
safety may well be less by reason of the necessity of his giving attention to his
work than would otherwise be the case.’ [Citations].” (Austin v. Riverside
Portland Cement Co. (1955) 44 Cal.2d 225, 239 [282 P.2d 69].)
• “Considered in the light of the realities of his working life, the laborer’s duty
may become considerably restricted in scope. In some instances he may find
himself powerless to abandon the task at hand with impunity whenever he
senses a possible danger; in others, he may be uncertain as to which person has
supervision of the job or control of the place of employment, and therefore
unsure as to whom he should direct his complaint; in still others, having been
245

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
Bender)
246

People and companies must be very careful in constructing, insulating,

inspecting, maintaining, and repairing power lines and transmission
equipment at all places where it is reasonably probable that they will
cause harm to persons or property.
New September 2003

Directions for Use
The cases have crafted a specific standard of care for the construction and
maintenance of power lines, and juries must be instructed on this standard upon
request. (Scally v. Pacific Gas and Electric Co. (1972) 23 Cal.App.3d 806, 816
[100 Cal.Rptr. 501].)
• Electric power lines are considered dangerous instrumentalities. (Polk v. City of
Los Angeles (1945) 26 Cal.2d 519, 525 [159 P.2d 931].)
• The requirement to insulate wires applies to only those wires that may come
into contact with people or property: “While an electric company is not under
an absolute duty to insulate or make the wires safe in any particular manner, it
does have a duty to make the wires safe under all the exigencies created by the
surrounding circumstances. The duty of an electric company is alternative, i.e.,
either to insulate the wires or to so locate them to make them comparatively
harmless.” (Scally, supra, 23 Cal.App.3d at pp. 815–816.)
• Dunn v. Pacific Gas and Electric Co. (1954) 43 Cal.2d 265, 272–274 [272 P.2d
745]; McKenzie v. Pacific Gas & Electric Co. (1962) 200 Cal.App.2d 731, 736
[19 Cal.Rptr. 628] (disapproved on another ground in Di Mare v. Cresci (1962)
58 Cal.2d 292, 299 [23 Cal.Rptr. 772, 373 P.2d 860].)
Secondary Sources
23 California Forms of Pleading and Practice, Ch. 277, Gas and Electricity
(Matthew Bender)
247

[Name of plaintiff] may prove that [name of defendant]’s negligence

caused [his/her] harm if [he/she] proves all of the following:
1. That [name of plaintiff]’s harm ordinarily would not have
happened unless someone was negligent;
2. That the harm was caused by something that only [name of
defendant] controlled; and
3. That [name of plaintiff]’s voluntary actions did not cause or
contribute to the event[s] that harmed [him/her].
If you decide that [name of plaintiff] did not prove one or more of these
three things, you must decide whether [name of defendant] was negligent
in light of the other instructions I have read.
If you decide that [name of plaintiff] proved all of these three things, you
may, but are not required to, find that [name of defendant] was negligent
or that [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm, or both.
[Name of defendant] contends that [he/she/it] was not negligent or that
[his/her/its] negligence, if any, did not cause [name of plaintiff] harm. If
after weighing all of the evidence, you believe that it is more probable
than not that [name of defendant] was negligent and that [his/her]
negligence was a substantial factor in causing [name of plaintiff]’s harm,
you must decide in favor of [name of plaintiff]. Otherwise, you must
decide in favor of [name of defendant].
New September 2003; Revised June 2011, December 2011

Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa
loquitur. The second paragraph explains that if the plaintiff fails to establish res
ipsa loquitur as a presumption, the jury may still find for the plaintiff if it finds
based on its consideration of all of the evidence that the defendant was negligent.
(See Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163–1164
[117 Cal.Rptr.3d 126].)
If the plaintiff has established the three conditions that give rise to the doctrine, the
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
248

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).)
• 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],
• “ ‘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
249

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,
• 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
• “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
250

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 Hospital Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
§§ 114–118
7 Witkin, California Procedure (5th ed.) Trial, § 300
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-G, Inability To
Prove Negligence Or Causation—Res Ipsa Loquitur, “Alternative Liability” And
“Market Share Liability,” ¶¶ 2:1751–2:1753 (The Rutter Group)
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.20 et seq. (Matthew
Bender)
1A California Trial Guide, Unit 11, Opening Statement, § 11.42, Unit 90, Closing
Argument, § 90.90 (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
251

[Insert citation to statute, regulation, or ordinance] states:

.
If you decide
1. That [name of plaintiff/defendant] violated this law and
2. That the violation was a substantial factor in bringing about the
harm,
then you must find that [name of plaintiff/defendant] was negligent
[unless you also find that the violation was excused].
If you find that [name of plaintiff/defendant] did not violate this law or
that the violation was not a substantial factor in bringing about the
harm [or if you find the violation was excused], then you must still
decide whether [name of plaintiff/defendant] was negligent in light of the
other instructions.

Directions for Use
This jury instruction addresses the establishment of the two factual elements
underlying the presumption of negligence. If they are not established, then a finding
of negligence cannot be based on the alleged statutory violation. However,
negligence can still be proven by other means. (See Nunneley v. Edgar Hotel
(1950) 36 Cal.2d 493, 500–501 [225 P.2d 497].)
If a rebuttal is offered on the ground that the violation was excused, then the
bracketed portion in the second and last paragraphs should be read. For an
instruction on excuse, see CACI No. 420, Negligence per se: Rebuttal of the
Presumption of Negligence (Violation Excused).
If the statute is lengthy, the judge may want to read it at the end of this instruction
instead of at the beginning. The instruction would then need to be revised, to tell
the jury that they will be hearing the statute at the end.
Rebuttal of the presumption of negligence is addressed in the instructions that
follow (see CACI Nos. 420 and 421).
• Negligence per se. Evidence Code section 669.
• “Although compliance with the law does not prove the absence of negligence,
violation of the law does raise a presumption that the violator was negligent.
This is called negligence per se. The presumption of negligence arises if (1) the
defendant violated a statute; (2) the violation proximately caused the plaintiff’s
252

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
• “[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
253


• “[T]he courts and the Legislature may create a negligence duty of care, but an
administrative agency cannot independently impose a duty of care if that
authority has not been properly delegated to the agency by the Legislature.”
(Cal. Serv. Station Etc. Ass’n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th
1166, 1175 [73 Cal.Rptr.2d 182].)
• “In combination, the [1999] language and the deletion [to Lab. Code, § 6304.5]
indicate that henceforth, Cal-OSHA provisions are to be treated like any other
statute or regulation and may be admitted to establish a standard or duty of care
in all negligence and wrongful death actions, including third party actions.”
(Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d
915].)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-H, Negligence
Predicated On Statutory Violation (“Negligence Per Se”), ¶ 2:1845 (The Rutter
Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8G-C,
Procedural Considerations—Presumptions, ¶ 8:3604 (The Rutter Group)
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, §§ 3.10, 3.13 (Matthew
Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.89 (Matthew
Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.04 (Matthew Bender)
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.70, 165.80,
254

[Insert citation to statute, regulation, or ordinance] states:

.
A violation of this law has been established and is not an issue for you
to decide.
[However, you must decide whether the violation was excused. If it was
not excused, then you] [You] must decide whether the violation was a
substantial factor in harming [name of plaintiff].
If you decide that the violation was a substantial factor, then you must
find that [name of plaintiff/defendant] was negligent.

Directions for Use
The California Law Revision Commission comment on Evidence Code section 669
states that the trier of fact usually decides the question of whether the violation
occurred. However, “if a party admits the violation or if the evidence of the
violation is undisputed, it is appropriate for the judge to instruct the jury that a
violation of the statute, ordinance, or regulation has been established as a matter of
law.” In such cases, the jury would decide causation and, if applicable, the
existence of any justification or excuse. For an instruction on excuse, see CACI
No. 420, Negligence per se: Rebuttal of the Presumption of Negligence (Violation
Excused). See also Sources and Authority to CACI No. 418, Presumption of
Negligence per se.
• Presumption of Negligence per se. Evidence Code section 669(a).
• “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].)
Secondary Sources
Bender)
(Matthew Bender)
255


(Matthew Bender)
256

420. Negligence per se: Rebuttal of the Presumption of

Negligence (Violation Excused)
A violation of a law is excused if one of the following is true:

(a) The violation was reasonable because of [name of
plaintiff/defendant]’s [specify type of “incapacity”]; [or]
(b) Despite using reasonable care, [name of plaintiff/defendant] was
not able to obey the law; [or]
(c) [Name of plaintiff/defendant] faced an emergency that was not
caused by [his/her] own misconduct; [or]
(d) Obeying the law would have involved a greater risk of harm to
[name of plaintiff/defendant] or to others; [or]
(e) [Other reason excusing or justifying noncompliance.]
New September 2003

Directions for Use
Subparagraph (b), regarding an attempt to comply with the applicable statute or
regulation, should not be given where the evidence does not show such an attempt.
(Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 423 [94 Cal.Rptr. 49].) Subparagraph
(b) should be used only in special cases because it relies on the concept of due care
to avoid a charge of negligence per se.
• Rebuttal of Presumption of Negligence per se. Evidence Code section 669(b)(1).
• The language of section 669(b)(1) appears to be based on the following
Supreme Court holding: “In our opinion the correct test is whether the person
who has violated a statute has sustained the burden of showing that he did what
might reasonably be expected of a person of ordinary prudence, acting under
similar circumstances, who desired to comply with the law.” (Alarid v. Vanier
(1958) 50 Cal.2d 617, 624 [327 P.2d 897].)
• In Casey v. Russell (1982) 138 Cal.App.3d 379 [188 Cal.Rptr. 18], the court
held that an instruction that tracked the language of section 669(b)(1) was
erroneous because it “[did] not adequately convey that there must be some
special circumstances which justify violating the statute.” (Id. at p. 385.) The
court’s opinion cited section 288A of the Restatement Second of Torts for a list
of the types of emergencies or unusual circumstances that may justify or excuse
a violation of the statute:
(a) The violation is reasonable because of the actor’s incapacity;
257

(b) He neither knows nor should know of the occasion for

compliance;
(c) He is unable after reasonable diligence or care to comply;
(d) He is confronted by an emergency not due to his own
misconduct;
(e) Compliance would involve a greater risk of harm to the actor or
to others.
According to the Restatement comment, this list of circumstances is not meant
to be exclusive.
Secondary Sources
Bender)
Bender)
Bender)
258

421. Negligence per se: Rebuttal of the Presumption of

Negligence (Violation of Minor Excused)
[Name of plaintiff/defendant] claims that even if [he/she] violated the law,

[he/she] is not negligent because [he/she] was years old at the
time of the incident. If you find that [name of plaintiff/defendant] was as
careful as a reasonably careful child of the same age, intelligence,
knowledge, and experience would have been in the same situation, then
[name of plaintiff/defendant] was not negligent.
New September 2003

Directions for Use
This instruction does not apply if the minor is engaging in an adult activity. (Evid.
Code, § 669(b)(2).)
• Rebuttal of Presumption of Negligence per se: Minor. Evidence Code section
669(b)(2).
• “The per se negligence instruction is predicated on the theory that the
Legislature has adopted a statutory standard of conduct that no reasonable man
would violate, and that all reasonable adults would or should know such
standard. But this concept does not apply to children.” (Daun v. Truax (1961)
56 Cal.2d 647, 654 [16 Cal.Rptr. 351, 365 P.2d 407].)
• An exception to this reduced standard of care may be found if the minor was
engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co.
(1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v.
Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d
Torts, § 283A, com. c.)
Secondary Sources
Bender)
Bender)
259

422. Providing Alcoholic Beverages to Obviously Intoxicated

Minors (Bus. & Prof. Code, § 25602.1)
[Name of plaintiff] claims [name of defendant] is responsible for [his/her]

harm because [name of defendant] [sold/gave] alcoholic beverages to
[name of alleged minor], a minor who was already obviously intoxicated.
To establish this claim, [name of plaintiff] must prove all of the
following:
1. [That [name of defendant] was [required to be] [licensed to sell
alcoholic beverages;]
1. [or]
1. [That [name of defendant] was authorized by the federal
government to sell alcoholic beverages on a military base or
other federal enclave;]
2. [That [name of defendant] [sold/gave] alcoholic beverages to [name
of alleged minor];]
2. [or]
2. [That [name of defendant] caused alcoholic beverages to be [sold/
given away] to [name of alleged minor];]
3. That [name of alleged minor] was less than 21 years old at the
time;
4. That when [name of defendant] provided the alcoholic beverages,
[name of alleged minor] displayed symptoms that would lead a
reasonable person to conclude that [he/she] was obviously
intoxicated;
5. That [name of alleged minor] harmed [name of plaintiff]; and
6. That [name of defendant]’s [selling/giving] alcoholic beverages to
[name of alleged minor] was a substantial factor in causing [name
of plaintiff]’s harm.
In deciding whether [name of alleged minor] was obviously intoxicated,
you may consider whether [he/she] displayed one or more of the
following symptoms to [name of defendant] before the alcoholic
beverages were provided: impaired judgment; alcoholic breath;
incoherent or slurred speech; poor muscular coordination; staggering or
unsteady walk or loss of balance; loud, boisterous, or argumentative
conduct; flushed face; or other symptoms of intoxication. The mere fact
that [name of alleged minor] had been drinking is not enough.
260

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].)
• 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
261

required to be licensed, and those authorized to sell alcohol by the federal

government—are for the most part engaged in some commercial enterprise. The
final category of persons addressed by section 25602.1 is more of a catchall:
‘any other person’ who sells alcohol. Consistent with the plain meaning of the
statutory language and the views of the Department of ABC, we find this final
category includes private persons and ostensible social hosts who, for whatever
reason, charge money for alcoholic drinks.” (Ennabe, supra, 58 Cal.4th at p.
711.)
• “[Business and Professions Code] Section 23025’s broad definition of a sale
shows the Legislature intended the law to cover a wide range of transactions
involving alcoholic beverages: a qualifying sale includes ‘any transaction’ in
which title to an alcoholic beverage is passed for ‘any consideration.’ (Italics
added.) Use of the term ‘any’ to modify the words ‘transaction’ and
‘consideration’ demonstrates the Legislature intended the law to have a broad
sweep and thus include both indirect as well as direct transactions.” (Ennabe,
supra, 58 Cal.4th at p. 714, original italics.)
• “ ‘The use of intoxicating liquor by the average person in such quantity as to
produce intoxication causes many commonly known outward manifestations
which are “plain” and “easily seen or discovered.” If such outward
manifestations exist and the seller still serves the customer so affected, he has
violated the law, whether this was because he failed to observe what was plain
and easily seen or discovered, or because, having observed, he ignored that
which was apparent.’ ” (Schaffıeld v. Abboud (1993) 15 Cal.App.4th 1133, 1140
[19 Cal.Rptr.2d 205], original italics.)
• “[T]he standard for determining ‘obvious intoxication’ is measured by that of a
reasonable person.” (Schaffıeld, supra, 15 Cal.App.4th at p. 1140.)
• “We shall make no effort to state definitively the meaning of the word
‘furnishes’ . . . . As used in a similar context the word ‘furnish’ has been said
to mean: ‘ “To supply; to offer for use, to give, to hand.” ’ It has also been said
the word ‘furnish’ is synonymous with the words ‘supply’ or ‘provide.’ In
relation to a physical object or substance, the word ‘furnish’ connotes
possession or control over the thing furnished by the one who furnishes it. The
word ‘furnish’ implies some type of affirmative action on the part of the
furnisher; failure to protest or attempt to stop another from imbibing an
alcoholic beverage does not constitute ‘furnishing.’ ” (Bennett v. Letterly (1977)
74 Cal.App.3d 901, 904–905 [141 Cal.Rptr. 682], internal citations omitted.)
• “As used in liquor laws, ‘furnish’ means to provide in any way, and includes
giving as well as selling. . . . [¶] California courts have interpreted the terms
‘furnish’ and ‘furnished’ as requiring an affirmative act by the purported
furnisher to supply the alcoholic beverage to the drinker.” (Fiorini v. City
Brewing Co., LLC (2014) 231 Cal.App.4th 306, 320–321 [179 Cal.Rptr.3d 827]
[beverage manufacturer does not “furnish” beverage to the consumer], footnote
and internal citation omitted.)
• “As instructed by the court, the jury was told to consider several outward
262

manifestations of obvious intoxication, which included incontinence, unkempt

appearance, alcoholic breath, loud or boisterous conduct, bloodshot or glassy
eyes, incoherent or slurred speech, flushed face, poor muscular coordination or
unsteady walking, loss of balance, impaired judgment, or argumentative
behavior. This instruction was correct.” (Jones v. Toyota Motor Co. (1988) 198
• “[S]ection 25602.1’s phrase ‘causes to be sold’ requires an affirmative act
directly related to the sale of alcohol which necessarily brings about the
resultant action to which the statute is directed, i.e., the furnishing of alcohol to
an obviously intoxicated minor.” (Hernandez v. Modesto Portuguese Pentecost
Assn. (1995) 40 Cal.App.4th 1274, 1276 [48 Cal.Rptr.2d 229].)
• “The undisputed evidence shows [defendant]’s checker sold beer to Spitzer and
that Spitzer later gave some of that beer to Morse. As in Salem [Salem v.
Superior Court (1989) 211 Cal.App.3d 595, 600 [259 Cal.Rptr. 447]], we
conclude defendant cannot be held liable because the person to whom it sold
alcohol was not the person whose negligence allegedly caused the injury at
issue.” (Ruiz v. Safeway, Inc. (2013) 209 Cal.App.4th 1455, 1462 [147
Cal.Rptr.3d 809].)
• “[O]bviously intoxicated minors who are served alcohol by a licensed purveyor
of liquor, may bring a cause of action for negligence against the purveyor for
[their own] subsequent injuries.” (Chalup, supra, 175 Cal.App.3d at p. 979.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-L, Liability For
Providing Alcoholic Beverages, ¶ 2:2101 (The Rutter Group)
(Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 19, Alcoholic Beverages: Civil
Liability, §§ 19.12, 19.52, 19.75 (Matthew Bender)
1 California Points and Authorities, Ch. 15A, Alcoholic Beverages: Civil Liability
for Furnishing, § 15A.21 et seq. (Matthew Bender)
263

[Name of plaintiff] claims that [he/she] was harmed because [name of

defendant] violated [insert reference to statute, regulation, or ordinance]
which states: [insert relevant language]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] violated [insert reference to statute,
regulation, or ordinance];
3. That [name of defendant]’s failure to perform its duty was a
substantial factor in causing [name of plaintiff]’s harm.
[Name of defendant], however, is not responsible for [name of plaintiff]’s
harm if [name of defendant] proves that it made reasonable efforts to
perform its duties under the [statute/regulation/ordinance].
New September 2003

Directions for Use
The judge decides the issues of whether the statute imposes a mandatory duty and
whether it was designed to protect against the type of harm suffered. (Haggis v.
City of Los Angeles (2000) 22 Cal.4th 490, 499 [93 Cal.Rptr.2d 327, 993 P.2d
983].)
• Government Liability for Failure to Perform Mandatory Duty. Government
Code section 815.6.
• “ ‘Where a public entity is under a mandatory duty imposed by an enactment
that is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its failure
to discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.’ (Gov. Code, § 815.6.) Thus, the
government may be liable when (1) a mandatory duty is imposed by enactment,
(2) the duty was designed to protect against the kind of injury allegedly
suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of
State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 [188 Cal.Rptr.3d
309, 349 P.3d 1013].)
• “In order to recover plaintiffs have to show that there is some specific statutory
mandate that was violated by the County, which violation was a proximate
cause of the accident.” (Washington v. County of Contra Costa (1995) 38
Cal.App.4th 890, 896–897 [45 Cal.Rptr.2d 646], internal citations omitted.)
• “[T]he term ‘enactment’ refers to ‘a constitutional provision, statute, charter
264

provision, ordinance or regulation.’ . . . A ‘contract cannot give rise to “a

mandatory duty imposed by an enactment . . . .” ’ ” (Tuthill v. City of San
Buenaventura (2014) 223 Cal.App.4th 1081, 1091−1092 [167 Cal.Rptr.3d 820].)
• “The first element of liability under Government Code section 815.6 requires
that ‘ “the enactment at issue be obligatory, rather than merely discretionary or
permissive, in its directions to the public entity; it must require, rather than
merely authorize or permit, that a particular action be taken or not taken.
[Citation.] It is not enough, moreover, that the public entity or officer have been
under an obligation to perform a function if the function itself involves the
exercise of discretion. [Citation.]’ [Citation.] Courts have construed this first
prong rather strictly, finding a mandatory duty only if the enactment
‘affirmatively imposes the duty and provides implementing guidelines.” ’ ” (B.H.
v. County of San Bernardino (2015) 62 Cal.4th 168, 180 [195 Cal.Rptr.3d 220,
361 P.3d 319], original italics.)
• “ ‘It is not enough, moreover, that the public entity or officer have been under
an obligation to perform a function if the function itself involves the exercise of
discretion.’ Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the
enactment “affirmatively imposes the duty and provides implementing
guidelines.” ’ ‘ “ ‘[T]he mandatory nature of the duty must be phrased in
explicit and forceful language.’ [Citation.] ‘It is not enough that some statute
contains mandatory language. In order to recover plaintiffs have to show that
there is some specific statutory mandate that was violated by the [public
entity].’ ” [Citations.]’ ” (State Dept. of State Hospitals, supra, 61 Cal. 4th at
pp. 348−349, internal citations omitted.)
• “Courts have recognized that as a practical matter the standard for determining
whether a mandatory duty exists is ‘virtually identical’ to the test for an implied
statutory duty of care under Evidence Code section 669.” (Alejo v. City of
Alhambra (1999) 75 Cal.App.4th 1180, 1185, fn. 3 [89 Cal.Rptr.2d 768],
disapproved on other grounds in B.H., supra, 62 Cal.4th at p. 188, fn. 6,
• “The injury must be ‘ “ ‘one of the consequences which the [enacting body]
sought to prevent through imposing the alleged mandatory duty.’ ” ’ . . . ‘That
the enactment “confers some benefit” on the class to which plaintiff belongs is
not enough; if the benefit is “incidental” to the enactment’s protective purpose,
the enactment cannot serve as a predicate for liability under section 815.6.”
(Tuthill, supra, 223 Cal.App.4th at p. 1092, internal citation omitted.)
• “Financial limitations of governments have never been, and cannot be, deemed
an excuse for a public employee’s failure to comply with mandatory duties
imposed by law.” (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125,
• “Questions of statutory immunity do not become relevant until it has been
determined that the defendant otherwise owes a duty of care to the plaintiff and
thus would be liable in the absence of such immunity. However, a defendant
265

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 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)
266


defendant]’s negligence. [Name of defendant] agrees that [he/she/it] was
negligent, but denies that the negligence caused [[name of plaintiff] any
harm/the full extent of the harm claimed by [name of plaintiff]].
To establish [his/her/its] claim against [name of defendant], [name of
New June 2005

Directions for Use
This instruction is intended for cases in which the defendant “admits” liability, but
contests causation and damages. This instruction can be modified for use in cases
involving claims that are not based on negligence.
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, Ch. 2,
Causation (Matthew Bender)
267

Gross negligence is the lack of any care or an extreme departure from

what a reasonably careful person would do in the same situation to
prevent harm to oneself or to others.
A person can be grossly negligent by acting or by failing to act.

Directions for Use
Give this instruction if a particular statute that is at issue in the case creates a
distinction based on a standard of gross negligence. (See, e.g., Gov. Code,
§ 831.7(c)(1)(E) [immunity for public entity or employee to liability to participant
in or spectator to hazardous recreational activity does not apply if act of gross
negligence is proximate cause of injury].) Courts generally resort to this definition
if gross negligence is at issue under a statute. (See, e.g., Wood v. County of San
Joaquin (2003) 111 Cal.App.4th 960, 971 [4 Cal.Rptr.3d 340].)
Give this instruction with CACI No. 400, Negligence—Essential Factual Elements,
but modify that instruction to refer to gross negligence.
This instruction may also be given if case law has created a distinction between
gross and ordinary negligence. For example, under the doctrine of express
assumption of risk, a signed waiver of liability may release liability for ordinary
negligence only, not for gross negligence. (See City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095]; see also
CACI No. 451, Affırmative Defense—Contractual Assumption of Risk.) Once the
defendant establishes the validity and applicability of the release, the plaintiff must
prove gross negligence by a preponderance of the evidence. (Eriksson v. Nunnink
(2015) 233 Cal.App.4th 708, 732, 734 [183 Cal.Rptr.3d 234].) A lack of gross
negligence can be found as a matter of law if the plaintiff’s showing is insufficient
to suggest a triable issue of fact. (See Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 638–639 [184 Cal.Rptr.3d 155]; cf. Jimenez v. 24 Hour
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555 [188 Cal.Rptr.3d 228] [whether
conduct constitutes gross negligence is generally a question of fact, depending on
the nature of the act and the surrounding circumstances shown by the evidence].)
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara, supra, 41 Cal.4th at
p. 754, internal citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
268

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].)
• “[I]n cases involving a waiver of liability for future negligence, courts have
held that conduct that substantially or unreasonably increased the inherent risk
of an activity or actively concealed a known risk could amount to gross
negligence, which would not be barred by a release agreement. Evidence of
conduct that evinces an extreme departure from manufacturer’s safety directions
or an industry standard also could demonstrate gross negligence. Conversely,
conduct demonstrating the failure to guard against, or warn of, a dangerous
condition typically does not rise to the level of gross negligence.” (Anderson v.
Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal.Rptr.3d 792],
• “[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
269

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
care as to constitute gross negligence [citation] but not always.” (Chavez v. 24
Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [189 Cal.Rptr.3d
449].)
• “The Legislature has enacted numerous statutes . . . which provide immunity to
persons providing emergency assistance except when there is gross negligence.
(See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good
faith renders emergency care at the scene of an emergency occurring outside the
place and course of nurse’s employment unless the nurse is grossly negligent];
Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves
on-call in a hospital emergency room who in good faith renders emergency
obstetrical services unless the physician was grossly negligent, reckless, or
committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for
licensed physician who in good faith and without compensation renders
voluntary emergency medical assistance to a participant in a community college
or high school athletic event for an injury suffered in the course of that event
unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706
[immunity for certified respiratory therapist who in good faith renders
emergency care at the scene of an emergency occurring outside the place and
course of employment unless the respiratory therapist was grossly negligent];
Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health
technician who in good faith renders emergency animal health care at the scene
of an emergency unless the animal health technician was grossly negligent];
Civ. Code, § 1714.2 [immunity to a person who has completed a basic
cardiopulmonary resuscitation course for cardiopulmonary resuscitation and
emergency cardiac care who in good faith renders emergency cardiopulmonary
resuscitation at the scene of an emergency unless the individual was grossly
negligent]; Health & Saf. Code, § 1799.105 [immunity for poison control center
personnel who in good faith provide emergency information and advice unless
they are grossly negligent]; Health & Saf. Code, § 1799.106 [immunity for a
firefighter, police officer or other law enforcement officer who in good faith
renders emergency medical services at the scene of an emergency unless the
officer was grossly negligent]; Health & Saf. Code, § 1799.107 [immunity for
public entity and emergency rescue personnel acting in good faith within the
270

scope of their employment unless they were grossly negligent].)” (Decker,

supra, 209 Cal.App.3d at pp. 356–357.)
• “The jury here was instructed: ‘It is the duty of one who undertakes to perform
the services of a police officer or paramedic to have the knowledge and skills
ordinarily possessed and to exercise the care and skill ordinarily used in like
cases by police officers or paramedics in the same or similar locality and under
similar circumstances. A failure to perform such duty is negligence. [para.] The
standard to be applied in this case is gross negligence. The term gross
negligence means the failure to provide even scant care or an extreme departure
from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219
Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under
Health & Saf. Code, § 1799.106, which provides that a police officer or
paramedic who renders emergency medical services at the scene of an
emergency shall only be liable in civil damages for acts or omissions performed
in a grossly negligent manner or not performed in good faith].)
Secondary Sources
Advising and Defending Corporate Directors and Officers (Cont.Ed.Bar) § 3.13
1 Levy et al., California Torts, Ch. 1, General Principles of Liability, § 1.01
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, §§ 380.10,
271


employee] and that [name of employer defendant] is responsible for that
harm because [name of employer defendant] negligently [hired/
supervised/ [or] retained] [name of employee]. To establish this claim,
1. [That [name of employer defendant] hired [name of employee];]
2. That [name of employee] [[was/became] [unfit [or] incompetent]
to perform the work for which [he/she] was hired/[specify other
particular risk]];
3. That [name of employer defendant] knew or should have known
that [name of employee] [[was/became] [unfit/ [or] incompetent]/
[other particular risk]] and that this [unfitness [or] incompetence/
[other particular risk]] created a particular risk to others;
4. That [name of employee]’s [unfitness [or] incompetence/[other
particular risk]] harmed [name of plaintiff]; and
5. That [name of employer defendant]’s negligence in [hiring/
supervising/ [or] retaining] [name of employee] was a substantial
New December 2009; Revised December 2015, June 2016

Directions for Use
Give this instruction if the plaintiff alleges that the employer of an employee who
caused harm was negligent in the hiring, supervision, or retention of the employee
after actual or constructive notice that the employee created a particular risk or
hazard to others. For instructions holding the employer vicariously liable (without
fault) for the acts of the employee, see the Vicarious Responsibility series, CACI
No. 3700 et seq.
Include optional question 1 if the employment relationship between the defendant
and the negligent person is contested. (See Jackson v. AEG Live, LLC (2015) 233
Cal.App.4th 1156, 1185–1189 [183 Cal.Rptr.3d 394].) It appears that liability may
also be imposed on the hirer of an independent contractor for the negligent
selection of the contractor. (See Noble v. Sears, Roebuck & Co. (1973) 33
Cal.App.3d 654, 662–663 [109 Cal.Rptr. 269].) Therefore, it would not seem to be
necessary to instruct on the test to determine whether the relationship is one of
employer-employee or hirer-independent contractor. (See CACI No. 3704, Existence
of “Employee” Status Disputed.)
Choose “became” in elements 2 and 3 in a claim for negligent retention.
272

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.
• “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
• “[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
• “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
• “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
• “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
273

employee].” (Evan F. v. Hughson United Methodist Church (1992) 8

Cal.App.4th 828, 843 [10 Cal.Rptr.2d 748]; cf. Flores v. AutoZone West Inc.
(2008) 161 Cal.App.4th 373, 384–386 [74 Cal.Rptr.3d 178] [employer had no
duty to investigate and discover that job applicant had a juvenile delinquency
record].)
• “A claim that an employer was negligent in hiring or retaining an employee-
driver rarely differs in substance from a claim that an employer was negligent
in entrusting a vehicle to the employee. Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was
negligent in hiring or retaining that person as a driver. (See Judicial Council of
Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a
claim for negligent entrustment. (See CACI No. 724.) In a typical case, like
this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51
Cal.4th 1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• “[I]f an employer admits vicarious liability for its employee’s negligent driving
in the scope of employment, ‘the damages attributable to both employer and
employee will be coextensive.’ Thus, when a plaintiff alleges a negligent
entrustment or hiring cause of action against the employer and the employer
admits vicarious liability for its employee’s negligent driving, the universe of
defendants who can be held responsible for plaintiff’s damages is reduced by
one—the employer—for purposes of apportioning fault under Proposition 51.
Consequently, the employer would not be mentioned on the special verdict
form. The jury must divide fault for the accident among the listed tortfeasors,
and the employer is liable only for whatever share of fault the jury assigns to
the employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citations omitted.)
• “[W]hen an employer . . . admits vicarious liability, neither the complaint’s
allegations of employer misconduct relating to the recovery of punitive damages
nor the evidence supporting those allegations are superfluous. Nothing in Diaz
or Armenta suggests otherwise.” (CRST, Inc. v. Superior Court (2017) 11
• “[A] public school district may be vicariously liable under [Government Code]
section 815.2 for the negligence of administrators or supervisors in hiring,
supervising and retaining a school employee who sexually harasses and abuses
a student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 879 [138 Cal.Rptr.3d 1, 270 P.3d 699].)
• “[P]laintiff premises her direct negligence claim on the hospital’s alleged failure
to properly screen [doctor] before engaging her and to properly supervise her
after engaging her. Since hiring and supervising medical personnel, as well as
safeguarding incapacitated patients, are clearly within the scope of services for
which the hospital is licensed, its alleged failure to do so necessarily states a
claim for professional negligence. Accordingly, plaintiff cannot pursue a claim
of direct negligence against the hospital.” (So v. Shin (2013) 212 Cal.App.4th
652, 668 [151 Cal.Rptr.3d 257].)
• “[Asking] whether [defendant] hired [employee] was necessary given the
274

dispute over who hired [employee]—[defendant] or [decedent]. As the trial

court noted, ‘The employment was neither stipulated nor obvious on its face.’
However, if the trial court began the jury instructions or special verdict form
with, ‘Was [employee] unfit or incompetent to perform the work for which he
was hired,’ confusion was likely to result as the question assumed a hiring.
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
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-H,
Employment Torts and Related Claims—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)
275

427. Furnishing Alcoholic Beverages to Minors (Civ. Code,

§ 1714(d))
[Name of plaintiff] claims [name of defendant] is responsible for [his/her]

harm because [name of defendant] furnished alcoholic beverages to [him/
her/[name of minor]], a minor, at [name of defendant]’s home.
following:
1. That [name of defendant] was an adult;
2. That [name of defendant] knowingly furnished alcoholic beverages
to [him/her/[name of minor]] at [name of defendant]’s home;
3. That [name of defendant] knew or should have known that [he/
she/[name of minor]] was less than 21 years old at the time;
4. That [name of plaintiff] was harmed [by [name of minor]]; and
5. That [name of defendant]’s furnishing alcoholic beverages to
[[name of plaintiff]/[name of minor]] was a substantial factor in
New December 2011

Directions for Use
This instruction is for use for a claim of social host (noncommercial) liability for
furnishing alcohol to a minor. (See Civ. Code, § 1714(d).) For an instruction for
commercial liability, see CACI No. 422, Sale of Alcoholic Beverages to Obviously
Intoxicated Minors.
Under the statute, the minor may sue for his or her own injuries, or a third person
may sue for injuries caused by the minor. (Civ. Code, § 1714(d)(2).) If the minor is
the plaintiff, use the appropriate pronoun throughout. If the plaintiff is a third
person, select “[name of minor]” throughout and include “by [name of minor]” in
element 4.
• No Social Host Liability for Furnishing Alcohol. Civil Code section 1714(c).
• Exception to Nonliability. Civil Code section 1714(d).
• “Although the claim against [host] appears to fall within the section 1714,
subdivision (d) exception, plaintiffs cannot bootstrap respondents into that
exception by alleging that respondents conspired with or aided and abetted
[host] by providing alcoholic beverages that were furnished to [minor].
Subdivision (b) of section 1714 unequivocally states that ‘the furnishing of
alcoholic beverages is not the proximate cause of injuries resulting from
276

intoxication . . . .’ This provision necessarily precludes liability against anyone

who furnished alcohol to someone who caused injuries due to intoxication. The
exception set forth in subdivision (d) vitiates subdivision (b) for a very narrow
class of claims: claims against an adult who knowingly furnishes alcohol at his
or her residence to a person he or she knows is under the age of 21. Because
respondents are not alleged to have furnished alcohol to [minor] at their
residences, plaintiffs’ claims against them are barred because, as a matter of
statutory law, plaintiffs cannot establish that respondents’ actions proximately
caused plaintiffs’ injuries.” (Rybicki v. Carlson (2013) 216 Cal.App.4th 758, 764
[157 Cal.Rptr.3d 660].)
• “We shall make no effort to state definitively the meaning of the word
‘furnishes’ . . . . As used in a similar context the word ‘furnish’ has been said
to mean: ‘ “To supply; to offer for use, to give, to hand.” ’ It has also been said
the word ‘furnish’ is synonymous with the words ‘supply’ or ‘provide.’ In
relation to a physical object or substance, the word ‘furnish’ connotes
possession or control over the thing furnished by the one who furnishes it. The
word ‘furnish’ implies some type of affirmative action on the part of the
furnisher; failure to protest or attempt to stop another from imbibing an
alcoholic beverage does not constitute ‘furnishing.’ ” (Bennett v. Letterly (1977)
• “As used in liquor laws, ‘furnish’ means to provide in any way, and includes
giving as well as selling. . . . [¶] California courts have interpreted the terms
‘furnish’ and ‘furnished’ as requiring an affirmative act by the purported
furnisher to supply the alcoholic beverage to the drinker.” (Fiorini v. City
Brewing Co., LLC (2014) 231 Cal.App.4th 306, 320–321 [179 Cal.Rptr.3d 827]
[beverage manufacturer does not “furnish” beverage to the consumer], footnote
and internal citation omitted.)
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Duty and Breach, § 1.21 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 19, Alcoholic Beverages: Civil
Liability, §§ 19.11, 19.13 (Matthew Bender)
1 California Points and Authorities, Ch. 15A, Alcoholic Beverages: Civil Liability
for Furnishing, § 15A.21 et seq. (Matthew Bender)
277

[Name of plaintiff] claims that [he/she] was harmed because of [name of

defendant]’s negligent supervision of [name of minor]. To establish this
1. That [name of defendant] [insert one or both of the following:]
1. [observed [name of minor]’s dangerous behavior that led to [name
of plaintiff]’s injury;] [or]
1. [was aware of [name of minor]’s habits or tendencies that created
an unreasonable risk of harm to other persons;]
2. That [name of defendant] had the opportunity and ability to
control the conduct of [name of minor];
3. That [name of defendant] was negligent because [he/she] failed to
[insert one or both of the following:]
3. [exercise reasonable care to prevent [name of minor]’s conduct;]
[or]
3. [take reasonable precautions to prevent harm to others;]
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).
• “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
278

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],
• “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,
• “ ‘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)
Secondary Sources
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)
(Matthew Bender)
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)
279

[Name of plaintiff] claims that [name of defendant] sexually transmitted

[specify sexually transmitted disease, e.g., HIV] to [him/her]. [Name of
defendant] may be negligent for this transmission if [name of plaintiff]
proves that [name of defendant] knew, or had reason to know, that [he/
she] was infected with [e.g., HIV].
New May 2017

Directions for Use
This instruction should be given with CACI No. 400, Negligence—Essential
Factual Elements. In a claim for negligent transmission of a sexually
communicable disease, the elements of negligence, duty, breach, and causation of
harm must be proved. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188 [45
Cal.Rptr.3d 316, 137 P.3d 153].)
One has a duty to avoid transmission if he or she should have known that he or she
was infected with the disease (constructive knowledge). (John B., supra, 38 Cal.4th
at pp. 1190–1191.) While the existence of a duty is a question of law for the court,
what a person should have known is a question of fact.
It must be noted that in John B., the court limited its holding on constructive
knowledge to the facts of the case before it, which involved a couple who were
engaged and subsequently married; a defendant who was alleged to have falsely
represented himself as monogamous and disease-free, and who insisted the couple
stop using condoms; and a plaintiff who agreed to stop using condoms in reliance
on those allegedly false representations. The court did not consider the existence or
scope of a duty for persons whose relationship did not extend beyond the sexual
encounter itself, whose relationship did not contemplate sexual exclusivity, who had
not represented themselves as disease-free, or who had not insisted on having sex
without condoms. (John B., supra, 38 Cal.4th at p. 1193.) Therefore, this
instruction may not be appropriate on facts that were expressly reserved in John B.
• “[A] person who unknowingly contracts a sexually transmitted disease such as
herpes may maintain an action for damages against one who either negligently
or through deceit infects her with the disease.” (Doe v. Roe (1990) 218
Cal.App.3d 1538, 1543 [267 Cal.Rptr. 564].)
• “[T]o be stricken with disease through another’s negligence is in legal
contemplation as it often is in the seriousness of consequences, no different
from being struck with an automobile through another’s negligence.” (John B.,
supra, 38 Cal.4th at p. 1188, original italics.)
• “Because ‘ “[a]ll persons are required to use ordinary care to prevent others
280

being injured as a result of their conduct” ’, this court has repeatedly recognized
a cause of action for negligence not only against those who have actual
knowledge of unreasonable danger, but also against those who have constructive
knowledge of it.” (John B., supra, 38 Cal.4th at p. 1190, internal citation
omitted.)
• “ ‘[C]onstructive knowledge,’ which means knowledge ‘that one using
reasonable care or diligence should have, and therefore is attributed by law to a
given person’, encompasses a variety of mental states, ranging from one who is
deliberately indifferent in the face of an unjustifiably high risk of harm to one
who merely should know of a dangerous condition. (John B., supra, 38 Cal.4th
at pp. 1190–1191, internal citations omitted.)
• “[T]he tort of negligent transmission of HIV does not depend solely on actual
knowledge of HIV infection and would extend at least to those situations where
the actor, under the totality of the circumstances, has reason to know of the
infection. Under the reason-to-know standard, ‘the actor has information from
which a person of reasonable intelligence or of the superior intelligence of the
actor would infer that the fact in question exists, or that such person would
govern his conduct upon the assumption that such fact exists.’ In other words,
‘the actor has knowledge of facts from which a reasonable man of ordinary
intelligence or one of the superior intelligence of the actor would either infer
the existence of the fact in question or would regard its existence as so highly
probable that his conduct would be predicated upon the assumption that the fact
did exist.’ ” (John B., supra, 38 Cal.4th at p. 1191, internal citations omitted.)
• “[W]e are mindful that our precedents direct us to consider whether a duty of
care exists ‘ “on a case-by-case basis.” ’ Accordingly, our conclusion that a
claim of negligent transmission of HIV lies against those who know or at least
have reason to know of the disease must be understood in the context of the
allegations in this case, which involves a couple who were engaged and
subsequently married; a defendant who falsely represented himself as
monogamous and disease-free and insisted the couple stop using condoms; and
a plaintiff who agreed to stop using condoms in reliance on those false
representations. We need not consider the existence or scope of a duty for
persons whose relationship does not extend beyond the sexual encounter itself,
whose relationship does not contemplate sexual exclusivity, who have not
represented themselves as disease-free, or who have not insisted on having sex
without condoms.” (John B., supra, 38 Cal.4th at p. 1193.)
Secondary Sources
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2]
(Matthew Bender)
281


Bender)
282

A substantial factor in causing harm is a factor that a reasonable person

would consider to have contributed to the harm. It must be more than a
remote or trivial factor. It does not have to be the only cause of the
harm.
[Conduct is not a substantial factor in causing harm if the same harm
would have occurred without that conduct.]
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.
283


• “The test for joint tort liability is set forth in section 431 of the Restatement of
Torts 2d, which provides: ‘The actor’s negligent conduct is a legal cause of
harm to another if (a) his conduct is a substantial factor in bringing about the
harm, and, (b) there is no rule of law relieving the actor from liability because
of the manner in which his negligence has resulted in the harm.’ Section 431
correctly states California law as to the issue of causation in tort cases.” (Wilson
v. Blue Cross of So. Cal. (1990) 222 Cal.App.3d 660, 671–672 [271 Cal.Rptr.
876].)
• “California has definitively adopted the substantial factor test of the Restatement
Second of Torts for cause-in-fact determinations. Under that standard, a cause in
fact is something that is a substantial factor in bringing about the injury. The
substantial factor standard generally produces the same results as does the ‘but
for’ rule of causation which states that a defendant’s conduct is a cause of the
injury if the injury would not have occurred ‘but for’ that conduct. The
substantial factor standard, however, has been embraced as a clearer rule of
causation—one which subsumes the ‘but for’ test while reaching beyond it to
satisfactorily address other situations, such as those involving independent or
concurrent causes in fact.” (Rutherford, supra, 16 Cal.4th at pp. 968–969,
• “The term ‘substantial factor’ has not been judicially defined with specificity,
and indeed it has been observed that it is ‘neither possible nor desirable to
reduce it to any lower terms.’ This court has suggested that a force which plays
only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or
loss is not a substantial factor. Undue emphasis should not be placed on the
term ‘substantial.’ For example, the substantial factor standard, formulated to
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
• “The substantial factor standard is a relatively broad one, requiring only that the
contribution of the individual cause be more than negligible or theoretical.
Thus, ‘a force which plays only an “infinitesimal” or “theoretical” part in
bringing about injury, damage, or loss is not a substantial factor’, but a very
minor force that does cause harm is a substantial factor. This rule honors the
principle of comparative fault.” (Bockrath v. Aldrich Chemical Co. (1999) 21
Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citations omitted.)
• “The text of Restatement Torts second section 432 demonstrates how the
‘substantial factor’ test subsumes the traditional ‘but for’ test of causation.
Subsection (1) of section 432 provides: ‘Except as stated in Subsection (2), the
actor’s negligent conduct is not a substantial factor in bringing about harm to
284

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
• “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
285

of the Restatement Second of Torts, section 423, which subsumes traditional

‘but for’ causation. This case does not involve concurrent independent causes,
so the ‘but for’ test governs questions of factual causation.” (State Dept. of
State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 354 [188 Cal.Rptr.3d
309, 349 P.3d 1013], footnote omitted.)
• “The substantial factor standard generally produces the same results as does the
‘but for’ rule of causation which states that a defendant’s conduct is a cause of
the injury if the injury would not have occurred ‘but for’ that conduct. The
substantial factor standard, however, has been embraced as a clearer rule of
causation—one which subsumes the ‘but for’ test while reaching beyond it to
satisfactorily address other situations, such as those involving independent or
concurrent causes in fact.” (People v. Foalima (2015) 239 Cal.App.4th 1376,
• “ ‘Whether a defendant’s conduct actually caused an injury is a question of fact
. . . that is ordinarily for the jury . . . .’ ‘[C]ausation in fact is ultimately a
matter of probability and common sense: “[A plaintiff] is not required to
eliminate entirely all possibility that the defendant’s conduct was not a cause. It
is enough that he introduces evidence from which reasonable [persons] may
conclude that it is more probable that the event was caused by the defendant
than that it was not. The fact of causation is incapable of mathematical proof,
since no [person] can say with absolute certainty what would have occurred if
the defendant had acted otherwise. If, as a matter of ordinary experience, a
particular act or omission might be expected to produce a particular result, and
if that result has in fact followed, the conclusion may be justified that the causal
relation exists. In drawing that conclusion, the triers of fact are permitted to
draw upon ordinary human experience as to the probabilities of the case.” ’ . . .
‘ “A mere possibility of . . . causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a verdict for the
defendant.” ’ ” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029–1030
• “[E]vidence of causation ‘must rise to the level of a reasonable probability
based upon competent testimony. [Citations.] “A possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.”
[Citation.] The defendant’s conduct is not the cause in fact of harm “ ‘where the
evidence indicates that there is less than a probability, i.e., a 50-50 possibility or
a mere chance,’ ” that the harm would have ensued.’ ” (Bowman v. Wyatt (2010)
186 Cal.App.4th 286, 312 [111 Cal.Rptr.3d 787].)
• “However the test is phrased, causation in fact is ultimately a matter of
probability and common sense.” (Osborn v. Irwin Memorial Blood Bank (1992)
5 Cal.App.4th 234, 253 [7 Cal.Rptr.2d 101], relying on Rest.2d Torts, § 433B,
com. b.)
• “The Supreme Court . . . set forth explicit guidelines for plaintiffs attempting
286

to allege injury resulting from exposure to toxic materials: A plaintiff must

‘allege that he was exposed to each of the toxic materials claimed to have
caused a specific illness’; ‘identify each product that allegedly caused the
injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; allege
that ‘he suffers from a specific illness, and that each toxin that entered his body
was a substantial factor in bringing about, prolonging, or aggravating that
illness’; and, finally, allege that ‘each toxin he absorbed was manufactured or
supplied by a named defendant.’ ” (Jones v. ConocoPhillips Co. (2011) 198
Cal.App.4th 1187, 1194 [130 Cal.Rptr.3d 571], quoting Bockrath, supra, 21
Cal.4th at p. 80, footnote omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1185–1189, 1191
1 Levy et al., California Torts, Ch. 2, Causation, § 2.02 (Matthew Bender)
§ 2.22, Ch. 7, Proof, § 7.06 (Matthew Bender)
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.260–165.263
(Matthew Bender)
287

A person’s negligence may combine with another factor to cause harm.

If you find that [name of defendant]’s negligence was a substantial factor
in causing [name of plaintiff]’s harm, then [name of defendant] is
responsible for the harm. [Name of defendant] cannot avoid
responsibility just because some other person, condition, or event was
also a substantial factor in causing [name of plaintiff]’s harm.
New September 2003

Directions for Use
This instruction will apply only when negligence is the theory asserted against the
defendant. This instruction should be modified if the defendant is sued on a theory
of product liability or intentional tort.
• “ ‘Where several persons act in concert and damages result from their joint tort,
each person is held for the entire damages unless segregation as to causation
can be established. Even though persons are not acting in concert, if the results
produced by their acts are indivisible, each person is held liable for the whole.”
(Hughey v. Candoli (1958) 159 Cal.App.2d 231, 240 [323 P.2d 779].)
• “In cases where concurrent independent causes contribute to an injury, we apply
the ‘substantial factor’ test of the Restatement Second of Torts, section 423,
which subsumes traditional ‘but for’ causation.” (State Dept. of State Hospitals
v. Superior Court (2015) 61 Cal.4th 339, 352 fn. 12 [188 Cal.Rptr.3d 309, 349
P.3d 1012].)
• “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].)
• “We are also not persuaded CACI No. 431 confused the jury or diluted the
standard for causation. The [defendants] conflate the legal concepts of
substantial factor for causation and concurrent cause. CACI No. 431 is
necessary to explain to the jury a ‘plaintiff need not prove that the defendant’s
negligence was the sole cause of plaintiff’s injury in order to recover. Rather it
is sufficient that defendant’s negligence is a legal cause of injury, even though it
operated in combination with other causes, whether tortious or nontortious.’ ”
(Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735,
288

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
• “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
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.280–165.284
(Matthew Bender)
289

432. Affirmative Defense—Causation: Third-Party Conduct as

Superseding Cause
[Name of defendant] claims that [he/she/it] is not responsible for [name of

plaintiff]’s harm because of the later misconduct of [insert name of third
party]. To avoid legal responsibility for the harm, [name of defendant]
1. That [name of third party]’s conduct occurred after the conduct
of [name of defendant];
2. That a reasonable person would consider [name of third party]’s
conduct a highly unusual or an extraordinary response to the
situation;
3. That [name of defendant] did not know and had no reason to
expect that [name of third party] would act in a
[negligent/wrongful] manner; and
4. That the kind of harm resulting from [name of third party]’s
conduct was different from the kind of harm that could have
been reasonably expected from [name of defendant]’s conduct.

Directions for Use
A superseding cause instruction should be given if the issue is raised by the
evidence. (See Paverud v. Niagara Machine and Tool Works (1987) 189
Cal.App.3d 858, 863 [234 Cal.Rptr. 585]; disapproved in Soule v. General Motors
Corp. (1994) 8 Cal. 4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d. 298] [there is
no rule of automatic reversal or inherent prejudice applicable to any category of
civil instructional error].) The issue of superseding cause should be addressed
directly in a specific instruction. (See Self v. General Motors Corp. (1974) 42
Cal.App.3d 1, 10 [116 Cal.Rptr. 575]; disapproved in Soule, supra, 8 Cal. 4th at p.
580.)
Superseding cause is an affirmative defense that must be proved by the defendant.
(Maupin v. Widling (1987) 192 Cal.App.3d 568, 578 [237 Cal.Rptr. 521].)
Therefore, the elements of this instruction are phrased in the affirmative and require
the defendant to prove that they are all present in order to establish superseding
cause. (See Martinez v. Vintage Petroleum (1998) 68 Cal.App.4th 695, 702 [80
Cal.Rptr.2d 449].)
If, as a matter of law, a party is liable for subsequent negligence, as in subsequent
medical negligence, this instruction should not be given.
290


• “ ‘It is well established . . . that one’s general duty to exercise due care
includes the duty not to place another person in a situation in which the other
person is exposed to an unreasonable risk of harm through the reasonably
foreseeable conduct (including the reasonably foreseeable negligent conduct) of
a third person.’ In determining whether one has a duty to prevent injury that is
the result of third party conduct, the touchstone of the analysis is the
foreseeability of that intervening conduct.” (Kesner v. Superior Court (2016) 1
Cal.5th 1132, 1148 [210 Cal.Rptr.3d 283, 384 P.3d 283], internal citation
omitted.)
• “This issue is concerned with whether or not, assuming that a defendant was
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
• “This test is but another way of saying that foreseeable intervening ordinary
291

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
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
• “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
292

conduct” ’ in the first place.” (Pedeferri v. Seidner Enterprises (2013) 216

• “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
• “[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]
[unforeseeable bankruptcy can be superseding cause].)
• “Whether an intervening force is superseding or not generally presents a
question of fact, but becomes a matter of law where only one reasonable
conclusion may be reached.” (Ash, supra, 223 Cal.App.4th at p. 1274.)
• “[O]ne does not reach the issue of superseding cause until one is satisfied that
the record supports a finding of negligence on the part of the defendant and a
further finding that but for such negligence the accident would not have
occurred. This, at least, has been the approach of our Supreme Court. . . .
[S]uch an approach may be analytically wrong, because a finding that plaintiff’s
harm was due to a superseding cause, is, in reality, a finding that the cause
which injured the plaintiff was not a part of the risk created by the defendant.”
(Ewart v. Southern California Gas Co. (1965) 237 Cal.App.2d 163, 169 [46
Cal.Rptr. 631].)
• “The potential for error in the [instruction] lies in the ambiguity of the words
‘extraordinary’ and ‘abnormal.’ These terms could be interpreted as meaning
either: A. Unforeseeable (unpredictable, statistically extremely improbable, etc.);
or B. Outside the scope of that which would be done by ordinary man. The
instruction was correct if interpreted in sense A, since defendant’s conduct
would not in fact give rise to liability if the criminal act were unforeseeable.
However, the instruction was incorrect if interpreted in sense B. Such an
interpretation would almost invariably preclude liability for failure to police
against criminal conduct, since there are very few situations indeed to which
ordinary men would respond by committing serious criminal offenses. Yet it is
not the law that one has no duty to protect against foreseeable criminal acts.”
(Campodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 807 [89
Cal.Rptr. 270], original italics.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-O, Causation
Issues, ¶ 2:2444 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1326 (The Rutter Group)
293


(Matthew Bender)
(Matthew Bender)
(Matthew Bender)
294

433. Affirmative Defense—Causation: Intentional Tort/Criminal

Act as Superseding Cause

plaintiff]’s harm because of the later [criminal/intentional] conduct of
[insert name of third party]. [Name of defendant] is not responsible for
[name of plaintiff]’s harm if [name of defendant] proves [both/all] of the
following:
[1. That [name of third party] committed [an intentional/a criminal]
act;]]
2. That [name of third party]’s [intentional/criminal] conduct
happened after the conduct of [name of defendant]; and
3. That [name of defendant] did not know and could not have
reasonably foreseen that another person would be likely to take
advantage of the situation created by [name of defendant]’s
conduct to commit this type of act.

Directions for Use
Give the optional first element if there is a dispute of fact as to whether the third
party actually committed the criminal or intentional act that is alleged to constitute
superseding cause. The element may be modified to describe the alleged act more
particularly if desired.
• “California has adopted the modern view embodied in section 448 of the
Restatement Second of Torts: ‘The act of a third person in committing an
intentional tort or crime is a superseding cause of harm to another resulting
therefrom, although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or crime,
unless the actor at the time of his negligent conduct realized or should have
realized the likelihood that such a situation might be created, and that a third
person might avail himself of the opportunity to commit such a tort or crime.’
Present California decisions establish that a criminal act will be deemed a
superseding cause unless it involves a particular and foreseeable hazard inflicted
upon a member of a foreseeable class.” (Kane v. Hartford Accident and
Indemnity Co. (1979) 98 Cal.App.3d 350, 360 [159 Cal.Rptr. 446].)
• “[A]n intervening act does not amount to a ‘superseding cause’ relieving the
negligent defendant of liability if it was reasonably foreseeable: ‘[An] actor may
be liable if his negligence is a substantial factor in causing an injury, and he is
not relieved of liability because of the intervening act of a third person if such
295

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
• “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
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303,
296

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.
New September 2003

• This instruction is based on the rule stated in the case of Summers v. Tice
(1948) 33 Cal.2d 80, 86 [199 P.2d 1], in which the Court held that the burden
of proof on causation shifted to the two defendants to prove that each was not
the cause of plaintiff’s harm: “They brought about a situation where the
negligence of one of them injured the plaintiff, hence it should rest with them
each to absolve himself if he can. The injured party has been placed by
defendants in the unfair position of pointing to which defendant caused the
harm. If one can escape the other may also and plaintiff is remediless.”
• Restatement Second of Torts, section 433B(3), provides: “Where the conduct of
two or more actors is tortious, and it is proved that harm has been caused to the
plaintiff by only one of them, but there is uncertainty as to which one has
caused it, the burden is upon each such actor to prove that he has not caused
the harm.”
• The Summers rule applies to multiple causes, at least one of which is tortious.
(Vahey v. Sacia (1981) 126 Cal.App.3d 171, 177, fn. 2 [178 Cal.Rptr. 559].)
Thus, it can apply where there is only one defendant. (Id. at p. 177.) However,
California courts apply the alternative liability theory only when all potential
tortfeasors have been joined as defendants. (Setliff v. E. I. Du Pont De Nemours
& Co. (1995) 32 Cal.App.4th 1525, 1534–1535 [38 Cal.Rptr.2d 763].)
Secondary Sources
Bender)
297


Bender)
298

A substantial factor in causing harm is a factor that a reasonable person

would consider to have contributed to the harm. It does not have to be
the only cause of the harm.
[Name of plaintiff] may prove that exposure to asbestos from [name of
defendant]’s product was a substantial factor causing [his/her/[name of
decedent]’s] illness by showing, through expert testimony, that there is a
reasonable medical probability that the exposure was a substantial
factor contributing to [his/her] risk of developing cancer.

Directions for Use
If the issue of medical causation is tried separately, revise this instruction to focus
on that issue.
If necessary, CACI No. 431, Causation: Multiple Causes, may also be given.
Unless there are other defendants who are not asbestos manufacturers or suppliers,
do not give CACI No. 430, Causation: Substantial Factor.
• “In the context of a cause of action for asbestos-related latent injuries, the
plaintiff must first establish some threshold exposure to the defendant’s
defective asbestos-containing products, and must further establish in reasonable
medical probability that a particular exposure or series of exposures was a
‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.
In an asbestos-related cancer case, the plaintiff need not prove that fibers from
the defendant’s product were the ones, or among the ones, that actually began
the process of malignant cellular growth. Instead, the plaintiff may meet the
burden of proving that exposure to defendant’s product was a substantial factor
causing the illness by showing that in reasonable medical probability it was a
substantial factor contributing to the plaintiff’s or decedent’s risk of developing
cancer. The jury should be so instructed. The standard instructions on
substantial factor and concurrent causation remain correct in this context and
should also be given.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953,
982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203], original italics, internal citation
and footnotes omitted.)
• “The term ‘substantial factor’ has not been judicially defined with specificity,
and indeed it has been observed that it is ‘neither possible nor desirable to
reduce it to any lower terms.’ This court has suggested that a force which plays
only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or
loss is not a substantial factor. Undue emphasis should not be placed on the
term ‘substantial.’ For example, the substantial factor standard, formulated to
299

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
• “[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
300

manufactured or furnished by [defendant] with enough frequency and regularity

as to show a reasonable medical probability that this exposure was a factor in
causing the plaintiff’s injuries.’ ” (Whitmire v. Ingersoll-Rand Co. (2010) 184
• “Further, ‘[t]he mere “possibility” of exposure’ is insufficient to establish
causation. ‘[P]roof that raises mere speculation, suspicion, surmise, guess or
conjecture is not enough to sustain [the plaintiff’s] burden’ of persuasion.” (Izell
v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969 [180 Cal.Rptr.3d
• “To support an allocation of liability to another party in an asbestos case, a
defendant must ‘present evidence that the aggregate dose of asbestos particles
arising from’ exposure to that party’s asbestos ‘constituted a substantial factor in
the causation of [the decedent’s] cancer.’ ” (Soto v. BorgWarner Morse TEC Inc.
• “ ‘[G]iven the long latency period of asbestos-related disease, and the
occupational settings that commonly exposed the worker to multiple forms and
brands of asbestos products with varying degrees of toxicity,’ our Supreme
Court has held that a plaintiff ‘need not prove with medical exactitude that
fibers from a particular defendant’s asbestos-containing products were those, or
among those, that actually began the cellular process of malignancy.’ Rather, a
‘plaintiff may meet the burden of proving that exposure to defendant’s product
was a substantial factor causing the illness by showing that in reasonable
medical probability it was a substantial factor contributing to the plaintiff’s or
decedent’s risk of developing cancer.’ ” (Izell, supra, 231 Cal.App.4th at p. 975,
original italics, internal citation omitted.)
• “Many factors are relevant in assessing the medical probability that an exposure
contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of
exposure, and proximity of the asbestos product to plaintiff are certainly
relevant, although these considerations should not be determinative in every
case. [Citation.] Additional factors may also be significant in individual cases,
such as the type of asbestos product to which plaintiff was exposed, the type of
injury suffered by plaintiff, and other possible sources of plaintiff’s injury.
[Citations.] ‘Ultimately, the sufficiency of the evidence of causation will depend
on the unique circumstances of each case.’ [Citation.] ” (Paulus v. Crane Co.
(2014) 224 Cal.App.4th 1357, 1363–1364 [169 Cal.Rptr.3d 373].)
• “In this case, [defendant] argues the trial court’s refusal to give its proposed
instruction was error because the instruction set forth ‘the requirement in
Rutherford that causation be decided by taking into account “the length,
frequency, proximity and intensity of exposure, the peculiar properties of the
individual product, [and] any other potential causes to which the disease could
be attributed.” ’ But Rutherford does not require the jury to take these factors
into account when deciding whether a plaintiff’s exposure to an asbestos-
containing product was a substantial factor in causing mesothelioma. Instead,
those factors are ones that a medical expert may rely upon in forming his or her
301

expert medical opinion.” (Davis v. Honeywell Internat. Inc. (2016) 245

• “Mere presence at a site where asbestos was present is insufficient to establish
legally significant asbestos exposure.” (Shiffer v. CBS Corp. (2015) 240
• “We disagree with the trial court’s view that Rutherford mandates that a medical
doctor must expressly link together the evidence of substantial factor causation.
The Rutherford court did not create a requirement that specific words must be
recited by appellant’s expert. Nor did the Rutherford court specify that the
testifying expert in asbestos cases must always be ‘somebody with an M.D.
after his name.’ The Rutherford court agreed with the Lineaweaver court that
‘the reference to “medical probability” in the standard “is no more than a
recognition that asbestos injury cases (like medical malpractice cases) involve
the use of medical evidence.” [Citation.]’ The Supreme Court has since clarified
that medical evidence does not necessarily have to be provided by a medical
doctor.” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 675 [156
• “Nothing in Rutherford precludes a plaintiff from establishing legal causation
through opinion testimony by a competent medical expert to the effect that
every exposure to respirable asbestos contributes to the risk of developing
mesothelioma. On the contrary, Rutherford acknowledges the scientific debate
between the ‘every exposure’ and ‘insignificant exposure’ camps, and recognizes
that the conflict is one for the jury to resolve.” (Izell, supra, 231 Cal.App.4th at
p. 977.)
• “[T]he identified-exposure theory is a more rigorous standard of causation than
the every-exposure theory. As a single example of the difference, we note
[expert]’s statement that it ‘takes significant exposures’ to increase the risk of
disease. This statement uses the plural ‘exposures’ and also requires that those
exposures be ‘significant.’ The use of ‘significant’ as a limiting modifier appears
to be connected to [expert]’s earlier testimony about the concentrations of
airborne asbestos created by particular activities done by [plaintiff], such as
filing, sanding and using an airhose to clean a brake drum.” (Phillips v.
Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1088 [217 Cal.Rptr.3d
147].)
• “Nor is there a requirement that ‘specific words must be recited by [plaintiffs’]
expert.’ [¶ ] The connection, however, must be made between the defendant’s
asbestos products and the risk of developing mesothelioma suffered by the
decedent.” (Paulus, supra, 224 Cal.App.4th at p. 1364.)
• “We hold that the duty of employers and premises owners to exercise ordinary
care in their use of asbestos includes preventing exposure to asbestos carried by
the bodies and clothing of on-site workers. Where it is reasonably foreseeable
that workers, their clothing, or personal effects will act as vectors carrying
asbestos from the premises to household members, employers have a duty to
302

take reasonable care to prevent this means of transmission. This duty also
applies to premises owners who use asbestos on their property, subject to any
exceptions and affirmative defenses generally applicable to premises owners,
such as the rules of contractor liability. Importantly, we hold that this duty
extends only to members of a worker’s household. Because the duty is
premised on the foreseeability of both the regularity and intensity of contact
that occurs in a worker’s home, it does not extend beyond this circumscribed
category of potential plaintiffs.” (Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1140 [210 Cal.Rptr.3d 283, 384 P.3d 283].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 570
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Theories of
Recovery—Strict Liability For Defective Products, ¶ 2:1259 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-O, Theories of
Recovery—Causation Issues, ¶ 2:2409 (The Rutter Group)
(Matthew Bender)
303

440. Unreasonable Force by Law Enforcement Officer in Arrest or

Other Seizure Essential Factual Elements
A law enforcement officer may use reasonable force to [arrest/detain] a

person when the officer has reasonable cause to believe that that person
has committed or is committing a crime. However, the officer may use
only that degree of force necessary to accomplish the [arrest/detention].
[Name of plaintiff] claims that [name of defendant] used unreasonable
force in [arresting/detaining] [him/her]. To establish this claim, [name of
1. That [name of defendant] used force in [arresting/detaining] [name
of plaintiff];
2. That the amount of force used by [name of defendant] was
unreasonable;
4. That [name of defendant]’s use of unreasonable force was a
In deciding whether [name of defendant] used unreasonable force, you
must consider all of the circumstances of the [arrest/detention] and
determine what force a reasonable [insert type of peace offıcer] in [name
of defendant]’s position would have used under the same or similar
circumstances. Among the factors to be considered are the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; [and]
(c) Whether [name of plaintiff] was actively resisting
[arrest/detention] or attempting to avoid [arrest/detention] by
flight[; and/.]
[(d) [Name of defendant]’s tactical conduct and decisions before using
[deadly] force on [name of plaintiff].]
New June 2016

Directions for Use
Use this instruction if the plaintiff makes a negligence claim under state law arising
from the force used in effecting an arrest or detention. Such a claim is often
combined with a claimed civil rights violation under 42 United States Code section
1983 (See CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements.) It might also be combined with a claim for
304

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].)
• 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,
• “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
305

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,
• “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
• “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,
• “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
306

3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
(Matthew Bender)
307

[Name of defendant] claims that [he/she] is not responsible for [name of

plaintiff]’s harm because [he/she] was voluntarily trying to protect [name
of plaintiff] from harm in a nonemergency situation. If you decide that
[name of defendant] was negligent, [he/she] is not responsible unless
[name of plaintiff] proves both of the following:
1. [(a) That [name of defendant]’s failure to use reasonable care
added to the risk of harm;]
1. [or]
1. [(b) That [name of defendant]’s conduct caused [name of plaintiff]
to reasonably rely on [his/her] protection;]
AND
2. That the [additional risk/ [or] reliance] was a substantial factor
in causing harm to [name of plaintiff].
Derived from former CACI No. 450 December 2010

Directions for Use
Use this instruction for situations other than at the scene of an emergency. Different
standards apply in an emergency situation. (See Health & Saf. Code, § 1799.102;
CACI No. 450B, Good Samaritan—Scene of Emergency.) Give both instructions if
the jury will be asked to decide whether an emergency existed as the preliminary
issue. Because under Health and Safety Code section 1799.102 a defendant receives
greater protection in an emergency situation, the advisory committee believes that
the defendant bears the burden of proving an emergency. (See Evid. Code, § 500
[party has the burden of proof as to each fact the existence or nonexistence of
which is essential to the claim for relief or defense asserted].)
Select either or both options for element 1 depending on the facts.
• Good Samaritan Immunity for Medical Licensees. Business and Professions
Code sections 2395–2398.
• Good Samaritan Immunity for Nurses. Business and Professions Code sections
2727.5, 2861.5.
• Good Samaritan Immunity for Dentists. Business and Professions Code section
1627.5.
• Good Samaritan Immunity for Rescue Teams. Health and Safety Code section
1317(f).
• Good Samaritan Immunity for Persons Rendering Emergency Medical Services
308

NEGLIGENCE CACI No. 450A
Health and Safety Code section 1799.102.

• Good Samaritan Immunity for Paramedics. Health and Safety Code section
1799.104.
• Good Samaritan Immunity for First-Aid Volunteers. Government Code section
50086.
• “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.)
• “A person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act. Also pertinent to
our discussion is the role of the volunteer who, having no initial duty to do so,
undertakes to come to the aid of another—the ‘good Samaritan.’ . . . He is
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
• “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
Secondary Sources
4 Witkin, California Procedure (4th ed. 1996) Pleadings, § 553
309

CACI No. 450A NEGLIGENCE
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
Bender)
310


plaintiff]’s harm because [he/she] was trying to protect [name of plaintiff]
from harm at the scene of an emergency.
To succeed on this defense, [name of defendant] must prove all of the
following:
1. That [name of defendant] rendered medical or nonmedical care or
assistance to [name of plaintiff] at the scene of an emergency;
2. That [name of defendant] was acting in good faith; and
3. That [name of defendant] was not acting for compensation.
If you decide that [name of defendant] has proved all of the above, but
you decide that [name of defendant] was negligent, [he/she] is not
responsible unless [name of plaintiff] proves that [name of defendant]’s
conduct constituted gross negligence or willful or wanton misconduct.
“Gross negligence” is the lack of any care or an extreme departure from
what a reasonably careful person would do in the same situation.
“Willful or wanton misconduct” means conduct by a person who may
have no intent to cause 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.
If you find that [name of defendant] was grossly negligent or acted
willfully or wantonly, [name of plaintiff] must then also prove:
1. [(a) That [name of defendant]’s conduct added to the risk of
harm;]
1. [or]
1. [(b) That [name of defendant]’s conduct caused [name of plaintiff]
to reasonably rely on [his/her] protection;]
AND
2. That the [additional risk/ [or] reliance] was a substantial factor
in causing harm to [name of plaintiff].
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,
311

CACI No. 450B NEGLIGENCE
§ 1799.102.) In a nonemergency situation, give CACI No. 450A, Good

Samaritan—Nonemergency.
Under Health and Safety Code section 1799.102(b), the defendant must have acted
at the scene of an emergency, in good faith, and not for compensation. These terms
are not defined, and neither the statute nor case law indicates who has the burden
of proof. However, the advisory committee believes that it is more likely that the
defendant has the burden of proving those things necessary to invoke the
protections of the statute. (See Evid. Code, § 500 [party has the burden of proof as
to each fact the existence or nonexistence of which is essential to the claim for
relief or defense asserted].)
If the jury finds that the statutory standards have been met, then presumably it must
also find that the common-law standards for Good-Samaritan liability have also
been met. (See Health & Saf. Code, § 1799.102(c) [“Nothing in this section shall
be construed to change any existing legal duties or obligations”].) In the common-
law part of the instruction, select either or both options for element 1 depending on
the facts.
See also CACI No. 425, “Gross Negligence” Explained.
• Immunity for Persons Rendering Care at Scene of Emergency. Health and
Safety Code section 1799.102.
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara v. Superior Court
(2007) 41 Cal.4th 747, 754 [62 Cal.Rptr.3d 527, 161 P.3d 1095], internal
citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
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.)
• “A person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act. Also pertinent to
our discussion is the role of the volunteer who, having no initial duty to do so,
undertakes to come to the aid of another—the ‘good Samaritan.’ . . . He is
312

NEGLIGENCE CACI No. 450B
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
• 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
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)
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
313

CACI No. 450B NEGLIGENCE

Bender)
314

[Name of plaintiff] claims that [name of defendant] is responsible for

[name of plaintiff]’s harm because [name of defendant] failed to exercise
reasonable care to protect [name of third person]. To establish this claim,
1. That [name of defendant], voluntarily or for a charge, rendered
services for the protection of [name of third person];
2. That these services were of a kind that [name of defendant]
should have recognized as needed for the protection of [name of
plaintiff];
3. That [name of defendant] failed to exercise reasonable care in
rendering these services;
4. That [name of defendant]’s failure to exercise reasonable care was
a substantial factor in causing harm to [name of plaintiff]; and
5. [(a) That [name of defendant]’s failure to use reasonable care
added to the risk of harm;]
5. [or]
5. [(b) That [name of defendant]’s services were rendered to perform
a duty that [name of third person] owed to third persons
including [name of plaintiff];]
5. [or]
5. [(c) That [name of plaintiff] suffered harm because [[name of third
person]/ [or] [name of plaintiff]] relied on [name of defendant]’s
services.]
New June 2016

Directions for Use
This instruction presents the theory of liability known as the “negligent
undertaking” rule. (See Restatement Second of Torts, section 324A.) The elements
are stated in Paz v. State of California (2000) 22 Cal.4th 550, 553 [93 Cal.Rptr.2d
703, 994 P.2d 975].
In Paz, the court said that negligent undertaking is “sometimes referred to as the
‘Good Samaritan’ rule,” by which a person generally has no duty to come to the
aid of another and cannot be liable for doing so unless the person aiding’s acts
increased the risk to the person aided or the person aided relied on the person
aiding’s acts. (Paz, supra, 22 Cal.4th at p. 553; see CACI No. 450A, Good
Samaritan—Nonemergency.) It is perhaps more accurate to say that negligent
315

CACI No. 450C NEGLIGENCE
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.
• Negligent Undertaking. Restatement Second of Torts section 324A.
• “[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
316

NEGLIGENCE CACI No. 450C
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].)
Secondary Sources
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2][d],
[5][c] (Matthew Bender)
(Matthew Bender)
317

[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.]

Directions for Use
This instruction sets forth the affirmative defense of express or contractual
assumption of risk. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120
Cal.Rptr.3d 90].) It will be given in very limited circumstances. Both the
interpretation of a waiver agreement and application of its legal effect are generally
resolved by the judge before trial. The existence of a duty is a question of law for
the court (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal.Rptr.3d
234]), as is the interpretation of a written instrument if the interpretation does not
turn on the credibility of extrinsic evidence. (Allabach v. Santa Clara County Fair
Assn., Inc. (1996) 46 Cal.App.4th 1007, 1011 [54 Cal.Rptr.2d 330].)
However, there may be contract law defenses (such as fraud, lack of consideration,
duress, unconscionability) that could be asserted by the plaintiff to contest the
validity of a waiver. If these defenses depend on disputed facts that must be
considered by a jury, then this instruction should also be given.
Express assumption of risk does not relieve the defendant of liability if there was
gross negligence or willful injury. (See Civ. Code, § 1668.) However, the doctrine
of primary assumption of risk may then become relevant if an inherently dangerous
sport or activity is involved. (See Rosencrans v. Dover Images, Ltd. (2011) 192
If there are jury issues with regard to gross negligence, include the bracketed
language on gross negligence. Also give CACI No. 425, “Gross Negligence”
Explained. If the jury finds no gross negligence, then the action is barred by
express assumption of risk unless there are issues of fact with regard to contract
formation.
318


• Contract Releasing Party From Liability for Fraud or Willful Injury is Against
Public Policy. Civil Code section 1668.
• “[P]arties may contract for the release of liability for future ordinary negligence
so long as such contracts do not violate public policy. ‘A valid release precludes
liability for risks of injury within the scope of the release.’ ” (Anderson v.
Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877 [208 Cal.Rptr.3d 792],
• “Express assumption occurs when the plaintiff, in advance, expressly consents
. . . to relieve the defendant of an obligation of conduct toward him, and to
take his chances of injury from a known risk arising from what the defendant is
to do or leave undone. . . . The result is that . . . being under no duty, [the
defendant] cannot be charged with negligence.” (Saenz v. Whitewater Voyages,
Inc. (1990) 226 Cal.App.3d 758, 764 [276 Cal.Rptr. 672], internal citations
omitted.)
• “While often referred to as a defense, a release of future liability is more
appropriately characterized as an express assumption of the risk that negates the
defendant’s duty of care, an element of the plaintiff’s case.” (Eriksson, supra,
• “[C]ases involving express assumption of risk are concerned with instances in
which, as the result of an express agreement, the defendant owes no duty to
protect the plaintiff from an injury-causing risk. Thus in this respect express
assumption of risk properly can be viewed as analogous to primary assumption
of risk.” (Knight v. Jewett (1992) 3 Cal.4th 296, 308–309, fn. 4 [11 Cal.Rptr.2d
2, 834 P.2d 696].)
• “ ‘ “It is only necessary that the act of negligence, which results in injury to the
releaser, be reasonably related to the object or purpose for which the release is
given.” ’ . . . ‘An act of negligence is reasonably related to the object or
purpose for which the release was given if it is included within the express
scope of the release.’ ” (Eriksson, supra, 233 Cal.App.4th at p. 722.)
• “Although [decedent] could not release or waive her parents’ subsequent
wrongful death claims, it is well settled that a release of future liability or
express assumption of the risk by the decedent may be asserted as a defense to
such claims.” (Eriksson, supra, 233 Cal.App.4th at p. 725.)
• “[E]xculpatory clause which affects the public interest cannot stand.” (Tunkl v.
Regents of Univ. of California (1963) 60 Cal.2d 92, 98 [32 Cal.Rptr. 33, 383
P.2d 441].)
• “The issue [of whether something is in the public interest] is tested objectively,
by the activity’s importance to the general public, not by its subjective
importance to the particular plaintiff.” (Booth v. Santa Barbara Biplane Tours,
LLC (2008) 158 Cal.App.4th 1173, 1179–1180 [70 Cal.Rptr.3d 660], original
italics.)
319

• “[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 v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095], original
italics.)
• “ ‘ “A written release may exculpate a tortfeasor from future negligence or
misconduct. [Citation.] To be effective, such a release ‘must be clear,
unambiguous, and explicit in expressing the intent of the subscribing parties.’
[Citation.] The release need not achieve perfection. [Citation.] Exculpatory
agreements in the recreational sports context do not implicate the public interest
and therefore are not void as against public policy. [Citations.]” ’ ‘ “An
ambiguity exists when a party can identify an alternative, semantically
reasonable, candidate of meaning of a writing. [Citations.]” ’ ” (Huverserian v.
Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1467 [110 Cal.Rptr.3d
112], original italics, internal citations omitted.)
• “Unlike claims for ordinary negligence, products liability claims cannot be
waived.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631,
640 [184 Cal.Rptr.3d 155].)
• “Since there is no disputed issue of material fact concerning gross negligence,
the release also bars [plaintiff]’s cause of action for breach of warranty.”
(Grebing, supra, 234 Cal.App.4th at p. 640.)
• “Generally, a person who signs an instrument may not avoid the impact of its
terms on the ground that she failed to read it before signing. However, a release
is invalid when it is procured by misrepresentation, overreaching, deception, or
fraud. ‘It has often been held that if the releaser was under a misapprehension,
not due to his own neglect, as to the nature or scope of the release, and if this
misapprehension was induced by the misconduct of the releasee, then the
release, regardless of how comprehensively worded, is binding only to the
extent actually intended by the releaser.’ ‘In cases providing the opportunity for
overreaching, the releasee has a duty to act in good faith and the releaser must
have a full understanding of his legal rights. [Citations.] Furthermore, it is the
province of the jury to determine whether the circumstances afforded the
opportunity for overreaching, whether the releasee engaged in overreaching and
whether the releaser was misled. [Citation.]’ A ‘strong showing of misconduct’
by the plaintiff is not necessary to demonstrate the existence of a triable issue
of fact here; only a ‘slight showing’ is required.” (Jimenez v. 24 Hour Fitness
USA, Inc. (2015) 237 Cal.App.4th 546, 563–564 [188 Cal.Rptr.3d 228], internal
citations omitted.)
• “Plaintiffs assert that Jerid did not ‘freely and knowingly’ enter into the Release
because (1) the [defendant’s] employee represented the Release was a sign-in
sheet; (2) the metal clip of the clipboard obscured the title of the document; (3)
320

the Release was written in a small font; (4) [defendant] did not inform Jerid he
was releasing his rights by signing the Release; (5) Jerid did not know he was
signing a release; (6) Jerid did not receive a copy of the Release; and (7) Jerid
was not given adequate time to read or understand the Release. [¶ ] We do not
find plaintiffs’ argument persuasive because . . . there was nothing preventing
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
(Matthew Bender)
Bender)
321

[Name of plaintiff/defendant] claims that [he/she] was not negligent

because [he/she] acted with reasonable care in an emergency situation.
[Name of plaintiff/defendant] was not negligent if [he/she] proves all of
the following:
1. That there was a sudden and unexpected emergency situation in
which someone was in actual or apparent danger of immediate
injury;
2. That [name of plaintiff/defendant] did not cause the emergency;
and
3. That [name of plaintiff/defendant] acted as a reasonably careful
person would have acted in similar circumstances, even if it
appears later that a different course of action would have been
safer.
New September 2003

Directions for Use
The instruction should not be given unless at least two courses of action are
available to the party after the danger is perceived. (Anderson v. Latimer (1985)
166 Cal.App.3d 667, 675 [212 Cal.Rptr. 544].)
Additional instructions should be given if there are alternate theories of negligence.
• The doctrine of imminent peril may be used by either the plaintiff or the
defendant, or, in a proper case, both. (Smith v. Johe (1957) 154 Cal.App.2d 508,
511–512 [316 P.2d 688].)
• “Whether the conditions for application of the imminent peril doctrine exist is
itself a question of fact to be submitted to the jury.” (Damele v. Mack Trucks,
Inc. (1990) 219 Cal.App.3d 29, 37 [267 Cal.Rptr. 197]; see also Leo v. Dunham
(1953) 41 Cal.2d 712, 715 [264 P.2d 1].)
• “[A] person who, without negligence on his part, is suddenly and unexpectedly
confronted with peril, arising from either the actual presence, or the appearance,
of imminent danger to himself or to others, is not expected nor required to use
the same judgment and prudence that is required of him in the exercise of
ordinary care in calmer and more deliberate moments.” (Leo, supra, 41 Cal.2d
at p. 714.)
• The “doctrine is properly applied only in cases where an unexpected physical
danger is so suddenly presented as to deprive the injured party [or the
defendant] of his power of using reasonable judgment.” (Sadoian v. Modesto
322

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
• “[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
Bender)
Bender)
323

[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].
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.

Directions for Use
This instruction sets forth the rescue doctrine. As originally developed, the doctrine
established a duty of care toward the rescuer and was also the rescuer’s response to
the affirmative defense of contributory negligence when contributory negligence
was a complete bar to recovery. (See Solgaard v. Guy F. Atkinson Co. (1971) 6
Cal.3d 361, 368 [99 Cal.Rptr. 29, 491 P.2d 821].) Today it may be asserted in
much the same way as a response to a claim for comparative fault. (See
Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536–537 [34
Cal.Rptr.2d 630, 882 P.2d 347] [rescue doctrine discussed in case decided after
contributory negligence was no longer a complete bar].)
The doctrine does not apply if the plaintiff acted rashly or recklessly in attempting
the rescue. The defendant has the burden of proving rash or reckless conduct.
(Solgaard, supra, 6 Cal.3d at p. 368.)
One older case has held that the doctrine can apply to a defendant other than one
who created the emergency if the defendant negligently increased the plaintiff’s
peril. (See Scott v. Texaco, Inc. (1966) 239 Cal.App.2d 431, 435–436 [48
Cal.Rptr.785] [defendant’s vehicle negligently struck plaintiff while she was trying
to stop traffic because of an accident up ahead].) Subsequently, the California
Supreme Court stated the doctrine as a right to recover from the person whose
negligence created the peril. (Solgaard, supra, 6 Cal.3d at p. 368, emphasis added.)
However, the negligence of someone other than the one who created the emergency
was not at issue in the case, so it is not clear that the court’s language would
foreclose such a claim. To use this instruction for such a case, select “a danger to
324

[name of plaintiff]” in element 2. Also omit the bracketed material in the opening
sentence.
• “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
• “[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
325

doctrine, including an instruction to the jury that as a rescuer, plaintiff could

recover on the basis of defendant’s negligence to [its employees], if plaintiff’s
injury was a proximate result thereof, and if plaintiff acted neither rashly nor
recklessly under the circumstances.” (Solgaard, supra, 6 Cal.3d at p. 369.)
• “One also generally owes a duty of care to bystanders who attempt a rescue
that becomes necessary due to one’s own negligence. Thus, although it is
contributory negligence unreasonably to expose oneself to a risk created by the
defendant’s negligence, a person is not contributorily negligent who, with due
care, encounters the risk created by the defendant’s negligence in order to
perform a rescue necessitated by that negligence.” (Neighbarger, supra, 8
Cal.4th at pp. 536–537, internal citation omitted.)
• “We do not accept this narrow view of the rescue rule, which would focus
attention on the person creating the original danger and not on the person of the
rescuer. We think the force of the rule should properly be centered on the
rescuer, for it is the quality of his conduct which is being weighed. Whether he
was induced to enter a position of danger as a result of the act of a particular
defendant or as a result of some outside force is inconsequential to the process
of evaluating the quality of his behavior.” (Scott, supra, 239 Cal.App.2d at pp.
435–436.)
• “[Plaintiff] asserts that he should not have been required to show that
respondents’ negligence threatened real and imminent harm to himself or others,
but only that he reasonably perceived the appearance of such danger . . . . We
agree.” (Harris v. Oaks Shopping Ctr. (1999) 70 Cal.App.4th 206, 210 [82
Cal.Rptr.2d 523].)
• “Under the rescue doctrine, an actor is usually liable for injuries sustained by a
rescuer attempting to help another person placed in danger by the actor’s
negligent conduct. The question here is whether an actor is liable for injuries
sustained by a person who is trying to rescue the actor from his own
negligence. The answer is yes.” (Sears, supra, 76 Cal.App.4th at p. 579,
original italics.)
• “In general, the rescue doctrine permits a rescuer to recover for injuries
sustained while attempting to rescue a party placed in danger by the defendant’s
conduct. In this case we conclude that the rescuer cannot maintain negligence
claims against defendant because he failed to establish that a duty of care was
owed to the rescued party.” (Tucker, supra, 194 Cal.App.4th at p. 1248.)
• “There is some disagreement among the authorities where the danger is only to
property. In Henshaw v. Belyea (1934) 220 C. 458, 31 P.2d 348, plaintiff ran
from a safe place on the sidewalk in an attempt to save his employer’s truck
from slipping downhill by placing a block under a wheel, and his foot was
crushed. The court approved the extension of the rescue doctrine to such a case.
(220 C. 463.) (See 23 Cal. L. Rev. 110; 8 So. Cal. L. Rev. 159.)” (6 Witkin
Summary of California Law (10th ed. 2005) Torts, § 1308.)
326

Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03[4],
33 California Forms of Pleading and Practice, Ch. 380, Negligence,
§ 380.30[5][e][v] (Matthew Bender)
Bender)
327


before [insert date from applicable statute of limitation].

Directions for Use
This instruction states the common-law rule that an action accrues on the date of
injury. (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, 2007, the date is August 31, 2005.
For an instruction on the delayed-discovery rule, see CACI No. 455, Statute of
Limitations—Delayed Discovery. 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 attorney malpractice. (See CACI No. 610,
Affırmative Defense—Statute of Limitations—Attorney Malpractice—One-Year
Limit, and CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit.)
“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.
• Two-Year Statute of Limitations. Code of Civil Procedure section 335.1.
• Three-Year Statute of Limitations. Code of Civil Procedure section 338(c).
• One-Year Statute of Limitations. Code of Civil Procedure section 340.2(c).
• “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.” (Glue-
Fold, Inc., supra, 82 Cal.App.4th at p. 1029, internal citations omitted.)
• “Where, as here, ‘damages are an element of a cause of action, the cause of
action does not accrue until the damages have been sustained. . . . “Mere threat
of future harm, not yet realized, is not enough.” . . . “Basic public policy is
best served by recognizing that damage is necessary to mature such a cause of
action.” . . . Therefore, when the wrongful act does not result in immediate
328

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
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White
• “ ‘[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].)
• “So long as the time allowed for filing an action is not inherently unreasonable,
California courts afford ‘contracting parties considerable freedom to modify the
length of a statute of limitations.’ ” (Wind Dancer Production Group v. Walt
Disney Pictures (2017) 10 Cal.App.5th 56, 74 [215 Cal.Rptr.3d 835].)
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)
(Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.20 et
Limitation of Actions, 4.05, 4.14, 4.38, 4.39
329

If [name of defendant] proves that [name of plaintiff]’s claimed harm

occurred before [insert date from applicable statute of limitations], [name
of plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves
that before that date,
[[name of plaintiff] did not discover, and did not know of facts that
would have caused a reasonable person to suspect, that [he/she/it] had
suffered harm that was caused by someone’s wrongful conduct.]
[or]
[[name of plaintiff] did not discover, and a reasonable and diligent
investigation would not have disclosed, that [specify factual basis for
cause of action, e.g., “a medical device” or “inadequate medical
treatment”] contributed to [name of plaintiff]’s harm.]
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
330

No. 556, Affırmative Defense—Statute of Limitations—Medical Malpractice—Three-

Year Limit) or attorney malpractice (see CACI No. 610, Affırmative
Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI
No. 611, Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-
Year Limit). Also, do not use this instruction if the case was timely but a
fictitiously named defendant was identified and substituted in after the limitation
period expired. (See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942 [63
Cal.Rptr.3d 615] [if lawsuit is initiated within the applicable period of limitations
against one party and the plaintiff has complied with Code of Civil Procedure
section 474 by alleging the existence of unknown additional defendants, the
relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued
fictitiously is what facts the plaintiff actually knew at the time the original
complaint was filed].)
“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.
• “An exception to the general rule for defining the accrual of a cause of
action—indeed, the ‘most important’ one—is the discovery rule. . . . It
postpones accrual of a cause of action until the plaintiff discovers, or has reason
to discover, the cause of action. [¶] . . . [T]he plaintiff discovers the cause of
action when he at least suspects a factual basis, as opposed to a legal theory, for
its elements, even if he lacks knowledge thereof—when, simply put, he at least
‘suspects . . . that someone has done something wrong’ to him, ‘wrong’ being
used, not in any technical sense, but rather in accordance with its ‘lay
understanding.’ He has reason to discover the cause of action when he has
reason at least to suspect a factual basis for its elements. He has reason to
suspect when he has ‘notice or information of circumstances to put a reasonable
person on inquiry’; he need not know the ‘specific “facts” necessary to
establish’ the cause of action; rather, he may seek to learn such facts through
the ‘process contemplated by pretrial discovery’; but, within the applicable
limitations period, he must indeed seek to learn the facts necessary to bring the
cause of action in the first place—he ‘cannot wait for’ them to ‘find him’ and
‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can and ‘file suit’ if he
does.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397–398 [87 Cal.Rptr.2d
453, 981 P.2d 79], original italics, internal citations and footnote omitted.)
• “The policy reason behind the discovery rule is to ameliorate a harsh rule that
would allow the limitations period for filing suit to expire before a plaintiff has
or should have learned of the latent injury and its cause.” (Applied Medical
Corp. v. Thomas (2017) 10 Cal.App.5th 927, 939 [217 Cal.Rptr.3d 169].)
331

• “[I]t is the discovery of facts, not their legal significance, that starts the statute.”
(Jolly, supra, 44 Cal.3d at p. 1113.)
• “Jolly ‘sets forth two alternate tests for triggering the limitations period: (1) a
subjective test requiring actual suspicion by the plaintiff that the injury was
caused by wrongdoing; and (2) an objective test requiring a showing that a
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
• “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
332

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
amendment ‘of a Doe complaint’ and invocation of the relation-back doctrine.
‘Where’ he knows the ‘identity of at least one defendant . . . , [he] must’
proceed thus.” (Norgart, supra, 21 Cal.4th at p. 399, internal citations and
footnote omitted.)
• “The discovery rule only delays accrual until the plaintiff has, or should have,
inquiry notice of the cause of action. The discovery rule does not encourage
dilatory tactics because plaintiffs are charged with presumptive knowledge of an
injury if they have ‘ “ ‘information of circumstances to put [them] on
inquiry’ ” ’ or if they have ‘ “ ‘the opportunity to obtain knowledge from
sources open to [their] investigation.’ ” ’ In other words, plaintiffs are required
to conduct a reasonable investigation after becoming aware of an injury, and are
charged with knowledge of the information that would have been revealed by
such an investigation.” (Fox, supra, 35 Cal.4th at pp. 807–808, internal citations
omitted.)
• “Thus, a two-part analysis is used to assess when a claim has accrued under the
discovery rule. The initial step focuses on whether the plaintiff possessed
information that would cause a reasonable person to inquire into the cause of
his injuries. Under California law, this inquiry duty arises when the plaintiff
becomes aware of facts that would cause a reasonably prudent person to suspect
his injuries were the result of wrongdoing. If the plaintiff was in possession of
such facts, thereby triggering his duty to investigate, it must next be determined
whether ‘such an investigation would have disclosed a factual basis for a cause
of action[.] [T]he statute of limitations begins to run on that cause of action
when the investigation would have brought such information to light.’ ”
(Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251 [162 Cal.Rptr.3d
• “[I]f continuing injury from a completed act generally extended the limitations
periods, those periods would lack meaning. Parties could file suit at any time,
as long as their injuries persisted. This is not the law. The time bar starts
running when the plaintiff first learns of actionable injury, even if the injury
will linger or compound. ‘ “ ‘[W]here an injury, although slight, is sustained in
consequence of the wrongful act of another, and the law affords a remedy
therefor, the statute of limitations attaches at once. It is not material that all the
damages resulting from the act shall have been sustained at that time, and the
running of the statute is not postponed by the fact that the actual or substantial
damages do not occur until a later date . . . .’ ” ’ ” (Vaca v. Wachovia
Mortgage Corp. (2011) 198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354],
• “[T]he discovery rule ‘may be applied to breaches [of contract] which can be,
333

and are, committed in secret and, moreover, where the harm flowing from those
breaches will not be reasonably discoverable by plaintiffs until a future time.’ ”
(Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th
56, 73 [215 Cal.Rptr.3d 835].)
• There is no doctrine of constructive or imputed suspicion arising from media
coverage. “[Defendant]’s argument amounts to a contention that, having taken a
prescription drug, [plaintiff] had an obligation to read newspapers and watch
television news and otherwise seek out news of dangerous side effects not
disclosed by the prescribing doctor, or indeed by the drug manufacturer, and
that if she failed in this obligation, she could lose her right to sue. We see no
such obligation.” (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142
• “The statute of limitations does not begin to run when some members of the
public have a suspicion of wrongdoing, but only ‘[o]nce the plaintiff has a
suspicion of wrongdoing.’ ” (Unruh-Haxton v. Regents of University of
California (2008) 162 Cal.App.4th 343, 364 [76 Cal.Rptr.3d 146], original
italics.)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant. [¶] However, when a plaintiff relies
on the discovery rule or allegations of fraudulent concealment as excuses for an
apparently belated filing of a complaint, ‘the burden of pleading and proving
belated discovery of a cause of action falls on the plaintiff.’ ” (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “[I]t was [plaintiff]’s burden in claiming delayed discovery to set forth facts
showing ‘ “ ‘(1) the time and manner of discovery and (2) the inability to have
made earlier discovery despite reasonable diligence.’ ” ’ ” (Applied Medical
Corp., supra, 10 Cal.App.5th at p. 942.)
• “ ‘[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].)
• “More specifically, as to accrual, ‘once properly pleaded, belated discovery is a
question of fact.’ ” (Nguyen, supra, 229 Cal.App.4th at p. 1552.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶¶ 5:108–5:111.6 (The Rutter Group)
of Tort Actions, § 71.03[3] (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.47,
143.52 et seq. (Matthew Bender)
334


Limitation of Actions, 4.15
McDonald, California Medical Malpractice: Law and Practice §§ 7:1–7:7 (Thomson
Reuters)
335

456. Defendant Estopped From Asserting Statute of Limitations

Defense
[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].
New October 2008; Revised December 2014, June 2015

Directions for Use
Equitable estoppel, including any disputed issue of fact, is to be decided by the
court, even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
There is perhaps a question as to whether all the elements of equitable estoppel
must be proved in order to establish an estoppel to rely on a statute of limitations.
These elements are (1) the party to be estopped must know the facts; (2) the party
must intend that his or her conduct will be acted on, or must act in such a way that
the party asserting the estoppel had the right to believe that the conduct was so
intended; (3) the party asserting the estoppel must be ignorant of the true state of
facts; and, (4) that party must rely upon the conduct to his or her detriment. (See
Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 766–767 [41
Cal.Rptr.3d 819]; see also Olofsson v. Mission Linen Supply (2012) 211
336

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.)
• “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,
• “[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
337

reasonably relies on this representation to refrain from bringing a timely action,

(3) the representation proves false after the limitations period has expired, and
(4) the plaintiff proceeds diligently once the truth is discovered, the defendant
may be equitably estopped to assert the statute of limitations as a defense to the
action.” (Lantzy, supra, 31 Cal.4th at p. 384, internal citations omitted.)
• “Equitable estoppel does not require factually misleading statements in all
cases.” (J. P. v. Carlsbad Unified Sch. Dist. (2014) 232 Cal.App.4th 323, 335
[181 Cal.Rptr.3d 286].)
• “ ‘An estoppel may arise although there was no designed fraud on the part of
the person sought to be estopped. . . . To create an equitable estoppel, “it is
enough if the party has been induced to refrain from using such means or
taking such action as lay in his power, by which he might have retrieved his
position and saved himself from loss. . . . Where the delay in commencing
action is induced by the conduct of the defendant it cannot be availed of by him
as a defense.” ’ ” (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26
Cal.4th 1142, 1152–1153 [113 Cal.Rptr.2d 70, 33 P.3d 487].)
• [T]he parties may, by their words or conduct, be estopped from enforcing a
written contract provision. Under the doctrine of estoppel, ‘[a] defendant may
be equitably estopped from asserting a statutory or contractual limitations period
as a defense if the defendant’s act or omission caused the plaintiff to refrain
from filing a timely suit and the plaintiff’s reliance on the defendant’s conduct
was reasonable.’ ‘ “It is not necessary that the defendant acted in bad faith or
intended to mislead the plaintiff. [Citations.] It is sufficient that the defendant’s
conduct in fact induced the plaintiff to refrain from instituting legal
proceedings. [Citation.]” ’ (Wind Dancer Production Group v. Walt Disney
Pictures (2017) 10 Cal.App.5th 56, 78–79 [215 Cal.Rptr.3d 835].)
• “ ‘ “[W]hether an estoppel exists—whether the acts, representations or conduct
lulled a party into a sense of security preventing him from instituting
proceedings before the running of the statute, and whether the party relied
thereon to his prejudice—is a question of fact and not of law.” [Citations.]’ ”
(Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925–926 [73
• “It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented
or deterred the filing of a timely claim by some affirmative act. Estoppel most
commonly results from misleading statements about the need for or advisability
of a claim; actual fraud or the intent to mislead is not essential. A fortiori,
estoppel may certainly be invoked when there are acts of violence or
intimidation that are intended to prevent the filing of a claim.” (John R. v.
Oakland Unified Sch. Dist. (1989) 48 Cal.3d 438, 445 [256 Cal.Rptr. 766, 769
• “ ‘Estoppel as a bar to a public entity’s assertion of the defense of
noncompliance arises when the plaintiff establishes by a preponderance of the
338

evidence: (1) the public entity was apprised of the facts, (2) it intended its
conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts,
and (4) relied upon the conduct to his detriment.’ ” (J.P. supra, 232 Cal.App.4th
at p. 333.)
• “It is well settled that the doctrine of estoppel in pais is applicable in a proper
case to prevent a fraudulent or inequitable resort to the statute of limitations.”
(Estate of Pieper (1964) 224 Cal.App.2d 670, 690–691 [37 Cal.Rptr. 46],
• “Although ‘ignorance of the identity of the defendant . . . will not toll the
statute’, ‘a defendant may be equitably estopped from asserting the statute of
limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.’ ” (Vaca v. Wachovia Mortgage Corp.
(2011) 198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal
citation omitted.)
• “Settlement negotiations are relevant and admissible to prove an estoppel to
assert the statute of limitations.” (Holdgrafer, supra, 160 Cal.App.4th at p. 927.)
• “The estoppel issue in this case arises in a unique context. Defendants’
wrongful conduct has given rise to separate causes of action for property
damage and personal injury with separate statutes of limitation. Where the
plaintiffs reasonably rely on defendants’ promise to repair the property damage
without a lawsuit, is a jury permitted to find that plaintiffs’ decision to delay
filing a personal injury lawsuit was also reasonable? We conclude such a
finding is permissible on the facts of this case.” (Shaffer, supra, 17 Cal.App.4th
at p. 43, internal citation omitted.)
• “At the very least, [plaintiff] cannot establish the second element necessary for
equitable estoppel. [Plaintiff] argues that [defendant] was estopped to rely on
the time bar of section 340.9 by its continued reconsideration of her claim after
December 31, 2001, had passed. But she cannot prove [defendant] intended its
reconsideration of the claim to be relied upon, or acted in such a way that
[plaintiff] had a right to believe it so intended.” (Ashou, supra, 138 Cal.App.4th
at p. 767.)
• “ ‘It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented
or deterred the filing of a timely claim by some affirmative act.’ Estoppel as a
bar to a public entity’s assertion of the defense of noncompliance arises when a
plaintiff establishes by a preponderance of the evidence (1) the public entity
was apprised of the facts, (2) it intended its conduct to be acted upon, (3) the
plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct
to his detriment.” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th
1229, 1239–1240 [92 Cal.Rptr.3d 1], internal citation omitted.)
• “A nondisclosure is a cause of injury if the plaintiff would have acted so as to
avoid injury had the plaintiff known the concealed fact. The plaintiff’s reliance
on a nondisclosure was reasonable if the plaintiff’s failure to discover the
339

concealed fact was reasonable in light of the plaintiff’s knowledge and

experience. Whether the plaintiff’s reliance was reasonable is a question of fact
for the trier of fact unless reasonable minds could reach only one conclusion
based on the evidence. The fact that a plaintiff was represented by counsel and
the scope and timing of the representation are relevant to the question of the
reasonableness of the plaintiff’s reliance.” (Superior Dispatch, Inc. v. Insurance
Corp. of New York (2010) 181 Cal.App.4th 175, 187–188 [104 Cal.Rptr.3d
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶ 5:111.6 (The Rutter Group)
of Action, § 71.06 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.50
(Matthew Bender)
340

457. Statute of Limitations—Equitable Tolling—Other Prior

Proceeding
[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.

Directions for Use
Equitable tolling, including any disputed issue of fact, is to be decided by the
court, even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
Equitable tolling is not available for legal malpractice (see Laird v. Blacker (1992)
2 Cal.4th 606, 618 [7 Cal.Rptr.2d 550, 828 P.2d 691] [statutory tolling provisions
of Code Civ Proc., § 340.6 are exclusive for both one-year and four-year limitation
periods]; see also CACI No. 610, Affırmative Defense—Statute of
Limitations—Attorney Malpractice—One-Year Limit, and CACI No. 611,
341

Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year

Limit) nor for medical malpractice with regard to the three-year limitation period of
Code of Civil Procedure section 340.5. (See Belton v. Bowers Ambulance Serv.
(1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [statutory tolling
provisions of Code Civ. Proc., § 340.5 are exclusive only for three-year period;
one-year period may be tolled on other grounds]; see also CACI No. 555,
Affırmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit,
and CACI No. 556, Affırmative Defense—Statute of Limitations—Medical
Malpractice—Three-Year Limit.)
• Tolling for Equal Employment Opportunity Commission Investigation.
Government Code section 12965(d)(1).
• “The equitable tolling of statutes of limitations is a judicially created,
nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures
of the right to a trial on the merits when the purpose of the statute of
limitations—timely notice to the defendant of the plaintiff’s claims—has been
satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness.’ ”
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88,
99 [84 Cal.Rptr.3d 734, 194 P.3d 1026], internal citations omitted.)
• “While the case law is not entirely clear, it appears that the weight of authority
supports our conclusion that whether a plaintiff has demonstrated the elements
of equitable tolling presents a question of fact.” (Hopkins, supra, 225
• “[E]quitable tolling, ‘[a]s the name suggests . . . 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,
• “[CACI No. 457 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
. . . tolling.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “The equitable tolling doctrine rests on the concept that a plaintiff should not be
barred by a statute of limitations unless the defendant would be unfairly
prejudiced if the plaintiff were allowed to proceed. ‘[T]he primary purpose of
the statute of limitations is normally satisfied when the defendant receives
timely notification of the first of two proceedings.’ The doctrine has been
342

applied ‘where one action stands to lessen the harm that is the subject of the
second action; where administrative remedies must be exhausted before a
second action can proceed; or where a first action, embarked upon in good
faith, is found to be defective for some reason.’ ” (Aguilera v. Heiman (2009)
• “[T]he effect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event
has concluded. As a consequence, the tolled interval, no matter when it took
place, is tacked onto the end of the limitations period, thus extending the
deadline for suit by the entire length of time during which the tolling event
previously occurred.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370–371
[2 Cal.Rptr.3d 655, 73 P.3d 517].)
• “A major reason for applying the doctrine is to avoid ‘the hardship of
compelling plaintiffs to pursue several duplicative actions simultaneously on the
same set of facts.’ ‘[D]isposition of a case filed in one forum may render
proceedings in the second unnecessary or easier and less expensive to
resolve.’ ” (Guevara v. Ventura County Community College Dist. (2008) 169
• “[A]pplication of the doctrine of equitable tolling requires timely notice, and
lack of prejudice, to the defendant, and reasonable and good faith conduct on
the part of the plaintiff. These elements seemingly are present here. As noted,
the federal court, without prejudice, declined to assert jurisdiction over a timely
filed state law cause of action and plaintiffs thereafter promptly asserted that
cause in the proper state court. Unquestionably, the same set of facts may be
the basis for claims under both federal and state law. We discern no reason of
policy which would require plaintiffs to file simultaneously two separate actions
based upon the same facts in both state and federal courts since ‘duplicative
proceedings are surely inefficient, awkward and laborious.’ ” (Addison v. State
omitted.)
• “ ‘ “The timely notice requirement essentially means that the first claim must
have been filed within the statutory period. Furthermore[,] the filing of the first
claim must alert the defendant in the second claim of the need to begin
investigating the facts which form the basis for the second claim. Generally this
means that the defendant in the first claim is the same one being sued in the
second.” “The second prerequisite essentially translates to a requirement that the
facts of the two claims be identical or at least so similar that the defendant’s
investigation of the first claim will put him in a position to fairly defend the
second.” “The third prerequisite of good faith and reasonable conduct on the
part of the plaintiff is less clearly defined in the cases. But in Addison v. State
of California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the
plaintiff filed his second claim a short time after tolling ended.” ’ ” (McDonald,
supra, 45 Cal.4th at p. 102, fn. 2, internal citations omitted.)
• “The third requirement of good faith and reasonable conduct may turn on
343

whether ‘a plaintiff delayed filing the second claim until the statute on that
claim had nearly run . . .’ or ‘whether the plaintiff [took] affirmative actions
which . . . misle[d] the defendant into believing the plaintiff was foregoing his
second claim.’ ” (Tarkington v. California Unemployment Ins. Appeals Bd.
• “Where exhaustion of an administrative remedy is mandatory prior to filing suit,
equitable tolling is automatic: ‘It has long been settled in this and other
jurisdictions that whenever the exhaustion of administrative remedies is a
prerequisite to the initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative proceeding.’
This rule prevents administrative exhaustion requirements from rendering
illusory nonadministrative remedies contingent on exhaustion.” (McDonald,
• “The trial court rejected equitable tolling on the apparent ground that tolling
was unavailable where, as here, the plaintiff was advised the alternate
administrative procedure he or she was pursuing was voluntary and need not be
exhausted. In reversing summary judgment, the Court of Appeal implicitly
concluded equitable tolling is in fact available in such circumstances and
explicitly concluded equitable tolling is not foreclosed as a matter of law under
the FEHA. The Court of Appeal was correct on each count.” (McDonald, supra,
45 Cal.4th at p. 114.)
• “Equitable tolling and equitable estoppel [see CACI No. 456] 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.” ’ ”
(Lantzy, supra, 31 Cal.4th at pp. 383–384.)
• “[V]oluntary abandonment [of the first proceeding] does not categorically bar
application of equitable tolling, but it may be relevant to whether a plaintiff can
satisfy the three criteria for equitable tolling.” (McDonald, supra, 45 Cal.4th at
p. 111.)
• “The equitable tolling doctrine generally requires a showing that the plaintiff is
seeking an alternate remedy in an established procedural context. Informal
negotiations or discussions between an employer and employee do not toll a
statute of limitations under the equitable tolling doctrine.” (Acuna v. San Diego
Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [159 Cal.Rptr.3d 749],
• “Tolling the FEHA limitation period while the employee awaits the outcome of
344

an EEOC investigation furthers several policy objectives: (1) the defendant

receives timely notice of the claim; (2) the plaintiff is relieved of the obligation
of pursuing simultaneous actions on the same set of facts; and (3) the costs of
duplicate proceedings often are avoided or reduced.” (Mitchell v. State Dept. of
Public Health (2016) 1 Cal.App.5th 1000, 1008 [205 Cal.Rptr.3d 261].)
• “ ‘[P]utative class members would be ill advised to rely on the mere filing of a
class action complaint to toll their individual statute of limitations.’ A trial court
may, nonetheless, apply tolling to save untimely claims. But in doing so, the
court must address ‘two major policy considerations.’ The first is ‘protection of
the class action device,’ which requires the court to determine whether the
denial of class certification was ‘unforeseeable by class members,’ or whether
potential members, in anticipation of a negative ruling, had already filed
‘ “protective motions to intervene or to join in the event that a class was later
found unsuitable,” depriving class actions “of the efficiency and economy of
litigation which is a principal purpose of the procedure.” ’ The second
consideration is ‘effectuation of the purposes of the statute of limitations,’ and
requires the court to determine whether commencement of the class suit
‘ “notifie[d] the defendants not only of the substantive claims being brought
against them, but also of the number and generic identities of the potential
plaintiffs who may participate in the judgment.” [Citation.] In these
circumstances, . . . the purposes of the statute of limitations would not be
violated by a decision to toll.’ ” (Batze v. Safeway, Inc. (2017) 10 Cal.App.5th
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
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.
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, § 760 et seq.
Turner et al., California Practice Guide: Civil Procedure Before Trial—Statutes of
Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
345

3 California Torts, Ch. 32, Liability of Attorneys, § 32.60[1][g.1] (Matthew Bender)

14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.46
(Matthew Bender)
346

460. Strict Liability for Ultrahazardous Activities—Essential

Factual Elements
[Name of plaintiff] claims that [name of defendant] was engaged in an

ultrahazardous activity that caused [him/her/it] to be harmed and that
[name of defendant] is responsible for that harm.
People who engage in ultrahazardous activities are responsible for the
harm these activities cause others, regardless of how carefully they
carry out these activities. [Insert ultrahazardous activity] is an
ultrahazardous activity.
To establish [his/her/its] claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was engaged in [insert ultrahazardous
activity];
2. That [name of plaintiff] was harmed;
3. That [name of plaintiff]’s harm was the kind of harm that would
be anticipated as a result of the risk created by [insert
ultrahazardous activity]; and
4. That [name of defendant]’s [insert ultrahazardous activity] was a
New September 2003

• “The doctrine of ultrahazardous activity provides that one who undertakes an
ultrahazardous activity is liable to every person who is injured as a proximate
result of that activity, regardless of the amount of care he uses.” (Pierce v.
Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85 [212 Cal.Rptr. 283],
• Whether an activity is ultrahazardous is a question of law to be determined by
the court. (Luthringer v. Moore (1948) 31 Cal.2d 489, 496 [190 P.2d 1].)
• Restatement of Torts Second, section 519, provides:
(1)
One who carries on an abnormally dangerous activity is subject
to liability for harm to the person, land or chattels of another
resulting from the activity, although he has exercised the utmost care
to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility
of which makes the activity abnormally dangerous.
• Restatement of Torts Second, section 520, provides:
347

In determining whether an activity is abnormally dangerous, the following

factors are to be considered:
(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried
on; and
(f) extent to which its value to the community is outweighed by its
dangerous attributes.
• Section 519 formerly provided, in part, that “one who carries on an
ultrahazardous activity is liable to another whose person, land or chattels the
actor should recognize is likely to be harmed by the unpreventable miscarriage
of the activity for harm resulting thereto from that which makes the activity
ultrahazardous, although the utmost care is exercised to prevent the harm.” This
section was followed by the court in Luthringer, supra, and by other courts in
subsequent cases. (See Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413,
418 [228 Cal.Rptr. 108].) This statement regarding forseeability is evidently still
good law in California, even though the wording of section 519 does not
presently contain the limitation.
• Strict liability in this context has been confined to “consequences which lie
within the extraordinary risk posed by the abnormally dangerous activity and is
limited to the ‘class of persons who are threatened by the abnormal danger, and
the kind of damage they may be expected to incur.’ ” (Goodwin v. Reilley
(1985) 176 Cal.App.3d 86, 92 [221 Cal.Rptr. 374], citing Prosser & Keeton,
The Law of Torts (5th ed. 1984) § 75, p. 562.)
• “The important factor is that certain activities under certain conditions may be
so hazardous to the public generally, and of such relative infrequent occurrence,
that it may well call for strict liability as the best public policy.” (Luthringer,
supra, 31 Cal.2d at p. 500.)
• “It is axiomatic that an essential element of a plaintiff’s cause of action,
whether based on negligence or strict liability, is the existence of a causal
connection between defendant’s act and the injury which plaintiff suffered.”
(Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780 [56
• Defendant contended that the strict liability doctrine “cannot be applied unless
the defendant is aware of the abnormally dangerous condition or activity.” This
is unsound: One who carried on such an “activity is liable for injuries to a
person whom the actor reasonably should recognize as likely to be harmed
. . . , even though ‘the utmost care is exercised to prevent the harm.’ ” (Garcia,
348

supra, 183 Cal.App.3d at p. 420, internal citation omitted.)

Secondary Sources
1 Levy et al., California Torts, Ch. 7, Strict Liability for Hazardous Activities,
1 California Environmental Law & Land Use Practice, Ch. 1, Nuisance, Trespass,
and Strict Liability for Ultrahazardous Activities (Matthew Bender)
1A California Trial Guide, Unit 11, Opening Statement, § 11.55 (Matthew Bender)
Bender)
23 California Points and Authorities, Ch. 234, Ultrahazardous Activities (Matthew
Bender)
1 California Civil Practice: Torts (Thomson West) §§ 2:4–2:10
349

461. Strict Liability for Injury Caused by Wild Animal—Essential

Factual Elements
[Name of plaintiff] claims that [name of defendant]’s [insert type of animal]

harmed [him/her] and that [name of defendant] is responsible for that
harm.
People who own, keep, or control wild animals are responsible for the
harm that these animals cause to others, no matter how carefully they
guard or restrain their animals.
To establish [his/her] claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] owned, kept, or controlled [a/an] [insert
type of animal];
3. That [name of defendant]’s [insert type of animal] was a

Directions for Use
Give this instruction to impose strict liability on an animal owner for injuries
caused by an animal of a type that is inherently dangerous without the need to
show the owner’s knowledge of dangerousness. (See Baugh v. Beatty (1949) 91
Cal.App.2d 786, 791–792 [205 P.2d 671].) For an instruction for use for a domestic
animal if it is alleged that the owner knew or should have known that the animal
had a dangerous propensity, see CACI No. 462, Strict Liability for Injury Caused
by Domestic Animal With Dangerous Propensity. (See Thomas v. Stenberg (2012)
206 Cal.App.4th 654, 665 [142 Cal.Rptr.3d 24].) For an instruction on statutory
strict liability under the dog-bite statute, see CACI No. 463, Dog Bite
Statute—Essential Factual Elements.
Whether the determination that the animal that caused injury is a “wild animal”
triggering this instruction is a matter of law for the court or can be a question of
fact for the jury has apparently not been addressed by the courts.
• “The keeper of an animal of a species dangerous by nature . . . is liable,
without wrongful intent or negligence, for damage to others resulting from such
a propensity. The liability of the keeper is absolute, for ‘[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. [Citation.] In such instances the owner is
an insurer against the acts of the animal, to one who is injured without fault,
350

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,
• “[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,
Secondary Sources
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,
351

462. Strict Liability for Injury Caused by Domestic Animal With

Dangerous Propensities—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant]’s [insert type of animal]

harmed [him/her] and that [name of defendant] is responsible for that
harm.
People who own, keep, or control animals with unusually dangerous
natures or tendencies can be held responsible for the harm that their
animals cause to others, no matter how carefully they guard or restrain
their animals.
following:
1. That [name of defendant] owned, kept, or controlled a [insert type
of animal];
2. That the [insert type of animal] had an unusually dangerous
nature or tendency;
3. That before [name of plaintiff] was injured, [name of defendant]
knew or should have known that the [insert type of animal] had
this nature or tendency;
5. That the [insert type of animal]’s unusually dangerous nature or
tendency was a substantial factor in causing [name of plaintiff]’s
harm.

Directions for Use
Give this instruction to impose strict liability on an animal owner if the owner
knew or should have known that the animal had a dangerous propensity. (See
Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 665 [142 Cal.Rptr.3d 24].) There
is also strict liability for injuries caused by animals of a type that are inherently
dangerous without the need to show the owner’s knowledge of dangerousness.
(Baugh v. Beatty (1949) 91 Cal.App.2d 786, 791–792 [205 P.2d 671]; see CACI
No. 461, Strict Liability for Injury Caused by Wild Animal—Essential Factual
Elements.)
For an instruction on statutory strict liability under the dog-bite statute, see CACI
No. 463, Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements.
• “A common law strict liability cause of action may also be maintained if the
352

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],
• “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,
353

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
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
1 California Civil Practice: Torts, §§ 2:20–2:21 (Thomson Reuters West)
354

463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual

Elements
[Name of plaintiff] claims that [name of defendant]’s dog bit [him/her]

and that [name of defendant] is responsible for that harm.
People who own dogs can be held responsible for the harm from a dog
bite, no matter how carefully they guard or restrain their dogs.
following:
1. That [name of defendant] owned a dog;
2. That the dog bit [name of plaintiff] while [he/she] was in a public
place or lawfully on private property;
4. That [name of defendant]’s dog was a substantial factor in
[[Name of plaintiff] was lawfully on private property of the owner if [he/
she] was performing any duty required by law or was on the property
at the invitation, express or implied, of the owner.]

Directions for Use
Read the last optional paragraph if there is an issue regarding whether the plaintiff
was lawfully on private property when he or she was bitten.
For an instruction on common-law liability based on the defendant’s knowledge of
his or her pet’s dangerous propensities, see CACI No. 462, Strict Liability for
Injury Caused by Domestic Animal With Dangerous Propensities—Essential
Factual Elements.
• Liability for Dog Bites. Civil Code section 3342(a).
• This statute creates an exception to the general rule that an owner is not strictly
liable for harm caused by a domestic animal absent knowledge of the animal’s
vicious propensity. (Hicks v. Sullivan (1932) 122 Cal.App. 635, 639 [10 P.2d
516].)
• It is not necessary that the skin be broken in order for the statute to apply.
(Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176 [80 Cal.Rptr.2d 173].)
• “The defenses of assumption of the risk and contributory negligence may still
be asserted” in an action brought under section 3342. (Johnson, supra, 68
355

• “A veterinarian or a veterinary assistant who accepts employment for the

medical treatment of a dog, aware of the risk that any dog, regardless of its
previous nature, might bite while being treated, has assumed this risk as part of
his or her occupation.” (Nelson v. Hall (1985) 165 Cal.App.3d 709, 715 [211
• “[Plaintiff], by virtue of the nature of her occupation as a kennel worker,
assumed the risk of being bitten or otherwise injured by the dogs under her care
and control while in the custody of the commercial kennel where she worked
pursuant to a contractual boarding agreement. The Court of Appeal correctly
concluded a strict liability cause of action under the dog bite statute (§ 3342)
was therefore unavailable to [plaintiff].” (Priebe v. Nelson (2006) 39 Cal.4th
1112, 1132 [47 Cal.Rptr.3d 553, 140 P.3d 848].)
• The definition of “lawfully upon the private property of such owner” effectively
prevents trespassers from obtaining recovery under the Dog Bite Statute.
(Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358 [197 P.2d 59].)
Secondary Sources
Animals, § 6.12 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 2:16
356

470. Primary Assumption of Risk—Exception to

Nonliability—Coparticipant in Sport or Other Recreational Activity
[Name of plaintiff] claims [he/she] was harmed while participating in

[specify sport or other recreational activity, e.g., touch football] and that
[name of defendant] is responsible for that harm. To establish this claim,
1. That [name of defendant] either intentionally injured [name of
plaintiff] or acted so recklessly that [his/her] conduct was entirely
outside the range of ordinary activity involved in [e.g., touch
football];
3. That [name of defendant]’s conduct was a substantial factor in
Conduct is entirely outside the range of ordinary activity involved in
[e.g., touch football] if that conduct can be prohibited without
discouraging vigorous participation or otherwise fundamentally
changing the [sport/activity].
[Name of defendant] is not responsible for an injury resulting from
conduct that was merely accidental, careless, or negligent.
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013; Revised and Renumbered From CACI No. 408 May 2017
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. 471, Primary Assumption of Risk—Exception
to Nonliability—Instructors, Trainers, or Coaches. For an instruction applicable to
facilities owners and operators and to event sponsors, see CACI No. 472, Primary
Assumption of Risk—Exception to Nonliability—Facilities Owners and Operators
and Event Sponsors. For an instruction applicable to occupations with inherent risk,
see CACI No. 473, Primary Assumption of Risk—Exception to
Nonliability—Occupation Involving Inherent 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].) 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
357

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].)
• “Primary assumption of risk arises where a plaintiff voluntarily participates in
an activity or sport involving certain inherent risks; primary assumption of risk
. . . bar[s] recovery because no duty of care is owed as to such risks.”
(Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 [45
• “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”].)
• “A coparticipant in an active sport ordinarily bears no liability for an injury
resulting from conduct in the course of the sport that is merely careless or
negligent.” (Ford v. Gouin (1992) 3 Cal.4th 339, 342 [11 Cal.Rptr.2d 30, 834
P.2d 724].)
• “[W]e conclude that a participant in an active sport breaches a legal duty of
care to other participants—i.e., engages in conduct that properly may subject
him or her to financial liability—only if the participant intentionally injures
another player or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.” (Knight, supra, 3
Cal.4th at p. 320.)
• “The Knight rule, however, ‘does not grant unbridled legal immunity to all
defendants participating in sporting activity. The Supreme Court has stated that
“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, even though “defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself,” they may not
increase the likelihood of injury above that which is inherent.’ ” (Distefano v.
Forester (2001) 85 Cal.App.4th 1249, 1261 [102 Cal.Rptr.2d 813], internal
citations omitted.)
• “In Freeman v. Hale, the Court of Appeal advanced a test . . . for determining
what risks are inherent in a sport: ‘[C]onduct is totally outside the range of
ordinary activity involved in the sport (and thus any risks resulting from that
conduct are not inherent to the sport) if the prohibition of that conduct would
neither deter vigorous participation in the sport nor otherwise fundamentally
alter the nature of the sport.’ ” (Distefano, supra, 85 Cal.App.4th at p. 1261.)
• “[G]olfers have a limited duty of care to other players, breached only if they
358

intentionally injure them or engage in conduct that is ‘so reckless as to be

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
359

• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a

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.)
• “[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
• “[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
360

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
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
361

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,
supra, 158 Cal.App.4th at pp. 999–1000, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1339, 1340,
1343–1350
Risk, and Related Defenses, § 4.03, Ch. 15, General Premises Liability, § 15.21
(Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.30 (Matthew Bender)
(Matthew Bender)
Bender)
362


Nonliability—Instructors, Trainers, or Coaches
[Name of plaintiff] claims [he/she] was harmed by [name of defendant]’s

[coaching/training/instruction]. To establish this claim, [name of plaintiff]
1. That [name of defendant] was [name of plaintiff]’s [coach/trainer/
instructor];
2. [That [name of defendant] intended to cause [name of plaintiff]
injury or acted recklessly in that [his/her] conduct was entirely
outside the range of ordinary activity involved in teaching or
coaching [sport or other recreational activity, e.g., horseback riding]
in which [name of plaintiff] was participating;]
2. [or]
2. [That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
horseback riding];]
New September 2003; Revised April 2004, June 2012, December 2013; Revised
and Renumbered From CACI No. 409 May 2017
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
363

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. 470, Primary Assumption of Risk—Exception to
Nonliability—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. 472, Primary Assumption of
Risk—Exception to Nonliability—Facilities Owners and Operators and Event
Sponsors. For an instruction applicable to occupations with inherent risk, see CACI
No. 473, Primary Assumption of Risk—Exception to Nonliability—Occupation with
Inherent Risk.
• “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.
1158].)
to skateboarding”].)
• “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
364

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,
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
parties’ relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242
365


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
citations omitted.)
• “[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].)
366


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
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)
(Matthew Bender)
367


Nonliability—Facilities Owners and Operators and Event
Sponsors
[Name of plaintiff] claims [he/she] was harmed while [participating in/

watching] [sport or other recreational activity e.g., snowboarding] at [name
of defendant]’s [specify facility or event where plaintiff was injured, e.g., ski
resort]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was the [owner/operator/sponsor/other]
of [e.g., a ski resort];
2. That [name of defendant] unreasonably increased the risks to
snowboarding];
New December 2013; Revised and Renumbered From CACI No. 410 May 2017
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 is, however, a duty applicable to facilities owners and
operators and to event sponsors not to unreasonably increase the risks of injury to
participants and spectators beyond those inherent in the activity. (See Nalwa v.
1158] [participants]; Lowe v. California League of Prof. Baseball (1997) 56
Cal.App.4th 112, 123 [65 Cal.Rptr.2d 105] [spectators].)
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].)
368


instruction on primary assumption of risk applicable to instructors, trainers, and
coaches, see CACI No. 471, Primary Assumption of Risk—Exception to
Nonliability—Instructors, Trainers, or Coaches. For an instruction applicable to
occupations with inherent risk, see CACI No. 473, Primary Assumption of
Risk—Exception to Nonliability—Occupation With Inherent Risk.
• “[U]nder the primary assumption of risk doctrine, operators, sponsors and
instructors in recreational activities posing inherent risks of injury have no duty
to eliminate those risks, but do owe participants the duty not to unreasonably
increase the risks of injury beyond those inherent in the activity.” (Nalwa,
• “The doctrine applies to 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.” ’ ” (Griffın v. The
Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 500 [194 Cal.Rptr.3d 830].)
to skateboarding”], internal citations omitted.)
parties’ relationship to it.” (Griffın, supra, 242 Cal.App.4th at p. 501.)
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
369


citations omitted.)
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
370

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
plaintiff of being struck by a foul ball.” (Lowe, supra, 56 Cal.App.4th at p. 114,
original italics.)
• “[T]hose responsible for maintaining athletic facilities have a . . . duty not to
increase the inherent risks, albeit in the context of businesses selling
recreational opportunities.” (Avila v. Citrus Community College Dist. (2006) 38
Cal.4th 148, 162 [41 Cal.Rptr.3d 299, 131 P.3d 383], internal citation omitted.)
• “Knight, consistently with established case law, simply requires courts in each
instance to examine the question of duty in light of the nature of the
defendant’s activities and the relationship of the parties to that activity.”
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 [63 Cal.Rptr.2d
291, 936 P.2d 70].)
• “Because primary assumption of risk focuses on the question of duty, it is not
dependent on either the plaintiff’s implied consent to, or subjective appreciation
of, the potential risk.” (Griffın, supra, 242 Cal.App.4th at p. 502, original
italics.)
• “Defendants’ obligation not to increase the risks inherent in the activity
included a duty to provide safe equipment for the trip, such as a safe and sound
craft.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 255 [38
Cal.Rptr.2d 65].)
• “[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 recreational business operator and its
patrons . . . . [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.’ ”
However, ‘[t]his policy justification does not extend to a defendant wholly
uninvolved with and unconnected to the sport,’ . . . who neither ‘held out their
driveway as an appropriate place to skateboard or in any other way represented
that the driveway was a safe place for skateboarding.’ ” (Bertsch, supra, 247
Cal.App.4th at pp. 1208−1209, internal citations omitted.)
Secondary Sources
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)
371


(Matthew Bender)
372


Nonliability—Occupation Involving Inherent Risk

defendant] while [name of plaintiff] was performing [his/her] job duties as
[specify, e.g., a firefighter]. [Name of defendant] is not liable if [name of
plaintiff]’s injury arose from a risk inherent in the occupation of [e.g.,
firefighter]. However, [name of plaintiff] may recover if [he/she] proves all
of the following:
[1. That [name of defendant] unreasonably increased the risks to
firefighting];]
[1. [or]
[1. That [name of defendant] [misrepresented to/failed to warn] [name
of plaintiff] [of] a dangerous condition that [name of plaintiff]
could not have known about as part of [his/her] job duties;]
[1. [or]
[1. That the cause of [name of plaintiff]’s injury was not related to
the inherent risk;]
New May 2017

Directions for Use
Give this instruction if the plaintiff asserts an exception to assumption of risk of
the injury that he or she suffered because the risk is an inherent part of his or her
job duties. This has traditionally been referred to as the “firefighter’s rule.” (See
Gregory v. Cott (2014) 59 Cal. 4th 996, 1001 [176 Cal. Rptr. 3d 1, 331 P.3d 179].)
There are, however, exceptions to nonliability under the firefighter’s rule. The
plaintiff may recover if (1) the defendant’s actions have unreasonably increased the
risks of injury beyond those inherent in the occupation; (2) the defendant
misrepresented or failed to disclose a hazardous condition that the plaintiff had no
reason to know about; or (3) the cause of the injury was not related to the inherent
risk. This instruction asks the jury to determine whether an exception applies.
(Gregory, supra, 59 Cal.4th at p. 1010.) These exceptions are presented in the
options to element 1.
373

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].)
instruction applicable to coaches, instructors, or trainers, see CACI No. 471,
Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches. For an instruction applicable to facilities owners and operators and to
event sponsors, see CACI No. 472, Primary Assumption of Risk—Exception to
Nonliability—Facilities Owners and Operators and Event Sponsors.
• “Primary assumption of risk cases often involve recreational activity, but the
doctrine also governs claims arising from inherent occupational hazards. The
bar against recovery in that context first developed as the ‘firefighter’s rule,’
which precludes firefighters and police officers from suing members of the
public for the conduct that makes their employment necessary. After Knight, we
have viewed the firefighter’s rule ‘not . . . as a separate concept,’ but as a
variant of primary assumption of risk, ‘an illustration of when it is appropriate
to find that the defendant owes no duty of care.’ Whether a duty of care is
owed in a particular context depends on considerations of public policy, viewed
in light of the nature of the activity and the relationship of the parties to the
activity.” (Gregory, supra, 59 Cal. 4th at pp. 1001–1002, internal citations
omitted.)
• “The firefighter’s rule, upon which the [defendant] relies, and the analogous
veterinarian’s rule, are examples of the primary assumption of risk doctrine
applied in the employment context.” (Moore v. William Jessup University (2015)
• “Our holding does not preclude liability in situations where caregivers are not
warned of a known risk, where defendants otherwise increase the level of risk
beyond that inherent in providing care, or where the cause of injury is unrelated
to the symptoms of [Alzheimers] disease.” (Gregory, supra, 59 Cal.4th at p.
1000.)
• “[T]he principle of assumption of risk, which forms the theoretical basis for the
fireman’s rule, is not applicable where a fireman’s injuries are proximately
caused by his being misled as to the nature of the danger to be confronted.”
(Lipson v. Superior Court (1982) 31 Cal.3d 362, 371 [182 Cal. Rptr. 629, 644
P.2d 822].)
• “The firefighter’s rule, however, is hedged about with exceptions. The firefighter
does not assume every risk of his or her occupation. The rule does not apply to
conduct other than that which necessitated the summoning of the firefighter or
police officer, and it does not apply to independent acts of misconduct that are
committed after the firefighter or police officer has arrived on the scene.”
(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal. Rptr.
374

2d 630, 882 P.2d 347], internal citation omitted.)

• “We have noted that the duty to avoid injuring others ‘normally extends to
those engaged in hazardous work.’ ‘We have never held that the doctrine of
assumption of risk relieves all persons of a duty of care to workers engaged in
a hazardous occupation.’ However, the doctrine does apply in favor of those
who hire workers to handle a dangerous situation, in both the public and the
private sectors. Such a worker, ‘as a matter of fairness, should not be heard to
complain of the negligence that is the cause of his or her employment.
[Citations.] In effect, we have said it is unfair to charge the defendant with a
duty of care to prevent injury to the plaintiff arising from the very condition or
hazard the defendant has contracted with the plaintiff to remedy or confront.’
This rule encourages the remediation of dangerous conditions, an important
public policy. Those who hire workers to manage a hazardous situation are
sheltered from liability for injuries that result from the risks that necessitated
the employment.” (Gregory, supra, 59 Cal.4th at p. 1002, internal citations
omitted.)
• “Because of the nature of the activity, caring for the mentally infirm, and the
relationship between the parties, patient and caregiver, mentally incompetent
patients should not owe a legal duty to protect caregivers from injuries suffered
in attending to them. Here, the very basis of the relationship between plaintiff
and [defendant] was to protect [defendant] from harming either herself or
others.” (Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1770 [53
Cal.Rptr.2d 713].)
Secondary Sources
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.23
(Matthew Bender)
(Matthew Bender)
Bender)
375


1. Was [name of defendant] negligent?
1. Yes No
2. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
[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 $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
[d. TOTAL $
376

NEGLIGENCE VF-400
Signed:
Presiding Juror
Dated:
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.
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.
377

VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at

Issue—Fault of Others Not at Issue

1. Yes No
2. Yes No
3. What are [name of plaintiff]’s total damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff].
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
378

NEGLIGENCE VF-401
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
5. Was [name of plaintiff]’s negligence a substantial factor in
causing [his/her] harm?
5. Yes No
6. 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:
Directions for Use
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
379

VF-401 NEGLIGENCE
380


1. Was [name of first defendant] negligent?
1. Yes No
1. Was [name of second defendant] negligent?
1. Yes No
1. [Repeat as necessary for other defendants.]
1. If you answered yes for any defendant in question 1, then answer
question 2 for that defendant. If you answered no for any
defendant in question 1, insert the number zero next to that
defendant’s name in question 8. If you answered no for all
defendants in question 1, stop here, answer no further questions,
and have the presiding juror sign and date this form.
2. For each defendant that received a “yes” answer in question 1,
answer the following:
2. Was [name of first defendant]’s negligence a substantial factor in
2. Yes No
2. Was [name of second defendant]’s negligence a substantial factor
in causing harm to [name of plaintiff]?
2. Yes No
2. [Repeat as necessary for other defendants.]
2. If you answered yes for any defendant in question 2, then answer
question 3. If you answered no for any defendant in question 2,
insert the number zero next to that defendant’s name in question
8. If you did not answer yes for any defendant in question 2,
stop here, answer no further questions, and have the presiding
juror sign and date this form.
damages based on the fault, if any, of [name of plaintiff] or
others.
[lost earnings $ ]
[lost profits $ ]
381

VF-402 NEGLIGENCE
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
3. If [name of plaintiff] has proved any damages, then answer
4. Yes No
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. Yes No
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
382

NEGLIGENCE VF-402
6. [Repeat as necessary for other nonparties.]

6. If you answered yes for any person in question 6, then answer
question 7 for that person. If you answered no for any person in
question 6, insert the number zero next to that person’s name in
question 8. If you answered no for all persons in question 6, skip
question 7 and answer question 8.
7. For each person who received a “yes” answer in question 6,
answer the following:
7. Was [name/description of first nonparty]’s negligence a substantial
factor in causing harm to [name of plaintiff]?
7. Yes No
7. Was [name/description of second nonparty]’s negligence a
substantial factor in causing harm to [name of plaintiff]?
7. Yes No
7. [Repeat as necessary for other nonparties.]
7. If you answered yes for any person in question 7, then answer
question 8. If you answered no for any person in question 7, then
insert the number zero next to that person’s name in question 8
and answer question 8.
do you assign to the following? Insert a percentage for only those
who received “yes” answers in questions 2, 5, or 7:
[Name of first defendant]: %
[Name of second defendant]: %
[Name/description of first non- %
party]:
[Name/description of second %
nonparty]:
TOTAL 100 %
Signed:
Presiding Juror
Dated:
383

VF-402 NEGLIGENCE
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016
Directions for Use
Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No. 406,
Apportionment of Responsibility.
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.
384


1. Did [name of defendant] either intentionally injure [name of
plaintiff] or act so recklessly that [his/her] conduct was entirely
outside the range of ordinary activity involved in [specify sport or
activity, e.g., touch football]?
1. Yes No
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
385

VF-403 NEGLIGENCE
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
Risk—Liability of Coparticipant in Sport or Other Recreational Activity.
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.
386

VF-404. Primary Assumption of Risk—Liability of Instructors,

Trainers, or Coaches

1. Was [name of defendant] [name of plaintiff]’s
[coach/trainer/instructor]?
1. Yes No
2. [Did [name of defendant] intend to cause [name of plaintiff] injury
or act recklessly in that [his/her] conduct was entirely outside the
range of ordinary activity involved in teaching or coaching [sport
or other activity] in which [name of plaintiff] was participating?
2. Yes No]
2. [or]
2. [Did [name of defendant]’s failure to use reasonable care increase
the risks to [name of plaintiff] over and above those inherent in
[sport or other activity]?
2. Yes No]
3. Yes No
[lost earnings $ ]
[lost profits $ ]
387

VF-404 NEGLIGENCE

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
New September 2003; Revised April 2004, April 2007, December 2010, June 2012,
December 2016
Directions for Use
Risk—Liability of Instructors, Trainers, or Coaches.
388

NEGLIGENCE VF-404
389

VF-405. Primary Assumption of Risk—Liability of Facilities

Owners and Operators and Event Sponsors

1. Was [name of defendant] the [owner/operator/sponsor/other] of
[e.g., a ski resort]?
1. Yes No
2. Did [name of defendant] do something or fail to do something that
unreasonably increased the risks to [name of plaintiff] over and
above those inherent in [sport or other recreational activity, e.g.,
snowboarding]?
2. Yes No
3. Was [name of defendant]’s conduct a substantial factor in
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
390

NEGLIGENCE VF-405
[d. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
Risk—Liability of Facilities Owners and Operators and Event Sponsors.
391

VF-406. Negligence—Providing Alcoholic Beverages to Obviously

Intoxicated Minor

1. [Was [name of defendant] [required to be] licensed to sell
alcoholic beverages?]
1. [or]
1. [Was [name of defendant] authorized by the federal government
to sell alcoholic beverages on a military base or other federal
enclave?]
1. Yes No]
2. [Did [name of defendant] [sell/ give] alcoholic beverages to [name
of alleged minor]?
2. Yes No]
2. [or]
2. [Did [name of defendant] cause alcoholic beverages to be [sold/
given away] to [name of alleged minor]?]
2. Yes No]
2. If your answer to either option for question 2 is yes, then answer
question 3. If you answered no to both options, stop here, answer
no further questions, and have the presiding juror sign and date
this form.
3. Was [name of alleged minor] less than 21 years old at the time?
3. Yes No
4. When [name of defendant] provided the alcoholic beverages, did
[name of alleged minor] display symptoms that would lead a
reasonable person to conclude that [name of alleged minor] was
obviously intoxicated?
4. Yes No
392

NEGLIGENCE VF-406

5. Did [name of alleged minor] later harm [name of plaintiff]?
5. Yes No
6. Was [name of defendant]’s [selling/giving] alcoholic beverages to
[name of alleged minor] a substantial factor in causing [name of
plaintiff]’s harm?
6. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
393

VF-406 NEGLIGENCE
Dated:
New September 2003; Revised April 2007, December 2009, December 2010,
Directions for Use
This verdict form is based on CACI No. 422, Providing Alcoholic Beverages to
Obviously Intoxicated Minors.
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 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.
394


1. Was [name of defendant] engaged in [insert ultrahazardous
activity]?
1. Yes No
2. Was [name of plaintiff] harmed?
2. Yes No
3. Was [name of plaintiff]’s harm the kind of harm that would be
anticipated as a result of the risk created by [insert
ultrahazardous activity]?
3. Yes No
4. Was [name of defendant]’s [insert ultrahazardous activity] a
substantial factor in causing [name of plaintiff]’s harm?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
395

VF-407 NEGLIGENCE
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 460, Strict Liability for Ultrahazardous
Activities—Essential Factual Elements.
396

VF-408. Strict Liability for Domestic Animal With Dangerous

Propensities

1. Did [name of defendant] own, keep, or control a [insert type of
animal]?
1. Yes No
2. Did the [insert type of animal] have an unusually dangerous
nature or tendency?
2. Yes No
3. Did [name of defendant] know, or should [he/she] have known,
that the [insert type of animal] had this nature or tendency?
3. Yes No
4. Was the [insert type of animal]’s unusually dangerous nature or
tendency a substantial factor in causing harm to [name of
plaintiff]?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
397

VF-408 NEGLIGENCE

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
398


1. Did [name of defendant]’s dog bite [name of plaintiff]?
1. Yes No
2. Was [name of plaintiff] in a public place or lawfully on private
property when [he/she] was bitten?
2. Yes No
3. Was the dog a substantial factor in causing harm to [name of
plaintiff]?
3. Yes No
4. What are the damages, if any, that [name of plaintiff] suffered as
a result of the dog bite?
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
399

VF-409 NEGLIGENCE

[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 463, Dog Bite Statute (Civ. Code,
§ 3342)—Essential Factual Elements.
400

VF-410. Statute of Limitations—Delayed Discovery—Reasonable

Investigation Would Not Have Disclosed Pertinent Facts

1. Did [name of plaintiff]’s claimed harm occur before [insert date
from applicable statute of limitations]?
1. Yes No
2. Before [insert date from applicable statute of limitations], did [name
of plaintiff] know of facts that would have caused a reasonable
person to suspect that [he/she/it] had suffered harm that was
caused by someone’s wrongful conduct?
2. Yes No
2. [or]
2. Would a reasonable and diligent investigation have disclosed
before [insert date from applicable statute of limitations] that
[specify factual basis for cause of action, e.g., “a medical device” or
“inadequate medical treatment”] contributed to [name of plaintiff]’s
harm?
2. Yes No
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 454, Affırmative Defense—Statute of
Limitations, and CACI No. 455, Statute of Limitations—Delayed Discovery. If the
only issue is whether the plaintiff’s harm occurred before or after the limitation
401

VF-410 NEGLIGENCE
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.
402


1. Was [name of defendant] aware of habits or tendencies of [name
of minor] that created an unreasonable risk of harm to other
persons and led to [name of plaintiff]’s harm?
1. Yes No
2. Did [name of defendant] have the opportunity and ability to
control the conduct of [name of minor]?
2. Yes No
3. Was [name of defendant] negligent because [he/she] failed to
exercise reasonable care to prevent [name of minor]’s conduct?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
403

VF-411 NEGLIGENCE

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-405 December 2015; Revised 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.
404

NEGLIGENCE VF-411
findings that are required in order to calculate the amount of prejudgment interest.3
405


MEDICAL NEGLIGENCE

503B. Affirmative Defense—Psychotherapist’s Communication of Threat to
Victim and Law Enforcement
517. Affirmative Defense—Patient’s Duty to Provide for His or Her Own Well-
Being
407

MEDICAL NEGLIGENCE
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-

Year Limit (Code Civ. Proc., § 340.5)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff
Would Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative
Defense—Emergency
408

Please see CACI No. 400, Negligence—Essential Factual Elements
New September 2003; Revised December 2011, December 2015

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
of CACI No. 400. From a theoretical standpoint, medical negligence is still
considered negligence. (See Flowers v. Torrance Memorial Hospital Medical
Center (1994) 8 Cal.4th 992, 997–998 [35 Cal.Rptr.2d 685, 884 P.2d 142].)
Also give the appropriate standard-of-care instruction for the defendant’s category
of medical professional. (See CACI No. 501, Standard of Care for Health Care
Professionals, CACI No. 502, Standard of Care for Medical Specialists, CACI No.
504, Standard of Care for Nurses, CACI No. 514, Duty of Hospital.)
It is not necessary to instruct that causation must be proven within a reasonable
medical probability based upon competent expert testimony. The reference to
“medical probability” in medical malpractice cases is no more than a recognition
that the case involves the use of medical evidence. (Uriell v. Regents of University
of California (2015) 234 Cal.App.4th 735, 746 [184 Cal.Rptr.3d 79].)
• “Professional Negligence” of Health Care Provider Defined. Code of Civil
Procedure section 340.5, Civil Code sections 3333.1 and 3333.2.
• “The elements of a cause of action for medical malpractice are: (1) a duty to
use such skill, prudence, and diligence as other members of the profession
commonly possess and exercise; (2) a breach of the duty; (3) a proximate
causal connection between the negligent conduct and the injury; and (4)
resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959,
968 [191 Cal.Rptr.3d 766].)
• “The court’s use of standard jury instructions for the essential elements of
negligence, including causation, was appropriate because medical negligence is
fundamentally negligence.” (Uriell, supra, 234 Cal.App.4th at p. 744 [citing
Directions for Use to this instruction].)
• “Section 340.5 defines ‘professional negligence’ as ‘a negligent act or omission
by a health care provider in the rendering of professional services, which act or
omission is the proximate cause of a personal injury or wrongful death,
provided that such services are within the scope of services for which the
provider is licensed and which are not within any restriction imposed by the
licensing agency or licensed hospital.’ The term ‘professional negligence’
encompasses actions in which ‘the injury for which damages are sought is
409

CACI No. 500 MEDICAL NEGLIGENCE
directly related to the professional services provided by the health care

provider’ or directly related to ‘a matter that is an ordinary and usual part of
medical professional services.’ ‘[C]ourts have broadly construed “professional
negligence” to mean negligence occurring during the rendering of services for
which the health care provider is licensed.’ ” (Arroyo v. Plosay (2014) 225
Cal.App.4th 279, 297 [170 Cal.Rptr.3d 125], original italics, internal citations
omitted.)
• “With respect to professionals, their specialized education and training do not
serve to impose an increased duty of care but rather are considered additional
‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary
prudence’ in a particular situation.” (Flowers, supra, 8 Cal.4th at pp. 997–998.)
• “Since the standard of care remains constant in terms of ‘ordinary prudence,’ it
is clear that denominating a cause of action as one for ‘professional negligence’
does not transmute its underlying character. For substantive purposes, it merely
serves to establish the basis by which ‘ordinary prudence’ will be calculated and
the defendant’s conduct evaluated.” (Flowers, supra, 8 Cal.4th at p. 998.)
• “The Medical Injury Compensation Reform Act (MICRA) contains numerous
provisions effecting substantial changes in negligence actions against health care
providers, including a limitation on noneconomic damages, elimination of the
collateral source rule as well as preclusion of subrogation in most instances, and
authorization for periodic payments of future damages in excess of $ 50,000.
While in each instance the statutory scheme has altered a significant aspect of
claims for medical malpractice, such as the measure of the defendant’s liability
for damages or the admissibility of evidence, the fundamental substance of such
actions on the issues of duty, standard of care, breach, and causation remains
unaffected.” (Flowers, supra, 8 Cal.4th at p. 999.)
• “[I]n a personal injury action causation must be proven within a reasonable
medical probability based upon competent expert testimony. Mere possibility
alone is insufficient to establish a prima facie case.” (Lattimore, supra, 239
• “That there is a distinction between a reasonable medical ‘probability’ and a
medical ‘possibility’ needs little discussion. There can be many possible
‘causes,’ indeed, an infinite number of circumstances which can produce an
injury or disease. A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more likely than not
that the injury was a result of its action. This is the outer limit of inference
upon which an issue may be submitted to the jury.” (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [8
Cal.Rptr.3d 363], original italics, internal citations omitted.)
• “The rationale advanced by the hospital is that . . . if the need for restraint is
‘obvious to all,’ the failure to restrain is ordinary negligence. . . . [T]his
standard is incompatible with the subsequently enacted statutory definition of
professional negligence, which focuses on whether the negligence occurs in the
410

MEDICAL NEGLIGENCE CACI No. 500
rendering of professional services, rather than whether a high or low level of

skill is required. [Citation.]” (Bellamy v. Appellate Dep’t of the Superior Court
• “[E]ven in the absence of a physician-patient relationship, a physician has
liability to an examinee for negligence or professional malpractice for injuries
incurred during the examination itself.” (Mero v. Sadoff (1995) 31 Cal.App.4th
1466, 1478 [37 Cal.Rptr.2d 769].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 933–936, 938, 939
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.11, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.01 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.15
(Matthew Bender)
27 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13,
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
411

[A/An] [insert type of medical practitioner] 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 medical practitioners] would
use in the same or 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 medical practitioners] would use in the
same or similar circumstances, based only on the testimony of the
expert witnesses [including [name of defendant]] who have testified in
this case.]
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.
• “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
412

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
• “Today, ‘neither the Evidence Code nor Supreme Court precedent requires an
expert witness to have practiced in a particular locality before he or she can
render an opinion in an ordinary medical malpractice case.’ ” (Borrayo v. Avery
(2016) 2 Cal.App.5th 304, 310–311 [205 Cal.Rptr.3d 825], original italics.)
• “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
413

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].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 933, 934, 971, 975
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13,
295.43, 295.45 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
414

[A/An] [insert type of medical specialist] 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 medical specialists] would use
in similar circumstances. This level of skill, knowledge, and care is
sometimes referred to as “the standard of care.”
reasonably careful [insert type of medical specialists] would use in similar
circumstances based only on the testimony of the expert witnesses
[including [name of defendant]] who have testified in this case.]

Directions for Use
This instruction is intended to apply to physicians, surgeons, and dentists who are
specialists in a particular practice area.
The second paragraph should be used except in cases where the court determines
that expert testimony is not necessary to establish the standard of care.
• “In those cases where a medical specialist is alleged to have acted negligently,
the ‘specialist must possess and use the learning, care and skill normally
possessed and exercised by practitioners of that specialty under the same or
similar circumstances.’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968
[191 Cal.Rptr.3d 766].)
• “In the first place, the special obligation of the professional is exemplified by
his duty not merely to perform his work with ordinary care but to use the skill,
prudence, and diligence commonly exercised by practitioners of his profession.
If he further specializes within the profession, he must meet the standards of
knowledge and skill of such specialists.” (Neel v. Magana, Olney, Levy,
Cathcart & Gelfand (1971) 6 Cal.3d 176, 188 [98 Cal.Rptr. 837, 491 P.2d
421].)
• “The difference between the duty owed by a specialist and that owed by a
general practitioner lies not in the degree of care required but in the amount of
skill required.” (Valentine v. Kaiser Foundation Hospitals (1961) 194
Cal.App.2d 282, 294 [15 Cal.Rptr. 26] (disapproved on other grounds by
Siverson v. Weber (1962) 57 Cal.2d 834, 839 [22 Cal.Rptr. 337, 372 P.2d 97]).)
• “The role of the psychiatrist, who is indeed a practitioner of medicine, and that
of the psychologist who performs an allied function, are like that of the
415

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
• “[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
Secondary Sources
416

503A. Psychotherapist’s Duty to Protect Intended Victim From

Patient’s Threat
[Name of plaintiff] claims that [name of defendant]’s failure to protect

[name of plaintiff/decedent] was a substantial factor in causing [injury to
[name of plaintiff]/the death of [name of decedent]]. To establish this
1. That [name of defendant] was a psychotherapist;
2. That [name of patient] was [name of defendant]’s patient;
3. That [name of patient] communicated to [name of defendant] a
serious threat of physical violence;
4. That [name of plaintiff/decedent] was a reasonably identifiable
victim of [name of patient]’s threat;
5. That [name of patient] [injured [name of plaintiff]/killed [name of
decedent]];
6. That [name of defendant] failed to make reasonable efforts to
protect [name of plaintiff/decedent]; and
7. That [name of defendant]’s failure was a substantial factor in
causing [[name of plaintiff]’s injury/the death of [name of
decedent]].
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.
• 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
417

CACI No. 503A MEDICAL NEGLIGENCE
profession should determine, that his patient presents a serious danger of

violence to another, he incurs an obligation to use reasonable care to protect the
intended victim against such danger. The discharge of this duty may require the
therapist to take one or more of various steps, depending upon the nature of the
case. Thus it may call for him to warn the intended victim or others likely to
apprise the victim of the danger, to notify the police, or to take whatever other
steps are reasonably necessary under the circumstances.” (Tarasoff, supra, 17
Cal.3d at p. 431.)
• Civil Code section 43.92 was enacted to limit the liability of psychotherapists
under Tarasoff regarding a therapist’s duty to warn an intended victim. (Barry v.
Turek (1990) 218 Cal.App.3d 1241, 1244–1245 [267 Cal.Rptr. 553].) Under this
provision, “[p]sychotherapists thus have immunity from Tarasoff claims except
where the plaintiff proves that the patient has communicated to his or her
psychotherapist a serious threat of physical violence against a reasonably
identifiable victim or victims.” (Barry, supra, 218 Cal.App.3d at p. 1245.)
• “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].)
• “Section 43.92 strikes a reasonable balance in that it does not compel the
therapist to predict the dangerousness of a patient. Instead, it requires the
therapist to attempt to protect a victim under limited circumstances, even
though the therapist’s disclosure of a patient confidence will potentially disrupt
or destroy the patient’s trust in the therapist. However, the requirement is
imposed upon the therapist only after he or she determines that the patient has
made a credible threat of serious physical violence against a person.” (Calderon
v. Glick (2005) 131 Cal.App.4th 224, 231 [31 Cal.Rptr.3d 707].)
Secondary Sources
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services and Civil Rights,
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
418

503B. Affirmative Defense—Psychotherapist’s Communication of

Threat to Victim and Law Enforcement
[Name of defendant] is not responsible for [[name of plaintiff]’s injury/the

death of [name of decedent]] if [name of defendant] proves that [he/she]
made reasonable efforts to communicate the threat to [name of plaintiff/
decedent] and to a law enforcement agency.
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.
• 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
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services and Civil Rights,
419

CACI No. 503B MEDICAL NEGLIGENCE
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
420

[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.”
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.]

Directions for Use
The appropriate level of nurse should be inserted where indicated—i.e., registered
nurse, licensed vocational nurse, nurse practitioner.
The second paragraph should be included unless the court determines that expert
testimony is not necessary to establish the standard of care.
• “[A] nurse is negligent if he or she fails to meet the standard of care—that is,
fails to use the level of skill, knowledge, and care that a reasonably careful
nurse would use in similar circumstances.” (Massey v. Mercy Med. Ctr. Redding
(2009) 180 Cal.App.4th 690, 694 [103 Cal.Rptr.3d 209] [citing this
instruction].)
• “ ‘[T]oday’s nurses are held to strict professional standards of knowledge and
performance.’ But ‘[s]ome difficulties are presented [in the nursing malpractice
context] by the fact that a nurse’s traditional role has involved “both routine,
nontechnical tasks as well as specialized nursing tasks. If, in considering the
case law in this area, the dispute is analyzed in terms of what action by the
nurse is being complained about, it is possible to make some sense out of the
relevant decisions.” ’ ” (Massey, supra, 180 Cal.App.4th at p. 697, internal
citation omitted.)
• “[A] nurse’s conduct must not be measured by the standard of care required of
a physician or surgeon, but by that of other nurses in the same or similar
locality and under similar circumstances.” (Lattimore v. Dickey (2015) 239
• The jury should not be instructed that the standard of care for a nurse
practitioner must be measured by the standard of care for a physician or
surgeon when the nurse is examining a patient or making a diagnosis. (Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 150 [211 Cal.Rptr. 368, 695
421

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
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
422

[A/An] [insert type of medical practitioner] is not necessarily negligent

just because [his/her] efforts are unsuccessful or [he/she] makes an error
that was reasonable under the circumstances. [A/An] [insert type of
medical practitioner] is negligent only if [he/she] was not as skillful,
knowledgeable, or careful as other reasonable [insert type of medical
practitioners] would have been in similar circumstances.
New September 2003

Directions for Use
Plaintiffs have argued that this type of instruction “provides too easy an ‘out’ for
malpractice defendants.” (Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331,
343 [160 Cal.Rptr. 246].) Nevertheless, in California, instructions on this point
have been sustained when challenged. (Rainer v. Community Memorial Hospital
(1971) 18 Cal.App.3d 240, 260 [95 Cal.Rptr. 901].)
• “While a physician cannot be held liable for mere errors of judgment or for
erroneous conclusions on matters of opinion, he must use the judgment and
form the opinions of one possessed of knowledge and skill common to medical
men practicing, in the same or like community and that he may have done his
best is no answer to an action of this sort.” (Sim v. Weeks (1935) 7 Cal.App.2d
28, 36 [45 P.2d 350].)
• “The ‘law has never held a physician or surgeon liable for every untoward
result which may occur in medical practice’ but it ‘demands only that a
physician or surgeon have the degree of learning and skill ordinarily possessed
by practitioners of the medical profession in the same locality and that he
exercise ordinary care in applying such learning and skill to the treatment of his
patient.’ ” (Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34],
• It is appropriate to instruct a jury that “they do not necessarily adjudge whether
there was negligence in terms of the result achieved . . . .” (Dincau v.
Tamayose (1982) 131 Cal.App.3d 780, 800 [182 Cal.Rptr. 855].)
• “[A] physician and surgeon is not required to make a perfect diagnosis but is
only required to have that degree of skill and learning ordinarily possessed by
physicians of good standing practicing in the same locality and to use ordinary
care and diligence in applying that learning to the treatment of his patient.”
(Ries v. Reinard (1941) 47 Cal.App.2d 116, 119 [117 P.2d 386].)
• “A doctor is not a warrantor of cures nor is he required to guarantee results and
in the absence of a want of reasonable care and skill will not be held
423

responsible for untoward results.” (Sanchez v. Rodriguez (1964) 226 Cal.App.2d

439, 449 [38 Cal.Rptr. 110].)
Secondary Sources
Professionals, § 30.01 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.38
(Matthew Bender)
424

[A/An] [insert type of medical practitioner] is not necessarily negligent

just because [he/she] chooses one medically accepted method of
treatment or diagnosis and it turns out that another medically accepted
method would have been a better choice.
New September 2003

• “A difference of medical opinion concerning the desirability of one particular
medical procedure over another does not . . . establish that the determination to
use one of the procedures was negligent.” (Clemens v. Regents of Univ. of
California (1970) 8 Cal.App.3d 1, 13 [87 Cal.Rptr. 108].)
• “Medicine is not a field of absolutes. There is not ordinarily only one correct
route to be followed at any given time. There is always the need for
professional judgment as to what course of conduct would be most appropriate
with regard to the patient’s condition.” (Barton v. Owen (1977) 71 Cal.App.3d
484, 501–502 [139 Cal.Rptr. 494].)
• This type of instruction may be important in arriving at a fair decision: “[I]n
determining whether defendants breached a standard of care owed decedent, the
jury may not engage in ‘but for’ reasoning.” (Meier v. Ross General Hospital
(1968) 69 Cal.2d 420, 435 [71 Cal.Rptr. 903, 445 P.2d 519].)
• “[I]n order for CACI No. 506 to be given, there must have been expert
testimony presented to the jury to the effect that a medical practitioner chose a
medically accepted method of diagnosis (or treatment) from among alternative
medically accepted methods of diagnosis (or treatment).” (Ayala v. Arroyo Vista
Family Health Center (2008) 160 Cal.App.4th 1350, 1353 [73 Cal.Rptr.3d
486].)
Secondary Sources
425

[Name of plaintiff] claims that [name of defendant] was negligent because

[he/she] did not warn [name of patient] that [his/her] condition presented
a danger to others.
[Name of defendant] was negligent if [name of plaintiff] proves that [he/
she] did not take reasonable steps to warn [name of patient] that [his/
her] condition presented a danger to others.
New September 2003

Directions for Use
This instruction is intended to cover situations where a patient’s condition
foreseeably causes harm to a third party.
• “To avoid liability in this case, [defendants] should have taken whatever steps
were reasonable under the circumstances to protect [plaintiff] and other
foreseeable victims of [patient]’s dangerous conduct. What is a reasonable step
to take will vary from case to case.” (Myers v. Quesenberry (1983) 144
Cal.App.3d 888, 894 [193 Cal.Rptr. 733], internal citations omitted.) “Our
holding does not require the physician to do anything other than what he was
already obligated to do for the protection of the patient. Thus, even though it
may appear that the scope of liability has been expanded to include injuries to
foreseeable victims other than the patient, the standard of medical care to the
patient remains the same.” (Ibid.)
• “When the avoidance of foreseeable harm to a third person requires a defendant
to control the conduct of a person with whom the defendant has a special
relationship (such as physician and patient) or to warn the person of the risks
involved in certain conduct, the defendant’s duty extends to a third person with
whom the defendant does not have a special relationship.” (Reisner v. Regents
of Univ. of California (1995) 31 Cal.App.4th 1195, 1198–1199 [37 Cal.Rptr.2d
518] [infected sex partner could maintain action against his partner’s physicians
for failing to tell the young woman that she had received HIV-tainted blood].)
• Proof of causation is still required: “[Defendants] will be liable only if
[plaintiff] is able to prove their failure to warn [patient] not to drive in an
irrational and uncontrolled diabetic condition was a substantial factor in causing
his injuries.” (Myers, supra, 144 Cal.App.3d at p. 895.)
• This obligation to third parties appears to be limited to healthcare professionals
and does not apply to ordinary citizens. (Koepke v. Loo (1993) 18 Cal.App.4th
1444, 1456–1457 [23 Cal.Rptr.2d 34].)
426

Secondary Sources
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.22,
427

If a reasonably careful [insert type of medical practitioner] in the same

situation would have referred [name of patient] to a [insert type of
medical specialist], then [name of defendant] was negligent if [he/she] did
not do so.
However, if [name of defendant] treated [name of patient] with as much
skill and care as a reasonable [insert type of medical specialist] would
have, then [name of defendant] was not negligent.
New September 2003

• Physicians who elect to treat a patient even though the patient should have been
referred to a specialist will be held to the standard of care of that specialist. If
the physician meets the higher standard of care, he or she is not negligent.
(Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].)
• If the evidence establishes that the failure of a nurse to consult the attending
physician under the circumstances presented in the case is not in accord with
the standard of care of the nursing profession, this instruction may be
applicable. (Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 344 [160
Cal.Rptr. 246].)
Secondary Sources
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.20
(Matthew Bender)
428

[Name of plaintiff] claims [name of defendant] was negligent because [he/

she] did not give [name of patient] enough notice before withdrawing
from the case. To succeed, [name of plaintiff] must prove both of the
following:
1. That [name of defendant] withdrew from [name of patient]’s care
and treatment; and
2. That [name of defendant] did not provide sufficient notice for
[name of patient] to obtain another medical practitioner.
However, [name of defendant] was not negligent if [he/she] proves that
[name of patient] consented to the withdrawal or declined further
medical care.
New September 2003

• As a general proposition, “a physician who abandons a patient may do so ‘only
. . . after due notice, and an ample opportunity afforded to secure the presence
of other medical attendance.’ [Citation.]” (Payton v. Weaver (1982) 131
Cal.App.3d 38, 45 [182 Cal.Rptr. 225].)
• “A physician cannot just walk away from a patient after accepting the patient
for treatment. . . . In the absence of the patient’s consent, the physician must
notify the patient he is withdrawing and allow ample opportunity to secure the
presence of another physician.” (Hongsathavij v. Queen of Angels/Hollywood
Presbyterian Medical Center (1998) 62 Cal.App.4th 1123, 1138 [73 Cal.Rptr.2d
695].)
• “When a competent, informed adult directs the withholding or withdrawal of
medical treatment, even at the risk of hastening or causing death, medical
professionals who respect that determination will not incur criminal or civil
liability: the patient’s decision discharges the physician’s duty.” (Thor v.
Secondary Sources
429

A surgeon is responsible for the negligence of other medical

practitioners or nurses who are under his or her supervision and control
and actively participating during an operation.

Directions for Use
Give this instruction in a case in which the plaintiff seeks to hold a surgeon
vicariously responsible under the “captain-of-the-ship” doctrine for the negligence
of nurses or other hospital employees that occurs during the course of an operation.
There is some disagreement in the courts regarding whether the captain-of-the-ship
doctrine remains a viable rule of law. (Compare Truhitte v. French Hospital (1982)
128 Cal.App.3d 332, 348 [180 Cal.Rptr. 152] (doctrine has been eroded) with
Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1397–1398 [51 Cal.Rptr.3d
277] (doctrine remains viable).)
• The “captain of the ship” doctrine imposes liability on a surgeon under the
doctrine of respondeat superior for the acts of those under the surgeon’s special
supervision and control during the operation. (Thomas v. Intermedics
Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967 [55 Cal.Rptr.2d 197].)
• “The doctrine has been explained as follows: ‘A physician generally is not
liable for the negligence of hospital or other nurses, attendants, or internes, who
are not his employees, particularly where he has no knowledge thereof or no
connection therewith. On the other hand, a physician is liable for the negligence
of hospital or other nurses, attendants, or internes, who are not his employees,
where such negligence is discoverable by him in the exercise of ordinary care,
he is negligent in permitting them to attend the patient, or the negligent acts
were performed under conditions where, in the exercise of ordinary care, he
could have or should have been able to prevent their injurious effects and did
not. [¶] The mere fact that a physician or surgeon gives instructions to a
hospital employee does not render the physician or surgeon liable for
negligence of the hospital employee in carrying out the instructions. Similarly,
the mere right of a physician to supervise a hospital employee is not sufficient
to render the physician liable for the negligence of such employee. On the other
hand, if the physician has the right to exercise control over the work to be done
by the hospital employee and the manner of its performance, or an employee of
a hospital is temporarily detached in whole or in part from the hospital’s
general control so as to become the temporary servant of the physician he
assists, the physician will be subject to liability for the employee’s negligence.
[¶] Thus, where a hospital employee, although not in the regular employ of an
430

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
(Matthew Bender)
431

511. Wrongful Birth—Sterilization/Abortion—Essential Factual

Elements
[Name of plaintiff] claims that [name of defendant] negligently failed to

prevent the birth of her child. To establish this claim, [name of plaintiff]
must prove both of the following:
1. That [name of defendant] performed a negligent
[sterilization/abortion] procedure; and
2. That [name of plaintiff] gave birth to an unplanned child after
this procedure was performed.
New September 2003

Directions for Use
The general medical negligence instructions—instructions on the standard of care
and causation—could be used in conjunction with this one.
• No Defense for Parent’s Failure or Refusal to Prevent Live Birth. Civil Code
section 43.6(b).
• “California law now permits a mother to hold medical personnel liable for their
negligent failure to prevent or to terminate a pregnancy.” (Foy v. Greenblott
(1983) 141 Cal.App.3d 1, 8 [190 Cal.Rptr. 84].)
• Negligent sterilization procedure that leads to the birth of a child, either normal
or disabled, can form the basis of a wrongful birth action. (Custodio v. Bauer
(1967) 251 Cal.App.2d 303, 323–325 [59 Cal.Rptr. 463]; Morris v. Frudenfeld
(1982) 135 Cal.App.3d 23, 37 [185 Cal.Rptr. 76].) The same is true of an
unsuccessful abortion procedure. (Stills v. Gratton (1976) 55 Cal.App.3d 698,
707–709 [127 Cal.Rptr. 652].)
• A wrongful birth claim based on a negligently performed sterilization or
abortion procedure does not support an action for wrongful life: “California
courts do recognize a wrongful life claim by an ‘impaired’ child for special
damages (but not for general damages), when the physician’s negligence is the
proximate cause of the child’s need for extraordinary medical care and training.
No court, however, has expanded tort liability to include wrongful life claims
by children born without any mental or physical impairment.” (Alexandria S. v.
Pac. Fertility Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d
23].)
432

Secondary Sources
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
433


[name of defendant] failed to inform [him/her] of the risk that [he/she]
would have a [genetically impaired/disabled] child. To establish this
[1. That [name of defendant] negligently failed to [diagnose/ [or]
warn [name of plaintiff] of] the risk that [name of child] would be
born with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff] of tests] that would
more likely than not have disclosed the risk that [name of child]
would be born with a [genetic impairment/disability];]
2. That [name of child] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff] had known of the [genetic impairment/
disability], [insert name of mother] would not have conceived
[name of child] [or would not have carried the fetus to term]; and
causing [name of plaintiff] to have to pay extraordinary expenses
to care for [name of child].

Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 513, Wrongful Life—Essential Factual Elements, if the parents’
cause of action for wrongful birth is joined with the child’s cause of action for
wrongful life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available
genetic testing. In a testing case, there is no causation unless the chances that the
test would disclose the impairment were at least 50 percent. (See Simmons v. West
Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
434

negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center

(1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].) Since the wrongful life
action corresponds to the wrongful birth action, it is reasonable to conclude that
this principle applies to wrongful birth actions.
• Regarding wrongful-life actions, courts have observed: “[A]s in any medical
malpractice action, the plaintiff must establish: ‘(1) the duty of the professional
to use such skill, prudence, and diligence as other members of his profession
commonly possess and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the negligent conduct and the resulting injury; and
(4) actual loss or damage resulting from the professional’s negligence.’ ” (Gami,
• The negligent failure to administer a test that had only a 20 percent chance of
detecting Down syndrome did not establish a reasonably probable causal
connection to the birth of a child with this genetic abnormality. (Simmons,
supra.)
• Both parent and child may recover damages to compensate for “the
extraordinary expenses necessary to treat the hereditary ailment.” (Turpin v.
Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954].)
• In wrongful-birth actions, parents are permitted to recover the medical expenses
incurred on behalf of a disabled child. The child may also recover medical
expenses in a wrongful-life action, though both parent and child may not
recover the same expenses. (Turpin, supra, 31 Cal.3d at pp. 238–239.)
Secondary Sources
435


[he/she] failed to inform [name of plaintiff]’s parents of the risk that [he/
she] would be born [genetically impaired/disabled]. To establish this
[1. That [name of defendant] negligently failed to [diagnose/ [or]
warn [name of plaintiff]’s parents of] the risk that [name of
plaintiff] would be born with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff]’s parents of tests] that
would more likely than not have disclosed the risk that [name of
plaintiff] would be born with a [genetic impairment/disability];]
2. That [name of plaintiff] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff]’s parents had known of the [genetic
impairment/disability], [his/her] mother would not have
conceived [him/her] [or would not have carried the fetus to
term]; and
causing [name of plaintiff]’s parents to have to pay extraordinary
expenses for [name of plaintiff].
New September 2003; Revised April 2007, April 2008

Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 512, Wrongful Birth—Essential Factual Elements, if the parents’
cause of action for wrongful birth is joined with the child’s cause of action for
wrongful life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available
genetic testing. In a testing case, there is no causation unless the chances that the
test would disclose the impairment were at least 50 percent. (See Simmons v. West
Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
In order for this instruction to apply, the genetic impairment must result in a
436

physical or mental disability. This is implied by the fourth element in the

instruction.
• No Wrongful Life Claim Against Parent. Civil Code section 43.6(a).
• “[I]t may be helpful to recognize that although the cause of action at issue has
attracted a special name—‘wrongful life’—plaintiff’s basic contention is that her
action is simply one form of the familiar medical or professional malpractice
action. The gist of plaintiff’s claim is that she has suffered harm or damage as a
result of defendants’ negligent performance of their professional tasks, and that,
as a consequence, she is entitled to recover under generally applicable common
law tort principles.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229 [182 Cal.Rptr.
337, 643 P.2d 954].)
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center
• General damages are not available: “[W]e conclude that while a plaintiff-child
in a wrongful life action may not recover general damages for being born
impaired as opposed to not being born at all, the child—like his or her
parents—may recover special damages for the extraordinary expenses necessary
to treat the hereditary ailment.” (Turpin, supra, 31 Cal.3d at p. 239.)
• A child may not recover for loss of earning capacity in a wrongful-life action.
(Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614 [208 Cal.Rptr.
899].)
• The negligent failure to administer a test that had only a 20 percent chance of
detecting Down syndrome did not establish a reasonably probable causal
connection to the birth of a child with this genetic abnormality. (Simmons,
supra.)
• Wrongful life does not apply to normal children. (Alexandria S. v. Pac. Fertility
Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23].)
Secondary Sources
Bender)
437

A hospital is negligent if it does not use reasonable care toward its

patients. A hospital must provide procedures, policies, facilities, supplies,
and qualified personnel reasonably necessary for the treatment of its
patients.
[When you are deciding whether [name of defendant] was negligent, you
must base your decision only on the testimony of the expert witnesses
who have testified in this case.]
New September 2003

Directions for Use
This instruction may be augmented by CACI No. 515, Duty of Hospital to Provide
Safe Environment, and/or CACI No. 516, Duty of Hospital to Screen Medical Staff.
The second paragraph should be used unless the court determines that expert
testimony is not necessary to establish the standard of care.
This instruction is not intended if the hospital is being sued based on the
negligence of an agent or employee. See instructions in the Vicarious
Responsibility series and adapt accordingly.
• “[T]he duty imposed by law on the hospital is that it must exercise such
reasonable care toward a patient as his mental and physical condition, if known,
require . . . .” (Vistica v. Presbyterian Hospital & Medical Center, Inc. (1967)
67 Cal.2d 465, 469 [62 Cal.Rptr. 577, 432 P.2d 193].)
• “A private hospital owes its patients the duty of protection. It was the duty of
the hospital to use reasonable care and diligence in safeguarding a patient
committed to its charge [citations] and such care and diligence are measured by
the capacity of the patient to care for himself. By reason of the tender age of
appellant’s baby respondent owed a higher degree of care in attending it than if
she had been an adult.” (Thomas v. Seaside Memorial Hospital (1947) 80
Cal.App.2d 841, 847 [183 P.2d 288].)
• “It is the duty of any hospital that undertakes the treatment of an ill or wounded
person to use reasonable care and diligence not only in operating upon and
treating but also in safeguarding him, and such care and diligence is measured
by the capacity of the patient to care for himself.” (Valentin v. La Societe
Francaise de Bienfaisance Mutuelle (1946) 76 Cal.App.2d 1, 4 [172 P.2d 359].)
• “[T]he professional duty of a hospital . . . is primarily to provide a safe
environment within which diagnosis, treatment, and recovery can be carried out.
438

Thus if an unsafe condition of the hospital’s premises causes injury to a patient

. . . there is a breach of the hospital’s duty qua hospital.” (Murillo v. Good
Samaritan Hospital (1979) 99 Cal.App.3d 50, 56–57 [160 Cal.Rptr. 33].)
• “Defendant . . . was under a duty to observe and know the condition of a
patient. Its business is caring for ill persons, and its conduct must be in
accordance with that of a person of ordinary prudence under the circumstances,
a vital part of those circumstances being the illness of the patient and incidents
thereof.” (Rice v. California Lutheran Hospital (1945) 27 Cal.2d 296, 302 [163
P.2d 860].)
• “If a hospital is obliged to maintain its premises and its instrumentalities for the
comfort of its patients with such care and diligence as will reasonably assure
their safety, it should be equally bound to observe the progress of a patient in
his recovery from a major operation with such care and diligence as his
condition reasonably requires for his comfort and safety and promptly to
employ such agencies as may reasonably appear necessary for the patient’s
safety.” (Valentin, supra, 76 Cal.App.2d at p. 5.)
• “No expert opinion is required to prove the hospital’s failure to provide an
adequate number of trained, qualified personnel at the most critical time in
postoperative care was negligent.” (Czubinsky v. Doctors Hospital (1983) 139
Cal.App.3d 361, 367 [188 Cal.Rptr. 685].)
• “A California civil jury instruction succinctly characterizes a hospital’s duty to
its patients as follows: ‘A hospital must provide procedures, policies, facilities,
supplies, and qualified personnel reasonably necessary for the treatment of its
patients.’ (CACI No. 514.) The instruction would appear to be an accurate
distillation of the case law applicable when patients are being treated at a
hospital facility for an illness, injury or medical condition.” (Walker v. Sonora
Regional Medical Center (2012) 202 Cal.App.4th 948, 960 [135 Cal.Rptr.3d
876].)
• “ ‘Present-day hospitals, as their manner of operation plainly demonstrates, do
far more than furnish facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge patients for medical care
and treatment, collecting for such services, if necessary, by legal action.
Certainly, the person who avails himself of ‘hospital facilities’ expects that the
hospital will attempt to cure him, not that its nurses or other employees will act
on their own responsibility.’ Although hospitals do not practice medicine in the
same sense as physicians, they do provide facilities and services in connection
with the practice of medicine, and if they are negligent in doing so they can be
held liable. Here, defendant hospital implicitly recognized that point when it
requested, and the trial court gave, this jury instruction: ‘A hospital must
provide procedures, policies, facilities, supplies, and qualified personnel
reasonably necessary for the treatment of its patients.’ ” (Leung v. Verdugo Hills
Hospital (2012) 55 Cal.4th 291, 310 [145 Cal.Rptr.3d 553, 282 P.3d 1250].)
439

Secondary Sources
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)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
440

If [name of defendant hospital] knew or reasonably should have known it

was likely that [name of patient] would harm [himself/herself/another],
then [name of defendant hospital] had to use reasonable care to prevent
such harm.
New September 2003

Directions for Use
Always read CACI No. 514, Duty of Hospital, in conjunction with this instruction.
• “When a patient is admitted into the care of a hospital, the hospital must
exercise reasonable care to protect that patient from harm.” (Walker v. Sonora
Regional Medical Center (2012) 202 Cal.App.4th 948, 959 [135 Cal.Rptr.3d
876].)
• “[T]he duty extends to safeguarding the patient from dangers due to mental
incapacity; and where the hospital has notice or knowledge of facts from which
it might reasonably be concluded that a patient would be likely to harm himself
or others unless preclusive measures were taken, then the hospital must use
reasonable care in the circumstances to prevent such harm.” (Vistica v.
Presbyterian Hospital & Medical Center, Inc. (1967) 67 Cal.2d 465, 469 [62
Cal.Rptr. 577, 432 P.2d 193].)
• “If those charged with the care and treatment of a mentally disturbed patient
know of facts from which they could reasonably conclude that the patient
would be likely to harm himself in the absence of preclusive measures, then
they must use reasonable care under the circumstances to prevent such harm.”
(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [71 Cal.Rptr. 903,
445 P.2d 519].)
• “A rule more fitting to the facts of this case is expressed in Wood v. Samaritan
Institution (1945) 26 Cal.2d 847 [161 P.2d 556], where the California Supreme
Court held hospitals have a duty to be especially protective of their alcoholic
patients.” (Emerick v. Raleigh Hills Hospital (1982) 133 Cal.App.3d 575, 581
[184 Cal.Rptr. 92].)
Secondary Sources
(Matthew Bender)
441

A hospital is negligent if it does not use reasonable care to select and

periodically evaluate its medical staff so that its patients are provided
adequate medical care.
New September 2003

Directions for Use
Always read CACI No. 514, Duty of Hospital, in conjunction with this instruction.
• “[W]e hold a hospital is accountable for negligently screening the competency
of its medical staff to insure the adequacy of medical care rendered to patients
at its facility.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346
[183 Cal.Rptr. 156].)
• “[A] hospital generally owes a duty to screen the competency of its medical
staff and to evaluate the quality of medical treatment rendered on its premises.
Thus, a hospital could be found liable for injury to a patient caused by the
hospital’s negligent failure ‘to insure the competence of its medical staff
through careful selection and review,’ thereby creating an unreasonable risk of
harm to the patient.” (Walker v. Sonora Regional Medical Center (2012) 202
Cal.App.4th 948, 959–960 [135 Cal.Rptr.3d 876], internal citation omitted.)
• “The hospital has ‘a direct and independent responsibility to its patients of
insuring the competency of its medical staff and the quality of medical care
provided . . . .’ [Citation.] Hospitals must be able to establish high standards of
professional work and to maintain those standards through careful selection and
review of staff. And they are required to do so by both state and federal law.
[Citations.]” (Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d 477, 489
[247 Cal.Rptr. 244].)
Secondary Sources
(Matthew Bender)
442

517. Affirmative Defense—Patient’s Duty to Provide for His or Her

Own Well-Being
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.

Directions for Use
Read this instruction in conjunction with basic comparative fault and damages
instructions (CACI Nos. 405, 406, 407).
The defendant has the burden of proving that the plaintiff was comparatively
negligent and that this negligence was a cause of the harm. (Pfeifer v. John Crane,
• “It is error for a trial court to charge the jury with regard to contributory
negligence [for failure to follow doctor’s advice] when there is no expert
testimony the plaintiff was negligent.” (Bolen v. Woo (1979) 96 Cal.App.3d 944,
952 [158 Cal.Rptr. 454].)
• “[I]t is error in medical malpractice cases to [instruct on contributory
negligence] in the absence of some evidence that the injured patient’s acts or
omissions were a proximate cause of the harm sustained.” (LeMons v. Regents
of University of California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr. 355, 582
P.2d 946].)
• “Unquestionably the jury must have considered whether the attitude of
respondent was one of refusal to follow the advice of his physicians or was,
because of his extended experience, one of justifiable fear of want of their skill.
Whether such delays under the circumstances were those of a reasonably
443

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
(Matthew Bender)
444

[Name of plaintiff] may prove that [name of defendant]’s negligence

caused [his/her] harm if [he/she] proves all of the following:
1. That [name of plaintiff]’s harm ordinarily would not have
occurred unless someone was negligent; [In deciding this issue,
you must consider [only] the testimony of the expert witnesses.]
2. That the harm occurred while [name of plaintiff] was under the
care and control of [name of defendant]; and
3. That [name of plaintiff]’s voluntary actions did not cause or
contribute to the event[s] that harmed [him/her].
If you decide that [name of plaintiff] did not prove one or more of these
three things, then you must decide whether [name of defendant] was
negligent in light of the other instructions I have read.
If you decide that [name of plaintiff] proved all of these three things, you
may, but are not required to, find that [name of defendant] was negligent
or that [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm, or both.
[Name of defendant] contends that [he/she/it] was not negligent or that
[his/her/its] negligence, if any, did not cause [name of plaintiff] harm. If
after weighing all of the evidence you believe that it is more probable
than not that [name of defendant] was negligent and that [his/her/its]
negligence was a substantial factor in causing [name of plaintiff]’s harm,
you must decide in favor of [name of plaintiff]. Otherwise, you must
decide in favor of [name of defendant].

Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa
loquitur. The bracketed sentence in element 1 should be read only if expert
testimony is introduced. The word “only” within that sentence is to be used if the
court has determined that the issue of the defendant’s negligence involves matters
beyond common knowledge.
The second paragraph explains that if the plaintiff fails to establish res ipsa loquitur
as a presumption, the jury may still find for the plaintiff if it finds based on its
consideration of all of the evidence that the defendant was negligent. (See Howe v.
Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163–1164 [117
Cal.Rptr.3d 126].)
If the plaintiff has established the three conditions that give rise to the doctrine, the
445

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).)
• 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
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,
• “ ‘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.
• 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
446

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,
• “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
• “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,
• 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
447

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
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
• “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
§§ 114–118
Malpractice, § 415.11[2] (Matthew Bender)
448

(Matthew Bender)
449

[Name of plaintiff] claims that [name of defendant] committed a medical

battery. To establish this claim, [name of plaintiff] must prove all of the
following:
1. [That [name of defendant] performed a medical procedure
without [name of plaintiff]’s consent; [or]]
1. [That [name of plaintiff] consented to one medical procedure, but
[name of defendant] performed a substantially different medical
procedure;]
A patient can consent to a medical procedure by words or conduct.
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.
• 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
450

MEDICAL NEGLIGENCE CACI No. 530A
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].)
• “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases
where a doctor exceeds the consent and such excess surgery is found necessary
due to conditions arising during an operation which endanger the patient’s
health or life, the consent is presumed. The surgery necessitated is proper
(though exceeding specific consent) on the theory of assumed consent, were the
patient made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251
Cal.App.2d 119, 123 [59 Cal.Rptr. 294].)
• “Consent to medical care, including surgery, may be express or may be implied
from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454
[30 Cal.Rptr. 243].)
• “It is elemental that consent may be manifested by acts or conduct and need not
necessarily be shown by a writing or by express words.” (Kritzer v. Citron
(1950) 101 Cal.App.2d 33, 38–39 [224 P.2d 808].)
• “[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.
530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d
• “In the absence of any definitive case law establishing whether operating on the
wrong disk within inches of the correct disk is a ‘substantially different
procedure,’ we conclude the matter is a factual question for a finder of fact to
decide and at least in this instance, not one capable of being decided on
demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75
Cal.Rptr.3d 861.)
• “Although . . . consent to surgery necessarily encompasses consent to
postoperative care, not all postoperative contact between doctor and patient
constitutes care. The question of the nature of the contact between plaintiff and
[defendant], and whether that contact was within the scope of plaintiff’s
consent, is a factual question for a finder of fact to decide.” (So v. Shin (2013)
212 Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257], original italics.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶ 3:255.4l (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA
451

CACI No. 530A MEDICAL NEGLIGENCE
Provisions Affecting Damages, ¶ 3:282.12a (The Rutter Group)

Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
(Matthew Bender)
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
452

[Name of plaintiff] claims that [name of defendant] committed a medical

battery. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] consented to a medical procedure, but
only on the condition that [describe what had to occur before
consent would be given];
2. That [name of defendant] proceeded without this condition having
occurred;
3. That [name of defendant] intended to perform the procedure with
knowledge that the condition had not occurred;
A patient can consent to a medical procedure by words or conduct.
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.
• 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)
• “[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.
453

CACI No. 530B MEDICAL NEGLIGENCE
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.)
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324
[71 Cal.Rptr.3d 469].)
Secondary Sources
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew
Bender)
454

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].
New September 2003

• Parent Delegation of Right to Authorize Medical Care. Family Code section
6910.
• “If the patient is a minor or incompetent, the authority to consent is transferred
to the patient’s legal guardian or closest available relative.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 244 [104 Cal.Rptr. 505, 502 P.2d 1]; Farber v. Olkon
(1953) 40 Cal.2d 503, 509 [254 P.2d 520].)
Secondary Sources
32 California Forms of Pleading and Practice, Ch. 365, Minors: Contract Actions,
§ 365.13; Ch. 366, Minors: Court Consent for Medical Care or Enlistment,
34 California Forms of Pleading and Practice, Ch. 394, Parent and Child, § 394.54
(Matthew Bender)
455

A patient’s consent to a medical procedure must be “informed.” A

patient gives an “informed consent” only after the [insert type of medical
practitioner] has adequately explained the proposed treatment or
procedure.
[A/An] [insert type of medical practitioner] must explain the likelihood of
success and the risks of agreeing to a medical procedure in language
that the patient can understand. [A/An] [insert type of medical
practitioner] must give the patient as much information as [he/she] needs
to make an informed decision, including any risk that a reasonable
person would consider important in deciding to have the proposed
treatment or procedure, and any other information skilled practitioners
would disclose to the patient under the same or similar circumstances.
The patient must be told about any risk of death or serious injury or
significant potential complications that may occur if the procedure is
performed. [A/An] [insert type of medical practitioner] is not required to
explain minor risks that are not likely to occur.
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.
• “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
456

alternatively be referred to as a claim for lack of informed consent.” (Jameson

v. Desta (2013) 215 Cal.App.4th 1144, 1164 [155 Cal.Rptr.3d 755], internal
citations omitted.)
• “When a doctor recommends a particular procedure then he or she must
disclose to the patient all material information necessary to the decision to
undergo the procedure, including a reasonable explanation of the procedure, its
likelihood of success, the risks involved in accepting or rejecting the proposed
procedure, and any other information a skilled practitioner in good standing
would disclose to the patient under the same or similar circumstances.” (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 343 [13 Cal.Rptr.2d 819].)
• “A physician has a duty to inform a patient in lay terms of the dangers
inherently and potentially involved in a proposed treatment.” (McKinney v. Nash
(1981) 120 Cal.App.3d 428, 440 [174 Cal.Rptr. 642].)
• “First, a physician must disclose to the patient the potential of death, serious
harm, and other complications associated with a proposed procedure. Second,
‘[b]eyond the foregoing minimal disclosure, a doctor must also reveal to his
patient such additional information as a skilled practitioner of good standing
would provide under similar circumstances.’ ” (Cobbs, supra, 8 Cal.3d at p.
• “Material information is that which the physician knows or should know would
be regarded as significant by a reasonable person in the patient’s position when
deciding to accept or reject the recommended medical procedure. To be
material, a fact must also be one which is not commonly appreciated. If the
physician knows or should know of a patient’s unique concerns or lack of
familiarity with medical procedures, this may expand the scope of required
disclosure.” (Truman, supra, 27 Cal.3d at p. 291, internal citations omitted.)
• “Obviously involved in the equation of materiality are countervailing factors of
the seriousness and remoteness of the dangers involved in the medical
procedure as well as the risks of a decision not to undergo the procedure.”
(McKinney, supra, 120 Cal.App.3d at p. 441.)
• “Where a shoulder is injured in an appendectomy, or a clamp is left in the
abdomen, expert testimony is not required since the jury is capable of
appreciating and evaluating the significance of such events. However, when a
doctor relates the facts he has relied upon in support of his decision to operate,
and where the facts are not commonly susceptible of comprehension by a lay
juror, medical expert opinion is necessary to enable the trier of fact to
determine if the circumstances indicated a need for surgery.” (Cobbs, supra, 8
Cal.3d at p. 236, internal citations omitted.)
• “We underline the limited and essentially subsidiary role of expert testimony in
informed consent litigation. . . . [A] rule that filters the scope of patient
disclosure entirely through the standards of the medical community
‘ “arrogate[s] the decision [of what to disclose] . . . to the physician alone.” ’
We explicitly rejected such an absolute rule as inimical to the rationale and
457

objectives of the informed consent doctrine; we reaffirm that position.

Nevertheless, . . . there may be a limited number of occasions in the trial of
informed consent claims where the adequacy of disclosure in a given case may
turn on the standard of practice within the relevant medical community. In such
instances, expert testimony will usually be appropriate.” (Arato v. Avedon
(1993) 5 Cal.4th 1172, 1191 [23 Cal.Rptr.2d 131, 858 P.2d 598], internal
citation omitted.)
• “[A] physician must disclose personal interests unrelated to the patient’s health,
whether research or economic, that may affect the physician’s professional
judgment.” (Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 129 [271
Cal.Rptr. 146, 793 P.2d 479], cert. denied, 499 U.S. 936 (1991).)
• “While . . . there is no general duty of disclosure with respect to
nonrecommended procedures, we do not conclude . . . that there can never be
such a duty. In an appropriate case there may be evidence that would support
the conclusion that a doctor should have disclosed information concerning a
nonrecommended procedure.” (Vandi v. Permanente Medical Group, Inc. (1992)
obtaining any consent.” (Saxena, supra, 159 Cal.App.4th at p. 324.)
Secondary Sources
(Matthew Bender)
Bender)
458

533. Failure to Obtain Informed Consent—Essential Factual

Elements

[he/she] performed [a/an] [insert medical procedure] on [name of plaintiff]
without first obtaining [his/her] informed consent. To establish this
1. That [name of defendant] performed [a/an] [insert medical
procedure] on [name of plaintiff];
2. That [name of defendant] did not disclose to [name of plaintiff] the
important potential results and risks of[, and alternatives to] the
[insert medical procedure];
not have agreed to the [insert medical procedure] if he or she had
been adequately informed; and
4. That [name of plaintiff] was harmed by a result or risk that
[name of defendant] should have explained.

Directions for Use
This instruction should be read in conjunction with CACI No. 532, Informed
Consent—Definition. See also the Directions for Use and Sources and Authority to
that instruction.
If the patient is a minor or is incapacitated, tailor the instruction accordingly.
• “[W]hen there is a more complicated procedure, . . . the jury should be
instructed that when a given procedure inherently involves a known risk of
death or serious bodily harm, a medical doctor has a duty to disclose to his
patient the potential of death or serious harm, and to explain in lay terms the
complications that might possibly occur. Beyond the foregoing minimal
disclosure, a doctor must also reveal to his patient such additional information
as a skilled practitioner of good standing would provide under similar
circumstances.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 244–245 [104 Cal.Rptr.
505, 502 P.2d 1], internal citations omitted.)
• “There must be a causal relationship between the physician’s failure to inform
and the injury to the plaintiff. Such causal connection arises only if it is
established that had revelation been made consent to treatment would not have
been given.” (Cobbs, supra, 8 Cal.3d at p. 245.)
459

• “[E]ven though a physician has no general duty of disclosure with respect to

nonrecommended procedures, he nevertheless must make such disclosures as
are required for competent practice within the medical community.” (Vandi v.
Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9
Cal.Rptr.2d 463].)
• “The patient-plaintiff may testify on this subject but the issue extends beyond
his credibility. Since at the time of trial the uncommunicated hazard has
materialized, it would be surprising if the patient-plaintiff did not claim that had
he been informed of the dangers he would have declined treatment. Subjectively
he may believe so, with the 20/20 vision of hindsight, but we doubt that justice
will be served by placing the physician in jeopardy of the patient’s bitterness
and disillusionment. Thus an objective test is preferable: i.e., what would a
prudent person in the patient’s position have decided if adequately informed of
all significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “[T]he objective test required of the plaintiff does not prevent the defendant-
physician from showing, by way of defense, that even though a reasonably
prudent person might not have undergone the procedure if properly informed of
the perils, this particular plaintiff still would have consented to the procedure.”
(Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573],
original italics.)
• “[A]n action for failure to obtain informed consent lies where ‘an undisclosed
inherent complication . . . occurs,’ not where a disclosed complication occurs.”
(Warren, supra, 57 Cal.App.4th at p. 1202, internal citation omitted.)
• “[Plaintiff] is entitled to recover not only for the undisclosed complications, but
also for the disclosed complications, because she would not have consented to
either surgery had the true risk been disclosed, and therefore would not have
suffered either category of complications.” (Warren, supra, 57 Cal.App.4th at p.
1195.)
Secondary Sources
(Matthew Bender)
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.23,
460

[A/An] [insert type of medical practitioner] must explain the risks of

refusing a procedure in language that the patient can understand and
give the patient as much information as [he/she] needs to make an
informed decision, including any risk that a reasonable person would
consider important in deciding not to have [a/an] [insert medical
procedure]. The patient must be told about any risk of death or serious
injury or significant potential complications that may occur if the
procedure is refused. [A/An] [insert type of medical practitioner] is not
required to explain minor risks that are not likely to occur.
New September 2003

Directions for Use
This instruction should be read in conjunction with CACI No. 535, Risks of
Nontreatment—Essential Factual Elements.
• The definition of “informed consent” in Cobbs v. Grant (1972) 8 Cal.3d 229
[104 Cal.Rptr. 505, 502 P.2d 1] applies “whether the procedure involves
treatment or a diagnostic test.” (Truman v. Thomas (1980) 27 Cal.3d 285, 292
[165 Cal.Rptr. 308, 611 P.2d 902].)
• In Truman, “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].) This has been termed the “informed refusal” doctrine.
(Townsend v. Turk (1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].)
• “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
461


462


[he/she] did not adequately inform [name of plaintiff] about the risks of
refusing the [insert medical procedure]. To establish this claim, [name of
1. That [name of defendant] did not perform the [insert medical
procedure] on [name of plaintiff];
2. That [name of defendant] did not disclose to [name of plaintiff] the
important potential risks of refusing the [insert medical
procedure];
have agreed to the [insert medical procedure] if he or she had
been adequately informed about these risks; and
4. That [name of plaintiff] was harmed by the failure to have the
[insert medical procedure] performed.

Directions for Use
This instruction presents the “informed refusal” doctrine. (See Townsend v. Turk
(1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].) It should be given with
CACI No. 534, Informed Refusal—Definition.
• “Applying these principles, the court in Cobbs [Cobbs v. Grant (1972) 8 Cal.3d
229, 243 [104 Cal.Rptr. 505, 502 P.2d 1]] stated that a patient must be apprised
not only of the ‘risks inherent in the procedure [prescribed, but also] the risks
of a decision not to undergo the treatment, and the probability of a successful
outcome of the treatment.’ This rule applies whether the procedure involves
treatment or a diagnostic test. On the one hand, a physician recommending a
risk-free procedure may safely forego discussion beyond that necessary to
conform to competent medical practice and to obtain the patient’s consent. If a
patient indicates that he or she is going to decline the risk-free test or treatment,
then the doctor has the additional duty of advising of all material risks of which
a reasonable person would want to be informed before deciding not to undergo
the procedure. On the other hand, if the recommended test or treatment is itself
risky, then the physician should always explain the potential consequences of
declining to follow the recommended course of action.” (Truman v. Thomas
463

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
407, 409, 410
464


plaintiff]’s harm because [name of plaintiff] would have consented to the
procedure, even if [he/she] had been informed of the risks. To establish
this defense, [name of defendant] must prove that had [name of plaintiff]
been adequately informed about the risks of the [insert medical
procedure], [he/she] would have consented, even if a reasonable person
in [name of plaintiff]’s position might not have consented.

Directions for Use
Give this instruction if the defendant asserts as an affirmative defense that the
plaintiff would have consented (and thereby would have suffered the same harm)
had he or she been informed of the risks. This instruction can be modified to cover
“informed refusal” cases by redrafting it to state, in substance, that even if the
plaintiff had known of the risks of refusal, he or she still would have refused the
test.
• “Whenever appropriate, the court should instruct the jury on the defenses
available to a doctor who has failed to make the disclosure required by law.”
(Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “The patient-plaintiff may testify on this subject but the issue extends beyond
his credibility. Since at the time of trial the uncommunicated hazard has
materialized, it would be surprising if the patient-plaintiff did not claim that had
he been informed of the dangers he would have declined treatment. Subjectively
he may believe so, with the 20/20 vision of hindsight, but we doubt that justice
will be served by placing the physician in jeopardy of the patient’s bitterness
and disillusionment. Thus an objective test is preferable: i.e., what would a
prudent person in the patient’s position have decided if adequately informed of
all significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “The prudent person test for causation was established to protect defendant
physicians from the unfairness of having a jury consider the issue of proximate
cause with the benefit of the ‘20/20 vision of hindsight . . .’ This standard
should not be employed to prevent a physician from raising the defense that
even given adequate disclosure the injured patient would have made the same
decision, regardless of whether a reasonably prudent person would have decided
differently if adequately informed.” (Truman v. Thomas (1980) 27 Cal.3d 285,
294 fn. 5 [165 Cal. Rptr. 308, 611 P.2d 902].)
465

Secondary Sources
466

[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.
New September 2003

Directions for Use
“Whenever appropriate, the court should instruct the jury on the defenses available
to a doctor who has failed to make the disclosure required by law.” (Cobbs v.
Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction
could be modified to cover “informed refusal” cases by redrafting it to state, in
substance, that the plaintiff indicated that he or she did not want to be informed of
the risks of refusing the test.
• “[A] medical doctor need not make disclosure of risks when the patient requests
that he not be so informed.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• This defense is considered a “justification.” Justification for failure to disclose is
an affirmative defense on which the defendant has the burden of proof. (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)
• In Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1083–1084 [91
Cal.Rptr. 319], the court held that it was not error for the court to refuse an
instruction on informed consent where the evidence showed that the doctor’s
attempt to explain the medical procedure was prevented by the plaintiff’s
insistence on remaining ignorant of the risks involved.
Secondary Sources
467

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.

Directions for Use
The court should instruct the jury on the defenses available to a doctor who has
failed to make the disclosure required by law. (Cobbs v. Grant (1972) 8 Cal.3d
229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction could be modified to
cover “informed refusal” cases (see CACI No. 534, Informed Refusal—Definition,
and CACI No. 535, Risks of Nontreatment—Essential Factual Elements) by
redrafting it to state, in substance, that the risks of refusing the test were commonly
understood to be unlikely to occur.
• “[D]isclosure need not be made if the procedure is simple and the danger
remote and commonly appreciated to be remote.” (Cobbs, supra, 8 Cal.3d at p.
245.)
• “[T]here is no physician’s duty to discuss the relatively minor risks inherent in
common procedures, when it is common knowledge that such risks inherent in
the procedure are of very low incidence.” (Cobbs, supra, 8 Cal.3d at p. 244.)
• “We note that under our law justification is regarded as an affirmative defense
and that the defendant normally bears the burden of proof with respect to
affirmative defenses.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn.
9 [13 Cal.Rptr.2d 819].)
Secondary Sources
(Matthew Bender)
468


469

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.
New September 2003

Directions for Use
substance, that the information regarding the risks of refusing the test would have
seriously upset the patient.
• “A disclosure need not be made beyond that required within the medical
community when a doctor can prove by a preponderance of the evidence he
relied upon facts which would demonstrate to a reasonable man the disclosure
would have so seriously upset the patient that the patient would not have been
able to dispassionately weigh the risks of refusing to undergo the recommended
treatment.” (Cobbs, supra, 8 Cal.3d at p. 246.)
Secondary Sources
17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew
470

Bender)
471

[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
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].
New September 2003

Directions for Use
substance, that the emergency situation made it impossible to inform the patient
regarding the risks of refusing the test.
• When Consent Not Required. Business and Professions Code sections 2397(a)
(doctor), 1627.7(a) (dentist).
• Consent is implied in an emergency situation. (Cobbs, supra, 8 Cal.3d at p.
243.)
• The existence of an emergency situation can also be a defense to battery.
(Wheeler v. Barker (1949) 92 Cal.App.2d 776, 781 [208 P.2d 68]; Preston v.
Hubbell (1948) 87 Cal.App.2d 53, 57–58 [196 P.2d 113]; Hundley v. St. Francis
Hospital (1958) 161 Cal.App.2d 800, 802 [327 P.2d 131].)
Secondary Sources
472

(Matthew Bender)
Bender)
473

555. Affirmative Defense—Statute of Limitations—Medical

Malpractice—One-Year Limit (Code Civ. Proc., § 340.5)

defendant] must prove that before [insert date one year before date of
filing], [name of plaintiff] discovered, or knew of facts that would have
caused a reasonable person to suspect, that [he/she] had suffered harm
that was caused by someone’s wrongful conduct.
[If, however, [name of plaintiff] proves [insert tolling provision(s) of
general applicability, e.g., Code Civ. Proc., §§ 351 [absence from
California], 352 [insanity], 352.1 [prisoners], 352.5 [restitution orders],
353.1 [court’s assumption of attorney’s practice], 354 [war], 356
[injunction]], the period within which [name of plaintiff] had to file the
lawsuit is extended for the amount of time that [insert tolling provision,
e.g., [name of defendant] was absent from California].]
New April 2009

Directions for Use
Use CACI No. 556, Affırmative Defense—Statute of Limitations—Medical
Malpractice—Three-Year Limit, if the three-year limitation provision is at issue.
If the notice of intent to sue required by Code of Civil Procedure section 364 is
served within 90 days of the date on which the statute of limitations will run, the
statute of limitations is tolled for 90 days beyond the end of the limitations period.
(See Code Civ. Proc., § 364; Woods v. Young (1991) 53 Cal.3d 315, 325–326 [279
Cal.Rptr. 613, 807 P.2d 455].) Adjust the “date one year before the date of filing”
in the instruction accordingly. If there is an issue of fact with regard to compliance
with the requirements of section 364, the instruction may need to be modified
accordingly.
Give the optional last paragraph if there is a question of fact concerning a tolling
provision from the Code of Civil Procedure. If so, the verdict form should ask the
jury to find (1) the “discovery” date (the date on which the plaintiff discovered or
knew of facts that would have caused a reasonable person to suspect that he or she
had suffered harm that was caused by someone’s wrongful conduct); (2) whether
the tolling provision applies; and (3) if so, for what period of time. The court can
then add the additional time to the discovery date and determine whether the action
is timely.
Contrary to the otherwise applicable rule (see CACI No. 455, Statute of
Limitations—Delayed Discovery), the defendant has been given the burden of
proving that the plaintiff discovered or should have discovered the facts alleged to
constitute the defendant’s wrongdoing more than one year before filing the action.
474

(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.
• 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
• “[W]hen the plaintiff in a medical malpractice action alleges the defendant
health care provider misdiagnosed or failed to diagnose a preexisting disease or
condition, there is no injury for purposes of section 340.5 until the plaintiff first
experiences appreciable harm as a result of the misdiagnosis, which is when the
plaintiff first becomes aware that a preexisting disease or condition has
developed into a more serious one.” (Drexler v. Petersen (2016) 4 Cal.App.5th
1181, 1183–1184 [209 Cal.Rtpr.3d 332].)
• “The fact that [plaintiff] contemplated suing [defendants] is strong evidence that
[plaintiff] suspected the doctors had not properly diagnosed or treated his
headaches. Even with the presence of such suspicions, however, the one-year
and three-year limitations periods did not begin to run until [plaintiff]
discovered his injury—that is, became aware of additional, appreciable harm
from his preexisting condition—and, with respect to the one-year limitations
period, also had reason to believe that injury was caused by the wrongdoing of
[defendants].” (Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation
omitted.)
• “We see no reason to apply the second sentence of section 340.5 to the one-
475

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
• “[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
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,
• “[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
476

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
• “[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) 2 Cal.App.5th 1, 8 [205 Cal.Rptr.3d 719], internal
citations omitted.)
1181, 1183–1184 [209 Cal.Rptr.3d 332].)
Secondary Sources
Haning, et al., California Practice Guide: Personal Injury, Ch. 1-B, Initial
Evaluation Of Case: Decision To Accept Or Reject Employment Or Undertake
Further Evaluation Of Claim, ¶ 1:67.1 (The Rutter Group)
Haning, et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶ 5:109 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7
(Thomson Reuters)
477

556. Affirmative Defense—Statute of Limitations—Medical

Malpractice—Three-Year Limit (Code Civ. Proc., § 340.5)

defendant] must prove that [name of plaintiff]’s alleged injury occurred
before [insert date three years before date of filing].
[If, however, [name of plaintiff] proves
[Choose one or more of the following options:]
[that [he/she/it] did not discover the alleged wrongful act or omission
because [name of defendant] acted fraudulently[,/; or]]
[that [name of defendant] intentionally concealed facts constituting the
wrongful act or omission[,/; or]]
[that the alleged wrongful act or omission involved the presence of an
object that had no therapeutic or diagnostic purpose or effect in [name
of plaintiff]’s body[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] intentionally concealed the facts].]
New April 2009, Revised November 2017

Directions for Use
Use CACI No. 555, Affırmative Defense—Statute of Limitations—Medical
Malpractice—One-Year Limit, if the one-year limitation provision is at issue.
If no tolling provision from Code of Civil Procedure section 340.5 is at issue, read
only the first paragraph. Read the rest of the instruction if there is a question of
fact concerning a tolling provision. If so, the verdict form should ask the jury to
find (1) the date on which the alleged injury occurred; (2) whether the tolling
provision applies; and (3) if so, for what period of time. The court can then add the
additional time to the date of injury and determine whether the action is timely.
If the notice of intent to sue required by Code of Civil Procedure section 364 is
served within 90 days of the date on which the statute of limitations will run, the
statute of limitations is tolled for 90 days beyond the end of the limitation period.
(See Code Civ. Proc., § 364; Russell v. Stanford Univ. Hosp. (1997) 15 Cal.4th 783,
789–790 [64 Cal.Rptr.2d 97, 937 P.2d 640].) If there is an issue of fact with regard
to compliance with the requirements of section 364, the instruction may need to be
modified accordingly.
If the claim involves a diagnosis error, the cause of action accrues when the
478

plaintiff first experiences “appreciable harm” as a result of the defendant’s

diagnosis error. Appreciable harm occurs when the plaintiff first becomes aware, or
reasonably should have become aware, that a preexisting disease or condition has
developed into a more serious one. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181,
1183–1184, 1194 [209 Cal.Rptr.3d 332].) When this has occurred is a question of
fact for the jury unless the facts are undisputed. (Id. at p. 1197.) Appreciable harm
determines when the injury occurred to complete the cause of action; it is not a
question of delayed discovery. Therefore, appreciable harm is required to trigger
the three-year limitation period of Code of Civil Procedure section 340.5. (Steingart
v. White (1988) 198 Cal.App.3d 406, 414–417 [243 Cal.Rptr. 678].)
• Three-Year Limitation Period for Medical Malpractice. Code of Civil Procedure
section 340.5.
• “No tolling provision outside of MICRA can extend the three-year maximum
time period that section 340.5 establishes.” (Belton v. Bowers Ambulance Serv.
(1999) 20 Cal.4th 928, 931 [86 Cal.Rptr.2d 107, 978 P.2d 591]; see also
Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 319–321 [172 Cal.Rptr.
594] [Code Civ. Proc., § 352 does not toll statute for insanity].)
• “The three-year limitations period of section 340.5 provides an outer limit
which terminates all malpractice liability and it commences to run when the
patient is aware of the physical manifestation of her injury without regard to
awareness of the negligent cause.” (Hills v. Aronsohn (1984) 152 Cal.App.3d
753, 760 [199 Cal.Rptr. 816].)
1181, 1183–1184 [209 Cal.Rtpr.3d 332].)
• “The fact that [plaintiff] contemplated suing [defendants] is strong evidence that
[plaintiff] suspected the doctors had not properly diagnosed or treated his
headaches. Even with the presence of such suspicions, however, the one-year
and three-year limitations periods did not begin to run until [plaintiff]
discovered his injury—that is, became aware of additional, appreciable harm
from his preexisting condition—and, with respect to the one-year limitations
period, also had reason to believe that injury was caused by the wrongdoing of
[defendants].” (Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation
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
479

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.)
• “The same considerations of legislative intent that compelled us, in [Woods v.
Young (1991) 53 Cal.3d 315, 325–326 [279 Cal.Rptr. 613, 807 P.2d 455]], to
construe Code of Civil Procedure section 364, subdivision (d), as ‘tolling’ the
one-year limitations period also apply to the three-year limitation. Unless the
limitations period is so construed, the legislative purpose of reducing the cost
and increasing the efficiency of medical malpractice litigation by, among other
things, encouraging negotiated resolution of disputes will be frustrated.
Moreover, a plaintiff’s attorney who gives notice within the last 90 days of the
3-year limitations period will confront the dilemma we addressed in Woods, i.e.,
a choice between preserving the plaintiff’s cause of action by violating the 90-
day notice period under Code of Civil Procedure section 364, subdivision
(d)—thereby invoking potential disciplinary proceedings by the State Bar—and
forfeiting the client’s cause of action. In the absence of tolling, the practical
effect of the statute would be to shorten the statutory limitations period from
three years to two years and nine months. As in the case of the one-year
limitation, we discern no legislative intent to do so.” (Russell, supra, 15 Cal.4th
at pp. 789–790.)
• “[T]he ‘no therapeutic or diagnostic purpose or effect’ qualification in section
340.5 means the foreign body exception does not apply to objects and
substances intended to be permanently implanted, but items temporarily placed
in the body as part of a procedure and meant to be removed at a later time do
come within it.” (Maher v. County of Alameda (2014) 223 Cal.App.4th 1340,
1352 [168 Cal.Rptr.3d 56].)
• “[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
• “[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) 2 Cal.App.5th 1, 8 [205
480


developed into a more serious one.” (Drexler, supra, 4 Cal.App.5th 1181,
1183–1184 [209 Cal.Rptr.3d 332].)
• “Applying the well-settled definition of injury set forth in the cases cited ante to
the facts here, it must be concluded [plaintiff] suffered no damaging affect or
appreciable harm from [defendant]’s asserted neglect until [doctor] discovered
her cancer in April 1985. Her complaint was therefore timely with respect to
the three-year limit.” (Steingart, supra, 198 Cal.App.3d at p. 414.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 1-B, First Steps in
Handling a Personal Injury Case—Initial Evaluation of Case: Decision to Accept
or Reject Employment or Undertake Further Evaluation of Claim, ¶ 1:67.1 (The
Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7
(Thomson Reuters)
481


1. Was [name of defendant] negligent in the diagnosis or treatment
of [name of plaintiff]?
1. Yes No
2. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
482

MEDICAL NEGLIGENCE VF-500
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 500, Medical Negligence—Essential
Factual Elements.
483


Defense—Plaintiff Would Have Consented Even If Informed

1. Did [name of defendant] perform a [insert medical procedure] on
[name of plaintiff]?
1. Yes No
2. Did [name of plaintiff] give [his/her] informed consent for the
[insert medical procedure]?
2. Yes No
3. Would a reasonable person in [name of plaintiff]’s position have
refused the [insert medical procedure] if he or she had been
adequately informed of the possible results and risks of [and
alternatives to] the [insert medical procedure]?
3. Yes No
4. Would [name of plaintiff] have consented to the [insert medical
procedure] even if [he/she] had been given adequate information
about the risks of the [insert medical procedure]?
4. Yes No
5. Was [name of plaintiff] harmed as a consequence of a result or
risk that [name of defendant] should have explained before the
[insert medical procedure] was performed?
5. Yes No
484


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
485

VF-501 MEDICAL NEGLIGENCE

If the affirmative defense, which is contained in question 4, is not an issue in the
case, question 4 should be omitted and the remaining questions renumbered
accordingly.
486


Defense—Emergency

1. Did [name of defendant] perform a [insert medical procedure] on
1. Yes No
2. Did [name of plaintiff] give [his/her] informed consent to the
[insert medical procedure]?
2. Yes No
3. Would a reasonable person in [name of plaintiff]’s position have
refused the [insert medical procedure] if he or she had been fully
informed of the possible results and risks of [and alternatives to]
the [insert medical procedure]?
3. Yes No
4. Was [name of plaintiff] harmed as a consequence of a result or
risk that [name of defendant] should have explained before the
[insert medical procedure] was performed?
4. Yes No
5. Did [name of defendant] reasonably believe the [insert medical
procedure] had to be done immediately in order to preserve the
life or health of [name of plaintiff]?
5. Yes No
you answered yes to this question, answer question 6.
487

VF-502 MEDICAL NEGLIGENCE
6. Was [name of plaintiff] unconscious?

6. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
New September 2003; Revised April 2007, October 2008, December 2010,
December 2016
488

Directions for Use

This verdict form is based on CACI No. 533, Failure to Obtain Informed
Consent—Essential Factual Elements, and CACI No. 554, Affırmative
Defense—Emergency.
Depending on the facts, alternative language may be substituted for question 6 as
in item 2 of CACI No. 554. 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 the affirmative defense, which is contained in questions 5 and 6, is not an issue
in the case, then questions 5 and 6 should be omitted and the remaining questions
renumbered accordingly.
489


PROFESSIONAL NEGLIGENCE

610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-
491

[A/An] [insert type of professional] is negligent if [he/she] fails to use the

skill and care that a reasonably careful [insert type of professional] would
have used 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 and care that a reasonably careful
[insert type of professional] would use in similar circumstances based
only on the testimony of the expert witnesses[, including [name of
defendant],] who have testified in this case.]

Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 501, Standard of Care for Health Care
Professionals, should be used. See CACI No. 400, Negligence—Essential Factual
Elements, for an instruction on the plaintiff’s burden of proof. The word “legal” or
“professional” should be added before the word “negligence” in the first paragraph
of CACI No. 400. (See Sources and Authority following CACI No. 500, Medical
Negligence—Essential Factual Elements.)
Read the second paragraph if the standard of care must be established by expert
testimony.
If the defendant is a specialist in his or her field, this instruction should be
modified to reflect that the defendant is held to the standard of care of a specialist.
(Wright v. Williams (1975) 47 Cal.App.3d 802, 810 [121 Cal.Rptr. 194].) The
standard of care for claims related to a specialist’s expertise is determined by
expert testimony. (Id. at pp. 810–811.)
Whether an attorney-client relationship exists is a question of law. (Responsible
Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756].)
If the evidence bearing upon this decision is in conflict, preliminary factual
determinations are necessary. (Ibid.) Special instructions may need to be crafted for
that purpose.
• “The elements of a cause of action in tort for professional negligence are (1)
the duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the professional’s
492

PROFESSIONAL NEGLIGENCE CACI No. 600
negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491
P.2d 433].)
• “Plaintiffs’ argument that CACI No. 600 altered their burden of proof is
misguided in that it assumes that a ‘professional’ standard of care is inherently
different than the standard in ordinary negligence cases. It is not. ‘With respect
to professionals, their specialized education and training do not serve to impose
an increased duty of care but rather are considered additional “circumstances’
relevant to an overall assessment of what constitutes “ordinary prudence” in a
particular situation.’ ‘Since the standard of care remains constant in terms of
“ordinary prudence,” it is clear that denominating a cause of action as one for
“professional negligence” does not transmute its underlying character. For
substantive purposes, it merely serves to establish the basis by which “ordinary
prudence” will be calculated and the defendant’s conduct evaluated.’ ” (LAOSD
Asbestos Cases (2016) 5 Cal.App.5th 1022, 1050 [211 Cal.Rptr.3d 261], internal
citation omitted.)
• “ ‘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)
• “[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
• “[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.)
• “Plaintiffs argue that ‘laying pipe is not a “profession.” ’ However, case law,
statutes, and secondary sources suggest that the scope of those held to a
‘professional’ standard of care—a standard of care similar to others in their
profession, as opposed to that of a ‘reasonable person’—is broad enough to
encompass a wide range of specialized skills. As a general matter, ‘[t]hose
undertaking to render expert services in the practice of a profession or trade are
required to have and apply the skill, knowledge and competence ordinarily
possessed by their fellow practitioners under similar circumstances, and failure
to do so subjects them to liability for negligence.’ ” (LAOSD Asbestos Cases,
• “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
493

CACI No. 600 PROFESSIONAL NEGLIGENCE
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
• “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
judgment.” (Wright, supra, 47 Cal.App.3d at p. 809, internal citations omitted;
but see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 470–471 [71 Cal.Rptr.3d 707] [geographical location may be a factor to be
considered, but by itself, does not provide a practical basis for measuring
similar circumstances].)
• Failing to Act Competently. Rules of Professional Conduct, rule 3-110.
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 290–293
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 990, 991, 994–997
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 1-A,
Sources Of Regulation Of Practice Of Law In California-Overview, ¶ 1:39 (The
Rutter Group)
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶¶ 6:230–6:234 (The Rutter Group)
(Matthew Bender)
Professionals, §§ 30.12, 30.13, Ch. 32, Liability of Attorneys, § 32.13 (Matthew
Bender)
494

7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional

(Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)
495

To recover damages from [name of defendant], [name of plaintiff] must

prove that [he/she/it] would have obtained a better result if [name of
defendant] had acted as a reasonably careful attorney. [Name of plaintiff]
was not harmed by [name of defendant]’s conduct if the same harm
would have occurred anyway without that conduct.

Directions for Use
In cases involving professionals other than attorneys, this instruction would need to
be modified by inserting the type of the professional in place of “attorney.” (See,
e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820,
829–830 [60 Cal.Rptr.2d 780] [trial-within-a-trial method was applied to
accountants].)
The plaintiff must prove that but for the attorney’s negligent acts or omissions, he
or she would have obtained a more favorable judgment or settlement in the
underlying action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d
629, 70 P.3d 1046].) The second sentence expresses this “but for” standard.
• “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.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,
749–750 [76 Cal.Rptr.2d 749, 958 P.2d 1062].)
• “In the legal malpractice context, the elements of causation and damage are
particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574,
1582 [171 Cal.Rptr.3d 23].)
• “In a client’s action against an attorney for legal malpractice, the client must
prove, among other things, that the attorney’s negligent acts or omissions
caused the client to suffer some financial harm or loss. When the alleged
malpractice occurred in the performance of transactional work (giving advice or
preparing documents for a business transaction), must the client prove this
causation element according to the ‘but for’ test, meaning that the harm or loss
would not have occurred without the attorney’s malpractice? The answer is
yes.” (Viner, supra, 30 Cal.4th at p. 1235.)
• “[The trial-within-a-trial method] is the most effective safeguard yet devised
against speculative and conjectural claims in this era of ever expanding
litigation. It is a standard of proof designed to limit damages to those actually
496

caused by a professional’s malfeasance.” (Mattco Forge Inc., supra, 52

• “ ‘Damage to be subject to a proper award must be such as follows the act
complained of as a legal certainty . . . .’ Conversely, ‘ “ ‘[t]he mere probability
that a certain event would have happened, upon which a claim for damages is
predicated, will not support the claim or furnish the foundation of an action for
such damages.’ ” ’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165–166
[149 Cal.Rptr.3d 422], original italics, footnote and internal citations omitted.)
• “One who establishes malpractice on the part of his or her attorney in
prosecuting a lawsuit must also prove that careful management of it would have
resulted in a favorable judgment and collection thereof, as there is no damage
in the absence of these latter elements.” (DiPalma v. Seldman (1994) 27
Cal.App.4th 1499, 1506–1507 [33 Cal.Rptr.2d 219], original italics.)
• “ ‘The element of collectibility requires a showing of the debtor’s solvency.
“[‘W]here a claim is alleged to have been lost by an attorney’s negligence, . . .
to recover more than nominal damages it must be shown that it was a valid
subsisting debt, and that the debtor was solvent.’ [Citation.]” The loss of a
collectible judgment “by definition means the lost opportunity to collect a
money judgment from a solvent [defendant] and is certainly legally sufficient
evidence of actual damage.” ’ ” (Wise v. DLA Piper LLP (US) (2013) 220
omitted.)
• “Collectibility is part of the plaintiff’s case, and a component of the causation
and damages showing, rather than an affirmative defense which the Attorney
Defendants must demonstrate.” (Wise, supra, 220 Cal.App.4th at p. 1191.)
• “Because of the legal malpractice, the original target is out of range; thus, the
misperforming attorney must stand in and submit to being the target instead of
the former target which the attorney negligently permitted to escape. This is the
essence of the case-within-a-case doctrine.” (Arciniega v. Bank of San
Bernardino (1997) 52 Cal.App.4th 213, 231 [60 Cal.Rptr.2d 495].)
• “Where the attorney’s negligence does not result in a total loss of the client’s
claim, the measure of damages is the difference between what was recovered
and what would have been recovered but for the attorney’s wrongful act or
omission. [¶] Thus, in a legal malpractice action, if a reasonably competent
attorney would have obtained a $3 million recovery for the client but the
negligent attorney obtained only a $2 million recovery, the client’s damage due
to the attorney’s negligence would be $1 million—the difference between what
a competent attorney would have obtained and what the negligent attorney
obtained.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1758 [30
Cal.Rptr.2d 217].)
• “[A] plaintiff who alleges an inadequate settlement in the underlying action
must prove that, if not for the malpractice, she would certainly have received
more money in settlement or at trial. [¶] The requirement that a plaintiff need
497

prove damages to ‘a legal certainty’ is difficult to meet in any case. It is

particularly so in ‘settle and sue’ cases . . . .” (Filbin, supra, 211 Cal.App.4th at
p. 166, original italics, internal citation omitted.)
• “In a legal malpractice action, causation is an issue of fact for the jury to
decide except in those cases where reasonable minds cannot differ; in those
cases, the trial court may decide the issue itself as a matter of law.” (Yanez v.
Plummer (2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d 309].)
• “ ‘The trial-within-a-trial method does not “recreate what a particular judge or
fact finder would have done. Rather, the jury’s task is to determine what a
reasonable judge or fact finder would have done . . . .” . . . Even though
“should” and “would” are used interchangeably by the courts, the standard
remains an objective one. The trier of fact determines what should have been,
not what the result would have been, or could have been, or might have been,
had the matter been before a particular judge or jury. . . .” (Blanks v. Seyfarth
Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710], original
italics.)
• “If the underlying issue originally was a factual question that would have gone
to a tribunal rather than a judge, it is the jury who must decide what a
reasonable tribunal would have done. The identity or expertise of the original
trier of fact (i.e., a judge or an arbitrator or another type of adjudicator) does
not alter the jury’s responsibility in the legal malpractice trial-within-a-trial.”
(Blanks, supra, 171 Cal.App.4th at pp. 357–358.)
Secondary Sources
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:322 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.10 et seq.
(Matthew Bender)
Liability, § 76.50 et seq. (Matthew Bender)
§ 24A.20 et seq. (Matthew Bender)
498

[A/An] [insert type of professional] is not necessarily negligent just

because [his/her] efforts are unsuccessful or [he/she] makes an error
that was reasonable under the circumstances. [A/An] [insert type of
professional] is negligent only if [he/she] was not as skillful,
knowledgeable, or careful as another reasonable [insert type of
professional] would have been in similar circumstances.

Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 505, Success Not Required, should be
used.
• “The services of experts are sought because of their special skill. They have a
duty to exercise the ordinary skill and competence of members of their
profession, and a failure to discharge that duty will subject them to liability for
negligence. Those who hire such persons are not justified in expecting
infallibility, but can expect only reasonable care and competence. They purchase
service, not insurance.” (Gagne v. Bertran (1954) 43 Cal.2d 481, 489 [275 P.2d
15].)
• “This rule [of Gagne v. Bertran, supra] has been consistently followed in this
state with respect to professional services (Roberts v. Karr, 178 Cal.App.2d 535
[3 Cal.Rptr. 98] (surveyor); Gautier v. General Telephone Co., 234 Cal.App.2d
302 [44 Cal.Rptr. 404] (communications services); Bonadiman-McCain, Inc. v.
Snow, 183 Cal.App.2d 58 [6 Cal.Rptr. 52] (engineer); Lindner v. Barlow, Davis
& Wood, 210 Cal.App.2d 660 [27 Cal.Rptr. 101] (accountant); Pancoast v.
Russell, 148 Cal.App.2d 909 [307 P.2d 719] (architect)).” (Allied Properties v.
John A. Blume & Associates (1972) 25 Cal.App.3d 848, 856 [102 Cal.Rptr.
259].)
• “The attorney is not liable for every mistake he may make in his practice; he is
not, in the absence of an express agreement, an insurer of the soundness of his
opinions or of the validity of an instrument that he is engaged to draft; and he
is not liable for being in error as to a question of law on which reasonable
doubt may be entertained by well-informed lawyers.” (Lucas v. Hamm (1961)
56 Cal.2d 583, 591 [15 Cal.Rptr. 821, 364 P.2d 685], cert. denied (1962) 368
U.S. 987 [82 S.Ct. 603, 7 L.Ed.2d 525], internal citations omitted.)
• Jury instructions stating this principle are proper: “[A]n attorney does not
ordinarily guarantee the soundness of his opinions and, accordingly, is not liable
for every mistake he may make in his practice. He is expected, however, to
499

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
Secondary Sources
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)
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)
500

An attorney is not necessarily negligent just because he or she [chooses

one legal strategy/makes a decision/makes a recommendation] and it
turns out that another [strategy/decision/recommendation] would have
been a better choice.
New September 2003

• “We recognize, of course, that an attorney engaging in litigation may have
occasion to choose among various alternative strategies available to his
client . . . .” (Smith v. Lewis (1975) 13 Cal.3d 349, 359 [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 view of the complexity of the law and the circumstances which call for
difficult choices among possible courses of action, the attorney cannot be held
legally responsible for an honest and reasonable mistake of law or an
unfortunate selection of remedy or other procedural step.’ [Citation.]”
(Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 613 [116 Cal.Rptr. 919].)
Secondary Sources
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.11 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability
(Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice
(Matthew Bender)
501

If a reasonably careful attorney in a similar situation would have

referred [name of plaintiff] to a legal specialist, then [name of defendant]
was negligent if [he/she] did not do so.
However, if [name of defendant] handled the matter with as much skill
and care as a reasonable legal specialist would have, then [name of
defendant] was not negligent.
New September 2003

• This type of an instruction was approved for use in legal malpractice cases in
Horne v. Peckham (1979) 97 Cal.App.3d 404, 414–415 [158 Cal.Rptr. 714],
disapproved on other grounds in ITT Small Business Finance Corp. v. Niles
(1994) 9 Cal.4th 245, 256 [36 Cal.Rptr.2d 552, 885 P.2d 965].
• Failing to Act Competently. Rule of Professional Conduct: Rule 3-110(C).
Secondary Sources
1 Witkin, California Procedure (4th ed. 1996) Attorneys, § 319
502

606. Legal Malpractice Causing Criminal Conviction—Actual

Innocence
[Name of plaintiff] alleges that [name of defendant] was negligent in

defending [him/her] in a criminal case, and as a result, [he/she] was
wrongly convicted. To establish this claim, [name of plaintiff] must first
prove that [he/she] was actually innocent of the charges for which [he/
she] was convicted.
New April 2009

Directions for Use
Give this instruction after CACI No. 400, Negligence—Essential Factual Elements,
and CACI No. 600, Standard of Care, in a legal malpractice action arising from an
underlying criminal case.
To prove actual innocence, the plaintiff must first prove legal exoneration. (See
Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201 [108 Cal.Rptr.2d 471,
25 P.3d 670].) Presumably, exoneration will be decided by the court as a matter of
law. If there is a question of fact regarding exoneration, this instruction should be
modified accordingly.
However, one may be exonerated without actually being innocent of the charges;
for example, by the People’s decision not to retry the case on remand because of
insufficient evidence. (See Coscia, supra, 25 Cal.4th at p. 1205 [exoneration is
prerequisite to proving actual innocence (emphasis added)].) Do not give this
instruction if the court determines as a matter of law that the exoneration does
establish actual innocence; for example, if later-discovered DNA evidence
conclusively proved that the plaintiff could not have committed the offense.
• Statute of Limitations: Factual Innocence. Code of Civil Procedure section
340.6(a).
• “In a legal malpractice action arising from a civil proceeding, the elements are
(1) the duty of the attorney to use such skill, prudence, and diligence as
members of his or her profession commonly possess and exercise; (2) a breach
of that duty; (3) a proximate causal connection between the breach and the
resulting injury; and (4) actual loss or damage resulting from the attorney’s
negligence. In a legal malpractice case arising out of a criminal proceeding,
California, like most jurisdictions, also requires proof of actual innocence.”
(Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45 [83 Cal.Rptr.3d 779],
• “[T]hose policy considerations [underlying the actual-innocence requirement]
are as follows. ‘First, we should not permit a guilty defendant to profit from his
503

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
• “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.
504

LaBarbera (2006) 146 Cal.App.4th 79, 87 [52 Cal.Rptr.3d 640].)

• “[Plaintiff] must be exonerated of all transactionally related offenses in order to
satisfy the holding in Coscia. Because the judicially noticed facts unequivocally
demonstrate that [plaintiff] plead no contest to two offenses transactionally
related to the felony charge of battery on a custodial officer in order to settle
the criminal action, and she was placed on probation for those offenses, she
cannot in good faith plead exoneration.” (Wilkinson, supra, 167 Cal.App.4th at
p. 48.)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 290
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-G,
Professional Competence In Criminal Cases, ¶¶ 6:935–6:944 (The Rutter Group)
Bender)
505

610. Affirmative Defense—Statute of Limitations—Attorney

Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)

defendant] must prove that before [insert date one year before date of
filing] [name of plaintiff] knew, or with reasonable diligence should have
discovered, the facts of [name of defendant]’s alleged wrongful act or
omission.
[Choose one or more of the following three options:]
[that [he/she/it] did not sustain actual injury until on or after [insert
date one year before date of filing][,/; or]]
[that on or after [insert date one year before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the
specific subject matter in which the wrongful act or omission occurred[,/
; or]]
[that on or after [insert date one year before date of filing] [he/she/it]
was under a legal or physical disability that restricted [his/her/its]
ability to file a lawsuit[,/;]]
of defendant] continued to represent [name of plaintiff]].]
New April 2007; Revised April 2009

Directions for Use
Use CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit, if the four-year limitation provision is at issue.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the “discovery” date (the date on which the plaintiff
discovered or knew of facts that would have caused a reasonable person to suspect
that he or she had suffered harm that was caused by someone’s wrongful conduct);
(2) whether the tolling provision applies; and (3) if so, for what period of time. The
court can then add the additional time to the discovery date and determine whether
the action is timely.
506


• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
340.6.
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751
[76 Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences. The inquiry necessarily is more qualitative
than quantitative because the fact of damage, rather than the amount, is the
critical factor.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 113 [103
Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once
the client can plead damages that could establish a cause of action for legal
malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v.
Chavos (2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal
citations omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if
the client will encounter ‘difficulty in proving damages’; and even if that
damage might be mitigated or entirely eliminated in the future. [¶ ] However,
‘actual injury’ does not include ‘speculative and contingent injuries . . . that do
not yet exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v.
Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
507

• “[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,
• “[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
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.)
508

• “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
• “[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
509

ongoing mutual relationship and of activities in furtherance of the

relationship.’ ” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the
purposes of the continuing representation rule, we conclude that for purposes of
. . . section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the
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,
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
original italics.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7
Cal.Rptr.2d 550, 828 P.2d 691] [applying rule to one-year limitation period]; cf.
Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d
107, 978 P.2d 591] [substantially similar language in Code Civ. Proc., § 340.5,
applicable to medical malpractice, construed to apply only to three-year
limitation period].)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
510

circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “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.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation
in the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th
284, 292 [211 Cal.Rptr.3d 372].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 573, 626–655
Bender)
(Matthew Bender)
511

611. Affirmative Defense—Statute of Limitations—Attorney

Malpractice—Four-Year Limit (Code Civ. Proc., § 340.6)

defendant] must prove that [his/her/its] alleged wrongful act or omission
occurred before [insert date four years before date of filing].
[Choose one or more of the following four options:]
[that [he/she/it] did not sustain actual injury until on or after [insert
date four years before date of filing]][,/; or]]
[that on or after [insert date four years before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the
specific subject matter in which the wrongful act or omission occurred[,/
; or]]
[that on or after [insert date four years before date of filing] [name of
defendant] knowingly concealed the facts constituting the wrongful act
or omission[,/; or]]
[that on or after [insert date four years before date of filing] [he/she/it]
was under a legal or physical disability that restricted [his/her/its]
ability to file a lawsuit[,/;]]
of defendant] knowingly concealed the facts].]
New April 2007; Revised April 2009

Directions for Use
Use CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit, if the one-year limitation provision is at issue.
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the date on which the alleged wrongful act or omission
occurred; (2) whether the tolling provision applies; and (3) if so, for what period of
time. The court can then add the additional time to the date on which the alleged
wrongful act or omission occurred and determine whether the action is timely.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
512


• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
340.6.
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751
[76 Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences. The inquiry necessarily is more qualitative
than quantitative because the fact of damage, rather than the amount, is the
critical factor.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 113 [103
Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once
the client can plead damages that could establish a cause of action for legal
malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v.
Chavos (2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal
citations omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if
the client will encounter ‘difficulty in proving damages’; and even if that
damage might be mitigated or entirely eliminated in the future. [¶ ] However,
‘actual injury’ does not include ‘speculative and contingent injuries . . . that do
not yet exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v.
Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
513

• “[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.,
• “[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,
• “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.)
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
514

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
• “[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
• “ ‘[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 v. Berger Kahn (2013) 222
• “ ‘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
ongoing mutual relationship and of activities in furtherance of the
relationship.’ ” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the
purposes of the continuing representation rule, we conclude that for purposes of
. . . section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the
515

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,
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
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.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation
in the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th
284, 292 [211 Cal.Rptr.3d 372].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 573, 626–655
516

Bender)
(Matthew Bender)
517


MOTOR VEHICLES AND HIGHWAY SAFETY

710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code,
§ 21950)
Permission
519

A person must use reasonable care in driving a vehicle. Drivers must

keep a lookout for pedestrians, obstacles, and other vehicles. They must
also control the speed and movement of their vehicles. The failure to use
reasonable care in driving a vehicle is negligence.
New September 2003

Directions for Use
This instruction states the common-law standard of reasonable care in driving. It
applies to negligent conduct that is not covered by provisions of the Vehicle Code:
“Aside from the mandate of the statute, the driver of a motor vehicle is bound to
use reasonable care to anticipate the presence on the streets of other persons having
equal rights with himself to be there.” (Zarzana v. Neve Drug Co. (1919) 180 Cal.
32, 37 [179 P. 203].)
The instructions in this series should be used in conjunction with instructions on
the elements of negligence contained in the negligence series.
• The common-law duty supplements statutory driving regulations: “[A driver is]
under a duty, both by statute and common law, to operate his vehicle without
negligence so as to abstain from injuring any other person or his property.”
(Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194 [68 Cal.Rptr. 520].)
• The standard of care is that of a reasonably careful person under the
circumstances: “[The driver] was required to act as a reasonably prudent person
under the same or similar circumstances . . . .” (Watkins v. Ohman (1967) 251
Cal.App.2d 501, 502–503 [59 Cal.Rptr. 709].)
• “ ‘The degree of care required in watching the movements of a particular
machine depends upon the facts and circumstances existing at the time and
place of the accident’ and a driver is required to use that degree of care, only,
which would be required of a reasonably prudent driver under similar
circumstances.” (Whitford v. Pacific Gas and Electric Co. (1955) 136
Cal.App.2d 697, 702 [289 P.2d 278], internal citations omitted.)
• The common-law requirement goes to the issues of lookout and control.
Regardless of whether a driver was complying with the speed limit, “[he was]
still bound to anticipate that he might meet persons at any point of the street
and in order to avoid a charge of negligence he was bound to use ordinary care
and to keep an ordinarily careful lookout for such persons and keep his machine
under such control as would enable him to avoid a collision.” (Boccalero v.
Wadleigh (1931) 113 Cal.App. 376, 379, [298 P. 526], internal citation omitted.)
• “The operator of a vehicle must keep a proper lookout for other vehicles or
520

MOTOR VEHICLES AND HIGHWAY SAFETY CACI No. 700
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
• 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
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)
521

When the law requires a [driver/pedestrian] to “yield the right-of-way”

to [another/a] [vehicle/pedestrian], this means that the
[driver/pedestrian] must let the [other] [vehicle/pedestrian] go first.
Even if someone has the right-of-way, that person must use reasonable
care to avoid an accident.
New September 2003

Directions for Use
This instruction should be given following a reading of the appropriate Vehicle
Code section.
If the case involves a statutory right-of-way, the jury could also be given
instructions on negligence per se, if applicable.
• “Right of Way” Defined. Vehicle Code section 525.
• Intersection Right of Way. Vehicle Code section 21800.
• Left Turn Right of Way. Vehicle Code section 21801.
• Approaching Entrance to Intersection. Vehicle Code section 21802.
• Intersection Controlled by Yield Right-of-Way Sign. Vehicle Code section
21803.
• Entry Onto Highway. Vehicle Code section 21804.
• Equestrian Crossings. Vehicle Code section 21805.
• Authorized Emergency Vehicles. Vehicle Code section 21806.
• “Right of way rules have been described as simply establishing ‘a practical
basis for necessary courtesy on the highway.’ ” (Eagar v. McDonnell Douglas
Corp. (1973) 32 Cal.App.3d 116, 122 [107 Cal.Rptr. 819].)
• “[A] driver entering a public highway from private property who collides with a
vehicle traveling on the public road is not necessarily liable for a violation of
[Vehicle Code] section 21804. Rather, the driver violates this section only if he
or she fails to act as a ‘ “reasonably prudent and cautious [person].” ’ Whether
the driver failed to so act is a question of fact for the trier of fact to decide.”
(Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 266 [155 Cal.Rptr.3d
• “Of course, even if [defendant] had the right of way, he had a duty to exercise
reasonable care to avoid an accident, and the jury was so instructed.” (Eagar,
supra, 32 Cal.App.3d. at p. 123, fn. 3, internal citation omitted.)
522

• “Where a car has actually entered an intersection before the other approaches it,
the driver of the first car has the right to assume that he will be given the right
of way and be permitted to pass through the intersection without danger of
collision. He has a right to assume that the driver of the other car will obey the
law, slow down, and yield the right of way, if slowing down be necessary to
prevent a collision.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 508 [208
Cal.Rptr.3d 655].)
• “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
• “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
Action, §§ 82.10, 82.68 (Matthew Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters)
523

A [driver/pedestrian] who has the right-of-way may give up that right

and let [another vehicle/a pedestrian] go first. If a [driver/pedestrian]
reasonably believes that [[another/a] driver/a pedestrian] has given up
the right-of-way, then he or she may go first.
New September 2003

• “[I]f one who has the right of way ‘conducts himself in such a definite manner
as to create a reasonable belief in the mind of another person that the right-of-
way has been waived, then such other person is entitled to assume that the right
of way has been given up to him . . .’.” (Hopkins v. Tye (1959) 174
Cal.App.2d 431, 433 [344 P.2d 640].)
• “A conscious intentional act of waiver of the right of way by the pedestrian is
not required. Whether there is a waiver depends upon the acts of the pedestrian.
If they are such that a driver could reasonably believe that the pedestrian did
not intend to assert her right of way, a waiver occurs.” (Cohen v. Bay Area Pie
Company (1963) 217 Cal.App.2d 69, 72–73 [31 Cal.Rptr. 426], internal citation
omitted.)
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68[1][c] (Matthew
Bender)
524

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].
New September 2003

Directions for Use
This instruction is designed to be given as a supplement to the several Vehicle
Code provisions that contain the term “immediate hazard.” (Veh. Code, §§ 21802
[Approaching intersection entrance], 21803 [Yield right of way], 21804 [Public or
private property], 21805 [Equestrian crossings], 21950 [Crosswalks], 21953 [Tunnel
or overhead crossing], 21954 [Pedestrian outside crosswalk], 22451 [Train signals].)
• “It is to be noted that the legislature has not set a hard and fast rule for the
conduct of drivers approaching through highways but has provided the general
rule that such drivers must yield the right of way to others traveling on the
highway who are approaching so closely as to constitute ‘an immediate hazard.’
Our complex traffic problems are such that the circumstances of the traffic on a
through highway as a driver approaches must govern his conduct in determining
whether it is an immediate hazard. Whether a driver acts with due care or
negligently in proceeding across a through highway must as a general rule be
left to the determination of the jury in view of all the circumstances.”
(Wilkinson v. Marcellus (1952) 51 Cal.App.2d 630, 633 [125 P.2d 584].)
• At least one court has held that the term “immediate hazard” should be defined
for the jury if a party so requests. (Hickenbottom v. Jeppesen (1956) 144
Cal.App.2d 115, 121 [300 P.2d 689].) However, any error in failing to define
the term will be considered harmless if other instructions cover that point: “The
words ‘immediate hazard’ seem reasonably clear in the context in which they
appear, both in the statute and in the instruction given; the hazard of a
collision.” (Ibid.)
Secondary Sources
525

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.]
New September 2003

Directions for Use
The bracketed paragraph should be given in appropriate cases involving multiple
lanes of oncoming traffic. (Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 227
[268 Cal.Rptr. 70].)
• Duty to Yield Right of Way: Left Turn. Vehicle Code section 21801(a).
• “We hold section 21802, subdivision (a), requires that where, as here, some, but
not all, of the oncoming vehicles have yielded their right-of-way to a left-
turning driver, that driver has a continuing duty during the turning movement to
ascertain, before proceeding across the next open lane(s), if any vehicle is
approaching from the opposite direction so close as to constitute a hazard.”
(Sesler, supra, 219 Cal.App.3d at pp. 224–225)
• Noting that in 1957 the Legislature added the phrase “at any time during the
turning movement” to this section, the court in In re Kirk (1962) 202
Cal.App.2d 288, 291 [20 Cal.Rptr. 787], reasoned that “if the oncoming vehicle
in the lane closest to the left turning vehicle surrenders its right of way by
indicating to the operator of the left turning vehicle that it desires him to
proceed, such operator may not proceed beyond that first lane of traffic, now
effectively blocked by the waiving vehicle, if in fact other vehicles approaching
in any of the other oncoming lanes will constitute a hazard to the left turning
vehicle during the turning movement.”
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68[2][g] (Matthew
Bender)
526

A driver must use reasonable care when turning [or moving to the right
or to the left].
New September 2003

Directions for Use
An instruction on this point should be given only if the jury is instructed on
Vehicle Code section 22107. It should be read after that section has been given.
(Anderson v. Latimer (1985) 166 Cal.App.3d 667, 672–673 [212 Cal.Rptr. 544].)
• Turning and Changing Lanes. Vehicle Code section 22107.
• “This provision does not require the driver to know that a turn can be made
with safety but only that he must exercise reasonable care, and whether such
care has been exercised is normally a question of fact.” (Butigan v. Yellow Cab
Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].)
• Courts have held that a reading of section 22107 should be followed by an
instruction clarifying that the driver is under a duty to exercise only as much
care as a reasonably prudent person when making a turn or movement: “An
instruction to a jury concerning Vehicle Code, section 544 [now 22107] must
make it clear that the driver who is about to turn must exercise such care as
would a reasonably prudent man under similar circumstances, no more and no
less.” (Lewis v. Franklin (1958) 161 Cal.App.2d 177, 184 [326 P.2d 625].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 883, 884, 886
527

A person must drive at a reasonable speed. Whether a particular speed

is reasonable depends on the circumstances such as traffic, weather,
visibility, and road conditions. Drivers must not drive so fast that they
create a danger to people or property.
If [name of plaintiff/defendant] has proved that [name of
defendant/plaintiff] was not driving at a reasonable speed at the time of
the accident, then [name of defendant/plaintiff] was negligent.

Directions for Use
Driving at an unreasonable speed is negligence per se (see Hert v. Firestone Tire &
Rubber Co. (1935) 4 Cal.App.2d 598, 599 [41 P.2d 369]), which establishes the
first element of CACI No. 400, Negligence—Essential Factual Elements. Plaintiff
must still prove the other two elements of harm and causation. (See CACI No. 430,
Causation: Substantial Factor.)
• Speeding. Vehicle Code section 22350.
• “The so-called basic speed law is primarily a regulation of the conduct of the
operators of vehicles. They are bound to know the conditions which dictate the
speeds at which they can drive with a reasonable degree of safety. They know,
or should know, their cars and their own ability to handle them, and especially
their ability to come to a stop at different speeds and under different conditions
of the surface of the highway.” (Wilding v. Norton (1957) 156 Cal.App.2d 374,
379 [319 P.2d 440].)
• “Whether Vehicle Code section 22350 has been violated is a question of fact.”
(Leighton v. Dodge (1965) 236 Cal.App.2d 54, 57 [45 Cal.Rptr. 820], internal
citation omitted.)
• “A number of cases have held that it is proper to give an instruction in the
terms of this section and to inform the jury that a violation of the statute is
negligence.” (Hardin v. San Jose City Lines, Inc. (1953) 41 Cal.2d 432, 438
[260 P.2d 63].)
• Compliance with the posted speed law does not negate negligence as a matter
of law. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 186 [163 Cal.Rptr.
912].)
Secondary Sources
528

2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[3][a] (Matthew
Bender)
529

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.
New September 2003

• Speed Limits. Vehicle Code section 22352.
• Speeding as Negligence. Vehicle Code section 40831.
• A party is entitled to an instruction that the prima facie speed limit is a factor
for the jury to consider in making its negligence determination. (Hardin v. San
Jose City Lines, Inc. (1953) 41 Cal.2d 432, 439 [260 P.2d 63].)
• “The mere driving of an automobile in excess of the speed limit does not show
negligence as a matter of law. The jury was free to find [defendant] not guilty
of negligence even if they found that he was exceeding the speed limit.”
(Williams v. Cole (1960) 181 Cal.App.2d 70, 74 [5 Cal.Rptr. 24], internal
citations omitted.)
• The burden of proving negligence in a civil action is on the party charging
negligence, and even if such party has established speed in excess of the
applicable prima facie limit the party must establish negligence under the
circumstances. (Faselli v. Southern Pacific Co. (1957) 150 Cal.App.2d 644, 648
[310 P.2d 698].)
• “Even though the Texaco truck was traveling at a speed less than the maximum
specified in the Vehicle Code, the reasonableness of its speed was a question of
fact under all the circumstances, and circumstances may make travel at a speed
less than the maximum rate a negligent operation of a motor vehicle.” (Scott v.
Texaco, Inc. (1966) 239 Cal.App.2d 431, 436–437 [48 Cal.Rptr. 785], internal
citations omitted.)
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[2][c], [4] (Matthew
Bender)
530

The maximum speed limit where the accident occurred was [insert
number] miles per hour.
New September 2003

Directions for Use
An instruction on maximum speed limits could be useful to help frame the issue
for the jury. On the other hand, a specific instruction on the maximum speed limits
may be unnecessary. In the event that there is sufficient evidence to support an
instruction that one of the parties violated the maximum speed limit, the judge
could give the negligence per se instructions while reciting the specific code
section. In that event, the judge would not give an instruction on the basic speed
law. (See Hargrave v. Winquist (1982) 134 Cal.App.3d 916 [185 Cal.Rptr. 30].)
• General Maximum Speed is 65 Miles Per Hour. Vehicle Code section 22349(a).
• Basic Maximum Speed for Two-Lane Undivided Highways is 55 Miles Per
Hour. Vehicle Code section 22349(b).
• Maximum Speed at Selected Locations is 70 Miles Per Hour. Vehicle Code
section 22356.
• Driving Too Slowly. Vehicle Code section 22400(a).
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[2][b], [4][b][iii]
(Matthew Bender)
531

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.
New September 2003

Directions for Use
This instruction is designed to supplement a negligence per se instruction on
driving under the influence.
The presumption of intoxication based on a 0.08 blood level applies to criminal
prosecutions only. There is no statutory or case authority supporting the conclusion
that the presumption applies in civil cases. (Hyatt v. Sierra Boat Co. (1978) 79
Cal.App.3d 325, 334 [145 Cal.Rptr. 47].)
For a definition of “drug,” see Vehicle Code section 312: “The term ‘drug’ means
any substance or combination of substances, other than alcohol, which could so
affect the nervous system, brain, or muscles of a person as to impair, to an
appreciable degree, his ability to drive a vehicle in the manner that an ordinarily
prudent and cautious man, in full possession of his faculties, using reasonable care,
would drive a similar vehicle under like conditions.”
• Driving Under the Influence of Alcohol or Drugs. Vehicle Code sections
23152(a), 23153(a).
• “All of the decided cases on the subject recognize that it is negligence as a
matter of law to drive a vehicle upon a public highway while in an intoxicated
condition.” (Zamucen v. Crocker (1957) 149 Cal.App.2d 312, 316 [308 P.2d
• The term “under the influence” was first defined in People v. Dingle (1922) 56
Cal.App. 445, 449 [205 P. 705], as follows: “[I]f intoxicating liquor has so far
affected the nervous system, brain, or muscles of the driver of an automobile as
to impair, to an appreciable degree, his ability to operate his car in the manner
that an ordinarily prudent and cautious man, in the full possession of his
faculties, using reasonable care, would operate or drive a similar vehicle under
like conditions, then such driver is ‘under the influence of intoxicating liquor’
within the meaning of the statute.”
• “One is not necessarily under the influence of intoxicating liquor as the result of
taking one or more drinks. The circumstances and effect must be considered;
whether or not a person was under the influence of intoxicating liquor at a
532

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
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.02[3][b] (Matthew
Bender)
533

710. Duties of Care for Pedestrians and Drivers in Crosswalk

(Veh. Code, § 21950)
A driver of a vehicle must yield the right-of-way to a pedestrian who is

crossing the roadway within any marked crosswalk or within any
unmarked crosswalk at an intersection. When approaching a pedestrian
who is within any marked or unmarked crosswalk, a driver must use
reasonable care and must reduce his or her speed or take any other
action necessary to ensure the safety of the pedestrian.
A pedestrian must also use reasonable care for his or her own safety. A
pedestrian may not suddenly leave a curb or other place of safety and
walk or run into the path of a vehicle that is so close as to constitute an
immediate hazard. A pedestrian also must not unnecessarily stop or
delay traffic while in a marked or unmarked crosswalk.
The failure of a pedestrian to exercise reasonable care does not relieve a
driver of a vehicle from the duty of exercising reasonable care for the
safety of any pedestrian within any marked crosswalk or within any
unmarked crosswalk at an intersection.

Directions for Use
This instruction sets forth the respective duties of drivers and pedestrians in a
crosswalk. (See Veh. Code, § 21950.) Crosswalk accidents often present a
comparative negligence analysis based on the statutory duties of both parties.
• Right-of-Way at Crosswalks. Vehicle Code section 21950.
• Vehicles Stopped for Pedestrians at Crosswalks. Vehicle Code section 21951.
• “Driving a motor vehicle may be sufficiently dangerous to warrant special
instructions, but it is not so hazardous that it always requires ‘extreme
caution.’ ” (Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 544 [67
• “When the pedestrian suddenly leaves his place of safety, the vehicle must be
so close as to constitute an immediate hazard. Such wording [in Veh. Code,
§ 21950] indicates the statute was intended to apply to those situations where a
pedestrian unexpectedly asserts his right-of-way in an intersection at a time
when the vehicle is so close that it is virtually impossible to avoid an accident.
Typical situations include when a pedestrian steps, jumps, walks or runs directly
in front of a vehicle travelling in lanes which are adjacent to the curb or other
place of safety occupied by the pedestrian. Under such circumstances, the
534

vehicle would most certainly constitute an immediate hazard to the pedestrian.”

(Spann v. Ballesty (1969) 276 Cal.App.2d 754, 761 [81 Cal.Rptr. 229], original
italics.)
• “It is undisputed that defendant did not yield the right of way to plaintiff. Such
failure constitutes a violation of the statute and negligence as a matter of law in
the absence of reasonable explanation for defendant’s conduct.” (Schmitt v.
Henderson (1969) 1 Cal.3d 460, 463 [82 Cal.Rptr 502, 462 P.2d 30].)
• “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
• “While it is the duty of both the driver of a motor vehicle and a pedestrian,
using a public roadway, to exercise ordinary care, that duty does not require
necessarily the same amount of caution from each. The driver of a motor
vehicle, when ordinarily careful, will be alertly conscious of the fact that he is
in charge of a machine capable of projecting into serious consequences any
negligence of his own. Thus his caution must be adequate to that responsibility
as related to all the surrounding circumstances. A pedestrian, on the other hand,
has only his own physical body to manage and with which to set in motion a
cause of injury. While, usually, that fact limits his capacity to cause injury, as
compared with a vehicle driver, still, in exercising ordinary care, he, too, will
be alertly conscious of the mechanical power acting, or that may act, on the
public roadway, and of the possible, serious consequences from any conflict
between himself and such forces. And the caution required of him is measured
by the possibilities of injury apparent to him in the conditions at hand, or that
would be apparent to a person of ordinary prudence in the same position.”
(Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 75−76, 81 [265 P.2d 513]
[proposed jury instruction correctly stated the law].)
Secondary Sources
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, §§ 20.10–20.12 (Matthew
Bender)
535

A passenger is not required to be aware of the conditions on the

highway and is entitled to expect that a driver will use reasonable care.
However, if a passenger becomes aware of [a danger on the highway]
[the driver’s impairment or failure to use reasonable care], then the
passenger must take reasonable steps to protect his or her safety.
New September 2003

• “ ‘In the absence of some fact brought to his attention which would cause a
person of ordinary prudence to act otherwise, a passenger in an automobile has
no duty to observe traffic conditions on the highway, and his mere failure to do
so, without more, will not support a finding of contributory negligence. In other
words, an automobile passenger’s “duty to look” does not arise until some
factor of danger comes to his attention, thus charging him as a person of
ordinary prudence to take steps for his own safety. . . .’ ” (Casey v. Russell
(1982) 138 Cal.App.3d 379, 386–387 [188 Cal.Rptr. 18], internal citations
omitted.)
• “Even when negligence of a driver may not be imputed to him, the passenger is
bound to exercise ordinary care for his own safety. He may not shut his eyes to
an obvious danger; he may not blindly rely on the driver in approaching a place
of danger. He is normally bound to protest against actual negligence or
recklessness of the driver, the extent of his duty in this regard depending upon
the particular circumstances of each case and ordinarily being a question of fact
for the jury.” (Pobor v. Western Pacific Railroad Co. (1961) 55 Cal.2d 314, 324
[11 Cal.Rptr. 106, 359 P.2d 474], internal citations omitted.)
Secondary Sources
Bender)
536

[Name of defendant] claims that [name of plaintiff] was negligent because

[he/she] failed to wear a seat belt. To succeed, [name of defendant] must
1. That a working seat belt was available;
2. That a reasonably careful person in [name of plaintiff]’s situation
would have used the seat belt;
3. That [name of plaintiff] failed to wear a seat belt; and
4. That [name of plaintiff]’s injuries would have been avoided or less
severe if [he/she] had used the seat belt.
[In deciding whether a reasonably careful person would have used a
seat belt, you may consider Vehicle Code section 27315, which states:
[insert pertinent provision].]

Directions for Use
Note that the Motor Vehicle Safety Act (Veh. Code, § 27315) applies only to
persons 16 years or older. (Veh. Code, § 27315(d)(1).) No case law regarding
whether persons under 16 can be found comparatively negligent for failing to wear
a seat belt has been found.
• Failure to Wear Seat Belt as Negligence. Vehicle Code section 27315(i).
• “Defendants . . . are required to prove two issues of fact: (1) the defendant
must show whether in the exercise of ordinary care the plaintiff should have
used the seat belt which was available to him. . . . (2) The defendant must
show what the consequence to the plaintiff would have been had seat belts been
used.” (Franklin v. Gibson (1982) 138 Cal.App.3d 340, 343 [188 Cal.Rptr. 23].)
• “Upon a retrial the court or jury will determine whether in the exercise of
ordinary care [plaintiff] should have used the seat belt; expert testimony will be
required to prove whether [plaintiff] would have been injured, and, if so, the
extent of the injuries he would have sustained if he had been using the seat
belt . . . .” (Truman v. Vargas (1969) 275 Cal.App.2d 976, 983 [80 Cal.Rptr.
373].)
• In Housley v. Godinez (1992) 4 Cal.App.4th 737, 747 [6 Cal.Rptr.2d 111], the
court approved of the following jury instruction, which was read in addition to
section 27315: “The Defendants have raised the seat belt defense in this case.
First, you must decide whether in the exercise of ordinary care, the Plaintiff
537

CACI No. 712 MOTOR VEHICLES AND HIGHWAY SAFETY
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
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05[2] (Matthew
Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters West)
538

[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
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.]
New September 2003

Directions for Use
Separate instructions will be necessary regarding the negligence of the driver and
that it caused harm to the plaintiff. Read bracketed language if appropriate to the
facts. If ownership of the vehicle is uncontested, element 2 may be deleted.
• Permissive Use. Vehicle Code section 17150.
• Permissive Use: Limitation on Liability. Vehicle Code section 17151(a).
• The statutory limitation under section 17151(a) “does not apply . . . to a
vehicle owner’s own common law negligence, as distinguished from the
owner’s statutory vicarious liability for the operator’s negligence.” (Fremont
Compensation Insurance Co. v. Hartnett (1993) 19 Cal.App.4th 669, 675–676
[23 Cal.Rptr.2d 567].)
• “[U]nless the evidence points to one conclusion only, the question of the
existence of the requisite permission under [section 17150] is one to be
determined by the trier of fact, ‘upon the facts and circumstances in evidence
and the inferences reasonably to be drawn therefrom.’ ” (Peterson v. Grieger,
539

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
• “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
540

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
• “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
• 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
541

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
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.28–4.32, 4.37
542

721. Motor Vehicle Owner Liability—Affirmative Defense—Use

Beyond Scope of Permission

plaintiff]’s harm because [name of driver]’s use of the vehicle exceeded
the scope of the permission given. To succeed, [name of defendant] must
1. That [name of defendant], by words or conduct, gave permission
to [name of driver] to use the vehicle for a limited time, place, or
purpose; and
2. That [name of driver]’s use of the vehicle substantially violated
the time, place, or purpose specified.
New September 2003

Directions for Use
This instruction is intended for use when the vehicle owner contends that the use of
the vehicle exceeded the scope of the permission, thereby terminating the
permission.
• Permissive Use. Vehicle Code section 17150.
• “[W]here the permission is granted for a limited time, any use after the
expiration of the period is without consent, and the owner is not liable, unless
the circumstances justify an inference of implied consent to further use. [¶] . . .
On principle, there is no fundamental ground of distinction between a limitation
of time and one of purpose or place, insofar as permission is concerned; and it
would seem clear that a substantial violation of either limitation terminates the
original express consent and makes the subsequent use without permission. . . .
[¶] . . . [T]he substantial violation of limitations as to locality or purpose of
use operate in the same manner as violation of time limitations, absolving the
owner from liability.” (Henrietta v. Evans (1938) 10 Cal.2d 526, 528–529 [75
• “[W]here restrictions by the owner as to time, purpose, or area are involved, the
owner’s permission is considered terminated only where there has been a
substantial violation of such restrictions, and it is a question of fact whether
under all the circumstances presented, such restrictions as to time, purpose, or
area have been substantially violated prior to the occurrence of the accident so
as to vitiate the owner’s permission and thus absolve him from the vicarious
liability imposed under [the predecessor to section 17150].” (Peterson v.
Grieger, Inc. (1961) 57 Cal.2d 43, 52 [17 Cal.Rptr. 828, 367 P.2d 420], internal
citations omitted.)
543

• “What is a substantial deviation from a permitted use is a question of fact under

the circumstances of each case.” (Garmon v. Sebastian (1960) 181 Cal.App.2d
254, 260 [5 Cal.Rptr. 101].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.35–4.36
Bender)
544

[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
1. That [name of minor] was negligent in operating the vehicle;
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.
New September 2003; Revised April 2004, October 2004

Directions for Use
Under Vehicle Code section 17708, an element of this cause of action is that the
defendant must have “custody” of the minor driver. The instruction omits this
element because it will most likely be stipulated to or decided by the judge as a
matter of law. If there are contested issues of fact regarding this element, this
instruction may be augmented to include the specific factual findings necessary to
arrive at a determination of custody.
• Parental Liability for Minor’s Vehicle Operation. Vehicle Code section 17708.
• “[I]t was incumbent upon [plaintiffs], in order to fasten liability upon [the
parents] for the minor’s negligence, to establish two necessary facts. These facts
were, first, that at the time the collision occurred respondents had custody of the
minor and, second, that they had given to the minor their permission, either
express or implied, to his driving the automobile by the negligent operation of
which the injuries were caused.” (Sommers v. Van Der Linden (1938) 24
Cal.App.2d 375, 380 [75 P.2d 83].)
• “Whether or not a sufficient custody existed, within the meaning of the statute,
might well depend upon evidence of specific facts showing the nature, kind and
extent of the custody and right of control which the respondent [grandfather]
actually had.” (Hughes v. Wardwell (1953) 117 Cal.App.2d 406, 409 [255 P.2d
881].)
• “In the absence of statute, ordinarily a parent is not liable for the torts of his
minor child. A parent, however, becomes liable for the torts of his minor child
if that child in committing a tort is his agent and acting within the child’s
authority.” (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 904–905 [151
545


• “ ‘[P]erson having custody of the minor’ means person having permanent legal
custody, and not a person such as a school teacher whose control over his
pupils is limited in time and scope.” (Hathaway v. Siskiyou Union High School
Dist. (1944) 66 Cal.App.2d 103, 114 [151 P.2d 861].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.42–4.43
Bender)
Action, § 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.133 (Matthew
Bender)
546

723. Liability of Cosigner of Minor’s Application for Driver’s

License
[Name of plaintiff] claims that [he/she] was harmed by [name of minor]’s

negligence in operating the vehicle and that [name of defendant] is
responsible for the harm because [name of defendant] signed [name of
minor]’s application for a driver’s license. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of minor] was negligent in operating the vehicle;
3. That [name of minor]’s negligence was a substantial factor in
causing the harm;
4. That [name of defendant] signed [name of minor]’s application for
a driver’s license; and
5. That at the time of the collision [name of minor]’s driver’s license
had not been canceled or revoked by the Department of Motor
Vehicles.
New September 2003

• Liability of Cosigner of Minor’s Driver’s License Application. Vehicle Code
section 17707.
• No Liability if Minor is Agent of Another. Vehicle Code section 17710.
• Application for Relief From Liability. Vehicle Code section 17711.
• “Cancellation accomplishes voluntarily what revocation [of minor’s driver’s
license] accomplishes involuntarily. If termination is accomplished by the latter
method, resort to the former becomes superfluous. Once revocation occurs, the
driving privilege is at an end. Thereafter there is no reason and no necessity for
a voluntary application to terminate that which has already been terminated
involuntarily. Both means are equally effective to terminate the driving privilege
and to terminate the signer’s liability.” (Hamilton v. Dick (1967) 254
Cal.App.2d 123, 125 [61 Cal.Rptr. 894].)
• “[T]he negligence of the minor son of the [parents] is imputed to them . . . by
virtue of their having signed his application for an operator’s license, which
was not revoked or cancelled at the time of the accident in question,
notwithstanding the fact that the license was then temporarily suspended” and
even though the parents specifically forbade the minor from operating the
vehicle. (Sleeper v. Woodmansee (1936) 11 Cal.App.2d 595, 598 [54 P.2d 519].)
• “It seems quite evident that, in adopting [the predecessors to sections 17150 and
547

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
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.41, 4.43
Bender)
Action, § 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.134 (Matthew
Bender)
548


defendant] negligently permitted [name of driver] to use [name of
defendant]’s vehicle. To establish this claim, [name of plaintiff] must
1. That [name of driver] was negligent in operating the vehicle;
2. That [name of defendant] [owned the vehicle operated by [name of
driver]/had possession of the vehicle operated by [name of driver]
with the owner’s permission];
3. That [name of defendant] knew, or should have known, that
[name of driver] was incompetent or unfit to drive the vehicle;
4. That [name of defendant] permitted [name of driver] to drive the
vehicle; and
5. That [name of driver]’s incompetence or unfitness to drive was a
substantial factor in causing harm to [name of plaintiff].

Directions for Use
For a definition of “negligence,” see CACI No. 401, Basic Standard of Care.
• Permissive Use by Unlicensed Driver. Vehicle Code section 14606(a).
• Permissive Use by Unlicensed Minor. Vehicle Code section 14607.
• Rental to Unlicensed Driver. Vehicle Code section 14608(a).
• “ ‘ “[I]t is generally recognized that one who places or entrusts his [or her]
motor vehicle in the hands of one whom he [or she] knows, or from the
circumstances is charged with knowing, is incompetent or unfit to drive, may be
held liable for an injury inflicted by the use made thereof by that driver,
provided the plaintiff can establish that the injury complained of was
proximately caused by the driver’s disqualification, incompetency, inexperience
or recklessness . . . .” ’ ” (Flores v. Enterprise Rent-A-Car Co. (2010) 188
• “A rental car company may be held liable for negligently entrusting one of its
cars to a customer. . . . In determining whether defendant was negligent in
entrusting its car to [the driver], defendant’s conduct is to be measured by what
an ordinarily prudent person would do in similar circumstances.” (Osborn v.
Hertz Corp. (1988) 205 Cal.App.3d 703, 709 [252 Cal.Rptr. 613], internal
citations omitted.)
549

• “Liability for negligent entrustment is determined by applying general principles

of negligence, and ordinarily it is for the jury to determine whether the owner
has exercised the required degree of care.” (Allen v. Toledo (1980) 109
• “A claim that an employer was negligent in hiring or retaining an employee-
driver rarely differs in substance from a claim that an employer was negligent
in entrusting a vehicle to the employee. Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was
negligent in hiring or retaining that person as a driver. (See Judicial Council of
Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a
claim for negligent entrustment. (See CACI No. 724.) In a typical case, like
this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51
• “[I]f an employer admits vicarious liability for its employee’s negligent driving
in the scope of employment, ‘the damages attributable to both employer and
employee will be coextensive.’ Thus, when a plaintiff alleges a negligent
entrustment or hiring cause of action against the employer and the employer
admits vicarious liability for its employee’s negligent driving, the universe of
defendants who can be held responsible for plaintiff’s damages is reduced by
one—the employer—for purposes of apportioning fault under Proposition 51.
Consequently, the employer would not be mentioned on the special verdict
form. The jury must divide fault for the accident among the listed tortfeasors,
and the employer is liable only for whatever share of fault the jury assigns to
the employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citation omitted.)
• “[O]rdinarily, in the absence of a special relationship between the parties, there
is no duty to control the conduct of a third person so as to prevent him from
causing harm to another and . . . this rule applies even where the third person’s
conduct is made possible only because the defendant has relinquished control of
his property to the third person, unless the defendant has reason to believe that
the third person is incompetent to manage it.” (Grafton v. Mollica (1965) 231
Cal.App.2d 860, 863 [42 Cal.Rptr. 306].)
• “[T]he tort requires demonstration of actual knowledge of facts showing or
suggesting the driver’s incompetence—not merely his lack of a license. . . . For
liability to exist, knowledge must be shown of the user’s incompetence or
inability safely to use the [vehicle].” (Dodge Center v. Superior Court (1988)
• “Knowledge of possession of a temporary permit allowing a person to drive
only if accompanied by a licensed driver is sufficient to put the entrustor ‘upon
inquiry as to the competency of’ the unlicensed driver. . . . It is then for the
jury to determine under the circumstances whether the entrustor is negligent in
permitting the unlicensed driver to operate the vehicle.” (Nault v. Smith (1961)
• “[E]ntrustment of a vehicle to an intoxicated person is not negligence per se. A
550

plaintiff must prove defendant had knowledge of plaintiff’s incompetence when

entrusting the vehicle.” (Blake v. Moore (1984) 162 Cal.App.3d 700, 706 [208
Cal.Rptr. 703].)
• “[T]he mere sale of an automobile to an unlicensed and inexperienced person
does not constitute negligence per se.” (Perez v. G & W Chevrolet, Inc. (1969)
274 Cal.App.2d 766, 768 [79 Cal.Rptr. 287].)
• “It is well-settled that where a company knows that an employee has no
operator’s license that such knowledge is sufficient to put the employer on
inquiry as to his competency; it is for the jury to determine under such
circumstances whether the employer was negligent in permitting the employee
to drive a vehicle.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 545 [55
Cal.Rptr. 741].)
• “[I]t has generally been held that the owner of an automobile is under no duty
to persons who may be injured by its use to keep it out of the hands of a third
person in the absence of facts putting the owner on notice that the third person
is incompetent to handle it.” (Richards v. Stanley (1954) 43 Cal.2d 60, 63 [271
• “[T]he mere fact of co-ownership does not prevent one co-owner from
controlling use of the vehicle by the other co-owner. Thus, where . . . plaintiff
alleges that one co-owner had power over the use of the vehicle by the other
and that the negligent co-owner drove with the express or implied consent of
such controlling co-owner, who knew of the driver’s incompetence, the basis for
a cause of action for negligent entrustment has been stated.” (Mettelka v.
Superior Court (1985) 173 Cal.App.3d 1245, 1250 [219 Cal.Rptr. 697].)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-B, Liability
Arising From Operation Of Motor Vehicle, ¶ 2:1040 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 7D-D, Liability
Based On Negligent Entrustment, ¶ 7:1332 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, § 4.38
551

[Name of defendant] claims that [name of public employee] was not

required to comply with Vehicle Code section [insert section number]
because [he/she] was operating an authorized emergency vehicle and
was responding to an emergency at the time of the accident.
To establish that [name of public employee] was not required to comply
with section [insert section number], [name of defendant] must prove all of
the following:
1. That [name of public employee] was operating an authorized
emergency vehicle;
2. That [name of public employee] was responding to an emergency
situation at the time of the accident; and
3. That [name of public employee] sounded a siren when reasonably
necessary and displayed front red warning lights.
If you decide that [name of defendant] proved all of these things, then
you cannot find it negligent for a violation of section [insert section
number]. However, even if you decide that [name of defendant] proved all
of these things, you may find it negligent if [name of public employee]
failed to operate [his/her] vehicle with reasonable care, taking into
account the emergency situation.
New September 2003

Directions for Use
For a definition of “emergency,” see CACI No. 731, Definition of “Emergency.”
• Authorized Emergency Vehicle Exemption. Vehicle Code section 21055.
• “Authorized Emergency Vehicle” Defined. Vehicle Code section 165.
• Authorized Emergency Vehicle: Public Employee Immunity. Vehicle Code
section 17004.
• “The purpose of the statute is to provide a ‘clear and speedy pathway’ for these
municipal vehicles on their flights to emergencies in which the entire public are
necessarily concerned.” (Peerless Laundry Services v. City of Los Angeles
(1952) 109 Cal.App.2d 703, 707 [241 P.2d 269].)
• Vehicle Code section 21056 provides: “Section 21055 does not relieve the
driver of a vehicle from the duty to drive with due regard for the safety of all
persons using the highway, nor protect him from the consequences of an
arbitrary exercise of the privileges granted in that section.”
552

• “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,
• “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
• “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.
• “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
553

2 Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 11.140–11.144

20 California Forms of Pleading and Practice, Ch. 246, Emergency Vehicles
(Matthew Bender)
554

An “emergency” exists if the driver of an authorized emergency vehicle

is [insert one of the following]
[responding to an emergency call.]
[involved in rescue operations.]
[in the immediate pursuit of an actual or suspected violator of the
law.]
[responding to, but not returning from, a fire alarm.]
[operating a fire department vehicle while traveling from one place
to another place because of an emergency call.]
New September 2003

Directions for Use
This instruction is based on the language of Vehicle Code section 21055(a) and is
only intended for cases in which there is a factual issue regarding whether the
defendant was acting in response to an emergency at the time of the accident.
(Washington v. City and County of San Francisco (1954) 123 Cal.App.2d 235, 241
[266 P.2d 828].)
• Authorized Emergency Vehicle Exemption. Vehicle Code section 21055(a).
• “Whether a vehicle is driven in response to an emergency call depends on the
nature of the call received and the situation as presented to the mind of the
driver and not upon whether there is an emergency in fact. The driver, of
course, should have reasonable grounds to believe that there is an emergency.”
(Gallup v. Sparks-Mundo Engineering Co. (1954) 43 Cal.2d 1, 5 [271 P.2d 34],
Secondary Sources
2 Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 11.140–11.144
555


1. Was [name of defendant] an owner of the vehicle at the time of
the injury to [name of plaintiff]?
1. Yes No
2. Did [name of defendant], by words or conduct, give permission to
[name of driver] to use the vehicle?
2. Yes No
Signed:
Presiding Juror
Dated:

Directions for Use
This is for use in conjunction with the general negligence verdict forms involving
motor vehicles. The two 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.
556

VF-701. Motor Vehicle Owner Liability—Permissive Use of

Vehicle—Affirmative Defense—Use Beyond Scope of Permission

1. Was [name of defendant] an owner of the vehicle at the time of
the injury to [name of plaintiff]?
1. Yes No
2. Did [name of defendant], by words or conduct, give permission to
[name of driver] to use the vehicle?
2. Yes No
3. Was [name of defendant]’s permission to use the vehicle given for
a limited time, place, or purpose?
3. Yes No
4. Did [name of driver]’s use of the vehicle substantially violate the
limitations as to time, place, or purpose?
4. Yes No
Signed:
Presiding Juror
Dated:

Directions for Use
This is for use in conjunction with the general negligence verdict forms involving
557

VF-701 MOTOR VEHICLES AND HIGHWAY SAFETY
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.
558

VF-702. Adult’s Liability for Minor’s Permissive Use of Motor

Vehicle

1. Was [name of minor] negligent in operating the vehicle?
1. Yes No
2. Was [name of minor]’s negligence a substantial factor in causing
2. Yes No
3. Did [name of defendant], by words or conduct, give [name of
minor] permission to use the vehicle?
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
559


[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
560

VF-703. Liability of Cosigner of Minor’s Application for Driver’s

License

1. Was [name of minor] negligent in operating the vehicle?
1. Yes No
2. Was [name of minor]’s negligence a substantial factor in causing
2. Yes No
3. Did [name of defendant] sign [name of minor]’s application for a
driver’s license?
3. Yes No
4. At the time of the collision, had [name of minor]’s driver’s license
been cancelled or revoked by the Department of Motor Vehicles?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
561


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 723, Liability of Cosigner of Minor’s
Application for Driver’s License.
562

MOTOR VEHICLES AND HIGHWAY SAFETY VF-703
563


1. Was [name of driver] negligent in operating the vehicle?
1. Yes No
2. Did [name of defendant] own the vehicle operated by [name of
driver] or did [name of defendant] have possession of the vehicle
operated by [name of driver] with the owner’s permission?
2. Yes No
3. Did [name of defendant] know, or should [he/she] have known,
that [name of driver] was incompetent or unfit to drive?
3. Yes No
4. Did [name of defendant] permit [name of driver] to drive the
vehicle?
4. Yes No
5. Was [name of driver]’s incompetence or unfitness to drive a
5. Yes No
564

MOTOR VEHICLES AND HIGHWAY SAFETY VF-704
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
565


566

RAILROAD CROSSINGS

567

Railroad companies must use reasonable care to avoid causing injury to

anyone crossing railroad tracks from a street or roadway. [Railroad
companies must use reasonable care in the design and maintenance of
warning signals and protective devices at railroad crossings.] [Train
operators must use reasonable care in operating their trains at railroad
crossings.] The failure to use reasonable care is negligence.
New September 2003

Directions for Use
The instructions in this series should be used together with one or more of the
instructions that follow, which give specific guidance on the nature and scope of a
railroad’s duties of care regarding grade crossings.
Consideration should be given as to whether any of the asserted theories of liability
are preempted by federal law (see CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658 [113 S.Ct. 1732, 123 L.Ed.2d 387] and Norfolk Southern Railway Co.
v. Shanklin (2000) 529 U.S. 344 [120 S.Ct. 1467, 146 L.Ed.2d 374]). If so, it may
be necessary to modify this instruction to avoid indirect reference to these theories.
• The California Supreme Court has stated the duty of railroads at crossings as
follows: “Generally speaking, the duty to exercise reasonable or ordinary care is
imposed upon the operator of a railroad at public highway crossings with
respect to persons traveling upon the highway and over the crossing, both as to
the manner of operating the train and the maintenance of the crossing. The
standard of care is that of the man of ordinary prudence under the
circumstances.” (Peri v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111,
120 [137 P.2d 441], internal citations omitted.)
• “Ordinarily the issue of the negligence in crossing cases, whether the railroad
was negligent in the design and maintenance of the crossing or in the operation
of the train, is one of fact as in other negligence cases.” (Romo v. Southern
Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139 Cal.Rptr. 787],
• The amount of care that is “reasonable” varies in proportion to the
circumstances constituting the probable danger. (Romo, supra, 71 Cal.App.3d at
p. 916.)
• “Where the conditions existing at the crossing create an unusual hazard or
danger, the operator of the railroad must exercise care commensurate with those
circumstances, and whether he has done so is a question of fact.” (Peri, supra,
22 Cal.2d at p. 123.)
568

RAILROAD CROSSINGS CACI No. 800
• “We hold that . . . federal regulations adopted by the Secretary of

Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX
Transportation, Inc., supra, 507 U.S. at p. 676.)
• “When the [Federal Highway Administration] approves a crossing improvement
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, § 12.2
2 Levy et al., California Torts, Ch. 23, Carriers, §§ 23.25–23.26 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.61
(Matthew Bender)
569

An [ordinance/regulation] of the [insert name of entity] provides as

follows: [insert text of ordinance or regulation]
Railroad companies must obey safety regulations. Regulations state only
the minimum measure of care required of a railroad company.
Particular conditions and situations may require a company to use more
care than the regulations require.
New September 2003

Directions for Use
Regulations adopted by the Secretary of Transportation pursuant to the Federal
Railroad Safety Act preempt state common-law negligence claims based on general
allegations of “excessive speed.” (CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658, 675 [113 S.Ct. 1732, 123 L.Ed.2d 387].) Also, claims alleging
inadequate warning devices are preempted where federally funded grade crossing
improvements have been installed. (Norfolk Southern Railway Co. v. Shanklin
(2000) 529 U.S. 344, 359 [120 S.Ct. 1467, 146 L.Ed.2d 374].) This instruction is
not intended to apply to situations in which a railroad’s compliance with these
federal safety regulations would preempt state law negligence claims.
• “ ‘ “It is well settled that such statutory regulations constitute only the minimum
measure of care required by the railroad, and it is usually a matter for the jury
to determine whether something more than the minimum was required under the
evidence in the case.” ’ A railroad company is not necessarily free from
negligence, even though it may have literally complied with safety statutes or
rules. The circumstances may require it to do more.” (Hogue v. Southern Pacific
Co. (1969) 1 Cal.3d 253, 258 [81 Cal.Rptr. 765, 460 P.2d 965], internal
citations omitted; Peri v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111,
126 [137 P.2d 441].)
• “If the peculiar characteristics of a crossing call for the installation of automatic
protection—or the upgrading of existing automatic protection—the railroad may
be guilty of negligence in failing to provide such protection.” (Romo v.
Southern Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139
• “When the [Federal Highway Administration] approves a crossing improvement
570

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
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
(Matthew Bender)
571

[A railroad company] [A train operator] must use reasonable care to

control the train’s speed as it approaches and passes through a railroad
crossing. The [railroad company] [train operator] must control train
speed with due regard for the safety of human life and property, taking
into consideration the location and conditions of the crossing.
New September 2003

Directions for Use
This instruction may not be appropriate in certain cases. Regulations adopted by
the Secretary of Transportation pursuant to the Federal Railroad Safety Act preempt
state common-law negligence claims based on general allegations of “excessive
speed.” (CSX Transportation, Inc. v. Easterwood (1993) 507 U.S. 658, 675 [113
S.Ct. 1732, 123 L.Ed.2d 387].) However, a negligence action based on a duty to
slow or stop a train to avoid a specific, individual hazard is not preempted. (CSX
Transportation, Inc., supra, 507 U.S. at 676, fn. 15.)
• “While it is true that no rate of speed is negligence per se in the absence of a
statute or ordinance, it does not follow that a railroad company will be
permitted to run its trains under all conditions at any rate of speed it may
choose. It must regulate its speed with proper regard for the safety of human
life and property, especially when running through towns and cities. . . . [T]he
question whether or not a rate of speed is excessive is one of fact for the jury.”
(Young v. Pacific Electric Ry. Co. (1929) 208 Cal. 568, 572–573 [283 P. 61].)
• “The ‘reasonably prudent person’ test applies also to the speed at which a train
approaches and passes a crossing, and material in the application of that test is
‘that no unnecessary risk shall be cast upon the public’ considering the ‘location
and surroundings’ of the crossing involved. Specially mentioned is a ‘crossing
in a thickly populated community and extensively used.’ ” (Rice v. Southern
Pacific Co. (1967) 247 Cal.App.2d 701, 707 [55 Cal.Rptr. 840], internal
citations omitted.)
• “[I]t is for the jury to say whether the speed of a train was too high for a
particular intersection.” (Romo v. Southern Pacific Transportation Co. (1977) 71
Cal.App.3d 909, 916 [139 Cal.Rptr. 787].)
• Even when crossing protection is provided and the company speed limit is not
572

exceeded, speeding is still a question of fact. (Herrera v. Southern Pacific Co.

(1957) 155 Cal.App.2d 781, 787 [318 P.2d 784].)
Secondary Sources
(Matthew Bender)
573

A train operator must keep a reasonable lookout for vehicles and

people. If an operator discovers, or should have discovered, that a
vehicle or a person is on or near the track, the operator must use
reasonable care to avoid causing harm.
New September 2003

Directions for Use
For an instruction regarding the right to expect that others will use reasonable care,
see CACI No. 411, Reliance on Good Conduct of Others.
Regulations adopted by the Secretary of Transportation pursuant to the Federal
Railroad Safety Act preempt state common-law negligence claims based on general
allegations of “excessive speed.” (CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658, 675 [113 S.Ct. 1732, 123 L.Ed.2d 387].) However, a negligence
action based on a duty to slow or stop a train to avoid a specific, individual hazard
is not preempted. (CSX Transportation, Inc., supra, 507 U.S. at p. 675, fn. 15.)
• “Obviously, the railroad may not be required to guarantee the safety of those
crossing its tracks. It is not required to anticipate that at every crossing, an
automobile will be driven in the path of the train. It is only required to exercise
ordinary care to discover such automobiles and to thereafter exercise care to
avoid a collision.” (Essick v. Union Pacific Ry. Co. (1960) 182 Cal.App.2d 456,
463 [6 Cal.Rptr. 208].)
• The following instruction was approved in Essick, supra, 182 Cal.App.2d at p.
461: “ ‘The duty of [defendant] toward persons using the private crossing we
are here concerned with was to exercise ordinary care to discover any such
persons on or near the crossing and to exercise ordinary care to avoid injuring
such persons after their presence on or near the track was discovered.’ ”
• “The train crew cannot assume that a highway crossing in the middle of a city
will be clear and they must keep a reasonable lookout for the presence of
intersecting traffic. This implies as a corollary the further obligation to have the
train under such control as may be reasonably necessary to deal with situations
which an ordinarily prudent operator would anticipate.” (Herrera v. Southern
Pacific Co. (1957) 155 Cal.App.2d 781, 785 [318 P.2d 784], internal citations
omitted.)
• “The installation and maintenance of automatic signals does not relieve a
railroad company of this duty of keeping a reasonable lookout for other traffic.”
(Herrera, supra, 155 Cal.App.2d at p. 786, internal citations omitted.)
574


Transportation, Inc., supra, 507 U.S. at p. 676.) However, a negligence action
based on a duty to slow or stop a train to avoid a specific, individual hazard is
not preempted. (Ibid, fn. 15.)
• In a thoughtful opinion, the Oklahoma Supreme Court has held the following:
“We hold that a specific, individual hazard is a person, vehicle, obstruction,
object, or event which is not a fixed condition or feature of the crossing and
which is not capable of being taken into account by the Secretary of
Transportation in the promulgation of uniform, national speed regulations. In
short, a specific, individual hazard refers to a unique occurrence which could
lead to a specific and imminent collision and not to allegedly dangerous
conditions at a particular crossing.” (Myers v. Missouri Pacific Railroad Co.
(Okla. 2002) 52 P.3d 1014, 1027, footnotes omitted.)
Secondary Sources
(Matthew Bender)
575

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.
New September 2003

Directions for Use
This instruction may not be appropriate in certain cases. Claims alleging inadequate
warning devices are preempted where federally funded grade crossing
improvements have been installed. (Norfolk Southern Railway Co. v. Shanklin
(2000) 529 U.S. 344, 353 [120 S.Ct. 1467, 146 L.Ed.2d 374].)
• “[O]nce the [Federal Highway Administration] has funded the crossing
improvement and the warning devices are actually installed and operating, the
regulation ‘displace[s] state and private decision-making authority by
establishing a federal-law requirement that certain devices be installed or federal
approval obtained.’ ” (Norfolk Southern Railway Co., supra, 529 U.S. at p. 354,
• “It should be noted that nothing prevents a State from revisiting the adequacy
of devices installed using federal funds. States are free to install more protective
devices at such crossings with their own funds or with additional funding from
the FHWA. What States cannot do—once they have installed federally funded
devices at a particular crossing—is hold the railroad responsible for the
adequacy of those devices.” (Norfolk Southern Railway Co., supra, 529 U.S. at
p. 358.)
• “If the peculiar characteristics of a crossing call for the installation of automatic
protection—or the upgrading of existing automatic protection—the railroad may
be guilty of negligence in failing to provide such protection.” (Romo v.
Southern Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139
Cal.Rptr. 787], internal citation omitted.)
• “Whether a railroad is negligent in the design and maintenance of the crossing
is a question of fact for the jury.” (Wilkinson v. Southern Pacific Co. (1964) 224
Cal.App.2d 478, 487–488 [36 Cal.Rptr. 689], internal citation omitted.)
• “The defendant, having undertaken to warn travelers of the approach of its
trains by the use of a wigwag, was under a duty to use reasonable care in the
construction and maintenance of the signal system lest the appearance of safety
576

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
(Matthew Bender)
577

A driver approaching a railroad crossing is required to use reasonable

care to discover whether a train is approaching. The amount of care
that is reasonable will depend on the circumstances. A railroad track is
itself a warning of danger. If the driver’s view of approaching trains is
blocked, he or she must use greater care than when the view is clear.
If a bell or signal has been placed to warn drivers of danger, a driver is
not required to use as much care as when there are no such warnings.
However, even if the warning devices are not activated, a driver must
use reasonable care in looking and listening for approaching trains.

Directions for Use
For an instruction regarding the prima facie speed limits set by Vehicle Code
section 22352, see CACI No. 707, Speed Limit. For an instruction on the duty of
care of a passenger, see CACI No. 711, The Passenger’s Duty of Care for Own
Safety. For instructions on negligence per se, see CACI Nos. 418 to 421.
• Vehicle Proceeding at Railroad Crossing. Vehicle Code section 22451.
• Speed Limit at Railroad Crossing. Vehicle Code section 22352(a)(1).
• “[T]hat the driver’s view is somewhat obstructed does not make him
contributorily negligent as a matter of law; whether his failure to stop, the place
from which he looks and the character and extent of the obstruction to his view
are such that a reasonably prudent person would not have so conducted himself
are questions for the jury in determining whether he was guilty of contributory
negligence.” (Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 139 [96
Cal.Rptr. 356].)
• “A railroad track is itself a warning of danger and a driver intending to cross
must avail himself of every opportunity to look and listen; if there are
obstructions to the view, he is required to take greater care.” (Wilkinson v.
Southern Pacific Co. (1964) 224 Cal.App.2d 478, 488 [36 Cal.Rptr. 689],
• “A railroad company will not be permitted to encourage persons to relax their
vigil concerning the dangers that lurk in railroad crossings by assuring them,
through the erection of safety devices, that the danger has been removed or
minimized, and, at the same time, to hold them to the same degree of care as
would be required if those devices had not been provided.” (Will v. Southern
Pacific Co. (1941) 18 Cal.2d 468, 474 [116 P.2d 44], internal citation omitted.)
• “[A] driver may not cross tracks in reliance upon the safety appliances installed
578

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,
• “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)
579


COMMON CARRIERS

581


defendant]’s negligence while [he/she] was a passenger on [name of
defendant]’s [insert type of carrier—e.g., train].
[In this case, [name of defendant] was a common carrier at the time of
the incident. A common carrier provides transportation to the general
public.]
[or]
[[Name of plaintiff] also claims that [name of defendant] was a common
carrier at the time of the incident.]
New September 2003

Directions for Use
Give either one of the bracketed sentences, depending on whether the defendant’s
status as a common carrier is contested or not.
This instruction is intended as an introductory instruction to frame the issues. CACI
No. 400, Negligence—Essential Factual Elements, would still be given to set forth
the elements that plaintiff has to prove in order to recover (i.e., negligence, harm,
and causation).
• “Common Carrier” Defined. Civil Code section 2168.
• “Carriage” Defined. Civil Code section 2085.
• “[A] common carrier within the meaning of Civil Code section 2168 is any
entity which holds itself out to the public generally and indifferently to transport
goods or persons from place to place for profit.” (Squaw Valley Ski Corporation
v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal.Rptr.2d 897].)
Secondary Sources
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
582

To prove that [name of defendant] was a common carrier, [name of

plaintiff] must prove that it was in the business of transporting [the
property of] the general public.
In deciding this issue, you may consider whether any of the following
factors apply. These factors suggest that a carrier is a common carrier:
(a) The carrier maintains a regular place of business for the purpose
of transporting passengers [or property].
(b) The carrier advertises its services to the general public.
(c) The carrier charges standard fees for its services.
(d) [Insert other applicable factor(s).]
A carrier can be a common carrier even if it does not have a regular
schedule of departures, a fixed route, or a transportation license.
If you find that [name of defendant] was not a common carrier, then
[name of defendant] did not have the duty of a common carrier, only a
duty of ordinary care.
New September 2003

Directions for Use
The court should give the ordinary negligence instructions in conjunction with this
one. Ordinary negligence is the standard applicable to private carriers.
• “Common Carrier” Defined. Civil Code section 2168.
• Contract of Carriage. Civil Code section 2085.
• “[A] common carrier within the meaning of Civil Code section 2168 is any
entity which holds itself out to the public generally and indifferently to transport
goods or persons from place to place for profit.” (Squaw Valley Ski Corp. v.
Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal.Rptr.2d 897], internal
citations omitted.)
• “Whether a party is a common carrier for reward may be decided as a matter of
law when the material facts are not in dispute. When the material facts are
disputed, it is a question of fact for the jury.” (Huang v. The Bicycle Casino,
Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal.Rptr.3d 591 [citing this
instruction].)
• “Factors bearing on a party’s common carrier status include (1) whether the
party maintained an established place of business for the purpose of transporting
583

CACI No. 901 COMMON CARRIERS
passengers; (2) whether the party engaged in transportation as a regular business

and not as a casual or occasional undertaking; (3) whether the party advertised
its transportation services to the general public; and (4) whether the party
charged standard rates for its service. The party need not have a regular
schedule or a fixed route to be a common carrier, nor need the party have a
transportation license. [¶ ] Not all these factors need be present for the party to
be a common carrier subject to the heightened duty of care.” (Huang, supra, 4
Cal.App.5th at p. 339, internal citations omitted; see also Gradus v. Hanson
Aviation, Inc. (1984) 158 Cal.App.3d 1038, 1047–1048 [205 Cal.Rptr. 211]
[approving jury instruction].)
• “A private carrier . . . is bound only to accept carriage pursuant to special
agreement.” (Webster v. Ebright (1992) 3 Cal.App.4th 784, 787 [4 Cal.Rptr.2d
714].) Private carriers “ ‘make no public profession that they will carry for all
who apply, but . . . occasionally or upon the particular occasion undertake for
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.)
• “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.)
• “[T]he ‘reward’ contemplated by the statutory scheme need not be a fee charged
for the transportation service. The reward may be the profit generated indirectly
by easing customers’ way through the carriers’ premises.” (Huang, supra, 4
Cal.App.5th at p. 339, internal citation omitted.)
• “ ‘[T]he “public” does not mean everyone all of the time; naturally, passengers
are restricted by the type of transportation the carrier affords. [Citations.] “One
may be a common carrier though the nature of the service rendered is
sufficiently specialized as to be of possible use to only a fraction of the total
population.” . . . 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.’ ” (Huang, supra, 4 Cal.App.5th at p. 339, internal citation
omitted.)
584

COMMON CARRIERS CACI No. 901
• “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
330].)
Secondary Sources
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)
585

Common carriers must carry passengers [or property] safely. Common

carriers must use the highest care and the vigilance of a very cautious
person. They must do all that human care, vigilance, and foresight
reasonably can do under the circumstances to avoid harm to passengers
[or property].
While a common carrier does not guarantee the safety of its passengers
[or property that it transports], it must use reasonable skill to provide
everything necessary for safe transportation, in view of the
transportation used and the practical operation of the business.
New September 2003

• Duty of Common Carrier. Civil Code section 2100.
• “Common carriers bind themselves to carry safely those whom they take into
their vehicles, and owe both a duty of utmost care and the vigilance of a very
cautious person towards their passengers. Such carriers are responsible for any,
even the slightest, negligence and are required to do all that human care,
vigilance, and foresight reasonably can do under all the circumstances.” (Acosta
v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 19, 27 [84 Cal.Rptr.
• “The Civil Code treats common carriers differently depending on whether they
act gratuitously or for reward. ‘A carrier of persons without reward must use
ordinary care and diligence for their safe carriage.’ But ‘[c]arriers of persons for
reward have long been subject to a heightened duty of care.’ Such carriers
‘must use the utmost care and diligence for [passengers’] safe carriage, must
provide everything necessary for that purpose, and must exercise to that end a
reasonable degree of skill.’ While these carriers are not insurers of their
passengers’ safety, ‘[t]his standard of care requires common carriers ‘to do all
that human care, vigilance, and foresight reasonably can do under the
circumstances.’ ” (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329,
• “This elevated standard of care for common carriers has its origin in English
common law. It is based on a recognition that the privilege of serving the
public as a common carrier necessarily entails great responsibility, requiring
common carriers to exercise a high duty of care towards their customers.”
(Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3
• Common carriers are not insurers of their passengers’ safety. “Rather, the degree
of care and diligence which they must exercise is only such as can reasonably
586

be exercised consistent with the character and mode of conveyance adopted and
the practical operation of the business of the carrier.” (Lopez v. Southern Cal.
Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [221 Cal.Rptr. 840, 710 P.2d
Secondary Sources
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.32 et seq.
(Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers, § 33.22 (Matthew Bender)
22 California Legal Forms, Ch. 54, Shipment of Property, § 54.32 (Matthew
Bender)
587

Common carriers must use the highest care in constructing, servicing,

inspecting, and maintaining their vehicles and equipment for
transporting passengers [or property].
A common carrier is responsible for a defect in its vehicles and
equipment used for transporting passengers [or property] if the
common carrier:
(a) Created the defect; or
(b) Knew of the defect; or
(c) Would have known of the defect if it had used the highest care.
Common carriers must keep up with modern improvements in
transportation. While they are not required to seek out and use every
new invention, they must adopt commonly accepted safety designs and
devices in the vehicles and equipment they use for transporting
passengers [or property].
New September 2003

Directions for Use
To correct the impression that a carrier is absolutely liable for unsafe equipment,
this instruction should be given together with instructions stating that a common
carrier does not guarantee the safety of its passengers and that the level of care is
the highest that reasonably can be exercised consistent with the mode of
transportation used and the practical operation of its business as a carrier (see
CACI No. 902, Duty of Common Carrier). (Gradus v. Hanson Aviation, Inc.
(1984) 158 Cal.App.3d 1038, 1049–1050 [205 Cal.Rptr. 211].)
• Duty of Common Carrier. Civil Code section 2101.
• “The duty of care imposed on a common carrier of passengers includes the duty
to furnish safe facilities for their passage.” (Cooper v. National Railroad
Passenger Corporation (1975) 45 Cal.App.3d 389, 395 [119 Cal.Rptr. 541],
internal citations omitted, disapproved on other grounds in Ewing v. Cloverleaf
Bowl (1978) 20 Cal.3d 389, 401 [143 Cal.Rptr. 13, 572 P.2d 1155].)
• Failure to give an instruction on Civil Code section 2101 may not be error
where an instruction on the “utmost care” standard is given. (Powell v. Dell-Air
Aviation, Inc. (1968) 268 Cal.App.2d 451, 457–458 [74 Cal.Rptr. 3].)
• The Supreme Court found error where an instruction omitted the duty to
inspect: “An owner is bound to use the utmost care and diligence in the
588

maintenance of elevators. In the fulfillment of this obligation something more

than regular and frequent inspections is required. Perfunctory inspections,
although regularly and frequently made, would not meet the obligation appellant
owed to respondents. In order to fulfill the duty imposed upon it by law
appellant was required to use due care in servicing, inspecting and maintaining
the elevator and all the appliances appurtenant thereto. The instruction
erroneously failed to include this requirement.” (Brown v. George Pepperdine
Foundation (1943) 23 Cal.2d 256, 261 [143 P.2d 929], internal citations
omitted.)
• “The [equipment] must, therefore, under the standard of utmost care required of
a carrier, be constructed, maintained and operated with the purpose and design
to prevent injury . . . .” (Vandagriff v. J.C. Penney (1964) 228 Cal.App.2d 579,
582 [39 Cal.Rptr. 671].)
• Notice of defect is required where the carrier did not create dangerous
condition: “In our view, the high degree of care required of a common carrier
might impose a greater duty to inspect and thus make notice or knowledge
more easily established, but the concept of the carrier’s legal responsibility does
not exclude the factor of notice or knowledge. The weight of authority supports
the proposition that, in cases such as the instant one, actual or constructive
notice is a prerequisite to the carrier’s liability.” (Gray v. City and County of
San Francisco (1962) 202 Cal.App.2d 319, 330–331 [20 Cal.Rptr. 894].)
• Common carriers “must keep pace with science and art and modern
improvement in their application to the carriage of passengers.” (Greyhound
Lines, Inc. v. Superior Court (1970) 3 Cal.App.3d 356, 359 [83 Cal.Rptr. 343],
citing Treadwell v. Whittier (1889) 80 Cal. 574, 592, 600 [22 P. 266].)
• In Treadwell, the court approved of a jury instruction stating that while elevator
operators “were not required to seek and apply every new invention, they must
adopt such as are found by experience to combine the greater safety with
practical use.” The court said the instruction “is but a fair deduction from the
rule that the defendants must use the utmost care and diligence to carry safely
those who ride in their [conveyance] . . . .” (Treadwell, supra, 80 Cal. at pp.
599–600.) The court held that common carriers “are bound for defects in the
vehicles which they furnish, which might have been discovered by the most
careful examination . . . .” (Id. at p. 595.)
Secondary Sources
2 Levy et al., California Torts, Ch 23, Carriers, § 23.03[5] (Matthew Bender)
589

If a common carrier voluntarily accepts an ill or a disabled person as a

passenger and is aware of that person’s condition, it must use as much
additional care as is reasonably necessary to ensure the passenger’s
safety.
New September 2003

• If a carrier voluntarily accepts an ill or disabled person as a passenger and is
aware of the passenger’s condition, it must exercise as much care as is
reasonably necessary to ensure the safety of the passenger, in view of his
mental and physical condition. (McBride v. Atchison, Topeka & Santa Fe Ry.
Co. (1955) 44 Cal.2d 113, 119–120 [279 P.2d 966].)
Secondary Sources
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
590

If a common carrier voluntarily accepts a child as a passenger, it must

use as much additional care as is reasonably necessary to ensure the
child’s safety.
New September 2003

• A common carrier owes a greater duty of care to minor passengers: “It is settled
law that a carrier owes a greater quantum of care to a child of tender years
accepted by it as a passenger than it would to an adult.” (Brizzolari v. Market
Street Ry. Co. (1935) 7 Cal.App.2d 246, 248 [46 P.2d 783].)
• “In this instruction, the court admonished the jury that a carrier of passengers
owes to children who are passengers on its cars a greater degree of care than it
owes to adults. Such an instruction is proper.” (Mudrick v. Market Street Ry.
Co. (1938) 11 Cal.2d 724, 734 [81 P.2d 950].)
Secondary Sources
591

While a common carrier must use the highest care for its passengers’
safety, passengers need only use reasonable care for their own safety.
New September 2003; Revised May 2017

Directions for Use
This instruction is intended to clarify that passengers and common carriers have
different standards of care.
• “As applied to the standard of care imposed upon the common carrier as
compared to the standard imposed on the passenger it is both erroneous and
misleading to tell the jury, as was done here, that there are no degrees of
negligence or contributory negligence in California, since the common carrier is
in fact held to a higher degree of care than is the passenger. To follow this
erroneous and misleading statement with the instruction, in the identical
language used in another instruction concerning the defendant carrier’s duty of
care, that ‘any negligence, however slight,’ of the decedent proximately
contributing to her death would bar a recovery, was to inform the jury that in
determining negligence and contributory negligence they must apply the same
standard of care.” (Wilson v. City and County of San Francisco (1959) 174
Cal.App.2d 273, 276 [344 P.2d 828].)
• ‘Whether unidentified passengers might be primarily or partially responsible for
[plaintiff]’s injury, or whether she bears some responsibility for it herself, are
questions for the trier of fact in considering causation.” (Huang v. The Bicycle
Casino, Inc. (2016) 4 Cal.App.5th 329, 346 [208 Cal.Rptr.3d 591].)
Secondary Sources
592

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
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].
New September 2003

• The heightened degree of care for common carriers is owed only while
“passengers are in transitu, and until they have safely departed the carrier’s
vehicle.” (Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 86 [110
Cal.Rptr. 416].)
• The relationship of carrier and passenger is “created when one offers to become
a passenger, and is accepted as a passenger after he has placed himself under
the control of the carrier.” (Grier v. Ferrant (1944) 62 Cal.App.2d 306, 310
[144 P.2d 631].)
• It is not necessary that the passenger have entered the vehicle for the
relationship to exist: “ ‘The relation is in force when one, intending in good
faith to become a passenger, goes to the place designated as the site of
departure at the appropriate time and the carrier takes some action indicating
acceptance of the passenger as a traveler.’ ” (Orr v. Pacific Southwest Airlines
(1989) 208 Cal.App.3d 1467, 1473 [257 Cal.Rptr. 18], internal citations
omitted.)
• The carrier-passenger relationship terminates once the passenger has
593

disembarked and entered a place of relative safety. (McGettigan v. Bay Area

Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1018 [67 Cal.Rptr.2d 516].)
• Carriers must exercise utmost care “ ‘[u]ntil the passenger reaches a place
outside the sphere of any activity of the carrier which might reasonably
constitute a mobile or animated hazard to the passenger.’ ” (Brandelius v. City
and County of San Francisco (1957) 47 Cal.2d 729, 735 [306 P.2d 432],
Secondary Sources
594

[Name of plaintiff] claims that [name of defendant] was negligent in failing

to prevent an attack by another. To establish this claim, [name of
1. That [name of defendant] knew or, by using the highest care,
should have known that a passenger was reasonably likely to
attack another passenger; and
2. That by using the highest care, [name of defendant] could have
prevented or reduced the harm from the attack.
New September 2003

Directions for Use
This instruction must be used in conjunction with the instructions in the negligence
series.
• Restatement Second of Torts, section 315 states:
As a general rule, one owes no duty to control the conduct of another, nor to
warn those endangered by such conduct. Such a duty may arise, however, if
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s
conduct, or
(b) a special relation exists between the actor and the other which
gives the other a right of protection.
• The Supreme Court has held that “[t]he relationship between a common carrier
and its passengers is . . . a special relationship.” (Lopez v. Southern Cal. Rapid
Transit Dist. (1985) 40 Cal.3d 780, 789 [221 Cal.Rptr. 840, 710 P.2d 907].)
• The common carrier standard of “utmost care” applies to the duty of a carrier to
protect a passenger from assaults by fellow passengers. (Terrell v. Key System
(1945) 69 Cal.App.2d 682, 686 [159 P.2d 704].) However, the duty can only
arise if “in the exercise of the required degree of care the carrier has or should
have knowledge of conditions 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.” (Ibid., internal citations omitted.)
• The Lopez court stated the standard of care as follows: “[C]arriers are not
insurers of their passenger’s safety and will not automatically be liable,
regardless of the circumstances, for any injury suffered by a passenger at the
hands of a fellow passenger. Rather, a carrier is liable for injuries resulting from
an assault by one passenger upon another only where, in the exercise of the
595

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
596

PREMISES LIABILITY

1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal
Conduct of Others
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe
Conditions—Retained Control
VF-1001. Premises Liability—Affirmative Defense—Recreation
Immunity—Exceptions
597

[Name of plaintiff] claims that [he/she] was harmed because of the way
[name of defendant] managed [his/her/its] property. To establish this
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;

Directions for Use
For cases involving public entity defendants, see instructions on dangerous
conditions of public property (CACI No. 1100 et seq.).
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “The elements of a negligence claim and a premises liability claim are the
same: a legal duty of care, breach of that duty, and proximate cause resulting in
injury. Premises liability ‘ “is grounded in the possession of the premises and
the attendant right to control and manage the premises” ’; accordingly, ‘ “mere
possession with its attendant right to control conditions on the premises is a
sufficient basis for the imposition of an affirmative duty to act.” ’ But the duty
arising from possession and control of property is adherence to the same
standard of care that applies in negligence cases. In determining whether a
premises owner owes a duty to persons on its property, we apply the Rowland
[Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]]
factors. Indeed, Rowland itself involved premises liability.’ ” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1159 [210 Cal.Rptr.3d 283, 384 P.3d
• “The owner of premises is under a duty to exercise ordinary care in the
management of such premises in order to avoid exposing persons to an
unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks
v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [264
Cal.Rptr. 756].)
• “ ‘[P]roperty owners are liable for injuries on land they own, possess, or
control.’ But . . . the phrase ‘own, possess, or control’ is stated in the
598

PREMISES LIABILITY CACI No. 1000
alternative. A defendant need not own, possess and control property in order to
be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1162 [60 Cal.Rptr.2d 448, 929 P.2d 1239], original italics, internal
citations omitted.)
• “ ‘ “[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.’ ” (Kesner, supra, 5 Cal.5th at p. 1159, internal citations omitted.)
Secondary Sources
(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)
599

A person who [owns/leases/occupies/controls] property is negligent if he

or she fails to use reasonable care to keep the property in a reasonably
safe condition. A person who [owns/leases/occupies/controls] property
must use reasonable care to discover any unsafe conditions and to
repair, replace, or give adequate warning of anything that could be
reasonably expected to harm others.
In deciding whether [name of defendant] used reasonable care, you may
consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in
the same manner as [name of plaintiff] did;
(c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether [name of defendant] knew or should have known of the
condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant]’s control over the condition
that created the risk of harm; [and]
(h) [Other relevant factor(s).]

Directions for Use
Not all of these factors will apply to every case. Select those that are appropriate to
the facts of the case.
Under the doctrine of nondelegable duty, a property owner cannot escape liability
for failure to maintain property in a safe condition by delegating the duty to an
independent contractor. (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d
256, 260 [143 P.2d 929].) For an instruction for use with regard to a landowner’s
liability for the acts of an independent contractor, see CACI No. 3713,
Nondelegable Duty.
• “Broadly speaking, premises liability alleges a defendant property owner
allowed a dangerous condition on its property or failed to take reasonable steps
to secure its property against criminal acts by third parties.” (Delgado v.
American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [85
600

Cal.Rptr.2d 838], internal citation omitted.)

• “It is now well established that California law requires landowners to maintain
land in their possession and control in a reasonably safe condition.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137,
• “[T]he issue concerning a landlord’s duty is not the existence of the duty, but
rather the scope of the duty under the particular facts of the case. Reference to
the scope of the landlord’s duty ‘is intended to describe the specific steps a
landlord must take in a given specific circumstance to maintain the property’s
safety to protect a tenant from a specific class of risk.’ ” (Lawrence v. La Jolla
Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 23 [179 Cal.Rptr.3d
758], original italics, internal citation omitted.)
• “The proper test to be applied to the liability of the possessor of land . . . is
whether in the management of his property he has acted as a reasonable man in
view of the probability of injury to others . . . .” (Rowland v. Christian (1968)
69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)
• “It is well settled that a property owner is not liable for damages caused by a
minor, trivial, or insignificant defect in his property. This principle is sometimes
referred to as the ‘trivial defect defense,’ although it is not an affirmative
defense but rather an aspect of duty that a plaintiff must plead and prove. . . .
Moreover, what constitutes a minor defect may be a question of law.” (Cadam
v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388–389
• In this state, duties are no longer imposed on an occupier of land solely on the
basis of rigid classifications of trespasser, licensee, and invitee. The purpose of
plaintiff’s presence on the land is not determinative. We have recognized,
however, that this purpose may have some bearing upon the liability issue. This
purpose therefore must be considered along with other factors weighing for and
against the imposition of a duty on the landowner.” (Ann M., supra, 6 Cal.4th at
• “As stated in Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20,
25 [77 Cal.Rptr. 914], ‘[t]he term “invitee” has not been abandoned, nor have
“trespasser” and “licensee.” In the minds of the jury, whether a possessor of the
premises has acted as a reasonable man toward a plaintiff, in view of the
probability of injury to him, will tend to involve the circumstances under which
he came upon defendant’s land; and the probability of exposure of plaintiff and
others of his class to the risk of injury; as well as whether the condition itself
presented an unreasonable risk of harm, in view of the foreseeable use of the
property.’ Thus, the court concluded, and we agree, Rowland ‘does not
generally abrogate the decisions declaring the substantive duties of the
possessor of land to invitees nor those establishing the correlative rights and
duties of invitees.’ (Id., at p. 27.)” (Williams v. Carl Karcher Enterprises, Inc.
(1986) 182 Cal.App.3d 479, 486–487 [227 Cal.Rptr. 465], overruled on other
601

CACI No. 1001 PREMISES LIABILITY
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
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)
(Matthew Bender)
Liabilities, §§ 170.01, 170.03, 170.20 (Matthew Bender)
602

29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.10, 334.50 (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
603

[Name of plaintiff] claims that [name of defendant] controlled the

property involved in [name of plaintiff]’s harm, even though [name of
defendant] did not own or lease it. A person controls property that he or
she does not own or lease when he or she uses the property as if it were
his or her own. A person is responsible for maintaining, in reasonably
safe condition, all areas he or she controls.
New September 2003

Directions for Use
Use this instruction only for property that is not actually owned or leased by the
defendant.
• “[I]t is clear from [Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1167 [60
Cal.Rptr.2d 448, 929 P.2d 1239]] that simple maintenance of an adjoining strip
of land owned by another does not constitute an exercise of control over that
property. Although evidence of maintenance is considered ‘relevant on the issue
of control,’ the court limited its holding by stating that ‘the simple act of
mowing a lawn on adjacent property (or otherwise performing minimal,
neighborly maintenance of property owned by another) generally will [not],
standing alone, constitute an exercise of control over [the] property . . . .’ ”
(Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198–199 [69 Cal.Rptr.2d
69].)
• “In Alcaraz . . . , our Supreme Court held that a landowner who exercises
control over an adjoining strip of land has a duty to protect or warn others
entering the adjacent land of a known hazard there. This duty arises even if the
person does not own or exercise control over the hazard and even if the person
does not own the abutting property on which the hazard is located. . . . [¶] The
Alcaraz court concluded that such evidence was ‘sufficient to raise a triable
issue of fact as to whether defendants exercised control over the strip of land
containing the meter box and thus owed a duty of care to protect or warn
plaintiff of the allegedly dangerous condition of the property.’ ” (Contreras,
supra, 59 Cal.App.4th at pp. 197–198, footnote and internal citations omitted.)
• “ ‘ “The crucial element is control.” [Citation.]’ ‘[W]e have placed major
importance on the existence of possession and control as a basis for tortious
liability for conditions on the land.’ ” (Salinas v. Martin (2008) 166 Cal.App.4th
404, 414 [82 Cal.Rptr.3d 735], original italics, internal citations omitted.)
Secondary Sources
604

1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.02–15.03
(Matthew Bender)
Owners, §§ 381.03–381.04 (Matthew Bender)
Claims for Damages, § 334.52 (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
605

[Name of defendant] was negligent in the use or maintenance of the

property if:
1. A condition on the property created an unreasonable risk of
harm;
2. [Name of defendant] knew or, through the exercise of reasonable
care, should have known about it; and
3. [Name of defendant] failed to repair the condition, protect against
harm from the condition, or give adequate warning of the
condition.

Directions for Use
Read this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, in a premises liability case involving an unsafe condition on property. If
there is an issue as to the owner’s constructive knowledge of the condition
(element 2), also give CACI No. 1011, Constructive Notice Regarding Dangerous
Conditions on Property.
• “Where the occupier of land is aware of a concealed condition involving in the
absence of precautions an unreasonable risk of harm to those coming in contact
with it and is aware that a person on the premises is about to come in contact
with it, the trier of fact can reasonably conclude that a failure to warn or to
repair the condition constitutes negligence. Whether or not a guest has a right to
expect that his host will remedy dangerous conditions on his account, he should
reasonably be entitled to rely upon a warning of the dangerous condition so that
he, like the host, will be in a position to take special precautions when he
comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70
Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘[T]he proprietor of a store who knows of, or by the exercise of reasonable
care could discover, an artificial condition upon his premises which he should
foresee exposes his business visitors to an unreasonable risk, and who has no
basis for believing that they will discover the condition or realize the risk
involved, is under a duty to exercise ordinary care either to make the condition
reasonably safe for their use or to give a warning adequate to enable them to
avoid the harm. . . .’ [Plaintiff] was entitled to have the jury so instructed.”
(Williams v. Carl Karcher Enters., Inc. (1986) 182 Cal.App.3d 479, 488 [227
Cal.Rptr. 465], internal citations omitted, disapproved on other grounds in Soule
606

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
• “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],
• “[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
607

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
(Matthew Bender)
Liabilities, § 170.02 (Matthew Bender)
Claims for Damages, § 334.51 (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
608

If an unsafe condition of the property is so obvious that a person could

reasonably be expected to observe it, then the [owner/lessor/occupier/one
who controls the property] does not have to warn others about the
dangerous condition.
New September 2003

Directions for Use
Defendants may have a duty to take precautions to protect against the risk of harm
from an obviously unsafe condition, even if they do not have a duty to warn.
(Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121–122 [273 Cal.Rptr.
457].)
• Generally, if a danger is so obvious that a person could reasonably be expected
to see it, the condition itself serves as a warning, and the landowner is under no
further duty to remedy or warn of the condition. (6 Witkin, Summary of
California Law (10th ed. 2005) Torts, § 1126.) However, this is not true in all
cases. “[I]t is foreseeable that even an obvious danger may cause injury, if the
practical necessity of encountering the danger, when weighed against the
apparent risk involved, is such that under the circumstances, a person might
choose to encounter the danger. The foreseeability of injury, in turn, when
considered along with various other policy considerations such as the extent of
the burden to the defendant and consequences to the community of imposing a
duty to remedy such danger may lead to the legal conclusion that the defendant
‘owes a duty of due care’ [to the person injured.]” (Osborn, supra, 224
• It is incorrect to instruct a jury categorically that a business owner cannot be
held liable for an injury resulting from an obvious danger. (Osborn, supra, 224
Cal.App.3d at p. 116.) There may be a duty to remedy a dangerous condition,
even though there is no duty to warn thereof, if the condition is foreseeable.
(Id. at pp. 121–122.)
• In Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039–1040 [43
Cal.Rptr.2d 158], the court found that an instruction stating that the defendant
“owed no duty to warn plaintiff of a danger which was obvious or which should
have been observed in the exercise of ordinary care” was proper: “The jury was
free to consider whether Falcon was directly negligent in failing to correct any
foreseeable, dangerous condition of the cables which may have contributed to
the cause of Felmlee’s injuries.” (Id. at p. 1040.)
• One court has observed: “[T]he ‘obvious danger’ exception to a landowner’s
ordinary duty of care is in reality a recharacterization of the former assumption
609

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
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04[4]
(Matthew Bender)
Owners, §§ 381.20, 381.32 (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
610

1005. Business Proprietor’s Liability for the Negligent/Intentional/

Criminal Conduct of Others
[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.
New September 2003

• “[T]he property holder only ‘has a duty to protect against types of crimes of
which he has notice and which are likely to recur if the common areas are not
secure.’ The court’s focus in determining duty ‘ “ ‘is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally whether the category
of negligent conduct at issue is sufficiently likely to result in the kind of harm
experienced that liability may appropriately be imposed on the negligent party.’
[Citation.]” ’ ” (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th
“[O]nly when ‘heightened’ foreseeability of third party criminal activity on the
premises exists-shown by prior similar incidents or other indications of a
reasonably foreseeable risk of violent criminal assaults in that location-does the
scope of a business proprietor’s special-relationship-based duty include an
obligation to provide guards to protect the safety of patrons.” (Delgado v. Trax
Bar & Grill (2005) 36 Cal.4th 224, 240 [30 Cal.Rptr.3d 145, 113 P.3d 1159],
internal citations and footnote omitted, original italics.)
• “Here [defendant] argues it has no duty unless and until it experiences a similar
criminal incident. We disagree. While a property holder generally has a duty to
protect against types of crimes of which he is on notice, the absence of
previous occurrences does not end the duty inquiry. We look to all of the
factual circumstances to assess foreseeability.” (Janice H., supra, 1 Cal.App.5th
• “Even when proprietors . . . have no duty . . . to provide a security guard or
undertake other similarly burdensome preventative measures, the proprietor is
not necessarily insulated from liability under the special relationship doctrine. A
proprietor that has no duty . . . to hire a security guard or to undertake other
similarly burdensome preventative measures still owes a duty of due care to a
patron or invitee by virtue of the special relationship, and there are
circumstances (apart from the failure to provide a security guard or undertake
other similarly burdensome preventative measures) that may give rise to liability
based upon the proprietor’s special relationship.” (Delgado, supra, 36 Cal.4th at
pp. 240–241.)
611

• A business proprietor is not an insurer of the safety of his invitees, “but he is

required to exercise reasonable care for their safety and is liable for injuries
resulting from a breach of this duty. The general duty includes not only the duty
to inspect the premises in order to uncover dangerous conditions, but, as well,
the duty to take affirmative action to control the wrongful acts of third persons
which threaten invitees where the occupant has reasonable cause to anticipate
such acts and the probability of injury resulting therefrom.” (Taylor v.
Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d
• “Once a court finds that the defendant was under a duty to protect the plaintiff,
it is for the factfinder to decide whether the security measures were reasonable
under the circumstances. The jury must decide whether the security was
adequate.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 131
[211 Cal.Rptr. 356, 695 P.2d 653], internal citation omitted.)
• “[A]s frequently recognized, a duty to take affirmative action to control the
wrongful acts of a third party will be imposed only where such conduct can be
reasonably anticipated.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 676 [25 Cal.Rptr.2d 137, 863 P.2d 207], internal citations omitted.)
• “In the case of a landlord, this general duty of maintenance, which is owed to
tenants and patrons, has been held to include the duty to take reasonable steps
to secure common areas against foreseeable criminal acts of third parties that
are likely to occur in the absence of such precautionary measures.” (Ann M.,
supra, 6 Cal.4th at p. 674, internal citation omitted; Frances T. v. Village Green
Owners Assn. (1986) 42 Cal.3d 490, 499–501 [229 Cal.Rptr. 456, 723 P.2d
573].)
• “[Restatement Second of Torts] Section 314A identifies ‘special relations’ which
give rise to a duty to protect another. Section 344 of the Restatement Second of
Torts expands on that duty as it applies to business operators.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 823 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
Secondary Sources
(Matthew Bender)
Claims for Damages, §§ 334.12, 334.23, 334.57 (Matthew Bender)
612

(Matthew Bender)
613

A landlord must conduct reasonable periodic inspections of rental

property whenever the landlord has the legal right of possession. Before
giving possession of leased property to a tenant [or on renewal of a
lease] [or after retaking possession from a tenant], a landlord must
conduct a reasonable inspection of the property for unsafe conditions
and must take reasonable precautions to prevent injury due to the
conditions that were or reasonably should have been discovered in the
process. The inspection must include common areas under the
landlord’s control.
After a tenant has taken possession, a landlord must take reasonable
precautions to prevent injury due to any unsafe condition in an area of
the premises under the landlord’s control if the landlord knows or
reasonably should have known about it.
[After a tenant has taken possession, a landlord must take reasonable
precautions to prevent injury due to any unsafe condition in an area of
the premises under the tenant’s control if the landlord has actual
knowledge of the condition and the right and ability to correct it.]
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.
614


• “A landlord owes a duty of care to a tenant to provide and maintain safe
conditions on the leased premises. This duty of care also extends to the general
public. ‘A lessor who leases property for a purpose involving the admission of
the public is under a duty to see that it is safe for the purposes intended, and to
exercise reasonable care to inspect and repair the premises before possession is
transferred so as to prevent any unreasonable risk of harm to the public who
may enter. An agreement to renew a lease or relet the premises . . . cannot
relieve the lessor of his duty to see that the premises are reasonably safe at that
time.’ [¶] Where there is a duty to exercise reasonable care in the inspection of
premises for dangerous conditions, the lack of awareness of the dangerous
condition does not generally preclude liability. ‘Although liability might easily
be found where the landowner has actual knowledge of the dangerous condition
“[t]he 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.” ’ ” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134 [32 Cal.Rptr.2d
• “Public policy precludes landlord liability for a dangerous condition on the
premises which came into existence after possession has passed to a tenant.
This is based on the principle that the landlord has surrendered possession and
control of the land to the tenant and has no right even to enter without
permission. It would not be reasonable to hold a lessor liable if the lessor did
not have the power, opportunity, and ability to eliminate the dangerous
condition.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604 [195 Cal.Rptr.3d
• “The rationale for this rule has been that property law regards a lease as
equivalent to a sale of the land for the term of the lease. As stated by Prosser:
‘In the absence of agreement to the contrary, the lessor surrenders both
possession and control of the land to the lessee, retaining only a reversionary
interest; and he has no right even to enter without the permission of the lessee.
Consequently, it is the general rule that he is under no obligation to anyone to
look after the premises or keep them in repair, and is not responsible, either to
persons injured on the land or to those outside of it, for conditions which
develop or are created by the tenant after possession has been transferred.
Neither is he responsible, in general, for the activities which the tenant carries
on upon the land after such transfer, even when they create a nuisance.’ ”
(Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510–511 [118 Cal.Rptr.
• “To this general rule of nonliability, the law has developed a number of
exceptions, such as where the landlord covenants or volunteers to repair a
defective condition on the premises, where the landlord has actual knowledge of
615

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
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.
• “[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
616

in trying to discover hazards unless the circumstances so warrant. When there is

a potential serious danger, which is foreseeable, a landlord should anticipate the
danger and conduct a reasonable inspection before passing possession to the
tenant. However, if no such inspection is warranted, the landlord has no such
obligation.” (Mora, supra, 210 Cal.App.3d at p. 782, internal citations and
footnote omitted.)
• “It is one thing for a landlord to leave a tenant alone who is complying with its
lease. It is entirely different, however, for a landlord to ignore a defaulting
tenant’s possible neglect of property. Neglected property endangers the public,
and a landlord’s detachment frustrates the public policy of keeping property in
good repair and safe. To strike the right balance between safety and disfavored
self-help, we hold that [the landlord]’s duty to inspect attached upon entry of
the judgment of possession in the unlawful detainer action and included
reasonable periodic inspections thereafter.” (Stone v. Center Trust Retail
Properties, Inc. (2008) 163 Cal.App.4th 608, 613 [77 Cal.Rptr.3d 556].)
• “[I]t is established that a landlord owes a duty of care to its tenants to take
reasonable steps to secure the common areas under its control.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675 [25 Cal.Rptr.2d 137,
863 P.2d 207].)
• “The existence of the landlord’s duty to others to maintain the property in a
reasonably safe condition is a question of law for the court.” (Johnson v.
Prasad (2014) 224 Cal.App.4th 74, 79 [168 Cal.Rptr.3d 196].)
• “The reasonableness of a landlord’s conduct under all the circumstances is for
the jury. A triable issue of fact exists as to whether the defendants’ maintenance
of a low, open, unguarded window in a common hallway where they knew
young children were likely to play constituted a breach of their duty to take
reasonable precautions to prevent children falling out of the window.” (Amos v.
Alpha Prop. Mgmt. (1999) 73 Cal.App.4th 895, 904 [87 Cal.Rptr.2d 34],
Secondary Sources
(Matthew Bender)
Claims for Damages, §§ 334.10, 334.53 (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23
(Matthew Bender)
617

[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.
New September 2003

• Generally, absent statutory authority to the contrary, a landowner is under no
duty to maintain in a safe condition a public street or sidewalk abutting his
property (Sexton v. Brooks (1952) 39 Cal.2d 153, 157 [245 P.2d 496]).
However, “[a]n abutting owner has always had a duty to refrain from
affirmative conduct which would render the sidewalk dangerous to the public.”
(Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1592 [272
• The occupier must maintain his or her land in a manner so as not to injure the
users of an abutting street or sidewalk. (Swanberg v. O’Mectin (1984) 157
Cal.App.3d 325, 330 [203 Cal.Rptr. 701]; Lompoc Unified School Dist. v.
• “An ordinance requiring the abutting landowner to maintain the sidewalk would
be construed to create a duty of care to third persons only if the ordinance
clearly and unambiguously so provided.” (Selger, supra, 222 Cal.App.3d at p.
• “Persons who maintain walkways—whether public or private—are not required
to maintain them in absolutely perfect condition. ‘The duty of care imposed on
a property owner, even one with actual notice, does not require the repair of
minor defects.’ The rule is no less applicable in a privately owned townhome
development. Moreover, what constitutes a minor defect may be a question of
law.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th
Secondary Sources
(Matthew Bender)
618


(Matthew Bender)
619

1008. Liability for Adjacent Altered Sidewalk—Essential Factual

Elements

defendant] was negligent in constructing and maintaining an altered
portion of the sidewalk next to [his/her/its] property. To establish this
1. That [name of defendant] [or a previous owner] altered [or
requested the city to alter] the portion of the sidewalk that
caused the harm;
2. That the alteration provided a benefit solely to [name of
defendant]’s property;
3. That the alteration served a purpose different from ordinary
sidewalk use;
4. That [name of defendant] failed to use reasonable care in creating
or maintaining the altered portion of the sidewalk;
New September 2003

• An abutting landowner who has altered an adjacent sidewalk for the benefit of
his property apart from the ordinary use for which it was designed has a duty to
employ ordinary care in making such alteration and in maintaining that portion
of the sidewalk in a reasonably safe condition. (Peters v. City & County of San
Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55]; see Selger v. Steven
Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1594 [272 Cal.Rptr. 544].)
• The duty of care regarding altered sidewalks usually arises in cases “involving
traps on sidewalks, including ‘ “coal holes, meter boxes, and other devices of
similar character located in the sidewalk which benefit the abutting owner and
are located where the general public is likely to walk . . . .” ’ ” (Contreras v.
Anderson (1997) 59 Cal.App.4th 188, 202 [69 Cal.Rptr.2d 69], internal citation
omitted.)
• Liability depends on findings of (1) special benefit to the owner’s property, (2)
alteration of sidewalk for a nontypical purpose, and (3) the degree of
exclusivity of benefit. (Contreras, supra, 59 Cal.App.4th at p. 202.)
• “The significance of the degree of exclusivity is that proportionately, the greater
the exclusivity of use, the more an improvement benefits solely the adjoining
620

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
(Matthew Bender)
(Matthew Bender)
621

1009A. Liability to Employees of Independent Contractors for

Unsafe Concealed Conditions
[Name of plaintiff] claims that [he/she] was harmed by an unsafe

concealed condition while employed by [name of plaintiff’s employer] and
working on [name of defendant]’s property. To establish this claim, [name
property;
2. That [name of defendant] knew, or reasonably should have
known, of a preexisting unsafe concealed condition on the
property;
3. That [name of plaintiff’s employer] neither knew nor could be
reasonably expected to know of the unsafe concealed condition;
4. That the condition was not part of the work that [name of
plaintiff’s employer] was hired to perform;
5. That [name of defendant] failed to warn [name of plaintiff’s
employer] of the condition;
An unsafe condition is concealed if either it is not visible or its
dangerous nature is not apparent to a reasonable person.
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.
622

PREMISES LIABILITY CACI No. 1009A

• “[T]he hirer as landowner may be independently liable to the contractor’s
employee, even if it does not retain control over the work, if: (1) it knows or
reasonably should know of a concealed, preexisting hazardous condition on its
premises; (2) the contractor does not know and could not reasonably ascertain
the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v.
Unocal Corp. (2005) 37 Cal.4th 659, 675 [36 Cal.Rptr.3d 495, 123 P.3d 931].)
• “[T]here is no reason to distinguish conceptually between premises liability
based on a hazardous substance that is concealed because it is invisible to the
contractor and known only to the landowner and premises liability based on a
hazardous substance that is visible but is known to be hazardous only to the
landowner. If the hazard is not reasonably apparent, and is known only to the
landowner, it is a concealed hazard, whether or not the substance creating the
hazard is visible.” (Kinsman, supra, 37 Cal.4th at p. 678.)
• “A landowner’s duty generally includes a duty to inspect for concealed hazards.
But the responsibility for job safety delegated to independent contractors may
and generally does include explicitly or implicitly a limited duty to inspect the
premises as well. Therefore, . . . the landowner would not be liable when the
contractor has failed to engage in inspections of the premises implicitly or
explicitly delegated to it. Thus, for example, an employee of a roofing
contractor sent to repair a defective roof would generally not be able to sue the
hirer if injured when he fell through the same roof due to a structural defect,
inasmuch as inspection for such defects could reasonably be implied to be
within the scope of the contractor’s employment. On the other hand, if the same
employee fell from a ladder because the wall on which the ladder was propped
collapsed, assuming that this defect was not related to the roof under repair, the
employee may be able to sustain a suit against the hirer. Put in other terms, the
contractor was not being paid to inspect the premises generally, and therefore
the duty of general inspection could not be said to have been delegated to it.
Under those circumstances, the landowner’s failure to reasonably inspect the
premises, when a hidden hazard leads directly to the employee’s injury, may
well result in liability.” (Kinsman, supra, 37 Cal.4th at pp. 677–678, internal
citations omitted.)
Secondary Sources
Friedman, et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶¶ 6:4, 6:9.12 (The Rutter Group)
(Matthew Bender)
(Matthew Bender)
623

CACI No. 1009A PREMISES LIABILITY
(Matthew Bender)
624

1009B. Liability to Employees of Independent Contractors for

Unsafe Conditions—Retained Control

condition while employed by [name of plaintiff’s employer] and working
on [name of defendant]’s property. To establish this claim, [name of
property;
2. That [name of defendant] retained control over safety conditions
at the worksite;
3. That [name of defendant] negligently exercised [his/her/its]
retained control over safety conditions by [specify alleged
negligent acts or omissions];
5. That [name of defendant]’s negligent exercise of [his/her/its]
retained control over safety conditions was a substantial factor in
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011, May 2017
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.
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 a failure to act. (Id. at p. 212, fn. 3.) “Affirmative
contribution” means that there must be causation between the hirer’s retained
625

CACI No. 1009B PREMISES LIABILITY
control and the plaintiff’s injury. But “affirmative contribution” might be construed
by a jury to require active conduct rather than a failure to act. Element 5, the
standard “substantial factor” element, expresses the “affirmative contribution.”
requirement. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207
Cal.Rptr.3d 712] [agreeing with committee’s position that “affirmatively
contributed” need not be specifically stated in instruction].)
• “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].)
• “A hirer’s failure to correct an unsafe condition, by itself, does not establish an
affirmative contribution.” (Khosh v. Staples Construction Co., Inc. (2016) 4
• “Although drawn directly from case law, [plaintiff]’s proposed Special
Instructions Nos. 2 and 8 are somewhat misleading in that they suggest that in
order for the hirer to ‘affirmatively contribute’ to the plaintiff’s injuries, the
hirer must have engaged in some form of active direction or conduct. However,
‘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.’ The Advisory Committee on Civil Jury Instructions
recognized the potential to confuse the jury by including ‘affirmative
626

PREMISES LIABILITY CACI No. 1009B
contribution’ language in CACI No. 1009B. The committee’s Directions for Use
states: ‘The hirer’s retained control must have “affirmatively contributed” to the
plaintiff’s injury. [Citation.] However, the affirmative contribution need not be
active conduct but may be in the form of an omission to act. [Citation.] The
advisory committee believes that the “affirmative contribution” requirement
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.’ (Directions for Use for CACI No.
1009B.) [¶ ] We agree with the Advisory Committee on Civil Jury Instructions
that CACI No. 1009B adequately covers the ‘affirmative contribution’
requirement set forth in Hooker.” (Regalado v. Callaghan (2016) 3 Cal.App.5th
582, 594–595 [207 Cal.Rptr.3d 712].)
• “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
negligent exercise of control. In order for a worker to recover on a retained
control theory, the hirer must engage in some active participation.” (Tverberg,
• “[U]nder Government Code section 815.4, a public entity can be held liable
under the retained control doctrine, provided a private person would be liable
under the same circumstances. This means that the public entity must
negligently exercise its retained control so as to affirmatively contribute to the
injuries of the employee of the independent contractor.” (McCarty v.
Department of Transportation (2008) 164 Cal.App.4th 955, 985 [79 Cal.Rptr.3d
Secondary Sources
Friedman, et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
(Matthew Bender)
627

CACI No. 1009B PREMISES LIABILITY

(Matthew Bender)
(Matthew Bender)
628

1009D. Liability to Employees of Independent Contractors for

Unsafe Conditions—Defective Equipment

condition while employed by [name of plaintiff’s employer] and working
on [name of defendant]’s property. To establish this claim, [name of
property;
2. That [name of defendant] negligently provided unsafe equipment
that contributed to [name of plaintiff]’s injuries;
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.
• “[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
• “ ‘[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.)
629

CACI No. 1009D PREMISES LIABILITY
Secondary Sources
(Matthew Bender)
(Matthew Bender)
(Matthew Bender)
630

1010. Affirmative Defense—Recreation Immunity—Exceptions

(Civ. Code, § 846)
[Name of defendant] is not responsible for [name of plaintiff]’s harm if

[name of defendant] proves that [name of plaintiff]’s harm resulted from
[his/her/name of person causing injury’s] entry on or use of [name of
defendant]’s property for a recreational purpose. However, [name of
defendant] may be still responsible for [name of plaintiff]’s harm if [name
of plaintiff] proves that
[Choose one or more of the following three options:]
[[name of defendant] willfully or maliciously failed to protect others from
or warn others about a dangerous [condition/use/structure/activity] on
the property.]
[or]
[a charge or fee was paid to [name of defendant/the owner] for
permission to enter the property for a recreational purpose.]
[or]
[[name of defendant] expressly invited [name of plaintiff] to enter the
property for the recreational purpose.]
If you find that [name of plaintiff] has proven one or more of these three
exceptions to immunity, then you must still decide whether [name of
defendant] is liable in light of the other instructions that I will give you.
New September 2003; Revised October 2008, December 2014, May 2017,
November 2017
Directions for Use
This instruction sets forth the statutory exceptions to recreational immunity. (See
Civ. Code, § 846.) In the opening paragraph, if the plaintiff was not the recreational
user of the property, insert the name of the person whose conduct on the property
is alleged to have caused plaintiff’s injury. Immunity extends to injuries to persons
who are neither on the property nor engaged in a recreational purpose if the injury
was caused by a recreational user of the property. (See Wang v. Nibbelink (2016) 4
Choose one or more of the optional exceptions according to the facts. Depending
on the facts, the court could instruct that the activity involved was a “recreational
purpose” as a matter of law. For a comprehensive list of “recreational purposes,”
refer to Civil Code section 846.
Whether the term “willful or malicious failure” has a unique meaning under this
631

statute is not entirely clear. One court construing this statute has said that three
elements must be present to raise a negligent act to the level of willful misconduct:
(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible, result of
the danger, and (3) conscious failure to act to avoid the peril. (See New v.
Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217
Cal.Rptr. 522].)
For the second exception involving payment of a fee, insert the name of the
defendant if the defendant is the landowner. If the defendant is someone who is
alleged to have created a dangerous condition on the property other than the
landowner, select “the owner.” (See Pacific Gas & Electric Co. v. Superior Court
Federal courts interpreting California law have addressed whether the “express
invitation” must be personal to the user. The Ninth Circuit has held that invitations
to the general public do not qualify as “express invitations” within the meaning of
section 846. In Ravell v. United States (9th Cir. 1994) 22 F.3d 960, 963, the Ninth
Circuit held that California law requires a personal invitation for a section 846
invitation, citing Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317 [26
Cal.Rptr.2d 148]. However, the issue has not been definitively resolved by the
California Supreme Court.
• 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.
• “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
632

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].)
• “Subpart (c) of the third paragraph of section 846 is not limited to injuries to
persons on the premises and therefore on its face encompasses persons off-
premises such as [plaintiff] and her husband. It is not limited to injuries to
recreational participants. Had the Legislature wanted to narrow the third
paragraph’s immunity to injured recreational users, it could have done so, as it
did in the first paragraph.” (Wang, supra, 4 Cal.App.5th at p. 17.)
• “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].)
• “We conclude that the consideration exception to recreational use immunity
does apply to [defendant] even though [plaintiff]’s fee for recreational access to
the campground was not paid to it . . . . We hold that the payment of
consideration in exchange for permission to enter a premises for a recreational
purpose abrogates the section 846 immunity of any nonpossessory interest
holder who is potentially responsible for the plaintiff’s injuries, including a
licensee or easement holder who possesses only a limited right to enter and use
a premises on specified terms but no right to control third party access to the
premises. The contrary interpretation urged by [defendant], making immunity
contingent not on payment of consideration but its receipt, is supported neither
by the statutory text nor the Legislature’s purpose in enacting section 846,
which was to encourage free public access to property for recreational use. It
also would lead to troubling, anomalous results we do not think the Legislature
intended. At bottom, construing this exception as applying only to defendants
who receive or benefit from the consideration paid loses sight of the fact that
recreational immunity is merely a tool. It is the Legislature’s chosen means, not
an end unto itself.” (Pacific Gas & Electric Co., supra, 10 Cal.App.5th at p.
566.)
• “A landowner must gain some immediate and reasonably direct advantage,
usually in the form of an entrance fee, before the exception to immunity for
633

consideration under section 846 comes into play.” (Johnson, supra, 21

• “The purpose of section 846 is to encourage landowners to permit people to use
their property for recreational use without fear of reprisal in the form of
lawsuits. The trial court should therefore construe the exceptions for
consideration and express invitees narrowly. (Johnson, supra, 21 Cal.App.4th at
p. 315.)
• “Civil Code section 846’s liability shield does not extend to acts of vehicular
negligence by a landowner or by the landowner’s employee while acting within
the course of the employment. We base this conclusion on section 846’s plain
language. The statutory phrase ‘keep the premises safe’ is an apt description of
the property-based duties underlying premises liability, a liability category that
does not include vehicular negligence. Furthermore, a broad construction of that
statutory phrase would render superfluous another provision of section 846
shielding landowners from liability for failure to warn recreational users about
hazardous conditions or activities on the land.” (Klein v. United States of
America (2010) 50 Cal.4th 68, 72 [112 Cal.Rptr.3d 722, 235 P.3d 42].)
Secondary Sources
(Matthew Bender)
(Matthew Bender)
(Matthew Bender)
634

1011. Constructive Notice Regarding Dangerous Conditions on

Property
In determining whether [name of defendant] should have known of the

condition that created the risk of harm, you must decide whether, under
all the circumstances, the condition was of such a nature and existed
long enough that [name of defendant] had sufficient time to discover it
and, using reasonable care:
1. Repair the condition; or
2. Protect against harm from the condition; or
3. Adequately warn of the condition.
[[Name of defendant] must make reasonable inspections of the property
to discover unsafe conditions. If an inspection was not made within a
reasonable time before the accident, this may show that the condition
existed long enough so that [a store/[a/an] [insert other commercial
enterprise]] owner using reasonable care would have discovered it.]
New September 2003; Revised February 2007, October 2008

Directions for Use
This instruction is intended for use if there is an issue concerning the owner’s
constructive knowledge of a dangerous condition. It should be given with CACI
No. 1003, Unsafe Conditions.
The bracketed second paragraph of this instruction is based on Ortega v. Kmart
(2001) 26 Cal.4th 1200 [114 Cal.Rptr.2d 470, 36 P.3d 11]. Ortega involved a store.
The court should determine whether the bracketed portion of this instruction applies
to other types of property.
• “It is well established in California that although a store owner is not an insurer
of the safety of its patrons, the owner does owe them a duty to exercise
reasonable care in keeping the premises reasonably safe.” (Ortega, supra, 26
Cal.4th at p. 1205, internal citation omitted.)
• “We conclude that a plaintiff may prove a dangerous condition existed for an
unreasonable time with circumstantial evidence, and that . . . ‘evidence that an
inspection had not been made within a particular period of time prior to an
accident may warrant an inference that the defective condition existed long
enough so that a person exercising reasonable care would have discovered it.’ ”
(Ortega, supra, 26 Cal.4th at p. 1210, internal citation omitted.)
• “A store owner exercises ordinary care by making reasonable inspections of the
portions of the premises open to customers, and the care required is
635

commensurate with the risks involved.” (Ortega, supra, 26 Cal.4th at p. 1205,

• “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.” (Ortega, supra, 26 Cal.4th at p. 1206, internal
citations omitted.)
• “Courts have also held that where the plaintiff relies on the failure to correct a
dangerous condition to prove the owner’s negligence, the plaintiff has the
burden of showing that the owner had notice of the defect in sufficient time to
correct it.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)
• “The plaintiff need not show actual knowledge where evidence suggests that the
dangerous condition was present for a sufficient period of time to charge the
owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th
• “We emphasize that allowing the inference does not change the rule that if a
store owner has taken care in the discharge of its duty, by inspecting its
premises in a reasonable manner, then no breach will be found even if a
plaintiff does suffer injury.” (Ortega, supra, 26 Cal.4th at p. 1211, internal
citations omitted.)
• “We conclude that plaintiffs still have the burden of producing evidence that the
dangerous condition existed for at least a sufficient time to support a finding
that the defendant had constructive notice of the hazardous condition. We also
conclude, however, that plaintiffs may demonstrate the storekeeper had
constructive notice of the dangerous condition if they can show that the site had
not been inspected within a reasonable period of time so that a person
exercising due care would have discovered and corrected the hazard. In other
words, if the plaintiffs can show an inspection was not made within a particular
period of time prior to an accident, they may raise an inference the condition
did exist long enough for the owner to have discovered it. It remains a question
of fact for the jury whether, under all the circumstances, the defective condition
existed long enough so that it would have been discovered and remedied by an
owner in the exercise of reasonable care.” (Ortega, supra, at pp. 1212–1213,
• “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],
• “Although no two accidents happen in the same way, to be admissible for
636

showing notice to a landowner of a dangerous condition, evidence of another

similar accident must have occurred under substantially the same
circumstances.” (Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th
403, 432 [136 Cal.Rptr.3d 739].)
Secondary Sources
(Matthew Bender)
(Matthew Bender)
(Matthew Bender)
637

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.
New October 2004

• “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.” (Hatfield v. Levy Bros.
(1941) 18 Cal.2d 798, 806 [117 P.2d 841], internal citation omitted.)
• “When an unsafe condition which causes injury to an invitee has been created
by the owner of the property himself or by an employee within the scope of his
employment, the invitee need not prove the owner’s notice or knowledge of the
dangerous condition; the knowledge is imputed to the owner.” (Sanders v.
MacFarlane’s Candies (1953) 119 Cal.App.2d 497, 501 [259 P.2d 1010],
• “Where the evidence shows, as it does in this case, that the condition which
caused the injury was created by the employees of the respondent, or the
evidence is such that a reasonable inference can be drawn that the condition
was created by employees of the respondent, then respondent is charged with
notice of the dangerous condition.” (Oldham v. Atchison, T. & S.F. Ry. Co.
(1948) 85 Cal.App.2d 214, 218–219 [192 P.2d 516].)
Secondary Sources
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.04[5],
Owners, § 381.20[1] (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability
(Matthew Bender)
(Matthew Bender)
638

VF-1000. Premises Liability—Comparative Negligence of Others

Not at Issue

1. Did [name of defendant] [own/lease/occupy/control] the property?
1. Yes No
2. Was [name of defendant] negligent in the use or maintenance of
the property?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
639

VF-1000 PREMISES LIABILITY

[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential
Factual Elements.
640

VF-1001. Premises Liability—Affirmative Defense—Recreation

Immunity—Exceptions

1. Yes No
2. Was [name of defendant] negligent in the [use/maintenance] of the
property?
2. Yes No
3. Yes No
4. Did [name of plaintiff/name of person causing injury] enter on or
use [name of defendant]’s property for a recreational purpose?
4. Yes No
you answered no, skip question 5 and answer question 6.
5. Did [name of defendant] willfully or maliciously fail to protect
others from or warn others about a dangerous [condition/use/
structure/activity] on the property?
5. Yes No
641

CACI No. VF-1001 PREMISES LIABILITY
[lost earnings $ ]
[lost profits $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]

[lost earnings $ ]
[lost profits $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental

suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental

suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
New September 2003; Revised April 2007, October 2008, December 2010,
December 2014, December 2016, May 2017
Directions for Use
Factual Elements, and CACI No. 1010, Affırmative Defense—Recreation
Immunity—Exceptions.
642

PREMISES LIABILITY CACI No. VF-1001

If either of the other two exceptions to recreational immunity from Civil Code
section 846 is at issue, question 5 should be replaced with appropriate language for
the applicable exception. (See CACI No. 1010.)
643

VF-1002. Premises Liability—Comparative Fault of Plaintiff at

Issue

1. Yes No
2. Was [name of defendant] negligent in the use or maintenance of
the property?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
644

PREMISES LIABILITY VF-1002

[d. TOTAL $
[d. If [name of plaintiff] has proved any damages, then answer
5. Was [name of plaintiff] also negligent?
5. Yes No
6. Yes No
do you assign to the following?
TOTAL 100 %
Signed:
Presiding Juror
Dated:
New February 2005; Revised April 2007, December 2009, December 2010,
December 2016
645

VF-1002 PREMISES LIABILITY
Directions for Use

Factual Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No.
406, Apportionment of Responsibility.
646

DANGEROUS CONDITION OF PUBLIC PROPERTY
1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov.

Code, § 835)
1101. Control
1103. Notice (Gov. Code, § 835.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission
(Gov. Code, § 835.4(a))
§ 835.4(b))
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code,
§ 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways
(Gov. Code, § 831)
VF-1101. Dangerous Condition of Public Property—Affirmative
Defense—Reasonable Act or Omission (Gov. Code, § 835.4)
647

1100. Dangerous Condition on Public Property—Essential

Factual Elements (Gov. Code, § 835)
[Name of plaintiff] claims that [he/she] was harmed by a dangerous

condition of [name of defendant]’s property. To establish this claim,
1. That [name of defendant] owned [or controlled] the property;
2. That the property was in a dangerous condition at the time of
the incident;
3. That the dangerous condition created a reasonably foreseeable
risk of the kind of injury that occurred;
4. [That negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of his or her employment
created the dangerous condition;]
4. [or]
4. [That [name of defendant] had notice of the dangerous condition
for a long enough time to have protected against it;]
6. That the dangerous condition was a substantial factor in causing
[name of plaintiff]’s harm.
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.
• 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
648

DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1100
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
• “[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
649

CACI No. 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
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
• “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
• “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]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
650

be decided as a matter of law if reasonable minds can come to only one

conclusion.’ ” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347
[75 Cal.Rptr.3d 168].)
Secondary Sources
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-C, Immunity
From Liability, ¶ 6:91 et seq. (The Rutter Group)
Hanning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability
For “Dangerous Conditions” Of Public Property, ¶ 2:2785 et seq. (The Rutter
Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.9–12.55
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
651

1101. Control
[Name of plaintiff] claims that [name of defendant] controlled the

property at the time of the incident. In deciding whether [name of
defendant] controlled the property, you should consider whether it had
the power to prevent, fix, or guard against the dangerous condition. You
should also consider whether [name of defendant] treated the property as
if it were its property.
New September 2003

Directions for Use
This instruction will not be necessary in most cases. Ownership of public property
is generally established as a matter of law by evidence of holding title or other
similar evidence.
The power to regulate privately owned facilities is not enough, in and of itself, to
impose liability on a public entity (i.e., it is not “control”). (Aaitui v. Grande
Properties (1994) 29 Cal.App.4th 1369, 1377–1378 [35 Cal.Rptr.2d 123].)
• “Public Property” Defined. Government Code section 830(c).
• “ ‘[C]ontrol exists if the public entity has the “power to prevent, remedy or
guard against the dangerous condition.” ’ ” (Goddard v. Department of Fish &
Wildlife (2015) 243 Cal.App.4th 350, 364 [196 Cal.Rptr.3d 625].)
• “Where the public entity’s relationship to the dangerous property is not clear,
aid may be sought by inquiring whether the particular defendant had control, in
the sense of power to prevent, remedy or guard against the dangerous condition;
whether his ownership is a naked title or whether it is coupled with control; and
whether a private defendant, having a similar relationship to the property, would
be responsible for its safe condition.” (Low v. City of Sacramento (1970) 7
Cal.App.3d 826, 833–834 [87 Cal.Rptr. 173] [city and county jointly liable for
defect in parking strip fronting county hospital].)
• “The Low-type inquiry and result are only appropriate ‘. . . [where] the public
entity’s relationship to the dangerous property is not clear . . . .’ ” (Searcy v.
Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 800 [223 Cal.Rptr.
• “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
• “[I]n identifying the defendant with whom control resides, location of the power
652

to correct the dangerous condition is an aid.” (Low, supra, 7 Cal.App.3d at p.

832.)
• The issue of control may be decided as a matter of law if the facts are
uncontroverted. (Aaitui, supra, 29 Cal.App.4th at p. 1377; Low, supra, 7
• In Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 385 [67 Cal.Rptr.
197], the court found that the city had control over a railroad right-of-way over
a city street where a city ordinance had reserved extensive powers to regulate
and inspect the railroad company’s easement.
• The requisite ownership or control must exist at the time of the incident.
(Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 [192
Cal.Rptr. 580]; Tolan v. State of California ex rel. Dept. of Transportation
(1979) 100 Cal.App.3d 980, 983 [161 Cal.Rptr. 307].)
• “[A] public entity can be held liable for an accident caused by a condition that
exists on property adjacent to a public highway if the condition ‘ “ ‘is so
connected with or in such proximity to the traveled portion of the highway as to
render it unsafe to those traveling thereon.’ ” ’ ” (Carson v. Facilities
Development Co. (1984) 36 Cal.3d 830, 841 [206 Cal.Rptr. 136, 686 P.2d 656],
Secondary Sources
§§ 12.9–12.14
Public Entities and Public Employees, § 61.01[3][b] (Matthew Bender)
Bender)
653

A “dangerous condition” is a condition of public property that creates a

substantial risk of injury to members of the general public when the
property [or adjacent property] is used with reasonable care and in a
reasonably foreseeable manner. A condition that creates only a minor
risk of injury is not a dangerous condition. [Whether the property is in
a dangerous condition is to be determined without regard to whether
[[name of plaintiff]/ [or] [name of third party]] exercised or failed to
exercise reasonable care in [his/her] use of the property.]

Directions for Use
Give the last sentence if comparative fault is at issue. It clarifies that comparative
fault does not negate the possible existence of a dangerous condition. (See Fredette
v. City of Long Beach (1986) 187 Cal.App.3d 122, 131 [231 Cal.Rptr. 598].)
• “Dangerous Condition” Defined. Government Code section 830(a).
• No Liability for Minor Risk. Government Code section 830.2.
• “The Act defines a ‘ “[d]angerous condition” ’ as ‘a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk
of injury when such property or adjacent property is used with due care in a
manner in which it is reasonably foreseeable that it will be used.’ Public
property is in a dangerous condition within the meaning of section 835 if it ‘is
physically damaged, deteriorated, or defective in such a way as to foreseeably
endanger those using the property itself.’ ” (Cordova v. City of L.A. (2015) 61
Cal.4th 1099, 1105 [190 Cal.Rptr.3d 850, 353 P.3d 773], internal citations
omitted.)
• “A public entity is not, without more, liable under section 835 for the harmful
conduct of third parties on its property. But if a condition of public property
‘creates a substantial risk of injury even when the property is used with due
care’, a public entity ‘gains no immunity from liability simply because, in a
particular case, the dangerous condition of its property combines with a third
party’s negligent conduct to inflict injury.’ ” (Cordova, supra, 61 Cal.4th at p.
• “In general, ‘[whether] a given set of facts and circumstances creates a
dangerous condition is usually a question of fact and may only be resolved as a
question of law if reasonable minds can come to but one conclusion.’ ”
(Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810
[205 Cal.Rptr. 842, 685 P.2d 1193], internal citation omitted.)
654

• “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
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
655

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
• “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
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.15
Public Entities and Public Employees, § 61.01[2][a] (Matthew Bender)
656

Bender)
657

1103. Notice (Gov. Code, § 835.2)
[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.]
New September 2003

Directions for Use
This instruction is intended to be used where the plaintiff relies on Government
Code section 835(b). This instruction should be modified if the plaintiff is relying
on both section 835(a) and section 835(b) to clarify that proof of notice is not
necessary under section 835(a).
For an instruction regarding reasonable inspection systems, see CACI No. 1104,
Inspection System.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• “[Defendant] asserts that ‘[t]he absence of any prior accidents or injuries on the
gravel shoulder is evidence of lack of notice.’ Assuming this to be true, at most
it establishes grounds for a finding in [defendant]’s favor, which is hardly
enough to sustain a summary judgment. Nor is plaintiff required to prove that
[defendant] knew for a fact that accidents of this kind would occur. The test for
actual notice was satisfied if [defendant] had ‘actual knowledge of the existence
of the condition and knew or should have known of its dangerous character.’ ”
(Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 779–780 [140
Cal.Rptr.3d 722].)
• “To establish ‘actual notice,’ it is not enough to show that the state employees
had a general knowledge that people do leave hot coals on public beaches.
There must be some evidence that the employees had knowledge of the
particular dangerous condition in question.” (State v. Superior Court of San
Mateo County (1968) 263 Cal.App.2d 396, 399 [69 Cal.Rptr. 683], internal
citations omitted.)
658

• “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],
• “ ‘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,
• “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
§§ 12.45–12.51
Bender)
659

In deciding whether [name of defendant] should have discovered the

dangerous condition, you may consider whether it had a reasonable
inspection system and whether a reasonable system would have revealed
the dangerous condition.
[In determining whether an inspection system is reasonable, you may
consider the practicality and cost of the system and balance those
factors against the likelihood and seriousness of the potential danger if
no such system existed.]
[and/or]
[If [name of defendant] had a reasonable inspection system but did not
detect the dangerous condition, you may consider whether it used
reasonable care in maintaining and operating the system.]
New September 2003

Directions for Use
Read the first paragraph and one or both of the bracketed paragraphs as appropriate
to the facts.
• Admissible Evidence of Due Care. Government Code section 835.2(b).
• “Constructive notice may be found where the dangerous condition would have
been discovered by a reasonable inspection.” (Straughter v. State of California
(1976) 89 Cal.App.3d 102, 109 [152 Cal.Rptr. 147], citing to Stanford v. City of
Ontario (1972) 6 Cal.3d 870, 882 [101 Cal.Rptr. 97, 495 P.2d 425].)
• “The questions of whether a dangerous condition could have been discovered
by reasonable inspection and whether there was adequate time for preventive
measures are properly left to the jury.” (Carson v. Facilities Development Co.
omitted.)
• “Although judicial decisions do not always link the issue of constructive notice
to the reasonable inspection system . . . , the Tort Claims Act indicates that,
absent other persuasive evidence, the relationship between constructive notice
and inspection may be crucial.” (California Government Tort Liability Practice
(Cont.Ed.Bar 3d ed. 1992), § 3.37.)
Secondary Sources
660

§§ 12.48–12.50
Bender)
661

1110. Affirmative Defense—Natural Conditions (Gov. Code,

§ 831.2)
A public entity is not responsible for harm caused by a natural

condition of an unimproved public property. If [name of defendant]
proves that [name of plaintiff]’s injury was caused by such a condition,
then it is not responsible for the injury.
New September 2003

• Natural Condition of Unimproved Public Property. Government Code section
831.2.
• Public Beaches. Government Code section 831.21.
• “The immunity provided by section 831.2 is absolute and applies regardless of
whether the public entity had knowledge of the dangerous condition or failed to
give warning. The legislative purpose in enacting section 831.2 was to ensure
that public entities will not prohibit public access to recreational areas due to
the burden and expense of defending against personal injury suits and of
placing such land in a safe condition.” (Goddard v. Department of Fish &
Wildlife (2015) 243 Cal.App.4th 350, 360 [196 Cal.Rptr.3d 625 ], internal
citations omitted.)
• “The natural condition immunity applies even ‘where the public entity had
knowledge of a dangerous condition which amounted to a hidden trap.’ As a
consequence, courts have held there is no liability for failure to warn of a
known dangerous condition when the danger is a natural condition of
unimproved public property.” (Alana M. v. State of California (2016) 245
• “The statutory immunity extends to ‘an injury caused by a natural condition of
any unimproved public property.’ The use of the term ‘caused’ is significant.
Here, although the injury occurred on improved property, that is, the paved
parking lot, it was caused by the trees, native flora located near—and perhaps
superadjacent to—the improved parking lot, but themselves on unimproved
property.” (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 177 [162
Cal.Rptr.3d 796], original italics, footnote and internal citations omitted.)
• “[T]o qualify public property as improved so as to take it outside the immunity
statute ‘some form of physical change in the condition of the property at the
location of the injury, which justifies the conclusion that the public entity is
responsible for reasonable risk management in that area, [is] required to
preclude application of the immunity.’ ” (Meddock, supra, 220 Cal.App.4th at p.
• “It is also the rule that ‘improvement of a portion of a park area does not
662

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
• “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
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)
§§ 12.82–12.87
663


19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.214
(Matthew Bender)
664

1111. Affirmative Defense—Condition Created by Reasonable Act

or Omission (Gov. Code, § 835.4(a))
A public entity is not legally responsible for harm caused by a

dangerous condition if the act or omission of its employee that created
the dangerous condition was reasonable. If [name of defendant] proves
that the act or omission that created the dangerous condition was
reasonable, then your verdict must be for [name of defendant].
In determining whether the employee’s conduct was reasonable, you
must weigh the likelihood and the seriousness of the potential injury
against the practicality and cost of either:
(a) taking alternative action that would not have created the risk of
injury; or
(b) protecting against the risk of injury.

Directions for Use
This instruction states a defense to the theory that the entity created a dangerous
condition of public property. (Gov. Code, §§ 835(a), 835.4(a).)
• No Public Entity Liability for Reasonable Act or Omission. Government Code
section 835.4(a).
• “There are, of course, affirmative defenses pleaded which may require trial as
well: such as . . . the special defense under Government Code, section 835.4 of
the reasonableness, practicability, and cost of the alternative measures plaintiffs
claim should have been taken to protect against a dangerous condition.”Hibbs v.
Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60
Cal.Rptr. 364].)
• “Reasonableness is a question of fact for the trier of fact, and is determined by
weighing the probability and gravity of potential injury against the practicability
and cost of the action.” (Biron v. City of Redding (2014) 225 Cal.App.4th 1264,
1281 [170 Cal.Rptr.3d 848].)
• “The Court of Appeal found conceptual difficulties in the interplay between
section 835, subdivision (a) (plaintiff must establish negligence) and section
835.4, subdivision (a) (providing a defense if the public entity establishes that
the act or omission that created the condition was reasonable). As it noted,
normally ‘negligence is the absence of reasonableness.’ That being the case, the
court reasoned, one cannot reasonably act negligently. Because of this
conundrum, the Court of Appeal found that section 835.4 does not provide an
665

affirmative defense. (¶) We disagree. Section 835.4 clearly creates an affirmative

defense that the public entity must establish. Moreover, the Legislature created
this defense specifically for public entities. The California Law Revision
Commission explained, ‘Under this section, a public entity may absolve itself
from liability for creating or failing to remedy a dangerous condition by
showing that it would have been too costly and impractical for the public entity
to have done anything else. . . . This defense has been provided public entities
in recognition that, despite limited manpower and budgets, there is much that
they are required to do. Unlike private enterprise, a public entity often cannot
weigh the advantage of engaging in an activity against the cost and decide not
to engage in it. Government cannot ‘go out of the business’ of governing.
Therefore, a public entity should not be liable for injuries caused by a
dangerous condition if it is able to show that under all the circumstances,
including the alternative courses of action available to it and the practicability
and cost of pursuing such alternatives, its action in creating or failing to remedy
the condition was not unreasonable.’ ” (Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1137–1138 [72 Cal.Rptr.3d 382, 176 P.3d 654],
footnote and internal citation omitted.)
• “The reasonableness standard referred to in section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835 and ordinary
tort principles. Under the latter principles, the reasonableness of the defendant’s
conduct does not depend upon the existence of other, conflicting claims on the
defendant’s resources or the political barriers to acting in a reasonable manner.”
(Metcalf, supra, 42 Cal.4th at p. 1138.)
• “In sum, we conclude that negligence under section 835, subdivision (a), is
established under ordinary tort principles concerning the reasonableness of a
defendant’s conduct in light of the foreseeable risk of harm. The plaintiff has
the burden to demonstrate that the defendant’s conduct was unreasonable under
this standard . . . . If the plaintiff carries this burden, the public entity may
defend under the provisions of section 835.4—a defense that is unique to public
entities.” (Metcalf, supra, 42 Cal.4th at p. 1139.)
Secondary Sources
§§ 12.61–12.62
(Matthew Bender)
666

1112. Affirmative Defense—Reasonable Act or Omission to

Correct (Gov. Code, § 835.4(b))
A public entity is not responsible for harm caused by a dangerous

condition if its failure to take sufficient steps to protect against the risk
of injury was reasonable. If [name of defendant] proves that its conduct
was reasonable, then your verdict must be for [name of defendant].
In determining whether [name of defendant]’s conduct was reasonable,
you must consider how much time and opportunity it had to take
action. You must also weigh the likelihood and the seriousness of the
potential injury against the practicality and cost of protecting against
the risk of injury.

Directions for Use
This instruction states a defense to the theory that the entity had notice of a
dangerous condition (that it did not create) and failed to take adequate protective
measures. (Gov. Code, §§ 835(b), 835.4(b).)
• No Public Entity Liability for Reasonable Act or Omission. Government Code
section 835.4(b).
• “There are, of course, affirmative defenses pleaded which may require trial as
well: such as . . . the special defense under Government Code, section 835.4 of
the reasonableness, practicability, and cost of the alternative measures plaintiffs
claim should have been taken to protect against a dangerous condition.” (Hibbs
v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60
Cal.Rptr. 364].)
• “Under section 835.4, subdivision (b), however, the question of the
reasonableness of the state’s action in light of the practicability and cost of the
applicable safeguards is a matter for the jury’s determination.” (Ducey v. Argo
Sales Co. (1979) 25 Cal.3d 707, 720 [159 Cal.Rptr. 835, 602 P.2d 755],
footnote omitted.)
• “Unlike section 830.6 relating to design immunity, section 835.4 subdivision
(b), does not provide that the reasonableness of the action taken shall be
determined by the ‘trial or appellate court.’ ” (De La Rosa v. City of San
Bernardino (1971) 16 Cal.App.3d 739, 749 [94 Cal.Rptr. 175].)
• “The reasonableness standard referred to in section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835 and ordinary
tort principles. Under the latter principles, the reasonableness of the defendant’s
conduct does not depend upon the existence of other, conflicting claims on the
667

defendant’s resources or the political barriers to acting in a reasonable manner.

But, as the California Law Revision Commission recognized, public entities
may also defend against liability on the basis that, because of financial or
political constraints, the public entity may not be able to accomplish what
reasonably would be expected of a private entity.” (Metcalf v. County of San
Joaquin (2008) 42 Cal.4th 1121, 1138 [72 Cal.Rptr.3d 382, 176 P.3d 654].)
Secondary Sources
§§ 12.63–12.65
(Matthew Bender)
668

1120. Failure to Provide Traffic Control Signals (Gov. Code,

§ 830.4)
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.
New September 2003

• No Liability for Failure to Provide Traffic Controls. Government Code section
830.4.
• “ ‘[T]he statutory scheme precludes a plaintiff from imposing liability on a
public entity for creating a dangerous condition merely because it did not install
the described traffic control devices.’ In short, ‘[t]he lack of a traffic signal at
the intersection does not constitute proof of a dangerous condition.’ ” (Mixon v.
Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135 [142 Cal.Rptr.3d
• “Cases interpreting this statute have held that it provides a shield against
liability only in those situations where the alleged dangerous condition exists
solely as a result of the public entity’s failure to provide a regulatory traffic
device or street marking. If a traffic intersection is dangerous for reasons other
than the failure to provide regulatory signals or street markings, the statute
provides no immunity.” (Washington v. City and County of San Francisco
(1990) 219 Cal.App.3d 1531, 1534–1535 [269 Cal.Rptr. 58].)
• “A public entity does not create a dangerous condition on its property ‘merely
because of the failure to provide regulatory traffic control signals, stop signs,
yield right-of-way signs, or speed restriction sign . . . .’ (§ 830.4.) If, on the
other hand, the government installs traffic signals and invites the public to
justifiably rely on them, liability will attach if the signals malfunction,
confusing or misleading motorists, and causing an accident to occur. The
reasoning behind this rule is that the government creates a dangerous condition
and a trap when it operates traffic signals that, for example, direct motorists to
‘go’ in all four directions of an intersection simultaneously, with predictable
results.” (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187,
1194–1195 [45 Cal.Rptr.2d 657], internal citations omitted.)
• “If the government turns off traffic signals entirely to avoid confusion, liability
does not attach. ‘When the [traffic] lights were turned off, their defective
condition could no longer mislead or misdirect the injured party.’ The same
result obtains whether the traffic signals are extinguished by design or by
669

accident.” (Chowdhury, supra, 38 Cal.App.4th at p. 1195, internal citations

omitted.)
• “Although section 830.4 . . . provides that a condition of public property is not
a dangerous one merely because of the failure to provide regulatory traffic
control signals, the absence of such signals for the protection of pedestrians
must be taken into consideration, together with other factors. . . . [T]he lack of
crosswalk markings, better illumination and warning signs became important
factors in the case when the [pedestrian] subway itself was in a dangerous
condition.” (Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 803 [57
Cal.Rptr. 176].)
• “In short, a dangerous condition proven to exist, for reasons other than or in
addition to the mere failure to provide the controls or markings described in
section 830.4, may constitute a proximate cause of injury without regard to
whether such condition also constitutes a ‘trap,’ as described by section 830.8,
to one using the public improvement with due care because of the failure to
post signs different from those dealt with by section 830.4 warning of that
dangerous condition.” (Washington, supra, 219 Cal.App.3d at p. 1537.)
Secondary Sources
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.75
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
(Matthew Bender)
670

1121. Failure to Provide Traffic Warning Signals, Signs, or

Markings (Gov. Code, § 830.8)
A public entity is not responsible for harm caused by the lack of a

[insert relevant warning device] unless a reasonably careful person would
not notice or anticipate a dangerous condition of property without the
[insert relevant warning device].
New September 2003

• No Liability for Failure to Provide Traffic Control. Government Code section
830.8.
• “Section 830.8 provides a limited immunity for public entities exercising their
discretion in the placement of warning signs described in the Vehicle Code.
‘The broad discretion allowed a public entity in the placement of road control
signs is limited, however, by the requirement that there be adequate warning of
dangerous conditions not reasonably apparent to motorists.’ Thus where the
failure to post a warning sign results in a concealed trap for those exercising
due care, section 830.8 immunity does not apply.” (Kessler v. State of
California (1988) 206 Cal.App.3d 317, 321–322 [253 Cal.Rptr. 537], internal
citations omitted.)
• “[A] concealed dangerous condition that is a trap to motorists or pedestrians
may require the posting of a warning sign but the absence of a warning sign
itself is not a dangerous condition.” (Mixon v. Pacific Gas & Electric Co.
• “A public entity may be liable for accidents proximately caused by its failure to
provide a signal, sign, marking or device to warn of a dangerous condition
which endangers the safe movement of traffic ‘and which would not be
reasonably apparent to, and would not have been anticipated by, a person
exercising due care.’ This ‘concealed trap’ statute applies to accidents
proximately caused when, for example, the public entity fails to post signs
warning of a sharp or poorly banked curve ahead on its road or of a hidden
intersection behind a promontory, or where a design defect in the roadway
causes moisture to freeze and create an icy road surface, a fact known to the
public entity but not to unsuspecting motorists, or where road work is being
performed on a highway.” (Chowdhury v. City of Los Angeles (1995) 38
• “[W]arning devices are required under Government Code section 830.8 and 830
(fog) only if a dangerous condition exists.” (Callahan v. City and County of San
Francisco (1971) 15 Cal.App.3d 374, 380 [93 Cal.Rptr. 122].)
671

Secondary Sources
§§ 12.76–12.79
(Matthew Bender)
672

1122. Affirmative Defense—Weather Conditions Affecting Streets

and Highways (Gov. Code, § 831)
[Name of defendant] claims it cannot be held responsible for [name of

plaintiff]’s harm because the harm was caused by [insert weather
condition, e.g., fog, wind, rain, flood, ice, or snow] affecting the use of a
public street or highway. To succeed, [name of defendant] must prove
both of the following:
1. That [insert weather condition, e.g., fog, wind, rain, flood, ice, or
snow] affecting the use of a public street or highway was the
cause of [name of plaintiff]’s harm; and
2. That a reasonably careful person using the public streets and
highways would have noticed the [insert weather condition, e.g.,
fog, wind, rain, flood, ice, or snow] and anticipated its effect on
the use of the street or highway.
New September 2003

Directions for Use
The immunity provided by Government Code section 831 does not apply to: (1)
effects that would not be reasonably apparent to and anticipated by a person
exercising reasonable care, (2) situations where the weather effect combines with
other factors that make the road dangerous, (3) sunlight that blinds drivers, or (4)
where the weather conditions resulted in physical damage to or deterioration of the
street or highway. (Erfurt v. State of California (1983) 141 Cal.App.3d 837,
845–846 [190 Cal.Rptr. 569]; see Flournoy v. State of California (1969) 275
Cal.App.2d 806, 814 [80 Cal.Rptr. 485].)
• No Liability for Weather Conditions. Government Code section 831.
• Weather immunity is an affirmative defense. (Bossi v. State of California (1981)
119 Cal.App.3d 313, 321 [174 Cal.Rptr. 93] [jury properly instructed regarding
section 831, but issue was moot because jury did not reach it]; see also Allyson
v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1319 [62
Cal.Rptr.2d 490].)
• CalTrans’s duty regarding transitory conditions affecting road surface and
highway safety is discretionary, not mandatory. (Allyson, supra, 53 Cal.App.4th
at p. 1319.) Accordingly, section 831 immunity is available to CalTrans in
appropriate circumstances. (Id. at pp. 1320–1321.)
Secondary Sources
673


§§ 12.80–12.81
(Matthew Bender)
674

[Name of defendant] claims that it is not responsible for harm to [name

of plaintiff] caused by the plan or design of the [insert type of property,
e.g., highway]. In order to prove this claim, [name of defendant] must
1. That the plan or design was [prepared in conformity with
standards previously] approved before
[construction/improvement] by the [[legislative body of the public
entity, e.g., city council]/[other body or employee, e.g., city civil
engineer]] exercising [its/specifically delegated] discretionary
authority to approve the plan or design; and
2. That the plan or design of the [e.g., highway] was a substantial
factor in causing harm to [name of plaintiff].
New December 2014; Revised June 2016

Directions for Use
Give this instruction to present the affirmative defense of design immunity to a
claim for liability caused by a dangerous condition on public property. (Gov. Code,
§ 830.6; see Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369 [169
Cal.Rptr.3d 880] [design immunity is an affirmative defense that the public entity
must plead and prove].)
A public entity claiming design immunity must establish three elements: (1) a
causal relationship between the plan or design and the accident; (2) discretionary
approval of the plan or design before construction; and (3) substantial evidence
supporting the reasonableness of the plan or design. (Cornette v. Dept. of
Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The
first two elements, causation and discretionary approval, are issues of fact for the
jury to decide. (Id. at pp. 74–75; see also Alvis v. County of Ventura (2009) 178
Cal.App.4th 536, 550 [100 Cal.Rptr.3d 494] [elements may be resolved as issues of
law only if facts are undisputed].) The third element, substantial evidence of
reasonableness, must be tried by the court, not the jury. (Cornette, supra, 26
Cal.4th at pp. 66−67; see Gov. Code, § 830.6.)
In element 1, select “its” if it is the governing body that has exercised its
discretionary authority. Select “specifically delegated” if it is some other body or
employee.
The discretionary authority to approve the plan or design must be “vested,” which
means that the body or employee actually had the express authority to approve it.
This authority cannot be implied from the circumstances. (Castro v. City of
Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457 [192 Cal.Rptr.3d 376].)
675


• Design Immunity. Government Code section 830.6.
• “The purpose of design immunity ‘is to prevent a jury from second-guessing the
decision of a public entity by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or
approved the plan or design. [Citation.]’ ‘ “[T]o permit reexamination in tort
litigation of particular discretionary decisions where reasonable men may differ
as to how the discretion should be exercised would create too great a danger of
impolitic interference with the freedom of decision-making by those public
officials in whom the function of making such decisions has been vested.” ’ ”
(Martinez, supra, 225 Cal.App.4th at p. 369, internal citations omitted.)
• “Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to
determine whether ‘there is any substantial evidence upon the basis of which (a)
a reasonable public employee could have adopted the plan or design or the
standards therefor or (b) a reasonable legislative body or other body or
employee could have approved the plan or design or the standards therefor.’ ”
(Cornette, supra, 26 Cal.4th at p. 66.)
• “To prove [the discretionary approval element of design immunity], the entity
must show that the design was approved ‘in advance’ of the construction ‘by
the legislative body of the public entity or by some other body or employee
exercising discretionary authority to give such approval or where such plan or
design is prepared in conformity with standards previously so approved
. . . .’ ‘Approval . . . is a vital precondition of the design immunity.’ ”
(Martinez, supra, 225 Cal.App.4th at p. 369, internal citations omitted.)
• “In many cases, the evidence of discretionary authority to approve a design
decision is clear, or even undisputed. For example, ‘[a] detailed plan, drawn up
by a competent engineering firm, and approved by a city engineer in the
exercise of his or her discretionary authority, is persuasive evidence of the
element of prior approval. [Citation.]’ When the discretionary approval issue is
disputed, however, as it was here, we must determine whether the person who
approved the construction had the discretionary authority to do so.” (Martinez,
supra, 225 Cal.App.4th at pp. 370−371, internal citations omitted.)
• “Discretionary approval need not be established with testimony of the individual
who approved the project. A former employee may testify to the entity’s
‘discretionary approval custom and practice’ even if the employee was not
involved in the approval process at the time the challenged plan was approved.”
(Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947 [212 Cal.Rptr.3d
• “[T]he focus of discretional authority to approve a plan or design is fixed by
law and will not be implied. ‘[T]he public entity claiming design immunity
must prove that the person or entity who made the decision is vested with the
authority to do so. Recognizing “implied” discretionary approval would vitiate
this requirement and provide public entities with a blanket release from liability
676

that finds no support in section 830.6.’ ” (Castro, supra, 239 Cal.App.4th at p.

1457.)
• “We conclude that the discretionary approval element of section 830.6 does not
implicate the question whether the employee who approved the plans was aware
of design standards or was aware that the design deviated from those standards.
The issue of the adequacy of the deliberative process with respect to design
standards may be considered in connection with the court’s determination
whether there is substantial evidence that the design was reasonable. In
addition, the discretionary approval element does not require the entity to
demonstrate in its prima facie case that the employee who had authority to and
did approve the plans also had authority to disregard applicable standards.”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 343 [195 Cal.Rptr.3d
773, 362 P.3d 417].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 273, 234 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2855 et seq. (The Rutter Group)
Offıcers: California Government Claims Act, § 464.85[2] (Matthew Bender)
Bender)
677

[Name of defendant] is responsible for harm to [name of plaintiff] caused

by the plan or design of the [insert type of property, e.g., “highway”] if
[name of plaintiff] proves all of the following:
1. That the [insert type of property, e.g., “highway”]’s plan[s] or
design[s] had become dangerous because of a change in physical
conditions;
2. That [name of defendant] had notice of the dangerous condition
created because of the change in physical conditions; and
3. [That [name of defendant] had a reasonable time to obtain the
funds and carry out the necessary corrective work to conform
the property to a reasonable design or plan;]
3. [or]
3. [That [name of defendant] was unable to correct the condition due
to practical impossibility or lack of funds but did not reasonably
attempt to provide adequate warnings of the dangerous
condition.]
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.
• Design Immunity. Government Code section 830.6.
678

• “[W]here a plan or design of a construction of, or improvement to, public

property, although shown to have been reasonably approved in advance or
prepared in conformity with standards previously so approved, as being safe,
nevertheless in its actual operation under changed physical conditions produces
a dangerous condition of public property and causes injury, the public entity
does not retain the statutory immunity from liability conferred on it by section
830.6.” (Dammann v. Golden Gate Bridge, Highway & Transportation Dist.
(2012) 212 Cal.App.4th 335, 343 [150 Cal.Rptr.3d 829], quoting Baldwin v.
State (1972) 6 Cal.3d 424, 438 [99 Cal.Rptr. 145, 491 P.2d 1121], original
italics.)
• “Design immunity does not necessarily continue in perpetuity. To demonstrate
loss of design immunity a plaintiff must also establish three elements: (1) the
plan or design has become dangerous because of a change in physical
conditions; (2) the public entity had actual or constructive notice of the
dangerous condition thus created; and (3) the public entity had a reasonable
time to obtain the funds and carry out the necessary remedial work to bring the
property back into conformity with a reasonable design or plan, or the public
entity, unable to remedy the condition due to practical impossibility or lack of
funds, had not reasonably attempted to provide adequate warnings.” (Cornette v.
Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d
• “The rationale for design immunity is to prevent a jury from second-guessing
the decision of a public entity by reviewing the identical questions of risk that
had previously been considered by the government officers who adopted or
approved the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69, internal
citation omitted.)
• “Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to
determine whether ‘there is any substantial evidence upon the basis of which (a)
a reasonable public employee could have adopted the plan or design or the
standards therefor or (b) a reasonable legislative body or other body or
employee could have approved the plan or design or the standards therefor.’ The
question presented by this case is whether the Legislature intended that the
three issues involved in determining whether a public entity has lost its design
immunity should also be tried by the court. Our examination of the text of
section 830.6, the legislative history of that section, and our prior decisions
leads us to the conclusion that, where triable issues of material fact are
presented, as they were here, a plaintiff has a right to a jury trial as to the
issues involved in loss of design immunity.” (Cornette, supra, 26 Cal.4th at pp.
66–67.)
• “[T]echnological advances . . . do not constitute the ‘changed physical
conditions’ necessary to defeat the [defendant]’s defense of design immunity
under Baldwin and Cornette.” (Dammann, supra, 22 Cal.App.4th at p. 351.)
Secondary Sources
679


Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2865 et seq. (The Rutter Group)
Bender)
680


1. Did [name of defendant] own [or control] the property?
1. Yes No
2. Was the property in a dangerous condition at the time of the
incident?
2. Yes No
3. Did the dangerous condition create a reasonably foreseeable risk
that this kind of incident would occur?
3. Yes No
4. [Did the negligent or wrongful conduct of [name of defendant]’s
create the dangerous condition?]
4. [or]
4. [Did [name of defendant] have notice of the dangerous condition
for a long enough time for [name of defendant] to have protected
against it?]
4. Yes No
5. Was the dangerous condition a substantial factor in causing
5. Yes No
681

VF-1100 DANGEROUS CONDITION OF PUBLIC PROPERTY

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements.
682

DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1100

683

VF-1101. Dangerous Condition of Public Property—Affirmative

Defense—Reasonable Act or Omission (Gov. Code, § 835.4)

1. Did [name of defendant] own [or control] the property?
1. Yes No
2. Was the property in a dangerous condition at the time of the
incident?
2. Yes No
3. Did the dangerous condition create a reasonably foreseeable risk
that this kind of incident would occur?
3. Yes No
4. [Did negligent or wrongful conduct of [name of defendant]’s
create the dangerous condition?]
4. Yes No
4. [or]
4. [Did [name of defendant] have notice of the dangerous condition
for a long enough time to have protected against it?]
4. Yes No
5. Was the dangerous condition a substantial factor in causing
5. Yes No
684


6. [Answer if you answered yes to the first option for question 4:
When you consider the likelihood and seriousness of potential
injury, compared with the practicality and cost of either (a)
taking alternative action that would not have created the risk of
injury, or (b) protecting against the risk of injury, was [name of
defendant]’s [act/specify failure to act] that created the dangerous
condition reasonable under the circumstances?]
6. Yes No
6. [or]
6. [Answer if you answered yes to the second option for question 4:
When you consider the likelihood and seriousness of potential
injury, compared with (a) how much time and opportunity [name
of defendant] had to take action, and (b) the practicality and cost
of protecting against the risk of injury, was [name of defendant]’s
failure to take sufficient steps to protect against the risk of injury
created by the dangerous condition reasonable under the
circumstances?]
6. Yes No
6. If your answer to [either option for] question 6 is no, then
answer question 7. If you answered yes [to both options], stop
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
685

VF-1101 DANGEROUS CONDITION OF PUBLIC PROPERTY

[d. TOTAL $
Signed:
Presiding Juror
Dated:
New September 2003; Revised April 2007, April 2008, October 2008, June 2010,
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.
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.
686

687


PRODUCTS LIABILITY

1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential
Factual Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not
Prescription Drugs)—Essential Factual Elements
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual
Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
1248. Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code,
§ 1714.45)
689

PRODUCTS LIABILITY
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary

VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at
Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse
or Modification
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not
“Basis of Bargain”
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular
Purpose
690

[Name of plaintiff] claims that [he/she] was harmed by a product

[distributed/manufactured/sold] by [name of defendant] that:
[contained a manufacturing defect;] [or]
[was defectively designed;] [or]
[did not include sufficient [instructions] [or] [warning of potential
safety hazards].]
New September 2003

• “Products liability is the name currently given to the area of the law involving
the liability of those who supply goods or products for the use of others to
purchasers, users, and bystanders for losses of various kinds resulting from so-
called defects in those products.” (Johnson v. United States Steel Corp. (2015)
• “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. GM Corp. (1994) 8 Cal.4th
• “Strict liability has been invoked for three types of defects—manufacturing
defects, design defects, and ‘warning defects,’ i.e., inadequate warnings or
failures to warn.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53
Cal.3d 987, 995 [281 Cal.Rptr. 528, 810 P.2d 549].)
• “Under the Restatement [Rest.3d Torts, Products Liability, § 2], a product is
defective if it: ‘(a) contains a manufacturing defect when the product departs
from its intended design even though all possible care was exercised in the
preparation and marketing of the product; [¶] (b) is defective in design when
the foreseeable risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not reasonably safe; [¶]
(c) is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the instructions or warnings renders the product not reasonably
safe.’ ” (Brady v. Calsol, Inc. (2015) 241 Cal.App.4th 1212, 1218–1219 [194
Cal.Rptr.3d 243].)
• “A manufacturer is strictly liable in tort when an article he places on the
691

CACI No. 1200 PRODUCTS LIABILITY
market, knowing that it is to be used without inspection for defects, proves to

have a defect that causes injury to a human being. . . . The purpose of such
liability is to insure that the costs of injuries resulting from defective products
are borne by the manufacturers that put such products on the market rather than
by the injured persons who are powerless to protect themselves.” (Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62–63 [27 Cal.Rptr. 697, 377
P.2d 897].)
• “[S]trict products liability causes of action need not be pled in terms of classic
negligence elements (duty, breach, causation and damages).” (Elsheref v.
Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 464 [167 Cal.Rptr.3d
257].)
• “[S]trict liability has never been, and is not now, absolute liability. As has been
repeatedly expressed, under strict liability the manufacturer does not thereby
become the insurer of the safety of the product’s user.” (Sanchez v. Hitachi
Koki, Co. (2013) 217 Cal.App.4th 948, 956 [158 Cal.Rptr.3d 907].)
• “Beyond manufacturers, anyone identifiable as ‘an integral part of the overall
producing and marketing enterprise’ is subject to strict liability.” (Arriaga v.
CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1534 [85
Cal.Rptr.3d 143].)
• “Generally, the imposition of strict liability hinges on the extent to which a
party was ‘responsible for placing products in the stream of commerce.’ When
the purchase of a product ‘is the primary objective or essence of the transaction,
strict liability applies even to those who are mere conduits in distributing the
product to the consumer.’ In contrast, the doctrine of strict liability is ordinarily
inapplicable to transactions ‘whose primary objective is obtaining services,’ and
to transactions in which the ‘service aspect predominates and any product sale
is merely incidental to the provision of the service.’ Thus, ‘[i]n a given
transaction involving both products and services, liability will often depend
upon the defendant’s role.’ ” (Hernandezcueva v. E.F. Brady Co., Inc. (2015)
• “[U]nder the stream-of-commerce approach to strict liability[,] no precise legal
relationship to the member of the enterprise causing the defect to be
manufactured or to the member most closely connected with the customer is
required before the courts will impose strict liability. It is the defendant’s
participatory connection, for his personal profit or other benefit, with the injury-
producing product and with the enterprise that created consumer demand for
and reliance upon the product (and not the defendant’s legal relationship (such
as agency) with the manufacturer or other entities involved in the
manufacturing-marketing system) which calls for imposition of strict liability.”
(Hernandezcueva, supra, 243 Cal.App.4th at pp. 257–258.)
• “ ‘[S]trict liability is not imposed even if the defendant is technically a “link in
the chain” in getting the product to the consumer market if the judicially
perceived policy considerations are not satisfied. Thus, a defendant will not be
692

PRODUCTS LIABILITY CACI No. 1200
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].)
• “As a provider of services rather than a seller of a product, the hospital is not
subject to strict liability for a defective product provided to the patient during
693

the course of his or her treatment.” (Bigler-Engler v. Breg, Inc. (2017) 7

Cal.App.5th 276, 316 [213 Cal.Rptr.3d 82] [however, causes of action based in
negligence are not affected].)
Secondary Sources
Liability For Defective Products, ¶¶ 2:1207, 2:1215 (The Rutter Group)
(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)
694

1201. Strict Liability—Manufacturing Defect—Essential Factual

Elements
[Name of plaintiff] claims that the [product] contained a manufacturing

defect. 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] contained a manufacturing defect when it left
[name of defendant]’s possession;
4. That the [product]’s defect was a substantial factor in causing
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.
• “[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].)
695

• “A manufacturing defect occurs when an item is manufactured in a substandard

condition.” (Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 792 [64
Cal.Rptr.3d 908].)
• “A product has a manufacturing defect if it differs from the manufacturer’s
intended result or from other ostensibly identical units of the same product line.
In other words, a product has a manufacturing defect if the product as
manufactured does not conform to the manufacturer’s design.” (Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 190 [153 Cal.Rptr.3d
693].)
• “ ‘Regardless of the theory which liability is predicated upon . . . it is obvious
that to hold a producer, manufacturer, or seller liable for injury caused by a
particular product, there must first be proof that the defendant produced,
manufactured, sold, or was in some way responsible for the product . . . .’ ”
(Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874 [148 Cal.Rptr.
• “[W]here a plaintiff alleges a product is defective, proof that the product has
malfunctioned is essential to establish liability for an injury caused by the
defect.” (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 855 [266 Cal.Rptr.
• “We think that a requirement that a plaintiff also prove that the defect made the
product ‘unreasonably dangerous’ places upon him a significantly increased
burden and represents a step backward in the area pioneered by this court.”
(Cronin, supra, 8 Cal.3d at pp. 134–135.)
• “[T]he policy underlying the doctrine of strict liability compels the conclusion
that recovery should not be limited to cases involving latent defects.” (Luque v.
McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163].)
• “A manufacturer is liable only when a defect in its product was a legal cause of
injury. A tort is a legal cause of injury only when it is a substantial factor in
producing the injury.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
• “[S]trict liability should not be imposed upon a manufacturer when injury
results from a use of its product that is not reasonably foreseeable.” (Cronin,
Secondary Sources
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.30 (Matthew Bender)
696

19 California Points and Authorities, Ch. 190, Products Liability, § 190.140

(Matthew Bender)
697

A product contains a manufacturing defect if the product differs from

the manufacturer’s design or specifications or from other typical units
of the same product line.
New September 2003

• The Supreme Court has defined a manufacturing defect as follows: “In general,
a manufacturing or production defect is readily identifiable because a defective
product is one that differs from the manufacturer’s intended result or from other
ostensibly identical units of the same product line.” (Barker v. Lull Engineering
Co. (1978) 20 Cal.3d 413, 429 [143 Cal.Rptr. 225, 573 P.2d 443].)
• “[A] defective product is viewed as one which fails to match the quality of
most like products, and the manufacturer is then liable for injuries resulting
from deviations from the norm . . . .” (Jiminez v. Sears, Roebuck & Co. (1971)
4 Cal.3d 379, 383 [93 Cal.Rptr. 769, 482 P.2d 681].)
698

1203. Strict Liability—Design Defect—Consumer Expectation

Test—Essential Factual Elements
[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
[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;
4. That the [product]’s failure to perform safely was a substantial
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.
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
699

Third Person.
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
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.)
700

• “The critical question, in assessing the applicability of the consumer expectation

test, is not whether the product, when considered in isolation, is beyond the
ordinary knowledge of the consumer, but whether the product, in the context of
the facts and circumstances of its failure, is one about which the ordinary
consumers can form minimum safety expectations.” (Pannu v. Land Rover
North America, Inc. (2011) 191 Cal.App.4th 1298, 1311–1312 [120 Cal.Rptr.3d
605].)
• “Whether the jury should be instructed on either the consumer expectations test
or the risk/benefit test depends upon the particular facts of the case. In a jury
case, the trial court must initially determine as a question of foundation, within
the context of the facts and circumstances of the particular case, whether the
product is one about which the ordinary consumer can form reasonable
minimum safety expectations. ‘If the court concludes it is not, no consumer
expectation instruction should be given. . . . If, on the other hand, the trial
court finds there is sufficient evidence to support a finding that the ordinary
consumer can form reasonable minimum safety expectations, the court should
instruct the jury, consistent with Evidence Code section 403, subdivision (c), to
determine whether the consumer expectation test applies to the product at issue
in the circumstances of the case [or] to disregard the evidence about consumer
expectations unless the jury finds that the test is applicable. If it finds the test
applicable, the jury then must decide whether the product failed to perform as
safely as an ordinary consumer would expect when the product is used in an
intended or reasonably foreseeable manner.’ ” (Saller, supra, 187 Cal.App.4th at
• “[The] dual standard for design defect assures an injured plaintiff protection
from products that either fall below ordinary consumer expectations as to safety
or that, on balance, are not as safely designed as they should be.” (Barker,
• The consumer expectation test “acknowledges the relationship between strict
tort liability for a defective product and the common law doctrine of warranty,
which holds that a product’s presence on the market includes an implied
representation ‘that it [will] safely do the jobs for which it was built.’ ” (Soule,
supra, 8 Cal.4th at p. 562, internal citations omitted.)
• “[T]he jury may not be left free to find a violation of ordinary consumer
expectations whenever it chooses. Unless the facts actually permit an inference
that the product’s performance did not meet the minimum safety expectations of
its ordinary users, the jury must engage in the balancing of risks and benefits
required by the second prong of Barker. Accordingly, as Barker indicated,
instructions are misleading and incorrect if they allow a jury to avoid this risk-
benefit analysis in a case where it is required.” (Soule, supra, 8 Cal.4th at p.
568.)
• “[T]he consumer expectation test is reserved for cases in which the everyday
experience of the product’s users permits a conclusion that the product’s design
violated minimum safety assumptions, and is thus defective regardless of expert
701

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
• “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.
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
• “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
702

abuse. . . . [T]he extent to which designers and manufacturers of dangerous

machinery are required to anticipate safety neglect presents an issue of fact.’ ”
(Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1235 [63
Cal.Rptr.2d 422].)
• “[T]he 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.)
• “The use of asbestos insulation is a product that is within the understanding of
ordinary lay consumers.” (Saller, supra, 187 Cal.App.4th at p. 1236.)
Secondary Sources
Liability For Defective Products, ¶¶ 2:1220–2:1222 (The Rutter Group)
(Matthew Bender)
(Matthew Bender)
703

1204. Strict Liability—Design Defect—Risk-Benefit

Test—Essential Factual Elements—Shifting Burden of Proof
[Name of plaintiff] claims that the [product]’s design caused harm to

[name of plaintiff]. To establish this claim, [name of plaintiff] must prove
[product];
3. That the [product]’s design was a substantial factor in causing
harm to [name of plaintiff].
If [name of plaintiff] has proved these three facts, then your decision on
this claim must be for [name of plaintiff] unless [name of defendant]
proves that the benefits of the [product]’s design outweigh the risks of
the design. In deciding whether the benefits outweigh the risks, you
should consider the following:
(a) The gravity of the potential harm resulting from the use of the
[product];
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of
manufacture;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and]
[(f) [Other relevant factor(s)].]
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.
704

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
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
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,
• “[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
705

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
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
• “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,
• “ ‘[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
• “[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
706

• “Plaintiffs contend aesthetics is not a proper consideration in the risk-benefit

analysis, and the trial court’s ruling to the contrary was an ‘[e]rror in law.’ We
disagree. In our view, much of the perceived benefit of a car lies in its
appearance. A car is not a strictly utilitarian product. We believe that a jury
properly may consider aesthetics in balancing the benefits of a challenged
design against the risk of danger inherent in the design. Although consideration
of the disadvantages of an alternative design (CACI No. 1204, factor (e)) would
encompass any impact on aesthetics, we conclude that there was no error in the
trial court’s approval of the modification listing aesthetics as a relevant factor.”
(Bell, supra, 181 Cal.App.4th at p. 1131, internal citations omitted.)
• “Taken together, section 2, subdivision (b), and section 5 of the Restatement
indicate that a component part manufacturer may be held liable for a defect in
the component. When viewed in its entirety, the Restatement does not support
[defendant]’s argument that ‘[o]nly if the component part analysis establishes
sufficient control over the design of the alleged defect should the component
manufacturer be held to the standard of the risk-benefit test.’ Instead, the test
considering foreseeable risks of harm and alternative designs is applied to the
component part manufacturer when the alleged defect is in the component.”
(Gonzalez, supra, 154 Cal.App.4th at pp. 789–790.)
• “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].)
Secondary Sources
Liability For Defective Products, ¶¶ 2:1223–2:1224 (The Rutter Group)
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, §§ 190.110,
707

1205. Strict Liability—Failure to Warn—Essential Factual

Elements
[Name of plaintiff] claims that the [product] lacked sufficient

[instructions] [or] [warning of potential [risks/side effects/allergic
reactions]]. To establish this claim, [name of plaintiff] must prove all of
the following:
[product];
2. That the [product] had potential [risks/side effects/allergic
reactions] that were [known/ [or] knowable in light of the
[scientific/ [and] medical] knowledge that was generally accepted
in the scientific community] at the time of
[manufacture/distribution/sale];
3. That the potential [risks/side effects/allergic reactions] presented
a substantial danger when the [product] is used or misused in an
intended or reasonably foreseeable way;
4. That ordinary consumers would not have recognized the
potential [risks/side effects/allergic reactions];
5. That [name of defendant] failed to adequately warn [or instruct]
of the potential [risks/side effects/allergic reactions];
7. That the lack of sufficient [instructions] [or] [warnings] was a
[The warning must be given to the prescribing physician and must
include the potential risks, side effects, or allergic reactions that may
follow the foreseeable use of the product. [Name of defendant] had a
continuing duty to warn physicians as long as the product was in use.]
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];
708

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. (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App 5th 276, 319 [213 Cal.Rptr.3d 82], original italics.)
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
Third Person.
• “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
709

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.
• “A duty to warn or disclose danger arises when an article is or should be
710

known to be dangerous for its intended use, either inherently or because of

defects.” (DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148
• “California is well settled into the majority view that knowledge, actual or
constructive, is a requisite for strict liability for failure to warn . . . .”
(Anderson, supra, 53 Cal.3d at p. 1000.)
• “[T]he duty to warn is not conditioned upon [actual or constructive] knowledge
[of a danger] where the defectiveness of a product depends on the adequacy of
instructions furnished by the supplier which are essential to the assembly and
use of its product.” (Midgley v. S. S. Kresge Co. (1976) 55 Cal.App.3d 67, 74
[127 Cal.Rptr. 217].)
• Under Cronin, plaintiffs in cases involving manufacturing and design defects do
not have to prove that a defect made a product unreasonably dangerous;
however, that case “did not preclude weighing the degree of dangerousness in
the failure to warn cases.” (Cavers v. Cushman Motor Sales, Inc. (1979) 95
Cal.App.3d 338, 343 [157 Cal.Rptr. 142].)
• “Two types of warnings may be given. If the product’s dangers may be avoided
or mitigated by proper use of the product, ‘the manufacturer may be required
adequately to instruct the consumer as to how the product should be used.’ If
the risks involved in the use of the product are unavoidable, as in the case of
potential side effects of prescription drugs, the supplier must give an adequate
warning to enable the potential user to make an informed choice whether to use
the product or abstain.” (Buckner v. Milwaukee Electric Tool Corp. (2013) 222
• “[T]he warning requirement is not limited to unreasonably or unavoidably
dangerous products. Rather, directions or warnings are in order where
reasonably required to prevent the use of a product from becoming
unreasonably dangerous. It is the lack of such a warning which renders a
product unreasonably dangerous and therefore defective.” (Gonzales v.
Carmenita Ford Truck Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151 [238
• “In most cases, . . . the adequacy of a warning is a question of fact for the
jury.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320 [273 Cal.Rptr.
214].)
• “There is no duty to warn of known risks or obvious dangers.” (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304 [144 Cal.Rptr.3d 326].)
• “[A] pharmaceutical manufacturer may not be required to provide warning of a
risk known to the medical community.” (Carlin, supra, 13 Cal.4th at p. 1116.)
• “To be liable in California, even under a strict liability theory, the plaintiff must
prove that the defendant’s failure to warn was a substantial factor in causing his
or her injury. (CACI No. 1205.) The natural corollary to this requirement is that
a defendant is not liable to a plaintiff if the injury would have occurred even if
711

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 v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th
1467, 1482 [81 Cal.Rptr.2d 252].)
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.
• “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
712

product inevitably creates a hazardous situation, it is reasonable to expect the

manufacturer to give warnings. Conversely, where the hazard arises entirely
from another product, and the defendant’s product does not create or contribute
to that hazard, liability is not appropriate.’ ” (Sherman v. Hennessy Industries,
Inc. (2015) 237 Cal.App.4th 1133, 1142 [188 Cal.Rptr.3d 769], original italics,
internal citations omitted; see also Hetzel v. Hennessy Industries, Inc. (2016)
247 Cal.App.4th 521, 529 [202 Cal.Rptr.3d 310] [O’Neil does not require
evidence of exclusive use, but rather requires a showing of inevitable use];
Rondon v. Hennessy Industries, Inc. (2016) 247 Cal.App.4th 1367, 1379 [202
Cal.Rptr.3d 773] [same].)
• “[L]ike a manufacturer, a raw material supplier has a duty to warn about
product risks that are known or knowable in light of available medical and
scientific knowledge.” (Webb, supra, 63 Cal.4th at p. 181.)
• “[T]he duty of a component manufacturer or supplier to warn about the hazards
of its products is not unlimited. . . . ‘Making suppliers of inherently safe raw
materials and component parts pay for the mistakes of the finished product
manufacturer would not only be unfair, but it also would impose and intolerable
burden on the business world . . . . Suppliers of versatile materials like chains,
valves, sand gravel, etc., cannot be expected to become experts in the infinite
number of finished products that might conceivably incorporate their multi-use
raw materials or components.’ Thus, cases have subjected claims made against
component suppliers to two related doctrines, the ‘raw material supplier
defense’ and ‘the bulk sales/sophisticated purchaser rule.’ Although the doctrines
are distinct, their application oftentimes overlaps and together they present
factors which should be carefully considered in evaluating the liability of
component suppliers. Those factors include whether the raw materials or
components are inherently dangerous, whether the materials are significantly
altered before integration into an end product, whether the supplier was
involved in designing the end-product and whether the manufacturer of the end
product was in a position to discover and disclose hazards.” (Artiglio v. General
Electric Co. (1998) 61 Cal.App.4th 830, 837 [71 Cal.Rptr.2d 817].)
Secondary Sources
Liability for Defective Products, ¶¶ 2:1275–2:1276 (The Rutter Group)
§§ 460.11, 460.164 (Matthew Bender)
(Matthew Bender)
713

1206. Strict Liability—Failure to Warn—Products Containing

Allergens (Not Prescription Drugs)—Essential Factual Elements
[Name of plaintiff] claims that the [product] was defective because it

lacked sufficient warnings of potential allergic reactions. To establish
[product];
2. That a substantial number of people are allergic to an ingredient
in the [product];
3. That the danger of the ingredient is not generally known, or, if
known, the ingredient is one that a consumer would not
reasonably expect to find in the [product];
4. That [name of defendant] knew or, by the use of scientific
knowledge available at the time, should have known of the
ingredient’s danger and presence;
5. That [name of defendant] failed to provide sufficient warnings
concerning the ingredient’s danger or presence;
7. That the lack of sufficient warnings was a substantial factor in
New September 2003

Directions for Use
A fuller definition of “scientific knowledge” may be appropriate in certain cases.
Such a definition would advise that the defendant did not adequately warn of a
potential risk, side effect, or allergic reaction that was “knowable in light of the
generally recognized and prevailing best scientific and medical knowledge
available,” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d
162, 920 P.2d 1347]), and knowable “ ‘by the application of reasonable, developed
human skill and foresight.’ ” (Livingston v. Marie Callenders Inc. (1999) 72
• This instruction is based on the holding in Livingston v. Marie Callenders, Inc.
(1999) 72 Cal.App.4th 830, 838–839 [85 Cal.Rptr.2d 528], adopting
Restatement Second of Torts, section 402A, comment j, and Restatement Third
of Torts: Products Liability, section 2, comment k, in cases involving allergic
reactions.
714

• “California has adopted the Restatement Second of Torts, section 402A,

comment j, application of strict tort liability failure to warn in the case of
allergies. Several Court of Appeal decisions in the context of allergic reactions
to nonfood products are consistent with or have expressly adopted comment j.”
(Livingston, supra, 72 Cal.App.4th at p. 838.)
• Restatement Second of Torts, section 402A, comment j, states: “In order to
prevent the product from being unreasonably dangerous, the seller may be
required to give directions or warning, on the container, as to its use. The seller
may reasonably assume that those with common allergies, as for example to
eggs or strawberries, will be aware of them, and he is not required to warn
against them. Where, however, the product contains an ingredient to which a
substantial number of the population are allergic, and the ingredient is one
whose danger is not generally known, or if known is one which the consumer
would reasonably not expect to find in the product, the seller is required to give
warning against it, if he has knowledge, or by the application of reasonable,
developed human skill and foresight should have knowledge, of the presence of
the ingredient and the danger. Likewise in the case of poisonous drugs, or those
unduly dangerous . . . .”
• “[A] defendant may be liable to a plaintiff who suffered an allergic reaction to a
product on a strict liability failure to warn theory when: the defendant’s product
contained ‘an ingredient to which a substantial number of the population are
allergic’; the ingredient ‘is one whose danger is not generally known, or if
known is one which the consumer would reasonably not expect to find in the
product’; and where the defendant knew or ‘by the application of reasonable,
developed human skill and foresight should have know[n], of the presence of
the ingredient and the danger.’ ” (Livingston, supra, 72 Cal.App.4th at p. 839.)
• “The recently adopted Restatement Third of Torts: Products Liability, section 2,
comment k, . . . similarly states: ‘Cases of adverse allergic or idiosyncratic
reactions involve a special subset of products that may be defective because of
inadequate warnings . . . . [¶] The general rule in cases involving allergic
reactions is that a warning is required when the harm-causing ingredient is one
to which a substantial number of persons are allergic.’ Further, the Restatement
Third of Torts: Products Liability, section 2, comment k notes: ‘The ingredient
that causes the allergic reaction must be one whose danger or whose presence
in the product is not generally known to consumers. . . . When the presence of
the allergenic ingredient would not be anticipated by a reasonable user or
consumer, warnings concerning its presence are required.’ ” (Livingston, supra,
72 Cal.App.4th at pp. 838–839)
• “[T]hose issues [noted in the Restatement] are for the trier of fact to
determine.” (Livingston, supra, 72 Cal.App.4th at p. 840.)
• Livingston was a food product case; however there are several non-food product
cases that are consistent with or have also expressly adopted comment j. (See
McKinney v. Revlon, Inc. (1992) 2 Cal.App.4th 602, 607, 608 fn. 3 [3
Cal.Rptr.2d 72] [home hair-frosting product]; Oakes v. E.I. DuPont de Nemours
715

& 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
§§ 460.11, 460.165 (Matthew Bender)
716

[Name of defendant] claims that [name of plaintiff]’s own negligence

contributed to [his/her] harm. To succeed on this claim, [name of
1. [insert one or more of the following:]
1. [That [name of plaintiff] negligently [used/misused/modified] the
[product];] [or]
1. [That [name of plaintiff] was [otherwise] negligent;]
1. and
2. That this negligence was a substantial factor in causing [name of
plaintiff]’s harm.
reduced by your determination of the percentage of [name of plaintiff]’s
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.
• “[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.”
717

CACI No. 1207A PRODUCTS LIABILITY
(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
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)
§§ 460.53, 460.182 (Matthew Bender)
(Matthew Bender)
718

[Name of defendant] claims that the [negligence/fault] of [name(s) or

description(s) of nonparty tortfeasor(s)] [also] contributed to [name of
plaintiff]’s harm. To succeed on this claim, [name of defendant] must
1. [Insert one or both of the following:]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)]
negligently modified the [product];] [or]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)] was
[otherwise] [negligent/at fault];]
1. and
2. That this [negligence/fault] was a substantial factor in causing
If you find that the [negligence/ [or] fault] of more than one person,
including [name of defendant][, [name of plaintiff],] and [name(s) or
description(s) of nonparty tortfeasor(s)], was a substantial factor in
causing [name of plaintiff]’s harm, you must then decide how much
responsibility each has by assigning percentages of responsibility to each
person listed on the verdict form. The percentages must total 100
percent.
You will make a separate finding of [name of plaintiff]’s total damages, if
any. In determining an amount of damages, you should not consider any
person’s assigned percentage of responsibility.
[“Person” can mean an individual or a business entity.]
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,
719

CACI No. 1207B PRODUCTS LIABILITY
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.
(Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 325 [213 Cal.Rptr.3d 82].)
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.
• “[T]he comparative indemnity doctrine may be utilized to allocate liability
between a negligent and a strictly liable defendant.” (Safeway Stores, Inc.,
• “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.)
• “This case does not present a situation where several defendants in the chain of
distribution seek apportionment under Proposition 51 based on their relevant
fault for injuries caused by a single defective product. In such a situation, courts
have held that Proposition 51 does not apply and each defendant is liable for
the plaintiff’s full noneconomic damages under traditional principles of joint
and several liability.” (Bigler-Engler, supra, 7 Cal.App 5th at p. 325, fn. 35.)
• “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.
720

PRODUCTS LIABILITY CACI No. 1207B
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 (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
§§ 460.53, 460.182 (Matthew Bender)
(Matthew Bender)
721

[Name of plaintiff] [also] claims that [he/she] was harmed by [name of

defendant]’s negligence and that [he/she/it] should be held responsible
for that harm. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant]
[designed/manufactured/supplied/installed/inspected/repaired/
rented] the [product];
2. That [name of defendant] was negligent in [designing/
manufacturing/supplying/installing/inspecting/repairing/renting]
the [product];

Directions for Use
Use this instruction to allege a manufacturing or design defect under a negligence
theory. Also give CACI No. 1221, Negligence—Basic Standard of Care. If a defect
is also alleged under a theory of strict liability, include “also” in the first sentence.
For an instruction on negligent failure to warn, see CACI No. 1222,
Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements.
This instruction may also be given in an action against a defendant who is alleged
to have negligently supplied, installed, inspected, repaired, or rented the product.
Presumably, the judge will have already determined that the defendant owed the
plaintiff a duty because the product was of a type that could endanger others if it
was negligently made. (See Ky. Fried Chicken of Cal. v. Superior Court (1997) 14
Cal.4th 814, 819 [59 Cal.Rptr.2d 756, 927 P.2d 1260] [existence of a duty is a
question of law for the court].) Accordingly, no duty element is included in this
instruction.
• “As with an action asserted under a strict liability theory, under a negligence
theory the plaintiff must prove a defect caused injury. However, ‘[u]nder a
negligence theory, plaintiff must also prove “an additional element, namely, that
the defect in the product was due to negligence of the defendant.” ’ ” (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304–1305 [144 Cal.Rptr.3d 326],
• “No valid reason appears to require a plaintiff to elect whether to proceed on
722

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
(Matthew Bender)
(Matthew Bender)
(Matthew Bender)
723

A [designer/manufacturer/supplier/installer/repairer] is negligent if [he/

she/it] fails to use the amount of care in [designing/
manufacturing/inspecting/installing/repairing] the product that a
reasonably careful [designer/manufacturer/supplier/installer/ repairer]
would use in similar circumstances to avoid exposing others to a
foreseeable risk of harm.
In determining whether [name of defendant] used reasonable care, you
should balance what [name of defendant] knew or should have known
about the likelihood and severity of potential harm from the product
against the burden of taking safety measures to reduce or avoid the
harm.

Directions for Use
Give this instruction with CACI No. 1220, Negligence—Essential Factual
Elements. This instruction gives guidance to the jury as to how to evaluate element
2 (defendant was negligent) of CACI 1220. For an instruction on negligent failure
to warn, see CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to
Warn—Essential Factual Elements.
The duty to inspect or test is included in the “knew or should have known”
standard of this instruction: “If the manufacturer designs the product safely,
manufactures the product safely, and provides an adequate warning of dangers
inherent in the use of the product, then a failure to test the product cannot, standing
alone, cause any injury. The duty to test is a subpart of the other three duties
because a breach of the duty to test cannot by itself cause any injury.” (Valentine v.
Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1486 [81 Cal.Rptr.2d 252],
quoting Kociemba v. G.D. Searle & Co. (D.Minn. 1989) 707 F.Supp. 1517, 1527.)
• “A manufacturer/seller of a product is under a duty to exercise reasonable care
in its design so that it can be safely used as intended by its buyer/consumer.”
(Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229
Cal.Rptr. 605].) This duty “ ‘extends to all persons within the range of potential
danger.’ ” (Ibid., internal citations omitted.)
• “In determining what precautions, if any, were required under the
circumstances, the likelihood of harm, and the gravity of the harm if it happens,
must be balanced against the burden of the precaution which would be effective
to avoid the harm.” (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062,
• [E]xpert testimony about the safety of a product, in light of industry standards,
724

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
• “[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
725

such that it is reasonably certain, if negligently manufactured or designed, to

place life and limb in peril, the manufacturer is chargeable with negligence if
the defective condition could be disclosed by reasonable inspection and tests,
and such inspection and tests are omitted.” (Putensen, supra, 12 Cal.App.3d at
• “[W]here an article is either inherently dangerous or reasonably certain to place
life and limb in peril when negligently made, a manufacturer owes a duty of
care to those who are the ultimate users. This duty requires reasonable care to
be exercised in assembling component parts and inspecting and testing them
before the product leaves the plant.” (Reynolds v. Natural Gas Equipment, Inc.
Secondary Sources
Hanning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1271, 2:1295, 2:1331, 2:1381 (The Rutter
Group)
(Matthew Bender)
(Matthew Bender)
726

1222. Negligence—Manufacturer or Supplier—Duty to

Warn—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent by not

using reasonable care to warn [or instruct] about the [product]’s
dangerous condition or about facts that made the [product] likely to be
dangerous. To establish this claim, [name of plaintiff] must prove all of
the following:
[product];
2. That [name of defendant] knew or reasonably should have known
that the [product] was dangerous or was likely to be dangerous
when used or misused in a reasonably foreseeable manner;
that users would not realize the danger;
4. That [name of defendant] failed to adequately warn of the danger
[or instruct on the safe use of the [product]];
5. That a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances would have warned of the danger
[or instructed on the safe use of the [product]];
7. That [name of defendant]’s failure to warn [or instruct] was a
[The warning must be given to the prescribing physician and must
include the potential risks or side effects that may follow the foreseeable
use of the product. [Name of defendant] had a continuing duty to warn
physicians as long as the product was in use.]

Directions for Use
Give this instruction in a case involving product liability in which a claim for
failure to warn is included under a negligence theory. For an instruction on failure
to warn under strict liability and for additional sources and authority, see CACI No.
1205, Strict Liability—Failure to Warn—Essential Factual Elements. For
instructions on design and manufacturing defect under a negligence theory, see
CACI No. 1220, Negligence—Essential Factual Elements, and CACI No. 1221,
Negligence—Basic Standard of Care.
727

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.
• “[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
728

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
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, 190.165 et seq.
(Matthew Bender)
729


[he/she/it] failed to [recall/retrofit] the [product]. To establish this claim,
[product];
that the [product] was dangerous or was likely to be dangerous
when used in a reasonably foreseeable manner;
3. That [name of defendant] became aware of this defect after the
[product] was sold;
4. That [name of defendant] failed to [recall/retrofit] [or warn of the
danger of] the [product];
5. That a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances would have [recalled/retrofitted]
the [product];
7. That [name of defendant]’s failure to [recall/retrofit] the [product]
was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use
If the issue concerns a negligently conducted recall, modify this instruction
accordingly.
• “Failure to conduct an adequate retrofit campaign may constitute negligence
apart from the issue of defective design.” (Hernandez v. Badger Construction
Equipment Co. (1994) 28 Cal.App.4th 1791, 1827 [34 Cal.Rptr.2d 732], internal
citation omitted.)
• In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485 [200 Cal.Rptr.
387], the court observed that, where the evidence showed that the manufacturer
became aware of dangers after the product had been on the market, the jury
“could still have found that Clark’s knowledge of the injuries caused by these
features imposed a duty to warn of the danger, and/or a duty to conduct an
adequate retrofit campaign.” The failure to meet the standard of reasonable care
with regard to either of these duties could have supported a finding of
negligence. (Id. at p. 494, original italics.)
730

• In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633 [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]), the court concluded that a jury could reasonably
have found negligence based upon the manufacturer’s failure to retrofit
equipment determined to be unsafe after it was sold, even though the
manufacturer told the equipment’s owners of the safety problems and offered to
correct those problems for $500. (Id. at p. 649.)
• If a customer fails to comply with a recall notice, this will not automatically
absolve the manufacturer from liability: “A manufacturer cannot delegate
responsibility for the safety of its product to dealers, much less purchasers.”
(Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1562–1563 [71
731

1224. Negligence—Negligence for Product Rental/Standard of

Care
[A person who rents products to others for money is negligent if he or

she fails to use reasonable care to:
1. Inspect the products for defects;
2. Make them safe for their intended use; and
3. Adequately warn of any known dangers.]
[or]
[A person who lends products to others without charge only is required
to use reasonable care to warn of known defects.]
New September 2003

Directions for Use
Use this instruction in conjunction with CACI No. 1220, Negligence—Essential
Factual Elements, and instead of CACI No. 1221, Negligence—Basic Standard of
Care, in cases involving rentals.
If the case involves a product lent gratuitously for the mutual benefit of the parties
(e.g., to a prospective purchaser), the first paragraph is applicable and the
instruction needs to be modified.
In a purely gratuitous lending case, if the object is a “dangerous instrumentality”
there may be a duty to conduct a reasonable inspection before lending. (See
Tierstein v. Licht (1959) 174 Cal.App.2d 835, 842 [345 P.2d 341].)
• Duties of Lessor of Personal Property. Civil Code section 1955.
• If a bailment is for hire, or provides a mutual benefit, the bailor has a duty to
the bailee and to third persons to (1) warn of actually known defects and (2) to
use reasonable care to make an examination of the good before lending it “in
order to make certain that it [is] fit for the use known to be intended.”
(Tierstein, supra, 174 Cal.App.2d at pp. 840–841.)
• A bailment, otherwise gratuitous, where made to induce a purchase, has been
considered sufficient to give rise to the same duty of reasonable care on the part
of the bailor as an ordinary bailment for hire. This is regarded as a bailment for
mutual benefit. (Tierstein, supra, 174 Cal.App.2d at p. 842.)
• Under either a negligence or an implied warranty theory, “the essential inquiry
. . . is whether [the defendants] made such inspection of their equipment as
was necessary to discharge their duty of reasonable care.” (McNeal v.
732

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
44 California Forms of Pleading and Practice, Ch. 413, Personal Property Leases,
733

[Name of plaintiff] claims that [he/she/it] was harmed by the [product]

because [name of defendant] represented, either by words or actions, that
the [product] [insert description of alleged express warranty, e.g., “was
safe”], but the [product] was not as represented. To establish this claim,
1. That [name of defendant] [insert one or more of the following:]
1. [gave [name of plaintiff] a written warranty that the [product]
[insert description of written warranty];] [or]
1. [made a [statement of fact/promise] [to/received by] [name of
plaintiff] that the [product] [insert description of alleged express
warranty];] [or]
1. [gave [name of plaintiff] a description of the [product];] [or]
1. [gave [name of plaintiff] a sample or model of the [product];]
2. That the [product] [insert one or more of the following:]
2. [did not perform as [stated/promised];] [or]
2. [did not meet the quality of the [description/sample/model];]
[3. That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] was not as
represented, whether or not [name of defendant] received such
notice;]
4. That [name of defendant] failed to [repair/specify other remedy
provided by warranty] the [product] as required by the warranty;
6. That the failure of the [product] to be as represented was a
[Formal words such as “warranty” or “guarantee” are not required to
create a warranty. It is also not necessary for [name of defendant] to
have specifically intended to create a warranty. But a warranty is not
created if [name of defendant] simply stated the value of the goods or
only gave [his/her] opinion of or recommendation regarding the goods.]
New September 2003; Revised February 2005, June 2015

Directions for Use
This instruction is for use if breach of an express warranty is alleged under the
734

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.
• 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)
• “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,
• “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
735

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,
• “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)
• “[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
• “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
§§ 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)
736

20 California Points and Authorities, Ch. 206, Sales, § 206.60 et seq. (Matthew
Bender)
737

1231. Implied Warranty of Merchantability—Essential Factual

Elements
[Name of plaintiff] [also] claims that [he/she/it] was harmed by the

[product] that [he/she/it] bought from [name of defendant] because the
[product] did not have the quality that a buyer would expect. To
1. That [name of plaintiff] bought the [product] from [name of
defendant];
2. That, at the time of purchase, [name of defendant] was in the
business of selling these goods [or by [his/her/its] occupation held
[himself/herself/itself] out as having special knowledge or skill
regarding these goods];
3. That the [product] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
trade;]
3. [was not fit for the ordinary purposes for which such goods are
used;]
3. [did not conform to the quality established by the parties’ prior
dealings or by usage of trade;]
3. [other ground as set forth in California Uniform Commercial Code
section 2314(2);]
4. [That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] did not
have the expected quality;]
6. That the failure of the [product] to have the expected quality was
a substantial factor in causing [name of plaintiff]’s harm.
New September 2003

Directions for Use
This cause of action could also apply to products that are leased. If so, modify the
instruction accordingly.
738

Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)

• Implied Warranty of Merchantability. California Uniform Commercial Code
section 2314.
• Customary Dealings of Parties. California Uniform Commercial Code section
1303.
• “Merchant” Defined. California Uniform Commercial Code section 2104(1).
• “Goods” Defined. California Uniform Commercial Code section 2105(1).
• “A warranty is a contractual term concerning some aspect of the sale, such as
title to the goods, or their quality or quantity.” (4 Witkin, Summary of
California Law (10th ed. 2005) Sales, § 51.)
• “Unlike express warranties, which are basically contractual in nature, the
implied warranty of merchantability arises by operation of law. It does not
‘impose a general requirement that goods precisely fulfill the expectation of the
buyer. Instead, it provides for a minimum level of quality.’ ” (American Suzuki
Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295–1296 [44
• “[I]n cases involving personal injuries resulting from defective products, the
theory of strict liability in tort has virtually superseded the concept of implied
warranties.” (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 432
[79 Cal.Rptr. 369].)
• “Vertical privity is a prerequisite in California for recovery on a theory of
breach of the implied warranties of fitness and merchantability.” (United States
Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279
• 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,
Inc., supra.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
739

§§ 502.24, 502.51, 502.200–502.214 (Matthew Bender)

20 California Points and Authorities, Ch. 206, Sales, § 206.63 et seq. (Matthew
Bender)
740

1232. Implied Warranty of Fitness for a Particular

Purpose—Essential Factual Elements
[Name of plaintiff] claims that [he/she/it] was harmed by the [product]

that [he/she/it] bought from [name of defendant] because the [product]
was not suitable for [name of plaintiff]’s intended purpose. To establish
1. That [name of plaintiff] bought the [product] from [name of
defendant];
2. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] intended to use the
product for a particular purpose;
3. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] was relying on [his/her/its]
skill and judgment to select or furnish a product that was
suitable for the particular purpose;
4. That [name of plaintiff] justifiably relied on [name of defendant]’s
skill and judgment;
5. That the [product] was not suitable for the particular purpose;
6. [That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] was not
suitable;]
8. That the failure of the [product] to be suitable was a substantial
New September 2003

Directions for Use
This cause of action could also apply to products that are leased. If so, modify the
instruction accordingly.
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
741


• Implied Warranty of Fitness for Particular Purpose. California Uniform
Commercial Code section 2315.
• “A warranty is a contractual term concerning some aspect of the sale, such as
title to the goods, or their quality or quantity.” (4 Witkin, Summary of
California Law (10th ed. 2005) Sales, § 51.)
• “An implied warranty of fitness for a particular purpose arises only where (1)
the purchaser at the time of contracting intends to use the goods for a particular
purpose, (2) the seller at the time of contracting has reason to know of this
particular purpose, (3) the buyer relies on the seller’s skill or judgment to select
or furnish goods suitable for the particular purpose, and (4) the seller at the
time of contracting has reason to know that the buyer is relying on such skill
and judgment.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25 [220
• “ ‘A “particular purpose” differs from the ordinary purpose for which the goods
are used in that it envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which goods are used
are those envisaged in the concept of merchantability and go to uses which are
customarily made of the goods in question.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2 [44 Cal.Rptr.2d 526],
• “The warranty of fitness for a particular purpose is not limited to sales by a
merchant as is the warranty of merchantability. It may be imposed on any seller
possessing sufficient skill and judgment to justify the buyer’s reliance. The
Code drafters suggest, however, that a nonmerchant seller will only in particular
circumstances have that degree of skill and judgment necessary to justify
imposing the warranty.” (4 Witkin, Summary of California Law (10th ed. 2005)
Sales, § 75.)
• “The reliance elements are important to the consideration of whether an implied
warranty of fitness for a particular purpose exists. . . . The major question in
determining the existence of an implied warranty of fitness for a particular
purpose is the reliance by the buyer upon the skill and judgment of the seller to
select an article suitable for his needs.” (Keith, supra, 173 Cal.App.3d at p. 25,
• In Keith, the reviewing court upheld the trial court’s finding that there was no
reliance because “the plaintiff did not rely on the skill and judgment of the
defendants to select a suitable vessel, but that he rather relied on his own
experts.” (Keith, supra, 173 Cal.App.3d at p. 25.)
• “Vertical privity is a prerequisite in California for recovery on a theory of
breach of the implied warranties of fitness and merchantability.” (United States
Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279
742

• 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
(Matthew Bender)
§§ 502.24, 502.51, 502.220 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
743

1233. Implied Warranty of Merchantability for Food—Essential

Factual Elements
[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]
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;
6. That the [food product] was a substantial factor in causing [name
New September 2003

Directions for Use
The advisory committee believes that the judge, not the jury, would decide whether
the food substance is natural or foreign under Mexicali Rose v. Superior Court
(1992) 1 Cal.4th 617 [4 Cal.Rptr.2d 145, 822 P.2d 1292].
• “In the peculiar context of foodstuffs, the theory of breach of an implied
warranty of merchantability has closer affinities to tort law than to contract law
because it allows recovery of damages, without regard to privity of contract, for
personal injuries as well as economic loss.” (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 871 [93
• “If the injury-producing substance is natural to the preparation of the food
served, it can be said that it was reasonably expected by its very nature and the
food cannot be determined unfit or defective. A plaintiff in such a case has no
cause of action in strict liability or implied warranty. If, however, the presence
744

of the natural substance is due to a restaurateur’s failure to exercise due care in

food preparation, the injured patron may sue under a negligence theory.”
(Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 [4 Cal.Rptr.2d 145,
822 P.2d 1292].)
• “If the injury-causing substance is foreign to the food served, then the injured
patron may also state a cause of action in implied warranty and strict liability,
and the trier of fact will determine whether the substance (i) could be
reasonably expected by the average consumer and (ii) rendered the food unfit or
defective.” (Mexicali Rose, supra, 1 Cal.4th at p. 633.)
• The Mexicali Rose decision was limited to commercial restaurant
establishments. (Mexicali Rose, supra, 1 Cal.4th at p. 619, fn. 1.) However, the
reasoning of that case has been applied to supermarkets. (Ford v. Miller Meat
Co. (1994) 28 Cal.App.4th 1196 [33 Cal.Rptr.2d 899].)
• “The term ‘natural’ refers to bones and other substances natural to the product
served, and does not encompass substances such as mold, botulinus bacteria or
other substances (like rat flesh or cow eyes) not natural to the preparation of
the product served.” (Mexicali Rose, supra, 1 Cal.4th at p. 631, fn. 5.)
• It appears that the court would decide as a matter of law if the injury-producing
substance is “natural” or not: “If the injury-producing substance is natural to the
preparation of the food served, it can be said that it was reasonably expected by
its very nature and the food cannot be determined unfit or defective. A plaintiff
in such a case has no cause of action in strict liability or implied warranty.”
(Mexicali Rose, supra, 1 Cal.4th at p. 633.)
Secondary Sources
(Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 268, Food (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
745

1240. Affirmative Defense to Express Warranty—Not “Basis of

Bargain”
[Name of defendant] is not responsible for any harm to [name of plaintiff]

if [name of defendant] proves that [his/her/its] [statement/description/
sample/model/other] was not a basis of the parties’ bargain.
The [statement/description/sample/model/other] is presumed to be a
basis of the bargain. To overcome this presumption, [name of defendant]
must prove that the resulting bargain was not based in any way on the
[statement/description/sample/model/other].
If [name of defendant] proves that [name of plaintiff] had actual
knowledge of the true condition of the [product] before agreeing to buy,
the resulting bargain was not based in any way on the
[statement/description/sample/model/other].
New September 2003; Revoked June 2010; Restored and Revised December 2010
• 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
746

goods; hence no particular reliance on such statements need be shown in order

to weave them into the fabric of the agreement.’ It is clear from the new
language of this code section that the concept of reliance has been purposefully
abandoned.” (Keith, supra, 173 Cal.App.3d at p. 23, internal citations omitted.)
• “The change of the language in section 2313 of the California Uniform
Commercial Code modifies both the degree of reliance and the burden of proof
in express warranties under the code. A warranty statement made by a seller is
presumptively part of the basis of the bargain, and the burden is on the seller to
prove that the resulting bargain does not rest at all on the representation.”
(Keith, supra, 173 Cal.App.3d at p. 23.)
• “[O]nce affirmations have been made, they are woven into the fabric of the
agreement and the seller must present ‘clear affirmative proof’ to remove them
from the agreement.” (Weinstat v. Dentsply International, Inc. (2010) 180
Cal.App.4th 1213, 1234 [103 Cal.Rptr.3d 614.)
• “[W]hile the basis of the bargain of course includes dickered terms to which the
buyer specifically assents, section 2313 itself does not suggest that express
warranty protection is confined to them such that affirmations by the seller that
are not dickered are excluded. Any affirmation, once made, is part of the
agreement unless there is ‘clear affirmative proof’ that the affirmation has been
taken out of the agreement.” (Weinstat, supra, 180 Cal.App.4th at p. 1229.)
• “The official comment to section 2313 is also instructive on this point,
providing: ‘The precise time when words of description or affirmation are made
. . . is not material. The sole question is whether the language . . . [is] fairly
to be regarded as part of the contract.’ Thus, the California Uniform
Commercial Code contemplates that affirmations, promises and descriptions
about the goods contained in product manuals and other materials that are given
to the buyer at the time of delivery can become part of the basis of the bargain,
and can be ‘fairly . . . regarded as part of the contract,’ notwithstanding that
delivery occurs after the purchase price has been paid.” (Weinstat, supra, 180
• “The buyer’s actual knowledge of the true condition of the goods prior to the
making of the contract may make it plain that the seller’s statement was not
relied upon as one of the inducements for the purchase, but the burden is on the
seller to demonstrate such knowledge on the part of the buyer. Where the buyer
inspects the goods before purchase, he may be deemed to have waived the
seller’s express warranties. But, an examination or inspection by the buyer of
the goods does not necessarily discharge the seller from an express warranty if
the defect was not actually discovered and waived.” (Keith, supra, 173
Cal.App.3d at pp. 23–24.)
• “First, . . . affirmations and descriptions in product literature received at the
time of delivery but after payment of the purchase price are, without more, part
of the basis of the bargain, period. Second, the seller’s right to rebut goes to
proof that extracts the affirmations from the ‘agreement’ or ‘bargain of the
747

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.
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)
748

1241. Affirmative Defense—Exclusion or Modification of Express

Warranty
[Name of defendant] claims that [he/she/it] is not responsible for any

harm to [name of plaintiff] because [name of defendant], by words or
conduct, limited [his/her/its] representations regarding the [product]. To
succeed, [name of defendant] must prove that [he/she/it] clearly limited
the representations regarding [insert alleged warranty, e.g.,
“seaworthiness”].
New September 2003

Directions for Use
Limitation can be by words or conduct.
• Creation of Express Warranty by Words or Conduct. California Uniform
Commercial Code section 2316(1).
• The California Uniform Commercial Code Comment to section 2316 states:
“This section is designed principally to deal with those frequent clauses in sales
contracts which seek to exclude ‘all warranties, express or implied.’ It seeks to
protect a buyer from unexpected and unbargained language of express
warranty . . . .”
• “Although section 2316 has drawn criticism for its vagueness, its purpose is
clear. No warranty, express or implied, can be modified or disclaimed unless a
seller clearly limits his liability.” (Hauter v. Zogarts (1975) 14 Cal.3d 104,
118–119 [120 Cal.Rptr. 681, 534 P.2d 377], internal citations omitted.)
• “Because a disclaimer or modification is inconsistent with an express warranty,
words of disclaimer or modification give way to words of warranty unless some
clear agreement between the parties dictates the contrary relationship. At the
very least, section 2316 allows limitation of warranties only by means of words
that clearly communicate that a particular risk falls on the buyer.” (Hauter,
supra, 14 Cal.3d at p. 119, internal citation omitted.)
• “[A]ny disclaimer or modification must be strictly construed against the seller.”
(Hauter, supra, 14 Cal.3d at p. 119.)
• “Strict construction against the person who has both warranted a particular fact
to be true and then attempted to disclaim the warranty is especially appropriate
in light of the fact that ‘[a] disclaimer of an express warranty is essentially
contradictory, . . . .’ ” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152
• “A disclaimer of warranties must be specifically bargained for so that a
749

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
(Matthew Bender)
750


harm to [name of plaintiff] because [name of defendant] eliminated any
implied representations relating to [the quality that a buyer would
expect from the [product]] [or] [the [product]’s fitness for a particular
purpose]. To succeed, [name of defendant] must prove:
[Insert one or more of the following:]
[That the sale of the [product] included notice using words such as
“with all faults,” “as is,” or other language that would have made a
buyer aware that the [product] was being sold without any
guarantees.]
[That, before entering into the contract, [name of plaintiff] examined
the [product/sample/model] as fully as desired and that a complete
examination would have revealed the [product]’s deficiency.]
[That [name of plaintiff] refused, after a demand by [name of
defendant], to examine the [product/sample/model] and that such
examination would have revealed the [product]’s deficiency.]
[That the parties’ prior dealings, course of performance, or usage
of trade had eliminated any implied representations.]
New September 2003

• Exclusion or Modification of Implied Warranties. California Uniform
Commercial Code section 2316.
• The California Uniform Commercial Code Comment to this section states:
“Disclaimer of the implied warranty of merchantability is permitted under
subsection (2), but with the safeguard that such disclaimers must mention
merchantability and in case of a writing must be conspicuous.”
• The California Uniform Commercial Code Comment to section 2316 states:
“Unlike the implied warranty of merchantability, implied warranties of fitness
for a particular purpose may be excluded by general language, but only if it is
in writing and conspicuous.” Accordingly, disclaimers of warranties for a
particular purpose are probably issues for the court only. Section 1201(10)
provides: “A term or clause is conspicuous when it is so written that a
reasonable person against whom it is to operate ought to have noticed it. A
printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is
conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger
or other contrasting type or color. But in a telegram any stated term is
751

‘conspicuous.’ Whether a term or clause is ‘conspicuous’ or not is for decision

by the court.”
• The California Uniform Commercial Code Comment to section 2316 observes
that “oral language of disclaimer may raise issues of fact as to whether reliance
by the buyer occurred and whether the seller had ‘reason to know’ under the
section on implied warranty of fitness for a particular purpose.”
• The California Uniform Commercial Code Comment to section 2316 states that
the three exceptions listed under subdivision (3) “are common factual situations
in which the circumstances surrounding the transaction are in themselves
sufficient to call the buyer’s attention to the fact that no implied warranties are
made or that a certain implied warranty is being excluded.”
• The California Uniform Commercial Code comment to section 2316 states:
“Paragraph (a) of subsection (3) deals with general terms such as ‘as is,’ ‘as
they stand,’ ‘with all faults,’ and the like. Such terms in ordinary commercial
usage are understood to mean that the buyer takes the entire risk as to the
quality of the goods involved.”
• The California Uniform Commercial Code comment to section 2316 states: “In
order to bring the transaction within the scope of ‘refused to examine’ in
paragraph (b), it is not sufficient that the goods are available for inspection.
There must in addition be a demand by the seller that the buyer examine the
goods fully.”
• The California Uniform Commercial Code comment to section 2316 states:
“The particular buyer’s skill and the normal method of examining goods in the
circumstances determine what defects are excluded by the examination.”
• “Interpretation of a written document, where extrinsic evidence is unnecessary,
is a question of law for the trial court to determine.” (Temple, supra, 148
• “A disclaimer of warranties must be specifically bargained for so that a
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].)
• “[A]ny disclaimer or modification must be strictly construed against the seller.”
(Hauter v. Zogarts (1975) 14 Cal.3d 104, 119 [120 Cal.Rptr. 681, 534 P.2d
377].)
Secondary Sources
(Matthew Bender)
752

If a buyer is required to notify the seller that a product [is not as

represented] [does not have the expected quality] [is not suitable] [is in
a harmful condition], [he/she/it] must do so within a reasonable time
after [he/she/it] discovers or should have discovered this. A reasonable
time depends on the circumstances of the case. In determining whether
notice was given within a reasonable time, you must apply a more
relaxed standard to a retail consumer than you would to a merchant
buyer. A buyer notifies a seller by taking such steps as may be
reasonably required to inform the seller [regardless of whether the seller
actually receives the notice].
New September 2003

• Notice to Seller of Breach. California Uniform Commercial Code section
2607(3).
• The California Uniform Commercial Code comment to section 2-607(4) states:
“The time of notification is to be determined by applying commercial standards
to a merchant buyer. ‘A reasonable time’ for notification from a retail consumer
is to be judged by different standards so that in his case it will be extended, for
the rule of requiring notification is designed to defeat commercial bad faith, not
to deprive a good faith consumer of his remedy. [¶] The content of the
notification need merely be sufficient to let the seller know that the transaction
is still troublesome and must be watched. There is no reason to require that the
notification which saves the buyer’s rights under this section must include a
clear statement of all the objections that will be relied on by the buyer, as under
the section covering statements of defects upon rejection (Section 2-605). Nor is
there reason for requiring the notification to be a claim for damages or of any
threatened litigation or other resort to a remedy. The notification which saves
the buyer’s rights under this Article need only be such as informs the seller that
the transaction is claimed to involve a breach, and thus opens the way for
normal settlement through negotiation.”
• “Notification” Defined. California Uniform Commercial Code section 1202(d).
• What is a Reasonable Time. California Uniform Commercial Code section
1205(a).
• A plaintiff is not required to prove that he or she gave notice of a breach of
warranty in personal injury and 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].)
753

• Notice is more likely to be required in disputes between merchants. (See

Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357,
369–370 [62 Cal.Rptr.2d 701].)
• When required, notice must be pleaded and proved. (Vogel v. Thrifty Drug Co.
(1954) 43 Cal.2d 184, 188 [272 P.2d 1].)
• The purpose of the demand for notice is to protect the seller from stale claims
(Whitfield v. Jessup (1948) 31 Cal.2d 826, 828 [193 P.2d 1]; Metowski v. Traid
Corp. (1972) 28 Cal.App.3d 332, 339 [104 Cal.Rptr. 599]) and to give the
defendant an opportunity to repair the defective item, reduce damages, improve
products in the future, and negotiate settlements. (Pollard v. Saxe & Yolles
Development Co. (1974) 12 Cal.3d 374, 380 [115 Cal.Rptr. 648, 525 P.2d 88].)
Secondary Sources
§§ 502.28, 502.100 (Matthew Bender)
754


harm to [name of plaintiff] based on a failure to warn because [name of
plaintiff] is a sophisticated user of the [product]. To succeed on this
defense, [name of defendant] must prove that, at the time of the injury,
[name of plaintiff], because of [his/her] particular position, training,
experience, knowledge, or skill, knew or should have known of the
[product]’s risk, harm, or danger.
New October 2008; Revised December 2014

Directions for Use
Give this instruction as a defense to CACI No. 1205, Strict Liability—Failure to
Warn—Essential Factual Elements, or CACI No. 1222, Negligence—Manufacturer
or Supplier—Duty to Warn—Essential Factual Elements.
In some cases, it may be necessary to expand this instruction to state that the
plaintiff knew or should have known of the particular risk posed by the product, of
the severity of the potential consequences, and how to use the product to reduce or
avoid the risks, to the extent that information was known to the defendant. (See
Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 536 [166
Cal.Rptr.3d 202].)
• “A manufacturer is not liable to a sophisticated user of its product for failure to
warn of a risk, harm, or danger, if the sophisticated user knew or should have
known of that risk, harm, or danger.” (Johnson v. American Standard, Inc.
• “The sophisticated user defense exempts manufacturers from their typical
obligation to provide product users with warnings about the products’ potential
hazards. The defense is considered an exception to the manufacturer’s general
duty to warn consumers, and therefore, in most jurisdictions, if successfully
argued, acts as an affirmative defense to negate the manufacturer’s duty to
warn.” (Johnson, supra, 43 Cal.4th at p. 65, internal citation omitted.)
• “Under the sophisticated user defense, sophisticated users need not be warned
about dangers of which they are already aware or should be aware. Because
these sophisticated users are charged with knowing the particular product’s
dangers, the failure to warn about those dangers is not the legal cause of any
harm that product may cause. The rationale supporting the defense is that ‘the
failure to provide warnings about risks already known to a sophisticated
purchaser usually is not a proximate cause of harm resulting from those risks
suffered by the buyer’s employees or downstream purchasers.’ This is because
the user’s knowledge of the dangers is the equivalent of prior notice.” (Johnson,
755


• “[T]he defense applies equally to strict liability and negligent failure to warn
cases. The duty to warn is measured by what is generally known or should have
been known to the class of sophisticated users, rather than by the individual
plaintiff’s subjective knowledge.” (Johnson, supra, 43 Cal.4th at pp. 65–66,
• “[A] manufacturer is not liable to a sophisticated user for failure to warn, even
if the failure to warn is a failure to provide a warning required by statute.”
(Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 556 [101
Cal.Rptr.3d 726].)
• “The sophisticated user defense concerns warnings. Sophisticated users ‘are
charged with knowing the particular product’s dangers.’ ‘The rationale
supporting the defense is that “the failure to provide warnings about risks
already known to a sophisticated purchaser usually is not a proximate cause of
harm resulting from those risks suffered by the buyer’s employees or
downstream purchasers.” [Citation.]’ [¶] [Plaintiff]’s design defect cause of
action was not concerned with warnings. Instead, he alleged that respondents’
design of their refrigerant was defective. We see no logical reason why a
defense that is based on the need for warning should apply.” (Johnson, supra,
179 Cal.App.4th at p. 559, internal citations omitted.)
• “The relevant time for determining user sophistication for purposes of this
exception to a manufacturer’s duty to warn is when the sophisticated user is
injured and knew or should have known of the risk.” (Johnson, supra, 43
Cal.4th at p. 73.)
• “Johnson did not impute an intermediary’s knowledge to the plaintiff, or charge
him with any knowledge except that which had been made available to him
through his training and which, by reason of his profession and certification, he
should have had. In contrast, [defendant]’s proposed instruction is not based on
the theory that [plaintiff] had the opportunity to acquire any knowledge of the
dangers of asbestos, let alone the obligation to do so. Instead, it contends that
its customers . . . knew or should have known (from public sources) of the
dangers of asbestos, and that its duty to warn [plaintiff] is measured by the
knowledge [the customers] should have had. It is apparent that such a theory
has nothing to do with Johnson.” (Stewart v. Union Carbide Corp. (2010) 190
• “Thus, in actions by employees or servants, the critical issue concerns their
knowledge (or potential knowledge), rather than an intermediary’s
sophistication. [¶] This conclusion flows directly from [Restatement Third of
Torts] section 388 itself. Under section 388, a supplier of a dangerous item to
users ‘directly or through a third person’ is subject to liability for a failure to
warn, when the supplier ‘has no reason to believe that those for whose use the
[item] is supplied will realize its dangerous condition.’ Accordingly, to avoid
liability, there must be some basis for the supplier to believe that the ultimate
756

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
• “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
Secondary Sources
1541–1542
Liability For Defective Products, ¶ 2:1277 (The Rutter Group)
(Matthew Bender)
757


plaintiff]’s claimed harm because the [product] was [misused/ [or]
modified] after it left [name of defendant]’s possession. To succeed on this
defense, [name of defendant] must prove that:
1. The [product] was [misused/ [or] modified] after it left [name of
defendant]’s possession; and
2. The [misuse/ [or] modification] was so highly extraordinary that
it was not reasonably foreseeable to [name of defendant], and
therefore should be considered as the sole cause of [name of
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.)
758


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 Mfg. Co. (1997) 54
• “[P]roduct misuse [is] a defense to strict products liability only when the
defendant prove[s] that an unforeseeable abuse or alteration of the product after
it left the manufacturer’s hands was the sole reason that the product caused
injury.” (Campbell, supra, 22 Cal.3d at p. 56, original italics, internal citations
omitted.)
• “[S]trict liability should not be imposed upon a manufacturer when injury
results from a use of its product that is not reasonably foreseeable.” (Cronin v.
J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126 [104 Cal.Rptr. 433, 501 P.2d
1153].)
• “[Defendant] contends . . . that it cannot be held liable for any design defect
because the accident was attributable to the misuse of the rewinder by
[employer] and [plaintiff]. In order to avoid liability for product defect,
[defendant] was required to prove, as an affirmative defense, that [employer]’s
and [plaintiff]’s misuse of the machine . . . was an unforeseeable, superseding
cause of the injury to [plaintiff].” Perez, supra, 188 Cal.App.4th at pp.
679–680.)
• “[P]roduct misuse may serve as a complete defense when the misuse ‘was so
unforeseeable that it should be deemed the sole or superseding cause.’ . . .
‘[T]he defense of “superseding cause . . .” . . . absolves a tortfeasor, even
though his [or her] conduct was a substantial contributing factor, when an
independent event 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. [Citations.]’ Here,
the trial court reasonably concluded, in substance, that [plaintiff]’s misuse of the
rewinder was so extreme as to be the sole cause of his injury. That conclusion
dispensed with the need to apply principles of comparative fault.” (Perez, supra,
188 Cal.App.4th at p. 685, original italics.)
• “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
759

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
• “[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
• “[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
Liability For Defective Products, ¶ 2:1329 et seq. (The Rutter Group)
California Product Liability Actions, Ch. 2, Liability for Defective Products,
760


(Matthew Bender)
761

1246. Affirmative Defense—Design Defect—Government

Contractor
[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.
New June 2010; Revised December 2010

Directions for Use
This instruction is for use if the defendant’s product whose design is challenged
was provided to the United States government for military use. The essence of the
defense is that the plaintiff should not be able to impose on a government
contractor a duty under state law that is contrary to the duty imposed by the
government contract. (See Boyle v. United Technologies Corp. (1988) 487 U.S. 500,
508–509 [108 S.Ct. 2510, 101 L.Ed.2d 442].)
It has been stated that the defense is not limited to military contracts (see Oxford v.
Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 710 [99 Cal.Rptr.3d 418]),
though no California court has expressly so held.
Different standards and elements apply in a failure-to-warn case. For an instruction
for use in such a case, see CACI No. 1247, Affırmative Defense—Failure to
Warn—Government Contractor.
• “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
and the operation of state law. The court concluded that ‘state law which holds
Government contractors liable for design defects in military equipment does in
some circumstances present a “significant conflict” with federal policy and must
be displaced.’ ” (Oxford, supra, 177 Cal.App.4th at p. 708, quoting Boyle,
762

supra, 487 U.S. at pp. 500, 504, 507, 512.)

• “Liability for design defects in military equipment cannot be imposed, pursuant
to state law, when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States. The first two of
these conditions assure that the suit is within the area where the policy of the
‘discretionary function’ would be frustrated—i.e., they assure that the design
feature in question was considered by a Government officer, and not merely by
the contractor itself. The third condition is necessary because, in its absence, the
displacement of state tort law would create some incentive for the manufacturer
to withhold knowledge of risks, since conveying that knowledge might disrupt
the contract but withholding it would produce no liability. We adopt this
provision lest our effort to protect discretionary functions perversely impede
them by cutting off information highly relevant to the discretionary decision.”
(Boyle, supra, 487 U.S. at pp. 512–513.)
• “[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.)
• “[W]here a purchase does not involve ‘reasonably precise specifications’ bearing
on the challenged design feature, the government necessarily has not made a
considered evaluation of and affirmative judgment call about the design.” (Kase
v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623, 628 [212 Cal.Rptr.3d
198].)
• “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 v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319 [273
Cal.Rptr. 214]; see also Kase, supra, 6 Cal.App.5th at p. 637 [“We continue to
agree with Jackson and Oxford that a product’s commercial availability does not
necessarily foreclose the government contractor defense.”].)
• “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
763

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.)
• “[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.)
• “[I]n order to satisfy the first condition—government ‘approval’ . . . the
government’s involvement must transcend rubber stamping.” (Oxford, supra,
• “[A]pproval must result from a ‘continuous exchange’ and ‘back and forth
dialogue’ between the contractor and the government. When the government
engages in a thorough review of the allegedly defective design and takes an
active role in testing and implementing that design, Boyle’s first element is
met.” (Getz v. Boeing Co. (9th Cir. 2011) 654 F.3d 852, 861, internal citation
omitted.)
• “[T]he operative test for conformity with reasonably precise specifications turns
on whether ‘the alleged defect . . . exist[ed] independently of the design
itself.’ ‘To say that a product failed to conform to specifications is just another
way of saying that it was defectively manufactured.’ Therefore, absent some
evidence of a latent manufacturing defect, a military contractor can establish
conformity with reasonably precise specifications by showing ‘[e]xtensive
government involvement in the design, review, development and testing of a
product’ and by demonstrating ‘extensive acceptance and use of the product
following production.’ ” (Getz, supra, 654 F.3d at p. 864, internal citations
omitted.)
• “Although the source of the government contractor defense is the United States’
sovereign immunity, we have explicitly stated that ‘the government contractor
defense does not confer sovereign immunity on contractors.’ ” (Rodriguez v.
Lockheed Martin Corp. (9th Cir. 2010) 627 F.3d 1259, 1265.)
Secondary Sources
Liability For Defective Products, ¶¶ 2:1270, 2:1316, 2:1631 (The Rutter Group)
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,
764

1247. Affirmative Defense—Failure to Warn—Government

Contractor
[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.
New December 2010

Directions for Use
This instruction is for use if the defendant’s product about which a failure to warn
is alleged (see CACI No. 1205, Strict Liability—Failure to Warn—Essential
Factual Elements, and CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements) was provided to the United
States government for military use. The essence of the defense is that the plaintiff
should not be able to impose on a government contractor a duty under state law
that is contrary to the duty imposed by the government contract. (See Boyle v.
United Technologies Corp. (1988) 487 U.S. 500, 508–509 [108 S.Ct. 2510, 101
L.Ed.2d 442].)
It has been stated that the defense is not limited to military contracts (see Oxford v.
Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 710 [99 Cal.Rptr.3d 418]),
though no California court has expressly so held.
Different standards and elements apply in a design defect case. For an instruction
for use in such a case, see CACI No. 1246, Affırmative Defense—Design
Defect—Government Contractor.
• “The appellate court in Tate [Tate v. Boeing Helicopters (6th Cir. 1995) 55 F.3d
1150, 1157] offered an alternative test for applying the government contractor
defense in the context of failure to warn claims: ‘When state law would
otherwise impose liability for a failure to warn of dangers in using military
equipment, that law is displaced if the contractor can show: (1) the United
765

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,
• “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
766

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
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,
767


(Civ. Code, § 1714.45)
[Name of defendant] claims that it is not responsible for [name of

plaintiff]’s claimed harm because [specify product] is an inherently unsafe
consumer product. To succeed on this defense, [name of defendant] must
1. That [product] is a common consumer product intended for
personal consumption; and
2. That [product] is inherently unsafe;
3. But [product] is no more dangerous than what an ordinary
consumer of the product with knowledge common to the
community would expect.
New June 2016

Directions for Use
This instruction sets forth an immunity defense to product liability for a product
that is clearly recognizable as inherently dangerous. (See Civ. Code, § 1714.45(a).)
The statute requires that the product be “a common consumer product intended for
personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in
comment i to Section 402A of the Restatement (Second) of Torts.” (Civ. Code,
§ 1714.45(a)(2).) This reference is perhaps somewhat confusing because the
Restatement comment makes it clear that sugar, castor oil, alcohol, and butter are
not unreasonably dangerous. The implication from the statutory references is that
although they are not unreasonably dangerous, they are inherently unsafe and thus
within the protection provided to the manufacturer by the statute.
• Nonliability for Inherently Unsafe Consumer Product. Civil Code section
1714.45
• Comment i to Section 402A of the Restatement (Second) of Torts provides:
“Unreasonably dangerous. The rule stated in this Section applies only where the
defective condition of the product makes it unreasonably dangerous to the user
or consumer. Many products cannot possibly be made entirely safe for all
consumption, and any food or drug necessarily involves some risk of harm, if
only from over-consumption. Ordinary sugar is a deadly poison to diabetics,
and castor oil found use under Mussolini as an instrument of torture. That is not
what is meant by “unreasonably dangerous” in this Section. The article sold
must be dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it, with the ordinary knowledge common
to the community as to its characteristics. Good whiskey is not unreasonably
768

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
• “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.,
• “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.
(Matthew Bender)
§§ 460.11, 460.70 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
769

1249. Affirmative Defense—Reliance on Knowledgeable

Intermediary

harm to [name of plaintiff] based on a failure to warn because [name of
defendant] sold [specify product, e.g., asbestos] to an intermediary
purchaser [name of intermediary]; and [name of defendant] relied on
[name of intermediary] to provide adequate warnings to end users of
[e.g., asbestos]. To succeed on this defense, [name of defendant] must
prove:
1. That [name of defendant] sold [specify product, e.g., asbestos] to
[name of intermediary];
[2. That [name of defendant] conveyed adequate warnings of the
particular risks in the use of [e.g., asbestos] to [name of
intermediary].]
[2. [or]
[2. That [name of defendant] knew that [name of intermediary] was
aware of, or should have been aware of, the particular risks of
[e.g., asbestos];]
[2. and
3. That [name of defendant] actually and reasonably relied on [name
of intermediary] to convey adequate warnings of the particular
risks in the use of [e.g., asbestos] to those who, like [name of
plaintiff], might encounter the risk of [e.g., asbestos].
3. Reasonable reliance depends on many factors, including, but not
limited to:
a. The degree of risk posed by [e.g., asbestos];
b. The feasibility of [name of defendant]’s directly warning those
who might encounter [e.g., asbestos] in a finished product;
and
c. The likelihood that the intermediary purchaser will convey
warnings.
c. In determining the likelihood that [name of intermediary]
would convey adequate warnings, consider what a supplier of
[e.g., asbestos] should know about [name of intermediary].
Factors to consider include, but are not limited to:
(1) Whether [name of intermediary] knew or should have been
aware of the specific risks posed by [e.g., asbestos];
770

(2) Whether [name of intermediary] had a reputation for

carefulness; and
(3) Whether [name of intermediary] was willing to, and had
the ability to, communicate adequate warnings to end
users.
New May 2017

Directions for Use
Give this instruction if the defendant supplier of materials claims that it gave
warnings to an intermediary purchaser or relied on an intermediary purchaser to
provide warnings to end users of the product. Reasonable reliance on an
intermediary is an affirmative defense to a claim of failure to warn under both strict
liability and negligence theories. (See Webb v. Special Electric Co., Inc. (2016) 63
This instruction sets forth all of the elements of the defense. The reasonableness of
the defendant’s reliance under factors a–c on the intermediary to warn end users is
a question of fact. (Webb, supra, 63 Cal.4th at p. 180.)
• “When a hazardous raw material is supplied for any purpose, including the
manufacture of a finished product, the supplier has a duty to warn about the
material’s dangers. Under the sophisticated intermediary doctrine, the supplier
can discharge this duty if it conveys adequate warnings to the material’s
purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies
on the purchaser to convey adequate warnings to others, including those who
encounter the material in a finished product. Reasonable reliance depends on
many circumstances, including the degree of risk posed by the material, the
likelihood the purchaser will convey warnings, and the feasibility of directly
warning end users. The doctrine balances the competing policies of
compensating those injured by dangerous products and encouraging conduct that
can feasibly be performed.” (Webb, supra, 63 Cal.4th at p. 177.)
• “To establish a defense under the sophisticated intermediary doctrine, a product
supplier must show not only that it warned or sold to a knowledgeable
intermediary, but also that it actually and reasonably relied on the intermediary
to convey warnings to end users. This inquiry will typically raise questions of
fact for the jury to resolve unless critical facts establishing reasonableness are
undisputed.” (Webb, supra, 63 Cal.4th at pp. 189–190.)
• “Because the sophisticated intermediary doctrine is an affirmative defense, the
supplier bears the burden of proving that it adequately warned the intermediary,
or knew the intermediary was aware or should have been aware of the specific
hazard, and reasonably relied on the intermediary to transmit warnings.” (Webb,
771

• “Like the sophisticated user defense, the sophisticated intermediary defense

applies to failure to warn claims sounding in either strict liability or negligence.
As we have previously observed, ‘there is little functional difference between
the two theories in the failure to warn context.’ ‘[I]n failure to warn cases,
whether asserted on negligence or strict liability grounds, there is but one
unitary theory of liability which is negligence based—the duty to use reasonable
care in promulgating a warning.’ ” (Webb, supra, 63 Cal.4th at p. 187, internal
citations omitted.)
• “The goal of products liability law is not merely to spread risk but also ‘to
“induce conduct that is capable of being performed.” ’ The sophisticated
intermediary doctrine serves this goal by recognizing a product supplier’s duty
to warn but permitting the supplier to discharge this duty in a responsible and
practical way. It appropriately and equitably balances the practical realities of
supplying products with the need for consumer safety.” (Webb, supra, 63
Cal.4th at p. 187, internal citation omitted.)
• “The ‘gravity’ of risk factor encompasses both the ‘serious or trivial character
of the harm’ that is possible and the likelihood that this harm will result. This
factor focuses on the nature of the material supplied. If the substance is
extremely dangerous, the supplier may need to take additional steps, such as
inquiring about the intermediary’s warning practices, to ensure that warnings are
communicated. The overarching question is the reasonableness of the supplier’s
conduct given the potential severity of the harm.” (Webb, supra, 63 Cal.4th at p.
• “The second Restatement factor, measuring the likelihood that the intermediary
will warn, focuses on the reliability of the intermediary. The supplier’s
knowledge about the intermediary’s reliability is judged by an objective
standard, based on what a reasonable supplier would have known under the
circumstances. Relevant concerns for this factor include, for example, the
intermediary’s level of knowledge about the hazard, its reputation for
carefulness or consideration, and its willingness, and ability, to communicate
adequate warnings to end users. Of course, a supplier is always free to inquire
about the intermediary’s warning policies and practices as a means of assessing
the intermediary’s reliability. The Second Restatement suggests economic
motivations may also be important. For example, an intermediary manufacturer
may have an incentive to withhold necessary information about a component
material if warnings would make its product less attractive.” (Webb, supra, 63
Cal.4th at p. 190, internal citations omitted.)
• “It is also significant if, under the circumstances giving rise to the plaintiff’s
claim, the intermediary itself had a legal duty to warn end users about the
particular hazard in question. In general, ‘ “every person has a right to presume
that every other person will perform his duty and obey the law.” ’ As the
Restatement notes, ‘[m]odern 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.’ This consideration may be especially
772

relevant in the context of a raw material or other component supplied for use in
making a finished product. Under California law, a product manufacturer has a
legal duty to warn its customers of all known or knowable dangers arising from
use of the product. However, regardless of the purchaser’s independent duty, the
supplier cannot reasonably ignore known facts that would provide notice of a
substantial risk that the intermediary might fail to warn or that warnings might
fail to reach the consumer.” (Webb, supra, 63 Cal.4th at p. 191, internal
citations omitted.)
• “When raw materials are supplied in bulk for the manufacture of a finished
product, it may be difficult for the supplier to convey warnings to the product’s
ultimate consumers. These suppliers likely have no way to identify ultimate
product users and no ready means to communicate with them.” (Webb, supra,
63 Cal.4th at p. 191.)
• “We recognize that direct proof of actual reliance may be difficult to obtain
when, as in the case of latent disease, the material was supplied to an
intermediary long ago. However, actual reliance is an inference the factfinder
should be able to draw from circumstantial evidence about the parties’
dealings.” (Webb, supra, 63 Cal.4th at p. 193.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1174A
1 California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21[3][c] (Matthew Bender)
§ 460.11[10][b] (Matthew Bender)
(Matthew Bender)
773

VF-1200. Strict Products Liability—Manufacturing

Defect—Comparative Fault at Issue

1. Did [name of defendant] [manufacture/distribute/sell] the
[product]?
1. Yes No
2. Did the [product] contain a manufacturing defect when it left
[name of defendant]’s possession?
2. Yes No
3. Was the manufacturing defect a substantial factor in causing
3. Yes No
4. What are [name of plaintiff]’s damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff] or [name/
description of other person].
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
774

PRODUCTS LIABILITY VF-1200

(3) [other future economic loss $ ]
[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. Yes No
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
7. Was [name/description of other person] negligent?
7. Yes No
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
8. Yes No
you answered no, insert the number zero next to
[name/description of other person]’s name in question 9.
do you assign to:
775

VF-1200 PRODUCTS LIABILITY
[Name/description of other person]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
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.
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.
776

VF-1201. Strict Products Liability—Design Defect—Affirmative

Defense—Misuse or Modification

[product]?
1. Yes No
2. Was the [product] [misused/ [or] modified] after it left [name of
defendant]’s possession in a way that was so highly extraordinary
that it was not reasonably foreseeable to [him/her/it]?
2. Yes No
3. Was the [misuse/ [or] modification] the sole cause of [name of
3. Yes No
[4. Is the [product] one about which an ordinary consumer can form
reasonable minimum safety expectations?
[4. Yes No
[4. If your answer to question 4 is yes, answer question 5. If your
answer is no, skip question 5 and answer question 6.]
[5. Did the [product] fail to perform as safely as an ordinary
consumer would have expected when used or misused in an
intended or reasonably foreseeable way?
[5. Yes No
[5. Regardless of your answer to question 5, answer question 6.]
[6. Did the risk of the [product]’s design outweigh the benefits of the
design?
[6. Yes No
777

[6. If your answer to either question 5 or question 6 is yes, answer

question 7. If you answered no to both questions 5 and 6, stop
sign and date this form.]
7. Was the [product]’s design a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
[d. TOTAL $
Signed:
Presiding Juror
Dated:
778

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.
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 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.
779

VF-1202. Strict Products Liability—Design Defect—Risk-Benefit

Test
Revoked December 2014; See CACI No. VF-1201
780


[product]?
1. Yes No
2. Did the [product] have potential [risks/side effects/allergic
reactions] that were [known/ [or] knowable in light of the
[scientific/ [and] medical] knowledge that was generally accepted
in the scientific community] at the time of
[manufacture/distribution/sale]?
2. Yes No
3. Did the potential [risks/side effects/allergic reactions] present a
substantial danger to persons using or misusing the [product] in
an intended or reasonably foreseeable way?
3. Yes No
4. Would ordinary consumers have recognized the potential [risks/
side effects/allergic reactions]?
4. Yes No
5. Did [name of defendant] fail to adequately warn [or instruct] of
the potential [risks/side effects/allergic reactions]?
5. Yes No
781

6. Was the lack of sufficient [instructions] [or] [warnings] a

6. Yes No
[d. TOTAL $
Signed:
Presiding Juror
Dated:
782

Directions for Use

This verdict form is based on CACI No. 1205, Strict Liability—Failure to
Warn—Essential Factual Elements. 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. If the
comparative fault or negligence of the plaintiff or of third persons is at issue,
questions 7 through 9 of CACI No. VF-1200, Strict Products
Liability—Manufacturing Defect—Comparative Fault at Issue, may be added at the
end.
783

VF-1204. Products Liability—Negligence—Comparative Fault of

Plaintiff at Issue

1. Did [name of defendant]
[design/manufacture/supply/install/inspect/repair/rent] the
[product]?
1. Yes No
2. Was [name of defendant] negligent in [designing/manufacturing/
supplying/installing/inspecting/repairing/renting] the [product]?
2. Yes No
3. Yes No
damages based on the fault, if any, of [name of plaintiff].
784


[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. Yes No
6. Yes No
do you assign to:
TOTAL 100 %
Signed:
Presiding Juror
Dated:
785

December 2016
Directions for Use
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
786


[product]?
1. Yes No
2. Did [name of defendant] know or should [he/she/it] reasonably
have known that the [product] was dangerous or was likely to be
dangerous when used or misused in a reasonably foreseeable
manner?
2. Yes No
3. Did [name of defendant] know or should [he/she/it] reasonably
have known that users would not realize the danger?
3. Yes No
4. Did [name of defendant] fail to adequately warn of the danger [or
instruct on the safe use of] the [product]?
4. Yes No
5. Would a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances have warned of the danger [or
instructed on the safe use of] the [product]?
5. Yes No
787

6. Was [name of defendant]’s failure to warn a substantial factor in

6. Yes No
[d. TOTAL $
Signed:
Presiding Juror
Dated:
788

2016
Directions for Use
This verdict form is based on CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements.
789

VF-1206. Products Liability—Express Warranty—Affirmative

Defense—Not “Basis of Bargain”

1. Did [name of defendant] represent to [name of plaintiff] by a
[statement/description/sample/model/other] that the [product]
[insert description of alleged express warranty]?
1. Yes No
2. Was the resulting bargain between the parties in which [name of
plaintiff] decided to [purchase/use] the [product] based in any way
on [name of defendant]’s [statement/description/sample/model/
other]?
2. Yes No
3. Did the [product] fail to [perform] [or] [have the same quality] as
represented?
3. Yes No
4. Was the failure of the [product] to [perform] [or] [meet the
quality] as represented a substantial factor in causing harm to
4. Yes No
790


[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.”
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?”
791

Do not include question 2 if the affirmative defense is not at issue.
792

VF-1207. Products Liability—Implied Warranty of

Merchantability—Affirmative Defense—Exclusion of Implied
Warranties

1. Did [name of plaintiff] buy the [product] from [name of defendant]?
1. Yes No
2. Was [name of defendant] in the business of selling these goods?
2. Yes No
3. Did the sale of the [product] include notice that would have made
a buyer aware that it was being sold without any representations
relating to the quality that a buyer would expect?
3. Yes No
4. Was the [product] fit for the ordinary purposes for which such
goods are used?
4. Yes No
5. Was the failure of the [product] to have the expected quality a
5. Yes No
you answered no stop here, answer no further questions, and
793


[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
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
794

defendant] within a reasonable time that the [product] [was not/did not perform] as
requested?”
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.
795

VF-1208. Products Liability—Implied Warranty of Fitness for a

Particular Purpose

1. Did [name of plaintiff] buy the [product] from [name of defendant]?
1. Yes No
2. At the time of purchase, did [name of defendant] know or have
reason to know that [name of plaintiff] intended to use the
[product] for a particular purpose?
2. Yes No
3. At the time of purchase, did [name of defendant] know that [name
of plaintiff] was relying on [name of defendant]’s skill and
judgment to select or furnish a product that was suitable for the
particular purpose?
3. Yes No
4. Did [name of plaintiff] justifiably rely on [name of defendant]’s
skill and judgment?
4. Yes No
5. Was the [product] suitable for the particular purpose?
5. Yes No
6. Was the failure of the [product] to be suitable a substantial factor
796


6. Yes No
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1232, Implied Warranty of Fitness for a
797

Particular Purpose—Essential Factual Elements.

Question 2 of this form 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). This form should also be modified if notification is an issue.
798

ASSAULT AND BATTERY

1320. Intent
VF-1300. Battery
VF-1302. Assault
799

[Name of plaintiff] claims that [name of defendant] committed a battery.

following:
1. That [name of defendant] [touched [name of plaintiff]] [or] [caused
[name of plaintiff] to be touched] with the intent to harm or
offend [him/her];
2. That [name of plaintiff] did not consent to the touching; [and]
3. That [name of plaintiff] was harmed [or offended] by [name of
defendant]’s conduct[./; and]
[4. That a reasonable person in [name of plaintiff]’s situation would
have been offended by the touching.]

Directions for Use
Give the bracketed words in element 3 and element 4 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.
For a definition of “intent,” see CACI No. 1320, Intent.
• Consent as Defense. Civil Code section 3515.
• “The essential elements of a cause of action for battery are: (1) defendant
touched plaintiff, or caused plaintiff to be touched, with the intent to harm or
offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was
harmed or offended by defendant’s conduct; and (4) a reasonable person in
plaintiff’s position would have been offended by the touching.” (So v. Shin
(2013) 212 Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257] [citing this
instruction].)
• “A battery is a violation of an individual’s interest in freedom from intentional,
unlawful, harmful or offensive unconsented contacts with his or her person.”
(Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].)
• “Although it is not incorrect to say that battery is an unlawful touching, . . . it
is redundant to use ‘unlawful’ in defining battery in a jury instruction, and may
be misleading to do so without informing the jury what would make the
conduct unlawful.” (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45 [31
800

ASSAULT AND BATTERY CACI No. 1300
• “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
• “[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
• “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
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
801

CACI No. 1300 ASSAULT AND BATTERY
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
(Matthew Bender)
Bender)
802

[Name of plaintiff] claims that [name of defendant] assaulted [him/her]. To

[1. That [name of defendant] acted, intending to cause harmful [or
offensive] contact;
2. That [name of plaintiff] reasonably believed that [he/she] was
about to be touched in a harmful [or an offensive] manner;]
2. [or]
[1. That [name of defendant] threatened to touch [name of plaintiff] in
a harmful [or an offensive] manner;
2. That it reasonably appeared to [name of plaintiff] that [name of
defendant] was about to carry out the threat;]
3. That [name of plaintiff] did not consent to [name of defendant]’s
conduct;
[A touching is offensive if it offends a reasonable sense of personal
dignity.]
[Words alone do not amount to an assault.]

Directions for Use
For a definition of “intent,” see CACI No. 1320, Intent. The last bracketed
sentence should be read in cases in which there is a dispute as to whether the
defendant’s conduct involved more than words.
• “The essential elements of a cause of action for assault are: (1) defendant acted
with intent to cause harmful or offensive contact, or threatened to touch plaintiff
in a harmful or offensive manner; (2) plaintiff reasonably believed she was
about to be touched in a harmful or offensive manner or it reasonably appeared
to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not
consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s
conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013)
212 Cal.App.4th 652, 668−669 [151 Cal.Rptr.3d 257] [citing this instruction].)
• “ ‘Generally speaking, an assault is a demonstration of an unlawful intent by
803

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
Chin et al., California Practice Guide: Employment Litigation, Ch.5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
Bender)
(Matthew Bender)
Bender)
1 California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters West)
804

A plaintiff may express consent by words or acts that are reasonably

understood by another person as consent.
A plaintiff may also express consent by silence or inaction if a
reasonable person would understand that the silence or inaction
intended to indicate consent.
New September 2003

Directions for Use
See CACI No. 1303, Invalid Consent, if there is an issue concerning the validity of
plaintiff’s consent.
of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198
Cal.Rptr. 249].)
• “Consent to an act, otherwise a battery, normally vitiates the wrong.” (Barbara
A. v. John G. (1983) 145 Cal.App.3d 369, 375 [193 Cal.Rptr. 422].)
Secondary Sources
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
(Matthew Bender)
Bender)
1 California Civil Practice: Torts §§ 12:9, 12:18–12:19 (Thomson Reuters)
805

[Name of plaintiff] claims that [his/her] consent [was obtained by fraud/

mistake/duress] [was obtained as a result of [his/her] incapacity] [or that
[name of defendant]’s conduct went beyond the scope of [his/her] limited
consent].
If [name of plaintiff] proves that [his/her] consent was [insert ground for
vitiating consent, e.g., “obtained by fraud,” “exceeded”], then you must
find that [he/she] did not consent.
New September 2003

Directions for Use
For instructions on fraud, mistake, and duress, see other instructions in the
Contracts and Fraud or Deceit series.
• Restatement Second of Torts, section 892B provides:
(1) Except as stated in subsection (2), consent to conduct of another
is effective for all consequences of the conduct and for the invasion
of any interests resulting from it.
(2) If the person consenting to the conduct of another is induced to
consent by a substantial mistake concerning the nature of the
invasion of his interests or the extent of the harm to be expected
from it and the mistake is known to the other or is induced by the
other’s misrepresentation, the consent is not effective for the
unexpected invasion or harm.
(3) Consent is not effective if it is given under duress.
• Consent may be invalidated if the act exceeds the scope of the consent or if the
consent is fraudulently induced. (Barbara A. v. John G. (1983) 145 Cal.App.3d
369, 375 [193 Cal.Rptr. 422].)
• Liability may be found where a physician “intentionally deceive[s] another into
submitting to otherwise offensive touching to achieve a nontherapeutic purpose
known only to the physician.” (Rains v. Superior Court (1984) 150 Cal.App.3d
933, 941 [198 Cal.Rptr. 249].)
806

Secondary Sources
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
Bender)
1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18–12:19
807


plaintiff]’s harm because [he/she] was acting in [self-defense/defense of
another]. To succeed, [name of defendant] must prove both of the
following:
1. That [name of defendant] reasonably believed that [name of
plaintiff] was going to harm [him/her/[insert identification of other
person]]; and
2. That [name of defendant] used only the amount of force that was
reasonably necessary to protect [himself/herself/[insert
identification of other person]].

• Self Defense. Civil Code section 50.
• “When an alleged act of self-defense . . . is at issue, the question of what force
was reasonable and justified is peculiarly one for determination by the trier of
fact.” (Burton v. Sanner (2012) 207 Cal.App.4th 12, 14 [142 Cal.Rptr.3d 782],
original italics.)
• “Self-defense being an affirmative defense, it must, in a civil action, be
established by the defendant by a preponderance of the evidence.” (Bartosh v.
Banning (1967) 251 Cal.App.2d 378, 386 [59 Cal.Rptr. 382].)
• “In a suit for assault and battery, the defendant is not liable if that defendant
reasonably believed, in view of all the circumstances of the case, that the
plaintiff was going to harm him or her and the defendant used only the amount
of force reasonably necessary to protect himself or herself.” (J.J. v. M.F. (2014)
223 Cal.App.4th 968, 976 [167 Cal.Rptr.3d 670] [citing this instruction].)
• “The right to use force against another has long been limited by the condition
that the force be no more than ‘ “that which reasonably appears necessary, in
view of all the circumstances of the case, to prevent the impending injury.”
‘When the amount of force used is justifiable under the circumstances, it is not
willful and the actor may escape liability for intentionally injurious conduct that
is otherwise actionable. But if force is applied in excess of that which is
justified, the actor remains subject to liability for the damages resulting from
the excessive use of force. . . . When an alleged act of self-defense or defense
of property is at issue, the question of what force was reasonable and justified
is peculiarly one for determination by the trier of fact.” (Calvillo-Silva v. Home
Grocery (1998) 19 Cal.4th 714, 730–731 [80 Cal.Rptr.2d 506, 968 P.2d 65],
808

• “The right of self-defense is not limited by actualities. The correct rule . . .

[is]: ‘Generally . . . , the force that one may use in self-defense is that which
reasonably appears necessary, in view of all the circumstances of the case, to
prevent the impending injury.’ In emphasizing that the law of self-defense is a
law of necessity courts should never lose sight of the fact that the necessity
may be either real or apparent.” (Vaughn v. Jonas (1948) 31 Cal.2d 586,
599–600 [191 P.2d 432], internal citations omitted.)
• “The reasonableness standard is an objective standard.” (Burton, supra, 207
Secondary Sources
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery,
§§ 58.19–58.20, 58.70–58.71 (Matthew Bender)
(Matthew Bender)
809

[Name of plaintiff] claims that [name of defendant] harmed [him/her] by

using unreasonable force to [arrest [him/her]/prevent [his/her] escape/
overcome [his/her] resistance/[insert other applicable action]]. To establish
1. That [name of defendant] intentionally touched [name of plaintiff]
[or caused [name of plaintiff] to be touched];
2. That [name of defendant] used unreasonable force to
[arrest/prevent the escape of/overcome the resistance of/insert
other applicable action] [name of plaintiff];
3. That [name of plaintiff] did not consent to the use of that force;
5. That [name of defendant]’s use of unreasonable force was a
[A/An] [insert type of peace offıcer] may use reasonable force to arrest or
detain a person when he or she has reasonable cause to believe that that
person has committed a crime. Even if the [insert type of peace offıcer] is
mistaken, a person being arrested or detained has a duty not to use
force to resist the [insert type of peace offıcer] unless the [insert type of
peace offıcer] is using unreasonable force.
In deciding whether [name of defendant] used unreasonable force, you
must determine the amount of force that would have appeared
reasonable to [a/an] [insert type of peace offıcer] in [name of defendant]’s
position under the same or similar circumstances. You should consider,
(a) The seriousness of the crime at issue;
(b) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
and
(c) Whether [name of plaintiff] was actively resisting arrest or
attempting to evade arrest.
[[A/An] [insert type of peace offıcer] who makes or attempts to make an
arrest is not required to retreat or cease from his or her efforts because
of the resistance or threatened resistance of the person being arrested.]

810

Directions for Use

For additional authorities on excessive force, see the Sources and Authority for
CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements.
• Use of Reasonable Force to Arrest. California Penal Code section 835a.
• Duty to Submit to Arrest. California Penal Code section 834a.
• “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 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,
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, internal citation omitted.)
• “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
811

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],
Secondary Sources
Bender)
(Matthew Bender)
812

[Name of plaintiff] claims that [name of defendant] committed a sexual

battery. To establish this claim, [name of plaintiff] must prove the
following:
1. [(a) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff]’s [sexual organ/anus/
groin/buttocks/ [or] breast], and a sexually offensive contact with
[name of plaintiff] resulted, either directly or indirectly;]
1. [OR]
1. [(b) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff] by use of [name of
defendant]’s [sexual organ/anus/groin/buttocks/ [or] breast], and a
sexually offensive contact with [name of plaintiff] resulted, either
directly or indirectly;]
1. [OR]
1. [(c) That [name of defendant] caused an imminent fear of a
harmful [or offensive] contact with [[name of plaintiff]’s [sexual
organ/anus/groin/buttocks/ [or] breast]/ [or] [name of plaintiff] by
use of [name of defendant]’s [sexual organ/anus/groin/buttocks/
[or] breast]], and a sexually offensive contact with [name of
plaintiff] resulted, either directly or indirectly;]
1. AND
2. That [name of plaintiff] did not consent to the touching; and
3. That [name of plaintiff] was harmed [or offended] by [name of
defendant]’s conduct.
[“Offensive contact” means contact that offends a reasonable sense of
personal dignity.]
New October 2008

Directions for Use
Omit any of the options for element 1 that are not supported by the evidence. If
more than one are at issue, include the word “OR” between them.
Give the bracketed words “or offensive” in element 1 and “or offended” in element
3 and include the optional last sentence 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.
813

For a definition of “intent,” see CACI No. 1320, Intent.

• Sexual Battery. Civil Code section 1708.5.
• “A cause of action for sexual battery under Civil Code section 1708.5 requires
the batterer intend to cause a ‘harmful or offensive’ contact and the batteree
suffer a ‘sexually offensive contact.’ Moreover, the section is interpreted to
require that the batteree did not consent to the contact.” (Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1225 [44 Cal.Rptr.2d 197], internal citation
omitted.)
of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198
Cal.Rptr. 249].)
Secondary Sources
Bender)
Bender)
1 California Civil Practice: Torts §§ 12:7–12:9, 12:36–12:39 (Thomson Reuters)
814

1320. Intent
[Name of defendant] acted intentionally if [he/she] intended to [insert

facts, e.g., “assault [name of plaintiff],” “commit a battery”] or if [he/she]
was substantially certain that the [insert facts, e.g., “assault,” “battery”]
would result from [his/her] conduct.
New September 2003

Directions for Use
This instruction may be used to define intent for other intentional torts, where
appropriate.
• “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 v. King (1991) 228 Cal.App.3d 604, 613 [278 Cal.Rptr. 900], internal
citation omitted.)
• “As a general rule, California law recognizes that ‘. . . every person is
presumed to intend the natural and probable consequences of his acts.’ Thus, a
person who acts willfully may be said to intend ‘ “ ‘those consequences which
(a) represent the very purpose for which an act is done (regardless of the
likelihood of occurrence), or (b) are known to be substantially certain to result
(regardless of desire).’ ” ’ The same definition is applied to many intentional
torts.” (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746 [57 Cal.Rptr.2d
Secondary Sources
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery,
Bender)
815

If [name of defendant] intended to commit a battery or assault on one

person, but by mistake or accident committed the act on [name of
plaintiff], then the battery or assault is the same as if the intended
person had been the victim.
New October 2008

Directions for Use
Use this instruction with CACI No. 1300, Battery—Essential Factual Elements, or
1301, Assault—Essential Factual Elements, if it is alleged that the defendant
intended to batter or assault one person, and mistakenly or accidentally battered or
assaulted the plaintiff.
• “While throwing rocks at trees or into the street ordinarily is an innocent and
lawful pastime, that same act when directed at another person is wrongful. The
evidence at bar . . . warrants an inference that [defendant] threw at [third
party] and inadvertently struck [plaintiff]. In such circumstances the doctrine of
“transferred intent” renders him liable to [plaintiff]. . . . ‘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.’ The rule is not confined to criminal cases, as
argued by respondents.” (Singer v. Marx (1956) 144 Cal.App.2d 637, 642 [301
Secondary Sources
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3][c] (Matthew
Bender)
Bender)
816

VF-1300. Battery

1. Did [name of defendant] [touch [name of plaintiff]] [or] [cause
offend [him/her]?
1. Yes No
2. Did [name of plaintiff] consent to be touched?
2. Yes No
3. Was [name of plaintiff] harmed [or offended] by [name of
defendant]’s conduct?
3. Yes No
[4. Would a reasonable person in [name of plaintiff]’s situation have
been offended by the touching?
[4. Yes No
[lost earnings $ ]
[lost profits $ ]
817

VF-1300 ASSAULT AND BATTERY
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual
Elements.
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.
818

ASSAULT AND BATTERY VF-1300
819


1. Did [name of defendant] [touch [name of plaintiff]] [or] [cause
offend [him/her]?
1. Yes No
2. Did [name of plaintiff] consent to be touched?
2. Yes No
3. Was [name of plaintiff] harmed [or offended] by [name of
defendant]’s conduct?
3. Yes No
[4. Would a reasonable person in [name of plaintiff]’s situation have
been offended by the touching?
[4. Yes No
5. Did [name of defendant] reasonably believe that [name of plaintiff]
was going to harm [him/her/[insert identification of other person]]?
5. Yes No
6. Did [name of defendant] use only the amount of force that was
reasonably necessary to protect [himself/herself/[insert
identification of other person]]?
6. Yes No
820


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
821

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.
822

VF-1302. Assault

[1. Did [name of defendant] act, intending to cause a harmful [or an
offensive] contact with [name of plaintiff] or intending to place
[him/her] in fear of a harmful or an offensive contact?
[1. Yes No
2. Did [name of plaintiff] reasonably believe that [he/she] was about
to be touched in a harmful [or an offensive] manner?
2. Yes No
[1. Did [name of defendant] threaten to touch [name of plaintiff] in a
harmful [or an offensive] manner?
[1. Yes No
2. Did it reasonably appear to [name of plaintiff] that [he/she] was
about to be touched in a harmful [or an offensive] manner?
2. Yes No
3. Did [name of plaintiff] consent to [name of defendant]’s conduct?
3. Yes No
4. Yes No
823


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
824

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.
825


1. Did [name of defendant] intentionally touch [name of plaintiff] [or
cause [name of plaintiff] to be touched]?
1. Yes No
2. Did [name of defendant] use unreasonable force in
[arresting/preventing the escape of/overcoming the resistance of/
[insert other applicable action]] [name of plaintiff]?
2. Yes No
3. Did [name of plaintiff] consent to the use of that force?
3. Yes No
4. Was [name of defendant]’s use of unreasonable force a substantial
4. Yes No
[lost earnings $ ]
[lost profits $ ]
826

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1305, Battery by Peace Offıcer.
827

828

FALSE IMPRISONMENT

1402. False Arrest Without Warrant—Affirmative Defense—Peace
Officer—Probable Cause to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual
Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private
Citizen—Probable Cause to Arrest
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-
Faith” Exception
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right
to Detain for Investigation
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative
Defense—Probable Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative
Defense—Probable Cause to Arrest
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
829

[Name of plaintiff] claims that [he/she] was wrongfully

[restrained/confined/detained] by [name of defendant]. To establish this
1. That [name of defendant] intentionally deprived [name of plaintiff]
of [his/her] freedom of movement by use of [physical barriers/
force/threats of force/menace/fraud/deceit/unreasonable duress];
[and]
2. That the [restraint/confinement/detention] compelled [name of
plaintiff] to stay or go somewhere for some appreciable time,
however short;
3. That [name of plaintiff] did not [knowingly or voluntarily]
consent;
4. That [name of plaintiff] was actually harmed; and
[If you find elements 1, 2, and 3 above, but you find that [name of
plaintiff] was not actually harmed, [he/she] is still entitled to a nominal
sum, such as one dollar.]
[[Name of plaintiff] need not have been aware that [he/she] was being
[restrained/confined/detained] at the time.]

Directions for Use
In element 3, include the words “knowingly or voluntarily” if it is alleged that the
plaintiff’s consent was obtained by fraud. (See Scofield v. Critical Air Medicine,
Inc. (1996) 45 Cal.App.4th 990, 1006, fn. 16 [52 Cal.Rptr.2d 915].)
Include the paragraph about nominal damages if there is a dispute about whether
the plaintiff was actually harmed. (See Scofield, supra, 45 Cal.App.4th at p. 1007.)
Include the last paragraph if applicable. (See Id. at pp. 1006–1007.)
If the defendant alleges that he or she had a lawful privilege, the judge should read
the applicable affirmative defense instructions immediately following this one.
• “The crime of false imprisonment is defined by Penal Code section 236 as the
‘unlawful violation of the personal liberty of another.’ The tort is identically
defined. As we recently formulated it, the tort consists of the ‘ “nonconsensual,
intentional confinement of a person, without lawful privilege, for an appreciable
830

FALSE IMPRISONMENT CACI No. 1400
length of time, however short.” ’ That length of time can be as brief as 15

minutes. Restraint may be effectuated by means of physical force, threat of
force or of arrest, confinement by physical barriers, or by means of any other
form of unreasonable duress.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701,
• “ ‘[T]he tort [of false imprisonment] consists of the “ ‘nonconsensual,
intentional confinement of a person, without lawful privilege, for an appreciable
length of time, however short.’ ” ’ ” (Scofield, supra, 45 Cal.App.4th at p. 1001,
• “The only mental state required to be shown to prove false imprisonment is the
intent to confine, or to create a similar intrusion.” (Fermino, supra, 7 Cal.4th at
p. 716.)
• “[False imprisonment] requires some restraint of the person and that he be
deprived of his liberty or compelled to stay where he does not want to remain,
or compelled to go where he does not wish to go; and that the person be
restrained of his liberty without sufficient complaint or authority.” (Collins v.
County of Los Angeles (1966) 241 Cal.App.2d 451, 459–460 [50 Cal.Rptr. 586],
• “[I]t is clear that force or the threat of force are not the only means by which
the tort of false imprisonment can be achieved. Fraud or deceit or any
unreasonable duress are alternative methods of accomplishing the tort.”
(Scofield, supra, 45 Cal.App.4th at p. 1002, internal citations omitted.)
• “Because ‘[t]here is no real or free consent when it is obtained through fraud’
. . . the [plaintiffs’] confinement on the aircraft was nonconsensual and
therefore actionable as a false imprisonment.” (Scofield, supra, 45 Cal.App.4th
at p. 1006, fn. 16, internal citations omitted.)
• “[C]ontemporaneous awareness of the false imprisonment is not, and need not
be, an essential element of the tort.” (Scofield, supra, 45 Cal.App.4th at p.
1006.)
• “[T]he critical question as to causation in intentional torts is whether the actor’s
conduct is a substantial factor in bringing about the type of harm which he
intended from his original act.” (Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1536, fn. 6 [254 Cal.Rptr. 492], internal citations omitted.)
• “[T]he law of this state clearly allows a cause of action for false imprisonment
notwithstanding the fact a plaintiff suffered merely nominal damage.” (Scofield,
• “In addition to recovery for emotional suffering and humiliation, one subjected
to false imprisonment is entitled to compensation for other resultant harm, such
as loss of time, physical discomfort or inconvenience, any resulting physical
illness or injury to health, business interruption, and damage to reputation, as
well as punitive damages in appropriate cases.” (Scofield, supra, 45 Cal.App.4th
831

CACI No. 1400 FALSE IMPRISONMENT
Secondary Sources
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,
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)
832

1401. False Arrest Without Warrant by Peace Officer—Essential

Factual Elements
[Name of plaintiff] claims that [he/she] was wrongfully arrested by [name

of defendant]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] arrested [name of plaintiff] without a
warrant;
2. That [name of plaintiff] was [actually] harmed; and
New September 2003

Directions for Use
Give CACI No. 1402, False Arrest Without Warrant—Affırmative Defense—Peace
Offıcer—Probable Cause to Arrest, if applicable, immediately after this instruction.
If plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 2:
If you find the above, then the law assumes that [name of plaintiff] has been
harmed and [he/she] is entitled to a nominal sum such as one dollar. [Name of
plaintiff] is also entitled to additional damages if [he/she] proves the following:
The second 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 second element only if nominal damages are also being
sought.
• “Arrest” Defined. Penal Code section 834.
• “ ‘[F]alse arrest’ and ‘false imprisonment’ are not separate torts. False arrest is
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].)
• Government Code section 820.4 provides: “A public employee is not liable for
his act or omission, exercising due care, in the execution or enforcement of any
law. Nothing in this section exonerates a public employee from liability for
false arrest or false imprisonment.”
• A person is liable for false imprisonment if he or she “ ‘authorizes, encourages,
directs, or assists an officer to do an unlawful act, or procures an unlawful
arrest, without process, or participates in the unlawful arrest . . . .’ ” (Du Lac v.
833

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
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
834

1402. False Arrest Without Warrant—Affirmative Defense—Peace

Officer—Probable Cause to Arrest
[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.]
New September 2003

Directions for Use
In the brackets, the judge must insert the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 836 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the officer’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the officer
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
If the first bracketed paragraph is used, the judge should include “in the officer’s
presence” as part of the facts that the jury needs to find if there is a factual dispute
on this point.
• Arrest Without a Warrant. Penal Code section 836(a).
• Felonies and Misdemeanors. Penal Code section 17(a).
• “Peace Officers” Defined. Penal Code section 830 et seq.
• “An officer is not liable for false imprisonment for the arrest without a warrant
of a person whom he has reasonable grounds to believe is guilty of a crime.
835

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].)
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
• “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
(Matthew Bender)
836

1403. False Arrest Without Warrant by Private Citizen—Essential

Factual Elements

the following:
1. That [name of defendant] intentionally caused [name of plaintiff] to
be arrested without a warrant; [and]
[A private person does not need to physically restrain a suspect in order
to make a citizen’s arrest. A private person can make a citizen’s arrest
by calling for a peace officer, reporting the offense, and pointing out the
suspect.]

Directions for Use
Give CACI No. 1404, False Arrest Without Warrant—Affırmative Defense—Private
Citizen—Probable Cause to Arrest, if applicable, immediately after this instruction.
If the plaintiff is seeking nominal damages as an alternative to actual damages,
insert the following paragraph above element 2:
The second sentence, along with the final two elements of this instruction, should
be omitted if plaintiff is seeking nominal damages only. Read “actually” in the
second element only if nominal damages are also being sought.
Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
defendant to prove justification for the arrest.” (Cervantez v. J.C. Penney Co.
837

(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
Secondary Sources
(Matthew Bender)
838

1404. False Arrest Without Warrant—Affirmative Defense—Private

Citizen—Probable Cause to Arrest
[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.]
New September 2003

Directions for Use
The judge must insert in the brackets the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 837 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the citizen’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the citizen
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
• Citizen’s Arrest. Penal Code section 837.
• Felonies and Misdemeanors. Penal Code section 17(a).
• “What is probable cause, as has been often announced, is not a question of fact
for the jury, but one of law for the court, to be decided in accordance with the
circumstances at the time of the detention, unhampered by the outcome of the
charge against the plaintiff of the public offense or by the conclusions of the
trial court.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20],
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
839

offense is apparent to the [person]’s senses.” (People v. Sjosten (1968) 262

Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
(Matthew Bender)
840


the following:
1. [That [name of defendant] arrested [name of plaintiff];]
1. [or]
1. [That [name of defendant] intentionally caused [name of plaintiff]
to be wrongfully arrested;]
2. That [insert facts supporting the invalidity of the warrant or the
unlawfulness of the arrest, e.g., “the warrant for [name of
plaintiff]’s arrest had expired”];

Directions for Use
CACI No. 1406, False Arrest With Warrant—Peace Offıcer—Affırmative
Defense—“Good-Faith” Exception, should be given after this instruction if that
defense is asserted.
If you find both of the above, then the law assumes that [name of plaintiff] has
been harmed and [he/she] is entitled to a nominal sum such as one dollar.
[Name of plaintiff] is also entitled to additional damages if [he/she] proves the
following:
Read “actually” in the third element only if nominal damages are also being
sought.
• Penal Code section 834.
• Public Employee Liability for False Arrest. Government Code section 820.4.
841

Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)

• “ ‘The action for false imprisonment is frequently alleged to have been
committed by reason of some wrongful arrest under some pretended or void
order of some court, in which class of false imprisonment cases it is incumbent
on the plaintiff to allege facts showing or tending to show that such arrest,
under such court procedure, was wrongful, unauthorized and without any
probable cause; . . . .’ ” (Peters v. Bigelow (1934) 137 Cal.App. 135, 139 [30
P.2d 450].)
Secondary Sources
(Matthew Bender)
842

1406. False Arrest With Warrant—Peace Officer—Affirmative

[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.
New September 2003

Directions for Use
The absence-of-malice requirement is satisfied if the officer believes the warrant is
valid and the warrant is valid on its face, notwithstanding any personal hostility or
ill will.
• Immunity for Good-Faith Acts. Civil Code section 43.55(a).
• “With regard to Civil Code section 43.55, the immunity set forth therein for
arrests made pursuant to a regular warrant is only conditional. A failure of any
condition prevents the immunity from attaching to a public entity or employee.”
(Harden v. Bay Area Rapid Transit Dist. (1989) 215 Cal.App.3d 7, 14 [263
Cal.Rptr. 549].)
• “ ‘Malice,’ as that term is used in section 43.55, refers not to the actual physical
execution of the warrant, but to the officer’s state of mind in procuring or
executing the warrant. For instance, malice for purposes of section 43.55 has
been found in situations where the officer purposefully withheld exculpatory
evidence from the magistrate issuing the arrest warrant, where the officer
knowingly used false information in order to obtain the warrant, or where the
officer executes the warrant with knowledge that it has been recalled or is no
longer valid.” (Ting v. U.S. (9th Cir. 1991) 927 F.2d 1504, 1514, internal
citations omitted.)
• Courts have described the meaning of a warrant “regular on its face” as
follows: “Unless there is a clear absence of jurisdiction on the part of the court
or magistrate issuing the process, it is sufficient if upon its face it [the warrant]
appears to be valid in the judgment of an ordinarily intelligent and informed
843

layman.” (Allison v. County of Ventura (1977) 68 Cal.App.3d 689, 697 [137

Cal.Rptr. 542].)
• “Peace officers are not required to investigate the supportive legal proceedings
from which a warrant issues. However, they are required to exercise the
judgment of an ‘ordinarily intelligent and informed layman’ to observe the
blatant and patent inadequacy of a warrant emanating from a civil action which
directs arrest and neither sets bail nor informs the arrestee of the offense
charged for which arrest is ordered.” (Allison, supra, 68 Cal.App.3d at p. 703.)
• “A police officer must use reasonable prudence and diligence to determine
whether a party being arrested is the one described in the warrant. The officer
may not refuse to act upon information offered him which discloses the warrant
is being served on the wrong person. But, the prudence and diligence required
of an arresting officer in determining whether to make an arrest must be
balanced against the need to act swiftly and to make on-the-spot evaluations,
often under chaotic conditions.” (Lopez v. City of Oxnard (1989) 207
Cal.App.3d 1, 7 [254 Cal.Rptr. 556].)
Secondary Sources
(Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment (Matthew
Bender)
844

1407. Unnecessary Delay in Processing/Releasing—Essential

Factual Elements
[Name of plaintiff] claims that [he/she] was wrongfully confined by [name

the following:
1. That [name of defendant] held [name of plaintiff] in custody;
2. That there was an unnecessary delay [insert facts, e.g., “in taking
[name of plaintiff] before a judge” or “in releasing [name of
plaintiff]”];
3. That [name of plaintiff] did not consent to the delay;

Directions for Use
Read “actually” in the fourth element only if nominal damages are also being
sought.
• Time for Arraignment. Penal Code section 825(a).
• Public Employee Liability for False Arrest. Government Code section 820.4.
• “The critical factor is the necessity for any delay in arraignment. These
provisions do not authorize a two-day detention in all cases. Instead, ‘a limit [is
placed] upon what may be considered a necessary delay, and a detention of less
than two days, if unreasonable under the circumstances, is in violation of the
statute’ and of the Constitution.” (People v. Thompson (1980) 27 Cal.3d 303,
329 [165 Cal.Rptr. 289, 611 P.2d 883].)
845

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
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
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.110 et
846

1408. Affirmative Defense—Police Officer’s Lawful Authority to

Detain
[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.
New September 2003

Directions for Use
This instruction is intended to apply to false imprisonment actions not involving an
arrest. The inserted facts must support a finding of reasonable suspicion as a matter
of law.
If the factual issues are too complicated, consider bifurcating the trial.
• “In an action for false arrest and imprisonment, the question of reasonable or
probable cause is ordinarily one for the court, and not for the jury. When the
facts are admitted or are beyond controversy, the question is to be determined
by the court alone. When the facts are controverted or the evidence conflicting,
the determination of their legal effect by the court is necessarily hypothetical
and the jury is to be told that if it finds the facts in a designated way such facts
do or do not amount to probable cause.” (Whaley v. Jansen (1962) 208
Cal.App.2d 222, 227 [25 Cal.Rptr. 184].)
• “Although the line may at times be a fine one, there is a well-settled distinction
in law between an arrest and a detention. A detention is a lesser intrusion upon
a person’s liberty requiring less cause and consisting of briefly stopping a
person for questioning or other limited investigation.” (Cervantez v. J.C. Penney
Co. (1979) 24 Cal.3d 579, 591, fn. 5 [156 Cal.Rptr. 198, 595 P.2d 975].)
his act or omission, exercising due care, in the execution or enforcement of any
law. Nothing in this section exonerates a public employee from liability for
false arrest or false imprisonment.”
• “The Fourth Amendment to the United States Constitution prohibits seizures of
persons, including brief investigative stops, when they are ‘unreasonable.’ Our
state Constitution has a similar provision. A seizure occurs whenever a police
officer ‘by means of physical force or show of authority’ restrains the liberty of
a person to walk away.” (People v. Souza (1994) 9 Cal.4th 224, 229 [36
847


• “A detention . . . has been said to occur ‘if the suspect is not free to leave at
will—if he is kept in the officer’s presence by physical restraint, threat of force,
or assertion of authority.’ ” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th
• “It is settled that circumstances short of probable cause to make an arrest may
justify a police officer stopping and briefly detaining a person for questioning or
other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892 [148
Cal.Rptr. 366, 582 P.2d 957].)
• “A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity.” (Souza, supra, 9 Cal.4th
at p. 231.)
• “The state bears the burden of justifying a detention, as with all warrantless
intrusions.” (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [231 Cal.Rptr.
Secondary Sources
(Matthew Bender)
Bender)
848

[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
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.
New September 2003

• “[W]e conclude that the merchant’s probable cause defense is limited to suits
based upon a detention and does not extend to suits based upon an arrest.”
(Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591 [156 Cal.Rptr. 198,
595 P.2d 975].)
• “Ordinarily, the owner of property, in the exercise of his inherent right to
protect the same, is justified in restraining another who seeks to interfere with
or injure it.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 180 [54 P.2d 20],
• “Merchants who detain individuals whom they have probable cause to believe
are about to injure their property are privileged against a false imprisonment
action. The detention itself must be carried out for a reasonable time and in a
reasonable manner.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716 [30
Cal.Rptr.2d 18, 872 P.2d 559].)
• “We note that the merchant’s privilege is a defense to a false imprisonment
action. As such, the lack of that privilege on defendant’s part need not be
specifically pleaded by plaintiff. Although a false imprisonment must involve an
‘unlawful’ restraint on an individual’s liberty, [plaintiff’s] allegations sufficiently
plead that her confinement was unlawful. Moreover, the question of whether a
detainment was reasonable is generally a question of fact.” (Fermino, supra, 7
Cal.4th at p. 723, fn. 8, internal citations omitted.)
849

• 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
(Matthew Bender)
Bender)
850


1. Did [name of defendant] intentionally deprive [name of plaintiff] of
[his/her] freedom of movement by use of [physical barriers/force/
threats of force/menace/fraud/deceit/unreasonable duress]?
1. Yes No
2. Did [name of plaintiff] consent?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
851

VF-1400 FALSE IMPRISONMENT

[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements.
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.
852

FALSE IMPRISONMENT VF-1400
853

VF-1401. False Imprisonment—No Arrest Involved—Affirmative

Defense—Right to Detain for Investigation

1. Did [name of defendant] intentionally deprive [name of plaintiff] of
[his/her] freedom of movement by use of [physical barriers/force/
threats of force/menace/fraud/deceit/unreasonable duress]?
1. Yes No
2. Did [name of defendant] have the right to detain [name of
plaintiff]?
2. Yes No
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
854


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
nominal damages.
855


856


1. Did [name of defendant] [arrest [name of plaintiff]/intentionally
cause [name of plaintiff] to be arrested] without a warrant?
1. Yes No
2. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
857

Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements.
nominal damages.
858

VF-1403. False Arrest Without Warrant by Peace

Officer—Affirmative Defense—Probable Cause to Arrest

1. Did [name of defendant] arrest [name of plaintiff] without a
warrant?
1. Yes No
2. [Did [insert facts that, if proved, would constitute reasonable cause
to believe that plaintiff had committed a crime in defendant’s
presence]?]
2. [or]
2. [Did [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]?]
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
859

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
Peace Offıcer—Essential Factual Elements, and CACI No. 1402, False Arrest
Without Warrant—Affırmative Defense—Peace Offıcer—Probable Cause to Arrest.
nominal damages.
860

861

VF-1404. False Arrest Without Warrant by Private

Citizen—Affirmative Defense—Probable Cause to Arrest

1. Did [name of defendant] intentionally cause [name of plaintiff] to
be arrested without a warrant?
1. Yes No
2. [Did [name of plaintiff] commit or attempt to commit a crime in
[name of defendant]’s presence?]
2. [or]
2. [Was a felony committed and [insert facts, that if proved, would
establish that defendant had reasonable cause to believe that
plaintiff had committed a felony]?]
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
862

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
Private Citizen—Essential Factual Elements, and CACI No. 1404, False Arrest
Without Warrant—Affırmative Defense—Private Citizen—Probable Cause to Arrest.
nominal damages.
863

864


1. Did [name of defendant] [arrest [name of plaintiff]/intentionally
cause [name of plaintiff] to be arrested]?
1. Yes No
2. [Insert question regarding facts supporting the invalidity of the
warrant or the unlawfulness of the arrest, e.g., “Had the warrant for
[name of plaintiff]’s arrest expired?”]
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
865


[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With
Warrant—Essential Factual Elements.
nominal damages.
866

867

VF-1406. False Arrest With Warrant—Peace Officer—Affirmative


1. Did [name of defendant] arrest [name of plaintiff]?
1. Yes No
2. [Insert question regarding facts supporting the invalidity of the
warrant or the unlawfulness of the arrest, e.g., “Had the warrant for
[name of plaintiff]’s arrest expired?”]
2. Yes No
3. Would the arrest warrant have appeared valid to a reasonably
intelligent and informed person?
3. Yes No
you answered no, skip questions 4 and 5 and answer question 6.
4. Did [name of defendant] believe the warrant was valid?
4. Yes No
5. Did [name of defendant] have a reasonable belief that [name of
plaintiff] was the person referred to in the warrant?
5. Yes No
6. Yes No
868


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
869


nominal damages.
870

VF-1407. False Imprisonment—Unnecessary Delay in Processing/

Releasing

1. Did [name of defendant] hold [name of plaintiff] in custody?
1. Yes No
2. Was there an unnecessary delay [insert facts, e.g., “in taking
[name of plaintiff] before a judge” or “in releasing [name of
plaintiff]”]?
2. Yes No
3. Did [name of plaintiff] consent to the delay?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
871


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1407, Unnecessary Delay in Processing/
Releasing—Essential Factual Elements.
nominal damages.
872

873


MALICIOUS PROSECUTION

1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s
Reliance on Information Provided by Client
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper
Claims
VF-1502. Malicious Prosecution—Wrongful Use of Civil
Proceedings—Affirmative Defense—Reliance on Counsel
875

[Name of plaintiff] claims that [name of defendant] wrongfully caused a

criminal proceeding to be brought against [him/her/it]. To establish this
1. That [name of defendant] was actively involved in causing [name
of plaintiff] to be prosecuted [or in causing the continuation of
the prosecution];
[2. That the criminal proceeding ended in [name of plaintiff]’s favor;]
[3. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were grounds for causing [name
of plaintiff] to be arrested or prosecuted;]
4. That [name of defendant] acted primarily for a purpose other
than to bring [name of plaintiff] to justice;
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 2 above, whether the criminal
proceeding ended in [his/her/its] favor. But before I can do so, you must
decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
[The law [also] requires that the trial judge, rather than the jury, decide
if [name of plaintiff] has proven element 3 above, whether a reasonable
person in [name of defendant]’s circumstances would have believed that
there were grounds for causing [name of plaintiff] to be arrested or
prosecuted. But before I can do so, you must decide whether [name of
plaintiff] has proven the following:
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
876

MALICIOUS PROSECUTION CACI No. 1500
criminal prosecution. If there is an issue as to what it means to be “actively

involved” in element 1, also give CACI No. 1504, Former Criminal
Proceeding—“Actively Involved” Explained.
Malicious prosecution requires that the criminal proceeding have ended in the
plaintiff’s favor (element 2) and that the defendant did not reasonably believe that
there were any grounds (probable cause) to initiate the proceeding (element 3).
Probable cause is to be decided by the court as a matter of law. However, it may
require the jury 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.
Element 4 expresses the malice requirement.
• Public Employee Immunity. Government Code section 821.6.
• “Malicious prosecution consists of initiating or procuring the arrest and
prosecution of another under lawful process, but from malicious motives and
without probable cause.” (Cedars-Sinai Medical Center v. Superior Court
• “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
omitted.)
• “[A] cause of action for malicious prosecution cannot be premised on an arrest
that does not result in formal charges (at least when the arrest is not pursuant to
a warrant).” (Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 917 [217
Cal.Rptr.3d 843] [rejecting Rest.2d Torts, § 654. subd. (2)(c)].)
• “Cases dealing with actions for malicious prosecution against private persons
877

CACI No. 1500 MALICIOUS PROSECUTION
require that the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710,
720 [117 Cal.Rptr. 241, 527 P.2d 865], internal citations omitted.)
• “[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.
• “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
• “ ‘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].)
878

• “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
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.)
• “Generally, the requirements of the doctrine of collateral estoppel ‘will be met
when courts are asked to give preclusive effect to preliminary hearing probable
cause findings in subsequent civil actions for false arrest and malicious
prosecution. [Citation.]’ ‘A determination of probable cause at a preliminary
hearing may preclude a suit for false arrest or for malicious prosecution’].)
‘One notable exception to this rule would be in a situation where the plaintiff
alleges that the arresting officer lied or fabricated evidence presented at the
preliminary hearing. [Citation.] When the officer misrepresents the nature of the
evidence supporting probable cause and that issue is not raised at the
preliminary hearing, a finding of probable cause at the preliminary hearing
would not preclude relitigation of the issue of integrity of the evidence.’
Defendants argue, and we agree, that the stated exception itself contains an
exception—i.e., if the plaintiff alleges that the arresting officer lied or fabricated
evidence at the preliminary hearing, plaintiff challenges that evidence at the
preliminary hearing as being false, and the magistrate decides the credibility
issue in the arresting officer’s favor, then collateral estoppel still may preclude
relitigation of the issue in a subsequent civil proceeding involving probable
cause.” (Greene v. Bank of America (2015) 236 Cal.App.4th 922, 933 [186
• “The plea of nolo contendere is considered the same as a plea of guilty. Upon a
plea of nolo contendere the court shall find the defendant guilty, and its legal
effect is the same as a plea of guilty for all purposes. It negates the element of
a favorable termination, which is a prerequisite to stating a cause of action for
malicious prosecution.” (Cote, supra, 218 Cal.App.3d at p. 803, internal citation
omitted.)
• “ ‘Should a conflict arise as to the circumstances explaining the failure to
prosecute, the trier of fact must exercise its traditional role in deciding the
conflict.’ ” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156
Cal.Rptr. 745], disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882, original italics, internal citations omitted.)
• “ ‘For purposes of a malicious prosecution claim, malice “is not limited to
actual hostility or ill will toward the plaintiff. . . .” [Citation.]’ ‘[I]f the
defendant had no substantial grounds for believing in the plaintiff’s guilt, but,
nevertheless, instigated proceedings against the plaintiff, it is logical to infer
that the defendant’s motive was improper.’ ” (Greene, supra, 216 Cal.App.4th at
pp. 464–465, internal citation omitted.)
• “Malice may be inferred from want of probable cause, but want of probable
cause cannot be inferred from malice, but must be affirmatively shown by the
879

plaintiff.” (Verdier, supra, 152 Cal.App.2d at p. 354.)

Secondary Sources
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.01 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
880

[Name of plaintiff] claims that [name of defendant] wrongfully brought a

lawsuit against [him/her/it]. To establish this claim, [name of plaintiff]
1. That [name of defendant] was actively involved in bringing [or
continuing] the lawsuit;
[2. That the lawsuit ended in [name of plaintiff]’s favor;]
would have believed that there were reasonable grounds to bring
the lawsuit against [name of plaintiff];]
than succeeding on the merits of the claim;
[name of plaintiff] has proven element 2 above, whether the earlier
lawsuit ended in [his/her/its] favor. But before I can do so, you must
if [name of plaintiff] has proven element 3 above, whether [name of
defendant] had reasonable grounds for bringing the earlier lawsuit
against [him/her/it]. But before I can do so, you must decide whether
[name of plaintiff] has proven the following:

Directions for Use
Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 2) and that the defendant did not reasonably believe that there were
any grounds (probable cause) to initiate the proceeding (element 3). Probable cause
881

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.
determined by the court based on the resolution of the disputed facts. (See Sierra
be omitted if there are no disputed facts regarding that element for the jury to
decide.
• “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,
• “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
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
882

because he is compelled to defend against a fabricated claim which not only

subjects him to the panoply of psychological pressures most civil defendants
suffer, but also the additional stress of attempting to resist a suit commenced
out of spite or ill will, often magnified by slanderous allegations in the
pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83],
• “[The litigation privilege of Civil Code section 47] has been interpreted to
apply to virtually all torts except malicious prosecution.” (Kimmel v. Goland
(1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
• “Liability for malicious prosecution is not limited to one who initiates an
action. A person who did not file a complaint may be liable for malicious
prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later
time.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d
912].)
• “[A] cause of action for malicious prosecution lies when predicated on a claim
for affirmative relief asserted in a cross-pleading even though intimately related
to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
• “A claim for malicious prosecution need not be addressed to an entire lawsuit;
it may . . . be based upon only some of the causes of action alleged in the
underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP
• “[A] lawyer is not immune from liability for malicious prosecution simply
because the general area of law at issue is complex and there is no case law
with the same facts that establishes that the underlying claim was untenable.
Lawyers are charged with the responsibility of acquiring a reasonable
understanding of the law governing the claim to be alleged. That achieving such
an understanding may be more difficult in a specialized field is no defense to
alleging an objectively untenable claim.” (Franklin Mint Co., supra, 184
• “Our repeated references in Bertero to the types of harm suffered by an
‘individual’ who is forced to defend against a baseline suit do not indicate . . .
that a malicious prosecution action can be brought only by an individual. On
the contrary, there are valid policies which would be furthered by allowing
nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek
(1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on
remand from United States Supreme Court at 33 Cal.3d 727 [but holding that
public entity cannot sue for malicious prosecution].)
• “[T]he courts have refused to permit malicious prosecution claims when they
are based on a prior proceeding that is (1) less formal or unlike the process in
the superior court (i.e., a small claims hearing, an investigation or application
not resulting in a formal proceeding), (2) purely defensive in nature, or (3) a
continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p.
60.)
883

• “[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)
• “ ‘[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
• “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
884

action is devoid of any attempt during discovery to substantiate allegations in

the complaint, and the court’s dismissal is justified by the plaintiff’s lack of
evidence to submit the case to a jury at trial, a prima facie showing of facts
sufficient to satisfy the ‘favorable termination’ element of a malicious
prosecution claim is established . . . .” (Daniels v. Robbins (2010) 182
• “[T]he existence or absence of probable cause has traditionally been viewed as
a question of law to be determined by the court, rather than a question of fact
for the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and
precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel
Co., supra, 47 Cal.3d at p. 875.)
• “Whereas the malice element is directly concerned with the subjective mental
state of the defendant in instituting the prior action, the probable cause element
calls on the trial court to make an objective determination of the
‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the
basis of the facts known to the defendant, the institution of the prior action was
legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878, original
italics.)
• “ ‘The benchmark for legal tenability is whether any reasonable attorney would
have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve
Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal
citation omitted.)
• “ ‘The facts to be analyzed for probable cause are those known to the defendant
[in the malicious prosecution action] at the time the underlying action was
filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888],
• “A litigant will lack probable cause for his action either if he relies upon facts
which he has no reasonable cause to believe to be true, or if he seeks recovery
upon a legal theory which is untenable under the facts known to him.” (Soukup
v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638,
139 P.3d 30].)
• “[W]e reject their contention that unpled hidden theories of liability are
sufficient to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th
1522, 1542 [161 Cal.Rptr.3d 700].)
885

• “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.)
• “California courts have long embraced the so-called interim adverse judgment
rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or
prosecutor in the underlying case, unless obtained by means of fraud or perjury,
establishes probable cause to bring the underlying action, even though the
judgment or verdict is overturned on appeal or by later ruling of the trial court.’
This rule reflects a recognition 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.’ That is to say,
if a claim succeeds at a hearing on the merits, then, unless that success has
been procured by certain improper means, the claim cannot be ‘totally and
completely without merit.’ Although the rule arose from cases that had been
resolved after trial, the rule has also been applied to the ‘denial of defense
summary judgment motions, directed verdict motions, and similar efforts at
pretrial termination of the underlying case.’ ” (Parrish v. Latham & Watkins
citations omitted.)
• “[T]he fraud exception requires ‘ “knowing use of false and perjured
testimony.” ’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th
438, 452 [117 Cal.Rptr.3d 3].)
• “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
• “[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)
• “[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
claim with knowledge of its falsity, because one who seeks to establish such a
886

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
• “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.
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
• “ ‘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
• “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,
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 554, 557, 562–569,
571–606
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Liability
887

For Unfair Collection Practices—Tort Liability, ¶ 2:455 (The Rutter Group)

Abuse of Process, § 357.10 et seq. (Matthew Bender)
888

[Name of plaintiff] claims that [name of defendant] wrongfully brought an

administrative proceeding against [him/her/it]. To establish this claim,
1. That [name of defendant] was actively involved in bringing [or
continuing] the administrative proceeding;
2. That [name of administrative body] did not conduct an
independent investigation;
[3. That the proceeding ended in [name of plaintiff]’s favor;]
would have believed that there were reasonable grounds to bring
the proceeding against [name of plaintiff];]
than succeeding on the merits of the claim;
[name of plaintiff] has proven element 3 above, whether the criminal
proceeding ended in [his/her/its] favor. But before I can do so, you must
if [name of plaintiff] has proven element 4 above, whether a reasonable
person in [name of defendant]’s circumstances would have believed that
there were there were reasonable grounds for bringing the proceeding
against [name of plaintiff]. But before I can do so, you must decide
whether [name of plaintiff] has proven the following:

889

Directions for Use

Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 3) and that the defendant did not reasonably believe that there were
any grounds (probable cause) to initiate the proceeding (element 4). Probable cause
is to be decided by the court as a matter of law. However, it may require the jury
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or didn’t 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 4 and also the bracketed part of the
instruction that refers to element 4.
determined by the court based on the resolution of the disputed facts. See Sierra
be omitted if there are no disputed facts regarding that element for the jury.
• “ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the
latter has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
• “We adopt the rule set forth in section 680 of the Restatement of Torts and hold
that an action for malicious prosecution may be founded upon the institution of
a proceeding before an administrative agency.” (Hardy v. Vial (1957) 48 Cal.2d
577, 581 [311 P.2d 494].)
injury caused by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts maliciously and
without probable cause.”
• “ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the
latter has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
890


• “[W]e hold that the State Bar, not respondents, initiated, procured or continued
the disciplinary proceedings of [plaintiff]. Therefore, [plaintiff] failed to allege
the elements required for a malicious prosecution of an administrative
proceeding against respondents.” (Stanwyck v. Horne (1983) 146 Cal.App.3d
450, 459 [194 Cal.Rptr. 228].)
• “The [Board of Medical Quality Assurance] is similar to the State Bar
Association. Each is empowered and directed to conduct an independent
investigation of all complaints from the public prior to the filing of an
accusation.” (Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [195
• “Hogen and Stanwyck placed an additional pleading burden upon the plaintiff in
a malicious prosecution case based upon the favorable termination of an
administrative proceeding. Those cases held that since it is the administrative
body, and not the individual initiating the complaint, which actually files the
disciplinary proceeding, a cause of action for malicious prosecution will not lie
if the administrative body conducts an independent preliminary investigation
prior to initiating disciplinary proceedings.” (Johnson v. Superior Court (1994)
• “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
further, the determination of the reasons underlying the dismissal is a question
of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citation omitted.)
• The same rules for determining probable cause in the wrongful institution of
civil proceedings apply to cases alleging the wrongful institution of
administrative proceedings. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657,
1666, fn. 4 [26 Cal.Rptr.2d 778].)
Secondary Sources
891

Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
892

[Name of defendant] claims that [he/she] cannot be held responsible for

[name of plaintiff]’s harm, if any, because [he/she] was a public employee
acting within the scope of [his/her] employment. To establish this
defense, [name of defendant] must prove that [he/she] was acting within
the scope of [his/her] employment.
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.
• 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
Abuse of Process, § 357.23 (Matthew Bender)
893

1504. Former Criminal Proceeding—“Actively Involved”

Explained
[Name of defendant] was “actively involved” in causing [name of plaintiff]

to be prosecuted [or in causing the continuation of the prosecution] if
after learning that there was no probable cause that [name of plaintiff]
had committed a crime, [he/she] sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that [name of
plaintiff] had committed a crime. Merely giving testimony or responding
to law enforcement inquiries is not active involvement.
New June 2015

Directions for Use
Give this instruction in a malicious prosecution case arising from an earlier
criminal proceeding. This instruction explains what is meant by “active
involvement” in a criminal prosecution, as used in element 1 of CACI No. 1500,
Former Criminal Proceeding—Essential Factual Elements.
• “Although a criminal prosecution normally is commenced through the action of
government authorities, a private person may be liable for malicious prosecution
under certain circumstances based on his or her role in the criminal proceeding.
‘The relevant law is clear: “One may be civilly liable for malicious prosecution
without personally signing the complaint initiating the criminal proceeding.” ’ ”
(Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1481 [178 Cal.Rptr.3d 363,
• “Malicious prosecution consists of initiating or procuring the arrest and
prosecution of another under lawful process, but from malicious motives and
without probable cause. . . . . [Italics in original.] The test is whether the
defendant was actively instrumental in causing the prosecution.’ ” (Sullivan v.
County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal. Rptr. 241, 527 P.2d
• “Cases dealing with actions for malicious prosecution against private persons
require that the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
464 [156 Cal.Rptr.3d 901].)
• “Public policy requires that ‘private persons who aid in the enforcement of the
law should be given an effective protection against the prejudice which is likely
to arise from the termination of the prosecution in favor of the accused.’ ”
(Cedars-Sinai Medical Ctr. v. Superior Court (1988) 206 Cal.App.3d 414, 418
[253 Cal.Rptr. 561].)
894

• “[M]erely giving testimony and responding to law enforcement inquiries in an

active criminal proceeding does not constitute malicious prosecution.” (Zucchet,
• “[T]o create liability for malicious prosecution . . . [t]he person must ‘take
[some affirmative action to encourage the prosecution by way of advice or
pressure, as opposed to merely providing information.’ ” (Zucchet, supra, 229
• “According to section 655 of the Restatement, ‘[a] private person who takes an
active part in continuing or procuring the continuation of criminal proceedings
initiated by himself or by another is subject to the same liability for malicious
prosecution as if he had then initiated the proceedings.’ ” (Zucchet, supra, 229
Secondary Sources
895

[Name of defendant] claims that [he/she] had reasonable grounds for

[causing or continuing the criminal proceeding/bringing or continuing a
[lawsuit/administrative proceeding]] because [he/she] was relying on the
advice of an attorney. To succeed, [name of defendant] must prove both
of the following:
1. That [name of defendant] made a full and honest disclosure of all
the important facts known to [him/her] to the [district attorney/
attorney]; and
2. That [he/she] reasonably relied on the [district
attorney/attorney]’s advice.
New September 2003; Renumbered from CACI No. 1505 June 2013
• “ ‘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
Process, §§ 147.37, 147.46 (Matthew Bender)
896

1511. Wrongful Use of Civil Proceedings—Affirmative

Defense—Attorney’s Reliance on Information Provided by Client
When filing a lawsuit for a client, an attorney is entitled to rely on the

facts and information provided by the client.
[Name of attorney defendant] claims that [he/she] had reasonable grounds
for bringing the lawsuit against [name of plaintiff] because [he/she] was
relying on facts and information provided by [his/her] client. To succeed
on this defense, [name of attorney defendant] must prove all of the
following:
1. That [name of client] provided [name of attorney defendant] with
the following information: [specify information on which attorney
relied];
2. That [name of attorney defendant] did not know that this
information was false or inaccurate; and
3. That [name of attorney defendant] relied on the facts and
information provided by the client.
New June 2013; Revised June 2014

Directions for Use
Give this instruction if an attorney defendant alleges that he or she relied on
information provided by the client to establish probable cause. If a civil proceeding
other than a lawsuit is involved, substitute the appropriate word for “lawsuit”
throughout.
The presence or absence of probable cause on undisputed facts is a question of law
for the court. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881
[254 Cal.Rptr. 336, 765 P.2d 498]; CACI No. 1501, Wrongful Use of Civil
Proceedings.) The questions here for the jury to resolve are what information was
communicated to the attorney that established apparent probable cause, and whether
the attorney knew that the information was inaccurate.
The attorney generally has no obligation to investigate the information provided by
the client before filing suit. (See Sheldon Appel Co., supra, 47 Cal.3d at pp.
882–883.) Therefore, there is no liability under a theory that the attorney should
have known that the information was false. Actual knowledge is required. But if
the attorney later learns that the client has not been truthful, the attorney may no
longer rely on the client’s information to continue the lawsuit. (Daniels v. Robbins
• “In general, a lawyer ‘is entitled to rely on information provided by the client.’
897

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
• “[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
• “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
Process, § 147.27 et seq. (Matthew Bender)
898

[Name of plaintiff] claims that [name of defendant] wrongfully [insert legal

procedure, e.g., “took a deposition”]. To establish this claim, [name of
1. That [name of defendant] [insert legal procedure, e.g., “took the
deposition of [name of deponent]”];
2. That [name of defendant] intentionally used this legal procedure
to [insert alleged improper purpose that procedure was not designed
to achieve];
New September 2003

• “ ‘The common law tort of abuse of process arises when one uses the court’s
process for a purpose other than that for which the process was designed.
[Citations.] It has been ‘interpreted broadly to encompass the entire range of
“procedures” incident to litigation.’ [Citation.] [¶] ‘[T]he essence of the tort [is]
. . . misuse of the power of the court; it is an act done in the name of the court
and under its authority for the purpose of perpetrating an injustice.’
[Citation.]’ ” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41 [176 Cal.Rptr.3d
567].)
• “To establish a cause of action for abuse of process, a plaintiff must plead two
essential elements: that the defendant (1) entertained an ulterior motive in using
the process and (2) committed a wilful act in a wrongful manner.” (Coleman v.
Gulf Insurance Group (1986) 41 Cal.3d 782, 792 [226 Cal.Rptr. 90, 718 P.2d
• “[Plaintiff]’s complaint indicates that he has pleaded the tort of abuse of
process, long recognized at common law but infrequently utilized.” (Kappel v.
Bartlett (1988) 200 Cal.App.3d 1457, 1463 [246 Cal.Rptr. 815], internal citation
omitted.)
• “Abuse of process is not just another name for malicious prosecution. Simply
filing or maintaining a lawsuit for an improper purpose (such as might support
a malicious prosecution cause of action) is not abuse of process. [Citation.] [¶]
Malicious prosecution and abuse of process are distinct. The former concerns a
meritless lawsuit (and all the damage it inflicted). The latter concerns the
misuse of the tools the law affords litigants once they are in a lawsuit
(regardless of whether there was probable cause to commence that lawsuit in
899

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
• “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
• “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
• “ ‘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
• “[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
• “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
900

Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874],
• “[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
• “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
• “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
Secondary Sources
Process, § 147.70 et seq. (Matthew Bender)
901

1530. Apportionment of Attorney Fees and Costs Between Proper

and Improper Claims
[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.
New June 2013

Directions for Use
Give this instruction if the court has found as a matter of law that some, but not
all, of the claims in the underlying action were brought without probable cause.
The elements of probable cause and favorable termination are to be decided by the
court as a matter of law. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498] [probable cause]; Sierra Club
Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[favorable termination]; see also the Directions for Use to CACI No. 1501,
Wrongful Use of Civil Proceedings.)
If there are disputed facts that the jury must resolve before the court can make a
finding on probable cause, this instruction should not be presented to the jury until
after it has determined the facts on which the court’s finding will be based.
• “Having established the liability of . . . defendants . . . , the [plaintiffs] were
entitled to recover as part of their compensatory damage award the costs of
defending the [underlying] action including their reasonable attorney fees.”
(Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 90 [101 Cal.Rptr.3d 303].)
• “As in the case of the assertion of a maliciously prosecuted complaint with one
for which there was probable cause, the burden of proving such an
apportionment must rest with the party whose malicious conduct created the
problem. To place the burden on the injured party rather than upon the
wrongdoer would, in effect, clothe the transgressor with immunity when,
because of the interrelationship of the defense and cross-action, the injured
party could not apportion his damages.”(Bertero v. National General Corp.
902

(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
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)
903


1. Was [name of defendant] actively involved in causing [name of
plaintiff] to be prosecuted [or in causing the continuation of the
prosecution]?
1. Yes No
2. Did [name of defendant] act primarily for a purpose other than
that of bringing [name of plaintiff] to justice?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
904

MALICIOUS PROSECUTION VF-1500

[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
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.)
905


Proceedings

1. Was [name of defendant] actively involved in bringing [or
continuing] a lawsuit against [name of plaintiff]?
1. Yes No
succeeding on the merits of the claim?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
906


[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3).
907


Proceedings—Affirmative Defense—Reliance on Counsel

continuing] the lawsuit against [name of plaintiff]?
1. Yes No
2. Did [name of defendant] make a full and honest disclosure of all
the important facts known to [him/her] to [his/her] attorney?
2. Yes No
3. Did [name of defendant] reasonably rely on [his/her] attorney’s
advice?
3. Yes No
4. Yes No
5. Yes No
908

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3.)
909

VF-1502 MALICIOUS PROSECUTION

910

VF-1503. Malicious Prosecution—Wrongful Use of Administrative

Proceedings

continuing] an administrative proceeding against [name of
plaintiff]?
1. Yes No
2. Did [name of administrative body] conduct an independent
investigation?
2. Yes No
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
911

VF-1503 MALICIOUS PROSECUTION

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
special interrogatories on these elements. (See CACI No. 1502, elements 3 and 4.)
912

913


1. Did [name of defendant] [insert legal procedure, e.g., “take the
deposition of [name of deponent]”]?
1. Yes No
2. Did [name of defendant] intentionally use this legal procedure to
[insert alleged improper purpose that procedure was not designed to
achieve]?
2. Yes No
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
914


[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1520, Abuse of Process—Essential
Factual Elements.
915


EMOTIONAL DISTRESS

1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress”
Defined
1605. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or
Fraudulent Conduct—Essential Factual Elements
VF-1601. Intentional Infliction of Emotional Distress—Affirmative
VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or
AIDS
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No
Physical Injury—Direct Victim
Physical Injury—Bystander
Physical Injury—Fear of Cancer, HIV, or AIDS
Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious,
Oppressive, or Fraudulent Conduct
917

1600. Intentional Infliction of Emotional Distress—Essential

Factual Elements
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/

her] to suffer severe emotional distress. To establish this claim, [name of
1. That [name of defendant]’s conduct was outrageous;
emotional distress;]
2. [or]
2. [That [name of defendant] acted with reckless disregard of the
probability that [name of plaintiff] would suffer emotional
distress, knowing that [name of plaintiff] was present when the
conduct occurred;]
3. That [name of plaintiff] suffered severe emotional distress; and
causing [name of plaintiff]’s severe emotional distress.
New September 2003

Directions for Use
CACI Nos. 1602–1604, regarding the elements of intentional infliction of
emotional distress, should be given with this instruction.
Depending on the facts of the case, a plaintiff could choose one or both of the
bracketed choices in element 2.
• “A cause of action for intentional infliction of emotional distress exists when
there is ‘(1) extreme and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and
(3) actual and proximate causation of the emotional distress by the defendant’s
outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so
‘extreme as to exceed all bounds of that usually tolerated in a civilized
community.’ And the defendant’s conduct must be ‘intended to inflict injury or
engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009)
46 Cal.4th 1035, 1050–1051 [95 Cal.Rptr.3d 636, 209 P.3d 963])
• “[T]he trial court initially determines whether a defendant’s conduct may
reasonably be regarded as so extreme and outrageous as to permit recovery.
Where reasonable men can differ, the jury determines whether the conduct has
918

EMOTIONAL DISTRESS CACI No. 1600
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
• “ ‘[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
• “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.
Secondary Sources
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,
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)
919

1601. Intentional Infliction of Emotional Distress—Fear of Cancer,

HIV, or AIDS

her] to suffer severe emotional distress by exposing [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS]. To establish
1. That [name of defendant]’s conduct was outrageous;
2. That [name of defendant]’s conduct exposed [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS];
emotional distress;] [or]
3. [That [name of defendant] acted with reckless disregard of the
probability that [[name of plaintiff]/the group of individuals
including [name of plaintiff]] would suffer emotional distress,
knowing that [he/she/they] [was/were] present when the conduct
occurred;]
4. That [name of plaintiff] suffered severe emotional distress from a
reasonable fear of developing [insert applicable cancer, HIV, or
AIDS]; and
causing [name of plaintiff]’s severe emotional distress.
A fear of developing [insert applicable cancer, HIV, or AIDS] is
“reasonable” if the fear stems from the knowledge, confirmed by
reliable medical or scientific opinion, that a person’s risk of [insert
applicable cancer, HIV, or AIDS] has significantly increased and that the
resulting risk is significant.
New September 2003

Directions for Use
CACI Nos. 1602–1604, regarding the elements of intentional infliction of
emotional distress, should be given with the above instruction. Depending on the
facts of the case, a plaintiff could choose one or both of the bracketed choices in
element 3.
There may be other harmful agents and medical conditions that could support this
cause of action.
See CACI Nos. 1622 and 1623 for claims of negligent infliction of emotional
distress involving fear of cancer, HIV, or AIDS.
920


• “The elements of the tort of intentional infliction of emotional distress are: ‘(1)
extreme and outrageous conduct by the defendant with the intention of causing,
or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct.’ ” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [2
Cal.Rptr.2d 79, 820 P.2d 181], internal citation omitted; Potter v. Firestone Tire
and Rubber Co. (1993) 6 Cal.4th 965, 1001 [25 Cal.Rptr.2d 550, 863 P.2d
795].)
• “ ‘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 of, 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.
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable [person] 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]; Potter, supra, 6 Cal.4th at p. 1004.)
• “[I]t must . . . be established that plaintiff’s fear of cancer is reasonable, that is,
that the fear is based upon medically or scientifically corroborated knowledge
that the defendant’s conduct has significantly increased the plaintiff’s risk of
cancer and that the plaintiff’s actual risk of the threatened cancer is significant.”
(Potter, supra, 6 Cal.4th at p. 1004.)
• The court in Herbert v. Regents of University of California (1994) 26
Cal.App.4th 782, 787–788 [31 Cal.Rptr.2d 709] held that the rules relating to
recovery of damages for fear of cancer apply to fear of AIDS. See also Kerins
v. Hartley (1994) 27 Cal.App.4th 1062, 1075 [33 Cal.Rptr.2d 172].
Secondary Sources
Emotional Distress, § 362.11[3][c] (Matthew Bender)
Distress, § 153.38 (Matthew Bender)
921

1602. Intentional Infliction of Emotional Distress—“Outrageous

Conduct” Defined
“Outrageous conduct” is conduct so extreme that it goes beyond all

possible bounds of decency. Conduct is outrageous if a reasonable
person would regard the conduct as intolerable in a civilized
community. Outrageous conduct does not include trivialities such as
indignities, annoyances, hurt feelings, or bad manners that a reasonable
person is expected to endure.
In deciding whether [name of defendant]’s conduct was outrageous, you
may consider, among other factors, the following:
(a) Whether [name of defendant] abused a position of authority or a
relationship that gave [him/her] real or apparent power to affect
[name of plaintiff]’s interests;
(b) Whether [name of defendant] knew that [name of plaintiff] was
particularly vulnerable to emotional distress; and
(c) Whether [name of defendant] knew that [his/her] conduct would
likely result in harm due to mental distress.
New September 2003

Directions for Use
Read the appropriate factors that apply to the facts of the case. Factors that do not
apply may be deleted from this instruction.
• “Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Davidson v. City of Westminster
(1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].)
• “[W]hether conduct is outrageous is ‘usually a question of fact’ . . . .
[However] many cases have dismissed intentional infliction of emotional
distress cases on demurrer, concluding that the facts alleged do not amount to
outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225
• “[L]iability ‘does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. . . . There is no occasion for the law to
intervene . . . where someone’s feelings are hurt.’ ” (Agarwal v. Johnson
(1979) 25 Cal.3d 932, 946 [160 Cal.Rptr. 141, 603 P.2d 58], quoting Rest.2d
Torts, § 46, com. d, overruled on other grounds in White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 579–580 [88 Cal.Rptr.2d 19, 981 P.2d 944].)
• “ ‘Behavior may be considered outrageous if a defendant (1) abuses a relation
922

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
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
923

1603. Intentional Infliction of Emotional Distress—“Reckless

Disregard” Defined
[Name of defendant] acted with reckless disregard in causing [name of

plaintiff] emotional distress if:
1. [Name of defendant] knew that emotional distress would probably
result from [his/her] conduct; or
2. [Name of defendant] gave little or no thought to the probable
effects of [his/her] conduct.
New September 2003

• “[I]t is not essential to liability that a trier of fact find a malicious or evil
purpose. It is enough that defendant ‘devoted little or no thought’ to probable
consequences of his conduct.” (KOVR-TV, Inc. v. Superior Court (1995) 31
Cal.App.4th 1023, 1031–1032 [37 Cal.Rptr.2d 431], internal citation omitted.)
• The requirement of reckless conduct is satisfied by a showing that the defendant
acted in reckless disregard of the probability that the plaintiff would suffer
emotional distress. (Little v. Stuyvesant Life Insurance Co. (1977) 67
Cal.App.3d 451, 462 [136 Cal.Rptr. 653]; Cervantez v. J.C. Penney Co. (1979)
24 Cal.3d 579, 593 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “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 v.
Superior Court (1991) 54 Cal.3d 868, 905 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
Secondary Sources
Emotional Distress, § 362.10[4] (Matthew Bender)
924

1604. Intentional Infliction of Emotional Distress—“Severe

Emotional Distress” Defined
Emotional distress includes suffering, anguish, fright, horror,

nervousness, grief, anxiety, worry, shock, humiliation, and shame.
“Severe emotional distress” is not mild or brief; it must be so
substantial or long lasting that no reasonable person in a civilized
society should be expected to bear it. [Name of plaintiff] is not required
to prove physical injury to recover damages for severe emotional
distress.
New September 2003

• “ ‘It is for the court to determine whether on the evidence severe emotional
distress can be found; it is for the jury to determine whether, on the evidence, it
has in fact existed.’ ” (Fletcher v. Western National Life Insurance Co. (1970)
10 Cal.App.3d 376, 397 [89 Cal.Rptr. 78], internal citation omitted.)
• “Emotional distress” includes any “highly unpleasant mental reactions, such as
fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, or worry.” (Fletcher, supra, 10 Cal.App.3d at p. 397.)
• “With respect to the requirement that the plaintiff show severe emotional
distress, this court has set a high bar. ‘Severe emotional distress means
“emotional distress of such substantial quality or enduring quality that no
reasonable [person] in civilized society should be expected to endure it.” ’ ”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [95 Cal.Rptr.3d 636, 209 P.3d
963].)
• “ ‘One who has wrongfully and intentionally [suffered severe emotional
distress] may recover compensatory damages even though he or she has
suffered no physical injury,’ and ‘the right to compensation exists even though
no monetary loss has been sustained.’ ” (Grimes v. Carter (1966) 241
Cal.App.2d 694, 699 [50 Cal.Rptr. 808].)
Secondary Sources
925

1605. Intentional Infliction of Emotional Distress—Affirmative


plaintiff]’s harm, if any, because [name of defendant]’s conduct was
permissible. To succeed, [name of defendant] must prove all of the
following:
1. That [name of defendant] was [exercising [his/her] legal right to
[insert legal right]] [or] [protecting [his/her] economic interests];
2. That [name of defendant]’s conduct was lawful and consistent
with community standards; and
3. That [name of defendant] had a good-faith belief that [he/she] had
a legal right to engage in the conduct.
If you find all of the above, then [name of defendant]’s conduct was
permissible.
New September 2003

Directions for Use
Whether a given communication is within the privileges afforded by Civil Code
section 47 is a legal question for the judge.
• “Whether treated as an element of the prima facie case or as a matter of
defense, it must also appear that the defendants’ conduct was unprivileged.”
(Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376,
394 [89 Cal.Rptr. 78].)
• The statutory privileges that Civil Code section 47 affords to certain oral and
written communications are applicable to claims for intentional infliction of
emotional distress. (Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808 [42
Cal.Rptr. 314].)
• “The usual formulation is that the [litigation] privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to achieve the objects of
the litigation; and (4) that have some connection or logical relation to the
action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786
P.2d 365].)
• “Where an employer seeks to protect his own self-interest and that of his
employees in good faith and without abusing the privilege afforded him, the
privilege obtains even though it is substantially certain that emotional distress
will result from uttered statements.” (Deaile v. General Telephone Co. of
926

California (1974) 40 Cal.App.3d 841, 849–850 [115 Cal.Rptr. 582].)

• “Nevertheless, the exercise of the privilege to assert one’s legal rights must be
done in a permissible way and with a good faith belief in the existence of the
rights asserted. It is well established that one who, in exercising the privilege of
asserting his own economic interests, acts in an outrageous manner may be held
liable for intentional infliction of emotional distress.” (Fletcher, supra, 10
• “While it is recognized that the creditor possesses a qualified privilege to
protect its economic interest, the privilege may be lost should the creditor use
outrageous and unreasonable means in seeking payment.” (Bundren v. Superior
Court (1983) 145 Cal.App.3d 784, 789 [193 Cal.Rptr. 671].)
• “In determining whether the conduct is sufficiently outrageous or unreasonable
to become actionable, it is not enough that the creditor’s behavior is rude or
insolent. However, such conduct may rise to the level of outrageous conduct
where the creditor knows the debtor is susceptible to emotional distress because
of her physical or mental condition.” (Symonds v. Mercury Savings & Loan
Assn. (1990) 225 Cal.App.3d 1458, 1469 [275 Cal.Rptr. 871], internal citations
omitted.)
Secondary Sources
Emotional Distress, § 362.10[8] (Matthew Bender)
927

1620. Negligence—Recovery of Damages for Emotional

Distress—No Physical Injury—Direct Victim—Essential Factual
Elements

her] to suffer serious emotional distress. To establish this claim, [name of
1. That [name of defendant] was negligent;
2. That [name of plaintiff] suffered serious emotional distress; and
causing [name of plaintiff]’s serious emotional distress.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.

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 “direct victim” case is one in which the plaintiff’s claim of emotional distress is
based on the violation of a duty that the defendant owes directly to the plaintiff.
(Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 [147
Cal.Rptr.3d 41].) The California Supreme Court has allowed plaintiffs to recover
damages as “direct victims” in only three types of factual situations: (1) the
negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d
868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a
disease that could potentially harm another (Molien, supra, 27 Cal.3d at p. 923);
and (3) the negligent breach of a duty arising out of a preexisting relationship
(Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831
P.2d 1197]).
The judge will normally decide whether a duty was owed to the plaintiff as a direct
victim. If the issue of whether the plaintiff is a direct victim is contested, a special
instruction with the factual dispute laid out for the jury will need to be drafted.
This instruction should be read in conjunction with either CACI No. 401, Basic
928

Standard of Care, or CACI No. 418, Presumption of Negligence per se.

If the plaintiff witnesses the injury of another, use CACI No. 1621,
Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements. For instructions for use for
emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No.
1623, Negligence—Recovery of Damages for Emotional Distress—No Physical
Conduct—Essential Factual Elements.
Elements 1 and 3 of this instruction could be modified for use in a strict products
liability case. A plaintiff may seek damages for the emotional shock of viewing the
injuries of another when the incident is caused by defendant’s defective product.
(Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587 [195 Cal.Rptr. 902].)
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].)
• “ ‘[The] negligent causing of emotional distress is not an independent tort but
the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty,
causation, and damages apply. Whether a defendant owes a duty of care is a
question of law. Its existence depends upon the foreseeability of the risk and
upon a weighing of policy considerations for and against imposition of
liability.’ ” (Marlene F. v. Affıliated Psychiatric Medical Clinic, Inc. (1989) 48
• “ ‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional
distress is not based upon witnessing an injury to someone else, but rather is
based upon the violation of a duty owed directly to the plaintiff.” (Ragland,
• “[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional
distress damages result from a duty owed the plaintiff ‘that is “assumed by the
defendant or imposed on the defendant as a matter of law, or that arises out of
a relationship between the two.” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th
1502, 1510 [97 Cal.Rptr.3d 555].)
• “We agree that the unqualified requirement of physical injury is no longer
justifiable.” (Molien, supra, 27 Cal.3d at p. 928.)
• “[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
929

CACI No. 1620 EMOTIONAL DISTRESS
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.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 3-C, Specific
Items Of Compensatory Damages, ¶ 3:215 et seq. (The Rutter Group)
1 California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.03
(Matthew Bender)
Distress, § 153.31 et seq. (Matthew Bender)
930


Distress—No Physical Injury—Bystander—Essential Factual
Elements
[Name of plaintiff] claims that [he/she] suffered serious emotional distress

as a result of perceiving [an injury to/the death of] [name of victim]. To
1. That [name of defendant] negligently caused [injury to/the death
of] [name of victim];
2. That when the [describe event, e.g., traffıc accident] that caused
[injury to/the death of] [name of victim] occurred, [name of
plaintiff] was present at the scene;
3. That [name of plaintiff] was then aware that the [e.g., traffıc
accident] was causing [injury to/the death of] [name of victim];
4. That [name of plaintiff] suffered serious emotional distress; and
[Name of plaintiff] need not have been then aware that [name of
defendant] had caused the [e.g., traffıc accident].
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015
Directions for Use
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
931

No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical

Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No.
1623, Negligence—Recovery of Damages for Emotional Distress—No Physical
Conduct—Essential Factual Elements.
This instruction should be read in conjunction with instructions in the Negligence
series (see CACI No. 400 et seq.) to further develop element 1.
Whether the plaintiff had a sufficiently close relationship with the victim should be
determined as an issue of law because it is integral to the determination of whether
a duty was owed to the plaintiff.
There is some uncertainty as to how the “event” should be defined in element 2
and then just exactly what the plaintiff must perceive in element 3. When the event
is something dramatic and visible, such as a traffic accident or a fire, it would seem
that the plaintiff need not know anything about why the event occurred. (See Wilks
v. Hom (1992) 2 Cal.App.4th 1264, 1271 [3 Cal.Rptr.2d 803].) And the California
Supreme Court has stated that the bystander plaintiff need not contemporaneously
understand the defendant’s conduct as negligent, as opposed to harmful. (Bird v.
Saenz (2002) 28 Cal.4th 910, 920 [123 Cal.Rptr.2d 465, 51 P.3d 324], original
italics.)
But what constitutes perception of the event is less clear when the victim is clearly
in observable distress, but the cause of that distress may not be observable. It has
been held that the manufacture of a defective product is the event, which is not
observable, despite the fact that the result was observable distress resulting in
death. (See Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th
830, 843–844 [151 Cal.Rptr.3d 320].) In another observable-distress case, medical
negligence that led to distress resulting in death was found to be perceivable
because the relatives who were present observed the decedent’s acute respiratory
distress and were aware that defendant’s inadequate response caused her death.
(See Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484,
489–490 [185 Cal.Rptr.3d 313], emphasis added.) It might be argued that
observable distress is the event and that the bystanders need not perceive anything
about the cause of the distress. However, these cases indicate that is not the
standard. But if it is not necessary to comprehend that negligence is causing the
distress, it is not clear what it is that the bystander must perceive in element 3.
Because of this uncertainty, the Advisory Committee has elected not to try to
express element 3 any more specifically.
v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747]; but see Keys,
supra, 235 Cal.App.4th at p. 491 [finding last sentence of this instruction to be a
932

correct description of the distress required].)

• “California’s rule that plaintiff’s fear for his own safety is compensable also
presents a strong argument for the same rule as to fear for others; otherwise,
some plaintiffs will falsely claim to have feared for themselves, and the honest
parties unwilling to do so will be penalized. Moreover, it is incongruous and
somewhat revolting to sanction recovery for the mother if she suffers shock
from fear for her own safety and to deny it for shock from the witnessed death
of her own daughter.” (Dillon v. Legg (1968) 68 Cal.2d 728, 738, fn. 4 [69
Cal.Rptr. 72, 441 P.2d 912].)
• “As an introductory note, we observe that plaintiffs . . . framed both negligence
and negligent infliction of emotional distress causes of action. To be precise,
however, ‘the [only] tort with which we are concerned is negligence. Negligent
infliction of emotional distress is not an independent tort . . . .’ ” (Catsouras v.
Department of California Highway Patrol (2010) 181 Cal.App.4th 856,
875–876 [104 Cal.Rptr.3d 352].)
• “In the absence of physical injury or impact to the plaintiff himself, damages
for emotional distress should be recoverable only if the plaintiff: (1) is closely
related to the injury victim, (2) is present at the scene of the injury-producing
event at the time it occurs and is then aware that it is causing injury to the
victim and, (3) as a result suffers emotional distress beyond that which would
be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d
644, 647 [257 Cal.Rptr. 865, 771 P.2d 814].)
• “[T]o satisfy the second Thing requirement the plaintiff must experience a
contemporaneous sensory awareness of the causal connection between the
defendant’s infliction of harm and the injuries suffered by the close relative.”
(Fortman, supra, 212 Cal.App.4th at p. 836.)
• “[A] plaintiff need not contemporaneously understand the defendant’s conduct
as negligent, as opposed to harmful. But the court confused awareness of
negligence, a legal conclusion, with contemporaneous, understanding awareness
of the event as causing harm to the victim.” (Bird, supra, 28 Cal.4th at p. 920.)
• “Bird does not categorically bar plaintiffs who witness acts of medical
negligence from pursuing NIED claims. ‘This is not to say that a layperson can
never perceive medical negligence or that one who does perceive it cannot
assert a valid claim for NIED.’ Particularly, a NIED claim may arise when . . .
caregivers fail ‘to respond significantly to symptoms obviously requiring
immediate medical attention.’ ” (Keys, supra, 235 Cal.App.4th at p. 489.)
• “The injury-producing event here was defendant’s lack of acuity and response
to [decedent]’s inability to breathe, a condition the plaintiffs observed and were
aware was causing her injury.” (Keys, supra, 235 Cal.App.4th at p. 490.)
• “Thing does not require that the plaintiff have an awareness of what caused the
injury-producing event, but the plaintiff must have an understanding perception
933

of the ‘event as causing harm to the victim.’ ” (Fortman, supra, 212

Cal.App.4th at p. 841, fn. 4.)
• “[W]e also reject [plaintiff]’s attempt to expand bystander recovery to hold a
product manufacturer strictly liable for emotional distress when the plaintiff
observes injuries sustained by a close relative arising from an unobservable
product failure. To do so would eviscerate the second Thing requirement.”
(Fortman, supra, 212 Cal.App.4th at pp. 843–844.)
• “Absent exceptional circumstances, recovery should be limited to relatives
residing in the same household, or parents, siblings, children, and grandparents
of the victim.” (Thing, supra, 48 Cal.3d at p. 668, fn. 10.)
• “[A]n unmarried cohabitant may not recover damages for emotional distress
based on such injury.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 273 [250
Cal.Rptr. 254, 758 P.2d 582].)
• “Although a plaintiff may establish presence at the scene through nonvisual
sensory perception, ‘someone who hears an accident but does not then know it
is causing injury to a relative does not have a viable [bystander] claim for
[negligent infliction of emotional distress], even if the missing knowledge is
acquired moments later.’ ” (Ra v. Superior Court (2007) 154 Cal.App.4th 142,
• “[I]t is not necessary that a plaintiff bystander actually have witnessed the
infliction of injury to her child, provided that the plaintiff was at the scene of
the accident and was sensorially aware, in some important way, of the accident
and the necessarily inflicted injury to her child.” (Wilks, supra, 2 Cal.App.4th at
p. 1271.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
1378.)
• “We have no reason to question the jury’s conclusion that [plaintiffs] suffered
serious emotional distress as a result of watching [decedent]’s struggle to
breathe that led to her death. The jury was properly instructed, as explained in
Thing, that ‘[s]erious emotional distress exists if an ordinary, reasonable person
would be unable to cope with it.’ The instructions clarify that ‘Emotional
distress includes suffering, anguish, fright, . . . nervousness, grief, anxiety,
934

worry, shock . . . .’ Viewed through this lens there is no question that

[plaintiffs’] testimony provides sufficient proof of serious emotional distress.”
(Keys, supra, 235 Cal.App.4th at p. 491, internal citation omitted.)
• “[W]here a participant in a sport has expressly assumed the risk of injury from
a defendant’s conduct, the defendant no longer owes a duty of care to
bystanders with respect to the risk expressly assumed by the participant. The
defendant can therefore assert the participant’s express assumption of the risk
against the bystanders’ NIED claims.” (Eriksson v. Nunnink (2015) 233
Secondary Sources
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 11-F, Negligent
Infliction Of Emotional Distress, ¶ 11:101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress,
Distress, §§ 153.31 et seq., 153.45 et seq. (Matthew Bender)
935


Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements

her] to suffer serious emotional distress by exposing [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS]. To establish
1. That [name of plaintiff] was exposed to [insert applicable
carcinogen, toxic substance, HIV, or AIDS] as a result of [name of
defendant]’s negligence;
2. That [name of plaintiff] suffered serious emotional distress from a
fear that [he/she] will develop [insert applicable cancer, HIV, or
AIDS] as a result of the exposure;
3. That reliable medical or scientific opinion confirms that it is
more likely than not that [name of plaintiff] will develop [insert
applicable cancer, HIV, or AIDS] as a result of the exposure; and

Directions for Use
they were not otherwise currently injured or harmed. (See Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d
813].)
Recovery for emotional distress without other current harm or injury is allowed for
negligent exposure to a disease-causing substance, but only if the plaintiff can
establish that it is more likely than not that the plaintiff will contract the disease.
(See Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 997 [25
Cal.Rptr.2d 550, 863 P.2d 795.) There may be other harmful agents and medical
conditions that could support this claim for damages.
936

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.
v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
• “ ‘[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.
• “[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.)
927–928.)
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
937

consequence of a plaintiff’s toxic exposure and that the recommended

monitoring is reasonable.” (Potter, supra, 6 Cal.4th at p. 1009.)
• “All of the policy concerns expressed in Potter apply with equal force in the
fear of AIDS context.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074
[33 Cal.Rptr.2d 172].)
• “[Plaintiff parent] claims the likelihood of actual injury to [child] is immaterial
and that, in short, the rule announced in Potter regarding fear of cancer should
not be applied to a case involving fear of AIDS. We disagree.” (Herbert v.
Regents of University of California (1994) 26 Cal.App.4th 782, 786 [31
Cal.Rptr.2d 709].)
• “[W]hen a defendant demonstrates that a plaintiff’s smoking is negligent and
that a portion of the plaintiff’s fear of developing cancer is attributable to the
smoking, comparative fault principles may be applied in determining the extent
to which the plaintiff’s emotional distress damages for such fear should be
reduced to reflect the proportion of such damages for which the plaintiff should
properly bear the responsibility.” (Potter, supra, 6 Cal.4th at pp. 965, 1011.)
Secondary Sources
Haning, et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items
Of Compensatory Damages, ¶ 3:218.6 (The Rutter Group)
938


AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] acted with [malice/

oppression/fraudulent intent] in exposing [name of plaintiff] to [insert
applicable carcinogen, toxic substance, HIV, or AIDS] and that this
conduct caused [name of plaintiff] to suffer serious emotional distress. To
1. That [name of plaintiff] was exposed to [insert applicable
carcinogen, toxic substance, HIV, or AIDS] as a result of [name of
defendant]’s negligent conduct;
2. That [name of defendant] acted with
[malice/oppression/fraudulent intent] because [insert one or more
of the following, as applicable]:
2. [[Name of defendant] intended to cause injury to [name of
plaintiff];] [or]
2. [[Name of defendant]’s conduct was despicable and was carried
out with a willful or conscious disregard of [name of plaintiff]’s
rights or safety;] [or]
2. [[Name of defendant]’s conduct was despicable and subjected
[name of plaintiff] to cruel and unjust hardship in conscious
disregard of [name of plaintiff]’s rights;] [or]
2. [[Name of defendant] intentionally misrepresented or concealed a
material fact known to [name of defendant], intending to cause
[name of plaintiff] harm;]
3. That [name of plaintiff] suffered serious emotional distress from a
fear that [he/she] will develop [insert applicable cancer, HIV, or
AIDS] as a result of the exposure;
4. That reliable medical or scientific opinion confirms that [name of
plaintiff]’s risk of developing [insert applicable cancer, HIV, or
AIDS] was significantly increased by the exposure and has
resulted in an actual risk that is significant; and
939


“Despicable conduct” is conduct that is so mean, vile, base, or
contemptible that it would be looked down on and despised by
reasonable people.

Directions for Use
emotional distress. There is no separate tort or cause of action for “negligent
infliction of emotional distress.” The doctrine is one that allows certain persons to
recover damages for emotional distress only on a negligence cause of action even
though they were not otherwise currently injured or harmed. (See Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d
813].)
Recovery for emotional distress without other current harm or injury is allowed for
negligent exposure to a disease-causing substance. If the plaintiff can prove
oppression, fraud, or malice, it is not necessary to establish that it is more likely
than not that the plaintiff will contract the disease. (See Potter v. Firestone Tire and
Rubber Co. (1993) 6 Cal.4th 965, 998 [25 Cal.Rptr.2d 550, 863 P.2d 795.) Use
CACI No. 1622, Negligence—Recovery of Damages for Emotional Distress—No
Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, if
plaintiff alleges exposure without oppression, fraud, or malice.
“Oppression, fraud, or malice” is used here as defined by Civil Code section 3294,
except that the higher “clear and convincing” burden of proof is not required in this
context. (See Potter, supra, 6 Cal.4th at p. 1000.)
In some cases the judge should make clear that the defendant does not need to
have known of the individual plaintiff where there is a broad exposure and plaintiff
is a member of the class that was exposed.
The explanation in the next-to-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].)
• Punitive Damages: Malice, Oppression, and Fraud Defined. Civil Code section
3294(c).
940

• “ ‘[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.)
• “[A] toxic exposure plaintiff need not meet the more likely than not threshold
for fear of cancer recovery in a negligence action if the plaintiff pleads and
proves that the defendant’s conduct in causing the exposure amounts to
‘oppression, fraud, or malice’ as defined in Civil Code section 3294.” (Potter,
927–928.)
• “[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.)
1378.)
• “All of the policy concerns expressed in Potter apply with equal force in the
fear of AIDS context.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074
[33 Cal.Rptr.2d 172].)
• “[Plaintiff parent] claims the likelihood of actual injury to [child] is immaterial
and that, in short, the rule announced in Potter regarding fear of cancer should
not be applied to a case involving fear of AIDS. We disagree.” (Herbert v.
Cal.Rptr.2d 709].)
• “Despicable conduct is conduct which is so vile, base, contemptible, miserable,
wretched or loathsome that it would be looked down upon and despised by
ordinary decent people.” (Mock v. Mich. Millers Mut. Ins. Co. (1992) 4
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ ” (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal.Rptr.2d 898,
882 P.2d 894].)
941

• “Civil Code section 3294 requires a plaintiff to prove oppression, fraud, or

malice by ‘clear and convincing evidence’ for purposes of punitive damages
recovery. We decline to impose this stringent burden of proof for recovery of
fear of cancer damages in negligence cases for two reasons. First, we have
already adopted strict limitations on the availability of damages for negligently
inflicted fear of cancer; an additional hurdle at this point is unnecessary for
public policy purposes. Second, to recover compensatory damages in an action
for intentional infliction of emotional distress, a plaintiff need only prove the
fact that a defendant intentionally inflicted such distress by a preponderance of
the evidence. It is therefore both logical and consistent to utilize the same
burden of proof for recovery of compensatory damages when a defendant has
acted with ‘oppression, fraud or malice’ to negligently inflict emotional
distress.” (Potter, supra, 6 Cal.4th at p. 1000, fn. 20.)
• “[W]hen a defendant demonstrates that a plaintiff’s smoking is negligent and
that a portion of the plaintiff’s fear of developing cancer is attributable to the
smoking, comparative fault principles may be applied in determining the extent
to which the plaintiff’s emotional distress damages for such fear should be
reduced to reflect the proportion of such damages for which the plaintiff should
properly bear the responsibility.” (Potter, supra, 6 Cal.4th at p. 1011.)
Secondary Sources
Haning, et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items
Of Compensatory Damages, ¶ 3:218.6 (The Rutter Group)
942


1. Was [name of defendant]’s conduct outrageous?
1. Yes No
2. [Did [name of defendant] intend to cause [name of plaintiff]
emotional distress?] [or]
2. [Did [name of defendant] act with reckless disregard of the
conduct occurred?]
2. Yes No
3. Did [name of plaintiff] suffer severe emotional distress?
3. Yes No
[name of plaintiff]’s severe emotional distress?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
943

VF-1600 EMOTIONAL DISTRESS

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements.
944

EMOTIONAL DISTRESS VF-1600
945

VF-1601. Intentional Infliction of Emotional Distress—Affirmative


1. Was [name of defendant] exercising [his/her] legal rights or
protecting [his/her] economic interests?
1. Yes No
you answered no, skip questions 2 and 3 and answer question 4.
2. Was [name of defendant]’s conduct lawful and consistent with
community standards?
2. Yes No
3. Did [name of defendant] have a good-faith belief that [he/she] had
a legal right to engage in the conduct?
3. Yes No
4. Yes No
emotional distress?]
5. [or]
conduct occurred?]
5. Yes No
946

6. Did [name of plaintiff] suffer severe emotional distress?

6. Yes No
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[c. [Past noneconomic loss, including [physical
[d. [Future noneconomic loss, including [physical
[d. TOTAL $
Signed:
Presiding Juror
Dated:
947


Directions for Use
Distress—Essential Factual Elements, and CACI No. 1605, Intentional Infliction of
Emotional Distress—Affırmative Defense-Privileged Conduct.
948

VF-1602. Intentional Infliction of Emotional Distress—Fear of

Cancer, HIV, or AIDS

1. Yes No
2. Did [name of defendant]’s conduct expose [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS]?
2. Yes No
emotional distress?] [or]
probability that [[name of plaintiff]/the group of individuals
including [name of plaintiff]] would suffer emotional distress,
knowing that [he/she/they] [was/were] present when the conduct
occurred?]
3. Yes No
4. Did [name of plaintiff] suffer severe emotional distress from a
reasonable fear of developing [insert cancer, HIV, or AIDS]?
4. Yes No
5. Yes No
949


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
Distress—Fear of Cancer, HIV, or AIDS.
950

951

VF-1603. Negligence—Recovery of Damages for Emotional

Distress—No Physical Injury—Direct Victim

1. Yes No
2. Did [name of plaintiff] suffer serious emotional distress?
2. Yes No
causing [name of plaintiff]’s serious emotional distress?
3. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
952


[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
953


Distress—No Physical Injury—Bystander

1. Did [name of defendant] negligently cause [injury to/the death of]
[name of victim]?
1. Yes No
2. When the [describe event, e.g., traffıc accident] that caused [injury
to/the death of] [name of victim] occurred, was [name of plaintiff]
present at the scene?
2. Yes No
3. Was [name of plaintiff] then aware that the [e.g., traffıc accident]
was causing [injury to/the death of] [name of victim]?
3. Yes No
4. Did [name of plaintiff] suffer serious emotional distress?
4. Yes No
[name of plaintiff]’s serious emotional distress?
5. Yes No
954

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
for Emotional Distress—No Physical Injury—Bystander—Essential Factual
Elements.
955


956


Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS

1. Was [name of plaintiff] exposed to [insert applicable carcinogen,
toxic substance, HIV, or AIDS] as a result of [name of defendant]’s
negligence?
1. Yes No
2. Did [name of plaintiff] suffer serious emotional distress from a
fear that [he/she] would develop [insert applicable cancer, HIV, or
AIDS] as a result of the exposure?
2. Yes No
3. Does reliable medical or scientific opinion confirm that it is more
likely than not that [name of plaintiff] will develop [insert
applicable cancer, HIV, or AIDS] as a result of the exposure?
3. Yes No
causing [name of plaintiff]’s serious emotional distress?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
957


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements.
958


959


AIDS—Malicious, Oppressive, or Fraudulent Conduct

1. Was [name of plaintiff] exposed to [insert applicable carcinogen,
toxic substance, HIV, or AIDS] as a result of [name of defendant]’s
conduct?
1. Yes No
2. Did [name of defendant] act with [malice/oppression/fraudulent
intent] because [insert one or more of the following, as applicable:]
2. [[name of defendant] intended to cause injury to [name of
plaintiff]?] [or]
2. [[name of defendant]’s conduct was despicable and was carried
out with a willful or conscious disregard of [name of plaintiff]’s
rights or safety?] [or]
2. [[name of defendant]’s conduct was despicable and subjected
[name of plaintiff] to cruel and unjust hardship in conscious
disregard of [name of plaintiff]’s rights?] [or]
2. [[name of defendant] intentionally misrepresented or concealed a
material fact known to [name of defendant], intending to cause
[name of plaintiff] harm?]
2. Yes No
3. Did [name of plaintiff] suffer serious emotional distress from a
fear, confirmed by reliable medical or scientific opinion, that
[name of plaintiff]’s risk of developing [insert applicable cancer,
HIV, or AIDS] was significantly increased by the exposure and
has resulted in an actual risk that is significant?
3. Yes No
960


[name of plaintiff]’s serious emotional distress?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
961

Directions for Use

for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential Factual Elements.
962

0001 [ST: 963] [ED: 100000] [REL: 17] (Beg Group) Composed: Tue Nov 14 14:23:08 EST 2017
DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and

Limited Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure
and Limited Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of
Public Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter
of Public Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of
Private Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter
of Private Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private
Figure—Matter of Private Concern)
963

0002 [ST: 963] [ED: 100000] [REL: 17] Composed: Tue Nov 14 14:23:08 EST 2017
DEFAMATION

964

1700. Defamation per se—Essential Factual Elements (Public

Officer/Figure and Limited Public Figure)

making [one or more of] the following statement(s): [list all claimed per
se defamatory statements]. To establish this claim, [name of plaintiff] must
prove that all of the following are more likely true than not true:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. [That [this person/these people] reasonably understood the
statement(s) to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”]]; and
4. That the statement(s) [was/were] false.
In addition, [name of plaintiff] must prove by clear and convincing
evidence that [name of defendant] knew the statement(s) [was/were] false
or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled
to recover [his/her] actual damages if [he/she] proves that [name of
defendant]’s wrongful conduct was a substantial factor in causing any of
the following:
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; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm
to reputation or shame, mortification, or hurt feelings, the law
nonetheless assumes that [he/she] has suffered this harm. Without
presenting evidence of damage, [name of plaintiff] is entitled to receive
compensation for this assumed harm in whatever sum you believe is
reasonable. You must award at least a nominal sum, such as one dollar.
965

CACI No. 1700 DEFAMATION
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].)
• 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)
966

DEFAMATION CACI No. 1700
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage. ‘In general, . . . a written communication that is false, that is
not protected by any privilege, and that exposes a person to contempt or
ridicule or certain other reputational injuries, constitutes libel.’ The defamatory
statement must specifically refer to, or be ‘ “of [or] concerning,” ’ the plaintiff.”
(Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259 [217 Cal.Rptr.3d
• “ ‘If the person defamed is a public figure, he cannot recover unless he proves,
by clear and convincing evidence . . . , that the libelous statement was made
with “ ‘actual malice’—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” ’ ‘The rationale for such differential
treatment is, first, that the public figure has greater access to the media and
therefore greater opportunity to rebut defamatory statements, and second, that
those who have become public figures have done so voluntarily and therefore
“invite attention and comment.” ’ ” (Jackson, supra, 10 Cal.App.5th at p. 1259,
footnotes and internal citations omitted.)
• “[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],
• “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
967

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
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
• “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
• 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
• “[W]hen a party repeats a slanderous charge, he is equally guilty of defamation,
968

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
• “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,
• 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
done by the defendant.” There is an exception to this rule. [When it is
foreseeable that the plaintiff] “ ‘will be under a strong compulsion to disclose
the contents of the defamatory statement to a third person after he has read it or
been informed of its contents.’ ” (Live Oak Publishing Co. v. Cohagan (1991)
• Whether a plaintiff in a defamation action is a public figure is a question of law
for the trial court. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d
244, 252 [208 Cal.Rptr. 137, 690 P.2d 610].)
• “To qualify as a limited purpose public figure, a plaintiff ‘must have undertaken
some voluntary [affirmative] act[ion] through which he seeks to influence the
resolution of the public issues involved.’ ” (Rudnick v. McMillan (1994) 25
Cal.App.4th 1183, 1190 [31 Cal.Rptr.2d 193]; see also Mosesian v. McClatchy
Newspapers (1991) 233 Cal.App.3d 1685, 1689 [285 Cal.Rptr. 430].)
• “Characterizing a plaintiff as a limited purpose public figure requires the
presence of certain elements. First, there must be a public controversy about a
topic that concerns a substantial number of people. In other words, the issue
was publicly debated. Second, the plaintiff must have voluntarily acted to
influence resolution of the issue of public interest. To satisfy this element, the
plaintiff need only attempt to thrust himself or herself into the public eye. Once
the plaintiff places himself or herself in the spotlight on a topic of public
interest, his or her private words and acts relating to that topic become fair
game. However, the alleged defamation must be germane to the plaintiff’s
participation in the public controversy.” (Grenier, supra, 234 Cal.App.4th at p.
• “The First Amendment limits California’s libel law in various respects. When,
as here, the plaintiff is a public figure, he cannot recover unless he proves by
clear and convincing evidence that the defendant published the defamatory
statement with actual malice, i.e., with ‘knowledge that it was false or with
reckless disregard of whether it was false or not.’ Mere negligence does not
suffice. Rather, the plaintiff must demonstrate that the author ‘in fact entertained
serious doubts as to the truth of his publication,’ or acted with a ‘high degree of
969

awareness of . . . probable falsity.’ ” (Masson v. New Yorker Magazine (1991)

501 U.S. 496, 510 [111 S.Ct. 2419, 115 L.Ed.2d 447], internal citations omitted;
see St. Amant v. Thompson (1968) 390 U.S. 727, 731 [88 S.Ct. 1323, 20
L.Ed.2d 262]; New York Times v. Sullivan (1964) 376 U.S. 254, 279–280 [84
S.Ct. 710, 11 L.Ed.2d 686].)
• The New York Times v. Sullivan standard applies to private individuals with
respect to presumed or punitive damages if the statement involves a matter of
public concern. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349 [94 S.Ct.
2997, 41 L.Ed.2d 789].)
• “California . . . permits defamation liability so long as it is consistent with the
requirements of the United States Constitution.” (Melaleuca, Inc. v. Clark
(1998) 66 Cal.App.4th 1344, 1359 [78 Cal.Rptr.2d 627], citing Brown v. Kelly
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.
• 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.,
• 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
970

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.)
• “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 (11th ed. 2017) Torts, §§ 623–654, 705–718
Chin, et al., California Practice Guide: Employment Litigation, Ch. 5-D,
Employment Torts And Related Claims—Defamation, ¶ 5:472 (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 (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)
971

1701. Defamation per quod—Essential Factual Elements (Public

Officer/Figure and Limited Public Figure)

quod defamatory statements].
Liability
To establish this claim, [name of plaintiff] must prove that all of the
following are more likely true than not true:
3. That because of the facts and circumstances known to the
[listener(s)/reader(s)] of the statement(s), [it/they] tended to
injure [name of plaintiff] in [his/her] occupation [or to expose
[him/her] to hatred, contempt, ridicule, or shame] [or to
discourage others from associating or dealing with [him/her]];
4. That the statement(s) [was/were] false;
5. That [name of plaintiff] suffered harm to [his/her] property,
business, profession, or occupation [including money spent as a
result of the statement(s)]; and
6. That the statement(s) [was/were] a substantial factor in causing
In addition, [name of plaintiff] must prove by clear and convincing
evidence that [name of defendant] knew the statement(s) [was/were] false
or had serious doubts about the truth of the statement(s).
Actual Damages
to recover if [he/she] proves it is more likely true than not true that
[name of defendant]’s wrongful conduct was a substantial factor in
causing any of the following actual damages:
or occupation;
972


Punitive Damages
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.
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• 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].)
973

• “ ‘ “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].)
• “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 v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73], internal citation
omitted.)
• “The question whether challenged statements convey the requisite factual
imputation is ordinarily a question of law for the court. However, . . . , some
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].)
• “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
• “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
• “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
974

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],
Secondary Sources
Bender)
§§ 340.10–340.75 (Matthew Bender)
§§ 142.24–142.27 (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
975

1702. Defamation per se—Essential Factual Elements (Private

Figure—Matter of Public Concern)

se defamatory statement(s)]. To establish this claim, [name of plaintiff]
Liability
[3. That [this person/these people] reasonably understood the
e.g., “[name of plaintiff] had committed a crime”];]
4. That the statement(s) [was/were] false; and
5. That [name of defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s).
Actual Damages
to recover [his/her] actual damages if [he/she] proves that [name of
defendant]’s wrongful conduct was a substantial factor in causing any of
the following:
or occupation;
Assumed Damages
If [name of plaintiff] has not proved any actual damages for harm to
reputation or shame, mortification, or hurt feelings but proves by clear
and convincing evidence that [name of defendant] knew the statement(s)
[was/were] false or that [he/she] had serious doubts about the truth of
the statement(s), then the law assumes that [name of plaintiff]’s
reputation has been harmed and that [he/she] has suffered shame,
mortification, or hurt feelings. Without presenting evidence of damage,
976

[name of plaintiff] is entitled to receive compensation for this assumed

harm in whatever sum you believe is reasonable. You must award at
least a nominal sum, such as one dollar.
Punitive Damages
of defendant] either knew the statement(s) [was/were] false or had
serious doubts about the truth of the statement(s), and that [he/she]
acted with malice, oppression, or fraud.
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).
977


• “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 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.)
• A private plaintiff is not required to prove malice to recover actual damages.
(Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347–348 [94 S.Ct. 2997, 41
L.Ed.2d 789]; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 742 [257
Cal.Rptr. 708, 771 P.2d 406].)
• “ ‘[I]f the issue was being debated publicly and if it had foreseeable and
substantial ramifications for nonparticipants, it was a public controversy.’ ”
(Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831].)
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
• The jury should be instructed that the defendant’s negligence is an element of
libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against
Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)
• “When the speech involves a matter of public concern, a private-figure plaintiff
has the burden of proving the falsity of the defamation.” (Brown, supra, 48
Cal.3d at p. 747.)
• “Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed,
978

the more customary types of actual harm inflicted by defamatory falsehood

include impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. Of course, juries must be limited
by appropriate instructions, and all awards must be supported by competent
evidence concerning the injury, although there need be no evidence which
assigns an actual dollar value to the injury.” (Gertz, supra, 418 U.S. at p. 350.)
• 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 only required to prove 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].)
• “A private-figure plaintiff must prove at least negligence to recover any
damages and, when the speech involves a matter of public concern, he must
also prove New York Times malice . . . to recover presumed or punitive
damages. This malice must be established by ‘clear and convincing proof.’ ”
(Brown, supra, 48 Cal.3d at p. 747, internal citations omitted.)
• When the court is instructing on punitive damages, it is error to fail to instruct
that New York Times malice is required when the statements at issue involve
matters of public concern. (Carney, supra, 221 Cal.App.3d at p. 1022.)
• “To prove actual malice . . . a plaintiff must ‘demonstrate with clear and
convincing evidence that the defendant realized that his statement was false or
that he subjectively entertained serious doubts as to the truth of his statement.’ ”
(Khawar, supra, 19 Cal.4th at p. 275, internal citation omitted.)
• “Because actual malice is a higher fault standard than negligence, a finding of
actual malice generally includes a finding of negligence . . . .” (Khawar, supra,
19 Cal.4th at p. 279.)
• “The inquiry into the protected status of speech is one of law, not fact.”
(Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54
Cal.Rptr.2d 781], quoting Connick v. Myers (1983) 461 U.S. 138, 148, fn. 7
[103 S.Ct. 1684, 75 L.Ed.2d 708].)
• “For the New York Times standard to be met, ‘the publisher must come close to
willfully blinding itself to the falsity of its utterance.’ ” (Brown, supra, 48
Cal.3d at p. 747, internal citation omitted.)
• “ ‘While such speech is not totally unprotected by the First Amendment, its
protections are less stringent’ [than that applying to speech on matters of public
concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434,
Secondary Sources
Bender)
979

§§ 340.12–340.13, 340.18 (Matthew Bender)

§§ 142.30–142.40, 142.87 et seq. (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
980

1703. Defamation per quod—Essential Factual Elements (Private

Figure—Matter of Public Concern)

making [one or more of] the following statement(s): [insert all claimed
per quod defamatory statements]. To establish this claim, [name of
Liability
4. That the statement(s) [was/were] false;
determine the truth or falsity of the statement(s);
7. That the statements [was/were] a substantial factor in causing
Actual Damages
to recover if [he/she] proves that [name of defendant]’s wrongful conduct
was a substantial factor in causing any of the following actual damages:
or occupation;
Punitive Damages
981


of defendant] either knew the statement(s) [was/were] false or had
serious doubts about the truth of the statement(s), and that [he/she]
acted with malice, oppression, or fraud.
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.
quod case.
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
• “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].)
982


Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
Cal.App.4th at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
defamatory meaning, the pleader must do two things: (1) Allege his
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
are only required to prove negligence to recover damages for actual injury to
Cal.Rptr.2d 178, 965 P.2d 696].)
• “ ‘[I]f the issue was being debated publicly and if it had foreseeable and
substantial ramifications for nonparticipants, it was a public controversy.’ ”
(Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831], quoting
Waldbaum v. Fairchild Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287,
1297.)
• 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
983


• 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].)
Secondary Sources
Bender)
§§ 340.11, 340.13 (Matthew Bender)
§§ 142.30–142.40 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
984

1704. Defamation per se—Essential Factual Elements (Private


se defamatory statement(s)]. To establish this claim, [name of plaintiff]
Liability
3. [That [this person/these people] reasonably understood the
e.g., “[name of plaintiff] had committed a crime”]];
determine the truth or falsity of the statement(s).
Actual Damages
[If [name of plaintiff] has proved all of the above, then [he/she] is
entitled to recover [his/her] actual damages if [he/she] proves that [name
of defendant]’s wrongful conduct was a substantial factor in causing any
of the following:
or occupation;
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm
to reputation or shame, mortification or hurt feelings, the law assumes
that [he/she] has suffered this harm. Without presenting evidence of
damage, [name of plaintiff] is entitled to receive compensation for this
assumed harm in whatever sum you believe is reasonable. You must
award at least a nominal sum, such as one dollar.
Punitive Damages
985


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.
No. 1700, Defamation per se—Essential Factual Elements (Public Offıcer/Figure
• “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,
986

• The jury should be instructed that the defendant’s negligence is an element of

libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against
Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)
• “A private-figure plaintiff must prove at least negligence to recover any
damages and, when the speech involves a matter of public concern, he must
also prove New York Times malice . . . to recover presumed or punitive
damages.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257
Cal.Rptr. 708, 771 P.2d 406].)
• “The First Amendment trumps the common law presumption of falsity in
defamation cases involving private-figure plaintiffs when the allegedly
defamatory statements pertain to a matter of public interest.” (Nizam-Aldine v.
City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781].)
• “Thus, in a defamation action the burden is normally on the defendant to prove
the truth of the allegedly defamatory communications. However, in
accommodation of First Amendment considerations (which are implicated by
state defamation laws), where the plaintiff is a public figure, the ‘public-figure
plaintiff must show the falsity of the statements at issue in order to prevail in a
suit for defamation.’ ” (Stolz, supra, 30 Cal.App.4th at p. 202, internal citations
omitted.)
• “Since the statements at issue here involved a matter of purely private concern
communicated between private individuals, we do not regard them as raising a
First Amendment issue. ‘While such speech is not totally unprotected by the
First Amendment, its protections are less stringent’ [than that applying to speech
on matters of public concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305], quoting Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc. (1985) 472 U.S. 749, 760 [105 S.Ct. 2939, 86
L.Ed.2d 593], internal citation omitted.)
• “We conclude that permitting recovery of presumed and punitive damages in
defamation cases absent a showing of ‘actual malice’ does not violate the First
Amendment when the defamatory statements do not involve matters of public
concern.” (Dun & Bradstreet, Inc., supra, 472 U.S. at p. 763.)
• “When the speech is of exclusively private concern and the plaintiff is a private
figure, as in Dun & Bradstreet, the constitutional requirements do not
necessarily force any change in at least some of the features of the common-law
landscape.” (Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 775
[106 S.Ct. 1558, 89 L.Ed.2d 783].)
987


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
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.” (Eisenberg v.
Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382 [88 Cal.Rptr.2d 802].)
Secondary Sources
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.18
(Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
988

1705. Defamation per quod—Essential Factual Elements (Private


making [one or more of] the following statement(s): [insert all claimed
per quod defamatory statements]. To establish this claim, [name of
Liability
determine the truth or falsity of the statement(s);
6. That the statement(s) [was/were] a substantial factor in causing
Actual Damages
to recover if [he/she] proves that [name of defendant]’s wrongful conduct
was a substantial factor in causing any of the following actual damages:
or occupation;
Punitive Damages
989


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.
quod case.
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
• “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].)
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
990

Cal.App.4th at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
defamatory meaning, the pleader must do two things: (1) allege his
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
are required to prove only negligence to recover damages for actual injury to
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
• 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].)
Secondary Sources
991

Bender)
§§ 340.12–340.13 (Matthew Bender)
§§ 142.20–142.32 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
992

The word “statement” in these instructions refers to any form of

communication or representation, including spoken or written words
[or] pictures [or] [insert audible or visual representations].
New September 2003

Directions for Use
This instruction may be necessary in every case, but could be useful in cases where
defamatory material is not written or verbal.
• Libel. Civil Code section 45.
• Slander. Civil Code section 46.
Secondary Sources
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.02 (Matthew Bender)
(Matthew Bender)
993

For [name of plaintiff] to recover, [name of defendant]’s statement(s) must

have been [a] statement(s) of fact, not opinion. A statement of fact is one
that can be proved to be true or false. In some circumstances, [name of
plaintiff] may recover if a statement phrased as an opinion implies that
a false statement of fact is true.
In deciding this issue, you should consider whether the average [reader/
listener] would conclude from the language of the statement and its
context that [name of defendant] was implying that a false statement of
fact is true.

Directions for Use
Give this instruction only if the court concludes that a statement could reasonably
be construed as implying a false assertion of fact. (See Campanelli v. Regents of
Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [51 Cal.Rptr.2d 891].)
• “ ‘Because [a defamatory] statement must contain a provable falsehood, courts
distinguish between statements of fact and statements of opinion for purposes of
defamation liability. Although statements of fact may be actionable as libel,
statements of opinion are constitutionally protected. [Citation.]’ That does not
mean that statements of opinion enjoy blanket protection. On the contrary,
where an expression of opinion implies a false assertion of fact, the opinion can
constitute actionable defamation. The ‘crucial question of whether challenged
statements convey the requisite factual imputation is ordinarily a question of
law for the court. [Citation.]’ ‘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.
[Citations.]’ ” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695–696
• “Thus, our inquiry is not merely whether the statements are fact or opinion, but
‘ “whether a reasonable fact finder could conclude the published statement
declares or implies a provably false assertion of fact.” ’ ” (Hawran v. Hixson
• “In defining libel and slander, Civil Code sections 45 and 46 both refer to a
‘false . . . publication . . . .’ This statutory definition can be meaningfully
applied only to statements that are capable of being proved as false or true.”
(Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26
Cal.Rptr.2d 305].)
994

• “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative

expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative
sense’ have all been accorded constitutional protection.” (Ferlauto v. Hamsher
• “Deprecatory statements regarding the merits of litigation are “nothing more
than ‘the predictable opinion’ of one side to the lawsuit” and cannot be the
basis for a defamation claim.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220
• “If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge
of facts which lead to the conclusion that Jones told an untruth. Even if the
speaker states the facts upon which he bases his opinion, if those facts are
either incorrect or incomplete, or if his assessment of them is erroneous, the
statement may still imply a false assertion of fact.” (Milkovich v. Lorain Journal
Co. (1990) 497 U.S. 1, 18 [110 S.Ct. 2695, 111 L.Ed.2d 1].)
• “[W]hen a communication identifies non-defamatory facts underlying an
opinion, or the recipient is otherwise aware of those facts, a negative statement
of opinion is not defamatory. As explained in the Restatement Second of Torts,
a ‘pure type of expression of opinion’ occurs ‘when both parties to the
communication know the facts or assume their existence and the comment is
clearly based on those assumed facts and does not imply the existence of other
facts in order to justify the comment. The assumption of the facts may come
about because someone else has stated them or because they were assumed by
both parties as a result of their notoriety or otherwise.’ Actionable statements of
opinion are ‘the mixed type, [where] an opinion in form or context, is
apparently based on facts regarding the plaintiff or his conduct that have not
been stated by the defendant [but] gives rise to the inference that there are
undisclosed facts that justify the forming of the opinion.’ ” (John Doe 2 v.
citation omitted.)
• “Even if an opinion can be understood as implying facts capable of being
proved true or false, however, it is not actionable if it also discloses the
underlying factual bases for the opinion and those statements are true.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87,
100 [201 Cal.Rptr.3d 782].)
• “California courts have developed a ‘totality of the circumstances’ test to
determine whether an alleged defamatory statement is one of fact or of opinion.
First, the language of the statement is examined. For words to be defamatory,
they must be understood in a defamatory sense. Where the language of the
statement is ‘cautiously phrased in terms of apparency,’ the statement is less
likely to be reasonably understood as a statement of fact rather than opinion.”
(Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [228
Cal.Rptr. 206, 721 P.2d 87].)
• “The court must put itself in the place of an average reader and decide the
995

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
• “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
Secondary Sources
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
Bender)
(Matthew Bender)
California Civil Practice: Torts §§ 21:20–21:21 (Thomson Reuters)
996

[Name of plaintiff] claims that [name of defendant] is responsible for [his/

her] harm even though [name of defendant] did not communicate the
statement(s) to anyone other than [name of plaintiff]. To succeed, [name
1. That [name of defendant] made the statement(s) to [name of
plaintiff];
2. That [name of plaintiff] was under strong pressure to
communicate [name of defendant]’s statement(s) to another
person; and
3. That when [name of defendant] made the statements, [he/she]
should have known that [name of plaintiff] would be under strong
pressure to communicate them to another person.
If [name of plaintiff] has proved all of the above, then you must find that
[name of defendant] was responsible for the communication of the
statement(s).
New September 2003

• 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
done by the defendant.” The exception to the rule occurs “when it [is]
foreseeable that the defendant’s act would result in plaintiff’s publication to a
third person.” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d
1277, 1284 [286 Cal.Rptr. 198].)
• [A] “self-publication of the alleged defamatory statement may be imputed to the
originator of the statement if ‘the person defamed is operating under a strong
compulsion to republish the defamatory statement and the circumstances which
create the strong compulsion are known to the originator of the defamatory
statement at the time he communicates it to the person defamed.’ ” (Davis v.
Consolidated Freightways (1994) 29 Cal.App.4th 354, 373 [34 Cal.Rptr.2d
438], quoting McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787,
797–798 [168 Cal.Rptr. 89].)
• “This exception has been limited to a narrow class of cases, usually where a
plaintiff is compelled to republish the statements in aid of disproving them.”
(Live Oak Publishing Co., supra, 234 Cal.App.3d at p. 1285.)
• To determine if the coercion exception applies, the test is “whether ‘because of
some necessity he was under to communicate the matter to others, it was
reasonably to be anticipated that he would do so.’ ” (Live Oak Publishing Co.,
997


Secondary Sources
998

1709. Retraction: News Publication or Broadcast (Civ. Code,

§ 48a)
Because [name of defendant] is a [[daily/weekly] news

publication/broadcaster], [name of plaintiff] may recover only the
following:
(a) Damages to property, business, trade, profession, or occupation;
and
(b) Damages for money spent as a result of the defamation.
However, this limitation does not apply if [name of plaintiff] proves both
of the following:
1. That [name of plaintiff] demanded a correction of the statement
within 20 days of discovering the statement; and
2. That [name of defendant] did not publish an adequate correction;
2. [or]
2. That [name of defendant]’s correction was not substantially as
conspicuous as the original [publication/broadcast];
2. [or]
2. That [name of defendant]’s correction was not
[published/broadcast] within three weeks of [name of plaintiff]’s
demand.
New September 2003; Revised June 2016, May 2017; Renumbered from CACI No.
1722 November 2017
Directions for Use
The judge should decide whether the demand for a retraction was served in
compliance with the statute. (O’Hara v. Storer Communications, Inc. (1991) 231
Cal.App.3d 1101, 1110 [282 Cal.Rptr. 712].)
The statute is limited to actions “for damages for the publication of a libel in a
daily or weekly news publication, or of a slander by radio broadcast.” (Civ. Code,
§ 48a(a).) However, a “radio broadcast” includes television. (Civ. Code, § 48.5(4)
[the terms “radio,” “radio broadcast,” and “broadcast,” are defined to include both
visual and sound radio broadcasting]; Kalpoe v. Superior Court (2013) 222
Cal.App.4th 206, 210, 166 Cal.Rptr.3d 80].)
• Demand for Correction. Civil Code section 48a.
• “Under California law, a newspaper gains immunity from liability for all but
999

‘special damages’ when it prints a retraction satisfying the requirements of

section 48a.” (Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626,
1631 [263 Cal.Rptr. 410]; see also Twin Coast Newspapers, Inc. v. Superior
Court (1989) 208 Cal.App.3d 656, 660–661 [256 Cal.Rptr. 310].)
• “An equivocal or incomplete retraction obviously serves no purpose even if it is
published in ‘substantially as conspicuous a manner . . . as were the statements
claimed to be libelous.’ ” (Weller v. American Broadcasting Companies, Inc.
(1991) 232 Cal.App.3d 991, 1011 [283 Cal.Rptr. 644].)
Secondary Sources
(Matthew Bender)
1000

[Name of defendant] is not responsible for [name of plaintiff]’s harm, if

any, if [name of defendant] proves that [his/her/its] statement(s) about
[name of plaintiff] [was/were] true. [Name of defendant] does not have to
prove that the statement(s) [was/were] true in every detail, so long as
the statement(s) [was/were] substantially true.
New September 2003; Revised October 2008, May 2017

Directions for Use
This instruction is to be used only in cases involving private plaintiffs on matters
of private concern. In cases involving public figures or matters of public concern,
the burden of proving falsity is on the plaintiff. (Eisenberg v. Alameda Newspapers
• “Truth, of course, is an absolute defense to any libel action.” (Campanelli v.
Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 581–582 [51 Cal.Rptr.2d
891].)
• “California law permits the defense of substantial truth and would absolve a
defendant even if she cannot ‘justify every word of the alleged defamatory
matter; it is sufficient if the substance of the charge be proved true, irrespective
of slight inaccuracy in the details.’ ‘Minor inaccuracies do not amount to falsity
so long as ‘the substance, the gist, the sting, of the libelous charge be
justified.’ ” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141,
• “Put another way, the statement is not considered false unless it ‘would have a
different effect on the mind of the reader from that which the pleaded truth
would have produced.’ “(Jackson v. Mayweather (2017) 10 Cal.App.5th 1240,
1262–1263 [217 Cal.Rptr.3d 234].)
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, supra, 74 Cal.App.4th at p. 1382, original italics, internal
citations omitted.)
Secondary Sources
1001

(Matthew Bender)
1 California Civil Practice: Torts §§ 21:19, 21:52 (Thomson Reuters)
1002

[Name of defendant] is not responsible for [name of plaintiff]’s harm, if

any, if [he/she] proves that [name of plaintiff] consented, by words or
conduct, to [name of defendant]’s communication of the statement(s) to
others. In deciding whether [name of plaintiff] consented to the
communication, you should consider the circumstances surrounding the
words or conduct.

• Restatement Second of Torts, section 583, provides, in part: “[T]he consent of
another to the publication of defamatory matter concerning him is a complete
defense to his action for defamation.”
• “One of the oldest and most widely recognized defenses to the publication of
defamatory matter is the doctrine of consent, which has been classified as a
form of absolute privilege.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498
[153 Cal.Rptr. 499].)
• “One of the primary purposes of the doctrine of consent in defamation law is to
prevent a party from inviting or inducing indiscretion and thereby laying the
foundation of a lawsuit for his own pecuniary gain.” (Royer, supra, 90
• This rule applies when the plaintiff asks the defendant to repeat the statement to
others and when the plaintiff himself repeats the statements to others. (Royer,
supra, 90 Cal.App.3d at p. 498 [but see CACI No. 1708, Coerced Self-
Publication].)
Secondary Sources
(Matthew Bender)
1003


defendant] must prove that [he/she/it] first communicated the alleged
defamatory statement to a person other than [name of plaintiff] before
[insert date one year before date of filing]. [For statements made in a
publication, the claimed harm occurred when the publication was first
generally distributed to the public.]
[If, however, [name of plaintiff] proves that on [insert date one year before
date of filing] [he/she/it] had not discovered the facts constituting the
defamation, and with reasonable diligence could not have discovered
those facts, the lawsuit was filed on time.]
New April 2009; Renumbered from CACI No. 1724 November 2017
Directions for Use
filed within the applicable one-year limitation period for defamation. (See Code
Civ. Proc., § 340(c).)
If the defamation was published in a publication such as a book, newspaper, or
magazine, include the last sentence of the first paragraph, and do not include the
second paragraph The delayed-discovery rule does not apply to these statements.
(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250–1251 [7 Cal.Rptr.3d 576, 80
P.3d 676].) Otherwise, include the second paragraph if the plaintiff alleges that the
delayed-discovery rule avoids the limitation defense.
The plaintiff bears the burden of pleading and proving delayed discovery. (See
McKelvey v. Boeing North Am. Inc. (1999) 74 Cal.App.4th 151, 160 [86
Cal.Rptr.2d 645].) See also the Sources and Authority to CACI No. 455, Statute of
Limitations—Delayed Discovery.
The delayed discovery rule can apply to matters published in an inherently
secretive manner. (Hebrew Academy of San Francisco v. Goldman (2007) 42
Cal.4th 883, 894 [70 Cal.Rptr.3d 178, 173 P.3d 1004]. Modify the instruction if
inherent secrecy is at issue and depends on disputed facts. It is not clear whether
the plaintiff has the burden of proving inherent secrecy or the defendant has the
burden of proving its absence.
• One-Year Statute of Limitations. Code of Civil Procedure section 340.
• “In a claim for defamation, as with other tort claims, the period of limitations
commences when the cause of action accrues. . . . [A] cause of action for
defamation accrues at the time the defamatory statement is ‘published’ (using
1004

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.)
1005

• “ ‘. . . [C]ourts uniformly have rejected the application of the discovery rule to

libels published in books, magazines, and newspapers,’ stating that ‘although
application of the discovery rule may be justified when the defamation was
communicated in confidence, that is, “in an inherently secretive manner,” the
justification does not apply when the defamation occurred by means of a book,
magazine, or newspaper that was distributed to the public. [Citation.]’ ”
(Hebrew Academy of San Francisco, supra, 42 Cal.4th at p. 894, original italics,
Secondary Sources
Haning et al., California Practice Guide: Personal Injury (The Rutter Group)
¶ 5:176.10
1006

[Name of plaintiff] cannot recover damages from [name of defendant],

even if the statement(s) [was/were] false, unless [name of plaintiff] also
proves either:
1. That in making the statement(s), [name of defendant] acted with
hatred or ill will toward [him/her], showing [name of defendant]’s
willingness to vex, annoy, or injure [him/her]; or
2. That [name of defendant] had no reasonable grounds for believing
the truth of the statement(s).

Directions for Use
This instruction involves what is referred to as the “common interest” privilege of
Civil Code section 47(c). This statute grants a privilege against defamation to
communications made without malice on subjects of mutual interest. The defendant
privilege. The plaintiff then must prove malice. (Lundquist v. Reusser (1994) 7
• Common-Interest Privilege: Civil Code section 47(c).
• Malice Not Inferred: Civil Code section 48.
• “So, defendants contended, any publication was protected by the common
interest privilege in Civil Code section 47, subdivision (c), which extends a
privilege to statements made ‘without malice, to a person interested therein, (1)
by one who is also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing the motive for
the communication to be innocent, or (3) who is requested by the person
interested to give the information.’ ” (Barker v. Fox & Associates (2015) 240
• “Civil Code section 47 ‘extends a conditional privilege against defamation to
statements made without malice on subjects of mutual interests. [Citation.] This
privilege is “recognized where the communicator and the recipient have a
common interest and the communication is of a kind reasonably calculated to
protect or further that interest.” [Citation.] The “interest” must be something
other than mere general or idle curiosity, such as where the parties to the
communication share a contractual, business or similar relationship or the
defendant is protecting his own pecuniary interest. [Citation.] Rather, it is
restricted to ‘proprietary or narrow private interests.” [Citations.]’ ” (Hui v.
Sturbaum (2014) 222 Cal.App.4th 1109, 1118–1119 [166 Cal.Rptr.3d 569].)
1007

• “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is

established by a showing that the publication was motivated by hatred or ill will
towards the plaintiff or by a showing that the defendant lacked reasonable
grounds for belief in the truth of the publication and therefore acted in reckless
disregard of the plaintiff’s rights.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721
• “[M]alice [as used in Civil Code section 47(c)] has been defined as ‘a state of
mind arising from hatred or ill will, evidencing a willingness to vex, annoy or
injure another person.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d
711, 723 [257 Cal.Rptr. 708, 771 P.2d 406], internal citation omitted.)
• “[M]alice may not be inferred from the mere fact of the communication.”
(Barker, supra, 240 Cal.App.4th at p. 354.)
• “For purposes of establishing a triable issue of malice, ‘the issue is not the truth
or falsity of the statements but whether they were made recklessly without
reasonable belief in their truth.’ A triable issue of malice would exist if
[defendant] made a statement in reckless disregard of Employee’s rights that
[defendant] either did not believe to be true (i.e., he actually knew better) or
unreasonably believed to be true (i.e., he should have known better). In either
case, a fact finder would have to ascertain what [defendant] subjectively knew
and believed about the topic at the time he spoke.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal.App.4th 1510, 1540 [152 Cal.Rptr.3d 154],
• “[M]aliciousness cannot be derived from negligence. Malice entails more than
sloppiness or, as in this case, an easily explained typo.” (Bierbower v. FHP, Inc.
• “[I]f malice is shown, the privilege is not merely overcome; it never arises in
the first instance. . . . [T]he characterization of the privilege as qualified or
conditional is incorrect to the extent that it suggests the privilege is defeasible.”
(Brown, supra, 48 Cal.3d at p. 723, fn. 7.)
Secondary Sources
Chin, et al., California Practice Guide: Employment Litigation, Ch. 5-D,
Defamation, ¶ 5:435 et seq. (The Rutter Group)
(Matthew Bender)
California Civil Practice: Torts §§ 21:40–21:41 (Thomson Reuters)
1008

[Name of plaintiff] cannot recover damages from [name of defendant] if

[name of defendant] proves all of the following:
1. That [name of defendant]’s statement(s) [was/were] [reported in/
communicated to] [specify public journal in which statement(s)
appeared];
2. The [report/communication] was of [select the applicable statutory
context]
[a judicial, legislative, or other public official proceeding;]
[something said in the course of a judicial, legislative, or other public
official proceeding;]
[a verified charge or complaint made by any person to a public official
on which a warrant was issued;]
2. and
3. The [report/communication] was both fair and true.
New November 2017

Directions for Use
This instruction involves what is referred to as the “fair and true reporting
privilege” of Civil Code section 47(d). This statute grants an absolute privilege
against defamation for a fair and true report in, or a communication to, a public
journal, of a judicial, legislative, or other public official proceeding; or for anything
said in the course of the proceeding; or for a verified charge or complaint made by
any person to a public official, on which complaint a warrant has been issued.
An element of defamation is that the alleged defamatory statement is
“unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118 [166
Cal.Rptr.3d 569].) That would seem to suggest that the plaintiff must prove that a
privilege does not apply. Nevertheless, courts have held that it is the defendant’s
burden to prove that the statement is within the scope of the privilege, including
that it was fair and true. (Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 [158
Cal.Rptr.3d 332], disapproved on another ground in Baral v. Schnitt (2016) 1
Cal.5th 376, 396, fn. 11 [205 Cal.Rptr.3d 475, 376 P.3d 604].)
• Fair and True Reporting Privilege. Civil Code section 47(d).
• “Under section 47, subdivision (d), the fair and true reporting privilege protects
a ‘fair and true report in, or a communication to, a public journal, of . . . a
judicial . . . proceeding, or . . . anything said in the course thereof.’ It too is
1009

an absolute privilege—that is, it applies regardless of the defendants’ motive for

making the report—and forecloses a plaintiff from showing a probability of
prevailing on the merits.” (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768,
787 [214 Cal.Rptr.3d 358].)
• “The purpose of this privilege is to ensure the public interest is served by the
dissemination of information about events occurring in official proceedings and
with respect to verified charges or complaints resulting in the issuance of a
warrant.” (Burrill, supra, 217 Cal.App.4th at p. 397.)
• “Prior to 1997 subdivision (d) applied only to a fair and true report in a public
journal. Senate Bill No. 1540 (1995–1996 Reg. Sess.), sponsored by the
California Newspapers Publishers Association, amended the provision, effective
January 1, 1997, to add ‘or a communication to,’ so the privilege would extend,
as it does now, to both a fair and true report in and a communication to a
public journal concerning judicial, legislative or other public proceedings.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87,
• “The privilege applies if the substance of the publication or broadcast captures
the gist or sting of the statements made in the official proceedings.” (Burrill,
• “The defendant is entitled to a certain degree of ‘ “flexibility/literary license” ’
in this regard, such that the privilege will apply even if there is a slight
inaccuracy in details—one that does not lead the reader to be affected
differently by the report than he or she would be by the actual truth.”
(Argentieri, supra, 8 Cal.App.5th at pp. 787–788.)
• “[Plaintiff] further contends it was for a jury, not the trial court, to decide
whether [defendant]’s Statement was a fair and true report. Courts have stated
that the fairness and truth of a report is an issue of fact for the jury, if there is
any material factual dispute on the issue.” (Argentieri, supra, 8 Cal.App.5th at
p. 791, original italics.)
• “ ‘[W]hether or not a privileged occasion exists is for the court to decide, while
the effect produced by the particular words used in an article [or broadcast] and
the fairness of the report is a question of fact for the jury [citation].’ ‘[T]he
publication is to be measured by the natural and probable effect it would have
on the mind of the average reader [citations]. The standard of interpretation to
be used in testing alleged defamatory language is how those in the community
where the matter was published would reasonably understand it [citation]. In
determining whether the report was fair and true, the article [or broadcast] must
be regarded from the standpoint of persons whose function is to give the public
a fair report of what has taken place. The report is not to be judged by the
standard of accuracy that would be adopted if it were the report of a
professional law reporter or a trained lawyer [citation].’ ” (Burrill, supra, 217
• “At the very least, the difference between these accusations presents a question
1010

of fact with respect to whether the average listener would understand the
broadcast to capture the gist or sting of the citizen’s complaint, or whether the
charge made in the broadcast would affect the listener differently than that made
in the citizen’s complaint.” (Burrill, supra, 217 Cal.App.4th at p. 398.)
• “In evaluating the effect a publication has on the average reader, the challenged
language must be viewed in context to determine whether, applying a ‘totality
of the circumstances’ test, it is reasonably susceptible to the defamatory
meaning alleged by the plaintiff: ‘ “[A] defamatory meaning must be found, if
at all, in a reading of the publication as a whole.” [Citation.] “This is a rule of
reason. Defamation actions cannot be based on snippets taken out of context.” ’
(J-M Manufacturing Co., Inc., supra, 247 Cal.App.4th at p. 97, internal
citations omitted.)
• “[Defendant] bears the burden of proving the privilege applies.” (Burrill, supra,
• “ ‘A report of a judicial proceeding implies that some official action has been
taken by the officer or body whose proceedings are thus reported. The
publication, therefore, of the contents of preliminary pleadings such as a
complaint or petition, before any judicial action has been taken is not within the
rule stated in this Section. An important reason for this position has been to
prevent implementation of a scheme to file a complaint for the purpose of
establishing a privilege to publicize its content and then dropping the action.
(See Comment c). It is not necessary, however, that a final disposition be made
of the matter in question; it is enough that some judicial action has been taken
so that, in the normal progress of the proceeding, a final decision will be
rendered.’ ” (Burrill, supra, at p. 397, quoting Restatement 2d of Torts, § 611,
comment e.)
Secondary Sources
4 Levy et al., California Torts, Ch. 45, Intentional Torts and Other Theories of
Recovery, § 45.11 (Matthew Bender)
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, § 142.51
(Matthew Bender)
1011


[making a statement/taking an action] that cast doubts about [name of
plaintiff]’s ownership of [describe real or personal property, e.g., the
residence located at [address]]. To establish this claim, [name of plaintiff]
1. That [name of defendant] [made a statement/[specify other act,
e.g., recorded a deed] that cast doubts about [name of plaintiff]’s
ownership of the property;
2. That the [statement was made to a person other than [name of
plaintiff]/[specify other publication, e.g., deed became a public
record]];
3. That [the statement was untrue and] [name of plaintiff] did in
fact own the property;
4. That [name of defendant] [knew that/acted with reckless disregard
of the truth or falsity as to whether] [name of plaintiff] owned the
property;
5. That [name of defendant] knew or should have recognized that
someone else might act in reliance on the [statement/e.g., deed],
causing [name of plaintiff] financial loss;
6. That [name of plaintiff] did in fact suffer immediate and direct
financial harm because someone else acted in reliance on the
[statement/e.g., deed];
New December 2012

Directions for Use
Slander of title may be either by words or an act that clouds title to the property.
(See, e.g., Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011)
200 Cal.App.4th 656, 661 [132 Cal.Rptr.3d 781] [filing of lis pendens].) If the
slander is by means other than words, specify the means in element 1. If the
slander is by words, select the first option in element 2.
The privileges of Civil Code section 47 apply to actions for slander of title.
(Albertson v. Raboff (1956) 46 Cal.2d 375, 378–379 [295 P.2d 405].) The defendant
has the burden of proving privilege as an affirmative defense. (See Smith v.
Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630–631 [223
Cal.Rptr. 339].) If privilege is claimed, additional instructions will be necessary to
1012

state the affirmative defense and frame the privilege.

The privilege of Civil Code section 47(c), applicable to communications between
“interested” persons (see CACI No. 1723, Qualified Privilege), requires an absence
of malice. To defeat this privilege, the plaintiff must show malice defined as a state
of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or
injure another person. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723
[257 Cal.Rptr. 708, 771 P.2d 406].) While defendant has the burden of proving that
an allegedly defamatory statement falls within the scope of the common-interest
privilege, plaintiffs have the burden of proving 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].) Give CACI No. 1723 if the defendant presents evidence to put the
privilege of Civil Code section 47(c) at issue.
Beyond the privilege of Civil Code section 47(c), it would appear that actual
malice in the sense of ill will toward and intent to harm the plaintiff is not required
and that malice may be implied in law from absence of privilege (see Gudger v.
Manton (1943) 21 Cal.2d 537, 543–544 [134 P.2d 217], disapproved on other
grounds in Albertson, supra, 46 Cal.2d at p. 381.) or from the attempt to secure
property to which the defendant had no legitimate claim (see Spencer v. Harmon
Enterprises, Inc. (1965) 234 Cal.App.2d 614, 623 [44 Cal.Rptr. 683].) or from
accusations made without foundation (element 4) (See Contra Costa County Title
Co. v. Waloff (1960) 184 Cal.App.2d 59, 67 [7 Cal.Rptr. 358].)
• “[S]lander of title is not a form of deceit. It is a form of the separate common
law tort of disparagement, also sometimes referred to as injurious falsehood.”
(Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1253
[214 Cal.Rptr.3d 628].)
• “The Supreme Court has recently determined a viable disparagement claim,
which necessarily includes a slander of title claim, requires the existence of a
‘misleading statement that (1) specifically refers to the plaintiff’s product or
business and (2) clearly derogates that product or business. Each requirement
must be satisfied by express mention or by clear implication.’ ” (Finch
Aerospace Corp., supra, 8 Cal.App.5th at p. 1253.)
• “ ‘Slander of title is effected by one who without privilege publishes untrue and
disparaging statements with respect to the property of another under such
circumstances as would lead a reasonable person to foresee that a prospective
purchaser or lessee thereof might abandon his intentions. It is an invasion of the
interest in the vendibility of property. In order to commit the tort actual malice
or ill will is unnecessary. Damages usually consist of loss of a prospective
purchaser. To be disparaging a statement need not be a complete denial of title
in others, but may be any unfounded claim of an interest in the property which
throws doubt upon its ownership.’ ‘However, it is not necessary to show that a
particular pending deal was hampered or prevented, since recovery may be had
for the depreciation in the market value of the property.’ ” (M.F. Farming, Co.
1013

v. Couch Distributing Co. (2012) 207 Cal.App.4th 180, 198–199 [143

• “Slander of title ‘occurs when a person, without a privilege to do so, publishes
a false statement that disparages title to property and causes pecuniary loss.
[Citation.]’ The false statement must be ‘ “maliciously made with the intent to
defame.” ’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651 [142
• “One who publishes a false statement harmful to the interests of another is
subject to liability for pecuniary loss resulting to the other if (a) he intends for
publication of the statement to result in harm to interests of the other having a
pecuniary value, or either recognizes or should recognize that it is likely to do
so, and (b) he knows that the statement is false or acts in reckless disregard of
its truth or falsity.” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [206
Cal.Rptr. 259], quoting Rest. 2d Torts § 623A.)
• “One who, without a privilege to do so, publishes matter which is untrue and
disparaging to another’s property in land, chattels or intangible things under
such circumstances as would lead a reasonable man to foresee that the conduct
of a third person as purchaser or lessee thereof might be determined thereby is
liable for pecuniary loss resulting to the other from the impairment of
vendibility thus caused.” (Chrysler Credit Corp. v. Ostly (1974) 42 Cal.App.3d
663, 674 [117 Cal.Rptr. 167], quoting Rest. Torts, § 624 [motor vehicle case].)
• “Sections 623A, 624 and 633 of the Restatement Second of Torts further refine
the definition so it is clear included elements of the tort are that there must be
(a) a publication, (b) which is without privilege or justification and thus with
malice, express or implied, and (c) is false, either knowingly so or made
without regard to its truthfulness, and (d) causes direct and immediate pecuniary
loss.” (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263–264 [169 Cal.Rptr.
678], footnote and internal citations omitted.)
• “Although the gravamen of an action for disparagement of title is different from
that of an action for personal defamation, substantially the same privileges are
recognized in relation to both torts in the absence of statute. Questions of
privilege relating to both torts are now resolved in the light of section 47 of the
Civil Code.” (Albertson, supra, 46 Cal.2d at pp. 378–379, internal citations
omitted.)
• “[The privilege of Civil Code section 47(c)] is lost, however, where the person
making the communication acts with malice. Malice exists where the person
making the statement acts out of hatred or ill will, or has no reasonable grounds
for believing the statement to be true, or makes the statement for any reason
other than to protect the interest for the protection of which the privilege is
given.” (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 285 [175 Cal.Rptr. 767],
disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219
[266 Cal.Rptr. 638, 786 P.2d 365].)
• “The existence of privilege is a defense to an action for defamation. Therefore,
1014

the burden is on the defendant to plead and prove the challenged publication
was made under circumstances that conferred the privilege.” (Palmer v.
Zaklama (2003) 109 Cal.App.4th 1367, 1380 [1 Cal.Rptr.3d 116] [applying rule
to slander of title].)
• “The principal issue presented in this case is whether the trial court properly
instructed the jury that, in the jury’s determination whether the common-interest
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,
• “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
1015

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,
• “[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
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 (11th ed. 2017) Torts § 747
6 Witkin, Summary of California Law (11th ed. 2017) Torts § 1886
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
(Matthew Bender)
1016


making a statement that disparaged [name of plaintiff]’s [specify product].
following:
1. That [name of defendant] made a statement that [would be clearly
or necessarily understood to have] disparaged the quality of
[name of plaintiff]’s [product/service];
2. That the statement was made to a person other than [name of
plaintiff];
3. That the statement was untrue;
4. That [name of defendant] [knew that the statement was untrue/
acted with reckless disregard of the truth or falsity of the
statement];
5. That [name of defendant] knew or should have recognized that
someone else might act in reliance on the statement, causing
[name of plaintiff] financial loss;
6. That [name of plaintiff] suffered direct financial harm because
someone else acted in reliance on the statement; and

Directions for Use
The tort of trade libel is a form of injurious falsehood similar to slander of title.
(See Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 548
[216 Cal.Rptr. 252]; Erlich v. Etner (1964) 224 Cal.App.2d 69, 74 [36 Cal.Rptr.
256].) The tort has not often reached the attention of California’s appellate courts
(see Polygram Records, Inc., supra, 170 Cal.App.3d at p. 548.), perhaps because of
the difficulty in proving damages. (See Erlich, supra, 224 Cal.App.2d at pp.
73–74.)
Include the optional language in element 1 if the plaintiff alleges that
disparagement may be reasonably implied from the defendant’s words.
Disparagement by reasonable implication requires more than a statement that may
conceivably or plausibly be construed as derogatory. A “reasonable implication”
means a clear or necessary inference. (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 295 [172 Cal.Rptr.3d 653, 326 P.3d 253].)
1017

Elements 4 and 5 are supported by section 623A of the Restatement 2d of Torts,

which has been accepted in California. (See Melaleuca, Inc. v. Clark (1998) 66
Cal.App.4th 1344, 1360–1361 [78 Cal.Rptr.2d 627].) There is some authority,
however, for the proposition that no intent or reckless disregard is required
(element 4) if the statement was understood in its disparaging sense and if the
understanding is a reasonable construction of the language used or the acts done by
the publisher. (See Nichols v. Great Am. Ins. Cos. (1985) 169 Cal.App.3d 766, 773
[215 Cal.Rptr. 416].)
The privileges of Civil Code section 47 almost certainly apply to actions for trade
libel. (See Albertson v. Raboff (1956) 46 Cal.2d 375, 378–379 [295 P.2d 405]
[slander-of-title case]; 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 651
[145 Cal.Rptr. 778] [publication by filing small claims suit is absolutely
privileged].) The defendant has the burden of proving privilege as an affirmative
defense. (See Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d
625, 630–631 [223 Cal.Rptr. 339].) If privilege is claimed, additional instructions
will be necessary to state the affirmative defense and frame the privilege. For
further discussion, see the Directions for Use to CACI No. 1730, Slander of
Title—Essential Factual Elements. See also CACI No. 1723, Common Interest
Privilege—Malice.
Limitations on liability arising from the First Amendment apply. (Hofmann Co. v.
E. I. du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 397 [248 Cal.Rptr.
384]; see CACI Nos. 1700–1703, instructions on public figures and matters of
public concern.) See also CACI No. 1707, Fact Versus Opinion.
• “Trade libel is the publication of matter disparaging the quality of another’s
property, which the publisher should recognize is likely to cause pecuniary loss
to the owner. [Citation.] The tort encompasses ‘all false statements concerning
the quality of services or product of a business which are intended to cause that
business financial harm and in fact do so.’ [Citation.] [¶] To constitute trade
libel, a statement must be false.” (City of Costa Mesa v. D’Alessio Investments,
• “To constitute trade libel the statement must be made with actual malice, that is,
with knowledge it was false or with reckless disregard for whether it was true
or false.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247
• “The distinction between libel and trade libel is that the former concerns the
person or reputation of plaintiff and the latter relates to his goods.” (Shores v.
Chip Steak Co. (1955) 130 Cal.App.2d 627, 630 [279 P.2d 595].)
• “[A]n action for ‘slander of title’ . . . is a form of action somewhat related to
trade libel . . . .” (Erlich, supra, 224 Cal.App.2d at p. 74.)
• “Confusion surrounds the tort of ‘commercial disparagement’ because not only
is its content blurred and uncertain, so also is its very name. The tort has
1018

received various labels, such as ‘commercial disparagement,’ ‘injurious

falsehood,’ ‘product disparagement,’ ‘trade libel,’ ‘disparagement of property,’
and ‘slander of goods.’ These shifting names have led counsel and the courts
into confusion, thinking that they were dealing with different bodies of law. In
fact, all these labels denominate the same basic legal claim.” (Hartford Casualty
Ins. Co., supra, 59 Cal.4th at p. 289.)
• “The protection the common law provides statements which disparage products
as opposed to reputations is set forth in the Restatement Second of Torts
sections 623A and 626. Section 623A provides: ‘One who publishes a false
statement harmful to the interests of another is subject to liability for pecuniary
loss resulting to the other if [P] (a) he intends for publication of the statement
to result in harm to interests of the other having a pecuniary value, or either
recognizes or should recognize that it is likely to do so, and [P](b) he knows
that the statement is false or acts in reckless disregard of its truth or falsity.’ [¶]
Section 626 of Restatement Second of Torts in turn states: ‘The rules on
liability for the publication of an injurious falsehood stated in § 623A apply to
the publication of matter disparaging the quality of another’s land, chattels or
intangible things, that the publisher should recognize as likely to result in
pecuniary loss to the other through the conduct of a third person in respect to
the other’s interests in the property.’ ” (Melaleuca, Inc., supra, 66 Cal.App.4th
at pp. 1360–1361, original italics.)
• “According to section 629 of the Restatement Second of Torts (1977), ‘[a]
statement is disparaging if it is understood to cast doubt upon the quality of
another’s land, chattels or intangible things, or upon the existence or extent of
his property in them, and [¶] (a) the publisher intends the statement to cast the
doubt, or [¶] (b) the recipient’s understanding of it as casting the doubt was
reasonable.’ ” (Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 288.)
• “What distinguishes a claim of disparagement is that an injurious falsehood has
been directed specifically at the plaintiff’s business or product, derogating that
business or product and thereby causing that plaintiff special damages.”
(Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 294, original italics.)
• “The Restatement [2d Torts] view is that, like slander of title, what is
commonly called ‘trade libel’ is a particular form of the tort of injurious
falsehood and need not be in writing.” (Polygram Records, Inc., supra, 170
• “While . . . general damages are presumed in a libel of a businessman, this is
not so in action for trade libel. Dean Prosser has discussed the problems in such
actions as follows: ‘Injurious falsehood, or disparagement, then, may consist of
the publication of matter derogatory to the plaintiff’s title to his property, or its
quality, or to his business in general, . . . The cause of action founded upon it
resembles that for defamation, but differs from it materially in the greater
burden of proof resting on the plaintiff, and the necessity for special damage in
all cases. . . . [The] plaintiff must prove in all cases that the publication has
played a material and substantial part in inducing others not to deal with him,
1019

and that as a result he has suffered special damages. . . . Usually, . . . the

damages claimed have consisted of loss of prospective contracts with the
plaintiff’s customers. Here the remedy has been so hedged about with
limitations that its usefulness to the plaintiff has been seriously impaired. It is
nearly always held that it is not enough to show a general decline in his
business resulting from the falsehood, even where no other cause for it is
apparent, and that it is only the loss of specific sales that can be recovered. This
means, in the usual case, that the plaintiff must identify the particular
purchasers who have refrained from dealing with him, and specify the
transactions of which he claims to have been deprived.’ ” (Erlich, supra, 224
Cal.App. 2d at pp. 73–74.)
• “Because the gravamen of the complaint is the allegation that respondents made
false statements of fact that injured appellant’s business, the ‘limitations that
define the First Amendment’s zone of protection’ are applicable. ‘[It] is
immaterial for First Amendment purposes whether the statement in question
relates to the plaintiff himself or merely to his property . . . .’ ” (Hofmann Co.,
• “If respondents’ statements about appellant are opinions, the cause of action for
trade libel must of course fail. ‘Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the competition
of other ideas. But there is no constitutional value in false statements of fact.’
Statements of fact can be true or false, but an opinion—‘a view, judgment, or
appraisal formed in the mind . . . [a] belief stronger than impression and less
strong than positive knowledge’—is the result of a mental process and not
capable of proof in terms of truth or falsity.” (Hofmann Co., supra, 202
Cal.App.3d at p. 397, footnote and internal citation omitted.)
• “[I]t is not absolutely necessary that the disparaging publication be intentionally
designed to injure. If the statement was understood in its disparaging sense and
if the understanding is a reasonable construction of the language used or the
acts done by the publisher, it is not material that the publisher did not intend
the disparaging statement to be so understood.” (Nichols, supra, 169 Cal.App.3d
at p. 773.)
• “Disparagement by ‘reasonable implication’ requires more than a statement that
may conceivably or plausibly be construed as derogatory to a specific product
or business. A ‘reasonable implication’ in this context means a clear or
necessary inference.” (Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 295,
Secondary Sources
1020


1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 9, Commercial Defamation, 9.04
1021

VF-1700. Defamation per se (Public Officer/Figure and Limited

Public Figure)

1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
se defamatory statement.]
1. Yes No
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
3. Did [this person/these people] reasonably understand the
statement to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”]?
3. Yes No
4. Was the statement false?
4. Yes No
5. 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?
5. Yes No
5. If your answer to question 5 is yes, then answer questions 6, 7,
and 8. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
1022

DEFAMATION VF-1700
ACTUAL DAMAGES
[name of plaintiff] actual harm?
6. Yes No
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
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
Signed:
Presiding Juror
1023

VF-1700 DEFAMATION
Dated:
New September 2003; Revised December 2005, April 2008, October 2008,
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).
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 is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
1024

VF-1701. Defamation per quod (Public Officer/Figure and Limited

Public Figure)

quod defamatory statement.]
1. Yes No
plaintiff]?
2. Yes No
3. Yes No
4. Yes No
5. Is the statement, because of facts known to the people who heard
or read it, the kind that would tend to injure [name of plaintiff]
in [his/her] occupation?
5. Yes No
1025

VF-1701 DEFAMATION
6. Did [name of plaintiff] suffer Harm to [his/her] property,

result of the statement]?
6. Yes No
ACTUAL DAMAGES
7. Yes No
7. If your answer to question 7 is yes, then answer questions 8. If
8. What are [name of plaintiff]’s actual damages?
[$ ]
PUNITIVE DAMAGES
9. Yes No
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
Signed:
Presiding Juror
Dated:
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
1026

DEFAMATION VF-1701
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).
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. 1701, Defamation per quod—Essential Factual Elements
(Public Offıcer/Figure and Limited Public Figure), 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.
1027

VF-1702. Defamation per se (Private Figure—Matter of Public

Concern)

1. Yes No
plaintiff]?
2. Yes No
3. Yes No
4. Yes No
5. Did [name of defendant] fail to use reasonable care to determine
the truth or falsity of the statement?
5. Yes No
ACTUAL DAMAGES
1028

DEFAMATION VF-1702

6. Yes No
defamatory statements? . . . . . . . . . . . . . . . $ ]
[d. Shame, mortification, or hurt feelings?. . . . . . . $ ]
either c or d, answer question 8. If [name of plaintiff] has proved
actual damages for both c and d, skip questions 8 and 9 and
answer question 10.]
ASSUMED DAMAGES
8. Yes No
assumed harm to [his/her] reputation and for shame,
nominal sum.
$
9. Regardless of your answer to question 9, skip question 10 and
answer question 11.
PUNITIVE DAMAGES
10. Yes No
1029

VF-1702 DEFAMATION

11. Yes No
12. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
Signed:
Presiding Juror
Dated:
Directions for Use
Factual Elements (Private Figure—Matter of Public Concern).
of actual damages for harm to reputation and for shame, mortification, or hurt
1030

DEFAMATION VF-1702

1031

VF-1703. Defamation per quod (Private Figure—Matter of Public

Concern)

1. Yes No
2. Did the [person/people] to whom the statement was made reasonably
understand that the statement was about [name of plaintiff]?
2. Yes No
3. Yes No
4. Yes No
5. Is the statement, because of facts known to the people who heard
or read the statement, the kind of statement that would tend to
injure [name of plaintiff] in [his/her] occupation?
5. Yes No
1032

DEFAMATION VF-1703

6. Yes No
7. Was the statement a substantial factor in causing [name of
7. Yes No
ACTUAL DAMAGES
[$ ]
8. If [name of plaintiff] has not proved any actual damages, stop
sign and date this form. If you awarded actual damages, answer
question 9.
PUNITIVE DAMAGES
9. Yes No
10. Has [name of plaintiff] proved by clear and convincing evidence
10. Yes No
$
1033

VF-1703 DEFAMATION
Signed:
Presiding Juror
Dated:
May 2017
Directions for Use
Proposition 51.
(Private Figure—Matter of Public Concern), depending on which ground is
1034

VF-1704. Defamation per se—Affirmative Defense—Truth (Private


1. Yes No
plaintiff]?
2. Yes No
3. Yes No
4. Was the statement substantially true?
4. Yes No
5. Yes No
ACTUAL DAMAGES
1035

VF-1704 DEFAMATION

6. Yes No
defamatory statements? . . . . . . . . . . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . $ ]
TOTAL $
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
assumed harm to [his/her] reputation and for shame,
nominal sum.
$
8. Regardless of your answer to question 8, answer question 9.
PUNITIVE DAMAGES
9. Yes No
$
1036

DEFAMATION VF-1704
Signed:
Presiding Juror
Dated:
Directions for Use
Factual Elements (Private Figure—Matter of Private Concern), and CACI No.
1720, Affirmative Defense—Truth. Delete question 4 if the affirmative defense of
the truth is not at issue.
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed
for each statement because all the elements will need to be found as to each
statement.
of actual damages for harm to reputation and for shame, mortification, or hurt
Additional questions on the issue of punitive damages may be needed if the
1037

VF-1704 DEFAMATION
1038

VF-1705. Defamation per quod (Private Figure—Matter of Private

Concern)

1. Yes No
plaintiff]?
2. Yes No
3. Yes No
4. Did the statement tend to injure [name of plaintiff] in [his/her]
occupation?
4. Yes No
5. Yes No
1039

VF-1705 DEFAMATION
6. Was the statement a substantial factor in causing [name of

6. Yes No
6. If your answer to question 6 is yes, then answer questions 7 and
8. If you answered no, stop here, answer no further questions,
and have the presiding juror sign and date this form.
ACTUAL DAMAGES
[a. Past economic loss, including harm to [name of plaintiff]’s
property, business, trade, profession, or occupation, and
expenses [name of plaintiff] had to pay as a result of the
defamatory statements
$ ]
[b. Future economic loss, including harm to [name of plaintiff]’s
property, business, trade, profession, or occupation, and
expenses [name of plaintiff] will have to pay as a result of the
defamatory statements
$ ]
[c. Past noneconomic loss including shame, mortification, or hurt
feelings, and harm to [name of plaintiff]’s reputation
$ ]
[d. Future noneconomic loss including shame, mortification, or
hurt feelings, and harm to [name of plaintiff]’s reputation
$ ]
TOTAL $
7. If [name of plaintiff] has not proved any actual damages, stop
sign and date this form. If you awarded actual damages, answer
question 8.
PUNITIVE DAMAGES
8. Yes No
1040

DEFAMATION VF-1705

$
Signed:
Presiding Juror
Dated:
May 2017
Directions for Use
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed
for each statement because all the elements will need to be found as to each
statement.
(Private Figure—Matter of Private Concern), depending on which ground is
If the affirmative defense of truth is at issue (see CACI No. 1720, Affırmative
Defense—Truth), include question 4 from VF-1704, Defamation per se—Affırmative
Defense—Truth (Private Figure—Matter of Private Concern). Additional questions
may be needed on the issue of punitive damages if the defendant is a corporate or
other entity.
Proposition 51.
1041

VF-1705 DEFAMATION
1042


1. Did [name of defendant] [make a statement/[specify other act, e.g.,
record a deed] that cast doubts about [name of plaintiff]’s
ownership of the property?
1. Yes No
2. [Was the statement made to a person other than [name of
plaintiff]/[Specify other publication, e.g., Did the deed become a
public record]]?
2. Yes No
3. Did [name of plaintiff] in fact own the property?
3. Yes No
4. Did [name of defendant] [know that/act with reckless disregard of
the truth or falsity as to whether] [name of plaintiff] owned the
property?
4. Yes No
5. Did [name of defendant] know or should [he/she] have recognized
that someone else might act in reliance on the [statement/e.g.,
deed], causing [name of plaintiff] financial loss?
5. Yes No
1043

VF-1720 DEFAMATION
6. Did [name of plaintiff] in fact suffer immediate and direct

financial harm because someone else acted in reliance on the
[statement/e.g., deed]?
6. Yes No
[name of plaintiff]’s harm?
7. Yes No
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 1730, Slander of Title—Essential Factual
Elements.
Slander of title may be either by words or an act that clouds title to the property.
(See, e.g., Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011)
200 Cal.App.4th 656, 661 [132 Cal.Rptr.3d 781] [filing of lis pendens].) If the
slander is by words, select the first option in question 2. If the slander is by means
other than words, specify the means in question 1 and how it became known to
others in question 2.
1044

DEFAMATION VF-1720
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
1045


1. Did [name of defendant] make a statement that [would be clearly
or necessarily understood to have] disparaged the quality of [name
of plaintiff]’s [product/service]?
1. Yes No
2. Was the statement made to a person other than [name of
plaintiff]?
2. Yes No
3. Was the statement untrue?
3. Yes No
4. Did [name of defendant] [know that the statement was untrue/act
with reckless disregard of the truth or falsity of the statement]?
4. Yes No
5. Did [name of defendant] know or should [he/she] have recognized
that someone else might act in reliance on the statement, causing
[name of plaintiff] financial loss?
5. Yes No
6. Did [name of plaintiff] suffer direct financial harm because
someone else acted in reliance on the statement?
1046

DEFAMATION VF-1721
6. Yes No
7. Yes No
[a. Past economic loss $ ]
[b. Future economic loss $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 1731, Trade Libel—Essential Factual
Elements.
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
1047

VF-1721 DEFAMATION
1048

1049

1050

RIGHT OF PRIVACY

1802. False Light
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs,
or Sports Broadcast or Account, or Political Campaign (Civ. Code,
§ 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First
Amendment (Comedy III)
1806. Affirmative Defense to Invasion of Privacy—First Amendment Balancing
Test—Public Interest
1810. Distribution of Private Sexually Explicit Materials—Essential Factual
Elements (Civ. Code, § 1708.85)
1820. Damages
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632,
637.2)
1051

[Name of plaintiff] claims that [name of defendant] violated [his/her] right

to privacy. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] had a reasonable expectation of privacy
in [specify place or other circumstance];
2. That [name of defendant] intentionally intruded in [specify place
or other circumstance];
3. That [name of defendant]’s intrusion would be highly offensive to
a reasonable person;
In deciding whether [name of plaintiff] had a reasonable expectation of
privacy in [specify place or other circumstance], you should consider,
(a) The identity of [name of defendant];
(b) The extent to which other persons had access to [specify place or
other circumstance] and could see or hear [name of plaintiff]; and
(c) The means by which the intrusion occurred.
In deciding whether an intrusion is highly offensive to a reasonable
person, you should consider, among other factors, the following:
(a) The extent of the intrusion;
(b) [Name of defendant]’s motives and goals; and
(c) The setting in which the intrusion occurred.

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.
• “Seventy years after Warren and Brandeis proposed a right to privacy, Dean
William L. Prosser analyzed the case law development of the invasion of
privacy tort, distilling four distinct kinds of activities violating the privacy
1052

RIGHT OF PRIVACY CACI No. 1800
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.
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
• “As to the first element of the common law tort, the defendant must have
1053

CACI No. 1800 RIGHT OF PRIVACY
‘penetrated some zone of physical or sensory privacy . . . or obtained

unwanted access to data’ by electronic or other covert means, in violation of the
law or social norms. In either instance, the expectation of privacy must be
‘objectively reasonable.’ In Sanders [supra, at p. 907] . . . , this court linked
the reasonableness of privacy expectations to such factors as (1) the identity of
the intruder, (2) the extent to which other persons had access to the subject
place, and could see or hear the plaintiff, and (3) the means by which the
intrusion occurred.” (Hernandez, supra, 47 Cal.4th at pp. 286–287.)
• The plaintiff does not have to prove that he or she had a “complete expectation
of privacy”: “Privacy for purposes of the intrusion tort must be evaluated with
respect to the identity of the alleged intruder and the nature of the intrusion.”
(Sanders, supra, 20 Cal.4th at pp. 917–918.)
• “The second common law element essentially involves a ‘policy’ determination
as to whether the alleged intrusion is ‘highly offensive’ under the particular
circumstances. Relevant factors include the degree and setting of the intrusion,
and the intruder’s motives and objectives. Even in cases involving the use of
photographic and electronic recording devices, which can raise difficult
questions about covert surveillance, ‘California tort law provides no bright line
on [“offensiveness”]; each case must be taken on its facts.’ ” (Hernandez, supra,
47 Cal. 4th at p. 287, internal citations omitted.)
• “While what is ‘highly offensive to a reasonable person’ suggests a standard
upon which a jury would properly be instructed, there is a preliminary
determination of ‘offensiveness’ which must be made by the court in discerning
the existence of a cause of action for intrusion. . . . A court determining the
existence of ‘offensiveness’ would consider the degree of intrusion, the context,
conduct and circumstances surrounding the intrusion as well as the intruder’s
motives and objectives, the setting into which he intrudes, and the expectations
of those whose privacy is invaded.” (Miller v. National Broadcasting Co. (1986)
187 Cal.App.3d 1463, 1483–1484 [232 Cal.Rptr. 668].)
• “Plaintiffs must show more than an intrusion upon reasonable privacy
expectations. Actionable invasions of privacy also must be ‘highly offensive’ to
a reasonable person, and ‘sufficiently serious’ and unwarranted as to constitute
an ‘egregious breach of the social norms.’ ” (Hernandez, supra, 47 Cal.4th at p.
• “[L]iability under the intrusion tort requires that the invasion be highly
offensive to a reasonable person, considering, among other factors, the motive
of the alleged intruder.” (Sanders, supra, 20 Cal.4th at p. 911, internal citations
omitted.)
• Damages flowing from an invasion of privacy “logically would include an
award for mental suffering and anguish.” (Miller, supra, 187 Cal.App.3d at p.
1484, citing Fairfield v. American Photocopy Equipment Co. (1955) 138
Cal.App.2d 82 [291 P.2d 194].)
• Related statutory actions can be brought for stalking (Civ. Code, § 1708.7),
1054

invasion of privacy to capture physical impression (Civ. Code, § 1708.8), and

eavesdropping and wiretapping (Pen. Code, § 637.2). Civil Code section 1708.8
was enacted in 1998 as an anti-paparazzi measure. To date there are no reported
cases based on this statute.
Secondary Sources
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.02 (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,
1055


the following:
1. That [name of defendant] publicized private information
concerning [name of plaintiff];
consider the publicity highly offensive;
3. That [name of defendant] knew, or acted with reckless disregard
of the fact, that a reasonable person in [name of plaintiff]’s
position would consider the publicity highly offensive;
4. That the private information was not of legitimate public
concern [or did not have a substantial connection to a matter of
legitimate public concern];
In deciding whether the information was a matter of legitimate public
concern, you should consider, among other factors, the following:
(a) The social value of the information;
(b) The extent of the intrusion into [name of plaintiff]’s privacy;
[and]
(c) Whether [name of plaintiff] consented to the publicity explicitly or
by voluntarily seeking public attention or a public office; [and]
(d) [Insert other applicable factor].
[In deciding whether [name of defendant] publicized the information, you
should determine whether it was made public either by communicating
it to the public at large or to so many people that the information was
substantially certain to become public knowledge.]
New September 2003

Directions for Use
Comment (a) to Restatement Second of Torts, section 652D states that “publicity”
1056

“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.
• “[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
• “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],
• “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
• “In analyzing the element of newsworthiness, appellate decisions ‘balance[] the
public’s right to know against the plaintiff’s privacy interest by drawing a
protective line at the point the material revealed ceases to have any substantial
connection to the subject matter of the newsworthy report.’ ” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1257 [217 Cal.Rptr.3d 234].)
• “ ‘[N]ewsworthiness is not limited to “news” in the narrow sense of reports of
current events. “It extends also to the use of names, likenesses or facts in giving
information to the public for purposes of education, amusement or
1057

enlightenment, when the public may reasonably be expected to have a

legitimate interest in what is published” ’ ” (Jackson, supra, 10 Cal.App.5th at
p. 1257.)
• “[T]here is a public interest which attaches to people who by their
accomplishments, mode of living, professional standing or calling, create a
legitimate and widespread attention to their activities. Certainly, the
accomplishments and way of life of those who have achieved a marked
reputation or notoriety by appearing before the public such as actors and
actresses [and] professional athletes, . . . may legitimately be mentioned and
discussed in print or on radio or television. Such public figures have to some
extent lost the right of privacy, and it is proper to go further in dealing with
their lives and public activities than with those of entirely private persons.”
(Jackson, supra, 10 Cal.App.5th at pp. 1257–1258.)
• “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
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],
• “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
• “[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
1058

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
Secondary Sources
Bender)
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
1059

1802. False Light

the following:
1. That [name of defendant] publicized information or material that
showed [name of plaintiff] in a false light;
2. That the false light created by the publication would be highly
offensive to a reasonable person in [name of plaintiff]’s position;
3. [That there is clear and convincing evidence that [name of
defendant] knew the publication would create a false impression
about [name of plaintiff] or acted with reckless disregard for the
truth;]
3. [or]
3. [That [name of defendant] was negligent in determining the truth
of the information or whether a false impression would be
created by its publication;]
4. [That [name of plaintiff] was harmed; and]
4. [or]
4. [That [name of plaintiff] sustained harm to [his/her] property,
result of the statement(s)]; and]
[In deciding whether [name of defendant] publicized the information or
material, you should determine whether it was made public either by
communicating it to the public at large or to so many people that the
information or material was substantially certain to become public
knowledge.]
New September 2003; Revised November 2017

Directions for Use
False light claims are subject to the same constitutional protections that apply to
defamation claims. (Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93
1060

Cal.Rptr. 866, 483 P.2d 34] [false light claim should meet the same requirements of
a libel claim, including proof of malice when required].) Thus, a knowing violation
of or reckless disregard for the plaintiff’s rights is required if the plaintiff is a
public figure or the subject matter of the communication is a matter of public
concern. Give the first option for element 3 if the publication involves a public
figure or a matter of public concern. Otherwise, give the second option.
If the jury will also be instructed on defamation, the court should consider whether
an instruction on false light would be superfluous and therefore need not be given.
(See Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13
[88 Cal.Rptr.2d 802]; see also Briscoe, supra, 4 Cal.3d at p. 543.)
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.” The final paragraph addressing this point has
been placed in brackets because it may not be an issue in every case.
• “ ‘False light is a species of invasion of privacy, based on publicity that places
a plaintiff before the public in a false light that would be highly offensive to a
reasonable person, and where the defendant knew or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the plaintiff
would be placed.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264
[217 Cal.Rptr.3d 234].)
• “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
claim, and should meet the same requirements of the libel claim . . . including
proof of malice and fulfillment of the requirements of [the retraction statute]
section 48a [of the Civil Code]”.’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal
citation omitted.)
• “The New York Times decision defined a zone of constitutional protection within
1061

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
• 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.
• “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
Bender)
Bender)
1062

1803. Appropriation of Name or Likeness—Essential Factual

Elements

the following:
1. That [name of defendant] used [name of plaintiff]’s name, likeness,
or identity;
2. That [name of plaintiff] did not consent to this use;
3. That [name of defendant] gained a commercial benefit [or some
other advantage] by using [name of plaintiff]’s name, likeness, or
identity;
New September 2003; Revised December 2014, November 2017

Directions for Use
If the alleged “benefit” is not commercial, the judge will need to determine whether
the advantage gained by the defendant qualifies as “some other advantage.”
If suing under both the common law and Civil Code section 3344, the judge may
need to explain that a person’s voice, for example, may qualify as “identity” if the
voice is sufficient to cause listeners to identify the plaintiff. The two causes of
action overlap, and the same conduct should be covered by both.
Even if the elements are established, the First Amendment may require that the
right to be protected from unauthorized publicity be balanced against the public
interest in the dissemination of news and information. (See Gionfriddo v. Major
League Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307].) In a
closely related right-of-publicity claim, the California Supreme Court has held that
an artist who is faced with a challenge to his or her work may raise as affirmative
defense that the work is protected by the First Amendment because 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]; see CACI No.
1805, Affırmative Defense to Use or Appropriation of Name or Likeness—First
Amendment (Comedy III).) Therefore, if there is an issue of fact regarding a First
1063

Amendment balancing test, it most probably should be considered to be an

affirmative defense. (Cf. Gionfriddo, supra, 94 Cal.App.4th at p. 414 [“Given the
significant public interest in this sport, plaintiffs can only prevail if they
demonstrate a substantial competing interest.”].)
• “A common law misappropriation claim is pleaded by ‘alleging: “(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. [Citations.]” [Citation.]’ ” (Maxwell v.
Dolezal (2014) 231 Cal.App.4th 93, 97 [179 Cal.Rptr.3d 807].)
• “ ‘[T]he right of publicity has come to be recognized as distinct from the right
of privacy’. ‘What may have originated as a concern for the right to be left
alone has become a tool to control the commercial use and, thus, protect the
economic value of one’s name, voice, signature, photograph, or likeness.’ ‘What
the right of publicity holder possesses is . . . a right to prevent others from
misappropriating the economic value generated . . . through the merchandising
of the ‘name, voice, signature, photograph, or likeness’ of the [holder].’ ”
(Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1006 [177
• “The common law cause of action may be stated by pleading the defendant’s
unauthorized use of the plaintiff’s identity; the appropriation of the plaintiff’s
name, voice, likeness, signature, or photograph to the defendant’s advantage,
commercially or otherwise; and resulting injury.” (Ross v. Roberts (2013) 222
• “Consent to the use of a name or likeness is determined by traditional principles
of contract interpretation.” (Local TV, LLC v. Superior Court (2016) 3
• “[T]he appearance of an ‘endorsement’ is not the sine qua non of a claim for
commercial appropriation.” (Eastwood v. Superior Court (1983) 149 Cal.App.3d
409, 419 [198 Cal.Rptr. 342].)
• “[N]o cause of action will lie for the ‘[p]ublication of matters in the public
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 (1995) 34 Cal.App.4th
• “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
1064

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].)
• “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
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35, 429.36
(Matthew Bender)
1065


the following:
1. That [name of defendant] knowingly used [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [on merchandise/ [or]
to advertise or sell [describe what is being advertised or sold]];
2. That the use did not occur in connection with a news, public
affairs, or sports broadcast or account, or with a political
campaign;
3. That [name of defendant] did not have [name of plaintiff]’s
consent;
4. That [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] was directly connected to [name of
defendant]’s commercial purpose;
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
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.
1066

RIGHT OF PRIVACY CACI No. 1804A
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].)
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “Civil Code section 3344 provides a statutory cause of action for commercial
misappropriation that complements, rather than codifies, the common law
misappropriation cause of action.” (Local TV, LLC v. Superior Court (2016) 3
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters v. Matthews (2000)78 Cal.App.4th 362, 367 [92 Cal.Rptr.2d 713].)
• “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
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
• “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
1067

CACI No. 1804A RIGHT OF PRIVACY
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, supra, 94 Cal.App.4th at pp. 416–417, internal citation omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35–429.36
(Matthew Bender)
§§ 184.22–184.24 (Matthew Bender)
1068

1804B. Use of Name or Likeness—Use in Connection With News,

Public Affairs, or Sports Broadcast or Account, or Political
Campaign (Civ. Code, § 3344(d))

the following:
1. That [name of defendant] knowingly used [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [on merchandise/ [or]
to advertise or sell [describe what is being advertised or sold]];
2. That the use occurred in connection with a [[news/public affairs/
sports] broadcast or account/political campaign];
3. That the use contained false information;
4. [Use for public figure: That [name of defendant] knew the
[broadcast or account/campaign material] was false or that [he/
she/it] acted with reckless disregard of its falsity;]
4. [or]
4. [Use for private individual: That [name of defendant] was negligent
in determining the truth of the [broadcast or account/campaign
material];]
5. That [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] was directly connected to [name of
defendant]’s commercial purpose;
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.
1069

CACI No. 1804B RIGHT OF PRIVACY
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.
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.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
• “[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
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.’ ”
1070

RIGHT OF PRIVACY CACI No. 1804B
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
• “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
• “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
1071

CACI No. 1804B RIGHT OF PRIVACY
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
Secondary Sources
Bender)
Bender)
1072

1805. Affirmative Defense to Use or Appropriation of Name or

Likeness—First Amendment (Comedy III)
[Name of defendant] claims that [he/she] has not violated [name of

plaintiff]’s right of privacy because the [insert type of work, e.g.,
“picture”] is protected by the First Amendment’s guarantee of freedom
of speech and expression. To succeed, [name of defendant] must prove
either of the following:
1. That the [insert type of work, e.g., “picture”] adds something new
to [name of plaintiff]’s likeness, giving it a new expression,
meaning, or message; or
2. That the value of the [insert type of work, e.g., “picture”] does not
result primarily from [name of plaintiff]’s fame.

Directions for Use
This instruction assumes that the plaintiff is the celebrity whose likeness is the
subject of the trial. This instruction will need to be modified if the plaintiff is not
the actual celebrity.
• “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.)
• “[C]ourts can often resolve the question as a matter of law simply by viewing
the work in question and, if necessary, comparing it to an actual likeness of the
person or persons portrayed. Because of these circumstances, an action
presenting this issue is often properly resolved on summary judgment or, if the
complaint includes the work in question, even demurrer.” (Winter v. DC Comics
1073

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,
• “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.,
• “[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
1074

containing a celebrity’s likeness is so transformed that it has become primarily

the defendant’s own expression rather than the celebrity’s likeness.’ This
transformative test is the court’s primary inquiry when resolving a conflict
between the right of publicity and the First Amendment.” (Ross v. Roberts
omitted.)
• “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, supra, 222 Cal.App.4th
at p. 687.)
• “The distinction between parody and other forms of literary expression is
irrelevant to the Comedy III transformative test. It does not matter what precise
literary category the work falls into. What matters is whether the work is
transformative, not whether it is parody or satire or caricature or serious social
commentary or any other specific form of expression.” (Winter, supra, 30
Cal.4th at p. 891.)
Secondary Sources
Wiseman & Reese, California Practice Guide: Civil Procedure Before Trial Claims
& Defenses, Ch. 4(VII)-C, Harm to Reputation and Privacy Interests, ¶ 4:1385
(The Rutter Group)
Bender)
1075

1806. Affirmative Defense to Invasion of Privacy—First

Amendment Balancing Test—Public Interest
[Name of defendant] claims that [he/she] has not violated [name of

plaintiff]’s right of privacy because the public interest served by [name of
defendant]’s [specify privacy violation, e.g., use of [name of plaintiff]’s
name, likeness, or identity] outweighs [name of plaintiff]’s privacy
interests. In deciding whether the public interest outweighs [name of
plaintiff]’s privacy interest, you should consider all of the following:
a. Where the information was used;
b. The extent of the use;
c. The public interest served by the use;
d. The seriousness of the interference with [name of plaintiff]’s
privacy; and
e. [specify other factors].
New June 2015

Directions for Use
This instruction sets forth a balancing test for a claim for invasion of privacy. A
defendant’s First Amendment right to freedom of expression and freedom of the
press can, in some cases, outweigh the plaintiff’s right of privacy (See Gionfriddo
v. Major League Baseball (2001) 94 Cal.App.4th 400, 409–410 [114 Cal.Rptr.2d
307]; see also Gill v. Hearst Publishing Co. Inc. (1953) 40 Cal.2d 224, 228–231
[253 P.2d 441].) This balancing test is an affirmative defense. (See Comedy III
Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106
Cal.Rptr.2d 126, 21 P.3d 797]; CACI No. 1805, Affırmative Defense to Use or
Appropriation of Name or Likeness—First Amendment (Comedy III).)
A First-Amendment defense based on newsworthiness has been allowed for the
defendant’s use of the plaintiff’s name or likeness. (See Gionfriddo, supra, 94
Cal.App.4th at pp. 409–411; see CACI No. 1804A.) It has also been allowed for
privacy claims based on intrusion into private affairs (see CACI No. 1800) and
public disclosure of private facts (See CACI No. 1802; Shulman v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 214–242 [74 Cal.Rptr.2d 843, 955 P.2d
469].) It has also been allowed for a claim that the plaintiff had been presented in a
false light (See CACI No. 1802; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d
273, 278–279 [239 P.2d 630] [magazine’s use of plaintiffs’ picture in connection
with article on divorce suggested that they were not happily married].)
• “[N]o cause of action will lie for the ‘[p]ublication of matters in the public
1076

press to tell it.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 34
• “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,
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.)
1077

• “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
Secondary Sources
Bender)
Bender)
1078

[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.

• “A defendant may prevail in a state constitutional privacy case by negating any
of the three elements just discussed or by pleading and proving, as an
affirmative defense, that the invasion of privacy is justified because it
substantively furthers one or more countervailing interests. The plaintiff, in turn,
may rebut a defendant’s assertion of countervailing interests by showing there
are feasible and effective alternatives to defendant’s conduct which have a lesser
impact on privacy interests. Of course, a defendant may also plead and prove
other available defenses, e.g., consent, unclean hands, etc., that may be
appropriate in view of the nature of the claim and the relief requested.” (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 [26 Cal.Rptr.2d 834,
865 P.2d 633].)
• “The existence of a sufficient countervailing interest or an alternative course of
conduct present threshold questions of law for the court. The relative strength
of countervailing interests and the feasibility of alternatives present mixed
questions of law and fact. Again, in cases where material facts are undisputed,
adjudication as a matter of law may be appropriate.” (Hill, supra, 7 Cal.4th at
p. 40.)
• “Hill and its progeny further provide that no constitutional violation occurs, i.e.,
a ‘defense’ exists, if the intrusion on privacy is justified by one or more
competing interests. For purposes of this balancing function—and except in the
rare case in which a ‘fundamental’ right of personal autonomy is involved—the
defendant need not present a ‘ “compelling” ’ countervailing interest; only
‘general balancing tests are employed.’ To the extent the plaintiff raises the
issue in response to a claim or defense of competing interests, the defendant
may show that less intrusive alternative means were not reasonably available. A
relevant inquiry in this regard is whether the intrusion was limited, such that no
confidential information was gathered or disclosed.” (Hernandez v. Hillsides,
1079

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
Bender)
Bender)
18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights,
1080


Revoked June 2015. See Stats 2014, Ch. 853 (AB 1356), substantially
amending Civ. Code, § 1708.7.
1081

1809. Recording of Confidential Information (Pen. Code, §§ 632,

637.2)

the following:
1. That [name of defendant] intentionally [eavesdropped
on/recorded] [name of plaintiff]’s conversation by using an
electronic device;
2. That [name of plaintiff] had a reasonable expectation that the
conversation was not being overheard or recorded; [and]
3. That [name of defendant] did not have the consent of all parties
to the conversation to [eavesdrop on/record] it;
4. [That [name of plaintiff] was harmed; and]
5. [That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.]
New September 2003

Directions for Use
Elements 4 and 5 are in brackets because if there is no actual harm, plaintiff can
recover the statutory penalty. If plaintiff is seeking actual damages, such damages
must be proven along with causation.
• Recording Confidential Communication. Penal Code section 632(a).
• Civil Action for Recording Confidential Communication. Penal Code section
637.2.
• “[A] conversation is confidential under section 632 if a party to that
conversation has an objectively reasonable expectation that the conversation is
not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th
766, 776–777 [117 Cal.Rptr.2d 574, 41 P.3d 575].)
• “ ‘A communication must be protected if either party reasonably expects the
communication to be confined to the parties.’ ” (Coulter v. Bank of America
National Trust and Savings Assn. (1994) 28 Cal.App.4th 923, 929 [33
• “While one who imparts private information risks the betrayal of his confidence
1082

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
• “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
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)
§ 184.25A (Matthew Bender)
1083

1810. Distribution of Private Sexually Explicit

Materials—Essential Factual Elements (Civ. Code, § 1708.85)

the following:
1. That [name of defendant] intentionally distributed by [specify
means, e.g., posting online] [a] [photograph(s)/film(s)/videotape(s)/
recording(s)/[specify other reproduction]] of [name of plaintiff];
2. That [name of plaintiff] did not consent to the distribution of the
[specify, e.g., photographs];
3. That [name of defendant] knew that [name of plaintiff] had a
reasonable expectation that the [e.g., photographs] would remain
private;
4. That the [e.g., photographs] [exposed an intimate body part of
[name of plaintiff]/ [or] showed [name of plaintiff] engaging in an
act of [intercourse/oral copulation/sodomy/ [or] [specify other act
of sexual penetration]];
[An “intimate body part” is any part of the genitals[, and, in the case of
a female, also includes any portion of the breast below the top of the
areola,] that is uncovered or visible through less than fully opaque
clothing.]
New December 2015

Directions for Use
This instruction is for use for an invasion-of-privacy cause of action for the
dissemination of sexually explicit materials. (See Civ. Code, § 1708.85(a).) It may
not be necessary to include the last definitional paragraph as the court may rule as
a matter of law that an intimate body part has been distributed. (See Civ. Code,
§ 1708.85(b).)
The plaintiff’s harm (element 5) is general or special damages as defined in
subdivision (d) of Civil Code section 48a. (Civ. Code, § 1708.85(a).) “General
damages” are damages for loss of reputation, shame, mortification and hurt
feelings. (Civ. Code, § 48a(d)(1).) “Special damages” are essentially economic loss.
(Civ. Code, § 48a(d)(2).)
1084


• Right of Action Against Distributor of Private Sexually Explicit Material. Civil
Code section 1708.85
• General and Special Damages. Civil Code section 48a(d)(1), (2)
Secondary Sources
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36A
(Matthew Bender)
§ 184.25B (Matthew Bender)
1085

1820. Damages

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.”
The amount of damages must include an award for all harm that was
caused by [name of defendant], even if the particular harm could not
have been anticipated.
[Name of plaintiff] must prove the amount of [his/her/its] 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]:
1. [Mental suffering/anxiety/humiliation/emotional distress;]
2. [Harm to reputation and loss of standing in the community;]
3. [The commercial value of [name of plaintiff]’s name or likeness;]
4. [Insert other applicable item of damage.]
No fixed standard exists for deciding the amount of damages for [insert
item of mental or emotional distress]. You must use your judgment to
decide a reasonable amount based on the evidence and your common
sense.
[To recover for future [insert item of mental or emotional distress], [name
of plaintiff] must prove that [he/she] is reasonably certain to suffer that
harm.]
New September 2003

Directions for Use
This instruction is not intended for cases involving invasion of privacy by false
light. Damages for false light are similar to the damages available in defamation
(see CACI Nos. 1700 to 1705).
Item 2 will probably not be relevant in all cases. It will have particular application
to the aspect of this tort involving the publication of private facts. (See Diaz v.
Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 137 [188 Cal.Rptr. 762].)
Item 3 is intended only for cases involving violation of privacy by appropriation.
• Restatement Second of Torts, section 652H provides:
1086

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.
• “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.
omitted.)
• “California recognizes the right to profit from the commercial value of one’s
1087

identity as an aspect of the right of publicity.” (Gionfriddo v. Major League

Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307], internal
citations omitted.)
• “What may have originated as a concern for the right to be left alone has
become a tool to control the commercial use and, thus, protect the economic
value of one’s name, voice, signature, photograph, or likeness.” (KNB
Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 366 [92 Cal.Rptr.2d 713].)
• “The first type of appropriation is the right of publicity . . . which is ‘in
essence that the reaction of the public to name and likeness, which may be
fortuitous or which may be managed or planned, endows the name and likeness
of the person involved with commercially exploitable opportunities.’ The other
is the appropriation of the name and likeness that brings injury to the feelings,
that concerns one’s own peace of mind, and that is mental and subjective.”
(Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 541–542 [18
Secondary Sources
Bender)
Bender)
1088

1821. Damages for Use of Name or Likeness (Civ. Code

§ 3344(a))
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
[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.
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.

Directions for Use
Under Civil Code section 3344(a), an injured party may recover either actual
damages or $750, whichever is greater, as well as profits 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].) If
no actual damages are sought, the first part of the instruction may be deleted or
modified to simply instruct the jury to award $750 if it finds liability.
1089

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.
• “[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
Secondary Sources
Bender)
Bender)
1090


California Civil Practice, Torts § 20:17 (Thomson Reuters)
1091


1. Did [name of plaintiff] have a reasonable expectation of privacy in
[specify place or other circumstance]?
1. Yes No
2. Did [name of defendant] intentionally intrude in [specify place or
other circumstance]?
2. Yes No
3. Would [name of defendant]’s intrusion be highly offensive to a
reasonable person?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1092

RIGHT OF PRIVACY VF-1800
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1800, Intrusion Into Private Affairs.
1093


1. Did [name of defendant] publicize private information concerning
1. Yes No
2. Would a reasonable person in [name of plaintiff]’s position
consider the publicity highly offensive?
2. Yes No
3. Did [name of defendant] know or act with reckless disregard of
the fact that a reasonable person in [name of plaintiff]’s position
would consider the publicity highly offensive?
3. Yes No
4. Was the private information of legitimate public concern [or did
it have a substantial connection to a matter of legitimate public
concern]?
4. Yes No
5. Yes No
1094


[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1801, Public Disclosure of Private Facts.
1095

VF-1801 RIGHT OF PRIVACY
1096


1. Did [name of defendant] publicize information or material that
showed [name of plaintiff] in a false light?
1. Yes No
2. Would a reasonable person in [name of plaintiff]’s position
consider the false light created by the publication to be highly
offensive?
2. Yes No
3. Is there clear and convincing evidence that [name of defendant]
either knew the publication would create a false impression
about [name of plaintiff] or acted with reckless disregard for the
truth?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1097


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1802, False Light.
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)]?”
1098


1099


1. Did [name of defendant] use [name of plaintiff]’s name, likeness, or
identity?
1. Yes No
2. Did [name of plaintiff] consent to the use of [his/her] name,
likeness, or identity?
3. Did [name of defendant] gain a commercial benefit [or some other
advantage] by using [name of plaintiff]’s name, likeness, or
identity?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1100

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
November 2017
Directions for Use
This verdict form is based on CACI No. 1803, Appropriation of Name or Likeness.
1101


1. Did [name of defendant] knowingly use [name of plaintiff]’s [name/
voice/signature/photograph/likeness] on merchandise or to
advertise or sell products or services?
1. Yes No
2. Did [name of defendant] have [name of plaintiff]’s consent?
2. Yes No
3. Was [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] directly connected to [name of
defendant]’s commercial purpose?
3. Yes No
4. Yes No
[5. Did [name of plaintiff] suffer any actual damages or is [name of
plaintiff] reasonably likely to suffer any actual damages in the
future?
[5. Yes No
[5. If your answer to question 5 is yes, then answer questions 6 and
7. If you answered no, answer question 7.]
1102

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[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
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:
1103

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.
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.
1104

VF-1807. Privacy—Recording of Confidential Information (Pen.

Code, §§ 632, 637.2)

1. Did [name of defendant] intentionally [eavesdrop on/record] [name
of plaintiff]’s conversation by using an electronic device?
1. Yes No
2. Did [name of plaintiff] have a reasonable expectation that the
conversation was not being overheard or recorded?
2. Yes No
3. Did [name of defendant] have the consent of all parties to the
conversation to [eavesdrop on/record] it?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1105


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 1809, Recording of Confidential
Information.
Questions 4 and 5 do not have to be read if the plaintiff is seeking the statutory
penalty only.
1106

1107


FRAUD OR DECEIT

1901. Concealment
1902. False Promise
1905. Definition of Important Fact/Promise
1907. Reliance
1109

[Name of plaintiff] claims that [name of defendant] made a false

representation that harmed [him/her/it]. To establish this claim, [name of
1. That [name of defendant] represented to [name of plaintiff] that a
fact was true;
2. That [name of defendant]’s representation was false;
3. That [name of defendant] knew that the representation was false
when [he/she] made it, or that [he/she] made the representation
recklessly and without regard for its truth;
4. That [name of defendant] intended that [name of plaintiff] rely on
the representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]’s
representation;
7. That [name of plaintiff]’s reliance on [name of defendant]’s
representation was a substantial factor in causing [his/her/its]
harm.

Directions for Use
Give this instruction in a case in which it is alleged that the defendant made an
intentional misrepresentation of fact. (See Civ. Code, § 1710(1).) If element 5 is
contested, give CACI No. 1907, Reliance, and CACI No. 1908, Reasonable
Reliance. If it is disputed that a representation was made, the jury should be
instructed that “a representation may be made orally, in writing, or by nonverbal
conduct.” (See Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567 [54
Cal.Rptr.2d 468].)
The representation must ordinarily be an affirmation of fact, as opposed to an
opinion. (See Cohen v. S&S Construction Co. (1983) 151 Cal.App.3d 941, 946
[201 Cal.Rptr. 173].) Opinions are addressed in CACI No. 1904, Opinions as
Statements of Fact.
• Actionable Deceit. Civil Code section 1709.
• Intentional Misrepresentation. Civil Code section 1710(1).
• Fraud in Contract Formation. Civil Code section 1572.
1110

FRAUD OR DECEIT CACI No. 1900
• “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
• “[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
• “ ‘[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],
1111

CACI No. 1900 FRAUD OR DECEIT
• “ ‘ “Misrepresentation, even maliciously committed, does not support a cause of

action unless the plaintiff suffered consequential damages.” ’ ” [Citation.]’
[Citation.] Indeed, ‘ “ ‘[a]ssuming . . . a claimant’s reliance on the actionable
misrepresentation, no liability attaches if the damages sustained were otherwise
inevitable or due to unrelated causes.’ [Citation.]” [Citation.] [If the defrauded
plaintiff would have suffered the alleged damage even in the absence of the
fraudulent inducement, causation cannot be alleged and a fraud cause of action
cannot be sustained.’ ” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982,
1008 [198 Cal.Rptr.3d 715].)
• “The law is well established that actionable misrepresentations must pertain to
past or existing material facts. Statements or predictions regarding future events
are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469 [169 Cal.Rptr.3d 619], internal
citation omitted.)
Secondary Sources
822, 826
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.19
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.80 et seq.
(Matthew Bender)
2 California Civil Practice: Torts, § 22:12 (Thomson Reuters)
1112

1901. Concealment

defendant] concealed certain information. To establish this claim, [name
[1. (a) That [name of defendant] and [name of plaintiff] were [insert
type of fiduciary relationship, e.g., “business partners”]; and
[1. (b) That [name of defendant] intentionally failed to disclose
certain facts to [name of plaintiff];]
[1. [or]
[1. That [name of defendant] disclosed some facts to [name of plaintiff]
but intentionally failed to disclose [other/another] fact[s], making
the disclosure deceptive;]
[1. [or]
[1. That [name of defendant] intentionally failed to disclose certain
facts that were known only to [him/her/it] and that [name of
plaintiff] could not have discovered;]
[1. [or]
[1. That [name of defendant] prevented [name of plaintiff] from
discovering certain facts;]
2. That [name of plaintiff] did not know of the concealed fact[s];
3. That [name of defendant] intended to deceive [name of plaintiff] by
concealing the fact[s];
4. That had the omitted information been disclosed, [name of
plaintiff] reasonably would have behaved differently;
6. That [name of defendant]’s concealment was a substantial factor
in causing [name of plaintiff]’s harm.
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
1113

usually be a duty to disclose arising from a fiduciary or confidential relationship

between the parties. However, in transactions that do not involve fiduciary or
confidential relations, a duty to disclose material facts may arise in at least three
instances: (1) the defendant makes representations but does not disclose facts that
materially qualify the facts disclosed, or that render his disclosure likely to mislead
(option 2); (2) the facts are known or accessible only to defendant, and defendant
knows they are not known to or reasonably discoverable by the plaintiff (option 3);
(3) the defendant actively conceals discovery from the plaintiff (option 4). (See
Warner Constr. Corp. v. L.A. (1970) 2 Cal.3d 285, 294 [85 Cal. Rptr. 444, 466 P.2d
996].) For the second, third, and fourth options, if the defendant asserts that there
was no relationship based on a transaction giving rise to a duty to disclose, the jury
should also be instructed to determine whether the requisite relationship existed.
(See Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187 [175
Cal.Rptr.3d 820].)
If element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance. To avoid any possible confusion created by using “rely on
the concealment” (see Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].), CACI Nos. 1907 and 1908 may be modified to
replace the words “rely,” “relied,” and “reliance” with language based on “behave
differently” from element 4. It must have been reasonable for the plaintiff to have
behaved differently had the omitted information been disclosed. (See Hoffman,
supra, 228 Cal.App.4th at p. 1194 [concealment case].)
• Concealment. Civil Code section 1710(3).
• “[T]he elements of an action for fraud and deceit based on a concealment are:
(1) the defendant must have concealed or suppressed a material fact, (2) the
defendant must have been under a duty to disclose the fact to the plaintiff, (3)
the defendant must have intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the
fact and would not have acted as he did if he had known of the concealed or
suppressed fact, and (5) as a result of the concealment or suppression of the
fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center,
• “A duty to speak may arise in four ways: it may be directly imposed by statute
or other prescriptive law; it may be voluntarily assumed by contractual
undertaking; it may arise as an incident of a relationship between the defendant
and the plaintiff; and it may arise as a result of other conduct by the defendant
that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v.
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
1114

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,
• “ ‘[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
• “While a reasonable jury could, and in this case did, find these warnings
inadequate for product liability purposes given [defendant]’s knowledge of the
risk of NFCI’s, these statements are not ‘misleading “half-truths” ’ that give rise
to a duty to disclose in the absence of an otherwise sufficient relationship or
transaction. To hold otherwise would unduly conflate two distinct areas of law,
products liability and fraud, and transform every instance of inadequate product
warning into a potential claim for fraud.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 313-314 [213 Cal.Rptr.3d 82].)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
1115


• “[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
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
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 11-E,
Damages For Fraud, ¶ 11:354 (The Rutter Group)
(Matthew Bender)
(Matthew Bender)
1116

1902. False Promise
[Name of plaintiff] claims [he/she] was harmed because [name of

defendant] made a false promise. To establish this claim, [name of
1. That [name of defendant] made a promise to [name of plaintiff];
2. That [name of defendant] did not intend to perform this promise
when [he/she] made it;
this promise;
promise;
5. That [name of defendant] did not perform the promised act;
promise was a substantial factor in causing [his/her/its] harm.

Directions for Use
Give this instruction in a case in which it is alleged that the defendant made a
promise without any intention of performing it. (See Civ. Code, § 1710(4).) If
element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance.
• Deceit. Civil Code section 1710.
• “ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do
something necessarily implies the intention to perform; hence, where a promise
is made without such intention, there is an implied misrepresentation of fact
that may be actionable fraud. [¶] An action for promissory fraud may lie where
a defendant fraudulently induces the plaintiff to enter into a contract.’ ”
(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974
• “Under Civil Code section 1709, one is liable for fraudulent deceit if he
‘deceives another with intent to induce him to alter his position to his injury or
risk . . . .’ Section 1710 of the Civil Code defines deceit for the purposes of
Civil Code section 1709 as, inter alia, ‘[a] promise, made without any intention
of performing it.’ ‘ “The elements of fraud, which give rise to the tort action for
deceit, are (a) misrepresentation (false representation, concealment, or
1117

nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud,

i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
[Citations.]’ Each element must be alleged with particularity.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1059–1060 [141 Cal.Rptr.3d 142], internal
citations omitted.)
• “A promise of future conduct is actionable as fraud only if made without a
present intent to perform. ‘A declaration of intention, although in the nature of a
promise, made in good faith, without intention to deceive, and in the honest
expectation that it will be fulfilled, even though it is not carried out, does not
constitute a fraud.’ Moreover, ‘ “something more than nonperformance is
required to prove the defendant’s intent not to perform his promise.” . . . [I]f
plaintiff adduces no further evidence of fraudulent intent than proof of
nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v.
Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225],
• “[I]n a promissory fraud action, to sufficiently allege defendant made a
misrepresentation, the complaint must allege (1) the defendant made a
representation of intent to perform some future action, i.e., the defendant made
a promise, and (2) the defendant did not really have that intent at the time that
the promise was made, i.e., the promise was false.” (Beckwith, supra, 205
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra,
205 Cal.App.4th at p. 1061.)
Secondary Sources
§ 40.03[1][a] (Matthew Bender)
(Matthew Bender)
(Matthew Bender)
1118

[Name of plaintiff] claims [he/she/it] was harmed because [name of

defendant] negligently misrepresented a fact. To establish this claim,
1. That [name of defendant] represented to [name of plaintiff] that a
fact was true;
2. That [name of defendant]’s representation was not true;
3. That [although [name of defendant] may have honestly believed
that the representation was true,] [[name of defendant]/he/she]
had no reasonable grounds for believing the representation was
true when [he/she] made it;
this representation;
representation;
representation was a substantial factor in causing [his/her/its]
harm.

Directions for Use
Give this instruction in a case in which it is alleged that the defendant made certain
representations with no reason to believe that they were true. (See Civ. Code,
§ 1710(2).) If element 5 is contested, give CACI No. 1907, Reliance, and CACI
No. 1908, Reasonable Reliance.
If both negligent misrepresentation and intentional misrepresentation are alleged in
the alternative, give both this instruction and CACI No.1900, Intentional
Misrepresentation. If only negligent misrepresentation is alleged, the bracketed
reference to the defendant’s honest belief in the truth of the representation in
element 3 may be omitted. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,
407–408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)
• Negligent Misrepresentation. Civil Code section 1710.
• “Negligent misrepresentation is a separate and distinct tort, a species of the tort
of deceit. ‘Where the defendant makes false statements, honestly believing that
they are true, but without reasonable ground for such belief, he may be liable
1119

for negligent misrepresentation, a form of deceit.’ ” (Bily, supra, 3 Cal.4th at

pp. 407, internal citations omitted.)
• “This is not merely a case where the defendants made false representations of
matters within their personal knowledge which they had no reasonable grounds
for believing to be true. Such acts clearly would constitute actual fraud under
California law. In such situations the defendant believes the representations to
be true but is without reasonable grounds for such belief. His liability is based
on negligent misrepresentation which has been made a form of actionable
deceit. On the contrary, in the instant case, the court found that the defendants
did not believe in the truth of the statements. Where a person makes statements
which he does not believe to be true, in a reckless manner without knowing
whether they are true or false, the element of scienter is satisfied and he is
liable for intentional misrepresentation.” (Yellow Creek Logging Corp. v. Dare
(1963) 216 Cal.App.2d 50, 57 [30 Cal.Rptr. 629], original italics, internal
citations omitted.)
• “The elements of negligent misrepresentation are (1) a misrepresentation of a
past or existing material fact, (2) made without reasonable ground for believing
it to be true, (3) made with the intent to induce another’s reliance on the fact
misrepresented, (4) justifiable reliance on the misrepresentation, and (5)
resulting damage.” (Ragland v. U.S. Bank National Assn. (2012) 209
• “ ‘To be actionable deceit, the representation need not be made with knowledge
of actual falsity, but need only be an “assertion, as a fact, of that which is not
true, by one who has no reasonable ground for believing it to be true” and
made “with intent to induce [the recipient] to alter his position to his injury or
his risk. . . .’ ” The elements of negligent misrepresentation also include
justifiable reliance on the representation, and resulting damage.” (B.L.M. v. Sabo
& Deitsch (1997) 55 Cal.App.4th 823, 834 [64 Cal.Rptr.2d 335], internal
citations omitted.)
• “[Plaintiffs] do not allege negligence. They allege negligent misrepresentation.
They are different torts, as the Supreme Court expressly observed in [Bily,
supra, 3 Cal.4th at p. 407]: ‘[N]either the courts (ourselves included), the
commentators, nor the authors of the Restatement Second of Torts have made
clear or careful distinctions between the tort of negligence and the separate tort
of negligent misrepresentation. The distinction is important not only because of
the different statutory bases of the two torts, but also because it has practical
implications for the trial of cases in complex areas . . . . [¶] Negligent
misrepresentation is a separate and distinct tort, a species of the tort of deceit.’
In short, the elements of each tort are different. Perhaps more importantly, the
policies behind each tort sometimes call for different results even when applied
to the same conduct.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 227−228
[170 Cal.Rptr.3d 293].)
• “As is true of negligence, responsibility for negligent misrepresentation rests
upon the existence of a legal duty, imposed by contract, statute or otherwise,
1120

owed by a defendant to the injured person. The determination of whether a duty

exists is primarily a question of law.” (Eddy v. Sharp (1988) 199 Cal.App.3d
858, 864 [245 Cal.Rptr. 211], internal citations omitted.)
• “The tort of negligent misrepresentation is similar to fraud, except that it does
not require scienter or an intent to defraud. . . . [T]he same elements of
intentional fraud also comprise a cause of action for negligent
misrepresentation, with the exception that there is no requirement of intent to
induce reliance . . . .” (Tenet Healthsystem Desert, Inc. v. Blue Cross of
California (2016) 245 Cal.App.4th 821, 845 [199 Cal.Rptr.3d 901], internal
citation omitted.)
• “ ‘ “Where the defendant makes false statements, honestly believing that they
are true, but without reasonable ground for such belief, he may be liable for
negligent misrepresentation, a form of deceit.” ’ If defendant’s belief ‘is both
honest and reasonable, the misrepresentation is innocent and there is no tort
liability.’ ” (Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 297
• “Parties cannot read something into a neutral statement in order to justify a
claim for negligent misrepresentation. The tort requires a ‘positive assertion.’
‘An “implied” assertion or representation is not enough.’ ” (Diediker, supra, 60
• “Whether a defendant had reasonable ground for believing his or her false
statement to be true is ordinarily a question of fact.” (Quality Wash Group V,
Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1696 [58 Cal.Rptr.2d 592], internal
citations omitted.)
(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062 [141 Cal.Rptr.3d 142].)
• “The law is well established that actionable misrepresentations must pertain to
past or existing material facts. Statements or predictions regarding future events
are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469 [169 Cal.Rptr.3d 619], internal
citation omitted.)
• “Where, as here, a negligent misrepresentation claim is brought against the
provider of a professional opinion based on special knowledge, information or
expertise regarding a company’s value, the California Supreme Court requires
the following: ‘The representation must have been made with the intent to
induce plaintiff, or a particular class of persons to which plaintiff belongs, to act
in reliance upon the representation in a specific transaction, or a specific type of
transaction, that defendant intended to influence. Defendant is deemed to have
intended to influence [its client’s] transaction with plaintiff whenever defendant
knows with substantial certainty that plaintiff, or the particular class of persons
1121

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
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)
(Matthew Bender)
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:13–22:15 (Thomson Reuters)
1122

Ordinarily, an opinion is not considered a representation of fact. An

opinion is a person’s belief that a fact exists, a statement regarding a
future event, or a judgment about quality, value, authenticity, or similar
matters. However, [name of defendant]’s opinion is considered a
representation of fact if [name of plaintiff] proves that:
[[Name of defendant] claimed to have special knowledge about the
subject matter that [name of plaintiff] did not have;] [or]
[[Name of defendant] made a representation, not as a casual
expression of belief, but in a way that declared the matter to be
true;] [or]
[[Name of defendant] had a relationship of trust and confidence with
[name of plaintiff];] [or]
[[Name of defendant] had some other special reason to expect that
[name of plaintiff] would rely on his or her opinion.]

Directions for Use
This is not a stand-alone instruction. It should be read in conjunction with one of
the elements instructions (CACI Nos. 1900–1903).
The second bracketed option appears to be limited to cases involving professional
opinions. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 408 [11 Cal.Rptr.2d
51, 834 P.2d 745].)
Alternative bracketed options that do not apply to the facts of the case may be
deleted.
• “Representations of opinion, particularly involving matters of value, are
ordinarily not actionable representations of fact. A representation is an opinion
‘ “if it expresses only (a) the belief of the maker, without certainty, as to the
existence of a fact; or (b) his judgment as to quality, value . . . or other matters
of judgment.” ’ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 606−607 [172 Cal.Rptr.3d 218], internal citations omitted.)
• “Plaintiffs cite the exceptions to the general rule that, to be actionable, a
misrepresentation must be of an existing fact, not an opinion or prediction of
future events. They arise ‘(1) where a party holds himself out to be specially
qualified and the other party is so situated that he may reasonably rely upon the
former’s superior knowledge; (2) where the opinion is by a fiduciary or other
trusted person; (3) where a party states his opinion as an existing fact or as
1123

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
• “[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
• “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
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50
1124

(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)
1125

1905. Definition of Important Fact/Promise
Revoked December 2013

See CACI No. 1908, Reasonable Reliance.
1126

1906. Misrepresentations Made to Persons Other Than the

Plaintiff
[Name of defendant] is responsible for a representation that was not

made directly to [name of plaintiff] if [he/she/it] made the representation
[to a group of persons including [name of plaintiff]] [or] [to another
person, intending or reasonably expecting that it would be repeated to
[name of plaintiff]].
New September 2003

Directions for Use
An instruction on concealment made to a person other than the plaintiff is not
necessary; this point is covered by the third option of element 1 in CACI
No. 1901, Concealment.
• Intent to Defraud Class. Civil Code section 1711.
• “It is true that in order for a defendant to be liable for fraud, he or she must
intend that a particular representation (or concealment) be relied upon by a
specific person or persons. However, it is also established that a defendant
cannot escape liability if he or she makes a representation to one person while
intending or having reason to expect that it will be repeated to and acted upon
by the plaintiff (or someone in the class of persons of which plaintiff is a
member). This is the principle of indirect deception described in section 533 of
the Restatement Second of Torts (section 533): ‘The maker of a fraudulent
misrepresentation is subject to liability for pecuniary loss to another who acts in
justifiable reliance upon it if the misrepresentation, although not made directly
to the other, is made to a third person and the maker intends or has reason to
expect that its terms will be repeated or its substance communicated to the
other, and that it will influence his conduct in the transaction or type of
transaction involved.’ Comment d to section 533 makes it clear the rule of
section 533 applies where the maker of the misrepresentation has information
that gives him special reason to expect that the information will be
communicated to others and will influence their conduct. Comment g goes on to
explain that it is not necessary that the maker of the misrepresentation have the
particular person in mind. It is enough that it is intended to be repeated to a
particular class of persons.” (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534,
1548 [76 Cal.Rptr.2d 101], internal citations omitted; see also Geernaert v.
Mitchell (1995) 31 Cal.App.4th 601, 605–606 [37 Cal.Rptr.2d 483].)
• “[L]iability for a fraud worked on an agent is imposed where it is the agent
who not only places reliance on the misrepresentations, but also makes the
decision and takes action based upon the misrepresentations.” (Hasso v. Hapke
1127


• “The maker of a fraudulent misrepresentation is subject to liability for
pecuniary loss to another who acts in justifiable reliance upon it if the
misrepresentation, although not made directly to the other, is made to a third
person and the maker intends or has reason to expect that its terms will be
repeated or its substance communicated to the other, and that it will influence
his conduct in the transaction or type of transactions involved.” (Hasso, supra,
Secondary Sources
(Matthew Bender)
1128

1907. Reliance
[Name of plaintiff] relied on [name of defendant]’s

[misrepresentation/concealment/false promise] if:
1. The [misrepresentation/concealment/false promise] substantially
influenced [him/her/it] to [insert brief description of the action,
e.g., “buy the house”]; and
2. [He/She/It] would probably not have [e.g., bought the house]
without the [misrepresentation/concealment/false promise].
It is not necessary for a [misrepresentation/concealment/false promise]
to be the only reason for [name of plaintiff]’s conduct.

Directions for Use
Give this instruction with one of the fraud causes of action (see CACI Nos.
1900–1903), all of which require actual reliance on the statement or omission at
issue. Reliance must be both actual and reasonable. Give also CACI No. 1908,
Reasonable Reliance.
• “It is settled that a plaintiff, to state a cause of action for deceit based on a
misrepresentation, must plead that he or she actually relied on the
misrepresentation.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [23
• “Actual reliance occurs when a misrepresentation is ‘ “an immediate cause of [a
plaintiff’s] conduct, which alters his legal relations,” ’ and when, absent such
representation, ‘ “he would not, in all reasonable probability, have entered into
the contract or other transaction.” ’ ‘It is not . . . necessary that [a plaintiff’s]
reliance upon the truth of the fraudulent misrepresentation be the sole or even
the predominant or decisive factor in influencing his conduct. . . . It is enough
that the representation has played a substantial part, and so has been a
substantial factor, in influencing his decision.’ ” (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 976–977 [64 Cal.Rptr.2d 843, 938 P.2d
• “In establishing the reliance element of a cause of action for fraud, it is settled
that the alleged fraud need not be the sole cause of a party’s reliance. Instead,
reliance may be established on the basis of circumstantial evidence showing the
alleged fraudulent misrepresentation or concealment substantially influenced the
party’s choice, even though other influences may have operated as well.”
(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 170 [80 Cal.Rptr.2d 66],
1129

• “[A] presumption, or at least an inference, of reliance arises wherever there is a

showing that a misrepresentation was material. A misrepresentation is judged to
be ‘material’ if ‘a reasonable man would attach importance to its existence or
nonexistence in determining his choice of action in the transaction in question’
and as such, materiality is generally a question of fact unless the ‘fact
misrepresented is so obviously unimportant that the jury could not reasonably
find that a reasonable man would have been influenced by it.’ ” (Engalla, supra,
15 Cal.4th at p. 977.)
• “ ‘It must be shown that the plaintiff actually relied upon the misrepresentation;
i.e., that the representation was “an immediate cause of his conduct which alters
his legal relations,” and that without such representation, “he would not, in all
reasonable probability, have entered into the contract or other transaction.” ’ ”
(Okun v. Morton (1988) 203 Cal.App.3d 805, 828 [250 Cal.Rptr. 220], internal
citations omitted.)
Secondary Sources
(Matthew Bender)
1130

In determining whether [name of plaintiff]’s reliance on the

[misrepresentation/concealment/false promise] was reasonable, [he/she/it]
must first prove that the matter was material. A matter is material if a
reasonable person would find it important in determining his or her
choice of action.
If you decide that the matter is material, you must then decide whether
it was reasonable for [name of plaintiff] to rely on the
[misrepresentation/concealment/false promise]. In making this decision,
take into consideration [name of plaintiff]’s intelligence, knowledge,
education, and experience.
However, it is not reasonable for anyone to rely on a [misrepresentation/
concealment/false promise] that is preposterous. It also is not reasonable
for anyone to rely on a [misrepresentation/concealment/false promise] if
facts that are within [his/her] observation show that it is obviously false.

Directions for Use
There would appear to be three considerations in determining reasonable reliance.
First, the representation or promise must be material, as judged by a reasonable-
person standard. (Charpentier v. Los Angeles Rams (1999) 75 Cal.App.4th 301,
312–313 [89 Cal.Rptr.2d 115].) Second, if the matter is material, reasonableness
must take into account the plaintiff’s own knowledge, education, and experience;
the objective reasonable person is irrelevant at this step. Third, some matters are
simply too preposterous to be believed by anyone, notwithstanding limited
knowledge, education, and experience. (Blankenheim v. E. F. Hutton, Co., Inc.
(1990) 217 Cal.App.3d 1463, 1474 [266 Cal.Rptr. 593].)
See also CACI No. 1907, Reliance.
• “After establishing actual reliance, the plaintiff must show that the reliance was
reasonable by showing that (1) the matter was material in the sense that a
reasonable person would find it important in determining how he or she would
act, and (2) it was reasonable for the plaintiff to have relied on the
misrepresentation.” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th
• “According to the Restatement of Torts, ‘[r]eliance upon a fraudulent
misrepresentation is not justifiable unless the matter misrepresented is
material. . . . The matter is material if . . . a reasonable [person] would attach
importance to its existence or nonexistence in determining his choice of action
1131

in the transaction in question . . . .’ But materiality is a jury question, and a

‘court may [only] withdraw the case from the jury if the fact misrepresented is
so obviously unimportant that the jury could not reasonably find that a
reasonable man would have been influenced by it.’ ” (Charpentier, supra, 75
• “[T]he issue is whether the person who claims reliance was justified in
believing the representation in the light of his own knowledge and experience.”
(Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503 [198
• “[N]or is a plaintiff held to the standard of precaution or of minimum
knowledge of a hypothetical, reasonable man. Exceptionally gullible or ignorant
people have been permitted to recover from defendants who took advantage of
them in circumstances where persons of normal intelligence would not have
been misled. ‘No rogue should enjoy his ill-gotten plunder for the simple reason
that his victim is by chance a fool.’ ” (Blankenheim, supra, 217 Cal.App.3d at
• “[G]enerally speaking, ‘ “[a] plaintiff will be denied recovery only if his
conduct is manifestly unreasonable in the light of his own intelligence or
information. It must appear that he put faith in representations that were
‘preposterous’ or ‘shown by facts within his observation to be so patently and
obviously false that he must have closed his eyes to avoid discovery of the
truth.’ [Citation.] Even in case of a mere negligent misrepresentation, a plaintiff
is not barred unless his conduct, in the light of his own information and
intelligence, is preposterous and irrational. . . . The effectiveness of disclaimers
is assessed in light of these principles. [Citation.]” ’ ” (Public Employees’
Retirement System v. Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th
643, 673 [172 Cal.Rptr.3d 238].)
• “[I]f the conduct of the plaintiff in the light of his own intelligence and
information was manifestly unreasonable, however, he will be denied a
recovery.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218
• “Except in the rare case where the undisputed facts leave no room for a
reasonable difference of opinion, the question of whether a plaintiff’s reliance is
reasonable is a question of fact.” (Beckwith v. Dahl (2012) 205 Cal.App.4th
1039, 1067 [141 Cal.Rptr.3d 142].)
• “ ‘What would constitute fraud in a given instance might not be fraudulent
when exercised toward another person. The test of the representation is its
actual effect on the particular mind . . . .’ ” (Blankenheim, supra, 217
Cal.App.3d at p. 1475, internal citation omitted.)
• “[Plaintiff]’s deposition testimony on which appellants rely also reveals that she
is a practicing attorney and uses releases in her practice. In essence, she is
asking this court to rule that a practicing attorney can rely on the advice of an
equestrian instructor as to the validity of a written release of liability that she
1132

executed without reading. In determining whether one can reasonably or

justifiably rely on an alleged misrepresentation, the knowledge, education and
experience of the person claiming reliance must be considered. Under these
circumstances, we conclude as a matter of law that any such reliance was not
reasonable.” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843–844 [2
• “[I]t is inherently unreasonable for any person to rely on a prediction of future
IRS enactment, enforcement, or non-enforcement of the law by someone
unaffiliated with the federal government. As such, the reasonable reliance
element of any fraud claim based on these predictions fails as a matter of law.”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1].)
• “[A] presumption, or at least an inference, of reliance arises wherever there is a
showing that a misrepresentation was material. A misrepresentation is judged to
be ‘material’ if ‘a reasonable man would attach importance to its existence or
nonexistence in determining his choice of action in the transaction in question’
and as such, materiality is generally a question of fact unless the ‘fact
misrepresented is so obviously unimportant that the jury could not reasonably
find that a reasonable man would have been influenced by it.’ ” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977 [64 Cal.Rptr.2d
Secondary Sources
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.229
(Matthew Bender)
1133

[Name of plaintiff] claims that [name of defendant] failed to disclose

certain information, and that because of this failure to disclose, [name of
plaintiff] was harmed. In order to establish this claim, [name of plaintiff]
1. That [name of plaintiff] purchased [describe real property] from
[name of defendant];
2. That [name of defendant] knew that [specify information that was
not disclosed];
3. That [name of defendant] did not disclose this information to
[name of plaintiff];
4. That [name of plaintiff] did not know, and could not reasonably
have discovered, this information;
5. That [name of defendant] knew that [name of plaintiff] did not
know, and could not reasonably have discovered, this
information;
6. That this information significantly affected the value or
desirability of the property;
8. That [name of defendant]’s failure to disclose the information was
a substantial factor in causing [name of plaintiff]’s harm.
New December 2009

Directions for Use
This instruction sets forth the common law duty of disclosure that a real estate
seller has to his or her buyer. Nondisclosure is tantamount to a misrepresentation.
(See Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161 [89 Cal.Rptr.3d
495].)
For certain transfers, there is also a statutory duty of disclosure. (See Civ. Code,
§ 1102 et seq.) The scope of the required disclosure is set forth on a statutory form.
(See Civ. Code, § 1102.6.) The common law duty is not preempted by the statutory
duty (see Civ. Code, § 1102.1(a)), but breach of the statutory duty can constitute
proof of breach of the common law duty if all of the elements are established.
(See, e.g., Calemine, supra, 171 Cal.App.4th at pp. 164–165 [seller did not disclose
earlier lawsuits, as required by statutory form].)
1134


• Real Estate Buyer’s Action Against Seller. Civil Code section 1102.13.
• “A real estate seller has both a common law and statutory duty of disclosure.
[Under the common law duty]: ‘In the context of a real estate transaction, “. . .
where the seller knows of facts materially affecting the value or desirability of
the property . . . and also knows that such facts are not known to, or within the
reach of the diligent attention and observation of the buyer, the seller is under a
duty to disclose them to the buyer. [Citations.]” [Citations.] Undisclosed facts
are material if they would have a significant and measurable effect on market
value. [Citation.]’ A seller’s duty of disclosure is limited to material facts; once
the essential facts are disclosed a seller is not under a duty to provide details
that would merely serve to elaborate on the disclosed facts. Where a seller fails
to disclose a material fact, he may be subject to liability ‘for mere
nondisclosure since his conduct in the transaction amounts to a representation of
the nonexistence of the facts which he has failed to disclose [citation].’
Generally, whether the undisclosed matter was of sufficient materiality to have
affected the value or desirability of the property is a question of fact.”
(Calemine, supra, 171 Cal.App.4th at p. 161, internal citations omitted.)
• “Generally, where one party to a transaction has sole knowledge or access to
material facts and knows that such facts are not known or reasonably
discoverable by the other party, then a duty to disclose exists.” (See Shapiro v.
Sutherland (1998) 64 Cal.App.4th 1534, 1544 [76 Cal.Rptr.2d 101].)
• “Failure of the seller to fulfill [the] duty of disclosure constitutes actual fraud.”
(Lingsch v. Savage (1963) 213 Cal.App.2d 729, 736 [29 Cal.Rptr. 201].)
• “When and where the action by the purchaser is based on conditions that are
visible and that a personal inspection at once discloses and, when it is admitted
that such personal inspection was in fact made, then manifestly it cannot be
successfully contended that the purchaser relied upon any alleged
misrepresentations with regard to such visible conditions. But personal
inspection is no defense when and where the conditions are not visible and are
known only to the seller, and ‘where material facts are accessible to the vendor
only and he knows them not to be within the reach of the diligent attention and
observation of the vendee, the vendor is bound to disclose such facts to the
vendee.’ ” (Buist v. C. Dudley De Velbiss Corp. (1960) 182 Cal.App.2d 325,
331 [6 Cal.Rptr. 259].)
• “In enacting [Civil Code section 1102 et seq.], the Legislature made clear it did
not intend to alter a seller’s common law duty of disclosure. The purpose of the
enactment was instead to make the required disclosures specific and clear.
(Calemine, supra, 171 Cal.App.4th at pp. 161–162.)
• “The legislation was sponsored by the California Association of Realtors to
provide a framework for formal disclosure of facts relevant to a decision to
purchase realty. The statute therefore confirms and perhaps clarifies a disclosure
obligation that existed previously at common law.” (Shapiro, supra, 64
1135

Cal.App.4th at p. 1539, fn. 6.)

Secondary Sources
1 California Real Estate Law and Practice, Ch. 71, Real Property Purchase and
Sale Agreements, § 71.30 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser of
Real Property, § 569.11 (Matthew Bender)
2A California Points and Authorities, Ch. 31, Brokers and Salesperson, § 31.142
(Matthew Bender)
Greenwald et al., California Practice Guide: Real Property Transactions (The Rutter
Group) ¶ 4:351 et seq.
1136


plaintiff]:
1. The difference between [the amount that [name of plaintiff] paid]
[or] [the fair market value of what [name of plaintiff] exchanged
for the property] and the fair market value of the property at
the time of sale;
2. Amounts that [name of plaintiff] reasonably spent in reliance on
[name of defendant]’s [false representation/failure to
disclose/promise] if those amounts would not otherwise have
been spent in the purchase or acquisition of the property; [and]
3. [Insert additional harm arising from the transaction] to the extent
that [name of defendant]’s [false representation/failure to disclose/
promise] was a substantial factor in causing that [insert
additional harm arising from the transaction]; [and]
4. [Lost profits [or other gains].]
New September 2003

Directions for Use
For an instruction on damages for loss of use, see CACI No. 3903G, Loss of Use
of Real Property (Economic Damage).
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].)
• Fraud in Sale of Property: Buyer’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
1137

3343 are limited to recovery of damages by sellers of real property, while

subdivision (a)(4) deals with purchasers of real property.” (Channell v. Anthony
(1976) 58 Cal.App.3d 290, 309 [129 Cal.Rptr. 704], 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.)
• “We find nothing in section 3343 as amended which 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, 729 [150 Cal.Rptr. 637, 586 P.2d 1228].)
• “All doubt concerning this matter was set at rest, however, in the carefully
considered opinion in Bagdasarian v. Gragnon (1948) 31 Cal.2d 744, 753 [192
P.2d 935] where it was definitely and finally determined that the term ‘actual
value,’ as used in the statute, was that same market value so frequently defined
in actions for condemnation.” (Nece v. Bennett (1963) 212 Cal.App.2d 494, 497
[28 Cal.Rptr. 117], internal citation omitted.)
• “[P]ursuant to Civil Code section 3343, amounts paid for escrow fees, moving
to and from the property, building permits, telephone connections, fences, yard
cleaning, garage materials, door locks, shrubbery, taxes, rent and labor are
examples of recoverable damages when reasonably expended in reliance on the
fraud.” (Cory v. Villa Properties (1986) 180 Cal.App.3d 592, 603 [225 Cal.Rptr.
• “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
Secondary Sources
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)
1138

1921. Buyer’s Damages for Purchase or Acquisition of

Property—Lost Profits
[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];
[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.
computing the loss.
New September 2003

Directions for Use
This instruction should be read immediately after CACI No. 1920, Buyer’s
Damages for Purchase or Acquisition of Property, if the plaintiff is claiming lost
profits.
• Fraud in Sale of Property: Buyer’s Damages for Lost Profits. Civil Code section
3343(a)(4).
• “With glaring inconsistency, California’s statutory structure before 1971
permitted recovery of lost profits and earnings under Civil Code section 3333 in
fraud cases which did not concern the ‘purchase, sale or exchange of property,’
and even in simple negligence cases and breach of contract cases the injured
parties could recover lost profits and earnings, while the ‘out of pocket’ rule
barred the fraud victim in property transaction cases from recovering more than
the difference between the amount he paid for the property and its actual
value.” (Channell v. Anthony (1976) 58 Cal.App.3d 290, 312 [129 Cal.Rptr.
704], internal citations and footnote omitted.)
• “The Legislature removed all doubt concerning the recovery of loss of profits
resulting from the fraudulently induced property acquisition. Clearly and
1139

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
Bender)
1140


plaintiff]:
1. The difference between the fair market value of the property at
the time of sale and [the amount that [name of plaintiff] received]
[or] [the fair market value of what [name of plaintiff] received in
exchange for the property];
2. Amounts that [name of plaintiff] reasonably spent in reliance on
[name of defendant]’s [false representation/failure to
disclose/promise] if those amounts would not otherwise have
been spent in the sale or exchange of the property;
3. Loss of use and enjoyment of the property from [insert beginning
date] to [insert end date], to the extent that [name of defendant]’s
[false representation/failure to disclose/promise] was a substantial
factor in causing that loss of use and enjoyment of the property;
4. Profits or other gains from [insert beginning date] to [insert end
date], that [name of plaintiff] might reasonably have earned by
use of the property if [he/she] had kept it; and
5. Any additional damage arising from the particular transaction.
New September 2003

Directions for Use
This instruction should be tailored to fit the facts and evidence in the particular
case: “If the seller parts with title and elects to forego his right of rescission and
sue for damages only, then of course subdivisions (a)(2) and (a)(3) of section 3343
do not apply and should not be given by the trial court (unless, as here, the
contract itself creates such rights). In each case in which a seller of property is
defrauded by a buyer, the trial court will have to examine the circumstances of the
particular case and decide whether the questioned portions of section 3343 do or do
1141

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).
• 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
• “In the case of a seller . . . the defrauded victim is entitled to recover not only
1142

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.)
• “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
Bender)
1143


The amount of damages must include an award for all harm that [name
of defendant] was a substantial factor in causing, even if the particular
harm could not have been anticipated.
To decide the amount of damages you must determine the [fair market]
value of what [name of plaintiff] gave and subtract from that amount the
[fair market] value of what [he/she/it] received.
[“Fair market value” is the highest price that a willing buyer would
have paid on the date of the transaction to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes for
which the [insert item] is reasonably capable of being used.]
[Name of plaintiff] may also recover amounts that [he/she/it] reasonably
spent in reliance on [name of defendant]’s [false representation/failure to
disclose/false promise] if those amounts would not otherwise have been
spent.

Directions for Use
For discussion of damages if there is both a breach of fiduciary duty and
intentional misrepresentation, see the Directions for Use to CACI No. 1924,
Damages—“Benefit of the Bargain” Rule.
• Damages for Fraud. Civil Code section 1709.
• Measure of Damages in Tort. Civil Code section 3333.
• Damages for Fraud in Sale of Property. Civil Code section 3343.
• 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
1144

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
• “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.)
1145


Secondary Sources
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit § 269.27
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit § 105.252
(Matthew Bender)
1146


The amount of damages must include an award for all harm that [name
of defendant] was a substantial factor in causing, even if the particular
harm could not have been anticipated.
To determine the amount of damages, you must:
1. Determine the fair market value that [name of plaintiff] would
have received if the representations made by [name of defendant]
had been true; and
2. Subtract the fair market value of what [he/she/it] did receive.
The resulting amount is [name of plaintiff]’s damages. “Fair market
value” is the highest price that a willing buyer would have paid to a
willing seller, assuming:
which the [insert item] is reasonably capable of being used.
Fair market value must be determined as of the date that [name of
plaintiff] discovered [name of defendant]’s [false representation/ failure to
disclose].
[Name of plaintiff] may also recover amounts that [he/she/it] reasonably
spent in reliance on [name of defendant]’s [false representation/failure to
disclose/false promise] if those amounts would not otherwise have been
spent.

Directions for Use
There is a split of authority regarding whether benefit-of-the-bargain damages can
ever be recovered for intentional misrepresentation in the sale or exchange of
property. It is settled that in a nonfiduciary relationship, damages are limited to the
out-of-pocket measure, even if the misrepresentation is intentional. (See Alliance
1147

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].)
• 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
1148

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.)
• “The measure of damages for a real estate broker’s intentional misrepresentation
to a buyer for whom he acts as agent is not limited to the out-of-pocket losses
suffered by the buyer. Because the broker is a fiduciary, damages for intentional
fraud may be measured by the broader benefit-of-the-bargain rule.” (Fragale,
• “[T]he measure of damages for fraud by a fiduciary is out-of-pocket damages,
not the benefit of the bargain computation normally applicable to contract
causes of action.” (Hensley, supra, 90 Cal.App.4th at p. 1085.)
• “Recognizing a split of authority on the matter, we follow those cases adopting
the broader measure of damages under sections 1709 and 3333, a course that is
not only consonant with the position we have taken in the past but just. This
division has consistently applied the broader measure of damages for fiduciary
fraud, refusing to limit damages to the ‘out of pocket’ measure.” (Salahutdin,
• “Unlike the ‘out of pocket’ measure of damages, which are usually calculated at
the time of the transaction, ‘benefit of the bargain’ damages may appropriately
be calculated as of the date of discovery of the fraud.” (Salahutdin, supra, 24
• “[O]ne may recover compensation for time and effort expended in reliance on a
defendant’s misrepresentation.” (Block v. Tobin (1975) 45 Cal.App.3d 214, 220
Secondary Sources
§ 40.23
(Matthew Bender)
(Matthew Bender)
1149

1925. Affirmative Defense—Statute of Limitations—Fraud or

Mistake

[If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date three years before date of filing], [name of
plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves that
before that date, [he/she/it] did not discover facts constituting the fraud
or mistake, and with reasonable diligence could not have discovered
those facts.]
New April 2008

Directions for Use
filed within the applicable three-year period for fraud or mistake. (See Code Civ.
Proc., § 338(d).) Include the second paragraph if the plaintiff alleges that the
delayed-discovery rule applies to avoid the limitation defense. The plaintiff bears
the burden of pleading and proving delayed discovery. (See E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319 [64 Cal.Rptr.3d 9]
[regardless of which limitation statute applied to case, burden was on plaintiff].)
• Statute of Limitations for Fraud or Mistake. Code of Civil Procedure section
338(d).
• “The [Code of Civil Procedure section 338(d) three-year] limitations period
. . . ‘does not begin to run until the discovery, by the aggrieved party, of the
facts constituting the fraud or mistake.’ ” (Sun’n Sand, Inc. v. United California
Bank (1978) 21 Cal.3d 671, 701 [148 Cal.Rptr. 329, 582 P.2d 920].)
• “The discovery rule ‘may be expressed by the Legislature or implied by the
courts.’ By statute, the discovery rule applies to fraud actions. (Code Civ. Proc.,
§ 338, subd. (d).) In addition, ‘judicial decisions have declared the discovery
rule applicable in situations where the plaintiff is unable to see or appreciate a
breach has occurred.’ ” (E-Fab, Inc., supra, 153 Cal.App.4th at p. 1318, internal
citations omitted.)
• “Code of Civil Procedure section 338, subdivision (d), effectively codifies the
delayed discovery rule in connection with actions for fraud, providing that a
cause of action for fraud ‘is not to be deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’
1150

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
• “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
• “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],
• “[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],
• “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.
1151

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
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)
Limitation of Actions, 4.42 (Matthew Bender)
1152


1. Did [name of defendant] make a false representation of [a] fact[s]
1. Yes No
2. Did [name of defendant] know that the representation was false,
or did [he/she] make the representation recklessly and without
regard for its truth?
2. Yes No
3. Did [name of defendant] intend that [name of plaintiff] rely on the
representation?
3. Yes No
4. Did [name of plaintiff] reasonably rely on the representation?
4. Yes No
5. Was [name of plaintiff]’s reliance on [name of defendant]’s
representation a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
1153

VF-1900 FRAUD OR DECEIT
[lost earnings $ ]
[lost profits $ ]
loss
]

[lost earnings $ ]
[lost profits $ ]
nomic loss
]

suffering:]
$ ]
suffering:]
$ ]
TOTAL $ ]
Signed:
Presiding Juror
Dated:
2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1900, Intentional Misrepresentation.
If the defendant alleges that the representations referred to in question 1 were
1154

FRAUD OR DECEIT VF-1900
opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
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
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].)
1155


1. Did [name of defendant] intentionally fail to disclose [a] fact[s]
that [name of plaintiff] did not know and could not reasonably
have discovered?
1. Yes No
2. Did [name of defendant] intend to deceive [name of plaintiff] by
concealing the fact?
2. Yes No
3. Had the omitted information been disclosed, would [name of
plaintiff] reasonably have behaved differently?
3. Yes No
4. Was [name of defendant]’s concealment a substantial factor in
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1156


[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
This verdict form is based on CACI No. 1901, Concealment.
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.
1157

1158


1. Did [name of defendant] make a promise to [name of plaintiff]?
1. Yes No
2. Did [name of defendant] intend to perform this promise when [he/
she] made it?
2. Yes No
3. Did [name of defendant] intend that [name of plaintiff] rely on this
promise?
3. Yes No
4. Did [name of plaintiff] reasonably rely on this promise?
4. Yes No
5. Did [name of defendant] perform the promised act?
5. Yes No
6. Was [name of plaintiff]’s reliance on [name of defendant]’s promise
a substantial factor in causing harm to [name of plaintiff]?
6. Yes No
1159


[lost earnings $ ]
[lost profits $ ]
loss
]

[lost earnings $ ]
[lost profits $ ]
nomic loss
]

suffering:]
$ ]
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
2015, December 2016
Directions for Use
This verdict form is based on CACI No. 1902, False Promise.
1160

If multiple promises are at issue, question 1 should be repeated to specify each
one; for example: “1. Did [name of defendant] promise [name of plaintiff] that
[specify promise]?” (See Ryan v. Crown Castle NG Networks, Inc. (2016) 6
Cal.App.5th 775, 794 [211 Cal.Rptr.3d 743].) The rest of the questions will need to
be repeated for each promise.
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.
1161


1. Did [name of defendant] make a false representation of [a] fact[s]
1. Yes No
[2. Did [name of defendant] honestly believe that the representation
was true when [he/she] made it?
[2. Yes No
3. Did [name of defendant] have reasonable grounds for believing
the representation was true when [he/she] made it?
3. Yes No
4. Did [name of defendant] intend that [name of plaintiff] rely on the
representation?
4. Yes No
5. Did [name of plaintiff] reasonably rely on the representation?
5. Yes No
6. Was [name of plaintiff]’s reliance on [name of defendant]’s
representation a substantial factor in causing harm to [name of
plaintiff]?
6. Yes No
1162


[lost earnings $ ]
[lost profits $ ]
loss
]

[lost earnings $ ]
[lost profits $ ]
nomic loss
]

suffering:]
$ ]
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
2014, December 2016, May 2017
1163

Directions for Use

This verdict form is based on CACI No. 1903, Negligent Misrepresentation.
If the defendant alleges that the representations referred to in question 1 were
opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
forms into one form. However, if both negligent misrepresentation and intentional
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
alternative, the preferred practice would seem to be that this verdict form and VF-
1900, Intentional 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 3 above cannot be answered
“no” and question 2 of VF-1900 cannot also be answered “yes.” 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 without reasonable grounds for
believing it is true (see question 3 above) and one made recklessly and without
regard for the truth (see CACI No. VF-1900, question 2). Include question 2 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].)
1164

TRESPASS

2022. Private Nuisance—Balancing-Test Factors—Seriousness of Harm and Public
Benefit
VF-2000. Trespass
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code,
§ 3346; Code Civ. Proc., § 733)
1165

[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/

its] property. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] [intentionally/, although not intending to
do so, [recklessly [or] negligently]] entered [name of plaintiff]’s
property] [or]
2. [intentionally/, although not intending to do so, [recklessly [or]
negligently]] caused [another person/[insert name of thing]] to
enter [name of plaintiff]’s property];
3. That [name of plaintiff] did not give permission for the entry [or
that [name of defendant] exceeded [name of plaintiff]’s
permission];
5.That [name of defendant]’s [entry/conduct] was a substantial
[Entry can be on, above, or below the surface of the land.]
[Entry may occur indirectly, such as by causing vibrations that damage
the land or structures or other improvements on the land.]

Directions for Use
With regard to element 2, liability for trespass may be imposed for conduct that is
intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent
to trespass means only that the person intended to be in the particular place where
the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp.
(1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be
also based on the defendant’s unintentional, but negligent or reckless, act, for
example, an automobile accident. An intent to damage is not necessary. (Meyer v.
Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321, 326 [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
1166

TRESPASS CACI No. 2000
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.
• “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
• “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.
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,
1167

CACI No. 2000 TRESPASS
‘tortious conduct’ denotes that conduct, whether of act or omission, which

subjects the actor to liability under the principles of the law of torts.” (Newhall
Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345 [23
• The common-law distinction between direct and constructive trespass is not
followed in California. A trespass may be committed by consequential and
indirect injuries as well as by direct and forcible harm. (Gallin v. Poulou (1956)
140 Cal.App.2d 638, 641 [295 P.2d 958].)
• “An action for trespass may technically be maintained only by one whose right
to possession has been violated; however, an out-of-possession property owner
may recover for an injury to the land by a trespasser which damages the
ownership interest.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769,
• “Under the forcible entry statutes the fact that a defendant may have title or the
right to possession of the land is no defense. The plaintiff’s interest in peaceable
even if wrongful possession is secured against forcible intrusion by conferring
on him the right to restitution of the premises, the primary remedy, and
incidentally awarding damages proximately caused by the forcible entry.” (Allen
v. McMillion (1978) 82 Cal.App.3d 211, 218–219 [147 Cal.Rptr. 77], internal
citations omitted.)
• “Where there is a consensual entry, there is no tort, because lack of consent is
an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977)
66 Cal.App.3d 1, 16–17 [135 Cal.Rptr. 915].)
• “ ‘A conditional or restricted consent to enter land creates a privilege to do so
only insofar as the condition or restriction is complied with.’ ” (Civic Western
Corp., supra, 66 Cal.App.3d at p. 17, quoting Rest.2d Torts, § 168.)
• “Where one has permission to use land for a particular purpose and proceeds to
abuse the privilege, or commits any act hostile to the interests of the lessor, he
becomes a trespasser. [¶] ‘A good faith belief that entry has been authorized or
permitted provides no excuse for infringement of property rights if consent was
not in fact given by the property owner whose rights are at issue. Accordingly,
by showing they gave no authorization, [plaintiffs] established the lack of
consent necessary to support their action for injury to their ownership
interests.’ ” (Cassinos, supra, 14 Cal.App.4th at p. 1780, internal citations
omitted.)
• “ ‘[T]he intent required as a basis for liability as a trespasser is simply an intent
to be at the place on the land where the trespass allegedly occurred . . . . The
defendant is liable for an intentional entry although he has acted in good faith,
under the mistaken belief, however reasonable, that he is committing no
wrong.’ ” (Miller, supra, 187 Cal.App.3d at pp. 1480–1481, internal citation
omitted.)
• “The general rule is simply that damages may be recovered for annoyance and
1168

distress, including mental anguish, proximately caused by a trespass.” (Armitage

v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], 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,
• “It is true that an action for trespass will support an award of nominal damages
where actual damages are not shown. However, nominal damages need not be
awarded where no actual loss has occurred. ‘Failure to return a verdict for
nominal damages is not in general ground for reversing a judgment or granting
a new trial.’ ” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations
omitted.)
• “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to
leave; by throwing or placing something on the land; or by causing the entry of
some other person.” ’ A trespass may be on the surface of the land, above it, or
below it. The migration of pollutants from one property to another may
constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670],
• “Respondent’s plant was located in a zone which permitted its operation. It
comes within the protection of section 731a of the Code of Civil Procedure
which, subject to certain exceptions, generally provides that where a
manufacturing or commercial operation is permitted by local zoning, no private
individual can enjoin such an operation. It has been determined, however, that
this section does not operate to bar recovery for damages for trespassory
invasions of another’s property occasioned by the conduct of such
manufacturing or commercial use.” (Roberts v. Permanente Corp. (1961) 188
Secondary Sources
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, §§ 550.11, 550.19
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 18:1, 18:4–18:8, 18:10 (Thomson Reuters
West)
1169


its] property. To establish this claim, [name of plaintiff] must prove all of
the following:
property;
2. That [name of defendant] was engaged in [insert extrahazardous
activity];
3. That [insert extrahazardous activity] caused [insert thing] to enter
[name of plaintiff]’s property;
4. That [name of plaintiff] did not give permission for the entry [or
that [name of defendant] exceeded [name of plaintiff]’s
permission];
6.That [name of defendant]’s conduct was a substantial factor in
[Entry can be on, above, or below the surface of the land.]
[Entry may occur indirectly, such as by causing vibrations that damage
the land or property on the land.]
New September 2003

Directions for Use
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.)
“Whether an activity is ultrahazardous is a question of law to be determined by the
court.” (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 785 [56
Cal.Rptr. 128].)
• “[W]e conclude that the rule of the Restatement is sound, and that in this state
there is no liability for a trespass unless the trespass is intentional, the result of
recklessness or negligence, or the result of engaging in an extra-hazardous
activity.” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 645 [295 P.2d 958].)
• “Section 520 of the Restatement of Torts defines ultrahazardous activity as
1170

follows: ‘An activity is ultrahazardous if it (a) necessarily involves a risk of

serious harm to the person, land or chattels of others which cannot be
eliminated by the exercise of the utmost care, and (b) is not a matter of
common usage.’ California has apparently accepted the Restatement definition.”
(Smith v. Lockheed Propulsion Co., supra, 247 Cal.App.2d at p. 785.)
• “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to
leave; by throwing or placing something on the land; or by causing the entry of
some other person. . . .” ’ A trespass may be on the surface of the land, above
it, or below it. The migration of pollutants from one property to another may
constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670],
Secondary Sources
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.15
(Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 18:1, 18:4–18:8, 18:10
1171

2002. Trespass to Timber—Essential Factual Elements (Civ.

Code, § 3346)

its] property and [cut down or damaged trees/took timber]. To establish
property;
2. That [name of defendant] intentionally entered [name of plaintiff]’s
property and [cut down or damaged trees/took timber] located
on the property;
2. [or]
2. That [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] entered [name of plaintiff]’s property
and damaged trees located on the property;
3. That [name of plaintiff] did not give permission to [cut down or
damage the trees/take timber] [or that [name of defendant]
exceeded [name of plaintiff]’s permission];
[In considering whether [name of plaintiff] was harmed, you may take
into account the lost aesthetics and functionality of an injured tree.]

Directions for Use
Give this instruction for loss of timber or damages to trees. Note that actual
damages are to be doubled regardless of the defendant’s intent. (See Civ. Code,
§ 3346(a).) If treble damages for willful and malicious conduct are sought, also
give CACI No. 2003, Damage to Timber—Willful and Malicious Conduct.
With regard to element 2, liability for trespass may be imposed for conduct that is
intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent
to trespass means only that the person intended to be in the particular place where
the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp.
(1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be
also based on the defendant’s unintentional, but negligent or reckless, act; for
example an automobile accident that damages a tree. An intent to damage is not
1172

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.
• 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 measure of damages to be doubled or trebled under Code of Civil
Procedure section 733 and Civil Code section 3346 is not limited to the value
of the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• 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.
• “ ‘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.
1173


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
• “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,
• “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
• “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
1174

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1917−1919

Bender)
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1175

[Name of plaintiff] also claims that [name of defendant]’s conduct in

cutting down, damaging, or harvesting [name of plaintiff]’s trees was
willful and malicious.
“Willful” simply means that [name of defendant]’s conduct was
intentional.
“Malicious” means that [name of defendant] acted with intent to vex,
annoy, harass, or injure, or that [name of defendant]’s conduct was done
with a knowing disregard of the rights or safety of another. A person
acts with knowing disregard when he or she is aware of the probable
dangerous consequences of his or her conduct and deliberately fails to
avoid those consequences.

Directions for Use
Read this instruction if the plaintiff is seeking double or treble damages because the
defendant’s conduct was willful and malicious. (See Civ. Code, § 3346; Code Civ.
Proc., § 733; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1742 [33 Cal.Rptr.2d
391].) The judge should ensure that this finding is noted on the special verdict
form. The jury should find the actual damages suffered. If the jury finds willful and
malicious conduct, the court must award double damages and may award treble
damages. (See Ostling, supra, 27 Cal.App.4th at p. 1742.)
• Damages for Injury to Timber. Civil Code section 3346(a).
• Treble Damages for Injury to Timber. Code of Civil Procedure section 733.
• “[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 measure of damages to be doubled or trebled under Code of Civil
Procedure section 733 and Civil Code section 3346 is not limited to the value
1176

of the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• 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.
• “ ‘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.
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
• “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
1177

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
to the plaintiff’s property) pursuant to section 3346.” (Kelly v. CB&I
Constructors, Inc. (2009) 179 Cal.App.4th 442, 461 [102 Cal.Rptr.3d 32],
internal citations omitted; but see Gould v. Madonna (1970) 5 Cal.App.3d 404,
407–408 [85 Cal.Rptr. 457] [Civ. Code, § 3346 does not apply to fires
negligently set; Health & Saf. Code, § 13007 provides sole remedy].)
Secondary Sources
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.34 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 350, Logs and Timber, § 350.12
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1178

[An entry is intentional if a person knowingly goes onto the property of

another or knowingly causes something to go onto that property.]
[An entry is intentional if a person engages in conduct that is
substantially certain to cause something to go onto that property.]
[Intent to trespass means only that a person intended to be in the
particular location where the trespass is alleged to have occurred. An
entry is intentional even if the person reasonably but mistakenly
thought that he or she had a right to come onto that property.]
An intent to do harm to the property or to the owner is not required.

Directions for Use
This instruction is not intended for general use in every case. Give one of the three
bracketed options if an issue regarding the intent of the entry is raised and further
explanation is required. The third option should be given if the entry could appear
to the jury to be unintentional, such as if the defendant was not aware that he or
she was trespassing. (See Miller v. National Broadcasting Corp. (1986) 187
Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].)
• “The doing of an act which will to a substantial certainty result in the entry of
foreign matter upon another’s land suffices for an intentional trespass to land
upon which liability may be based. It was error to instruct the jury that an
‘intent to harm’ was required.” (Roberts v. Permanente Corp. (1961) 188
Cal.App.2d 526, 530–531 [10 Cal.Rptr. 519], internal citation omitted.)
• An instruction on the definition of intentional trespass is considered a proper
statement of law. Failure to give this instruction on request where appropriate is
error. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1407 [235 Cal.Rptr.
165].)
• “As Prosser and Keeton on Torts . . . explained, ‘[t]he intent required as a
basis for liability as a trespasser is simply an intent to be at the place on the
land where the trespass allegedly occurred . . . . The defendant is liable for an
intentional entry although he has acted in good faith, under the mistaken belief,
however reasonable, that he is committing no wrong.’ ” (Miller, supra, 187
Cal.App.3d at pp. 1480–1481, internal citation omitted.)
• “Intent to cause damage was not, however, an element of [trespass] and . . .
the trespasser was liable for such damage as he caused even though that
damage was not intended or foreseen by him.” (Meyer v. Pacific Employers Ins.
1179

Co. (1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].)

Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20[3] (Matthew
Bender)
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.40 (Matthew Bender)
1180


plaintiff]’s harm, if any, because the entry on to [name of plaintiff]’s
property was lawful. To succeed, [name of defendant] must prove that it
was necessary, or reasonably appeared to [him/her/it] to be necessary, to
enter the land to prevent serious harm to a person or property.

• “[I]t has long [been] recognized that ‘[n]ecessity often justifies an action which
would otherwise constitute a trespass, as where the act is prompted by the
motive of preserving life or property and reasonably appears to the actor to be
necessary for that purpose.’ ” (People v. Ray (1999) 21 Cal.4th 464, 473 [88
(1) One is privileged to enter or remain on land in the possession of
another if it is or reasonably appears to be necessary to prevent
serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of either,
unless the actor knows or has reason to know that the one for
whose benefit he enters is unwilling that he shall take such
action.
(2) Where the entry is for the benefit of the actor or a third person,
he is subject to liability for any harm done in the exercise of the
privilege stated in Subsection (1) to any legally protected interest of
the possessor in the land or connected with it, except where the
threat of harm to avert which the entry is made is caused by the
tortious conduct or contributory negligence of the possessor.
• This Restatement section was noted as having been previously cited in People
v. Ray, supra, 21 Cal.4th at p. 474.
Secondary Sources
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.22, 550.51
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.220, 225.221
1181

(Matthew Bender)
1182

[Name of plaintiff] claims that [he/she] suffered harm because [name of

defendant] created a nuisance. To establish this claim, [name of plaintiff]
1. That [name of defendant], by acting or failing to act, created a
condition that [insert one or more of the following:]
1. [was harmful to health;] [or]
1. [was indecent or offensive to the senses;] [or]
1. [was an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property;] [or]
1. [unlawfully obstructed the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway;] [or]
1. [was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
2. That the condition affected a substantial number of people at the
same time;
3. That an ordinary person would be reasonably annoyed or
disturbed by the condition;
4. That the seriousness of the harm outweighs the social utility of
[name of defendant]’s conduct;
conduct;
6. That [name of plaintiff] suffered harm that was different from the
type of harm suffered by the general public; and
New September 2003; Revised December 2007, June 2016, November 2017
Directions for Use
Give this instruction for a claim for public nuisance. For an instruction on private
nuisance, give CACI No. 2021, Private Nuisance—Essential Factual Elements.
While a private nuisance is designed to vindicate individual land ownership
interests, a public nuisance is not dependent on an interference with any particular
rights of land: The public nuisance doctrine aims at the protection and redress of
community interests. (Citizens for Odor Nuisance Abatement v. City of San Diego
1183


• “Nuisance” Defined. Civil Code section 3479.
• Public Nuisance. Civil Code section 3480.
• Action by Private Person for Public Nuisance. Civil Code section 3493.
• Act Done Under Express Authority of Statute. Civil Code section 3482.
• Property Used for Dogfighting and Cockfighting. Civil Code section 3482.8.
• “[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.)
• “Public nuisance and private nuisance ‘have almost nothing in common except
the word “nuisance” itself.’ Whereas private nuisance is designed to vindicate
individual land ownership interests, the public nuisance doctrine has historically
distinct origins and aims at ‘the protection and redress of community interests.’
With its roots tracing to the beginning of the 16th century as a criminal offense
against the crown, public nuisances at common law are ‘offenses against, or
interferences with, the exercise of rights common to the public,’ such as public
health, safety, peace, comfort, or convenience.” (Citizens for Odor Nuisance
Abatement, supra, 8 Cal.App.5th at p. 358, original italics, internal citation
omitted.)
• “Where the nuisance alleged is not also a private nuisance as to a private
individual he does not have a cause of action on account of a public nuisance
unless he alleges facts showing special injury to himself in person or property
of a character different in kind from that suffered by the general public.”
(Venuto, supra, 22 Cal.App.3d at p. 124, internal citations omitted; but see
Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1550 [87
Cal.Rptr.3d 602] [“to the extent Venuto . . . can be read as precluding an
action to abate a public nuisance by a private individual who has suffered
personal injuries as a result of the challenged condition, we believe it is an
incorrect statement of the law”].)
• “Unlike the private nuisance—tied to and designed to vindicate individual
ownership interests in land—the ‘common’ or public nuisance emerged from
distinctly different historical origins. The public nuisance doctrine is aimed at
the protection and redress of community interests and, at least in theory,
embodies a kind of collective ideal of civil life which the courts have
vindicated by equitable remedies since the beginning of the 16th century.”
1184

(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d
277, 929 P.2d 596].)
• “[W]hen the nuisance is a private as well as a public one, there is no
requirement the plaintiff suffer damage different in kind from that suffered by
the general public. That is, the plaintiff ‘ “does not lose his rights as a
landowner merely because others suffer damage of the same kind, or even of
the same degree . . . .” ’ ” (Birke, supra, 169 Cal.App.4th at p. 1551, internal
citations omitted.)
• “Of course, not every interference with collective social interests constitutes a
public nuisance. To qualify . . . the interference must be both substantial and
unreasonable.” (People ex rel. Gallo, supra, 14 Cal.4th at p. 1105.)
• “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
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)
1185

• “Causation is an essential element of a public nuisance claim. A plaintiff must

establish a ‘connecting element’ or a ‘causative link’ between the defendant’s
conduct and the threatened harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation
omitted.)
• “Causation may consist of either ‘(a) an act; or [¶] (b) a failure to act under
circumstances in which the actor is under a duty to take positive action to
prevent or abate the interference with the public interest or the invasion of the
public interest.’ A plaintiff must show the defendant’s conduct was a ‘substantial
factor’ in causing the alleged harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation
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 (11th ed. 2017) Equity, § 152
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,
Remedies for Nuisance and Trespass, § 11.7
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.04,
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.12
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 et seq. (Matthew
Bender)
1186

[Name of plaintiff] claims that [name of defendant] interfered with [name

of plaintiff]’s use and enjoyment of [his/her] land. To establish this claim,
property;
2. That [name of defendant], by acting or failing to act, created a
condition or permitted a condition to exist that [insert one or
more of the following:]
[was harmful to health;] [or]
[was indecent or offensive to the senses;] [or]
[was an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property;]
[or]
[unlawfully obstructed the free passage or use, in the
customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or
highway;] [or]
[was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
3. That this condition substantially interfered with [name of
plaintiff]’s use or enjoyment of [his/her] land;
4. That an ordinary person would reasonably be annoyed or
disturbed by [name of defendant]’s conduct;
conduct;
causing [name of plaintiff]’s harm; and
8. That the seriousness of the harm outweighs the public benefit of
[name of defendant]’s conduct.
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016, May 2017
1187

Directions for Use

Element 8 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
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.
• “Nuisance” Defined. Civil Code section 3479.
• Acts Done Under Express Authority of Statute. Civil Code section 3482.
• “A nuisance is considered a ‘public nuisance’ when it ‘affects at the same time
an entire community or neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted upon individuals may
be unequal.’ A ‘private nuisance’ is defined to include any nuisance not covered
by the definition of a public nuisance, and also includes some public nuisances.
‘In other words, it is possible for a nuisance to be public and, from the
perspective of individuals who suffer an interference with their use and
enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort
Partners, LLC (2016) 3 Cal.App.5th 248, 261–262 [207 Cal.Rptr.3d 532],
• “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.
• “[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
• [T]o 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
• “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; . . . .” (Mendez,
• “The requirements of substantial damage and unreasonableness are not
inconsequential. These requirements stem from the law’s recognition that:
‘ “Life in organized society and especially in populous communities involves an
unavoidable clash of individual interests. Practically all human activities unless
1188

carried on in a wilderness interfere to some extent with others or involve some

risk of interference, and these interferences range from mere trifling annoyances
to serious harms. It is an obvious truth that each individual in a community
must put up with a certain amount of annoyance, inconvenience and
interference and must take a certain amount of risk in order that all may get on
together. The very existence of organized society depends upon the principle of
‘give and take, live and let live,’ and therefore the law of torts does not attempt
to impose liability or shift the loss in every case in which one person’s conduct
has some detrimental effect on another. Liability . . . is imposed in those cases
in which the harm or risk to one is greater than he ought to be required to bear
under the circumstances, at least without compensation.” ’ ” (Mendez, supra, 3
Cal.App.5th at p. 263, original italics.)
• “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
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
• “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
1189

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,
‘ “ ‘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
• “[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].)
• “[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.)
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 153
1190

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew
Bender)
California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters)
1191

2022. Private Nuisance—Balancing-Test Factors—Seriousness of

Harm and Public Benefit
In determining whether the seriousness of the harm to [name of plaintiff]

outweighs the public benefit of [name of defendant]’s conduct, you should
consider a number of factors.
To determine the seriousness of the harm [name of plaintiff] suffered,
you should consider the following:
a. The extent of the harm, meaning how much the condition [name
of defendant] caused interfered with [name of plaintiff]’s use or
enjoyment of [his/her] property, and how long that interference
lasted.
b. The character of the harm, that is, whether the harm involved a
loss from the destruction or impairment of physical things that
[name of plaintiff] was using, or personal discomfort or
annoyance.
c. The value that society places on the type of use or enjoyment
invaded. The greater the social value of the particular type of
use or enjoyment of land that is invaded, the greater is the
seriousness of the harm from the invasion.
d. The suitability of the type of use or enjoyment invaded to the
nature of the locality. The nature of a locality is based on the
primary kind of activity at that location, such as residential,
industrial, or other activity.
e. The extent of the burden (such as expense and inconvenience)
placed on [name of plaintiff] to avoid the harm.
To determine the public benefit of [name of defendant]’s conduct, you
should consider:
a. The value that society places on the primary purpose of the
conduct that caused the interference. The primary purpose of the
conduct means [name of defendant]’s main objective for engaging
in the conduct. How much social value a particular purpose has
depends on how much its achievement generally advances or
protects the public good.
b. The suitability of the conduct that caused the interference to the
nature of the locality. The suitability of the conduct depends
upon its compatibility to the primary activities carried on in the
locality.
c. The practicability or impracticality of preventing or avoiding the
invasion.
1192

New December 2015

Directions for Use
This instruction must be given with CACI No. 2021, Private Nuisance—Essential
Factual Elements. (See Wilson v. Southern California Edison Co. (2015) 234
Cal.App.4th 123, 160−165 [184 Cal.Rptr.3d 26].) CACI No. 2021 has been found
to be inadequate to express the requirement that the plaintiff must suffer serious
harm without this additional guidance to the jury on how to determine whether the
seriousness of the plaintiff’s harm outweighs the public benefit of the defendant’s
conduct (CACI No. 2021, element 8). (See Id. at pp. 162−163.)
• “ ‘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. v. Superior Court (1996) 13 Cal.4th 893, 938–939 [55 Cal.Rptr.2d
• “Had the jury been instructed on the proper factors to consider when weighing
the gravity of the harm against the social utility of [defendant]’s conduct and
found [defendant] liable, the statement of these elements would be sufficient
because in finding in favor of [plaintiff] the jury necessarily would have
concluded that the harm was substantial. Without such instruction, it is not.”
(Wilson, supra, 234 Cal.App.4th at p. 163.)
In determining the gravity of the harm from an intentional invasion of
another’s interest in the use and enjoyment of land, the following factors are
important:
(a) the extent of the harm involved;
(b) the character of the harm involved;
(c) the social value that the law attaches to the type of use or
enjoyment invaded;
(d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
1193

(e) the burden on the person harmed of avoiding the harm.

In determining the utility of conduct that causes an intentional invasion of
another’s interest in the use and enjoyment of land, the following factors are
important:
(a) the social value that the law attaches to the primary purpose of
the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2010) Equity, § 169 et seq.
Bender)
9 California Real Estate Law and Practice, Ch. 320, The Law of Nuisance, § 320.15
(Matthew Bender)
(Matthew Bender)
Bender)
1194

2030. Affirmative Defense—Statute of Limitations—Trespass or

Private Nuisance

[If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date three years before date of filing], the lawsuit
was still filed on time if [name of plaintiff] proves that the
[trespass/nuisance] is continuous. A [trespass/nuisance] is continuous if it
can be discontinued. Among the factors that indicate that the [trespass/
nuisance] can be discontinued are the following:
(a) That the [trespass/nuisance] is currently continuing;
(b) That the impact of the condition will vary over time;
(c) That the [trespass/nuisance] can be discontinued at any time, in
a reasonable manner, and for reasonable cost, considering the
benefits and detriments if it is discontinued.
[You must consider the continuous nature of the damage to the property
that a nuisance causes, not the continuous nature of the acts causing the
nuisance to occur.]]
New April 2008

Directions for Use
filed within the applicable three-year period for injury to real property. (See Code
Civ. Proc., § 338(b).) This instruction may be used for a permanent trespass other
than an action for damages for wrongful damage to timber, to which a five-year
statute applies. (See Civ. Code, § 3346(c).) It may also be used for a permanent
private nuisance. There is no limitation period for a public nuisance. (See Civ.
Code, § 3490.) There is also essentially no statute of limitation for a continuing
trespass or continuing private nuisance, but damages for future harm are not
recoverable. (See Lyles v. State of California (2007) 153 Cal.App.4th 281, 291 [62
Cal.Rptr.3d 696] [nuisance]; Starrh & Starrh Cotton Growers v. Aera Energy LLC
(2007) 153 Cal.App.4th 583, 592 [63 Cal.Rptr.3d 165] [trespass].)
Include the optional second paragraph if there is an issue of fact as to whether the
trespass or nuisance is permanent or continuous. If applicable, include the last
sentence in the case of a nuisance.
If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation
1195

defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be

adapted for use.
See also CACI No. 3903F, Damage to Real Property (Economic Damage), and
CACI No. 3903G, Loss of Use of Real Property (Economic Damage).
• Three-Year Statute of Limitations. Code of Civil Procedure section 338.
• No Lapse of Time Can Legalize Public Nuisance. Civil Code section 3490.
• “[A] trespass may be continuing or permanent. A permanent trespass is an
intrusion on property under circumstances that indicate an intention that the
trespass shall be permanent. In these cases, the law considers the wrong to be
completed at the time of entry and allows recovery of damages for past,
present, and future harm in a single action, generally the diminution in the
property’s value. The cause of action accrues and the statute of limitations
begins to run at the time of entry. . . . [¶] In contrast, a continuing trespass is
an intrusion under circumstances that indicate the trespass may be discontinued
or abated. In these circumstances, damages are assessed for present and past
damages only; prospective damages are not awarded because the trespass may
be discontinued or abated at some time, ending the harm. . . . Continuing
trespasses are essentially a series of successive injuries, and the statute of
limitations begins anew with each injury. In order to recover for all harm
inflicted by a continuing trespass, the plaintiff is required to bring periodic
successive actions.” (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th
at p. 592.)
• “Two distinct classifications have emerged in nuisance law which determine the
remedies available to injured parties and the applicable statute of limitations.
On the one hand, permanent nuisances are of a type where ‘by one act a
permanent injury is done, [and] damages are assessed once for all.’ . . . In such
cases, plaintiffs ordinarily are required to bring one action for all past, present
and future damage within three years after the permanent nuisance is erected.
The statutory period is shorter for claims against public entities. (Gov. Code,
§ 911.2.) Damages are not dependent upon any subsequent use of the property
but are complete when the nuisance comes into existence. [¶] On the other
hand, if a nuisance is a use which may be discontinued at any time, it is
considered continuing in character and persons harmed by it may bring
successive actions for damages until the nuisance is abated. Recovery is limited,
however, to actual injury suffered prior to commencement of each action.
Prospective damages are unavailable.” (Baker v. Burbank-Glendale-Pasadena
Airport Auth. (1985) 39 Cal.3d 862, 868–869 [218 Cal.Rptr. 293, 705 P.2d 866],
internal citations and footnotes omitted.)
• “Historically, the application of the statute of limitations for trespass has been
the same as for nuisance and has depended on whether the trespass has been
continuing or permanent.” (Mangini v. Aerojet-General Corp. (1991) 230
Cal.App.3d 1125, 1148 [281 Cal.Rptr. 827].)
1196

• “[G]enerally the principles governing the permanent or continuing nature of a

trespass or nuisance are the same and the cases discuss the two causes of action
without distinction.” (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th
at p. 594.)
• “Generally, whether a trespass is continuing or permanent is a question of fact
properly submitted to the jury. A trial court may remove the issue of fact from
the jury by directed verdict only if there is no evidence tending to prove the
case of the party opposing the motion.” (Starrh & Starrh Cotton Growers,
• “[T]he key question [in determining whether a trespass is continuous or
permanent] is whether the trespass or nuisance can be discontinued or abated
and there are a number of tests used to answer this question. A respected legal
treatise summarizes the various tests as follows: ‘[W]hether (1) the offense
activity is currently continuing, which indicates that the nuisance is continuing,
(2) the impact of the condition will vary over time, indicating a continuing
nuisance, or (3) the nuisance can be abated at any time, in a reasonable manner
and for reasonable cost, and is feasible by comparison of the benefits and
detriments to be gained by abatement.’ ” (Starrh & Starrh Cotton Growers,
supra, 153 Cal.App.4th at pp. 593–594, citing 8 Miller & Starr, Cal. Real Estate
(3d ed. 2000) § 22.39, pp. 148–149.)
• “The jury’s conclusion that it was unknown whether the soil contamination
could be abated by reasonable means at a reasonable cost means that plaintiff
had failed to prove her claims of continuing nuisance and trespass.” (McCoy v.
Gustafson (2009) 180 Cal.App.4th 56, 86 [103 Cal.Rptr.3d 37].)
• “[T]he ‘continuing’ nature of a nuisance ‘refers to the continuing damage
caused by the offensive condition, not to the acts causing the offensive
condition to occur.’ ” (Lyles, supra, 153 Cal.App.4th at p. 291, internal citation
omitted.)
• “[A] cause of action for damage to real property accrues when the defendant’s
act causes ‘immediate and permanent injury’ to the property or, to put it another
way, when there is ‘[a]ctual and appreciable harm’ to the property.” (Siegel v.
Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1005 [13 Cal.Rptr.3d 462],
original italics, internal citations omitted.)
• “Property damage cases . . . are different from medical malpractice cases in the
sense that, when property is damaged, there is ordinarily some wrongful cause.
Thus, when one’s property is damaged, one should reasonably suspect that
someone has done something wrong to him and, accordingly, be charged with
knowledge of the information that would have been revealed by an
investigation. That particular property damage could result from natural causes
does not mean that the same property damage could result only from natural
causes.” (Lyles, supra, 153 Cal.App.4th at pp. 287–288.)
• “The traditional rule in tort cases is that the statute of limitations begins to run
upon the occurrence of the last fact essential to the cause of action. Although
1197

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
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,
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240–225.245
(Matthew Bender)
Bender)
1198

2031. Damages for Annoyance and Discomfort—Trespass or

Nuisance
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, including emotional distress or mental anguish, caused by
the injury to [his/her] peaceful enjoyment of the property that [he/she]
occupied.
New December 2010; Revised November 2017

Directions for Use
Give this instruction if the plaintiff claims damages for annoyance and discomfort
resulting from a trespass or nuisance, including emotional distress or mental
anguish proximately caused by the trespass or nuisance. (Hensley v. San Diego Gas
& Electric Co. (2017) 7 Cal.App.5th 1337, 1348–1349 [213 Cal.Rptr.3d 803]; but
see Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 [102
Cal.Rptr.3d 32] [damages for annoyance and discomfort are distinct from general
damages for mental or emotional distress]; see also Vieira Enterprises, Inc. v.
McCoy (2017) 8 Cal.App.5th 1057, 1094 [214 Cal.Rptr.3d 193 [workability of
distinction between damages for annoyance and discomfort and general damages
“may be questioned”].)
There may also be a split of authority as to whether the plaintiff must have been in
immediate possession of the property in order to recover for annoyance and
discomfort. (Compare Hensley, supra, 7 Cal.App.5th at pp. 1352–1355 [no
limitation] with Kelly, supra, 179 Cal.App.4th at p. 458 [plaintiff must be in
immediate possession of the property]; see also Vieira Enterprises, Inc., supra, 8
Cal.App.5th at p. 1094 [not necessary that the plaintiff be present at the moment of
a tortious invasion of the property].)
• “Once a cause of action for trespass or nuisance is established, an occupant of
land may recover damages for annoyance and discomfort that would naturally
ensue therefrom.” (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265,
272 [288 P.2d 507].)
• “[T]he restrictions on emotional distress damages involved in breach of contract
or negligence cases do not apply when a plaintiff’s emotional distress is the
result of the defendant’s commission of a tort arising from an invasion of a
property interest.” (Hensley, supra, 7 Cal.App.5th at pp. 1356–1357.)
• “[O]nce a cause of action for trespass or nuisance is established, a landowner
may recover for annoyance and discomfort, including emotional distress or
mental anguish, proximately caused by the trespass or nuisance. . . . [¶] This is
1199

so even where the trespass or nuisance involves solely property damage.”

(Hensley, supra, 7 Cal.App.5th at pp. 1348–1349, original italics.)
• “[Plaintiff]’s fear, stress and anxiety suffered as a direct and proximate result of
the fire and its attendant damage, loss of use and enjoyment are compensable as
damages for annoyance and discomfort.” (Hensley, supra, 7 Cal.App.5th at p.
1351.)
• “We reject [defendant]’s contention that in order for emotional distress damages
to ‘naturally ensue’ from a trespass or nuisance, the owner or occupant must be
personally or physically present on the invaded property during the trespass or
nuisance.” (Hensley, supra, 7 Cal.App.5th at p. 1352.)
• “We do not question that a nonresident property owner may suffer mental or
emotional distress from damage to his or her property. But annoyance and
discomfort damages are distinct from general damages for mental and emotional
distress. Annoyance and discomfort damages are intended to compensate a
plaintiff for the loss of his or her peaceful occupation and enjoyment of the
property. . . . ‘We recognize that annoyance and discomfort by their very nature
include a mental or emotional component, and that some dictionary definitions
of these terms include the concept of distress. Nevertheless, the “annoyance and
discomfort” for which damages may be recovered on nuisance and trespass
claims generally refers to distress arising out of physical discomfort, irritation,
or inconvenience caused by odors, pests, noise, and the like. Our cases have
permitted recovery for annoyance and discomfort damages on nuisance and
trespass claims while at the same time precluding recovery for “pure” emotional
distress.’ ” (Kelly, supra, 179 Cal.App.4th at p. 456, internal citations omitted.)
• “California cases upholding an award of annoyance and discomfort damages
have involved a plaintiff who was in immediate possession of the property as a
resident or commercial tenant. We are aware of no California case upholding an
award of annoyance and discomfort damages to a plaintiff who was not
personally in immediate possession of the property.” (Kelly, supra, 179
• “Kelly stands only for the proposition that legal occupancy is required to
recover damages for annoyance and discomfort in a trespass case, and that
standard requires immediate and personal possession, as a resident or
commercial tenant would have. Here, there is no dispute the [plaintiffs] both
owned and resided on their property, and they meet the legal standard of
occupancy necessary to claim damages for annoyance, discomfort,
inconvenience or mental anguish proximately caused by the trespass, as the jury
was instructed without controversy in Kelly. Kelly does not hold that an
occupant must be personally or physically present at the time of the harmful
invasion to deem emotional distress damages “naturally ensuing” therefrom.”
(Hensley, supra, 7 Cal.App.5th at pp. 1354–1355, original italics, internal
citation omitted.)
• “[I]t is not necessary that the plaintiff be present at the moment of a tortious
1200

invasion of the property. But it is necessary that the annoyance and discomfort
arise from and relate to some personal effect of the interference with use and
enjoyment which lies at the heart of the tort of trespass.” (Vieira Enterprises,
Inc., supra, 8 Cal.App.5th at p. 1094, original italics.)
• “[A] plaintiff may recover damages for annoyance and discomfort proximately
caused by tortious injuries to trees on her property if she was in immediate and
personal possession of the property at the time of the trespass.” (Fulle v. Kanani
omitted.)
Secondary Sources
Bender)
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
1201

VF-2000. Trespass

1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
2. [Did [name of defendant] intentionally [enter/ [or] cause [another
person/[insert name of thing]] to enter] [name of plaintiff]’s
property?]
2. [or]
2. [Did [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] [enter/ [or] cause [another person/
[insert name of thing]] to enter] [name of plaintiff]’s property?]
2. Yes No
3. Did [name of defendant] enter the property without [name of
plaintiff]’s permission?
3. Yes No
4. Was [name of defendant]’s [entry/conduct] a substantial factor in
causing [actual] harm to [name of plaintiff]?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1202

TRESPASS VF-2000
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1203

VF-2000 TRESPASS

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.
1204


1. Yes No
2. Did [name of defendant] intentionally [enter/ [or] cause [another
person/[insert name of thing]] to enter] [name of plaintiff]’s
property?
2. Yes No
3. Did [name of defendant] enter the property without [name of
plaintiff]’s permission?
3. Yes No
4. Was it necessary, or did it reasonably appear to [name of
defendant] to be necessary, to enter the land to prevent serious
harm to a person or property?
4. Yes No
5. Was [name of defendant]’s [entry/conduct] a substantial factor in
causing [actual] harm to [name of plaintiff]?
5. Yes No
1205

VF-2001 TRESPASS
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1206

TRESPASS VF-2001

1207


1. Yes No
2. Was [name of defendant] engaged in [insert extrahazardous
activity]?
2. Yes No
3. Did [insert extrahazardous activity] cause [insert thing] to enter
[name of plaintiff]’s property?
3. Yes No
4. Did [name of plaintiff] give permission for the entry?
4. Yes No
5. Yes No
[lost earnings $ ]
[lost profits $ ]
1208

TRESPASS VF-2002
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 2001, Trespass—Extrahazardous Activities.
1209

VF-2002 TRESPASS
plaintiff’s consent, question 4 can be modified.

1210


1. Yes No
2. [Did [name of defendant] intentionally enter [name of plaintiff]’s
property and [cut down or damage trees/take timber] located on
the property?]
2. [or]
[recklessly/ [or] negligently] enter [name of plaintiff]’s property
and damage trees located on the property?]
2. Yes No
3. Did [name of plaintiff] give permission to [cut down or damage
the trees/take timber]?
3. Yes No
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1211

VF-2003 TRESPASS
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1212

TRESPASS VF-2003

1213

VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ.

Code, § 3346; Code Civ. Proc., § 733)

1. Yes No
2. [Did [name of defendant] intentionally enter [name of plaintiff]’s
property and [cut down or damage trees/take timber] located on
the property?]
2. [or]
recklessly enter [name of plaintiff]’s property and damage trees
located on the property?]
2. Yes No
3. Did [name of plaintiff] give permission to [cut down or damage
the trees/take timber]?
3. Yes No
4. Yes No
5. Did [name of defendant] act willfully and maliciously?
5. Yes No
5. Answer question 6.
1214

TRESPASS VF-2004

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1215

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.
1216


1. Did [name of defendant], by acting or failing to act, create a
condition that was harmful to health?
1. Yes No
2. Did the condition affect a substantial number of people at the
same time?
2. Yes No
3. Would an ordinary person have been reasonably annoyed or
disturbed by the condition?
3. Yes No
4. Did the seriousness of the harm outweigh the social utility of
[name of defendant]’s conduct?
4. Yes No
5. Yes No
6. Did [name of plaintiff] suffer harm that was different from the
type of harm suffered by the general public?
6. Yes No
1217

VF-2005 TRESPASS

7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
1218

TRESPASS VF-2005
December 2016
Directions for Use
This form is based on CACI No. 2020, Public Nuisance—Essential Factual
Elements.
Other factual situations may be substituted in question 1 as in element 1 of CACI
No. 2020.
Depending on the facts of the case, question 1 can be modified, as in element 1 of
CACI No. 2020.
1219


1. Yes No
2. Did [name of defendant], by acting or failing to act, create a
condition or permit a condition to exist that was harmful to
health?
2. Yes No
3. Did this condition substantially interfere with [name of plaintiff]’s
use or enjoyment of [his/her] land?
3. Yes No
4. Would an ordinary person have reasonably been annoyed or
disturbed by [name of defendant]’s conduct?
4. Yes No
5. Yes No
6. Yes No
1220

TRESPASS VF-2006

7. Did the seriousness of the harm outweigh the public benefit of
[name of defendant]’s conduct?
7. Yes No
[lost earnings $ ]
[lost profits $ ]
loss
]

[lost earnings $ ]
[lost profits $ ]
nomic loss
]

suffering:]
$ ]
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
1221

VF-2006 TRESPASS
Directions for Use
This form is based on CACI No. 2021, Private Nuisance—Essential Factual
Elements.
Depending on the facts of the case, question 2 may be replaced with one of the
other options from element 2 of CACI No. 2021.
1222

CONVERSION

VF-2100. Conversion
1225

[Name of plaintiff] claims that [name of defendant] wrongfully exercised

control over [his/her/its] personal property. To establish this claim,
1. That [name of plaintiff] [owned/possessed/had a right to possess]
[a/an] [insert item of personal property];
2. That [name of defendant] substantially interfered with [name of
plaintiff]’s property by knowingly or intentionally [insert one or
more of the following:]
2. [taking possession of the [insert item of personal property];] [or]
2. [preventing [name of plaintiff] from having access to the [insert
item of personal property];] [or]
2. [destroying the [insert item of personal property];] [or]
2. [refusing to return the [insert item of personal property] after
[name of plaintiff] demanded its return.]
3. That [name of plaintiff] did not consent;
New September 2003; Revised December 2009, December 2010, May 2017
Directions for Use
The last option for element 2 may be used if the defendant’s original possession of
the property was not tortious. (See Atwood v. S. Cal. Ice Co. (1923) 63 Cal.App.
343, 345 [218 P. 283], disapproved on other grounds in Wilson v. Crown Transfer
& Storage Co. (1927) 201 Cal. 701 [258 P. 596].)
• “Conversion is the wrongful exercise of dominion over the property of another.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61
• “It is not necessary that there be a manual taking of the property; it is only
necessary to show an assumption of control or ownership over the property, or
that the alleged converter has applied the property to his own use.” . . .’ ”
1226

CONVERSION CACI No. 2100
(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507 [85
Cal.Rptr.3d 268].)
• “[A]ny act of dominion wrongfully exerted over the personal property of
another inconsistent with the owner’s rights thereto constitutes conversion.”
(Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 50 [108
Cal.Rptr.3d 455].)
• “[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 Int’l (1991)
235 Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189], original italics, internal
citations omitted.)
• “Conversion is a strict liability tort. The foundation of the action rests neither in
the knowledge nor the intent of the defendant. Instead, the tort consists in the
breach of an absolute duty; the act of conversion itself is tortious. Therefore,
questions of the defendant’s good faith, lack of knowledge, and motive are
ordinarily immaterial. The basis of a conversion action ‘ “rests upon the
unwarranted interference by defendant with the dominion over the property of
the plaintiff from which injury to the latter results. Therefore, neither good nor
bad faith, neither care nor negligence, neither knowledge nor ignorance, are the
gist of the action.” [Citations.]’ ” (Los Angeles Federal Credit Union v.
Madatyan (2012) 209 Cal.App.4th 1383, 1387 [147 Cal.Rptr.3d 768].)
• “The rule of strict liability applies equally to purchasers of converted goods, or
more generally to purchasers from sellers who lack the power to transfer
ownership of the goods sold. That is, there is no general exception for bona fide
purchasers.” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177,
• “There are recognized exceptions to the general rule of strict liability. Some
exceptions are based on circumstances in which ‘the person transferring
possession may have the legal power to convey to a bona fide transferee a good
title,’ as, for example, when ‘a principal has clothed an agent in apparent
authority exceeding that which was intended.’ Another exception concerns
goods obtained by means of a fraudulent misrepresentation. If the party who
committed the fraud then sells the goods to ‘a bona fide purchaser’ who ‘takes
for value and without notice of the fraud, then such purchaser gets good title to
the chattel and may not be held for conversion (though the original converter
may be).’ ” (Regent Alliance Ltd., supra, 231 Cal.App.4th at p. 1183, internal
citation omitted.)
• “[I]t is generally acknowledged that conversion is a tort that may be committed
only with relation to personal property and not real property.” (Munger v.
Moore (1970) 11 Cal.App.3d 1, 7 [89 Cal.Rptr. 323], disagreeing with Katz v.
1227

CACI No. 2100 CONVERSION
Enos (1945) 68 Cal.App.2d 266, 269 [156 P.2d 461].)

• “The first element of that cause of action is his ownership or right to possession
of the property at the time of the conversion. Once it is determined that
[plaintiff] has a right to reinstate the contract, he has a right to possession of the
vehicle and standing to bring conversion. Unjustified refusal to turn over
possession on demand constitutes conversion even where possession by the
withholder was originally obtained lawfully and of course so does an
unauthorized sale.” (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 609 [218
• “ ‘To establish a conversion, plaintiff must establish an actual interference with
his ownership or right of possession. . . . Where plaintiff neither has title to the
property alleged to have been converted, nor possession thereof, he cannot
maintain an action for conversion.’ ” (Moore v. Regents of the Univ. of Cal.
omitted.)
• “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
1228

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
• “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.
• “[D]amages for emotional distress growing out of a defendant’s conversion of
personal property are recoverable.” (Hensley v. San Diego Gas & Electric Co.
(2017) 7 Cal.App.5th.1337, 1358 [213 Cal.Rptr.3d 803].)
• “ ‘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
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,
• “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.)
• “[I]t is ‘well settled in California that shares of corporate stock are subject to an
action in conversion’ and ‘it is not necessary that possession of the certificate
evidencing title be disturbed.’ Instead, it is sufficient that there is interference
with the owner’s ‘free and unhampered right to dispose of property without
limitations imposed by strangers to the title.’ ” (Applied Medical Corp. v.
Thomas (2017) 10 Cal.App.5th 927, 938 [217 Cal.Rptr.3d 169].)
• “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.
1229

Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,

1081–1082 [62 Cal.Rptr.2d 178], 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,
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
• “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
as is necessary to make the bailee liable as a converter.’ Thus a warehouseman’s
negligence in causing a fire which destroyed the plaintiffs’ goods will not
support a conversion claim.” (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th
• “Although damages for conversion are frequently the equivalent to the damages
for negligence, i.e., specific recovery of the property or damages based on the
value of the property, negligence is no part of an action for conversion.”
(Taylor, supra, 235 Cal.App.3d at p. 1123, internal citation omitted.)
• “A person without legal title to property may recover from a converter if the
plaintiff is responsible to the true owner, such as in the case of a bailee or
pledgee of the property.” (Department of Industrial Relations v. UI Video Stores,
omitted.)
• “With respect to plaintiffs’ causes of action for conversion, ‘[o]ne is privileged
to commit an act which would otherwise be a trespass to or a conversion of a
chattel in the possession of another, for the purpose of defending himself or a
third person against the other, under the same conditions which would afford a
privilege to inflict a harmful or offensive contact upon the other for the same
purpose.’ ‘For the purpose of defending his own person, an actor is privileged
to make intentional invasions of another’s interests or personality when the
actor reasonably believes that such other person intends to cause a confinement
or a harmful or offensive contact to the actor, of that such invasion of his
interests is reasonably probable, and the actor reasonably believes that the
apprehended harm can be safely prevented only by the infliction of such harm
upon the other. A similar privilege is afforded an actor for the protection of
certain third persons.’ ” (Church of Scientology v. Armstrong (1991) 232
Cal.App.3d 1060, 1072 [283 Cal.Rptr. 917], internal citations omitted [labeled
1230

“defense of justification”]; see Rest.2d Torts, § 261.)

• “We recognize that the common law of conversion, which developed initially as
a remedy for the dispossession or other loss of chattel, may be inappropriate for
some modern intangible personal property, the unauthorized use of which can
take many forms. In some circumstances, newer economic torts have developed
that may better take into account the nature and uses of intangible property, the
interests at stake, and the appropriate measure of damages. On the other hand,
if the law of conversion can be adapted to particular types of intangible
property and will not displace other, more suitable law, it may be appropriate to
do so. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
Rylaarsdam & Turner, California Practice Guide: Civil Procedure Before
Trial—Statutes of Limitations, Ch. 4-D, Actions Involving Personal Property
(Including Intangibles), ¶ 4:1101 et seq. (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,
5 California Points and Authorities, Ch. 51, Conversion, § 51.21[3][b] (Matthew
Bender)
1231

[Name of plaintiff] claims that [name of defendant] wrongfully trespassed

on [his/her/its] personal property. To establish this claim, [name of
1. That [name of plaintiff] [owned/possessed/had a right to possess] a
[insert item of personal property];
2. That [name of defendant] intentionally [insert one or more of the
following:]
2. [interfered with [name of plaintiff]’s use or possession of the
[insert item of personal property];]
2. [or]
2. [damaged the [insert item of personal property];]
3. That [name of plaintiff] did not consent;
New September 2003

• “Trespass to chattel, although seldom employed as a tort theory in California
. . . , lies where an intentional interference with the possession of personal
property has proximately caused injury. Prosser notes trespass to chattel has
evolved considerably from its original common law application—concerning the
asportation of another’s tangible property—to include even the unauthorized use
of personal property: ‘Its chief importance now,’ according to Prosser, ‘is that
there may be recovery . . . for interferences with the possession of chattels
which are not sufficiently important to be classed as conversion, and so to
compel the defendant to pay the full value of the thing with which he has
interfered. Trespass to chattels survives today, in other words, largely as a little
brother of conversion.’ ” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th
1559, 1566–1567 [54 Cal.Rptr.2d 468], footnotes and internal citations 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.” (Zaslow v. Kroenert
1232

• “ ‘Though not amounting to conversion, the defendant’s interference must, to be

actionable, have caused some injury to the chattel or to the plaintiff’s rights in
it. Under California law, trespass to chattels “lies where an intentional
interference with the possession of personal property has proximately caused
injury.” In cases of interference with possession of personal property not
amounting to conversion, “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.” . . .’ ” (Jamgotchian v. Slender (2009)
170 Cal.App.4th 1384, 1400–1401 [89 Cal.Rptr.3d 122], original italics, internal
citations omitted.)
• “It is well settled that a person having neither the possession nor the right to the
possession of personal chattels, cannot maintain trespass or trover for an injury
done to the property.” (Triscony v. Orr (1875) 49 Cal. 612, 617, internal
citations omitted.)
• “In order to prevail on a claim for trespass based on accessing a computer
system, the plaintiff must establish: (1) defendant intentionally and without
authorization interfered with plaintiff’s possessory interest in the computer
system; and (2) defendant’s unauthorized use proximately resulted in damage to
plaintiff.” (eBay, Inc. v. Bidder’s Edge (N.D. Cal. 2000) 100 F.Supp.2d 1058,
• “[W]e uphold both the economic and emotional distress damages plaintiffs
recovered for trespass to personal property arising from [defendant]’s act of
intentionally striking [plaintiff’s dog] with a bat.” (Plotnik v. Meihaus (2012)
• Restatement Second of Torts, section 218, provides:
One who commits a trespass to a chattel is subject to liability to the possessor
of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a
substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to
some person or thing in which the possessor has a legally protected
interest.
• Restatement Second of Torts, section 222, comment (a), states: “Normally any
dispossession is so clearly a serious interference with the right of control that it
amounts to a conversion; and it is frequently said that any dispossession is a
conversion. There may, however, be minor and unimportant dispossessions, such
as taking another man’s hat by mistake and returning it within two minutes
upon discovery of the mistake, which do not seriously interfere with the other’s
right of control, and so do not amount to conversion. In such a case the remedy
of the action of trespass remains, and will allow recovery of damages for the
1233

interference with the possession.”

Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 16, Landlord-Tenant Tort Liabilities, § 16.07
(Matthew Bender)
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.262 (Matthew
Bender)
1234

2102. Presumed Measure of Damages for Conversion (Civ. Code,

§ 3336)

plaintiff]:
1. [The fair market value of the [insert item of personal property] at
the time [name of defendant] wrongfully exercised control over
it;]
1. [or]
1. [Special damages resulting from [name of defendant]’s conduct;]
[and]
2. Reasonable compensation for the time and money spent by [name
of plaintiff] in attempting to recover the [insert item of personal
property]; [and]
3. [Emotional distress suffered by [name of plaintiff] as a result of
[name of defendant]’s conduct.]
[In order to recover special damages, [name of plaintiff] must prove:
1. That [describe special circumstances that require a measure of
damages other than value];
2. That it was reasonably foreseeable that special injury or harm
would result from the conversion; and
3. That reasonable care on [name of plaintiff]’s part would not have
prevented the loss.]
[“Fair market value” is the highest price that a willing buyer would
have paid to a willing seller, assuming:
which the [insert item] is reasonably capable of being used.]
1235

New September 2003

Directions for Use
The third element of listed damages, emotional distress, is bracketed because it
appears that such damages are recoverable only if the second alternative measure of
damages stated in the first paragraph of Civil Code section 3336 applies. (See
Gonzales v. Pers. Storage (1997) 56 Cal.App.4th 464, 477 [65 Cal.Rptr.2d 473].)
• Damages for Wrongful Conversion. Civil Code section 3336.
• Conversion of Negotiable Instruments. Commercial Code section 3420.
• “[W]e are of the opinion that section 3337 can only be held to apply to a
situation where the property was voluntarily applied by the party guilty of
conversion to the benefit of the injured party, and can have no application to a
situation such as here where the application was compelled by a legal duty.”
(Goldberg v. List (1938) 11 Cal.2d 389, 393 [79 P.2d 1087].)
• “Although the first part of section 3336 appears to provide for alternative
measures of recovery, the first of the two measures, namely the value of the
property converted at the time and place of conversion with interest from that
time, is generally considered to be the appropriate measure of damages in a
conversion action. The determination of damages under the alternative provision
is resorted to only where the determination on the basis of value at the time of
conversion would be manifestly unjust.” (Myers v. Stephens (1965) 233
• “As a general rule, the value of the converted property is the appropriate
measure of damages, and resort to the alternative occurs only where a
determination of damages on the basis of value would be manifestly unjust.
Accordingly, a person claiming damages under the alternative provision must
plead and prove special circumstances that require a measure of damages other
than value, and the jury must determine whether it was reasonably foreseeable
that special injury or damage would result from the conversion.” (Lueter v.
State of California (2002) 94 Cal.App.4th 1285, 1302 [115 Cal.Rptr.2d 68],
• “The damage measures set forth in the first paragraph of section 3336 are in the
alternative. The first alternative is to compensate for the value of the property at
the time of conversion with interest from the time of the taking. The second
alternative is compensation in a sum equal to the amount of loss legally caused
by the conversion and which could have been avoided with a proper degree of
prudence. Both of these alternatives are in addition to the damage element for
the time spent pursuing the converted property set forth in the second paragraph
of section 3336.” (Moreno v. Greenwood Auto Center (2001) 91 Cal.App.4th
• “Civil Code section 3336 sets out the presumptive measure of damages in
1236

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
• “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
• “[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,
• “Ordinarily ‘value of the property’ at the time of the conversion is determined
1237

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
• “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
• “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.
• 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
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
1238

13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,

5 California Points and Authorities, Ch. 51, Conversion (Matthew Bender)
1239

VF-2100. Conversion

1. Did [name of plaintiff] [own/possess/have a right to possess] a
[insert description of personal property]?
1. Yes No
2. Did [name of defendant] substantially interfere with [name of
plaintiff]’s property by knowingly or intentionally [[taking
possession of/preventing [name of plaintiff] from having access to]
the [insert description of personal property]]/[destroying the [insert
description of personal property]/refusing to return [name of
plaintiff]’s [insert description of personal property] after [name of
plaintiff] demanded its return]?
2. Yes No
3. Yes No
4. Was [name of plaintiff] harmed?
4. Yes No
5. Yes No
1240

CONVERSION VF-2100

TOTAL $
Signed:
Presiding Juror
Dated:
New December 2005; Revised December 2009, December 2010, June 2011,
December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 2100, Conversion—Essential Factual
Elements.
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.
1241


ECONOMIC INTERFERENCE

2201. Intentional Interference With Contractual Relations—Essential Factual
Elements
2202. Intentional Interference With Prospective Economic Relations—Essential
Factual Elements
2203. Intent
2205. Intentional Interference With Expected Inheritance—Essential Factual
Elements
2210. Affirmative Defense─Privilege to Protect Own Financial Interest
1243

[Name of plaintiff] claims that [name of defendant] intentionally caused

[name of third party] to breach [his/her/its] contract with [name of
plaintiff]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That there was a contract between [name of plaintiff] and [name
of third party];
2. That [name of defendant] knew of the contract;
3. That [name of defendant] intended to cause [name of third party]
to breach the contract;
4. That [name of defendant]’s conduct caused [name of third party] to
breach the contract;
New September 2003

Directions for Use
If the validity of a contract is an issue, see the series of contracts instructions
(CACI No. 300 et seq.).
• “[C]ases have pointed out that while the tort of inducing breach of contract
requires proof of a breach, the cause of action for interference with contractual
relations is distinct and requires only proof of interference.” (Pacific Gas &
Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129 [270 Cal.Rptr.
• “The elements which a plaintiff must plead to state the cause of action for
intentional interference with contractual relations are (1) a valid contract
between plaintiff and a third party; (2) defendant’s knowledge of this contract;
(3) defendant’s intentional acts designed to induce a breach or disruption of the
contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage.” (Pacific Gas & Electric Co., supra, 50
• “[A] cause of action for intentional interference with contract requires an
underlying enforceable contract. Where there is no existing, enforceable
contract, only a claim for interference with prospective advantage may be
1244

ECONOMIC INTERFERENCE CACI No. 2200
pleaded.” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579,

601 [52 Cal.Rptr.2d 877].)
• “The act of inducing the breach must be an intentional one. If the actor had no
knowledge of the existence of the contract or his actions were not intended to
induce a breach, he cannot be held liable though an actual breach results from
his lawful and proper acts.” (Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33,
37 [112 P.2d 631], internal citations omitted.)
• “It is not enough that the actor intended to perform the acts which caused the
result—he or she must have intended to cause the result itself.” (Kasparian v.
County of Los Angeles (1995) 38 Cal.App.4th 242, 261 [45 Cal.Rptr.2d 90].)
• “The question is whether a plaintiff must plead and prove that the defendant
engaged in wrongful acts with the specific intent of interfering with the
plaintiff’s business expectancy. We conclude that specific intent is not a required
element of the tort of interference with prospective economic advantage. While
a plaintiff may satisfy the intent requirement by pleading specific intent, i.e.,
that the defendant desired to interfere with the plaintiff’s prospective economic
advantage, a plaintiff may alternately plead that the defendant knew that the
interference was certain or substantially certain to occur as a result of its
action.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134,
1154 [131 Cal.Rptr.2d 29, 63 P.3d 937], original italics.)
• “The actionable wrong lies in the inducement to break the contract or to sever
the relationship, not in the kind of contract or relationship so disrupted, whether
it is written or oral, enforceable or not enforceable.” (Pacific Gas & Electric
Co., supra, 50 Cal.3d at p. 1127.)
• “ ‘[I]t may be actionable to induce a party to a contract to terminate the
contract according to its terms.’. . .‘[I]t is the contractual relationship, not any
term of the contract, which is protected against outside interference.’ ” (I-CA
Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289
• “[T]he tort cause of action for interference with a contract does not lie against a
party to the contract. [Citations.] [¶] . . . The tort duty not to interfere with the
contract falls only on strangers-interlopers who have no legitimate interest in
the scope or course of the contract’s performance.” (Applied Equipment Corp. v.
Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514 [28 Cal.Rptr.2d 475, 869
• “[I]nterference with an at-will contract is actionable interference with the
contractual relationship, on the theory that a contract ‘at the will of the parties,
respectively, does not make it one at the will of others. [Citations]’ ” (Pacific
Gas & Electric Co., supra, 50 Cal.3d at p. 1127, internal citations and
quotations omitted.)
• “Because interference with an existing contract receives greater solicitude than
does interference with prospective economic advantage, it is not necessary that
1245

CACI No. 2200 ECONOMIC INTERFERENCE
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
• “ ‘[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
• “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
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
1246

2201. Intentional Interference With Contractual

Relations—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] intentionally interfered

with the contract between [him/her/it] and [name of third party]. To
1. That there was a contract between [name of plaintiff] and [name
of third party];
2. That [name of defendant] knew of the contract;
3. That [name of defendant]’s conduct prevented performance or
made performance more expensive or difficult;
4. That [name of defendant] [intended to disrupt the performance of
this contract/ [or] knew that disruption of performance was
certain or substantially certain to occur];

Directions for Use
This tort is sometimes called intentional interference with performance of a
contract. (See Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 291 [136
Cal.Rptr.3d 97].) If the validity of a contract is an issue, see the series of contracts
instructions (CACI No. 300 et seq.).
• “The elements which a plaintiff must plead to state the cause of action for
intentional interference with contractual relations are (1) a valid contract
between plaintiff and a third party; (2) defendant’s knowledge of this contract;
(3) defendant’s intentional acts designed to induce a breach or disruption of the
contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear
Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270 Cal.Rptr. 1, 791 P.2d 587],
• “[A] cause of action for intentional interference with contract requires an
underlying enforceable contract. Where there is no existing, enforceable
contract, only a claim for interference with prospective advantage may be
pleaded.” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579,
601 [52 Cal.Rptr.2d 877].)
1247

• “Because interference with an existing contract receives greater solicitude than

does interference with prospective economic advantage, it is not necessary that
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
action.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134,
• “We caution that although we find the intent requirement to be the same for the
torts of intentional interference with contract and intentional interference with
prospective economic advantage, these torts remain distinct.” (Korea Supply
Co., supra, 29 Cal.4th at p. 1157.)
• “Plaintiff need not allege an actual or inevitable breach of contract in order to
state a claim for disruption of contractual relations. We have recognized that
interference with the plaintiff’s performance may give rise to a claim for
interference with contractual relations if plaintiff’s performance is made more
costly or more burdensome. Other cases have pointed out that while the tort of
inducing breach of contract requires proof of a breach, the cause of action for
interference with contractual relations is distinct and requires only proof of
interference.” (Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1129, internal
citations omitted.)
• “[A] contracting party cannot be held liable in tort for conspiracy to interfere
with its own contract.” (Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222
• “[I]nterference with an at-will contract is actionable interference with the
contractual relationship, on the theory that a contract ‘at the will of the parties,
respectively, does not make it one at the will of others.’ ” (Pacific Gas &
Electric Co., supra, 50 Cal.3d at p. 1127, internal citations and quotations
omitted.)
• “[A]n actor with ‘ “a financial interest in the business of another is privileged
purposely to cause him not to enter into or continue a relation with a third
1248

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
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)
§§ 40.110–40.117 (Matthew Bender)
(Matthew Bender)
1249

2202. Intentional Interference With Prospective Economic

Relations—Essential Factual Elements

with an economic relationship between [him/her/it] and [name of third
party] that probably would have resulted in an economic benefit to
[name of plaintiff]. To establish this claim, [name of plaintiff] must prove
1. That [name of plaintiff] and [name of third party] were in an
economic relationship that probably would have resulted in an
economic benefit to [name of plaintiff];
2. That [name of defendant] knew of the relationship;
3. That [name of defendant] engaged in [specify conduct determined
by the court to be wrongful];
4. That by engaging in this conduct, [name of defendant] [intended
to disrupt the relationship/ [or] knew that disruption of the
relationship was certain or substantially certain to occur];
5. That the relationship was disrupted;

Directions for Use
Regarding element 3, the interfering conduct must be wrongful by some legal
measure other than the fact of the interference itself. (Della Penna v. Toyota Motor
Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [45 Cal.Rptr.2d 436, 902 P.2d 740].)
This conduct must fall outside the privilege of fair competition. (PMC, Inc. v.
Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 603 [52 Cal.Rptr.2d 877],
disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp.
(2003) 29 Cal.4th 1134, 1159 fn. 11 [131 Cal.Rptr.2d 29, 63 P.3d 937].) Whether
the conduct alleged qualifies as wrongful if proven or falls within the privilege of
fair competition is resolved by the court as a matter of law. If the court lets the
case go to trial, the jury’s role is not to determine wrongfulness, but simply to find
whether or not the defendant engaged in the conduct. If the conduct is tortious, the
judge should instruct on the elements of the tort.
• “The tort of intentional or negligent interference with prospective economic
1250

advantage imposes liability for improper methods of disrupting or diverting the

business relationship of another which fall outside the boundaries of fair
competition.” (Settimo Associates v. Environ Systems, Inc. (1993) 14
• “The tort of interference with prospective economic advantage protects the same
interest in stable economic relationships as does the tort of interference with
contract, though interference with prospective advantage does not require proof
of a legally binding contract. The chief practical distinction between
interference with contract and interference with prospective economic advantage
is that a broader range of privilege to interfere is recognized when the
relationship or economic advantage interfered with is only prospective.” (Pacific
Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270
• “Intentional interference with prospective economic advantage has five
elements: (1) the existence, between the plaintiff and some third party, of an
economic relationship that contains the probability of future economic benefit to
the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally
wrongful acts designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm proximately caused by the defendant’s
action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2
Cal.5th 505, 512 [213 Cal.Rptr.3d 568, 388 P.3d 800]].)
• “The tort’s requirements ‘presuppose the relationship existed at the time of the
defendant’s allegedly tortious acts lest liability be imposed for actually and
intentionally disrupting a relationship which has yet to arise.’ ” (Roy Allan
Slurry Seal, Inc., supra, 2 Cal.5th at p. 518.)
action.” (Korea Supply Co., supra, 29 Cal.4th at p. 1154, original italics.)
• “[A] plaintiff seeking to recover for an alleged interference with prospective
contractual or economic relations must plead and prove as part of its case-in-
chief that the defendant not only knowingly interfered with the plaintiff’s
expectancy, but engaged in conduct that was wrongful by some legal measure
other than the fact of interference itself.” (Della Penna, supra, 11 Cal.4th at p.
393.)
• “With respect to the third element, a plaintiff must show that the defendant
engaged in an independently wrongful act. It is not necessary to prove that the
defendant acted with the specific intent, or purpose, of disrupting the plaintiff’s
1251

prospective economic advantage. Instead, ‘it is sufficient for the plaintiff to

plead that the defendant “[knew] that the interference is certain or substantially
certain to occur as a result of his action.” ’ ‘[A]n act is independently wrongful
if it is unlawful, that is, if it is proscribed by some constitutional, statutory,
regulatory, common law, or other determinable legal standard.’ ‘[A]n act must
be wrongful by some legal measure, rather than merely a product of an
improper, but lawful, purpose or motive.’ ” (San Jose Construction, Inc. v.
S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544–1545 [67 Cal.Rptr.3d 54],
• “Della Penna did not specify what sort of conduct would qualify as ‘wrongful’
apart from the interference itself.” (LiMandri v. Judkins (1997) 52 Cal.App.4th
326, 340 [60 Cal.Rptr.2d 539].)
• “Justice Mosk’s concurring opinion in Della Penna advocates that proscribed
conduct be limited to means that are independently tortious or a restraint of
trade. The Oregon Supreme Court suggests that conduct may be wrongful if it
violates ‘a statute or other regulation, or a recognized rule of common law, or
perhaps an established standard of a trade or profession.’ . . . Our Supreme
Court may later have occasion to clarify the meaning of ‘wrongful conduct’ or
‘wrongfulness,’ or it may be that a precise definition proves impossible.” (Arntz
Contracting Co. v. St. Paul Fire and Marine Insurance Co. (1996) 47
• “Commonly included among improper means are actions which are
independently actionable, violations of federal or state law or unethical business
practices, e.g., violence, misrepresentation, unfounded litigation, defamation,
trade libel or trade mark infringement.” (PMC, Inc., supra, 45 Cal.App.4th at p.
• “[A] plaintiff need not allege the interference and a second act independent of
the interference. Instead, a plaintiff must plead and prove that the conduct
alleged to constitute the interference was independently wrongful, i.e., unlawful
for reasons other than that it interfered with a prospective economic advantage.
[Citations.]” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th
1395, 1404 [168 Cal.Rptr.3d 228].)
• “The question has arisen as to whether, in order to be actionable as interference
with prospective economic advantage, the interfering act must be independently
wrongful as to the plaintiff. It need not be. There is ‘no sound reason for
requiring that a defendant’s wrongful actions must be directed towards the
plaintiff seeking to recover for this tort. The interfering party is liable to the
interfered-with party [even] “when the independently tortious means the
interfering party uses are independently tortious only as to a third party.” ’ ”
(Crown Imports LLC, supra, 223 Cal.App.4th at p. 1405, original italics.)
• “[O]ur focus for determining the wrongfulness of those intentional acts should
be on the defendant’s objective conduct, and evidence of motive or other
subjective states of mind is relevant only to illuminating the nature of that
1252

conduct.” (Arntz Contracting Co., supra, 47 Cal.App.4th at p. 477.)

• “[A]n essential element of the tort of intentional interference with prospective
business advantage is the existence of a business relationship with which the
tortfeasor interfered. Although this need not be a contractual relationship, an
existing relationship is required.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530,
• “If a party has no liability in tort for refusing to perform an existing contract,
no matter what the reason, he or she certainly should not have to bear a burden
in tort for refusing to enter into a contract where he or she has no obligation to
do so. If that same party cannot conspire with a third party to breach or
interfere with his or her own contract then certainly the result should be no
different where the ‘conspiracy’ is to disrupt a relationship which has not even
risen to the dignity of an existing contract and the party to that relationship was
entirely free to ‘disrupt’ it on his or her own without legal restraint or penalty.”
(Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 266 [45
Cal.Rptr.2d 90], original italics.)
• “Although varying language has been used to express this threshold
requirement, the cases generally agree it must be reasonably probable that the
prospective economic advantage would have been realized but for defendant’s
interference.” (Youst v. Longo (1987) 43 Cal.3d 64, 71 [233 Cal.Rptr. 294, 729
• “Under [the competition] privilege, ‘ “a competitor is free to divert business to
himself as long as he uses fair and reasonable means.’ [Citation.]’ ” (I-CA
Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257,
292–293 [185 Cal.Rptr.3d 24].)
• “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].)
• “[I]n the absence of other evidence, timing alone may be suffıcient to prove
causation . . . . Thus, . . . the real issue is whether, in the circumstances of the
case, the proximity of the alleged cause and effect tends to demonstrate some
relevant connection. If it does, then the issue is one for the fact finder to
decide.” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1267
1253

• “There are three formulations of the manager’s privilege: (1) absolute, (2)
mixed motive, and (3) predominant motive.” (Halvorsen v. Aramark Uniform
Services, Inc. (1998) 65 Cal.App.4th 1383, 1391 [77 Cal.Rptr.2d 383].)
Secondary Sources
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)
§§ 40.100–40.105 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, §§ 122.23, 122.32
(Matthew Bender)
1254

2203. Intent
Revoked December 2013
1255

2204. Negligent Interference With Prospective Economic

Relations
[Name of plaintiff] claims that [name of defendant] negligently interfered

with a relationship between [him/her/it] and [name of third party] that
probably would have resulted in an economic benefit to [name of
plaintiff]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] and [name of third party] were in an
economic relationship that probably would have resulted in a
future economic benefit to [name of plaintiff];
2. That [name of defendant] knew or should have known of this
relationship;
3. That [name of defendant] knew or should have known that this
relationship would be disrupted if [he/she/it] failed to act with
reasonable care;
4. That [name of defendant] failed to act with reasonable care;
5. That [name of defendant] engaged in wrongful conduct through
[insert grounds for wrongfulness, e.g., breach of contract with
another, misrepresentation, fraud, violation of statute];
6. That the relationship was disrupted;
8. That [name of defendant]’s wrongful conduct was a substantial
New September 2003

Directions for Use
Regarding the fifth element, the judge must specifically state for the jury the
conduct that the judge has determined as a matter of law would satisfy the
“wrongful conduct” standard. This conduct must fall outside the privilege of fair
competition. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579,
603 [52 Cal.Rptr.2d 877]; Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995)
11 Cal.4th 376, 393 [45 Cal.Rptr.2d 436, 902 P.2d 740].) The jury must then decide
whether the defendant engaged in the conduct as defined by the judge. If the
conduct is tortious, judge should instruct on the elements of the tort.
• “The tort of intentional or negligent interference with prospective economic
advantage imposes liability for improper methods of disrupting or diverting the
1256

business relationship of another which fall outside the boundaries of fair

competition.” (Settimo Associates v. Environ Systems, Inc. (1993) 14
• “The tort of negligent interference with prospective economic advantage is
established where a plaintiff demonstrates that (1) an economic relationship
existed between the plaintiff and a third party which contained a reasonably
probable future economic benefit or advantage to plaintiff; (2) the defendant
knew of the existence of the relationship and was aware or should have been
aware that if it did not act with due care its actions would interfere with this
relationship and cause plaintiff to lose in whole or in part the probable future
economic benefit or advantage of the relationship; (3) the defendant was
negligent; and (4) such negligence caused damage to plaintiff in that the
relationship was actually interfered with or disrupted and plaintiff lost in whole
or in part the economic benefits or advantage reasonably expected from the
relationship.” (North American Chemical Co. v. Superior Court (1997) 59
• “ ‘The tort of negligent interference with economic relationship arises only
when the defendant owes the plaintiff a duty of care.’ ” (Limandri v. Judkins
(1997) 52 Cal.App.4th 326, 348 [60 Cal.Rptr.2d 539], internal citation omitted.)
• “Where a special relationship exists between the parties, a plaintiff may recover
for loss of expected economic advantage through the negligent performance of a
contract although the parties were not in contractual privity.” (J’Aire Corp. v.
Gregory (1979) 24 Cal.3d 799, 804 [157 Cal.Rptr. 407, 598 P.2d 60].)
• The trial court should instruct the jury on the “independently wrongful” element
of the tort of negligent interference with prospective economic advantage.
(National Medical Transportation Network v. Deloitte & Touche (1998) 62
• “Commonly included among improper means are actions which are
independently actionable, violations of federal or state law or unethical business
practices, e.g., violence, misrepresentation, unfounded litigation, defamation,
trade libel or trade mark infringement.” (PMC, Inc., supra, 45 Cal.App.4th at p.
• “While the trial court and [defendant] are correct that a defendant incurs
liability for interfering with another’s prospective economic advantage only if
the defendant’s conduct was independently wrongful, we have been directed to
no California authority, and have found none, for the trial court’s conclusion
that the wrongful conduct must be intentional or willful. The defendant’s
conduct must ‘fall outside the boundaries of fair competition’. . . , but
negligent misconduct or the violation of a statutory obligation suffice. The
approved CACI No. 2204 does not indicate otherwise and, in fact, indicates that
either a misrepresentation or ‘violation of statute’ is sufficient.” (Venhaus v.
Shultz (2007) 155 Cal.App.4th 1072, 1079–1080 [66 Cal.Rptr.3d 432], internal
citations omitted.)
1257

• 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.
• “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
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.33 (Matthew
1258

Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.36 (Matthew
Bender)
1259

2205. Intentional Interference With Expected

Inheritance—Essential Factual Elements

with [his/her] expectation of receiving an inheritance from the estate of
[name of decedent]. To establish this claim, [name of plaintiff] must prove
1. That [name of plaintiff] expected to receive an inheritance from
the estate of [name of decedent];
2. That [name of defendant] knew of the expectation;
3. That [name of defendant] engaged in [specify conduct determined
by the court to be wrongful];
4. That by engaging in this conduct, [name of defendant] intended to
interfere with [name of plaintiff]’s expected inheritance;
5. That there was a reasonable certainty that [name of plaintiff]
would have received the inheritance if [name of defendant] had
not interfered;
[Name of plaintiff] does not have to have been named as a beneficiary in
the will or trust or have been named to receive the particular property
at issue. A reasonable certaintyof receipt is sufficient.
New June 2013

Directions for Use
California recognizes the tort of intentional interference with expected inheritance
(IIEI). (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 [141 Cal.Rptr.3d 142].)
The wrongful conduct alleged in element 3 must have been directed toward
someone other than the plaintiff. If the defendant’s tortious conduct was directed at
the plaintiff rather than at the testator, the plaintiff has an independent tort claim
against the defendant and asserting the IIEI tort is unnecessary. It also must be
wrongful for some reason other than the fact of the interference. (Beckwith, supra,
205 Cal.App.4th at pp. 1057–1058.) Whether the conduct alleged qualifies as
wrongful if proven will be resolved by the court as a matter of law. The jury’s role
is not to determine wrongfulness, but simply to find whether or not the defendant
engaged in the conduct. If the conduct is tortious, the judge should instruct on the
elements of the tort.
1260


• “To state a claim for IIEI, a plaintiff must allege five distinct elements. First,
the plaintiff must plead he had an expectancy of an inheritance. It is not
necessary to allege that ‘one is in fact named as a beneficiary in the will or that
one has been devised the particular property at issue. [Citation.] That
requirement would defeat the purpose of an expectancy claim. [¶] . . . [¶] It is
only the expectation that one will receive some interest that gives rise to a
cause of action. [Citations.]’ Second, as in other interference torts, the complaint
must allege causation. ‘This means that, as in other cases involving recovery for
loss of expectancies . . . there must be proof amounting to a reasonable degree
of certainty that the bequest or devise would have been in effect at the time of
the death of the testator . . . if there had been no such interference.’ Third, the
plaintiff must plead intent, i.e., that the defendant had knowledge of the
plaintiff’s expectancy of inheritance and took deliberate action to interfere with
it. Fourth, the complaint must allege that the interference was conducted by
independently tortious means, i.e., the underlying conduct must be wrong for
some reason other than the fact of the interference. Finally, the plaintiff must
plead he was damaged by the defendant’s interference.” (Beckwith, supra, 205
• “Additionally, an IIEI defendant must direct the independently tortious conduct
at someone other than the plaintiff. The cases firmly indicate a requirement that
‘[t]he fraud, duress, undue influence, or other independent tortious conduct
required for this tort is directed at the testator. The beneficiary is not directly
defrauded or unduly influenced; the testator is.’ In other words, the defendant’s
tortious conduct must have induced or caused the testator to take some action
that deprives the plaintiff of his expected inheritance.” (Beckwith, supra, 205
• “[W]e conclude that a court should recognize the tort of IIEI if it is necessary
to afford an injured plaintiff a remedy. The integrity of the probate system and
the interest in avoiding tort liability for inherently speculative claims are very
important considerations. However, a court should not take the ‘drastic
consequence of an absolute rule which bars recovery in all . . . cases[]’ when a
new tort cause of action can be defined in such a way so as to minimize the
costs and burdens associated with it. As discussed above, California case law in
analogous contexts shields defendants from tort liability when the expectancy is
too speculative. In addition, case law from other jurisdictions bars IIEI claims
when an adequate probate remedy exists. By recognizing similar restrictions in
IIEI actions, we strike the appropriate balance between respecting the integrity
of the probate system, guarding against tort liability for inherently speculative
claims, and protecting society’s interest in providing a remedy for injured
parties.” (Beckwith, supra, 205 Cal.App.4th at p. 1056, internal citations
omitted.)
1261

Secondary Sources
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)
1262

2210. Affirmative Defense Privilege to Protect Own Financial

Interest
[Name of defendant] claims that there was no intentional interference

with contractual relations because [he/she/it] acted only to protect [his/
her/its] legitimate financial interests. To succeed, [name of defendant]
1. That [name of defendant] had a [legitimate] financial interest in
the contractual relations because [specify financial interest];
2. That [name of defendant] acted only to protect [his/her/its] own
financial interest;
3. That [name of defendant] acted reasonably and in good faith to
protect it; and
4. That [name of defendant] used appropriate means to protect it.
New June 2016

Directions for Use
Give this instruction as an affirmative defense to a claim for intentional interference
with contractual relations. (See CACI No. 2201.) The defense presents a
justification based on the defendant’s right to protect its own financial interest.
In element 1, the jury should be told the specific financial interest that the
defendant was acting to protect. Include “legitimate” if the jury will be asked to
determine whether that financial interest was legitimate, as opposed perhaps to
pretextual or fraudulent.
• “In harmony with the general guidelines of the test for justification is the
narrow protection afforded to a party where (1) he has a legally protected
interest, (2) in good faith threatens to protect it, and (3) the threat is to protect
it by appropriate means. Prosser adds: ‘Where the defendant acts to further his
own advantage, other distinctions have been made. If he has a present, existing
economic interest to protect, such as the ownership or condition of property, or
a prior contract of his own, or a financial interest in the affairs of the person
persuaded, he is privileged to prevent performance of the contract of another
which threatens it; and for obvious reasons of policy he is likewise privileged to
assert an honest claim, or bring or threaten a suit in good faith.’ ” (Richardson
v. La Rancherita (1979) 98 Cal.App.3d 73, 81 [159 Cal.Rptr. 285], internal
citation omitted.)
• “Justification for the interference is an affirmative defense and not an element
of plaintiff’s cause of action.” (Richardson, supra, 98 Cal.App.3d at p. 80.)
1263

• “Something other than sincerity and an honest conviction by a party in his

position is required before justification for his conduct on the grounds of ‘good
faith’ can be established. There must be an objective basis for the belief which
requires more than reliance on counsel.” (Richardson, supra, 98 Cal.App.3d at
pp. 82−83.)
• “A thoroughly bad motive, that is, a purpose solely to harm the plaintiff, of
course, is sufficient to exclude any apparent privilege which the interests of the
parties might otherwise create, just as such a motive will defeat the immunity
of any other conditional privilege. If the defendant does not act in a bona fide
attempt to protect his own interest or the interest of others involved in the
situation, he forfeits the immunity of the privilege. . . . Conduct is actionable,
when it is indulged solely to harm another, since the legitimate interest of the
defendant is practically eliminated from consideration. The defendant’s interest,
although of such a character as to justify an invasion of another’s similar
interest, is not to be taken into account when the defendant acts, not for the
purpose of protecting that interest, but solely to damage the plaintiff.” (Bridges
v. Cal-Pacific Leasing Co. (1971) 16 Cal.App.3d 118, 132 [93 Cal.Rptr. 796],
original italics.)
Secondary Sources
(Matthew Bender)
1264


1. Was there a contract between [name of plaintiff] and [name of
third party]?
1. Yes No
2. Did [name of defendant] know of the contract?
2. Yes No
3. Did [name of defendant] intend to cause [name of third party] to
breach the contract?
3. Yes No
4. Did [name of defendant]’s conduct cause [name of third party] to
breach the contract?
4. Yes No
5. Yes No
[lost earnings $ ]
1265

VF-2200 ECONOMIC INTERFERENCE
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 2200, Inducing Breach of Contract.
1266

ECONOMIC INTERFERENCE VF-2200

1267


1. Was there a contract between [name of plaintiff] and [name of
third party]?
1. Yes No
2. Did [name of defendant] know of the contract?
2. Yes No
3. Did [name of defendant]’s conduct prevent performance or make
performance more expensive or difficult?
3. Yes No
4. Did [name of defendant] [intend to disrupt the performance of
this contract/ [or] know that disruption of performance was
certain or substantially certain to occur]?
4. Yes No
5. Yes No
1268

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
December 2016
Directions for Use
This verdict form is based on CACI No. 2201, Intentional Interference With
Contractual Relations—Essential Factual Elements.
1269

1270

VF-2202. Intentional Interference With Prospective Economic

Relations

1. Did [name of plaintiff] and [name of third party] have an economic
relationship that probably would have resulted in an economic
benefit to [name of plaintiff]?
1. Yes No
2. Did [name of defendant] know of the relationship?
2. Yes No
3. Did [name of defendant] engage in [specify conduct determined by
the court to be wrongful if proved]?
3. Yes No
4. By engaging in this conduct, did [name of defendant] [intend to
disrupt the relationship/ [or] know that disruption of the
relationship was certain or substantially certain to occur]?
4. Yes No
5. Was the relationship disrupted?
5. Yes No
1271

6. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2202, Intentional Interference With
1272

Prospective Economic Relations—Essential Factual Elements.

1273

VF-2203. Negligent Interference With Prospective Economic

Relations

1. Did [name of plaintiff] and [name of third party] have an economic
relationship that probably would have resulted in an economic
benefit to [name of plaintiff]?
1. Yes No
2. Did [name of defendant] know or should [he/she/it] have known of
the relationship?
2. Yes No
3. Did [name of defendant] know or should [he/she/it] have known
that this relationship would be disrupted if [he/she/it] failed to
act with reasonable care?
3. Yes No
4. Did [name of defendant] fail to act with reasonable care?
4. Yes No
5. Did [name of defendant] engage in wrongful conduct through
[insert grounds for wrongfulness]?
5. Yes No
6. Was the relationship disrupted?
1274

6. Yes No
7. Was [name of defendant]’s wrongful conduct a substantial factor
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
1275

Directions for Use
This verdict form is based on CACI No. 2204, Negligent Interference With
Prospective Economic Relations.
1276

2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual

Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual
Elements
Application
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure
or Delay in Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential
Factual Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of
Rights—Essential Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Within
Liability Policy Limits—Essential Factual Elements
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential
Factual Elements
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered
Claims
1277

2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual

Elements
VF-2301. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment
1278

2300. Breach of Contractual Duty to Pay a Covered

Claim—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached its duty to

pay [him/her/it] for a loss covered under an insurance policy. To
1. That [name of plaintiff] suffered a loss, [all or part of] which was
covered under an insurance policy with [name of defendant];
2. That [name of defendant] was notified of the loss [as required by
the policy]; and
3. The amount of the covered loss that [name of defendant] failed to
pay.
New September 2003

Directions for Use
The instructions in this series assume 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.
This instruction is intended for first party coverage claims. Use the bracketed
language in element 2 if the jury is required to resolve a factual dispute over
whether the manner in which the insurer received notice conformed to the policy
requirements for notice. For a claim arising under an insurance binder rather than
an issued policy, see CACI No. 2301, Breach of Insurance Binder—Essential
Factual Elements. If the policy at issue has been lost or destroyed, read CACI
No. 2305, Lost or Destroyed Insurance Policy. For instructions on general breach
of contract issues, see the Contracts series (CACI No. 300 et seq.).
• “Wrongful failure to provide coverage or defend a claim is a breach of
contract.” (Isaacson v. California Insurance Guarantee Assn. (1988) 44 Cal.3d
775, 791 [244 Cal.Rptr. 655, 750 P.2d 297].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:52, 15:924
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
General Principles of Contract and Bad Faith Actions, §§ 24.2, 24.23
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, § 82.50[2][c] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
1279

CACI No. 2300 INSURANCE LITIGATION
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.83, 120.90,

1280

[Name of plaintiff] claims that [name of defendant] breached its duty to

pay [him/her/it] for a loss or liability covered under a temporary
insurance contract called an insurance binder. To establish this claim,
1. That [name of defendant] or its authorized agent agreed, orally or
in writing, to provide [name of plaintiff] with an insurance
binder;
2. That [name of plaintiff] [paid/was obligated to pay] for the
insurance binder [or that payment was waived];
3. That [name of plaintiff] suffered a loss during the time the
insurance binder was in effect;
4. That [all or part of] the loss was covered under the [insurance
binder] [terms of the insurance policy [name of defendant] would
have issued to [name of plaintiff]];
5. That [name of defendant] was notified of the loss [as required by
the insurance binder]; and
6. The amount of the covered loss or liability that [name of
defendant] failed to pay.
New September 2003

Directions for Use
the case.
This instruction is intended for an alleged breach of a contract of temporary
insurance coverage. The court must interpret as a matter of law whether an
ordinary person in the applicant’s circumstances would conclude, based on the
language of the application, that coverage began immediately. Do not use this
instruction unless the court has decided this issue.
Use bracketed language in element 5 if the jury is required to resolve a factual
dispute over whether the manner in which the insurer received notice conformed to
the policy requirements for notice. Element 4 should be modified if there is an
issue regarding whether the insurance company’s agent made oral statements at
variance with the policy language.
Note that the statutory requirements for a “binder” under Insurance Code section
382.5 do not apply to life or disability insurance, for insurance of any kind in the
1281

amount of $1 million or more, or to an oral binder (see Ins. Code, § 382.5(a)).

• Binders. Insurance Code section 382.5.
• Cancelation of Temporary Insurance. Insurance Code section 481.1.
• “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].)
• “[A] binder is an independent contract, separate and distinct from the permanent
insurance policy. It is intended to give temporary protection pending the
investigation of the risk by the insurer and until issuance of a formal policy or
rejection of the insurance application by the insurer.” (Ahern, supra, 1
• “[P]racticality dictates that a temporary insurance binder issued upon an
application for insurance cannot contain all of the details and terms of the
proposed insurance contract. . . . [I]nsurance binders are adequate if they
indicate the subject matter, the coverage period, the rate and the amount of
insurance. (National Emblem Insurance Co. v. Rios (1969) 275 Cal.App.2d 70,
76 [79 Cal.Rptr. 583], internal citations omitted.)
• “Whether or not a valid binder exists is a question of fact insofar as a finding
comprehends issues relating to the credibility of witnesses or the weight of the
evidence, but a question of law insofar as a finding embraces a conclusion that
such factual elements do not constitute a valid oral binder.” (Spott Electrical
Co. v. Industrial Indemnity Co. (1973) 30 Cal.App.3d 797, 805 [106 Cal.Rptr.
• “ ‘For the sake of convenience, contracts of insurance sometimes exist in two
forms: (1) A preliminary contract intended to protect the applicant pending
investigation of the risk by the company or until the policy can be properly
issued. (2) The final contract or policy itself. . . . An agent possessing authority
to bind the company by contracts of insurance has authority to bind it by a
preliminary or temporary contract of insurance. . . .’ This preliminary contract
is sometimes called ‘cover note’ or ‘binder.’ . . . ‘A valid temporary or
preliminary contract of present insurance may be made orally, or it may be
partly in parol and partly in writing.’ ” (Parlier Fruit Co. v. Fireman’s Fund
Insurance Co. (1957) 151 Cal.App.2d 6, 19–20 [311 P.2d 62], internal quotation
marks and citation omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 37, 38
¶¶ 2:101–2:137
1282

INSURANCE LITIGATION CACI No. 2301

Determining Whether Enforceable Obligation Exists, §§ 5.17–5.20
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies,
§ 9.06[1]–[7] (Matthew Bender)
Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.15 (Matthew
Bender)
11 California Legal Forms: Transaction Guide, Ch. 26A, Title Insurance,
§§ 26A.15, 26A.220 (Matthew Bender)
1283

2302. Breach of Contract for Temporary Life

Insurance—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached an

agreement to pay life insurance benefits. To establish this claim, [name
1. That [name of defendant] or its authorized agent received [name
of decedent]’s application for life insurance;
2. That [name of decedent] paid the first insurance premium;
3. That [name of decedent] died [on/after/before] [insert relevant
date]; and
4. The amount of the insurance benefits that [name of defendant]
failed to pay.
New September 2003

Directions for Use
the case.
This instruction is intended for an alleged breach of a contract of temporary life
insurance coverage. The court must interpret as a matter of law whether an
ordinary person in the applicant’s circumstances would conclude, based on the
language of the application, that coverage began immediately. Do not use this
instruction unless the court has decided this issue.
• Death of Insured Before Issuance of Policy. Insurance Code section 10115.
• “We are of the view that a contract of insurance arose upon defendant’s receipt
of the completed application and the first premium payment. . . . The
understanding of an ordinary person is the standard [that] must be used in
construing the contract, and such a person upon reading the application would
believe that he would secure the benefit of immediate coverage by paying the
premium in advance of delivery of the policy.” (Ransom v. The Penn Mutual
Life Insurance Co. (1954) 43 Cal.2d 420, 425 [274 P.2d 633].)
• “[A]n insurance company is not precluded from imposing conditions precedent
to the effectiveness of insurance coverage despite the advance payment of the
first premium. However, . . . any such condition must be stated in conspicuous,
unambiguous and unequivocal language which an ordinary layman can
understand.” (Thompson v. Occidental Life Insurance Co. of California (1973) 9
Cal.3d 904, 912 [109 Cal.Rptr. 473, 513 P.2d 353].)
1284

• 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
¶¶ 2:134–2:137, 6:428–6:448
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.19–120.20
(Matthew Bender)
1285

[Name of defendant] claims that [name of plaintiff]’s [liability/loss] is not

covered because it is specifically excluded under the policy. To succeed,
[name of defendant] must prove that [name of plaintiff]’s [liability/loss]
[arises out of/is based on/occurred because of] [state exclusion under the
policy]. This exclusion applies if [set forth disputed factual issues that jury
must determine].

Directions for Use
the case.
Give this instruction if the court has determined that an exclusionary clause in an
insurance policy might apply to foreclose coverage, but the applicability turns on a
question of fact. This instruction can be used in cases involving either a third party
liability or a first party loss policy.
• “The burden of bringing itself within any exculpatory clause contained in the
policy is on the insurer.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d
865, 880 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “The burden is on an insured to establish that the occurrence 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.” (Aydin Corp. v. First State Insurance Co. (1998) 18
• Once the insurer proves that the specific exclusion applies, the insured “should
bear the burden of establishing the exception because ‘its effect is to reinstate
coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp., supra,
18 Cal.4th at p. 1188.)
• “The interpretation of an exclusionary clause is an issue of law subject to this
court’s independent determination.” (Marquez Knolls Property Owners Assn.,
Inc. v. Executive Risk Indemnity, Inc. (2007) 153 Cal.App.4th 228, 233 [62
Cal.Rptr.3d 510].)
• “[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].)
1286

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)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502
(Matthew Bender)
1287

[Name of plaintiff] claims that [his/her/its] [liability/loss] is covered under

an exception to a specific coverage exclusion under the policy. To
establish this coverage, [name of plaintiff] must prove that [his/her/its]
[liability/loss] [arises out of/is based on/occurred because] [state
exception to policy exclusion].
New September 2003

Directions for Use
the case.
Use this instruction only if the insurer is asserting that the insured’s claim is
subject to an exclusion.
• “The burden is on an insured to establish that the occurrence 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.” (Aydin Corp. v. First State Insurance Co. (1998) 18
Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213], internal citations
omitted.)
• Once the insurer proves that the specific exclusion applies, the insured “should
bear the burden of establishing the exception because ‘its effect is to reinstate
coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp., supra,
18 Cal.4th at p. 1188.)
Secondary Sources
¶¶ 15:913–15:915.5
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.40, 120.42
(Matthew Bender)
1288

[Name of plaintiff] claims that [he/she/it] was covered under an insurance

policy that was lost or destroyed. To establish coverage under a lost
policy, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was insured under the lost policy during
the period in question; and
2. That the terms of the policy included the following:
a. [describe each policy provision essential to the claimed
coverage].
[Name of plaintiff] is not required to prove the exact words of the lost
policy, but only the substance of the policy’s terms essential to [his/her/
its] claim for insurance benefits.
New September 2003

Directions for Use
the case.
Read this instruction in conjunction with CACI No. 2300, Breach of Contractual
Duty to Pay a Covered Claim—Essential Factual Elements. Whether the terms of a
lost policy must be established by a heightened degree of proof appears to be an
open issue. The Supreme Court in Dart Industries, Inc. v. Commercial Union
Insurance Co. (2002) 28 Cal.4th 1059 [124 Cal.Rptr.2d 142, 52 P.3d 79], expressly
declined to address the issue of the necessary degree of proof. (Id at p. 1072, fn.
4.)
This instruction is intended for use in cases where the plaintiff insured claims
coverage for a loss under an insurance policy that was lost or destroyed without
fraudulent intent on the part of the insured. The admission of oral testimony of the
contents of a lost document requires the court to determine certain preliminary
facts: (1) the proponent does not have possession or control of a copy of the
policy; and (2) the policy was lost or destroyed without fraudulent intent on the
part of the proponent. (Evid. Code, §§ 402(b), 1521, 1523(b).)
• Proof of Content of Writing. Evidence Code section 1521(a).
• Oral Testimony of Content of Writing. Evidence Code section 1523(b).
• “In an action on an insurance policy that has not been lost or destroyed, it is
well settled that ‘[t]he burden is on an insured to establish that the occurrence
1289

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)
Identifying Sources of Coverage, § 8.8
Bender)
1290


Bender)
1291

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.]
New September 2003

Directions for Use
the case.
This instruction in intended for use in first party property insurance cases where
there is evidence that a loss was caused by both covered and excluded perils. In
most cases the court will determine as a question of law what perils are covered
and excluded under the policy.
Depending on the type of insurance at issue, the court must select the bracketed
paragraph that presents the correct burden of proof. For all-risk homeowner’s
policies, for example, once the insured establishes basic coverage, the insurer bears
the burden of proving the loss was caused by an excluded peril. In contrast, for
“named perils” policies (for example, fire insurance) the insured bears the burden
of proving the loss was caused by the specified peril. (See Strubble v. United
Services Automobile Assn. (1973) 35 Cal.App.3d 498, 504 [110 Cal.Rptr. 828].)
• Remote Cause of Loss. Insurance Code section 530.
• Excluded Peril: But-For Causation. Insurance Code section 532.
• “[In] determining whether a loss is within an exception in a policy, where there
is a concurrence of different causes, the efficient cause—the one that sets others
1292

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],
• “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
• “[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
1293

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
• “[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
• “[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)
3 California Insurance Law & Practice, Ch. 9, Homeowners and Related Policies,
(Matthew Bender)
Bender)
1294

[Name of plaintiff] claims that [name of agent] was [name of defendant]’s

agent and that [name of defendant] is therefore [responsible for/bound
by] [name of agent]’s [conduct/ representations].
If [name of plaintiff] proves that [name of defendant] gave [name of agent]
the [authority/apparent authority] to act on behalf of [name of
defendant], then [name of agent] was [name of defendant]’s agent. This
authority may be shown by words or may be implied by the parties’
conduct. This authority cannot be shown by the words of [name of
agent] alone.
[In some circumstances, an individual can be the agent of both the
insured and the insurance company. [Name of plaintiff] claims that [name
of agent] was [[name of defendant]/[name of plaintiff]]’s agent for the
purpose of [describe limited agency; e.g., “collecting insurance payments”]
and therefore [describe dispute; e.g., “the insurer received plaintiff’s
payment”]. [Name of defendant] claims that [name of agent] was [[name of
defendant]/[name of plaintiff]]’s agent for the purpose of [describe limited
agency] and therefore [describe dispute].]
New September 2003

Directions for Use
the case.
This instruction must be modified based on the evidence presented and theories of
liability in the case. The distinction between an agent and a broker relationship
may be crucial in determining, for example, whether an insurance salesperson’s
representations bind the insurer, or whether the insurance salesperson has assumed
a specific duty to the insured.
If ostensible agency is an issue, the court may modify and give CACI No. 3709,
Ostensible Agent, in the Vicarious Responsibility series.
• “Insurance Agent” Defined. Insurance Code section 31.
• “Insurance Broker” Defined. Insurance Code section 33.
• Actual or Ostensible Authority of Agent. Civil Code section 2315.
• “An individual cannot act as an insurance agent in California without a valid
license issued by the commissioner of insurance. In addition to possessing a
license, an insurance agent must be authorized by an insurance carrier to
1295

transact insurance business on the carrier’s behalf. This authorization must be

evidenced by a notice of agency appointment on file with the Department of
Insurance. An agent is generally not limited in the number of agency
appointments that he or she may have; thus, an agent may solicit business on
behalf of a variety of different insurance carriers, and still technically be an
agent of each of those carriers.” (Loehr v. Great Republic Insurance Co. (1990)
• “An agent’s primary duty is to represent the insurer in transactions with
insurance applicants and policyholders. Each company the agent represents must
file a notice of appointment with the DOI’s commissioner. Because an agent
represents the insurer, an agent’s representations to an insured regarding
coverage are treated as representations by the insurer. Generally, some
hallmarks of an insurance agent (as opposed to a broker) are licensure, notice of
appointment as an agent and the power to bind the insurer. In contrast, a
broker’s primary duty is to represent the applicant/insured, and his or her
actions are not generally binding on the insurer. ‘Put quite simply, insurance
brokers, with no binding authority, are not agents of insurance companies, but
are rather independent contractors . . . .’ Of course, these labels alone are not
determinative of the relationship, and the specific facts of each transaction must
be reviewed. The general laws of agency inform any such review.” (Douglas v.
Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 410–411 [177
Cal.Rptr.3d 271], original italics, internal citations omitted.)
• “[S]tatutes defining ‘broker’ are not determinative of the actual relationship in a
particular case. The actual relationship is determined by what the parties do and
say, not by the name they are called.” (Maloney v. Rhode Island Insurance Co.
(1953) 115 Cal.App.2d 238, 245 [251 P.2d 1027], internal citations omitted.)
• “While we note many similarities in the services performed and the monetary
functions of agents and brokers, there is a more fundamental legal distinction
between insurance agents and brokers. Put quite simply, insurance brokers, with
no binding authority, are not agents of insurance companies, but are rather
independent contractors . . . .” (Marsh & McLennan of California, Inc. v. City
of Los Angeles (1976) 62 Cal.App.3d 108, 118 [132 Cal.Rptr. 796].)
• “Although an insurance broker is ordinarily the agent of the insured and not of
the insurer, he may become the agent of the insurer as well as for the insured.”
(Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201,
213 [137 Cal.Rptr. 118], internal citations omitted.)
• “When the broker accepts the policy from the insurer and the premium from the
assured, he has elected to act for the insurer to deliver the policy and to collect
the premium.” (Maloney, supra, 115 Cal.App.2d at p. 244.)
• “Generally speaking, a person may do by agent any act which he might do
himself. An agency is either actual or ostensible. ‘An agency is ostensible when
the principal intentionally, or by want of ordinary care, causes a third person to
believe another to be his agent who is not really employed by him.’ To establish
1296

ostensible authority in an agent, it must be shown the principal, intentionally or

by want of ordinary care has caused or allowed a third person to believe the
agent possesses such authority.” (Preis v. American Indemnity Co. (1990) 220
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation ¶¶ 2:12–2:24,
2:31–2:43 (The Rutter Group)
Determining Whether Enforceable Obligation Exists, §§ 5.4–5.8
Actions Against Agents and Brokers, §§ 29.2–29.5
5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents
and Brokers, § 61.01[4] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.40 (Matthew Bender)
(Matthew Bender)
120.170, 120.383, 120.392, 120.403 (Matthew Bender)
1297

2308. Affirmative Defense—Misrepresentation or Concealment in

Insurance Application
[Name of insurer] claims that no insurance contract was created because

[name of insured] [concealed an important fact/made a false
representation] in [his/her/its] application for insurance. To establish
this defense, [name of insurer] must prove all of the following:
1. That [name of insured] submitted an application for insurance
with [name of insurer];
2. That in the application for insurance [name of insured], whether
intentionally or unintentionally, [failed to state/represented] that
[insert omission or alleged misrepresentation];
3. [That the application asked for that information;]
4. That [name of insured] knew that [specify facts that were
misrepresented or omitted]; and
5. That [name of insurer] would not have issued the insurance policy
if [name of insured] had stated the true facts in the application.
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
1298

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.
• 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.
• “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,
• “[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.
1299

Moreover, ‘[questions] concerning illness or disease do not relate to minor

indispositions but are to be construed as referring to serious ailments which
undermine the general health.’ Finally, as the misrepresentation must be a
material one, ‘incorrect answer on an insurance application does not give rise to
the defense of fraud where the true facts, if known, would not have made the
contract less desirable to the insurer.’ And the trier of fact is not required to
believe the ‘post mortem’ testimony of an insurer’s agents that insurance would
have been refused had the true facts been disclosed.” (Thompson, supra, 9
• “[T]he burden of proving misrepresentation [for purposes of rescission] rests
upon the insurer.” (Thompson, supra, 9 Cal.3d at p. 919.)
• “To prevail, the insurer must prove that the insured made a material ‘false
representation’ in an insurance application. ‘A representation is false when the
facts fail to correspond with its assertions or stipulations.’ The test for
materiality of the misrepresentation or concealment is the same as it is for
rescission, ‘a misrepresentation or concealment is material if a truthful
statement would have affected the insurer’s underwriting decision.’ ” (Douglas,
• “The materiality of a representation made in an application for a contract of
insurance is determined by a subjective standard (i.e., its effect on the particular
insurer to whom it was made) and rescission will be allowed even though the
misrepresentation was the result of negligence or the product of innocence. On
the other hand, in order to void a policy based upon the insured’s violation of
the standard fraud and concealment clause . . . , the false statement must have
been knowingly and wilfully made with the intent (express or implied) of
deceiving the insurer. The materiality of the statement will be determined by the
objective standard of its effect upon a reasonable insurer.” (Cummings v. Fire
Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr.
• “Cancellation and rescission are not synonymous. One is prospective, while the
other is retroactive.” (Fireman’s Fund American Insurance Co. v. Escobedo
(1978) 80 Cal.App.3d 610, 619 [145 Cal.Rptr. 785].)
• “[U]pon a rescission of a policy of insurance, based upon a material
concealment or misrepresentation, all rights of the insured thereunder (except
the right to recover any consideration paid in the purchase of the policy) are
extinguished . . . .” (Imperial Casualty & Indemnity Co. v. Sogomonian (1988)
198 Cal.App.3d 169, 184 [243 Cal.Rptr. 639].)
• “The consequence of rescission is not only the termination of further liability,
but also the restoration of the parties to their former positions by requiring each
to return whatever consideration has been received. . . . [T]his would require
the refund by [the insurer] of any premiums and the repayment by the
defendants of any proceed advance which they may have received.” (Imperial
Casualty & Indemnity Co., supra, 198 Cal.App.3d at p. 184, internal citation
1300

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)
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)
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250–120.251,
1301

[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
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.
New September 2003

Directions for Use
If the insured’s misrepresentation or concealment in the insurance application is
raised as an affirmative defense by the insurer, this instruction may be modified for
use. The elements of the defense would be the same as stated above.
• Rescission of Contract. Civil Code section 1689(b)(1).
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “The materiality of a representation made in an application for a contract of
insurance is determined by a subjective standard (i.e., its effect on the particular
insurer to whom it was made) and rescission will be allowed even though the
misrepresentation was the result of negligence or the product of innocence. On
the other hand, in order to void a policy based upon the insured’s violation of
the standard fraud and concealment clause . . ., the false statement must have
been knowingly and wilfully made with the intent (express or implied) of
deceiving the insurer. The materiality of the statement will be determined by the
1302

objective standard of its effect upon a reasonable insurer.” (Cummings v. Fire

Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr.
• “The consequence of rescission is not only the termination of further liability,
but also the restoration of the parties to their former positions by requiring each
to return whatever consideration has been received. . . . [T]his would require
the refund by [the insurer] of any premiums and the repayment by the
[insureds] of any proceed advance which they may have received.” (Imperial
Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 184 [243
Secondary Sources
¶¶ 5:143–5:146, 5:153–5:159.1, 5:160, 5:249–5:260.5, 15:241–15:256
Rescission and Reformation, §§ 21.2–21.4, 21.35–21.37
2 California Insurance Law & Practice, Ch. 8, The Insurance Contract, § 8.10[1]
(Matthew Bender)
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250–120.251
(Matthew Bender)
1303

[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
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].
New September 2003

Directions for Use
the case.
This instruction is intended for use by an insurer as a defense to a breach of
contract action based on a third party liability policy. The defense does not apply to
“claims made” policies (see Pacific Employers Insurance Co. v. Superior Court
(1990) 221 Cal.App.3d 1348, 1357–1360 [270 Cal.Rptr. 779]). This instruction also
may be modified for use as a defense to a judgment creditor’s action to recover on
a liability policy.
• “The right of an injured party to sue an insurer on the policy after obtaining
judgment against the insured is established by statute. An insurer may assert
defenses based upon a breach by the insured of a condition of the policy such
as a cooperation clause, but the breach cannot be a valid defense unless the
insurer was substantially prejudiced thereby. Similarly, it has been held that
prejudice must be shown with respect to breach of a notice clause.” (Campbell
v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 305–306 [32 Cal.Rptr. 827, 384
• “[P]rejudice is not shown simply by displaying end results; the probability that
such result could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
1304

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
• “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.)
1305

Secondary Sources
¶¶ 15:917–15:920
Identifying Sources of Coverage, §§ 8.24–8.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
(Matthew Bender)
1306

2321. Affirmative Defense—Insured’s Breach of Duty to

Cooperate in Defense
[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]
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].
New September 2003

Directions for Use
the case.
contract action based on a third party liability policy. This instruction also may be
modified for use as a defense to a judgment creditor’s action to recover on a
liability policy.
Depending on the facts of the case, the second element of this instruction may not
always be necessary.
• “The right of an injured party to sue an insurer on the policy after obtaining
judgment against the insured is established by statute. An insurer may assert
defenses based upon a breach by the insured of a condition of the policy such
as a cooperation clause, but the breach cannot be a valid defense unless the
insurer was substantially prejudiced thereby. . . . [¶] The burden of proving that
a breach of a cooperation clause resulted in prejudice is on the insurer.”
(Campbell v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 305–306 [32
1307

• “[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
• “[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
¶¶ 15:917–15:919
Insured’s Role in Defense, §§ 11.2–11.26
1308

[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].
New April 2007

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
contract action based on a third party liability policy. This instruction also may be
modified for use as a defense to a judgment creditor’s action to recover on a
liability policy. This defense is not available if the insurer refused to defend before
the voluntary payment was made. (See 21st Century Ins. Co. v. Superior Court
(Tapia) (2015) 240 Cal.App.4th 322, 328 [192 Cal.Rptr.3d 530].)
A voluntary-payments clause in an insurance policy typically provides that the
insured may not voluntarily make a payment, assume an obligation, or incur an
expense without the insurer’s consent. (See, e.g., Truck Ins. Exchange v. Unigard
Ins. Co. (2000) 79 Cal.App.4th 966, 976 [94 Cal.Rptr.2d 516].) In element 1, select
the appropriate options depending on the acts alleged. Modify, as necessary,
depending on the actual language of the policy. Use the first option if the insured
has made a payment in settlement of the claim. Use the second option if the
insured has made a payment, assumed an obligation, or incurred an expense for
other reasons, such as to an attorney for legal services, or to a creditor of the
claimant, such as a provider of medical or repair services.
1309


• “The general validity of no-voluntary-payment provisions in liability insurance
policies is well established. . . . [S]uch clauses are common ‘to prevent
collusion as well as to invest the insurer with the complete control and direction
of the defense or compromise of suits or claims.’ ” (Insua v. Scottsdale Ins. Co.
omitted.)
• “California law enforces . . . no-voluntary-payments provisions in the absence
of economic necessity, insurer breach, or other extraordinary circumstances.
They are designed to ensure that responsible insurers that promptly accept a
defense tendered by their insureds thereby gain control over the defense and
settlement of the claim. That means insureds cannot unilaterally settle a claim
before the establishment of the claim against them and the insurer’s refusal to
defend in a lawsuit to establish liability . . . . [T]he decision to pay any
remediation costs outside the civil action context raises a ‘judgment call left
solely to the insurer.’ In short, the provision protects against coverage by fait
accompli.” (Low v. Golden Eagle Ins. Co. (2003) 110 Cal.App.4th 1532, 1544
• “ ‘Typically, a breach of that provision occurs, if at all, before the insured has
tendered the defense to the insurer.’ . . . [A voluntary-payments] provision is
[also] enforceable posttender until the insurer wrongfully denies tender. ‘[I]t is
only when the insured has requested and been denied a defense by the insurer
that the insured may ignore the policy’s provisions forbidding the incurring of
defense costs without the insurer’s prior consent and under the compulsion of
that refusal undertake his own defense at the insurer’s expense.’ ” (Low, supra,
110 Cal.App.4th at pp. 1546–1547, original italics, internal citations omitted.)
• “ ‘[T]he existence or absence of prejudice to [the insurer] is simply irrelevant to
[its] duty to indemnify costs incurred before notice. The policy plainly provides
that notice is a condition precedent to the insured’s right to be indemnified; a
fortiori the right to be indemnified cannot relate back to payments made or
obligations incurred before notice.’ . . . The prejudice requirement . . . applies
only to the insurer’s attempt to assert lack of notice as a policy defense against
payment even of losses and costs incurred after belated notice.” (Jamestown
Builders, Inc. v. General Star Indemnity Co. (1999) 77 Cal.App.4th 341, 350
• “ ‘There may be exceptions to the prohibition on voluntary payments, as where
the insured is unaware of the identity of the insurer, the payment is necessary
for reasons beyond the insured’s control, or the insured faces a situation
requiring an immediate response to protect its legal interests.’ In a circumstance
of that nature, the insured’s payment is considered involuntary.” (Belz v.
Clarendon America Ins. Co. (2007) 158 Cal.App.4th 615, 628 [69 Cal.Rptr.3d
• “If an insurer refuses to defend, the insured is free to enter into a non-collusive
1310

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
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
Contribution, § 300.73[6] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, §§ 308.500,
1311

2330. Implied Obligation of Good Faith and Fair Dealing

Explained
In every insurance policy there is an implied obligation of good faith

and fair dealing that neither the insurance company nor the insured will
do anything to injure the right of the other party to receive the benefits
of the agreement.
To fulfill its implied obligation of good faith and fair dealing, an
insurance company must give at least as much consideration to the
interests of the insured as it gives to its own interests.
To breach the implied obligation of good faith and fair dealing, an
insurance company must unreasonably act or fail to act in a manner
that deprives the insured of the benefits of the policy. To act
unreasonably is not a mere failure to exercise reasonable care. It means
that the insurer must act or fail to act without proper cause. However, it
is not necessary for the insurer to intend to deprive the insured of the
benefits of the policy.

Directions for Use
This instruction may be used to introduce a “bad-faith” claim arising from an
alleged breach of the implied covenant of good faith and fair dealing.
• “There is an implied covenant of good faith and fair dealing in every contract
that neither party will do anything which will injure the right of the other to
receive the benefits of the agreement.” (Comunale v. Traders & General Ins.
Co. (1958) 50 Cal.2d 654, 658 [328 P.2d 198].)
• “For the insurer to fulfill its obligation not to impair the right of the insured to
receive the benefits of the agreement, it again must give at least as much
consideration to the latter’s interests as it does to its own.” (Egan v. Mutual of
Omaha Insurance Co. (1979) 24 Cal.3d 809, 818–819 [169 Cal.Rptr. 691, 620
P.2d 141].)
• “[T]o establish the insurer’s ‘bad faith’ liability, the insured must show that the
insurer has (1) withheld benefits due under the policy, and (2) that such
withholding was ‘unreasonable’ or ‘without proper cause.’ The actionable
withholding of benefits may consist of the denial of benefits due; paying less
than due; and/or unreasonably delaying payments due.” (Major v. Western Home
Ins. Co. (2009) 169 Cal.App.4th 1197, 1209 [87 Cal.Rptr.3d 556], internal
citations omitted.)
• “ ‘[T]he covenant of good faith can be breached for objectively unreasonable
1312

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
1313

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
• “[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].)
• “ ‘[P]erformance of an act specifically authorized by the policy cannot, as a
matter of law, constitute bad faith.’ [¶ ] [I]n the insurance context, . . . ‘ “courts
are not at liberty to imply a covenant directly at odds with a contract’s express
grant of discretionary power.” ’ The possible exception would be ‘ “those
relatively rare instances when reading the provision literally would, contrary to
the parties’ clear intention, result in an unenforceable, illusory agreement.” ’ ”
(Baldwin v. AAA Northern California, Nevada & Utah Ins. Exchange (2016) 1
Secondary Sources
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),
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)
1314

1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of
the Parties, § 13.23 (Matthew Bender)
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)
11 California Legal Forms, Ch. 26A, Title Insurance, § 26A.17[9] (Matthew
Bender)
1315

2331. Breach of the Implied Obligation of Good Faith and Fair

Dealing—Failure or Delay in Payment (First Party)—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] breached the

obligation of good faith and fair dealing by [failing to pay/delaying
payment of] benefits due under the insurance policy. To establish this
1. That [name of plaintiff] suffered a loss covered under an
insurance policy with [name of defendant];
2. That [name of defendant] was notified of the loss;
3. That [name of defendant], unreasonably [failed to pay/delayed
payment of] policy benefits;
5. That [name of defendant]’s [failure to pay/delay in payment of]
policy benefits was a substantial factor in causing [name of
To act or fail to act “unreasonably” means that the insurer had no
proper cause for its conduct. In determining whether [name of defendant]
acted unreasonably, you should consider only the information that
[name of defendant] knew or reasonably should have known at the time
when it [failed to pay/delayed payment of] policy benefits.
New September 2003; Revised December 2007, April 2008, December 2009,
December 2015
Directions for Use
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.).
1316


• If an insurer “fails to deal fairly and in good faith with its insured by refusing,
without proper cause, to compensate its insured for a loss covered by the policy,
such conduct may give rise to a cause of action in tort for breach of an implied
covenant of good faith and fair dealing. . . . [¶ ] . . . [W]hen the insurer
unreasonably and in bad faith withholds payment of the claim of its insured, it
is subject to liability in tort.” (Gruenberg v. Aetna Insurance Co. (1973) 9
Cal.3d 566, 574–575 [108 Cal.Rptr. 480, 510 P.2d 1032], original italics.)
• “An insurer’s obligations under the implied covenant of good faith and fair
dealing with respect to first party coverage include a duty not to unreasonably
withhold benefits due under the policy. An insurer that unreasonably delays, or
fails to pay, benefits due under the policy may be held liable in tort for breach
of the implied covenant. The withholding of benefits due under the policy may
constitute a breach of contract even if the conduct was reasonable, but liability
in tort arises only if the conduct was unreasonable, that is, without proper
cause. In a first party case, as we have here, the withholding of benefits due
under the policy is not unreasonable if there was a genuine dispute between the
insurer and the insured as to coverage or the amount of payment due.”
(Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146
• “[T]here are at least two separate requirements to establish breach of the
implied covenant: (1) benefits due under the policy must have been withheld;
and (2) the reason for withholding benefits must have been unreasonable or
without proper cause.” (Love v. Fire Insurance Exchange (1990) 221
• “The standard of good faith and fairness examines the reasonableness of the
insurer’s conduct, and mere errors by an insurer in discharging its obligations to
its insured ‘ “does not necessarily make the insurer liable in tort for violating
the covenant of good faith and fair dealing; to be liable in tort, the insurer’s
conduct must also have been unreasonable. [Citations.]” ’ ” (Graciano v.
Mercury General Corp. (2014) 231 Cal.App.4th 414, 425 [179 Cal.Rptr.3d
• “Generally, the reasonableness of an insurer’s conduct ‘must be evaluated in
light of the totality of the circumstances surrounding its actions.’ ” (Paslay v.
State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 654 [203 Cal.Rptr.3d
785].)
• “[A]n insurer denying or delaying the payment of policy benefits due to the
existence of a genuine dispute with its insured as to the existence of coverage
liability or the amount of the insured’s coverage claim is not liable in bad faith
even though it might be liable for breach of contract.” (Chateau Chamberay
Homeowners Assn. v. Associated International Insurance Co. (2001) 90
• “The genuine dispute rule does not relieve an insurer from its obligation to
1317

thoroughly and fairly investigate, process and evaluate the insured’s claim. A
genuine dispute exists only where the insurer’s position is maintained in good
faith and on reasonable grounds. . . . ‘The genuine issue rule in the context of
bad faith claims allows a [trial] court to grant summary judgment when it is
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,
• “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
1318

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
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.
• “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
omitted.)
Secondary Sources
1319

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)
General Principles of Contract and Bad Faith Actions, §§ 24.25–24.45A
Good Faith, §§ 13.03[2][a]–[c], 13.06 (Matthew Bender)
1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of
the Parties, § 13.23 (Matthew Bender)
Law, §§ 24.10, 24.20–24.21, 24.40 (Matthew Bender)
Policies, §§ 82.21, 82.50 (Matthew Bender)
(Matthew Bender)
11 California Legal Forms, Ch. 26A, Title Insurance, § 26A.17 (Matthew Bender)
Bender)
1320

2332. Bad Faith (First Party)—Failure to Properly Investigate

Claim—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] acted unreasonably,

that is, without proper cause, by failing to conduct a proper
investigation of [his/her/its] claim. To establish this claim, [name of
insurance policy issued by [name of defendant];
2. That [name of plaintiff] properly presented a claim to [name of
defendant] to be compensated for the loss;
3. That [name of defendant], failed to conduct a full, fair, prompt,
and thorough investigation of all of the bases of [name of
plaintiff]’s claim;
5. That [name of defendant]’s failure to properly investigate the
claim was a substantial factor in causing [name of plaintiff]’s
harm.
When investigating [name of plaintiff]’s claim, [name of defendant] had a
duty to diligently search for and consider evidence that supported
coverage of the claimed loss.
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
• “[A]n insurer may breach the covenant of good faith and fair dealing when it
1321

fails to properly investigate its insured’s claim.” (Egan v. Mutual of Omaha

Insurance Co. (1979) 24 Cal.3d 809, 817 [169 Cal.Rptr. 691, 620 P.2d 141].)
• “To fulfill its implied obligation, an insurer must give at least as much
consideration to the interests of the insured as it gives to its own interests.
When the insurer unreasonably and in bad faith withholds payment of the claim
of its insured, it is subject to liability in tort. And an insurer cannot reasonably
and in good faith deny payments to its insured without fully investigating the
grounds for its denial.” (Frommoethelydo v. Fire Insurance Exchange (1986) 42
Cal.3d 208, 214–215 [228 Cal.Rptr. 160, 721 P.2d 41], internal citation
omitted.)
• “To protect [an insured’s] interests it is essential that an insurer fully inquire
into possible bases that might support the insured’s claim. Although we
recognize that distinguishing fraudulent from legitimate claims may occasionally
be difficult for insurers, . . . an insurer cannot reasonably and in good faith
deny payments to its insured without thoroughly investigating the foundation for
its denial.” (Egan, supra, 24 Cal.3d at p. 819.)
• “When investigating a claim, an insurance company has a duty to diligently
search for evidence which supports its insured’s claim. If it seeks to discover
only the evidence that defeats the claim it holds its own interest above that of
the insured.” (Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th
1617, 1620 [50 Cal.Rptr.2d 224].)
• “While we agree with the trial court . . . that the insurer’s interpretation of the
language of its policy which led to its original denial of [the insured]’s claim
was reasonable, it does not follow that [the insurer]’s resulting claim denial can
be justified in the absence of a full, fair and thorough investigation of all of the
bases of the claim that was presented.” (Jordan v. Allstate Ins. Co. (2007) 148
• “An unreasonable failure to investigate amounting to . . . unfair dealing may
be found when an insurer fails to consider, or seek to discover, evidence
relevant to the issues of liability and damages. . . . [¶] The insurer’s willingness
to reconsider its denial of coverage and to continue an investigation into a claim
has been held to weigh in favor of its good faith.” (Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 880
• “[The insurer], of course, was not obliged to accept [the doctor]’s opinion
without scrutiny or investigation. To the extent it had good faith doubts, the
insurer would have been within its rights to investigate the basis for [plaintiff]’s
claim by asking [the doctor] to reexamine or further explain his findings, having
a physician review all the submitted medical records and offer an opinion, or, if
necessary, having its insured examined by other physicians (as it later did).
What it could not do, consistent with the implied covenant of good faith and
fair dealing, was ignore [the doctor]’s conclusions without any attempt at
adequate investigation, and reach contrary conclusions lacking any discernable
1322

medical foundation.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713,
• “[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
Croskey et al., California Practice Guide: Insurance Litigation, Chapter 12C-D, Bad
Faith—First Party Cases—Application—Matters Held “Unreasonable”
Investigating the Claim, §§ 9.2, 9.14–9.22
Good Faith, § 13.04[1]–[3] (Matthew Bender)
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.153, 120.184
(Matthew Bender)
1323

2333. Bad Faith (First Party)—Breach of Duty to Inform Insured

of Rights—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached the

obligation of good faith and fair dealing by failing to reasonably inform
[him/her/it] of [his/her/its] rights and obligations under an insurance
policy. To succeed, [name of plaintiff] must prove all of the following:
insurance policy with [name of defendant];
2. That [name of defendant] [denied coverage for/refused to pay]
[name of plaintiff]’s loss;
3. That under the policy [name of plaintiff] had the [right/obligation]
to [describe right or obligation at issue; e.g., “to request arbitration
within 180 days”];
4. That [name of defendant] did not reasonably inform [name of
plaintiff] of [his/her/its] [right/obligation] to [describe right or
obligation];
6. That [name of defendant]’s failure to reasonably inform [name of
plaintiff] was a substantial factor in causing [his/her/its] harm.
New September 2003

Directions for Use
This instruction is intended for use in appropriate cases if the insured alleges that
the insurer breached the implied covenant of good faith and fair dealing by failing
to reasonably inform the insured of his or her remedial rights and obligations under
an insurance policy.
• The insurer’s implied duty of good faith and fair dealing includes “the duty
reasonably to inform an insured of the insured’s rights and obligations under the
insurance policy. In particular, in situations in which an insured’s lack of
knowledge may potentially result in a loss of benefits or a forfeiture of rights,
an insurer [is] required to bring to the insured’s attention relevant information
1324

so as to enable the insured to take action to secure rights afforded by the

policy.” (Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 428
[158 Cal.Rptr. 828, 600 P.2d 1060].)
• The trial court in the instant case found that [the insurer] knew that in many
instances its insureds would not be aware of the arbitration clause and that,
despite this knowledge, [it] deliberately decided not to inform its insureds of the
arbitration procedure. In this context, the practical effect of the insurer’s
practice was to transform its arbitration clause into a unilateral provision,
establishing a procedure to which the insurer could require its insureds to resort
when [it] deemed it advisable, but one that would not generally provide a
speedy, economic or readily accessible remedy for the bulk of [its] uninformed
insureds. [¶] We think the trial court was fully justified in finding that [the
insurer] had breached its duty of good faith and fair dealing in adopting such a
course of conduct. (Davis, supra, 25 Cal.3d at pp. 430–431.)
• “When a court is reviewing claims under an insurance policy, it must hold the
insured bound by clear and conspicuous provisions in the policy even if
evidence suggests that the insured did not read or understand them. Once it
becomes clear to the insurer that its insured disputes its denial of coverage,
however, the duty of good faith does not permit the insurer passively to assume
that its insured is aware of his rights under the policy. The insurer must instead
take affirmative steps to make sure that the insured is informed of his remedial
rights.” (Sarchett v. Blue Shield of California (1987) 43 Cal.3d 1, 14–15 [233
Cal.Rptr. 76, 729 P.2d 267], plurality opinion.)
• But see Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 1155
[50 Cal.Rptr.2d 178] [while insurer may not misrepresent facts or fail to clarify
an insured’s obvious misunderstanding of the policy coverage, it does not have
an ongoing duty to keep the insured informed of his or her rights once those
rights have been clearly set forth in the policy].)
• “In order to find a forfeiture by the insurer of the right to arbitration, we
understand Davis and Sarchett to require conduct designed to mislead
policyholders.” (Chase, supra, 42 Cal.App.4th at p. 1157, original italics.)
• An insurer owes a duty to an additional insured under an automobile policy to
disclose within a reasonable time the existence and amount of any underinsured
motorist coverage. (Ramirez v. USAA Casualty Insurance Co. (1991) 234
Cal.App.3d 391, 397–402 [285 Cal.Rptr. 757].)
• “California courts have imposed a duty on the insurer to advise its insureds of
the availability of and procedure for initiating arbitration; to notify him of a
31-day option period in which to convert his group insurance policy into
individual coverage after termination; and to notify an assignee of a life
insurance policy taken as security for a loan to the insured of previous
assignments of the policy known to the insurer.” (Westrick v. State Farm
Insurance (1982) 137 Cal.App.3d 685, 692 [187 Cal.Rptr. 214], internal
citations omitted.)
1325

Secondary Sources
¶¶ 11:46–11:47, 12:956–12:961
Good Faith, § 13.05 (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.383–120.384,
1326

2334. Bad Faith (Third Party)—Refusal to Accept Reasonable

Settlement Within Liability Policy Limits—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/it] was harmed by [name of

defendant]’s breach of the obligation of good faith and fair dealing
because [name of defendant] failed to accept a reasonable settlement
demand in a lawsuit against [name of plaintiff]. To establish this claim,
1. That [name of plaintiff in underlying case] brought a lawsuit
against [name of plaintiff] for a claim that was covered by [name
of defendant]’s insurance policy;
2. That [name of defendant] failed to accept a reasonable settlement
demand for an amount within policy limits; and
3. That a monetary judgment was entered against [name of plaintiff]
for a sum greater than the policy limits.
“Policy limits” means the highest amount available under the policy for
the claim against [name of plaintiff].
A settlement demand for an amount within policy limits is reasonable if
[name of defendant] knew or should have known at the time the demand
was rejected that the potential judgment was likely to exceed the
amount of the demand based on [name of plaintiff in underlying case]’s
injuries or loss and [name of plaintiff]’s probable liability. However, the
demand may be unreasonable for reasons other than the amount
demanded.
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.
If it is alleged that a demand was made in excess of limits and there is a claim that
1327

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.
1328


• “[T]he implied obligation of good faith and fair dealing requires the insurer to
settle in an appropriate case although the express terms of the policy do not
impose such a duty. [¶] The insurer, in deciding whether a claim should be
compromised, must take into account the interest of the insured and give it at
least as much consideration as it does to its own interest. When there is great
risk of a recovery beyond the 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.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d
654, 659 [328 P.2d 198], citation omitted.)
• “Liability is imposed not for a bad faith breach of the contract but for failure to
meet the duty to accept reasonable settlements, a duty included within the
implied covenant of good faith and fair dealing.” (Crisci v. Security Insurance
Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 430 [58 Cal.Rptr. 13,
426 P.2d 173].)
• “In determining whether an insurer has given consideration to the interests of
the insured, the test is whether a prudent insurer without policy limits would
have accepted the settlement offer.” (Crisci, supra, 66 Cal.2d at p. 429.)
• “[I]n deciding whether or not to compromise the claim, the insurer must
conduct itself as though it alone were liable for the entire amount of the
judgment. . . . [T]he only permissible consideration in evaluating the
reasonableness of the settlement offer becomes whether, in light of the victim’s
injuries and the probable liability of the insured, the ultimate judgment is likely
to exceed the amount of the settlement offer.” (Johansen, supra, 15 Cal.3d at p.
• “[A]n insurer is required to act in good faith in dealing with its insured. Thus,
in deciding whether or not to settle a claim, the insurer must take into account
the interests of the insured, and when there is a great risk of recovery beyond
the policy limits, a good faith consideration of the insured’s interests may
require the insurer to settle the claim within the policy limits. 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.” (Hamilton, supra, 27 Cal.4th at pp. 724−725.)
• “The size of the judgment recovered in the personal injury action when it
exceeds the policy limits, although not conclusive, furnishes an inference that
the value of the claim is the equivalent of the amount of the judgment and that
acceptance of an offer within those limits was the most reasonable method of
dealing with the claim.” (Crisci, supra, 66 Cal.2d at p. 431.)
• “The covenant of good faith and fair dealing implied in every insurance policy
obligates the insurer, among other things, to accept a reasonable offer to settle a
lawsuit by a third party against the insured within policy limits whenever there
is a substantial likelihood of a recovery in excess of those limits. The insurer
1329

must evaluate the reasonableness of an offer to settle a lawsuit against the

insured by considering the probable liability of the insured and the amount of
that liability, without regard to any coverage defenses. An insurer that fails to
accept a reasonable settlement offer within policy limits will be held liable in
tort for the entire judgment against the insured, even if that amount exceeds the
policy limits. An insurer’s duty to accept a reasonable settlement offer in these
circumstances is implied in law to protect the insured from exposure to liability
in excess of coverage as a result of the insurer’s gamble—on which only the
insured might lose.” (Rappaport-Scott v. Interinsurance Exch. of the Auto. Club
omitted.)
• “An insured’s claim for bad faith based on an alleged wrongful refusal to settle
first requires proof the third party made a reasonable offer to settle the claims
against the insured for an amount within the policy limits. The offer satisfies
this first element if (1) its terms are clear enough to have created an enforceable
contract resolving all claims had it been accepted by the insurer, (2) all of the
third party claimants have joined in the demand, (3) it provides for a complete
release of all insureds, and (4) the time provided for acceptance did not deprive
the insurer of an adequate opportunity to investigate and evaluate its insured’s
exposure.” (Graciano, supra, 231 Cal.App.4th at p. 425, internal citations
omitted.)
• “A bad faith claim requires ‘something beyond breach of the contractual duty
itself, and that something more is ‘ “refusing, without proper cause, to
compensate its insured for a loss covered by the policy . . . .” [Citation.] Of
course, the converse of “without proper cause” is that declining to perform a
contractual duty under the policy with proper cause is not a breach of the
implied covenant.’ ” (Graciano, supra, 231 Cal.App.4th at p. 433, original
italics.)
• “Determination of the reasonableness of a settlement offer for purposes of a
reimbursement action is based on the information available to [the insurer] at
the time of the proposed settlement.” (Isaacson v. California Ins. Guarantee
Assn. (1988) 44 Cal.3d 775, 793 [244 Cal.Rptr. 655, 750 P.2d 297].)
• “The third party is entitled to set a reasonable time limit within which the
insurer must accept the settlement proposal . . . .” (Graciano, supra, 231
• “Whether [the insurer] ‘refused’ the ‘offer,’ and whether it could reasonably
have acted otherwise in light of the 11-day deadline imposed by the offer’s
terms, were questions for the jury.” (Coe v. State Farm Mut. Auto. Ins. Co.
(1977) 66 Cal.App.3d 981, 994 [136 Cal.Rptr. 331].)
• “A cause of action for bad faith refusal to settle arises only after a judgment has
been rendered in excess of the policy limits. . . . Until judgment is actually
entered, the mere possibility or probability of an excess judgment does not
render the refusal to settle actionable.” (Safeco Ins. Co. of Am. v. Superior
1330

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],
• “ ‘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
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
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
1331

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.)
1332

Secondary Sources
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)
(Matthew Bender)
120.205, 120.207 (Matthew Bender)
1333

[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.]
New September 2003

Directions for Use
the case.
The “advice of counsel defense” is not a true affirmative defense, but rather negates
an essential element of the insured’s cause of action for bad faith. (See State Farm
Mutual Automobile Insurance Co. v. Superior Court (1991) 228 Cal.App.3d 721,
725–726 [279 Cal.Rptr. 116].)
Advice of counsel is irrelevant, however, when an insurer denies coverage and for
that reason refuses a reasonable settlement offer. (See, e.g., Johansen v. California
State Auto. Asso. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123 Cal.Rptr.
288, 538 P.2d 744] [“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”].)
• “An insurer may defend itself against allegations of bad faith and malice in
claims handling with evidence the insurer relied on the advice of competent
counsel. The defense of advice of counsel is offered to show the insurer had
‘proper cause’ for its actions even if the advice it received is ultimately unsound
1334

or erroneous.” (State Farm Mutual Automobile Insurance Co., supra, 228

• “If the insurer has exercised good faith in all of its dealings under its policy,
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 . . . .” (State Farm Mutual Automobile Insurance Co.,
• “[I]t is a complete defense to a claim of extreme and outrageous conduct when
the evidence shows (1) the defendant acted on the opinion and advice of
counsel; (2) counsel’s advice was based on full disclosure of all the facts by
defendant or the advice was initiated by counsel based on counsel’s familiarity
with the case; and (3) the defendant’s reliance on the advice of counsel was in
good faith.” (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d
931, 936–937 [207 Cal.Rptr. 47] [intentional infliction of emotional distress
action].)
• “Good faith reliance on counsel’s advice simply negates allegations of bad faith
and malice as it tends to show the insurer had proper cause for its actions.
Because advice of counsel is directed to an essential element of a plaintiff’s
cause of action, it does not constitute new matter and need not be specifically
alleged.” (State Farm Mutual Automobile Insurance Co., supra, 228 Cal.App.3d
at. pp. 725–726.)
• “An insurer’s receipt of and reliance on [the written opinion of its legal
counsel] is a relevant circumstance to be considered on the issue of its alleged
bad faith.” (Mock v. Mich. Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 326,
fn. 20 [5 Cal.Rptr.2d 594].)
• “Exemplary damages are not recoverable against a defendant who acts in good
faith and under the advice of counsel.” (Fox v. Aced (1957) 49 Cal.2d 381, 385
[317 P.2d 608].)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
omitted.)
Secondary Sources
¶¶ 12:1248–12:1260
General Principles of Contract and Bad Faith Actions, §§ 24.52–24.55
2 California Uninsured Motorist Law, Ch. 21, Defending an Uninsured Motorist
1335

Claim, §§ 21.20, 21.31 (Matthew Bender)

Policies, § 82.55 (Matthew Bender)
1336

2336. Bad Faith (Third Party)—Unreasonable Failure to

Defend—Essential Factual Elements
[Name of plaintiff] claims [he/she/it] was harmed by [name of defendant]’s

breach of the obligation of good faith and fair dealing because [name of
defendant] failed to defend [name of plaintiff] in a lawsuit that was
brought against [him/her/it]. To establish this claim, [name of plaintiff]
1. That [name of plaintiff] was insured under an insurance policy
with [name of defendant];
2. That a lawsuit was brought against [name of plaintiff];
3. That [name of plaintiff] gave [name of defendant] timely notice
that [he/she/it] had been sued;
4. That [name of defendant], unreasonably, that is, without proper
cause, failed to defend [name of plaintiff] against the lawsuit;
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
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.
• “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
1337

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
• “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
• “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].)
• “A duty to defend can be extinguished only prospectively and not
retrospectively.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
• “[F]acts known to the insurer and extrinsic to the third party complaint can
generate a duty to defend, even though the face of the complaint does not
reflect a potential for liability under the policy. [Citation.] This is so because
current pleading rules liberally allow amendment; the third party plaintiff cannot
be the arbiter of coverage.” (Tidwell Enterprises, Inc. v. Financial Pacific Ins.
Co., Inc. (2016) 6 Cal.App.5th 100, 106 [210 Cal.Rptr.3d 634].)
• “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
1338

coverage, but information available later shows otherwise, a duty to defend may
then arise.” (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009)
• “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],
original italics, disapproved on other grounds in Hartford Casualty Ins. Co. v.
Swift Distribution, Inc. (2014) 59 Cal.4th 277, 295 [172 Cal.Rptr.3d 653, 326
P.3d 253].)
• “The obligation of the insurer to defend is of vital importance to the insured.
‘In purchasing his insurance the insured would reasonably expect that he would
stand a better chance of vindication if supported by the resources and expertise
of his insurer than if compelled to handle and finance the presentation of his
case. He would, moreover, expect to be able to avoid the time, uncertainty and
capital outlay in finding and retaining an attorney of his own.’ ‘The insured’s
desire to secure the right to call on the insurer’s superior resources for the
defense of third party claims is, in all likelihood, typically as significant a
motive for the purchase of insurance as is the wish to obtain indemnity for
possible liability.’ ” (Amato v. Mercury Casualty Co. (Amato II) (1997) 53
• “An anomalous situation would be created if, on the one hand, an insured can
sue for the tort of breach of the implied covenant if the insurer accepts the
defense and later refuses a reasonable settlement offer, but, on the other hand,
an insured is denied tort recovery if the insurer simply refuses to defend. . . .
This dichotomy could have the effect of encouraging an insurer to stonewall the
insured at the outset by simply refusing to defend.” (Campbell v. Superior
Court (1996) 44 Cal.App.4th 1308, 1319–1320 [52 Cal.Rptr.2d 385].)
• “[T]he mere existence of a legal dispute does not create a potential for
coverage: ‘However, we have made clear that where the third party suit never
presented any potential for policy coverage, the duty to defend does not arise in
the first instance, and the insurer may properly deny a defense. Moreover, the
law governing the insurer’s duty to defend need not be settled at the time the
insurer makes its decision.’ ” (Griffın Dewatering Corp. v. Northern Ins. Co. of
New York (2009) 176 Cal.App.4th 172, 209 [97 Cal.Rptr.3d 568], original
italics.)
• “The trial court erroneously thought that because the case law was ‘unsettled’
when the insurer first turned down the claim, that unsettledness created a
potential for a covered claim. . . . [I]f an insurance company’s denial of
coverage is reasonable, as shown by substantial case law in favor of its
position, there can be no bad faith even though the insurance company’s
position is later rejected by our state Supreme Court.” (Griffın Dewatering
Corp., supra, 176 Cal.App.4th at p. 179, original italics.)
1339

• “Unresolved factual disputes impacting insurance coverage do not absolve the

insurer of its duty to defend. ‘If coverage depends on an unresolved dispute
over a factual question, the very existence of that dispute would establish a
possibility of coverage and thus a duty to defend.’ ” (Howard v. American
National Fire Insurance Company (2010) 187 Cal.App.4th 498, 520 [115
Cal.Rptr.3d 42].)
• “ ‘If the insurer is obliged to take up the defense of its insured, it must do so as
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
• “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 (11th ed. 2017) Insurance, §§ 427, 428
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
Policies, §§ 82.10–82.16 (Matthew Bender)
(Matthew Bender)
1340

In determining whether [name of defendant] acted unreasonably, that is,

without proper cause, you may consider whether the defendant did any
of the following:
[(a) Misrepresented to [name of plaintiff] relevant facts or
insurance policy provisions relating to any coverage at issue.]
[(b) Failed to acknowledge and act reasonably promptly after
receiving communications about [name of plaintiff]’s claim arising
under the insurance policy.]
[(c) Failed to adopt and implement reasonable standards for the
prompt investigation and processing of claims arising under its
insurance policies.]
[(d) Failed to accept or deny coverage of claims within a
reasonable time after [name of plaintiff] completed and submitted
proof-of-loss requirements.]
[(e) Did not attempt in good faith to reach a prompt, fair, and
equitable settlement of [name of plaintiff]’s claim after liability
had become reasonably clear.]
[(f) Required [name of plaintiff] to file a lawsuit to recover
amounts due under the policy by offering substantially less than
the amount that [he/she/it] ultimately recovered in the lawsuit,
even though [name of plaintiff] had made a claim for an amount
reasonably close to the amount ultimately recovered.]
[(g) Attempted to settle [name of plaintiff]’s claim for less than
the amount to which a reasonable person would have believed he
or she was entitled by referring to written or printed advertising
material accompanying or made part of the application.]
[(h) Attempted to settle the claim on the basis of an application
that was altered without notice to, or knowledge or consent of,
[name of plaintiff], [his/her/its] representative, agent, or broker.]
[(i) Failed, after payment of a claim, to inform [name of plaintiff]
at [his/her/its] request, of the coverage under which payment was
made.]
[(j) Informed [name of plaintiff] of its practice of appealing from
arbitration awards in favor of insureds or claimants for the
purpose of forcing them to accept settlements or compromises
less than the amount awarded in arbitration.]
[(k) Delayed the investigation or payment of the claim by
1341

requiring [name of plaintiff], [or [his/her] physician], to submit a

preliminary claim report, and then also required the submission
of formal proof-of-loss forms, both of which contained
substantially the same information.]
[(l) Failed to settle a claim against [name of plaintiff] promptly
once [his/her/its] liability had become apparent, under one
portion of the insurance policy coverage in order to influence
settlements under other portions of the insurance policy
coverage.]
[(m) Failed to promptly provide a reasonable explanation of its
reasons for denying the claim or offering a compromise
settlement, based on the provisions of the insurance policy in
relation to the facts or applicable law.]
[(n) Directly advised [name of plaintiff] not to hire an attorney.]
[(o) Misled [name of plaintiff] as to the applicable statute of
limitations, that is, the date by which an action against [name of
defendant] on the claim had to be filed.]
[(p) Delayed the payment or provision of hospital, medical, or
surgical benefits for services provided with respect to acquired
immune deficiency syndrome (AIDS) or AIDS-related complex
for more than 60 days after it had received [name of plaintiff]’s
claim for those benefits, doing so in order to investigate whether
[name of plaintiff] had the condition before obtaining the
insurance coverage. However, the 60-day period does not include
any time during which [name of defendant] was waiting for a
response for relevant medical information from a healthcare
provider.]
The presence or absence of any of these factors alone is not enough to
determine whether [name of defendant]’s conduct was or was not
unreasonable, that is, without proper cause. You must consider [name of
defendant]’s conduct as a whole in making this determination.

Directions for Use
Although there is no private cause of action under Insurance Code section
790.03(h) (see Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d
287, 304–305 [250 Cal.Rptr. 116, 758 P.2d 58]), this instruction may be given in an
insurance bad-faith action to assist the jury in determining whether the insurer’s
conduct was unreasonable or without proper cause. (See Jordan v. Allstate Ins. Co.
1342

omitted.)
Include only the factors that are relevant to the case.
• 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.
(Matthew Bender)
1 Rushing et al., Matthew Bender Practice Guide: California Unfair Competition
and Business Torts, Ch. 2, Unfair Competition, 2.11 (Matthew Bender)
1343


The amount of damages must include an award for all harm that was
caused by [name of defendant], even if the particular harm could not
have been anticipated.
plaintiff]:
1. [Mental suffering/anxiety/humiliation/emotional distress;] [and]
2. [The cost of attorney fees to recover the insurance policy
benefits;] [and]
3. [Insert other applicable item of damage.]
[No fixed standard exists for deciding the amount of damages for [insert
item of mental or emotional distress]. You must use your judgment to
decide a reasonable amount based on the evidence and your common
sense.]
[To recover for future [insert item of mental or emotional distress], [name
of plaintiff] must prove that [he/she] is reasonably certain to suffer that
harm.]
[To recover attorney fees [name of plaintiff] must prove that because of
[name of defendant]’s breach of the obligation of good faith and fair
dealing it was reasonably necessary for [him/her/it] to hire an attorney
to recover the policy benefits. [Name of plaintiff] may recover attorney
fees [he/she/it] incurred to obtain policy benefits but not attorney fees
[he/she/it] incurred for other purposes.]
New September 2003

Directions for Use
the case.
1344

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.
• “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,
• “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,
Secondary Sources
¶¶ 13:120–13:144
General Principles of Contract and Bad Faith Actions, §§ 24.70–24.71
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)
Bender)
1345

2351. Insurer’s Claim for Reimbursement of Costs of Defense of

Uncovered Claims
[Name of insurer] claims that it is entitled to partial reimbursement from

[name of insured] for the costs that it spent in defending [name of
insured] in the lawsuit brought by [name of plaintiff in underlying suit]
against [name of insured]. [Name of insurer] may obtain reimbursement
only for those defense costs that it proves can be allocated solely to
claims that are not even potentially covered by the insurance policy.
I have determined that the following claims in [name of plaintiff in
underlying suit]’s lawsuit were not even potentially covered by the
policy: [specify]. You must determine the dollar amount of [name of
insurer]’s costs of defense that were attributable only to these claims.
Costs for work that also helped the defense of the other claims that
were potentially covered should not be included.
New December 2015

Directions for Use
This instruction is for use if the insurer has provided a defense under a reservation
of rights to deny indemnity if coverage cannot be established. In such a case, the
insurer can seek reimbursement of the cost of defense that can be allocated solely
to claims for which there was no possible potential coverage. (Buss v. Superior
Court (1997) 16 Cal.4th 35, 57–58 [65 Cal.Rptr.2d 366, 939 P.2d 766].)
If the insurer denies a defense, but the court finds that there is coverage for some
but not all claims in the underlying case, it would appear that the insured can
recover all costs of defense from the insurer. The insurer is not entitled to
apportion the costs of defense (damages) between covered and uncovered claims if
it denies a defense. (See Hogan v. Midland Nat’l Ins. Co. (1970) 3 Cal.3d 553,
563–564 [91 Cal.Rptr. 153, 476 P.2d 825].) Therefore, this instruction may not be
modified for use in a denial-of-coverage case.
• “An insurer may obtain reimbursement only for defense costs that can be
allocated solely to the claims that are not even potentially covered. To do that,
it must carry the burden of proof as to these costs by a preponderance of the
evidence. And to do that, . . . it must accomplish a task that, ‘if ever feasible,”
may be “extremely difficult.’ ” (Buss, supra, 16 Cal.4th at pp. 57–58, original
italics.)
• “Whether [insurer] will be able to carry its burden of proof by a preponderance
of the evidence that specific costs can be allocated solely to the causes of action
that were not even potentially covered is far from plain. But there is at least a
1346

triable issue of material fact that it can. It must be allowed the attempt.” (Buss,
• “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)
• “The ultimate determination that the loss was caused by a noncovered
occurrence does not mean that [third party]’s lawsuit (and [developer]’s cross-
complaint) never presented any potential for policy coverage. If that were so, a
determination an insurer has no duty to indemnify would automatically
extinguish the duty to defend retrospectively and give the insurer the right to
seek reimbursement from the insured. That result is inconsistent with the firmly
established principle that the duty to defend is broader than the duty to
indemnify.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
• “ ‘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.)
• “The insurer, not the insured, has the burden of proving by a preponderance of
the evidence that ‘the settlement payments were allocable to claims not actually
covered, and the defense costs were allocable to claims not even potentially
covered.’ ” (Navigators Specialty Ins. Co, supra, 6 Cal.App.5th at p. 1287.)
Secondary Sources
1347


(Matthew Bender)
Bender)
1348

2360. Judgment Creditor’s Action Against Insurer—Essential

Factual Elements
[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
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].
New September 2003

Directions for Use
the case.
This instruction is intended for a judgment creditor’s action against an insurer to
collect on an insurance policy pursuant to Insurance Code section 11580(b)(2). This
instruction should be used only where there are factual issues on any of the above
elements. This instruction may need to be augmented with instructions on specific
factual findings.
Note that Insurance Code section 11580 requires that the policy be “issued or
delivered to [a] person in this state.” This issue should be added as an element if it
is disputed in the case.
• Judgment Creditor’s Action Against Insurer. Insurance Code section
11580(b)(2).
• “A direct action under section 11580 is a contractual action on the policy to
satisfy a judgment up to policy limits.” (Wright v. Fireman’s Fund Insurance
Co. (1992) 11 Cal.App.4th 998, 1015 [14 Cal.Rptr.2d 588].)
• “[I]t is not necessary for property damage to be caused by a vehicle or draught
animal in order to bring a direct action against an insurer under section 11580.”
(People ex rel. City of Willits v. Certain Underwriters at Lloyd’s of London
(2002) 97 Cal.App.4th 1125, 1131–1132].)
• “Because the insurer’s duties flow to its insured alone, a third party claimant
may not bring a direct action against an insurance company. As a general rule, a
1349

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,
• “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],
• “[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
• “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],
• 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
1350

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
¶¶ 15:1028–15:1077, 15:1123–15:1136
Claimant’s Direct Action for Recovery of Judgment, §§ 27.1–27.7, 27.17–27.27
Bender)
1351

2361. Negligent Failure to Obtain Insurance Coverage—Essential

Factual Elements
[Name of plaintiff] claims that [he/she/it] was harmed by [name of

defendant]’s negligent failure to obtain insurance requested by [him/her/
it]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] requested [name of defendant] to obtain
[describe requested insurance] and [name of defendant] promised to
obtain that insurance for [him/her/it];
2. That [name of defendant] was negligent in failing to obtain the
promised insurance;
New September 2003

Directions for Use
the case.
For general tort instructions, including the definition of “substantial factor,” see the
Negligence series (CACI No. 400 et seq.).
• “A ‘failure to deliver the agreed-upon coverage’ case is actionable . . . . An
insurance agent has an ‘obligation to use reasonable care, diligence, and
judgment in procuring insurance requested by an insured.’ A broker’s failure to
obtain the type of insurance requested by an insured may constitute actionable
negligence and the proximate cause of injury.” (Desai v. Farmers Insurance
Exchange (1996) 47 Cal.App.4th 1110, 1119–1120 [55 Cal.Rptr.2d 276],
• “Absent some notice or warning, an insured should be able to rely on an
agent’s representations of coverage without independently verifying the
accuracy of those representations by examining the relevant policy provisions.”
(Clement v. Smith (1993) 16 Cal.App.4th 39, 45 [19 Cal.Rptr.2d 676].)
• “[W]hile an insurance agent who promises to procure insurance will indeed be
liable for his negligent failure to do so, it does not follow that he can avoid
liability for foreseeable harm caused by his silence or inaction merely because
he has not expressly promised to assume responsibility.” (Westrick v. State Farm
1352

Insurance (1982) 137 Cal.App.3d 685, 691 [187 Cal.Rptr. 214], internal
citations omitted.)
Secondary Sources
¶¶ 2:50–2:64.2, 11:246–11:249
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)
Bender)
1353


1. Did [name of plaintiff] suffer a loss, [all or part of] which was
covered under an insurance policy with [name of defendant]?
1. Yes No
2. Was [name of defendant] notified of the loss [as required by the
policy]?
2. Yes No
3. What is the amount of the covered loss that [name of defendant]
failed to pay [name of plaintiff]? $
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 2300, Breach of Contractual Duty to Pay
a Covered Claim—Essential Factual Elements.
1354

VF-2301. Breach of the Implied Obligation of Good Faith and Fair

Dealing—Failure or Delay in Payment

1. Did [name of plaintiff] suffer a loss covered under an insurance
policy with [name of defendant]?
1. Yes No
2. Was [name of defendant] notified of the loss?
2. Yes No
3. Did [name of defendant] [fail to pay/delay payment of] policy
benefits?
3. Yes No
4. Was [name of defendant]’s [failure to pay/delay in payment of]
policy benefits, unreasonable or without proper cause?
4. Yes No
5. Was [name of defendant]’s [failure to pay/delay in payment of]
policy benefits a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
1355

VF-2301 INSURANCE LITIGATION
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1356

INSURANCE LITIGATION VF-2301

If punitive damages are claimed, combine this form with the appropriate verdict
form numbering from VF-3900 to VF-3904.
1357

VF-2303. Bad Faith (First Party)—Breach of Duty to Inform

Insured of Rights

1. Did [name of plaintiff] suffer a loss covered under an insurance
policy with [name of defendant]?
1. Yes No
2. Did [name of defendant] [deny coverage for/refuse to pay] [name
of plaintiff]’s loss?
2. Yes No
3. Did [name of plaintiff] have the [right/obligation] to [describe right
or obligation at issue; e.g., “to request arbitration within 180 days”]
under the policy?
3. Yes No
4. Did [name of defendant] fail to reasonably inform [name of
plaintiff] of [his/her] [right/obligation] to [describe right or
obligation]?
4. Yes No
5. Was [name of defendant]’s failure to reasonably inform [name of
plaintiff] a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
1358

INSURANCE LITIGATION VF-2303

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1359

VF-2303 INSURANCE LITIGATION

1360

2400. Breach of Employment Contract—Unspecified Term—“At-Will”

Presumption
2401. Breach of Employment Contract—Unspecified Term—Essential Factual
Elements
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact
Promise Not to Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause”
Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good
Cause” Defined—Misconduct
2420. Breach of Employment Contract—Specified Term—Essential Factual
Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense
(Lab. Code, § 2924)
2423. Breach of the Implied Covenant of Good Faith and Fair Dealing—Essential
Factual Elements
2424. Breach of the Implied Covenant of Good Faith and Fair Dealing—Good
Faith Mistaken Belief Defense
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual
Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
Endure Intolerable Conditions That Violate Public Policy
2441. Discrimination Against Member of Military—Essential Factual Elements
(Mil. & Vet. Code, § 394)
1361

VF-2401. Breach of Employment Contract—Unspecified Term—Constructive

Discharge
VF-2403. Breach of Employment Contract—Specified Term—Good-Cause
Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair
Dealing
VF-2405. Breach of the Implied Covenant of Good Faith and Fair
Dealing—Affirmative Defense—Good Faith Mistaken Belief
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 Endure Intolerable Conditions for Improper Purpose That
Violates Public Policy
1362

2400. Breach of Employment Contract—Unspecified Term—“At-

Will” Presumption
An employment relationship may be ended by either the employer or

the employee, at any time, for any [lawful] reason, or for no reason at
all. This is called “at-will employment.”
An employment relationship is not “at will” if the employee proves that
the parties, by words or conduct, agreed that the employee would be
discharged only for good cause.

Directions for Use
If the plaintiff has made no claim other than the contract claim, then the word
“lawful” may be omitted. If the plaintiff has made a claim for wrongful termination
or violation of the Fair Employment and Housing Act, then the word “lawful”
should be included in order to avoid confusing the jury.
• At-Will Employment. Labor Code section 2922.
• Contract of Employment. Labor Code section 2750.
• “Labor Code section 2922 has been recognized as creating a presumption. The
statute creates a presumption of at-will employment which may be overcome
‘by evidence that despite the absence of a specified term, the parties agreed that
the employer’s power to terminate would be limited in some way, e.g., by a
requirement that termination be based only on “good cause.” ’ ” (Haycock v.
Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488 [28 Cal.Rptr.2d 248],
• “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,
• “Because the presumption of at-will employment is premised upon public policy
considerations, it is one affecting the burden of proof. Therefore, even if no
substantial evidence was presented by defendants that plaintiff’s employment
was at-will, the presumption of Labor Code section 2922 required the issue to
be submitted to the jury.” (Alexander v. Nextel Communications, Inc. (1997) 52
1363

CACI No. 2400 WRONGFUL TERMINATION
• “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
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 231
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:2–4:4, 4:65 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.4–8.14
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.10, 249.11, 249.13, 249.21, 249.43 (Matthew
Bender)
10 California Points and Authorities, Ch. 100, Wrongful Termination and
Discipline, §§ 100.20–100.23 (Matthew Bender)
1364

2401. Breach of Employment Contract—Unspecified

Term—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached their

employment contract. To establish this claim, [name of plaintiff] must
1. That [name of plaintiff] and [name of defendant] entered into an
employment relationship. [An employment contract or a
provision in an employment contract may be [written or oral/
partly written and partly oral/created by the conduct of the
parties]];
2. That [name of defendant] promised, by words or conduct, to
[discharge/demote] [name of plaintiff] only for good cause;
3. That [name of plaintiff] substantially performed [his/her] job
duties [unless [name of plaintiff]’s performance was excused [or
prevented]];
4. That [name of defendant] [discharged/demoted] [name of plaintiff]
without good cause; and
5. That [name of plaintiff] was harmed by the [discharge/demotion].
New September 2003

Directions for Use
In cases where constructive discharge is alleged, use CACI No. 2402 instead of
this one.
The element of substantial performance should not be confused with the “good
cause” defense: “The action is primarily for breach of contract. It was therefore
incumbent upon plaintiff to prove that he was able and offered to fulfill all
obligations imposed upon him by the contract. Plaintiff failed to meet this
requirement; by voluntarily withdrawing from the contract he excused further
performance by defendant.” (Kane v. Sklar (1954) 122 Cal.App.2d 480, 482 [265
P.2d 29], internal citation omitted.) Element 3 may be deleted if substantial
performance is not a disputed issue.
See also CACI No. 304, Oral or Written Contract Terms, and CACI No. 305,
Implied-in-Fact Contract.
The California Supreme Court has extended the implied contract theory to
encompass demotions or other similar employment decisions that violate the terms
of an implied contract. (See Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454,
473–474 [46 Cal.Rptr.2d 427, 904 P.2d 834].) As a result, the bracketed language
regarding an alleged wrongful demotion may be given, or other appropriate
1365

language for other similar employment decisions, depending on the facts of the
case.
• Contractual Conditions Precedent. Civil Code section 1439.
• 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].)
• “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
1366

WRONGFUL TERMINATION CACI No. 2401
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.)
• “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.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737,
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:2, 4:8, 4:15, 4:65,
4:81, 4:105, 4:270–4:273 (The Rutter Group)
Actions, §§ 8.4–8.20B
and Discipline, §§ 60.05, 60.07 (Matthew Bender)
Termination and Discipline, §§ 249.90, 249.43, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.66 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10, 50.11, 50.350
(Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.28, 100.29 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:9–6:11 (Thomson Reuters)
1367


Term—Constructive Discharge—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached their

employment contract by forcing [name of plaintiff] to resign. To establish
employment relationship. [An employment contract or a
provision in an employment contract may be [written or oral/
partly written and partly oral/created by the conduct of the
parties]];
2. That [name of defendant] promised, by words or conduct, to
discharge [name of plaintiff] only for good cause;
prevented]];
4. That [name of defendant] intentionally created or knowingly
permitted working conditions to exist that were so intolerable
that a reasonable person in [name of plaintiff]’s position would
have had no reasonable alternative except to resign;
5. That [name of plaintiff] resigned because of the intolerable
conditions; and
6. That [name of plaintiff] was harmed by the loss of employment.
To be intolerable, the adverse working conditions must be unusually or
repeatedly offensive to a reasonable person in [name of plaintiff]’s
position.
New September 2003

Directions for Use
performance is not a disputed issue.
1368


• 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].)
• “Standing alone, constructive discharge is neither a tort nor a breach of
contract, but a doctrine that transforms what is ostensibly a resignation into a
firing. Even after establishing constructive discharge, an employee must
independently prove a breach of contract or tort in connection with employment
termination in order to obtain damages for wrongful discharge.” (Turner v.
Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223, 876
• “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
• 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
1369

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,
• “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
1370

so intolerable or aggravated at the time of the employee’s resignation that a

reasonable employer would realize that a reasonable person in the employee’s
position would be compelled to resign. [¶] For purposes of this standard, the
requisite knowledge or intent must exist on the part of either the employer or
those persons who effectively represent the employer, i.e., its officers, directors,
managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p.
1251.)
• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
of a reasonable person. Neither logic nor precedent suggests it should always be
dispositive.” (Turner, supra, 7 Cal.4th at p. 1254.)
Secondary Sources
§§ 223–227
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:2, 4:65, 4:81, 4:105,
4:405–4:407, 4:409–4:410, 4:270–4:273, 4:420, 4:422, 4:440 (The Rutter Group)
Actions, §§ 8.1–8.21
and Discipline, §§ 60.05, 60.07 (Matthew Bender)
Termination and Discipline, § 249.15 (Matthew Bender)
1371


Term—Implied-in-Fact Promise Not to Discharge Without Good
Cause
An employer promises to [discharge/demote] an employee only for good

cause if it is reasonable for an employee to conclude, from the
employer’s words or conduct, that [he/she] will be [discharged/demoted]
only for good cause.
In deciding whether [name of defendant] promised to [discharge/demote]
[name of plaintiff] only for good cause, you may consider, among other
factors, the following:
(a) [Name of defendant]’s personnel policies [and/or] practices;
(b) [Name of plaintiff]’s length of service;
(c) Any raises, commendations, positive evaluations, and promotions
received by [name of plaintiff]; [and]
(d) Whether [name of defendant] said or did anything to assure [name
of plaintiff] of continued employment; [and]
(e) [Insert other relevant factor(s).]
Length of service, raises, and promotions by themselves are not enough
to imply such a promise, although they are factors for you to consider.

Directions for Use
This instruction should be read when an employee is basing his or her claim of
wrongful discharge on an implied covenant not to terminate except for good cause.
Only those factors that apply to the facts of the particular case should be read.
In certain cases, it may be necessary to instruct the jury that if it finds there is an
at-will provision in an express written agreement, there may not be an implied
agreement to the contrary. (See Faigin v. Signature Group Holdings, Inc. (2012)
211 Cal.App.4th 726, 739 [150 Cal.Rptr.3d 123] [there cannot be a valid express
contract and an implied contract, each embracing the same subject, but requiring
different results].)
• Express and Implied Contracts. Civil Code sections 1619–1621.
• “Labor Code section 2922 establishes a statutory presumption of at-will
employment. However, an employer and an employee are free to depart from
the statutory presumption and specify that the employee will be terminated only
for good cause, either by an express, or an implied, contractual agreement.”
1372

(Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 380 [84
• “[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.)
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
• “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,
• “Conceptually, there is no rational reason why an employer’s policy that its
1373

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].)
• “[Employer] retained the right to terminate [employee] for any lawful reason.
Thus, . . . the fact that [employer] was obligated to pay compensation if it
terminated [employee] for reasons other than his misconduct did not convert an
otherwise at-will agreement into a for-cause agreement.” (Popescu v. Apple Inc.
Secondary Sources
§§ 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)
Actions, §§ 8.6–8.16
and Discipline, § 60.05[2][a]–[e] (Matthew Bender)
Termination and Discipline, §§ 100.21, 100.22, 100.25–100.27, 100.29, 100.34
(Matthew Bender)
1374


Term—“Good Cause” Defined
Good cause exists when an employer’s decision to [discharge/demote] an

employee is made in good faith and based on a fair and honest reason.
Good cause does not exist if the employer’s reasons for the [discharge/
demotion] are trivial, arbitrary, inconsistent with usual practices, [or]
unrelated to business needs or goals [or if the stated reasons conceal the
employer’s true reasons].
In deciding whether [name of defendant] had good cause to [discharge/
demote] [name of plaintiff], you must balance [name of defendant]’s
interest in operating the business efficiently and profitably against the
interest of [name of plaintiff] in maintaining employment.
[If [name of plaintiff] had a sensitive managerial position, then [name of
defendant] had substantial, though not unlimited, discretion in
[discharging/demoting] [him/her].]
New September 2003

Directions for Use
This instruction may not be appropriate in the context of an implied employment
contract where the parties have agreed to a particular meaning of “good cause”
(e.g., a written employment agreement specifically defining “good cause” for
discharge). If so, the instruction should be modified accordingly.
Only read the last bracketed phrase in the first paragraph in cases where there is an
issue involving pretext.
The last optional paragraph should be given when the employee is in such a
position that the employer would be allowed greater discretion in its decision to
discharge the employee: “[W]here, as here, the employee occupies a sensitive
managerial or confidential position, the employer must of necessity be allowed
substantial scope for the exercise of subjective judgment.” (Pugh v. See’s Candies,
Inc. (Pugh I) (1981) 116 Cal.App.3d 311, 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].) Note that the term “confidential position” has not
been defined by California case law.
When the reason given for the discharge is misconduct, and there is a factual
dispute whether the misconduct occurred, then the court should give CACI
No. 2405, Breach of Implied Employment Contract—Unspecified Term—“Good
Cause” Defined—Misconduct, instead of this instruction. (See Cotran v. Rollins
Hudig Hall International, Inc. (1998) 17 Cal.4th 93, 107 [69 Cal.Rptr.2d 900, 948
P.2d 412].)
1375


• “If the evidence is uncontradicted and permits only one conclusion, then the
issue [of good cause] is legal, not factual. Where, however, as here, the
evidence is contradicted, the issue is one for the trier of fact to decide.” (Wallis
v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 733 [269 Cal.Rptr. 299],
disapproved on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 39
Cal.4th 384, 394 fn. 2 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
• “ ‘Good cause’ in the context of implied employment contracts is defined as:
‘fair and honest’ reasons, regulated by good faith on the part of the employer,
that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
or pretextual.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
• “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. . . . 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 v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 351 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
• “[G]ood 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.”
(Pugh, supra, 116 Cal.App.3d at p. 330.)
• “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, supra, 116 Cal.App.3d at pp. 329–330, internal citation
omitted.)
Secondary Sources
§§ 208, 209, 231
Rutter Group)
1376

Actions, §§ 8.22–8.25
and Discipline, § 60.09[5][b] (Matthew Bender)
Termination and Discipline, §§ 249.21, 249.63 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1377

2405. Breach of Implied Employment Contract—Unspecified

Term—“Good Cause” Defined—Misconduct
[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.
New September 2003

Directions for Use
This instruction should be given when there is a dispute as to whether misconduct,
in fact, occurred. (Cotran v. Rollins Hudig Hall International, Inc. (1998) 17
Cal.4th 93 [69 Cal.Rptr.2d 900, 948 P.2d 412].)
• “The proper inquiry for the jury . . . is not, ‘Did the employee in fact commit
the act leading to dismissal?’ It is ‘Was the factual basis on which the employer
concluded a dischargeable act had been committed reached honestly, after an
appropriate investigation and for reasons that are not arbitrary or pretextual?’
The jury conducts a factual inquiry in both cases, but the questions are not the
same. In the first, the jury decides the ultimate truth of the employee’s alleged
misconduct. In the second, it focuses on the employer’s response to allegations
of misconduct.” (Cotran, supra, 17 Cal.4th at p. 107.)
• “ ‘Good cause’ in the context of implied employment contracts is defined as:
‘fair and honest’ reasons, regulated by good faith on the part of the employer,
that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
or pretextual. A reasoned conclusion, in short, supported by substantial evidence
gathered through an adequate investigation that includes notice of the claimed
misconduct and a chance for the employee to respond.’ ‘Three factual
determinations are relevant to the question of employer liability: (1) did the
employer act with good faith in making the decision to terminate; (2) did the
decision follow an investigation that was appropriate under the circumstances;
and (3) did the employer have reasonable grounds for believing the employee
1378

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],
• “[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
§§ 208, 209
Rutter Group)
Actions, §§ 8.22–8.26
and Discipline, § 60.09[5][b] (Matthew Bender)
1379


Term—Damages
If you find that [name of defendant] [discharged/demoted] [name of

plaintiff] in breach of an employment contract, then you must decide the
amount of damages, if any, that [name of plaintiff] has proved [he/she] is
entitled to recover. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned
from [name of defendant] up to today, including any benefits and
pay increases; [and]
2. Add the present cash value of any future wages and benefits that
[he/she] would have earned after today for the length of time the
employment with [name of defendant] was reasonably certain to
continue; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
In determining the period that [name of plaintiff]’s employment was
reasonably certain to have continued, you should consider, among other
factors, the following:
(a) [Name of plaintiff]’s age, work performance, and intent
regarding continuing employment with [name of defendant];
(b) [Name of defendant]’s prospects for continuing the operations
involving [name of plaintiff]; and
(c) Any other factor that bears on how long [name of plaintiff]
would have continued to work.

Directions for Use
For an instruction on mitigation, see CACI No. 2407, Employee’s Duty to Mitigate
Damages. This instruction should be given when plaintiff claims loss of
employment from a wrongful discharge or demotion or a breach of the covenant of
good faith and fair dealing. For instructions on present cash value, see CACI
No. 3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value
Tables.
• Damages for Breach of Contract. Civil Code section 3300.
1380

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],
• “[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.
Secondary Sources
§§ 267, 268
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)
and Discipline, § 60.08[3] (Matthew Bender)
Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)
1381

[Name of defendant] claims that if [name of plaintiff] is entitled to any

damages, they should be reduced by the amount that [he/she] could
have earned from other employment. To succeed, [name of defendant]
1. That employment substantially similar to [name of plaintiff]’s
former job was available to [him/her];
2. That [name of plaintiff] failed to make reasonable efforts to seek
[and retain] this employment; and
3. The amount that [name of plaintiff] could have earned from this
employment.
In deciding whether the employment was substantially similar, you
should consider, among other factors, whether:
(a) The nature of the work was different from [name of plaintiff]’s
employment with [name of defendant];
(b) The new position was substantially inferior to [name of
plaintiff]’s former position;
(c) The salary, benefits, and hours of the job were similar to
[name of plaintiff]’s former job;
(d) The new position required similar skills, background, and
experience;
(e) The job responsibilities were similar; [and]
(f) The job was in the same locality; [and]
(g) [insert other relevant factor(s)].
[In deciding whether [name of plaintiff] failed to make reasonable efforts
to retain comparable employment, you should consider whether [name
of plaintiff] quit or was discharged from that employment for a reason
within [his/her] control.]
New September 2003; Revised February 2007, December 2014

Directions for Use
This instruction may be given when there is evidence that the employee’s damages
could have been mitigated. The bracketed language at the end of the instruction
regarding plaintiff’s failure to retain a new job is based on the holding in
Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502–1503 [44
Cal.Rptr.2d 565].
1382

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.
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
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
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
• “[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
1383

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
• “[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
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,
Actions, §§ 8.40–8.41
1384

2420. Breach of Employment Contract—Specified

Term—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached an

employment contract for a specified term. To establish this claim, [name
employment contract that specified a length of time that [name of
plaintiff] would remain employed;
prevented]];
3. That [name of defendant] breached the employment contract by
[discharging/demoting] [name of plaintiff] before the end of the
term of the contract; and
4. That [name of plaintiff] was harmed by the [discharge/demotion].
New September 2003

Directions for Use
performance is not an issue.
See also CACI No. 304, Oral or Written Contract Terms, and CACI No. 305,
Implied-in-Fact Contract.
• Termination of Employment for Specified Term. Labor Code section 2924.
• “[L]abor Code section 2924 has traditionally been interpreted to ‘inhibit[] the
termination of employment for a specified term except in case of a wilful
breach of duty, of habitual neglect of, or continued incapacity to perform, a
duty.’ ” (Khajavi v. Feather River Anesthesia Medical Group (2000) 84
1385

• “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)
Actions, §§ 8.2–8.20
1386

2421. Breach of Employment Contract—Specified Term—Good-

Cause Defense (Lab. Code, § 2924)
[Name of defendant] claims that [he/she/it] did not breach the

employment contract because [he/she/it] [discharged/demoted] [name of
plaintiff] for good cause. To establish good cause, [name of defendant]
must prove:
[that [name of plaintiff] willfully breached a job duty] [or]
[that [name of plaintiff] continually neglected [his/her] job duties]
[or]
[that a continued incapacity prevented [name of plaintiff] from
performing [his/her] job duties.]

Directions for Use
This instruction sets forth the statutory grounds under which an employer may
terminate an employment contract for a specified term. (See Lab. Code, § 2924.) It
should be given when the employee alleges wrongful discharge in breach of the
contract and the employer defends by asserting plaintiff was justifiably discharged.
This instruction may not be appropriate if the parties have agreed to a particular
meaning of “good cause” (e.g., a written employment agreement specifically
defining “good cause” for discharge). (See Uecker & Assocs. v. Lei (In re San Jose
Med. Mgmt.) (B.A.P. 9th Cir. 2007) 2007 Bankr. LEXIS 4829.) If so, the
instruction should be modified to set forth the contractual grounds for good cause.
In the absence of grounds for termination in the contract, the employer is limited to
those set forth in the statute. (See Khajavi v. Feather River Anesthesia Medical
Group (2000) 84 Cal.App.4th 32, 57 [100 Cal.Rptr.2d 627].)
The third option may not be asserted if the plaintiff has a statutory right to be
absent from work (for example, for family or medical leave or to accommodate a
disability) throughout the entire period of incapacity.
• Termination of Employment for Specified Term. Labor Code section 2924.
• “[L]abor Code section 2924 has traditionally been interpreted to ‘inhibit[] the
termination of employment for a specified term except in case of a wilful
breach of duty, of habitual neglect of, or continued incapacity to perform, a
duty.’ ” (Khajavi v. Feather River Anesthesia Medical Group (2000) 84
• “Unlike a wrongful discharge based on an implied-in-fact contract, an employee
1387

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,
• “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
• “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)
1388

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)
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and
Discipline Claims, § 62.02 (Matthew Bender)
Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63 (Matthew Bender)
1389

2422. Breach of Employment Contract—Specified

Term—Damages
If you find that [name of defendant] [discharged/demoted] [name of

plaintiff] in breach of an employment contract for a specified term, then
you must decide the damages, if any, that [name of plaintiff] has proved
[he/she] is entitled to recover. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; [and]
[he/she] would have earned up to the end of the term of the
contract; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
[If you find that [name of plaintiff] would have exercised [his/her] option
to extend the term of the employment contract, then you may consider
the total term of [name of plaintiff]’s employment contract to be [specify
length of original contract term plus option term].]
New September 2003

Directions for Use
Use CACI No. 2407, Employee’s Duty to Mitigate Damages, if the defendant seeks
an offset for wages plaintiff could have earned from similar employment.
• Damages for Breach of Contract. Civil Code section 3300.
• “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].)
• In appropriate circumstances, the court may authorize the trier of fact to
“consider the probability the employee would exercise the option in determining
the length of the unexpired term of employment when applying the applicable
measure of damages . . . .” (Oldenkott v. American Electric, Inc. (1971) 14
Cal.App.3d 198, 204 [92 Cal.Rptr. 127].)
• “The trial court correctly found that defendants wrongfully terminated the
1390

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.
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 17:81, 17:95, 17:105, 17:495
1391

2423. Breach of the Implied Covenant of Good Faith and Fair

Dealing—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] violated the duty to

act fairly and in good faith. To establish this claim, [name of plaintiff]
employment relationship;
prevented]];
3. That [name of defendant] [specify conduct that plaintiff claims
prevented him/her from receiving the benefits that he/she was
entitled to have received under the contract];
4. That [name of defendant]’s conduct was a failure to act fairly and
in good faith; and
conduct.
Both parties to an employment relationship have a duty not to do
anything that prevents the other party from receiving the benefits of
their agreement. Good faith means honesty of purpose without any
intention to mislead or to take unfair advantage of another. Generally
speaking, it means being faithful to one’s duty or obligation.
New September 2003

Directions for Use
If the existence of a contract is at issue, see instructions on contract formation in
the 300 series.
This instruction must be completed by inserting an explanation of the conduct that
violated the duty to act in good faith.
performance is not an issue.
Do not give this instruction if the alleged breach is only the termination of an at-
1392

will contract. (See Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359,

1391 [88 Cal.Rptr.2d 802].)
• “We therefore conclude that the employment relationship is not sufficiently
similar to that of insurer and insured to warrant judicial extension of the
proposed additional tort remedies in view of the countervailing concerns about
economic policy and stability, the traditional separation of tort and contract law,
and finally, the numerous protections against improper terminations already
afforded employees.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654,
693 [254 Cal.Rptr. 211, 765 P.2d 373].)
• “The covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually made. The
covenant thus cannot “ ‘be endowed with an existence independent of its
contractual underpinnings.’ ” It cannot impose substantive duties or limits on
the contracting parties beyond those incorporated in the specific terms of their
agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349–350 [100
• “A breach of the contract may also constitute a breach of the implied covenant
of good faith and fair dealing. But insofar as the employer’s acts are directly
actionable as a breach of an implied-in-fact contract term, a claim that merely
realleges that breach as a violation of the covenant is superfluous. This is
because, as we explained at length in Foley, the remedy for breach of an
employment agreement, including the covenant of good faith and fair dealing
implied by law therein, is solely contractual. In the employment context, an
implied covenant theory affords no separate measure of recovery, such as tort
damages.” (Guz, supra, 24 Cal.4th at p. 352, internal citation omitted.)
• “Where there is no underlying contract there can be no duty of good faith
arising from the implied covenant.” (Horn v. Cushman & Wakefield Western,
• “We do not suggest the covenant of good faith and fair dealing has no function
whatever in the interpretation and enforcement of employment contracts. As
indicated above, the covenant prevents a party from acting in bad faith to
frustrate the contract’s actual benefits. Thus, for example, the covenant might be
violated if termination of an at-will employee was a mere pretext to cheat the
worker out of another contract benefit to which the employee was clearly
entitled, such as compensation already earned.” (Guz, supra, 24 Cal.4th at p.
353, fn. 18.)
• “The reason for an employee’s dismissal and whether that reason constitutes
bad faith are evidentiary questions most properly resolved by the trier of fact.”
(Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 26 [267
1393


Secondary Sources
Chin et al., California Practice Guide: Employment Litigation ¶¶ 4:330, 4:331,
4:340, 4:343, 4:346 (The Rutter Group)
Actions, §§ 8.27–8.28
and Discipline, §§ 60.02[2][c], 60.06 (Matthew Bender)
1394

2424. Breach of the Implied Covenant of Good Faith and Fair

Dealing—Good Faith Mistaken Belief Defense
[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.
New September 2003

• “[B]ecause the implied covenant of good faith and fair dealing requires the
employer to act fairly and in good faith, an employer’s honest though mistaken
belief that legitimate business reasons provided good cause for discharge, will
negate a claim it sought in bad faith to deprive the employee of the benefits of
the contract.” (Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217,
1231 [261 Cal.Rptr. 185], internal citation omitted, disapproved on other
grounds in Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th
93, 96 [69 Cal.Rptr.2d 900, 948 P.2d 412].)
• “The jury was instructed that the neglect or refusal to fulfill a contractual
obligation based on an honest, mistaken belief did not constitute a breach of the
implied covenant.” (Luck v. Southern Pacific Transportation Co. (1990) 218
Cal.App.3d 1, 26 [267 Cal.Rptr. 618].)
• “[F]oley does not preclude inquiry into an employer’s motive for discharging an
employee . . . .” (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514,
1521 [273 Cal.Rptr. 296], overruled on other grounds, Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
• “[T]he jury was asked to determine in its special verdict whether appellants had
a legitimate reason to terminate [plaintiff]’s employment and whether appellants
acted in good faith on an honest but mistaken belief that they had a legitimate
business reason to terminate [plaintiff]’s employment.” (Seubert v. McKesson
Corp. (1990) 223 Cal.App.3d 1514, 1521 [273 Cal.Rptr. 296] [upholding jury
instruction].)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group) ¶¶ 4:5,
4:271
1395

1396

2430. Wrongful Discharge in Violation of Public Policy—Essential

Factual Elements
[Name of plaintiff] claims [he/she] was discharged from employment for

reasons that violate a public policy. It is a violation of public policy
[specify claim in case, e.g., to discharge someone from employment for
refusing to engage in price fixing]. To establish this claim, [name of
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] discharged [name of plaintiff];
3. That [insert alleged violation of public policy, e.g., “[name of
plaintiff]’s refusal to engage in price fixing”] was a substantial
motivating reason for [name of plaintiff]’s discharge; and
4. That the discharge caused [name of plaintiff] harm.
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
1397

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.
• “ ‘[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
• “[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
1398

contravenes the provision of a statute forbidding termination for a specified

reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
• “[Discharge because of employee’s] [r]efusal to violate a governmental
regulation may also be the basis for a tort cause of action where the
administrative regulation enunciates a fundamental public policy and is
authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th
702, 708–709 [96 Cal.Rptr.3d 159].)
• “In the context of a tort claim for wrongful discharge, tethering public policy to
specific constitutional or statutory provisions serves not only to avoid judicial
interference with the legislative domain, but also to ensure that employers have
adequate notice of the conduct that will subject them to tort liability to the
employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
• “[A]n employee need not prove an actual violation of law; it suffices if the
employer fired him for reporting his ‘reasonably based suspicions’ of illegal
activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
• “[A]n employer’s authority over its employee does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. . . .” (Tameny,
• “[T]here is a ‘fundamental public interest in a workplace free from illegal
practices . . . .’ ‘[T]he public interest is in a lawful, not criminal, business
operation. Attainment of this objective requires that an employee be free to call
his or her employer’s attention to illegal practices, so that the employer may
prevent crimes from being committed by misuse of its products by its
employees.’ ” (Yau, supra, 229 Cal.App.4th at p. 157.)
• “An action for wrongful termination in violation of public policy ‘can only be
asserted against an employer. An individual who is not an employer cannot
commit the tort of wrongful discharge in violation of public policy; rather, he or
she can only be the agent by which an employer commits that tort.’ ” (Kim v.
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172
• Employees in both the private and public sector may assert this claim. (See
Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [4 Cal.Rptr.2d 203].)
• “Sex discrimination in employment may support a claim of tortious discharge in
violation of public policy.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th
191, 214 [126 Cal.Rptr.3d 651].)
• “In sum, a wrongful termination against public policy common law tort based
on sexual harassment can be brought against an employer of any size.” (Kim,
• “To establish a claim for wrongful termination in violation of public policy, an
employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial
1399

motivating reason’ to express causation].) Claims of whistleblower harassment

and retaliatory termination may not succeed where a plaintiff ‘cannot
demonstrate the required nexus between his reporting of alleged statutory
violations and his allegedly adverse treatment by [the employer].’ ” (Ferrick v.
Santa Clara University (2014) 231 Cal.App.4th 1337, 1357 [181 Cal.Rptr.3d
68].)
• “It would be nonsensical to provide a different standard of causation in FEHA
cases and common law tort cases based on public policies encompassed by
FEHA.” (Mendoza v. Western Medical Center Santa Ana (2014) 222
• “If claims for wrongful termination in violation of public policy must track
FEHA, it necessarily follows that jury instructions pertinent to causation and
motivation must be the same for both. Accordingly, we conclude the trial court
did not err in giving the instructions set forth in the CACI model jury
instructions.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302,
1323 [200 Cal.Rptr.3d 315].)
• “Under California law, if an employer did not violate FEHA, the employee’s
claim for wrongful termination in violation of public policy necessarily fails.”
(Featherstone v. Southern California Permanente Medical Group (2017) 10
• “FEHA’s policy prohibiting disability discrimination in employment is
sufficiently substantial and fundamental to support a claim for wrongful
termination in violation of public policy.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [163 Cal.Rptr.3d 392].)
• “Although the fourth cause of action references FEHA as one source of the
public policy at issue, this is not a statutory FEHA cause of action. FEHA does
not displace or supplant common law tort claims for wrongful discharge.” (Kim,
• “[T]o the extent the trial court concluded Labor Code section 132a is the
exclusive remedy for work-related injury discrimination, it erred. The California
Supreme Court held ‘[Labor Code] section 132a does not provide an exclusive
remedy and does not preclude an employee from pursuing FEHA and common
law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015)
• “California’s minimum wage law represents a fundamental policy for purposes
of a claim for wrongful termination or constructive discharge in violation of
public policy.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
• “ ‘Labor Code section 1102.5, subdivision (b), which prohibits employer
retaliation against an employee who reports a reasonably suspected violation of
the law to a government or law enforcement agency, reflects the broad public
policy interest in encouraging workplace “whistleblowers,” who may without
1400

fear of retaliation report concerns regarding an employer’s illegal conduct. This

public policy is the modern day equivalent of the long-established duty of the
citizenry to bring to public attention the doings of a lawbreaker. [Citation.]
. . .’ ” (Ferrick, supra, 231 Cal.App.4th at p. 1355.)
• “That [defendant]’s decision not to renew her contract for an additional season
might have been influenced by her complaints about an unsafe working
condition . . . does not change our conclusion in light of the principle that a
decision not to renew a contract set to expire is not actionable in tort.”
(Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th
676, 682 [145 Cal.Rptr.3d 766], original italics.)
• “ ‘ “[P]ublic policy’ as a concept is notoriously resistant to precise definition,
and . . . courts should venture into this area, if at all, with great care . . . .”
[Citation.] Therefore, when the constitutional provision or statute articulating a
public policy also includes certain substantive limitations in scope or remedy,
these limitations also circumscribe the common law wrongful discharge cause of
action. Stated another way, the common law cause of action cannot be broader
than the constitutional provision or statute on which it depends, and therefore it
‘presents no impediment to employers that operate within the bounds of law.”
[Citation.]’ ” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209
Secondary Sources
§ 235
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 5:47, 5:50, 5:70,
5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220, 5:235 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, § 5.45
Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)
Termination and Discipline, §§ 100.52–100.58 (Matthew Bender)
1401

2431. Constructive Discharge in Violation of Public

Policy—Plaintiff Required to Violate Public Policy
[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
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;
6. That the requirement was a substantial factor in causing [name

Directions for Use
This instruction should be given if a plaintiff claims that his or her constructive
termination was wrongful because the defendant required the plaintiff to commit an
act in violation of public policy. If the plaintiff alleges he or she was subjected to
intolerable working conditions that violate public policy, see CACI No. 2432,
Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions for Improper Purpose That Violates Public Policy.
This instruction must be supplemented with CACI No. 2433, Wrongful Discharge
in Violation of Public Policy—Damages. See also CACI No. 2510, “Constructive
Discharge” Explained.
The judge should determine whether the purported reason for plaintiff’s resignation
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.
1402


• “[A]n employer’s authority over its employees does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. An employer
engaging in such conduct violates a basic duty imposed by law upon all
employers, and thus an employee who has suffered damages as a result of such
discharge may maintain a tort action for wrongful discharge against the
employer.” (Tameny, supra, 27 Cal.3d at p. 178.)
• “[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 v. Sentry Insurance
citations and fn. 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.)
• “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.)
regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc.
citation omitted.)
• “Although situations may exist where the employee’s decision to resign is
1403

unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to

justify a reasonable employee’s decision to resign is normally a question of fact.
[Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
prove . . . that the employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign.”
(Turner, supra, 7 Cal.4th at p. 1251.)
• “The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his
or her employer. The proper focus is on whether the resignation was coerced,
not whether it was simply one rational option for the employee.” (Turner, supra,
7 Cal.4th at p. 1246.)
at p. 1247, fn. 3.)
• “The mere existence of illegal conduct in a workplace does not, without more,
render employment conditions intolerable to a reasonable employee.” (Turner,
one—the question is ‘whether a reasonable person faced with the allegedly
of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254.)
Secondary Sources
§ 222
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G,
Constructive Discharge, ¶¶ 4:405–4:406, 4:409–4:410, 4:421–4:422 (The Rutter
Group)
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 5:45–5:47, 5:50,
5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
1404

Violations, §§ 5.45–5.46
Termination and Discipline, §§ 100.31, 100.35–100.38 (Matthew Bender)
1405

2432. Constructive Discharge in Violation of Public

Policy—Plaintiff Required to Endure Intolerable Conditions That
[Name of plaintiff] claims that [name of defendant] forced [him/her] to

resign for reasons that violate public policy. It is a violation of public
policy [specify claim in case, e.g., for an employer to require an employee
to work more than 40 hours a week for less than minimum wage]. To
2. That [name of plaintiff] was subjected to working conditions that
violated public policy, in that [describe conditions imposed on the
employee that constitute the violation, e.g., “[name of plaintiff] was
required to work more than 40 hours a week for less than minimum
wage”];
3. That [name of defendant] intentionally created or knowingly
permitted these working conditions;
4. That these working conditions were so intolerable that a
reasonable person in [name of plaintiff]’s position would have had
no reasonable alternative except to resign;
5. That [name of plaintiff] resigned because of these working
conditions;
7. That the working conditions were a substantial factor in causing
To be intolerable, the adverse working conditions must be unusually
aggravated or involve a continuous pattern of mistreatment. Trivial acts
are insufficient.

Directions for Use
This instruction should be given if plaintiff claims that his or her constructive
termination was wrongful because defendant subjected plaintiff to intolerable
working conditions in violation of public policy. The instruction must be
supplemented with CACI No. 2433, Wrongful Discharge in Violation of Public
Policy—Damages. See also CACI No. 2510, “Constructive Discharge” Explained.
The judge should determine whether the purported reason for plaintiff’s resignation
1406

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.)
• “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].)
1407


regarded as a firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp.
prove . . . that the employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign.”
(Turner, supra, 7 Cal.4th at p. 1251.)
• “The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his
or her employer. The proper focus is on whether the resignation was coerced,
not whether it was simply one rational option for the employee.” (Turner, supra,
7 Cal.4th at p. 1246.)
• “In order to amount to a constructive discharge, adverse working conditions
must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
by reduction in pay, does not by itself trigger a constructive discharge” (Turner,
supra, 7 Cal.4th at p. 1247, footnote and internal citation omitted.)
• “The mere existence of illegal conduct in a workplace does not, without more,
render employment conditions intolerable to a reasonable employee.” (Turner,
of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254.)
Secondary Sources
§ 222
1408

Constructive Discharge, ¶¶ 4:405–4:406, 4:409–4:411, 4:421–4:422 (The Rutter

Group)
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 5:45–5:47, 5:50,
5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
Termination and Discipline, §§ 100.31, 100.32, 100.36–100.38 (Matthew Bender)
1409

If you find that [name of defendant] [discharged/constructively

discharged] [name of plaintiff] in violation of public policy, then you
must decide the amount of damages that [name of plaintiff] has proven
[he/she] is entitled to recover, if any. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; [and]
[he/she] would have earned for the length of time the
employment with [name of defendant] was reasonably certain to
continue; [and]
3. [Add damages for [describe any other damages that were allegedly
caused by defendant’s conduct, e.g., “emotional distress”] if you
find that [name of defendant]’s conduct was a substantial factor in
causing that harm.]
In determining the period that [name of plaintiff]’s employment was
reasonably certain to have continued, you should consider such things
as:
(a) [Name of plaintiff]’s age, work performance, and intent
regarding continuing employment with [name of defendant];
(b) [Name of defendant]’s prospects for continuing the operations
involving [name of plaintiff]; and
(c) Any other factor that bears on how long [name of plaintiff]
would have continued to work.
New September 2003

Directions for Use
This instruction should be followed by CACI No. 2407, Employee’s Duty to
Mitigate Damages, in cases where the employee’s duty to mitigate damages is at
issue.
Other types of tort damages may be available to a plaintiff. For an instruction on
emotional distress damages, see CACI No. 3905A, Physical Pain, Mental
Suffering, and Emotional Distress (Noneconomic Damage). See punitive damages
instructions in the damages section (CACI No. 3940 et seq.).
• Standard for Punitive Damages. Civil Code section 3294(a).
• Employer Liability for Punitive Damages. Civil Code section 3294(b).
1410

• A tortious termination subjects the employer to “ ‘liability for compensatory and

punitive damages under normal tort principles.’ ” (Gantt v. Sentry Insurance
omitted.)
474 P.2d 689], internal citations omitted; see Smith v. Brown-Forman Distillers
• “A plaintiff may recover for detriment reasonably certain to result in the future.
While there is no clearly established definition of ‘reasonable certainty,’
evidence of future detriment has been held sufficient based on expert medical
opinion which considered the plaintiff’s particular circumstances and the
expert’s experience with similar cases.” (Bihun v. AT&T Information Systems,
Inc. (1993) 13 Cal.App.4th 976, 995 [16 Cal.Rptr.2d 787], internal citations
omitted, disapproved of on another ground in Lakin v. Watkins Associated
Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)
• “[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 adding subdivision (b) to section 3294 in 1980, “[t]he drafters’ goals were to
avoid imposing punitive damages on employers who were merely negligent or
reckless and to distinguish ordinary respondeat superior liability from corporate
liability for punitive damages.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563,
572 [88 Cal.Rptr.2d 19, 981 P.2d 944], see Weeks v. Baker & McKenzie (1998)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation ¶¶ 17:237, 17:362,
17:365 (The Rutter Group)
1411

Termination and Discipline, §§ 249.18, 249.50–249.55, 249.80–249.81, 249.90
(Matthew Bender)
Termination and Discipline, §§ 100.41–100.59 (Matthew Bender)
1412

2441. Discrimination Against Member of Military—Essential

Factual Elements (Mil. & Vet. Code, § 394)
[Name of plaintiff] claims that [name of defendant] wrongfully

discriminated against [him/her] because of [his/her] [current/past]
service in the [United States/California] military. To establish this claim,
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of plaintiff] [was serving/had served] in the [specify
military branch, e.g., California National Guard];
3. That [name of defendant] discharged [name of plaintiff];
4. That [name of plaintiff]’s [[current/past] service in the armed
forces/need to report for required military [duty/training]] was a
substantial motivating reason for [name of defendant]’s decision
to discharge [name of plaintiff];
New December 2012; Revised June 2013, June 2014

Directions for Use
Military and Veterans Code section 394 prohibits employment discrimination
against members of the military on two grounds. First, discrimination is prohibited
based simply on the plaintiff’s military membership or service. In other words, an
employer, public or private, may not refuse to hire or discharge someone based on
the fact that the person serves or has served in the armed forces. (Mil. & Vet.
Code, § 394(a), (b).) Second, a military-member employee is protected from
discharge or other adverse actions because of a requirement to participate in
military duty or training. (Mil. & Vet. Code, § 394(d).) For element 4, choose the
appropriate option.
The statute prohibits a refusal to hire based on military status, and also reaches a
broad range of adverse employment actions short of actual discharge. (See Mil. &
Vet. Code, § 394(a), (b), (d) [prohibiting prejudice, injury, harm].) Elements 1, 3, 4,
and 6 may be modified to refer to seeking employment and refusal to hire.
Elements 3, 4, and 6 may be modified to allege constructive discharge or adverse
acts other than discharge. See CACI No. 2509, “Adverse Employment Action”
Explained, and CACI No. 2510, “Constructive Discharge” Explained, for
instructions under the Fair Employment and Housing Act that may be adapted for
use with this instruction.
1413

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).
• 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
§§ 355, 426
1414


1. Did [name of plaintiff] and [name of defendant] enter into an
employment relationship?
1. Yes No
2. Did [name of defendant] promise, by words or conduct, not to
[discharge/demote] [name of plaintiff] except for good cause?
2. Yes No
3. Did [name of plaintiff] substantially perform [his/her] job duties?
3. Yes No
3. If your answer to question 3 is yes, skip question 4 and answer
question 5. If you answered no, answer question 4.
4. Was [name of plaintiff]’s performance excused or prevented?
4. Yes No
5. Did [name of defendant] [discharge/demote] [name of plaintiff]
without good cause?
5. Yes No
6. Was [name of plaintiff] harmed by the [discharge/demotion]?
6. Yes No
1415

VF-2400 WRONGFUL TERMINATION

[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
need to be modified depending on the facts of the case. This verdict form is based
on CACI No. 2401, Breach of Employment Contract—Unspecified Term—Essential
Factual Elements.
Questions 3 and 4 should be deleted if substantial performance is not at issue.
The breakdown of damages is optional; depending on the circumstances, users may
wish to break down the damages even further.
1416

VF-2401. Breach of Employment Contract—Unspecified

Term—Constructive Discharge

1. Yes No
2. Did [name of defendant] promise, by words or conduct, not to
[discharge/demote] [name of plaintiff] except for good cause?
2. Yes No
3. Yes No
4. Yes No
5. Did [name of defendant] intentionally create or knowingly permit
working conditions to exist that were so intolerable that a
reasonable person in [name of plaintiff]’s position would have had
no reasonable alternative except to resign?
5. Yes No
6. Did [name of plaintiff] resign because of the intolerable
conditions?
6. Yes No
1417


7. Was [name of plaintiff] harmed by the loss of employment?
7. Yes No
[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
need to be modified depending on the facts of each case.
This verdict form is based on CACI No. 2402, Breach of Employment
Contract—Unspecified Term—Constructive Discharge—Essential Factual Elements.
1418


employment contract that specified a length of time for which
[name of plaintiff] would remain employed?
1. Yes No
2. Yes No
3. Yes No
4. Did [name of defendant] breach the employment contract by
[discharging/demoting] [name of plaintiff] before the end of the
term of the contract?
4. Yes No
5. Yes No
[b. TOTAL $
1419

Signed:
Presiding Juror
Dated:

Directions for Use
Contract—Specified Term—Essential Factual Elements.
1420

VF-2403. Breach of Employment Contract—Specified

Term—Good-Cause Defense

employment contract that specified a length of time for which
[name of plaintiff] would remain employed?
1. Yes No
2. Yes No
3. Yes No
4. Did [name of defendant] [discharge/demote] [name of plaintiff]
before the end of the term of the contract?
4. Yes No
5. Did [name of defendant] have good cause to [discharge/demote]
5. Yes No
6. Yes No
1421


[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
Contract—Specified Term—Essential Factual Elements, and CACI No. 2421,
Breach of Employment Contract—Specified Term—Good-Cause Defense.
1422

VF-2404. Employment—Breach of the Implied Covenant of Good

Faith and Fair Dealing

1. Yes No
2. Yes No
3. Yes No
4. Did [name of defendant] [specify conduct that plaintiff claims
entitled to have received under the contract]?
4. Yes No
5. Did [name of defendant] fail to act fairly and in good faith?
5. Yes No
6. Was [name of plaintiff] harmed by [name of defendant]’s failure to
act fairly and in good faith?
6. Yes No
1423


[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Essential Factual Elements.
The breakdown of damages in question 7 is optional; depending on the
circumstances, users may wish to break down the damages even further.
1424

VF-2405. Breach of the Implied Covenant of Good Faith and Fair

Dealing—Affirmative Defense—Good Faith Mistaken Belief

employment agreement?
1. Yes No
2. Yes No
3. Yes No
4. Did [name of defendant] [specify conduct that plaintiff claims
entitled to have received under the contract]?
4. Yes No
5. Was [name of defendant]’s conduct based on an honest belief that
[insert alleged mistake]?
5. Yes No
6. If true, would [insert alleged mistake] have been a legitimate and
reasonable business purpose for the conduct?
6. Yes No
1425


7. Did [name of defendant] fail to act fairly and in good faith?
7. Yes No
8. Was [name of plaintiff] harmed by [name of defendant]’s failure to
act in good faith?
8. Yes No
[b. TOTAL $
Signed:
Presiding Juror
Dated:

Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Essential Factual Elements, and CACI No. 2424,
Breach of the Implied Covenant of Good Faith and Fair Dealing—Good Faith
Mistaken Belief Defense.
The breakdown of damages in question 9 is optional; depending on the
circumstances, users may wish to break down the damages even further.
1426

WRONGFUL TERMINATION VF-2405
1427


1. Was [name of plaintiff] employed by [name of defendant]?
1. Yes No
2. Was [name of plaintiff] discharged?
2. Yes No
3. Was [name of plaintiff]’s [insert alleged activity protected by public
policy, e.g., “refusal to engage in price fixing”] a substantial
motivating reason for [name of defendant]’s decision to discharge
3. Yes No
4. Did the discharge cause [name of plaintiff] harm?
4. Yes No
[lost earnings $ ]
[lost profits $ ]
1428

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
This verdict form is based on CACI No. 2430, Wrongful Discharge in Violation of
Public Policy—Essential Factual Elements.
1429

1430

VF-2407. Constructive Discharge in Violation of Public

Policy—Plaintiff Required to Violate Public Policy

1. Yes No
2. Did [name of defendant] require [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
fixing”] as a condition of employment?
2. Yes No
3. Was this requirement so intolerable that a reasonable person in
[name of plaintiff]’s position would have had no reasonable
alternative except to resign?
3. Yes No
4. Did [name of plaintiff] resign because of this requirement?
4. Yes No
5. Was the requirement a substantial factor in causing harm to
5. Yes No
1431

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1432

1433

VF-2408. Constructive Discharge in Violation of Public

Policy—Plaintiff Required to Endure Intolerable Conditions for
Improper Purpose That Violates Public Policy

1. Yes No
2. Was [name of plaintiff] subjected to working conditions that
violated public policy, in that [describe conditions imposed on the
employee that constitute the violation, e.g., “plaintiff was treated
intolerably in retaliation for filing a workers’ compensation claim”]?
2. Yes No
3. Did [name of defendant] intentionally create or knowingly permit
these working conditions?
3. Yes No
4. Were these working conditions so intolerable that a reasonable
person in [name of plaintiff]’s position would have had no
reasonable alternative except to resign?
4. Yes No
5. Did [name of plaintiff] resign because of these working
conditions?
5. Yes No
1434

6. Were the working conditions a substantial factor in causing

6. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
1435

Directions for Use

of Public Policy—Plaintiff Required to Endure Intolerable Conditions for Improper
Purpose That Violates Public Policy.
of Public Policy—Plaintiff Required to Endure Intolerable Conditions for Improper
Purpose That Violates Public Policy.
1436


2508. Failure to File Timely Administrative Complaint (Gov. Code,
§ 12960(d))—Plaintiff Alleges Continuing Violation
2521A. Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant
(Gov. Code, § 12940(j))
2521B. Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant (Gov.
Code, § 12940(j))
2521C. Hostile Work Environment Harassment—Widespread Sexual
Favoritism—Essential Factual Elements—Employer or Entity Defendant
(Gov. Code, § 12940(j))
2522A. Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant (Gov. Code,
§ 12940(j))
2522B. Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Individual Defendant (Gov. Code,
§ 12940(j))
2522C. Hostile Work Environment Harassment—Widespread Sexual
Favoritism—Essential Factual Elements—Individual Defendant (Gov.
Code, § 12940(j))
1437


2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual
Harassment by a Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential
Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2540. Disability Discrimination—Disparate Treatment—Essential Factual
Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual
Elements (Gov. Code, § 12940(m))
§§ 12926(f), 12940(a)(1))
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage
in Interactive Process (Gov. Code, § 12940(n))
2548. Disability Discrimination—Refusal to Make Reasonable Accommodation in
Housing (Gov. Code, § 12927(c)(1))
2549. Disability Discrimination—Refusal to Permit Reasonable Modification to
Housing Unit (Gov. Code, § 12927(c)(1))
2560. Religious Creed Discrimination—Failure to Accommodate—Essential
Factual Elements (Gov. Code, § 12940(l))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative
Defense—Business Necessity/Job Relatedness—Rebuttal to Business
Necessity/Job Relatedness Defense
1438


§ 12940(m))
§ 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to
Engage in Interactive Process (Gov. Code, § 12940(n))
1439

2500. Disparate Treatment—Essential Factual Elements (Gov.

Code, § 12940(a))

discriminated against [him/her]. To establish this claim, [name of
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff]’s [protected status—for example, race,
gender, or age] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
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
1440

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2500
include labor organizations, employment agencies, and apprenticeship training

programs. (See Gov. Code, § 12940(a)–(d).)
Read the first option for element 3 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 3 and also
give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in
element 4 if either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between
the discriminatory animus and the adverse action (see element 4), and there must
be a causal link between the adverse action and the damage (see element 6). (See
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d
406].)
Element 4 requires that discrimination based on a protected classification 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.) Modify element 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).)
For damages instructions, see applicable instructions on tort damages.
• Discrimination Prohibited Under Fair Employment and Housing Act.
• Perception and Association. Government Code section 12926(o).
• “[C]onceptually the theory of ‘disparate treatment’ . . . is the most easily
understood type of discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion, sex or national
origin. ” (Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d
1306, 1317 [237 Cal.Rptr. 884], quoting Teamsters v. United States (1977) 431
U.S. 324, 335–336, fn. 15 [97 S.Ct. 1843, 52 L.Ed.2d 396].)
• “California has adopted the three-stage burden-shifting test for discrimination
claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93
S.Ct. 1817, 36 L.Ed. 2d 668]. ‘This so-called McDonnell Douglas test reflects
the principle that direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by successive steps
of increasingly narrow focus, the test allows discrimination to be inferred from
facts that create a reasonable likelihood of bias and are not satisfactorily
explained.’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307
1441

CACI No. 2500 FAIR EMPLOYMENT AND HOUSING ACT
• “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
• “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.
• “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
1442

motive. [¶] On a defense motion for summary judgment against a disparate

treatment claim, the defendant must show either that one of these elements
cannot be established or that there were one or more legitimate,
nondiscriminatory reasons underlying the adverse employment action.” (Jones v.
Department of Corrections (2007) 152 Cal.App.4th 1367, 1379 [62 Cal.Rptr.3d
• “[Defendant] still could shift the burden to [plaintiff] by presenting admissible
evidence showing a legitimate, nondiscriminatory reason for terminating her. ‘It
is the employer’s honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that is at issue in a
discrimination case.’ . . . ‘[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct. . . . While the objective
soundness of an employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a motive to
discriminate illegally. Thus, “legitimate” reasons . . . in this context are
reasons that are facially unrelated to prohibited bias, and which, if true, would
thus preclude a finding of discrimination. . . .’ ” (Wills v. Superior Court (2011)
195 Cal.App.4th 143, 170–171 [125 Cal.Rptr.3d 1], original italics, internal
citations omitted.)
• “The burden therefore shifted to [plaintiff] to present evidence showing the
[defendant] engaged in intentional discrimination. To meet her burden,
[plaintiff] had to present evidence showing (1) the [defendant]’s stated reason
for not renewing her contract was untrue or pretextual; (2) the [defendant] acted
with a discriminatory animus in not renewing her contract; or (3) a combination
of the two.” (Swanson, supra, 232 Cal.App.4th at p. 966.)
• “While a complainant need not prove that [discriminatory] animus was the sole
motivation behind a challenged action, he must prove by a preponderance of the
evidence that there was a ‘causal connection’ between the employee’s protected
status and the adverse employment decision.” (Mixon, supra, 192 Cal.App.3d at
p. 1319.)
• “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.)
• “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.)
1443

• “In cases involving a comparison of the plaintiff’s qualifications and those of

the successful candidate, we must assume that a reasonable juror who might
disagree with the employer’s decision, but would find the question close, would
not usually infer discrimination on the basis of a comparison of qualifications
alone. In a close case, a reasonable juror would usually assume that the
employer is more capable of assessing the significance of small differences in
the qualifications of the candidates, or that the employer simply made a
judgment call. [Citation.] But this does not mean that a reasonable juror would
in every case defer to the employer’s assessment. If that were so, no job
discrimination case could ever go to trial. If a factfinder can conclude that a
reasonable employer would have found the plaintiff to be significantly better
qualified for the job, but this employer did not, the factfinder can legitimately
infer that the employer consciously selected a less-qualified
candidate—something that employers do not usually do, unless some other
strong consideration, such as discrimination, enters into the picture.” (Reeves v.
MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 674–675 [111 Cal.Rptr.3d
• “While not all cases hold that ‘the disparity in candidates’ qualifications “must
be so apparent as to jump off the page and slap us in the face to support a
finding of pretext” ’ the precedents do consistently require that the disparity be
substantial to support an inference of discrimination.” (Reeves, supra, 186
• “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our
own statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
• “We have held ‘that, in a civil action under the FEHA, all relief generally
available in noncontractual actions . . . may be obtained.’ This includes
injunctive relief.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
• “The FEHA does not itself authorize punitive damages. It is, however, settled
that California’s punitive damages statute, Civil Code section 3294, applies to
actions brought under the FEHA . . . .” (Weeks v. Baker & McKenzie (1998) 63
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 915,
916, 918
Chin et al., Cal. 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,
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.44–2.82
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01 (Matthew Bender)
1444

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)
1445

[Name of defendant] claims that [his/her/its] decision to [discharge/[other

adverse employment action]] [name of plaintiff] was lawful because [he/
she/it] was entitled to consider [protected status—for example, race,
gender, or age] as a job requirement. To succeed, [name of defendant]
1. That the job requirement was reasonably necessary for the
operation of [name of defendant]’s business;
2. That [name of defendant] had a reasonable basis for believing
that substantially all [members of protected group] are unable to
safely and efficiently perform that job;
3. That it was impossible or highly impractical to consider whether
each [applicant/employee] was able to safely and efficiently
perform the job; and
4. That it was impossible or highly impractical for [name of
defendant] to rearrange job responsibilities to avoid using
[protected status] as a job requirement.
New September 2003

Directions for Use
An employer may assert the bona fide occupational qualification (BFOQ) defense
where the employer has a practice that on its face excludes an entire group of
individuals because of their protected status.
• Bona fide Occupational Qualification. Government Code section 12940(a)(1).
• Bona fide Occupational Qualification. Cal. Code Regs., tit. 2, § 7286.7(a).
• Bona fide Occupational Qualification Under Federal Law. 42 U.S.C. § 2000e-
2(e)(1).
• The BFOQ defense is a narrow exception to the general prohibition on
discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1986)
187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769]; International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, UAW
v. Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113
L.Ed.2d 158].)
• “ ‘[I]n order to rely on the bona fide occupational qualification exception an
employer has the burden of proving that he had reasonable cause to believe,
that is, a factual basis for believing, that all or substantially all women would
1446

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
¶¶ 9:2380, 9:2382, 9:2400, 9:2430
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)
1447

2502. Disparate Impact—Essential Factual Elements (Gov. Code,

§ 12940(a))
[Name of plaintiff] claims that [name of defendant] had [an employment

practice/a selection policy] that wrongfully discriminated against [him/
her]. To establish this claim, [name of plaintiff] must prove all of the
following:
applied to [name of defendant] for a job/[other covered relationship
to defendant]];
3. That [name of defendant] had [an employment practice of
[describe practice]/a selection policy of [describe policy]] that had
a disproportionate adverse effect on [describe protected group—for
example, persons over the age of 40];
4. That [name of plaintiff] is [protected status];
6. That [name of defendant]’s [employment practice/selection policy]
was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use
This instruction is intended for disparate impact employment discrimination claims.
Disparate impact occurs when an employer has an employment practice that
appears neutral but has an adverse impact on members of a protected group and
cannot be justified by business necessity. (Jumaane v. City of Los Angeles (2015)
The court should consider instructing the jury on the meaning of “adverse impact,”
tailored to the facts of the case and the applicable law.
• Disparate Impact May Prove Age Discrimination. Government Code section
12941.1.
1448

• Justification for Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b),

11017(a), (e).
• “Prohibited discrimination may . . . be found on a theory of disparate impact,
i.e., that regardless of motive, a facially neutral employer practice or policy,
bearing no manifest relationship to job requirements, in fact had a
disproportionate adverse effect on members of the protected class.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [100 Cal.Rptr.2d 352,
• “A ‘disparate impact’ plaintiff . . . may prevail without proving intentional
discrimination . . . [However,] a disparate impact plaintiff ‘must not merely
prove circumstances raising an inference of discriminatory impact; he must
prove the discriminatory impact at issue.’ ” (Ibarbia v. Regents of the University
of California (1987) 191 Cal.App.3d 1318, 1329–1330 [237 Cal.Rptr. 92],
quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004.)
• “ ‘To establish a prima facie case of discrimination, a plaintiff must show that
the facially neutral employment practice had a significantly discriminatory
impact. If that showing is made, the employer must then demonstrate that “any
given requirement [has] a manifest relationship to the employment in question,”
in order to avoid a finding of discrimination . . . Even in such a case, however,
the plaintiff may prevail, if he shows that the employer was using the practice
as a mere pretext for discrimination.’ ” (City and County of San Francisco v.
Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236
Cal.Rptr. 716], quoting Connecticut v. Teal (1982) 457 U.S. 440, 446–447 [102
S.Ct. 2525, 73 L.Ed.2d 130], internal citation omitted.)
• “It is well settled that valid statistical evidence is required to prove disparate
impact discrimination, that is, that a facially neutral policy has caused a
protected group to suffer adverse effects. ‘ “Once the employment practice at
issue has been identified, causation must be proved; that is, the plaintiff must
offer statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs or
promotions because of their membership in a protected group. . . . [S]tatistical
disparities must be sufficiently substantial that they raise such an inference of
causation.” ’ ” (Jumaane, supra, 241 Cal.App.4th at p. 1405.)
• Under federal title VII, a plaintiff may establish an unlawful employment
practice based on disparate impact in one of two ways: (1) the plaintiff
demonstrates that a defendant uses a particular employment practice that causes
a disparate impact on the basis of a protected status, and the defendant “fails to
demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity”; or (2) the plaintiff
demonstrates that there is an alternative employment practice with less adverse
impact, and the defendant “refuses to adopt such alternative employment
practice.” (42 U.S.C. § 2000e-2(k)(1)(A).)
1449

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)
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
1450

[Name of defendant] claims that the [employment practice/selection

policy] is lawful because it is necessary to [his/her/its] business. To
succeed, [name of defendant] must prove both of the following:
1. That the purpose of the [employment practice/selection policy] is
to operate the business safely and efficiently; and
2. That the [employment practice/selection policy] substantially
accomplishes this business purpose.
New September 2003

Directions for Use
The defense of business necessity is available for disparate impact claims but may
not be used as a defense against a claim of intentional discrimination.
CACI No. 2504, Disparate Impact—Rebuttal to Business Necessity/Job Relatedness
Defense, must be given if defendant asserts the defense of business necessity to a
disparate impact employment discrimination claim.
• Justification of Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a),
(e).
• “In order to meet its burden the [employer] must demonstrate a business
necessity for use of the [discriminatory employment practice] . . . . ‘The test is
whether there exists an overriding legitimate business purpose such that the
practice is necessary to the safe and efficient operation of the business. Thus,
the business purpose must be sufficiently compelling to override any
[discriminatory] impact; the challenged practice must effectively carry out the
business purpose it is alleged to serve; and there must be available no
acceptable alternative policies or practices which would better accomplish the
business purpose advanced, or accomplish it equally well with a lesser
differential racial impact.’ ” (City and County of San Francisco v. Fair
Employment and Housing Com. (1987) 191 Cal.App.3d 976, 989–990 [236
Cal.Rptr. 716], quoting Robinson v. Lorillard Corp. (4th Cir. 1971) 444 F.2d
791, 798.)
• The federal Civil Rights Act of 1991 states that one of its purposes is “to codify
the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme
Court in Griggs v. Duke Power Co., 401 U.S. 424], and in other Supreme Court
decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) [109
S.Ct. 2115, 104 L.Ed.2d 733].” (Civil Rights Act of 1991, Pub.L. No. 102-166,
§ 3(2) (Nov. 21, 1991) 105 Stat. 1071, 1071.)
• Federal title VII provides that while business necessity is a defense to a claim
1451

of disparate impact discrimination, “[a] demonstration that an employment

practice is required by business necessity may not be used as a defense against
a claim of intentional discrimination.” (42 U.S.C. § 2000e-2(k)(2).)
• “The touchstone is business necessity. If an employment practice which
operates to exclude [a protected group] cannot be shown to be related to job
performance, the practice is prohibited . . . Congress has placed on the
employer the burden of showing that any given requirement must have a
manifest relationship to the employment in question.” (Griggs, supra, 401 U.S.
at pp. 431–432.)
• “[T]he employer may defend its policy or practice by proving that it is ‘job
related for the position in question and consistent with business necessity.’
Though the key terms have been used since Griggs, their meaning remains
unclear.” (1 Lindemann and Grossman, Employment Discrimination Law (3d
ed. 1996) Adverse Impact, p. 106, footnotes omitted.)
• “[T]here is no requirement that the challenged practice be ‘essential’ or
‘indispensable’ to the employer’s business for it to pass muster: this degree of
scrutiny would be almost impossible for most employers to meet . . . .” (Wards
Cove Packing Co., Inc., supra, 490 U.S. at p. 659.) [Note: This portion of
Wards Cove may have been superseded by the Civil Rights Act of 1991.]
Secondary Sources
¶¶ 7:571, 7:581, 7:915
Claims, § 2.90
Equal Employment Opportunity Laws, §§ 41.21[4], 41.95[1] (Matthew Bender)
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Adverse
Impact, pp. 106–110; id. (2000 supp.) at pp. 62–64
Discrimination, §§ 115.23[4][d], 115.54[5], 115.102–115.103 (Matthew Bender)
1452

2504. Disparate Impact—Rebuttal to Business Necessity/Job

Relatedness Defense
If [name of defendant] proves that the [employment practice/ selection

policy] is necessary to [his/her/its] business, then the [employment
practice/selection policy] is lawful unless [name of plaintiff] proves both
of the following:
1. That there was an alternative [employment practice/ selection
policy] that would have accomplished the business purpose
equally well; and
2. That the alternative [employment practice/selection policy] would
have had less adverse impact on [describe members of protected
group—for example, “persons over the age of 40”].
New September 2003

Directions for Use
Federal title VII requires a plaintiff to demonstrate that the employer refused to
adopt the alternative employment practice (see 42 U.S.C. § 2000e-2(K)(1)(A)(ii)).
There are no published court opinions determining if a similar requirement exists
under California law.
This instruction must be given if defendant asserts the defense of business necessity
to a disparate impact employment discrimination claim. (See CACI No. 2503,
Affırmative Defense—Business Necessity/Job Relatedness.)
• Justification for Disparate Impact. Cal. Code Regs., tit. 2, § 11010(b).
• Disparate Impact Under Federal Law. 42 U.S.C. § 2000e-2(k)(1)(A).
• “ ‘The test [of the business necessity defense] is whether there exists an
overriding legitimate business purpose such that the practice is necessary to the
safe and efficient operation of the business. Thus, the business purpose must be
sufficiently compelling to override any [discriminatory] impact; the challenged
practice must effectively carry out the business purpose it is alleged to serve;
and there must be available no acceptable alternative policies or practices which
would better accomplish the business purpose advanced, or accomplish it
equally well with a lesser differential [discriminatory] impact.’ ” (City and
County of San Francisco v. Fair Employment and Housing Com. (1987) 191
Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716].)
• “[T]he standards established by the FEHC for evaluating a facially neutral
selection criterion which has a discriminatory impact on a protected group are
identical to federal standards under Title VII.” (City and County of San
1453

Francisco, supra, 191 Cal.App.3d at p. 986.)

• “If an employer does then meet the burden of proving that its tests are ‘job
related,’ it remains open to the complaining party to show that other tests or
selection devices, without a similarly undesirable [discriminatory] effect, would
also serve the employer’s legitimate interest in ‘efficient and trustworthy
workmanship.’ ” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [95
S.Ct. 2362, 45 L.Ed.2d 280], internal citation omitted.)
Secondary Sources
¶¶ 7:581, 7:590, 7:591, 7:915
Equal Employment Opportunity Laws, § 41.21[2] (Matthew Bender)
Employment Opportunity Laws, § 43.01[2][d] (Matthew Bender)
Discrimination, § 115.23[2][c] (Matthew Bender)
1454

2505. Retaliation—Essential Factual Elements (Gov. Code,

§ 12940(h))
[Name of plaintiff] claims that [name of defendant] retaliated against

[him/her] for [describe activity protected by the FEHA]. To establish this
1. That [name of plaintiff] [describe protected activity];
2. [That [name of defendant] [discharged/demoted/[specify other
2. [or]
2. [or]
3. That [name of plaintiff]’s [describe protected activity] was a
substantial motivating reason for [name of defendant]’s [decision
to [discharge/demote/[specify other adverse employment action]]
3. [name of plaintiff]/conduct];
5. That [name of defendant]’s decision to [discharge/demote/[specify
other adverse employment action]] [name of plaintiff] was a
substantial factor in causing [him/her] harm.
[[Name of plaintiff] does not have to prove [discrimination/harassment]
in order to be protected from retaliation. If [he/she] [reasonably
believed that [name of defendant]’s conduct was unlawful/requested a
[disability/religious] accommodation], [he/she] may prevail on a
retaliation claim even if [he/she] does not present, or prevail on, a
separate claim for [discrimination/harassment/[other]].]
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
1455

assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or

otherwise discriminate against a person for requesting an accommodation for
religious practice or disability, regardless of whether the request was granted. (Gov.
Code, § 12940(l)(4) [religious practice], (m)(2) [disability].)
For example, the case may involve 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. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Give both the first
and second options if the employee presents evidence supporting liability under
both a sufficient-single-act theory or a pattern-of-harassment theory. (See, e.g.,
Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413,
423–424 [69 Cal.Rptr.3d 1].) Also select “conduct” in element 3 if the second
option or both the first and second options are included for element 2.
Retaliation in violation of the FEHA may be established by constructive discharge;
that is, that the employer intentionally created or knowingly permitted working
conditions to exist that were so intolerable that a reasonable person in the
employee’s position would have had no reasonable alternative other than to resign.
(See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76
Cal.Rptr.3d 632].) If constructive discharge is alleged, give the third option for
element 2 and also give CACI No. 2510, “Constructive Discharge” Explained.
Also select “conduct” in element 3 if the third option is included for element 2.
Element 3 requires that the protected activity be a substantial motivating reason for
the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; Alamo v. Practice Management Information
Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see also CACI No.
2507, “Substantial Motivating Reason” Explained.)
the retaliatory animus and the adverse action (see element 3), and there must be a
causal link between the adverse action and damages (see element 5). (See Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)
This instruction has been criticized in dictum because it is alleged that there is no
element requiring retaliatory intent. (See Joaquin v. City of Los Angeles (2012) 202
Cal.App.4th 1207, 1229–1231 [136 Cal.Rptr.3d 472].) The court urged the Judicial
Council to redraft the instruction and the corresponding special verdict form so as
to clearly state that retaliatory intent is a necessary element of a retaliation claim
under FEHA.
The jury in the case was instructed per element 3 “that Richard Joaquin’s reporting
that he had been sexually harassed was a motivating reason for the City of Los
Angeles’ decision to terminate Richard Joaquin’s employment or deny Richard
1456

Joaquin promotion to the rank of sergeant.” The committee believes that the
instruction as given is correct for the intent element in a retaliation case. (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.
• 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.
• “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.
• “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.)
1457

• “Contrary to [defendant]’s assertion that it is improper to consider collectively

the alleged retaliatory acts, there is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of subtle, yet
damaging, injuries. Enforcing a requirement that each act separately constitute
an adverse employment action would subvert the purpose and intent of the
statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations
omitted.)
• “[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.)
• “Clearly, section 12940, subdivision (h) encompasses a broad range of protected
activity. An employee need not use specific legal terms or buzzwords in
opposing discrimination. Nor is it necessary for an employee to file a formal
charge. The protected activity element may be established by evidence that the
plaintiff threatened to file a discrimination charge, by a showing that the
plaintiff mistakenly, but reasonably and sincerely believed he was opposing
discrimination, or by evidence an employer believed the plaintiff was a potential
witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [163 Cal.Rptr.3d 392],
internal citations and footnote omitted.)
• “ ‘Standing alone, an employee’s unarticulated belief that an employer is
engaging in discrimination will not suffice to establish protected conduct for the
purposes of establishing a prima facie case of retaliation, where there is no
evidence the employer knew that the employee’s opposition was based upon a
reasonable belief that the employer was engaging in discrimination.’
‘[C]omplaints about personal grievances or vague or conclusory remarks that
fail to put an employer on notice as to what conduct it should investigate will
not suffice to establish protected conduct.’ [¶ ] But employees need not
explicitly and directly inform their employer that they believe the employer’s
conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez
v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046 [207
• “Notifying one’s employer of one’s medical status, even if such medical status
constitutes a ‘disability’ under FEHA, does not fall within the protected activity
identified in subdivision (h) of section 12940—i.e., it does not constitute
engaging in opposition to any practices forbidden under FEHA or the filing of a
complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v.
1458


Cal.Rptr.3d 841].)
• “[Plaintiff]’s advocacy for the disabled community and opposition to elimination
of programs that might benefit that community do not fall within the definition
of protected activity. [Plaintiff] has not shown the [defendant]’s actions
amounted to discrimination against disabled citizens, but even if they could be
so construed, discrimination by an employer against members of the general
public is not a prohibited employment practice under the FEHA.” (Dinslage v.
City and County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger,
• “A long period between an employer’s adverse employment action and the
employee’s earlier protected activity may lead to the inference that the two
events are not causally connected. But if between these events the employer
engages in a pattern of conduct consistent with a retaliatory intent, there may be
a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal
citation omitted.)
• “Both direct and circumstantial evidence can be used to show an employer’s
intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made
by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence
typically relates to such factors as the plaintiff’s job performance, the timing of
events, and how the plaintiff was treated in comparison to other workers.”
(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d
• “The retaliatory motive is ‘proved by showing that plaintiff engaged in
protected activities, that his employer was aware of the protected activities, and
that the adverse action followed within a relatively short time thereafter.’ ‘The
causal link may be established by an inference derived from circumstantial
evidence, “such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action and
allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula
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
1459

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
• “[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].)
• “ ‘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,
or unwise. Rather, the employee ‘ “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them “unworthy of credence,” . . . and hence infer “that
the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194
Cal.Rptr.3d 689].)
• “Government Code section 12940, subdivision (h), does not shield an employee
against termination or lesser discipline for either lying or withholding
information during an employer’s internal investigation of a discrimination
claim. In other words, public policy does not protect deceptive activity during
an internal investigation. Such conduct is a legitimate reason to terminate an
at-will employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1528 [152 Cal.Rptr.3d 154], footnotes omitted.)
• “Although appellant does not argue she was constructively discharged, such a
1460

claim is not necessary to find unlawful retaliation.” (McCoy, supra, 216

• “The phrase ‘because of’ [in Gov. Code, § 12940(a)] is ambiguous as to the
type or level of intent (i.e., motivation) and the connection between that
motivation and the decision to treat the disabled person differently. This
ambiguity is closely related to [defendant]’s argument that it is liable only if
motivated by discriminatory animus. [¶ ] The statutory ambiguity in the phrase
‘because of” was resolved by our Supreme Court about six months after the
first jury trial [in Harris, supra, 56 Cal.4th at p. 203].” (Wallace, supra, 245
Secondary Sources
940, 941
And The California Fair Employment And Housing Act, ¶¶ 7:680–7:841 (The Rutter
Group)
Claims, §§ 2.83–2.88
Discrimination, §§ 115.37, 115.94 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:74–2:75 (Thomson Reuters)
1461

[Name of defendant] claims that [he/she/it] would have discharged [name

of plaintiff] anyway if [he/she/it] had known that [name of plaintiff]
[describe misconduct]. You must decide whether [name of defendant] has
proved all of the following:
1. That [name of plaintiff] [describe misconduct];
2. That [name of plaintiff]’s misconduct was sufficiently severe that
[name of defendant] would have discharged [him/her] because of
that misconduct alone had [name of defendant] known of it; and
3. That [name of defendant] would have discharged [name of
plaintiff] for [his/her] misconduct as a matter of settled company
policy.

Directions for Use
The doctrine of after-acquired evidence refers to an employer’s discovery, after an
allegedly wrongful termination of employment or refusal to hire, of information
that would have justified a lawful termination or refusal to hire. (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 428 [173 Cal.Rptr.3d 689, 327 P.3d 797].)
There is some uncertainty as to whether or not it is an equitable doctrine.
(Compare Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156,
1173 [104 Cal.Rptr.2d 95] [doctrine is the basis for an equitable defense related to
the traditional defense of “unclean hands,” italics added] with Salas, supra, 59
Cal.4th at p. 428 [omitting “equitable”].) If it is an equitable doctrine, then the fact-
finding in the elements of the instruction would be only advisory to the court, or
the elements could be found by the court itself as the trier of fact. (See Thompson,
supra, 86 Cal.App.4th at p. 1173; see also Hoopes v. Dolan (2008) 168
Cal.App.4th 146, 156 [85 Cal.Rptr.3d 337] [jury’s factual findings are purely
advisory because, on equitable causes of action, the judge is the proper fact
finder].)
After-acquired evidence is not a complete defense to liability, but may foreclose
otherwise available remedies. (Salas, supra, 59 Cal.4th at pp. 430−431.)
After-acquired evidence cases must be distinguished from mixed motive cases in
which the employer at the time of the employment action has two or more motives,
at least one of which is unlawful. (See Salas supra, 59 Cal.4th at p. 430; CACI
No. 2512, Limitation on Remedies—Same Decision.)
• “In general, the after-acquired-evidence doctrine shields an employer from
1462

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
• “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
• “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
1463

unaware of the falsification, terminated the employment in violation of the

employee’s legal rights.” (Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th
614, 617 [29 Cal.Rptr.2d 642].)
• “The doctrine [of after-acquired evidence] is the basis for an equitable defense
related to the traditional defense of ‘unclean hands’ . . . [¶] In the present case,
there were conflicts in the evidence concerning respondent’s actions, her
motivations, and the possible consequences of her actions within appellant’s
disciplinary system. The trial court submitted those factual questions to the jury
for resolution and then used the resulting special verdict as the basis for
concluding appellant was not entitled to equitable reduction of the damages
award.” (Thompson, supra, 86 Cal.App.4th at p. 1173.)
• “By definition, after-acquired evidence is not known to the employer at the time
of the allegedly unlawful termination or refusal to hire. In after-acquired
evidence cases, the employer’s alleged wrongful act in violation of the FEHA’s
strong public policy precedes the employer’s discovery of information that
would have justified the employer’s decision. To allow such after-acquired
evidence to be a complete defense would eviscerate the public policies
embodied in the FEHA by allowing an employer to engage in invidious
employment discrimination with total impunity.” (Salas, supra, 59 Cal.4th at p.
430.)
• “In after-acquired evidence cases, therefore, both the employee’s rights and the
employer’s prerogatives deserve recognition. The relative equities will vary
from case to case, depending on the nature and consequences of any
wrongdoing on either side, a circumstance that counsels against rigidity in
fashioning appropriate remedies in those actions where an employer relies on
after-acquired evidence to defeat an employee’s FEHA claims.” (Salas, supra,
59 Cal.4th at p. 430.)
• “Generally, the employee’s remedies should not afford compensation for loss of
employment during the period after the employer’s discovery of the evidence
relating to the employee’s wrongdoing. When the employer shows that
information acquired after the employee’s claim has been made would have led
to a lawful discharge or other employment action, remedies such as
reinstatement, promotion, and pay for periods after the employer learned of
such information would be ‘inequitable and pointless,’ as they grant remedial
relief for a period during which the plaintiff employee was no longer in the
defendant’s employment and had no right to such employment.” (Salas, supra,
59 Cal.4th at pp. 430−431.)
• The remedial relief generally should compensate the employee for loss of
employment from the date of wrongful discharge or refusal to hire to the date
on which the employer acquired information of the employee’s wrongdoing or
ineligibility for employment. Fashioning remedies based on the relative equities
of the parties prevents the employer from violating California’s FEHA with
impunity while also preventing an employee or job applicant from obtaining
lost wages compensation for a period during which the employee or applicant
1464

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,
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)
Claims, § 2.107
1465

A “substantial motivating reason” is a reason that actually contributed

to the [specify adverse employment action]. It must be more than a
remote or trivial reason. It does not have to be the only reason
motivating the [adverse employment action].

Directions for Use
Read this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation—Essential Factual Elements, CACI No.
2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements,
CACI No. 2560, Religious Creed Discrimination—Failure to
Accommodate—Essential Factual Elements, or CACI No. 2570, Age
Discrimination—Disparate Treatment—Essential Factual Elements.
• Causation Under Federal Law. Title 42 United States Code section 2000e-2(m).
• “Substantial Motivating Factor” Explained. Title 2 California Code of
Regulations section 11009(c).
• “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our
own statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [100
Cal.Rptr.2d 352, 8 P.3d 1089].)
• “While a complainant need not prove that [discriminatory] animus was the sole
motivation behind a challenged action, he must prove by a preponderance of the
evidence that there was a ‘causal connection’ between the employee’s protected
status and the adverse employment decision.” (Mixon v. Fair Employment and
Housing Com. (1987) 192 Cal.App.3d 1306, 1319 [237 Cal.Rptr. 884].)
• “The employee need not show ‘he would have in any event been rejected or
discharged solely on the basis of his race, without regard to the alleged
deficiencies. . . .’ In other words, ‘while a complainant need not prove that
racial animus was the sole motivation behind the challenged action, he must
prove by a preponderance of the evidence that there was a “causal connection”
between the employee’s protected status and the adverse employment
decision.’ ” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639,
665 [8 Cal.Rptr.2d 151], citing McDonald v. Santa Fe Trail Transp. Co. (1976)
427 U.S. 273, 282, fn. 10 [96 S.Ct. 2574, 49 L.Ed.2d 493, 502] and Mixon,
1466


the same decision at the time.” (Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49], original italics.)
• “Although [plaintiff] contends that a jury in an employment discrimination case
would not draw any meaningful distinction between ‘a motivating reason’ and
‘a substantial motivating reason’ in deciding whether there was unlawful
discrimination, the Supreme Court reached a contrary conclusion in Harris
[supra]. The court specifically concluded that ‘[r]equiring 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.’ ” (Alamo v. Practice Management Information
Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758].)
Secondary Sources
And The California Fair Employment And Housing Act, ¶¶ 7:485–7:508 (The Rutter
Group)
Claims, §§ 2.61–2.65, 2.87
California Civil Practice: Employment Litigation, §§ 2:20–2:21, 2:75 (Thomson
Reuters)
1467

2508. Failure to File Timely Administrative Complaint (Gov. Code,

§ 12960(d))—Plaintiff Alleges Continuing Violation
[Name of defendant] contends that [name of plaintiff]’s lawsuit may not

proceed because [name of plaintiff] did not timely file a complaint with
the Department of Fair Employment and Housing (DFEH). A complaint
is timely if it was filed within one year of the date on which [name of
defendant]’s alleged unlawful practice occurred.
[Name of plaintiff] filed a complaint with the DFEH on [date]. [Name of
defendant] claims that its alleged unlawful practice that triggered the
requirement to file a complaint occurred no later than [date more than
one year before DFEH complaint was filed]. [Name of plaintiff] claims that
[name of defendant]’s unlawful practice was a continuing violation so
that the requirement to file a complaint was triggered no earlier than
[date less than one year before DFEH complaint was filed].
[Name of defendant]’s alleged unlawful practice is considered as
continuing to occur as long as [name of plaintiff] proves that all of the
following three conditions continue to exist:
1. Conduct occurring within a year of the date on which [name of
plaintiff] filed [his/her] complaint with the DFEH was similar or
related to the conduct that occurred earlier;
2. The conduct was reasonably frequent; and
3. The conduct had not yet become permanent.
“Permanent” in this context means that the conduct has stopped, [name
of plaintiff] has resigned, or [name of defendant]’s statements and actions
would make it clear to a reasonable employee that any further efforts to
resolve the issue internally would be futile.
New June 2010; Revised December 2011, June 2015

Directions for Use
Give this instruction if the plaintiff relies on the continuing-violation doctrine in
order to avoid the bar of the limitation period of one year within which to file an
administrative complaint. (See Gov. Code, § 12960(d).) Although the continuing-
violation doctrine is labeled an equitable exception to the one-year deadline, it may
involve triable issues of fact. (See Dominguez v. Washington Mutual Bank (2008)
If the case involves multiple claims of FEHA violations, replace “lawsuit” in the
opening sentence with reference to the particular claim or claims to which the
continuing-violation rule may apply.
1468

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)
• 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
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
1469

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.
• “ ‘[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
• “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
1470

occurrence of isolated or sporadic acts of intentional discrimination.” . . . The

relevant distinction is between the occurrence of isolated, intermittent acts of
discrimination and a persistent, on-going pattern.’ ” (Morgan, supra, 88
• “[A] continuing violation claim will likely fail if the plaintiff knew, or through
the exercise of reasonable diligence would have known, [he] was being
discriminated against at the time the earlier events occurred.” (Morgan, supra,
• “The Supreme Court has extended the continuing violation doctrine to
retaliation claims. And the doctrine also applies to racial harassment claims.
Indeed, as we observed in Morgan v. Regents of University of California, supra,
88 Cal.App.4th 52, 65: ‘Cases alleging a hostile work environment due to racial
or sexual harassment are often found to come within the continuing violations
framework.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 270
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 564
And The California Fair Employment And Housing Act, ¶¶ 7:561.1, 7:975 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-A, Failure
To Exhaust Administrative Remedies, ¶ 16:85 (The Rutter Group)
Employment Opportunity Laws, § 43.01[4] (Matthew Bender)
1471

[Name of plaintiff] must prove that [he/she] was subjected to an adverse

employment action.
Adverse employment actions are not limited to ultimate actions such as
termination or demotion. There is an adverse employment action if
[name of defendant] has taken an action or engaged in a course or
pattern of conduct that, taken as a whole, materially and adversely
affected the terms, conditions, or privileges of [name of plaintiff]’s
employment. An adverse employment action includes conduct that is
reasonably likely to impair a reasonable employee’s job performance or
prospects for advancement or promotion. However, minor or trivial
actions or conduct that is not reasonably likely to do more than anger
or upset an employee cannot constitute an adverse employment action.
New June 2012

Directions for Use
Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements, CACI No.
2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential
Factual Elements, if there is an issue as to whether the employee was the victim of
an adverse employment action.
For example, the case may involve a pattern of employer harassment consisting of
acts that might not individually be sufficient to constitute discrimination or
retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116
P.3d 1123].) Or the case may involve acts that, considered alone, would not appear
to be adverse, but could be adverse under the particular circumstances of the case.
(See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action
even if wages, benefits, and duties remain the same].)
• “Appropriately viewed, [section 12940(a)] protects an employee against
unlawful discrimination with respect not only to so-called ultimate employment
actions such as termination or demotion, but also the entire spectrum of
employment actions that are reasonably likely to adversely and materially affect
an employee’s job performance or opportunity for advancement in his or her
career. Although a mere offensive utterance or even a pattern of social slights
by either the employer or coemployees cannot properly be viewed as materially
1472

affecting the terms, conditions, or privileges of employment for purposes of

section 12940(a) (or give rise to a claim under section 12940(h)), the phrase
‘terms, conditions, or privileges’ of employment must be interpreted liberally
and with a reasonable appreciation of the realities of the workplace in order to
afford employees the appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36
Cal.4th at pp. 1053–1054, footnotes omitted.)
• “[T]he determination of what type of adverse treatment properly should be
considered discrimination in the terms, conditions, or privileges of employment
is not, by its nature, susceptible to a mathematically precise test, and the
significance of particular types of adverse actions must be evaluated by taking
into account the legitimate interests of both the employer and the employee.
Minor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no
more than anger or upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment and are not
actionable, but adverse treatment that is reasonably likely to impair a reasonable
employee’s job performance or prospects for advancement or promotion falls
within the reach of the antidiscrimination provisions of sections 12940(a) and
12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)
• “An ‘ “adverse employment action,” ’ . . . , requires a ‘substantial adverse
change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v.
Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119
Cal.Rptr.3d 878, internal citations omitted.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
the alleged retaliatory acts, there is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of subtle, yet
damaging, injuries. Enforcing a requirement that each act separately constitute
an adverse employment action would subvert the purpose and intent of the
statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations
omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger
v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69
• “The employment action must be both detrimental and substantial . . . [¶]. We
must analyze [plaintiff’s] complaints of adverse employment actions to
determine if they result in a material change in the terms of her employment,
impair her employment in some cognizable manner, or show some other
employment injury . . . . [W]e do not find that [plaintiff’s] complaint alleges
1473

the necessary material changes in the terms of her employment to cause

employment injury. Most of the actions upon which she relies were one time
events . . . . The other allegations . . . are not accompanied by facts which
evidence both a substantial and detrimental effect on her employment.” (Thomas
v. Department of Corrections (2000) 77 Cal.App.4th 507, 511–512 [91
• “The ‘materiality’ test of adverse employment action . . . looks to ‘the entire
spectrum of employment actions that are reasonably likely to adversely and
materially affect an employee’s job performance or opportunity for advancement
in his or her career,’ and the test ‘must be interpreted liberally . . . with a
reasonable appreciation of the realities of the workplace . . . .’ ” (Patten, supra,
134 Cal.App.4th at p. 1389.)
• “Mere ostracism in the workplace is insufficient to establish an adverse
employment decision. However, ‘ “[W]orkplace harassment, if sufficiently
severe or pervasive, may in and of itself constitute an adverse employment
action sufficient to satisfy the second prong of the prima facie case for . . .
retaliation cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196
• “Not every change in the conditions of employment, however, constitutes an
adverse employment action. ‘ “A change that is merely contrary to the
employee’s interests or not to the employee’s liking is insufficient.” . . .’
‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer’s act or omission does not elevate that act or
omission to the level of a materially adverse employment action.’ ” (Malais v.
Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d
444].)
• “[R]efusing to allow a former employee to rescind a voluntary discharge—that
is, a resignation free of employer coercion or misconduct—is not an adverse
employment action.” (Featherstone v. Southern California Permanente Medical
Group (2017) 10 Cal.App.5th 1150, 1161 [217 Cal.Rptr.3d 258].)
Secondary Sources
§§ 1052–1055
And The California Fair Employment And Housing Act, ¶¶ 7:203, 7:731, 7:785
(The Rutter Group)
Discrimination, § 115.36 (Matthew Bender)
1474

1475

[Name of plaintiff] must prove that [he/she] was constructively

discharged. To establish constructive discharge, [name of plaintiff] must
prove the following:
1. That [name of defendant] [through [name of defendant]’s officers,
directors, managing agents, or supervisory employees]
intentionally created or knowingly permitted working conditions
to exist that were so intolerable that a reasonable person in
[name of plaintiff]’s position would have had no reasonable
alternative except to resign; and
2. That [name of plaintiff] resigned because of these working
conditions.
New June 2012

Directions for Use
Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements, CACI No.
2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential
Factual Elements, if the employee alleges that because of the employer’s actions,
he or she had no reasonable alternative other than to leave the employment.
Constructive discharge can constitute the adverse employment action required to
establish a FEHA violation for discrimination or retaliation. (See Steele v. Youthful
Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].)
• “[C]onstructive discharge occurs only when an employer terminates
employment by forcing the employee to resign. A constructive discharge is
equivalent to a dismissal, although it is accomplished indirectly. Constructive
discharge occurs only when the employer coerces the employee’s resignation,
either by creating working conditions that are intolerable under an objective
standard, or by failing to remedy objectively intolerable working conditions that
actually are known to the employer. We have said ‘a constructive discharge is
legally regarded as a firing rather than a resignation.’ ” (Mullins v. Rockwell
Internat. Corp. (1997) 15 Cal.4th 731, 737 [63 Cal.Rptr.2d 636, 936 P.2d 1246],
• “Actual discharge carries significant legal consequences for employers,
including possible liability for wrongful discharge. In an attempt to avoid
liability, an employer may refrain from actually firing an employee, preferring
1476

instead to engage in conduct causing him or her to quit. The doctrine of

constructive discharge addresses such employer-attempted ‘end runs’ around
wrongful discharge and other claims requiring employer-initiated terminations
of employment.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244
[32 Cal.Rptr.2d 223, 876 P.2d 1022].)
• “Standing alone, constructive discharge is neither a tort nor a breach of
contract, but a doctrine that transforms what is ostensibly a resignation into a
firing.” (Turner, supra, 7 Cal.4th at p. 1251.)
• “In order to amount to constructive discharge, adverse working conditions must
be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
by reduction in pay, does not by itself trigger a constructive discharge.” (Turner,
supra, 7 Cal.4th at p. 1247, internal citation and footnotes omitted.)
at p. 1247, fn. 3.)
prove, by the usual preponderance of the evidence standard, that the employer
either intentionally created or knowingly permitted working conditions that were
so intolerable or aggravated at the time of the employee’s resignation that a
reasonable employer would realize that a reasonable person in the employee’s
position would be compelled to resign. [¶] For purposes of this standard, the
requisite knowledge or intent must exist on the part of either the employer or
those persons who effectively represent the employer, i.e., its officers, directors,
managing agents, or supervisory employees.” (Turner, supra 7 Cal.4th at p.
1251.)
Secondary Sources
§ 225
1477


Constructive Discharge, ¶ 4:405 et seq. (The Rutter Group)
Termination and Discipline, § 100.31 et seq. (Matthew Bender)
1478

2511. Adverse Action Made by Decision Maker Without Animus

(Cat’s Paw)
In this case, the decision to [discharge/[other adverse employment action]]

[name of plaintiff] was made by [name of decision maker]. Even if [name
of decision maker] did not hold any [discriminatory/retaliatory] intent
[or was unaware of [name of plaintiff]’s conduct on which the claim of
retaliation is based], [name of defendant] may still be liable for
[discrimination/retaliation] if [name of plaintiff] proves both of the
following:
1. That [name of plaintiff]’s [specify protected activity or attribute]
was a substantial motivating reason for [name of supervisor]’s
[specify acts of supervisor on which decision maker relied]; and
2. That [name of supervisor]’s [specify acts on which decision maker
relied] was a substantial motivating reason for [name of decision
maker]’s decision to [discharge/[other adverse employment action]]
[name of plaintiff].

Directions for Use
Give this instruction if the “cat’s paw” rule is a factor in the case. Under the cat’s
paw rule, the person who actually took the adverse employment action against the
employee was not acting out of any improper animus. The decision maker,
however, acted on information provided by a supervisor who was acting out of
discriminatory or retaliatory animus with the objective of causing the adverse
employment action. The decision maker is referred to as the “cat’s paw” of the
person with the animus. (See Reeves v. Safeway Stores, Inc. (2004) 121
The purpose of this instruction is to make it clear to the jury that they are not to
evaluate the motives or knowledge of the decision maker, but rather to decide
whether the acts of the supervisor with animus actually caused the adverse action.
Give the optional language in the second sentence of the first paragraph in a
retaliation case in which the decision maker was not aware of the plaintiff’s
conduct that allegedly led to the retaliation (defense of ignorance). (See Reeves,
Element 1 requires that the protected activity or attribute be a substantial
motivating reason for the retaliatory acts. Element 2 requires that the supervisor’s
improper motive be a substantial motivating reason for the decision maker’s 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”
1479

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.
• “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.)
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
1480

assumptions, and begged questions.” (Reeves, supra, 121 Cal.App.4th at p.

108.)
• “Certainly a defendant does not conclusively negate the element of causation by
showing only that some responsible actors, but not all, were ignorant of the
occasion for retaliation.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
• “Here a rational fact finder could conclude that an incident of minor and
excusable disregard for a supervisor’s stated preferences was amplified into a
‘solid case’ of ‘workplace violence,’ and that this metamorphosis was brought
about in necessary part by a supervisor’s desire to rid himself of a worker who
created trouble by complaining of matters the supervisor preferred to ignore.
Since those complaints were protected activities under FEHA, a finder of fact
must be permitted to decide whether these inferences should in fact be drawn.”
(Reeves, supra, 121 Cal.App.4th at p. 121.)
• “Our emphasis on the conduct of supervisors is not inadvertent. An employer
can generally be held liable for the discriminatory or retaliatory actions of
supervisors. The outcome is less clear where the only actor possessing the
requisite animus is a nonsupervisory coworker.” (Reeves, supra, 121
Cal.App.4th at p. 109 fn. 9, original italics, internal citation omitted.)
Secondary Sources
940
And The California Fair Employment And Housing Act, ¶ 7:806.5 (The Rutter
Group)
Discrimination, § 115.37[3][a] (Matthew Bender)
1481

[Name of plaintiff] claims that [he/she] was [discharged/[other adverse

employment action]] because of [his/her] [protected status or action, e.g.,
race, gender, or age], which is an unlawful [discriminatory/retaliatory]
reason. [Name of defendant] claims that [name of plaintiff] [was
discharged/[other adverse employment action]] because of [specify reason,
e.g., plaintiff’s poor job performance], which is a lawful reason.
If you find that [discrimination/retaliation] was a substantial motivating
reason for [name of plaintiff]’s [discharge/[other adverse employment
action]], you must then consider [name of defendant]’s stated reason for
the [discharge/[other adverse employment action]].
If you find that [e.g., plaintiff’s poor job performance] was also a
substantial motivating reason, then you must determine whether the
defendant has proven that [he/she/it] would have [discharged/[other
adverse employment action]] [name of plaintiff] anyway at that time based
on [e.g., plaintiff’s poor job performance] even if [he/she/it] had not also
been substantially motivated by [discrimination/retaliation].
In determining whether [e.g., plaintiff’s poor job performance] was a
substantial motivating reason, determine what actually motivated [name
of defendant], not what [he/she/it] might have been justified in doing.
If you find that [name of defendant] [discharged/[other adverse
employment action]] [name of plaintiff] for a [discriminatory/retaliatory]
reason, you will be asked to determine the amount of damages that [he/
she] is entitled to recover. If, however, you find that [name of defendant]
would have [discharged/[other adverse employment action]] [name of
plaintiff] anyway at that time for [specify defendant’s nondiscriminatory/
nonretaliatory reason], then [name of plaintiff] will not be entitled to
reinstatement, back pay, or damages.
New December 2013; Revised June 2015, June 2016

Directions for Use
Give this instruction along with CACI No. 2507, “Substantial Motivating Reason”
Explained, if the employee has presented sufficient evidence for the jury to find
that the employer took adverse action against him or her for a prohibited reason,
but the employer has presented sufficient evidence for the jury to find that it had a
legitimate reason for the action. In such a “mixed-motive” case, the employer is
relieved from an award of damages, but may still be liable for attorney fees and
costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)
Mixed-motive must be distinguished from pretext though both require evaluation of
1482

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.
• “[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.)
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
1483

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
1484

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],
• “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
950
7 Witkin, California Procedure (5th ed. 2008), Judgment § 217
1485

In California, employment is presumed to be “at will.” That means that

an employer may [discharge/[other adverse action]] an employee for no
reason, or for a good, bad, mistaken, unwise, or even unfair reason, as
long as its action is not for a [discriminatory/retaliatory] reason.
New December 2013

Directions for Use
Give this instruction to advise the jury that the employer’s adverse action is not
illegal just because it is ill-advised. It has been held to be error not to give this
instruction. (See Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 20–24 [151
Cal.Rptr.3d 41].)
• “[A] plaintiff in a discrimination case must show discrimination, not just that
the employer’s decision was wrong, mistaken, or unwise. . . . ‘ “The employer
may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason. . . . ‘While an employer’s judgment or course of action
may seem poor or erroneous to outsiders, the relevant question is . . . whether
the given reason was a pretext for illegal discrimination. The employer’s stated
legitimate reason . . . does not have to be a reason that the judge or jurors
would act on or approve.’ ” ’ ” (Veronese, supra, 212 Cal.App.4th at p. 21,
• “[I]f nondiscriminatory, [defendant]’s true reasons need not necessarily have
been wise or correct. While the objective soundness of an employer’s proffered
reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus, ‘legitimate’
reasons in this context are reasons that are facially unrelated to prohibited bias,
and which, if true, would thus preclude a finding of discrimination.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr.2d 352, 8 P.3d
• “[U]nder the law [defendant] was entitled to exercise her business judgment,
without second guessing. But [the court] refused to tell the jury that. That was
error.” (Veronese, supra, 212 Cal.App.4th at p. 24.)
• “What constitutes satisfactory performance is of course a question ordinarily
vested in the employer’s sole discretion. An employer is free to set standards
that might appear unreasonable to outside observers, and to discipline
employees who fail to meet those standards, so long as the standards are
1486

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
§ 231 et seq.
916, 918
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A,
Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
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)
and Discipline, § 60.01 et seq. (Matthew Bender)
1487

2520. Quid pro quo Sexual Harassment—Essential Factual

Elements
[Name of plaintiff] claims that [name of defendant] subjected [him/her] to

sexual harassment. To establish this claim, [name of plaintiff] must prove
applied to [name of defendant] for a job/was a person providing
services pursuant to a contract with [name of defendant]];
2. That [name of alleged harasser] made unwanted sexual advances
to [name of plaintiff] or engaged in other unwanted verbal or
physical conduct of a sexual nature;
3. That terms of employment, job benefits, or favorable working
conditions were made contingent, by words or conduct, on [name
of plaintiff]’s acceptance of [name of alleged harasser]’s sexual
advances or conduct;
4. That at the time of [his/her] conduct, [name of alleged harasser]
was a supervisor or agent for [name of defendant];
6. That [name of alleged harasser]’s conduct was a substantial factor
in causing [name of plaintiff]’s harm.

Directions for Use
Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), 12940(j)(1); Reno v. Baird (1998) 18 Cal.4th 640, 648 [76
Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express
opinion whether “agent” language in the FEHA merely incorporates respondeat
superior principles or has some other meaning]).
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).
• “Person Providing Services Under Contract: Harassment. Government Code
section 12940(j)(5).
• Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(f)(1).
• “Courts have generally recognized two distinct categories of sexual harassment
1488

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
• “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
• “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
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
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
1489

Discrimination, § 115.36[5][b] (Matthew Bender)

1490

2521A. Hostile Work Environment Harassment—Conduct

Directed at Plaintiff—Essential Factual Elements—Employer or
Entity Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [he/she] was subjected to harassment

based on [his/her] [describe protected status, e.g., race, gender, or age] at
[name of defendant], causing a hostile or abusive work environment. To
1. That [name of plaintiff] was [an employee of/a person providing
services under a contract with/an unpaid intern with/a volunteer
with] [name of defendant];
2. That [name of plaintiff] was subjected to unwanted harassing
conduct because [he/she] was [protected status, e.g., a woman];
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances would have considered the work environment to
be hostile or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile or abusive;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor engaged in the conduct;]
6. [That [name of defendant] [or [his/her/its] supervisors or agents]
knew or should have known of the conduct and failed to take
immediate and appropriate corrective action;]
8. That the conduct was a substantial factor in causing [name of
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
1491

CACI No. 2521A FAIR EMPLOYMENT AND HOUSING ACT
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer

or Entity Defendant. For an instruction for use if the hostile environment is due to
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.
Modify element 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).)
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.
• “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).
• “[A]n 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, 1042 [6 Cal.Rptr.3d 441, 79 P.3d 556].)
• “When the harasser is a nonsupervisory employee, employer liability turns on a
showing of negligence (that is, the employer knew or should have known of the
harassment and failed to take appropriate corrective action).” (Rehmani v.
• “[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)
• Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird (1998) 18 Cal.4th
640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court
declined to express opinion whether “agent” language in the FEHA merely
1492

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521A
incorporates respondeat superior principles or has some other meaning].)

• “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.)
• “[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.)
• “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
• “[N]ot every utterance of a racial slur in the workplace violates the FEHA or
Title VII. As the United States Supreme Court has recognized in the context of
sexual harassment: ‘[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.
citations omitted.)
• “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.)
• Under federal Title VII, an employer’s liability may be based on the conduct of
1493

an official “within the class of an employer organization’s officials who may be

treated as the organization’s proxy.” (Faragher v. City of Boca Raton (1998)
524 U.S. 775, 790 [118 S.Ct. 2275, 141 L.Ed.2d 662].)
• “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,
• “[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
plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
• “Under . . . FEHA, sexual harassment can occur between members of the same
gender as long as the plaintiff can establish the harassment amounted to
discrimination because of sex.” (Lewis v. City of Benicia (2014) 224
• “[T]here is no requirement that the motive behind the sexual harassment must
be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex.’ Sexual
harassment occurs when, as is alleged in this case, sex is used as a weapon to
create a hostile work environment.” (Singleton v. United States Gypsum Co.
(2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics,
• “The plaintiff must show that the harassing conduct took place because of the
plaintiff’s sex, but need not show that the conduct was motivated by sexual
desire. For example, a female plaintiff can prevail by showing that the
harassment was because of the defendant’s bias against women; she need not
show that it was because of the defendant’s sexual interest in women. In every
case, however, the plaintiff must show a discriminatory intent or motivation
based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129
• “[A] heterosexual male is subjected to harassment because of sex under the
FEHA when attacks on his heterosexual identity are used as a tool of
harassment in the workplace, irrespective of whether the attacks are motivated
by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222
• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C)
(a provision of FEHA specifying types of conduct that constitute harassment
because of sex) to read: ‘For purposes of this subdivision, “harassment” because
1494

of sex includes sexual harassment, gender harassment, and harassment based on

pregnancy, childbirth, or related medical conditions. Sexually harassing conduct
need not be motivated by sexual desire.’ ” (Lewis, supra, 224 Cal.App.4th at p.
1527 fn. 8, original italics.)
Secondary Sources
§§ 340, 346
Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
1495

2521B. Hostile Work Environment Harassment—Conduct

Directed at Others—Essential Factual Elements—Employer or
[Name of plaintiff] claims that [he/she] was subjected to a hostile or

abusive work environment because coworkers at [name of defendant]
were subjected to harassment based on [describe protected status, e.g.,
race, gender, or age]. To establish this claim, [name of plaintiff] must
2. That [name of plaintiff], although not personally subjected to
unwanted harassing conduct, personally witnessed harassing
conduct that took place in [his/her] immediate work
environment;
4. That a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances would have
considered the work environment to be hostile or abusive;
hostile or abusive toward [e.g., women];
6. [That a supervisor engaged in the conduct;]
6. [or]
knew or should have known of the conduct and failed to take
immediate and appropriate corrective action;]
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
1496

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521B
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
Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing
Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
12940(j)(5).
• “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)
• “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.
1497

CACI No. 2521B FAIR EMPLOYMENT AND HOUSING ACT
Generally, however, sexual conduct that involves or is aimed at persons other

than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must
‘establish that the sexually harassing conduct permeated [her] direct work
environment.’ [¶] To meet this burden, the plaintiff generally must show that the
harassment directed at others was in her immediate work environment, and that
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
omitted.)
• “[N]ot every utterance of a racial slur in the workplace violates the FEHA or
Title VII. As the United States Supreme Court has recognized in the context of
sexual harassment: ‘[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
1498

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.
citations omitted.)
or abusive will not prevail, even if it objectively is so.” (Lyle, supra, 38 Cal.4th
• “[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.)
• “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].)
Secondary Sources
§§ 340, 346
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
3.45
1499


Bender)
1500

2521C. Hostile Work Environment Harassment—Widespread

Sexual Favoritism—Essential Factual Elements—Employer or
[Name of plaintiff] claims that widespread sexual favoritism at [name of

defendant] created a hostile or abusive work environment. “Sexual
favoritism” means that another employee has received preferential
treatment with regard to promotion, work hours, assignments, or other
significant employment benefits or opportunities because of a sexual
relationship with an individual representative of the employer who was
in a position to grant those preferences. To establish this claim, [name of
2. That there was sexual favoritism in the work environment;
3. That the sexual favoritism was widespread and also severe or
pervasive;
hostile or abusive because of the widespread sexual favoritism;
6. [That a supervisor [engaged in the conduct/created the
widespread sexual favoritism];]
knew or should have known of the widespread sexual favoritism
and failed to take immediate and appropriate corrective action;]
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
1501

CACI No. 2521C FAIR EMPLOYMENT AND HOUSING ACT
FEHA. For an individual defendant, such as the alleged harasser or plaintiff’s

coworker, see CACI No. 2522C, Hostile Work Environment
Elements—Individual Defendant. For a case in which the plaintiff is the target of
harassment based on a protected status such as gender, race, or sexual orientation,
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 plaintiff is not the target of the harassment, see CACI No.
2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. Also read
CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or
Pervasive” Explained.
12940(j)(5).
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working
conditions and create a hostile work environment.” (Miller v. Dept. of
• “[S]exual favoritism by a manager may be actionable when it leads employees
to believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
1502

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521C
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
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
• “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,
1503

• “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].)
Secondary Sources
§§ 340, 346
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
3.45
Bender)
1504

2522A. Hostile Work Environment Harassment—Conduct

Directed at Plaintiff—Essential Factual Elements—Individual
Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [name of defendant] subjected [him/her] to

harassment based on [describe protected status, e.g., race, gender, or age],
causing a hostile or abusive work environment. To establish this claim,
with] [name of employer];
2. That [name of plaintiff] was subjected to unwanted harassing
conduct because [he/she] was [protected status, e.g., a woman];
4. That a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances would have considered the work environment to
be hostile or abusive;
hostile or abusive;
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the harassing conduct;
December 2015
Directions for Use
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
1505

Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct”

Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
Modify element 2 if plaintiff was not actually a member of the protected class, but
(See Gov. Code, § 12926(o).)
• Personal Liability for Harassment. Government Code section 12940(j)(3).
12940(j)(5).
omitted.)
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
• “Under FEHA, an employee who harasses another employee may be held
personally liable.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524
[169 Cal.Rptr.3d 794].)
• “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 v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [58 Cal.Rptr.2d 308].)
1506

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,
• “[A] cause of action for sexual harassment in violation of Government Code
section 12940, subdivision (h) may be stated by a member of the same sex as
the harasser . . . .” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409,
1418 [26 Cal.Rptr.2d 116].)
• “Under . . . FEHA, sexual harassment can occur between members of the same
gender as long as the plaintiff can establish the harassment amounted to
discrimination because of sex.” (Lewis, supra, 224 Cal.App.4th at p. 1525,
original italics.)
• “[T]here is no requirement that the motive behind the sexual harassment must
be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex.’ Sexual
harassment occurs when, as is alleged in this case, sex is used as a weapon to
create a hostile work environment.” (Singleton v. United States Gypsum Co.
(2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics,
• “The plaintiff must show that the harassing conduct took place because of the
plaintiff’s sex, but need not show that the conduct was motivated by sexual
desire. For example, a female plaintiff can prevail by showing that the
harassment was because of the defendant’s bias against women; she need not
show that it was because of the defendant’s sexual interest in women. In every
case, however, the plaintiff must show a discriminatory intent or motivation
based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129
• “[A] heterosexual male is subjected to harassment because of sex under the
FEHA when attacks on his heterosexual identity are used as a tool of
harassment in the workplace, irrespective of whether the attacks are motivated
by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222
1507


• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C)
(a provision of FEHA specifying types of conduct that constitute harassment
because of sex) to read: ‘For purposes of this subdivision, “harassment” because
of sex includes sexual harassment, gender harassment, and harassment based on
pregnancy, childbirth, or related medical conditions. Sexually harassing conduct
need not be motivated by sexual desire.’ ” (Lewis, supra, 224 Cal.App.4th at p.
1527, fn. 8, original italics.)
Secondary Sources
§§ 340, 346
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
Bender)
California Civil Practice: Employment Litigation §§ 2:56–2:56.1 (Thomson
Reuters)
1508

2522B. Hostile Work Environment Harassment—Conduct

Directed at Others—Essential Factual Elements—Individual
[Name of plaintiff] claims that [he/she] was subjected to a hostile or

abusive work environment because coworkers at [name of employer]
were subjected to harassment based on [describe protected status, e.g.,
race, gender, or age]. To establish this claim, [name of plaintiff] must
2. That [name of plaintiff] although not personally subjected to
unwanted harassing conduct, personally witnessed harassing
conduct that took place in [his/her] immediate work
environment;
hostile or abusive toward [e.g., women];
encouraged] the harassing conduct;
December 2015
Directions for Use
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
1509

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
Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct”
Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
12940(j)(5).
• “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)
• “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.
Generally, however, sexual conduct that involves or is aimed at persons other
than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must
‘establish that the sexually harassing conduct permeated [her] direct work
environment.’ [¶] To meet this burden, the plaintiff generally must show that the
harassment directed at others was in her immediate work environment, and that
1510

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
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
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
or abusive will not prevail, even if it objectively is so.” (Lyle, supra, 38 Cal.4th
1511

Secondary Sources
§§ 340, 346
Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
1512

2522C. Hostile Work Environment Harassment—Widespread

Sexual Favoritism—Essential Factual Elements—Individual
[Name of plaintiff] claims that widespread sexual favoritism by [name of

defendant] created a hostile or abusive work environment. “Sexual
favoritism” means that another employee has received preferential
treatment with regard to promotion, work hours, assignments, or other
significant employment benefits or opportunities because of a sexual
relationship with an individual representative of the employer who was
in a position to grant these preferences. To establish this claim, [name of
2. That there was sexual favoritism in the work environment;
3. That the sexual favoritism was widespread and also severe or
pervasive;
considered the work environment to be hostile or abusive
because of the widespread sexual favoritism;
hostile or abusive because of the widespread sexual favoritism;
encouraged] the sexual favoritism;
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
1513

orientation, see CACI No. 2522A, Hostile Work Environment

Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For an instruction for use if the plaintiff is not the
target of the harassment, see CACI No. 2522B, Hostile Work Environment
Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI
No. 2524, “Severe or Pervasive” Explained.
12940(j)(5).
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working
conditions and create a hostile work environment.” (Miller v. Dept. of
• “[S]exual favoritism by a manager may be actionable when it leads employees
to believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
1514

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2522C
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
Secondary Sources
§§ 340, 346
Bender)
1515


Reuters)
1516

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].]

Directions for Use
Read this instruction with CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant; CACI No. 2521B, Hostile Work Environment
or Entity Defendant; CACI No. 2522A, Hostile Work Environment
Elements—Individual Defendant; or CACI No. 2522B, Hostile Work Environment
Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if
appropriate.
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA.
‘[D]iscrimination refers to bias in the exercise of official actions on behalf of
the employer, and harassment refers to bias that is expressed or communicated
through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a
1517

supervisory job. Instead, harassment consists of conduct outside the scope of

necessary job performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other personal motives.
Harassment is not conduct of a type necessary for management of the
employer’s business or performance of the supervisory employee’s job.” (Reno
v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],
• “No supervisory employee needs to use slurs or derogatory drawings, to
physically interfere with freedom of movement, to engage in unwanted sexual
advances, etc., in order to carry out the legitimate objectives of personnel
management. Every supervisory employee can insulate himself or herself from
claims of harassment by refraining from such conduct.” (Serri, supra, 226
• “We conclude, therefore, that the Legislature intended that commonly necessary
personnel management actions such as hiring and firing, job or project
assignments, office or work station assignments, promotion or demotion,
performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not
attend meetings, deciding who will be laid off, and the like, do not come within
the meaning of harassment. These are actions of a type necessary to carry out
the duties of business and personnel management. These actions may
retrospectively be found discriminatory if based on improper motives, but in
that event the remedies provided by the FEHA are those for discrimination, not
harassment. Harassment, by contrast, consists of actions outside the scope of
job duties which are not of a type necessary to business and personnel
management. This significant distinction underlies the differential treatment of
harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp.
• “[W]e can discern no reason why an employee who is the victim of
discrimination based on some official action of the employer cannot also be the
victim of harassment by a supervisor for abusive messages that create a hostile
working environment, and under the FEHA the employee would have two
separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707
[101 Cal.Rptr.3d 773, 219 P.3d 749].)
• “Here, [plaintiff]’s discrimination claim sought compensation for official
employment actions that were motivated by improper bias. These discriminatory
actions included not only the termination itself but also official employment
actions that preceded the termination, such as the progressive disciplinary
warnings and the decision to assign [plaintiff] to answer the office telephones
during office parties. [Plaintiff]’s harassment claim, by contrast, sought
compensation for hostile social interactions in the workplace that affected the
workplace environment because of the offensive message they conveyed to
[plaintiff]. These harassing actions included [supervisor]’s demeaning comments
to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to
1518

respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions

and gestures toward [plaintiff], and [supervisor]’s disparate treatment of
[plaintiff] in handing out small gifts. None of these events can fairly be
characterized as an official employment action. None involved [supervisor]’s
exercising the authority that [employer] had delegated to her so as to cause
[employer], in its corporate capacity, to take some action with respect to
[plaintiff]. Rather, these were events that were unrelated to [supervisor]’s
managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at
pp. 708–709, original italics, footnote omitted.)
• “[S]ome official employment actions done in furtherance of a supervisor’s
managerial role can also have a secondary effect of communicating a hostile
message. This occurs when the actions establish a widespread pattern of bias.
Here, some actions that [supervisor] took with respect to [plaintiff] are best
characterized as official employment actions rather than hostile social
interactions in the workplace, but they may have contributed to the hostile
message that [supervisor] was expressing to [plaintiff] in other, more explicit
ways. These would include [supervisor]’s shunning of [plaintiff] during staff
meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s
reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of
discrimination can provide evidentiary support for a harassment claim by
establishing discriminatory animus on the part of the manager responsible for
the discrimination, thereby permitting the inference that rude comments or
behavior by that same manager were similarly motivated by discriminatory
animus.” (Roby, supra, 47 Cal.4th at p. 709.)
• “[A]busive conduct that is not facially sex specific can be grounds for a hostile
environment sexual harassment claim if it is inflicted because of gender, i.e., if
men and women are treated differently and the conduct is motivated by gender
bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384],
original italics.)
Secondary Sources
Harassment, ¶¶ 10:125–10:155 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, §§ 3.13, 3.36
Equal Employment Opportunity Laws, § 41.80[1][a][i] (Matthew Bender)
Reuters)
1519

“Severe or pervasive” means conduct that alters the conditions of

employment and creates a hostile or abusive work environment.
In determining whether the conduct was severe or pervasive, you should
consider all the circumstances. You may consider any or all of the
following:
(a) The nature of the conduct;
(b) How often, and over what period of time, the conduct occurred;
(c) The circumstances under which the conduct occurred;
(d) Whether the conduct was physically threatening or humiliating;
(e) The extent to which the conduct unreasonably interfered with an
employee’s work performance.

Directions for Use
Read this instruction with any of the Hostile Work Environment Harassment
instructions (CACI Nos. 2521A, 2521B, 2521C, 2522A, 2522B, and 2522C). Read
also CACI No. 2523, “Harassing Conduct” Explained.
• “We have agreed with the United States Supreme Court that, to prevail, an
employee claiming harassment based upon a hostile work environment must
demonstrate that the conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a work environment
that qualifies as hostile or abusive to employees because of their sex. The
working environment must be evaluated in light of the totality of the
circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’ ” (Miller v.
Dept. of Corrections (2005) 36 Cal.4th 446, 462 [30 Cal.Rptr.3d 797, 115 P.3d
• “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
1520

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
• “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],
• “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.
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,” . . .
1521

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,
• “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
§§ 340, 346
Chin, et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 10:160–10:249
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41
Bender)
California Civil Practice: Employment Litigation (Thomson West) § 2:56
1522

[Name of alleged harasser] was a supervisor of [name of defendant] if [he/

she] had any of the following:
a. The authority to hire, transfer, promote, assign, reward,
discipline, [or] discharge [or] [insert other employment action]
[name of plaintiff] [or effectively to recommend any of these
actions];
b. The responsibility to act on [name of plaintiff]’s grievances [or
effectively to recommend action on grievances]; or
c. The responsibility to direct [name of plaintiff]’s daily work
activities.
[Name of alleged harasser]’s exercise of this authority or responsibility
must not be merely routine or clerical, but must require the use of
independent judgment.

Directions for Use
The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and
the “responsibility” for factors (b) and (c). The difference, if any, between
“authority” and “responsibility” as used in the statute is not clear. The statute
further requires that “the exercise of that authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.” (See Gov. Code,
§ 12926(t) [emphasis added].) However, at least one court has found the
independent-judgment requirement to be applicable to the responsibility for factor
(c). (See Chapman v. Enos (2004) 116 Cal.App.4th 920, 930–931 [10 Cal.Rptr.3d
852] [emphasis added].) Therefore, the last sentence of the instruction refers to
“authority or responsibility.”
• “Supervisor” Defined. Government Code section 12926(t).
• “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
1523

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
• “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
• “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
• “[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
• “[W]hile full accountability and responsibility are certainly indicia of
1524

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
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
Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
1525

2526. Affirmative Defense—Avoidable Consequences Doctrine

(Sexual Harassment by a Supervisor)
If [name of plaintiff] proves that [name of supervisor] sexually harassed

[him/her], [name of employer defendant] is responsible for [name of
plaintiff]’s harm caused by the harassment. However, [name of employer
defendant] claims that [name of plaintiff] could have avoided some or all
of the harm with reasonable effort. To succeed, [name of employer
1. That [name of employer defendant] took reasonable steps to
prevent and correct workplace sexual harassment;
2. That [name of plaintiff] unreasonably failed to use the preventive
and corrective measures for sexual harassment that [name of
employer defendant] provided; and
3. That the reasonable use of [name of employer defendant]’s
procedures would have prevented some or all of [name of
You should consider the reasonableness of [name of plaintiff]’s actions in
light of the circumstances facing [him/her] at the time, including [his/
her] ability to report the conduct without facing undue risk, expense, or
humiliation.
If you decide that [name of employer defendant] has proved this claim,
you should not include in your award of damages the amount of
damages that [name of plaintiff] could have reasonably avoided.
New April 2004; Revised December 2011, December 2015

Directions for Use
Give this instruction if the employer asserts the affirmative defense of “avoidable
consequences.” The essence of the defense is that the employee could have avoided
part or most of the harm had he or she taken advantage of procedures that the
employer had in place to address sexual harassment in the workplace. The
avoidable-consequences doctrine is a defense only to damages, not to liability.
(State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6
Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on
failure to mitigate damages generally, see CACI No. 2407, Affırmative
Defense—Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation
of Damages (Personal Injury).
Whether this defense may apply to claims other than for supervisor sexual
harassment has not been clearly addressed by the courts. It has been allowed
against a claim for age discrimination in a constructive discharge case. (See
1526

Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th
886, 900–901 [172 Cal.Rptr.3d 465].)
• “[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,
• “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
• “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
• “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
1527

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,
Secondary Sources
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)
Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)
Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)
1528

2527. Failure to Prevent Harassment, Discrimination, or

Retaliation—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, § 12940(k))
[Name of plaintiff] claims that [name of defendant] failed to take all

reasonable steps to prevent [harassment/discrimination/retaliation]
[based on [describe protected status—e.g., race, gender, or age]]. To
applied to [name of defendant] for a job/was a person providing
services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to
[harassment/discrimination/retaliation] in the course of
employment;
3. That [name of defendant] failed to take all reasonable steps to
prevent the [harassment/discrimination/retaliation];
5. That [name of defendant]’s failure to take all reasonable steps to
prevent [harassment/discrimination/retaliation] was a substantial
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.
• 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.
• “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
1529

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
• “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,
• “[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
1530

substantial factor in causing her harm’ is equivalent to the disputed element in

the other CACI instructions requiring [plaintiff] to prove that her pregnancy-
related leave was ‘a motivating reason’ for her discharge. However, the
‘substantial factor in causing harm’ element in CACI No. 2527 does not
concern the causal relationship between the adverse employment action and the
plaintiff’s protected status or activity. Rather, it concerns the causal relationship
between the discriminatory or retaliatory conduct, if proven, and the plaintiff’s
injury.” (Alamo v. Practice Management Information Corp. (2013) 219
Secondary Sources
And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter
Group)
Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew
Bender)
Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)
1531

2540. Disability Discrimination—Disparate Treatment—Essential

Factual Elements

discriminated against [him/her] based on [his/her] [history of [a]] [select
term to describe basis of limitations, e.g., physical condition]. To establish
3. That [name of defendant] knew that [name of plaintiff] had [a
history of having] [a] [e.g., physical condition] [that limited [insert
major life activity]];
4. That [name of plaintiff] was able to perform the essential job
duties [with reasonable accommodation for [his/her] [e.g.,
physical condition]];
5. [or]
5. [or]
6. That [name of plaintiff]’s [history of [a]] [e.g., physical condition]
was a substantial motivating reason for [name of defendant]’s
[decision to [discharge/refuse to hire/[other adverse employment
action]] [name of plaintiff]/conduct];
[Name of plaintiff] does not need to prove that [name of defendant] held
any ill will or animosity toward [him/her] personally because [he/she]
was [perceived to be] disabled. [On the other hand, if you find that
[name of defendant] did hold ill will or animosity toward [name of
plaintiff] because [he/she] was [perceived to be] disabled, you may
consider this fact, along with all the other evidence, in determining
whether [name of plaintiff]’s [history of [a]] [e.g., physical condition] was
1532

a substantial motivating reason for [name of defendant]’s [decision to

[discharge/refuse to hire/[other adverse employment action]] [name of
plaintiff]/conduct].]
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].)
1533

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).)
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
• 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
1534

discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310

• “The distinction between cases involving direct evidence of the employer’s
motive for the adverse employment action and cases where there is only
circumstantial evidence of the employer’s discriminatory motive is critical to
the outcome of this appeal. There is a vast body of case law that addresses
proving discriminatory intent in cases where there was no direct evidence that
the adverse employment action taken by the employer was motivated by race,
religion, national origin, age or sex. In such cases, proof of discriminatory
motive is governed by the three-stage burden-shifting test established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green [(1973)
411 U.S. 792 [93 S. Ct. 1817, 36 L. Ed. 2d 668]. (Wallace v. County of
Stanislaus (2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original
italics, footnote and internal citations omitted.)
• “The three-stage framework and the many principles adopted to guide its
application do not apply in discrimination cases where, like here, the plaintiff
presents direct evidence of the employer’s motivation for the adverse
employment action. In many types of discrimination cases, courts state that
direct evidence of intentional discrimination is rare, but disability discrimination
cases often involve direct evidence of the role of the employee’s actual or
perceived disability in the employer’s decision to implement an adverse
employment action. Instead of litigating the employer’s reasons for the action,
the parties’ disputes in disability cases focus on whether the employee was able
to perform essential job functions, whether there were reasonable
accommodations that would have allowed the employee to perform those
functions, and whether a reasonable accommodation would have imposed an
undue hardship on the employer. To summarize, courts and practitioners should
not automatically apply principles related to the McDonnell Douglas test to
disability discrimination cases. Rather, they should examine the critical
threshold issue and determine whether there is direct evidence that the motive
for the employer’s conduct was related to the employee’s physical or mental
condition.” (Wallace, supra, 245 Cal.App.4th at p. 123, original italics, footnote
and internal citations omitted; cf. Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 234 fn. 3 [206 Cal.Rptr.3d 841] [case did not
present so-called “typical” disability discrimination case, as described in
Wallace, in that the parties disputed the employer’s reasons for terminating
plaintiff’s employment].)
• “If the employee meets this [prima facie] burden, it is then incumbent on the
employer to show that it had a legitimate, nondiscriminatory reason for its
employment decision. When this showing is made, the burden shifts back to the
employee to produce substantial evidence that employer’s given reason was
either ‘untrue or pretextual,’ or that the employer acted with discriminatory
animus, in order to raise an inference of discrimination.” (Furtado v. State
1535

Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal
citations omitted.)
• “Although the same statutory language that prohibits disability discrimination
also prohibits discrimination based on race, age, sex, and other factors, we
conclude that disability discrimination claims are fundamentally different from
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
• “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
1536

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
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,
• “[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
• “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
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by observation. The
employer need only know the underlying facts, not the legal significance of
those facts.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5
• “ ‘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
1537

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
italics.)
• “We note that the court in Harris discussed the employer’s motivation and the
link between the employer’s consideration of the plaintiff’s physical condition
and the adverse employment action without using the terms
“animus,” “animosity,” or “ill will.” The absence of a discussion of these terms
necessarily implies an employer can violate section 12940, subdivision (a) by
taking an adverse employment action against an employee “because of” the
employee’s physical disability even if the employer harbored no animosity or ill
will against the employee or the class of persons with that disability.” (Wallace,
• Based on Harris, we conclude that an employer has treated an employee
differently ‘because of’ a disability when the disability is a substantial
motivating reason for the employer’s decision to subject the [employee] to an
adverse employment action. This conclusion resolves how the jury should have
been instructed on [defendant]’s motivation or intent in connection with the
disability discrimination claim.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
• “We conclude that where, as here, an employee is found to be able to safely
perform the essential duties of the job, a plaintiff alleging disability
1538

discrimination can establish the requisite employer intent to discriminate by

proving (1) the employer knew that plaintiff had a physical condition that
limited a major life activity, or perceived him to have such a condition, and (2)
the plaintiff’s actual or perceived physical condition was a substantial
motivating reason for the defendant’s decision to subject the plaintiff to an
adverse employment action. . . . [T]his conclusion is based on (1) the
interpretation of section 12940’s term ‘because of’ adopted in Harris; (2) our
discussion of the meaning of the statutory phrase ‘to discriminate against’; and
(3) the guidance provided by the current versions of CACI Nos. 2540 and 2507.
[¶ ] Therefore, the jury instruction that [plaintiff] was required to prove that
[defendant] ‘regarded or treated [him] as having a disability in order to
discriminate’ was erroneous.” (Wallace, supra, 245 Cal.App.4th at p. 129.)
• “The word ‘animus’ is ambiguous because it can be interpreted narrowly to
mean ‘ill will’ or ‘animosity’ or can be interpreted broadly to mean ‘intention.’
In this case, it appears [defendant] uses ‘animus’ to mean something more than
the intent described by the substantial-motivating-reason test adopted in Harris.
(Wallace, supra, 245 Cal.App.4th at p. 130, fn. 14, internal citation omitted.)
• “Being unable to work during pregnancy is a disability for the purposes of
section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340
[153 Cal.Rptr.3d 367].)
Secondary Sources
§§ 1045–1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2160–9:2241 (The Rutter Group)
Claims, §§ 2.78–2.80
Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)
Discrimination, §§ 115.14, 115.23, 115.34, 115.77[3][a] (Matthew Bender)
1539

2541. Disability Discrimination—Reasonable

Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m))
[Name of plaintiff] claims that [name of defendant] failed to reasonably

accommodate [his/her] [select term to describe basis of limitations, e.g.,
physical condition]. To establish this claim, [name of plaintiff] must prove
3. That [[name of plaintiff] had/[name of defendant] treated [name of
plaintiff] as if [he/she] had] [a] [e.g., physical condition] [that
limited [insert major life activity]];
[4. That [name of defendant] knew of [name of plaintiff]’s [e.g.,
physical condition] [that limited [insert major life activity]];]
duties with reasonable accommodation for [his/her] [e.g., physical
condition];
6. That [name of defendant] failed to provide reasonable
accommodation for [name of plaintiff]’s [e.g., physical condition];
8. That [name of defendant]’s failure to provide reasonable
accommodation was a substantial factor in causing [name of
[In determining whether [name of plaintiff]’s [e.g., physical condition]
limits [insert major life activity], you must consider the [e.g., physical
condition] [in its unmedicated state/without assistive devices/[describe
mitigating measures]].]
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013
Directions for Use
1540


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).)
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in elements 3
and 4 and do not include the last paragraph. (Compare Gov. Code, § 12926(i) with
Gov. Code, § 12926(j), (m) [no requirement that medical condition limit major life
activity].)
In a case of perceived disability, include “[name of defendant] treated [name of
plaintiff] as if [he/she] had” in element 3, and delete optional element 4. (See Gov.
Code, § 12926(j)(4), (m)(4) [mental and physical disability include being regarded
or treated as disabled by the employer].) In a case of actual disability, include
“[name of plaintiff] had” in element 3, and give element 4.
If the existence of a qualifying disability is disputed, additional instructions
defining “physical disability,” “mental disability,” and “medical condition” may be
The California Supreme Court has held that under Government Code section
12940(a), the plaintiff is required to prove that he or she has the ability to perform
the essential duties of the job with or without reasonable accommodation. (See
Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165
P.3d 118].) While the court left open the question of whether the same rule should
apply to cases under Government Code section 12940(m) (see id. at p. 265),
appellate courts have subsequently placed the burden on the employee to prove that
he or she would be able to perform the job duties with reasonable accommodation
(see element 5). (See Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757,
766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus Group, Inc.
There may still be an unresolved issue if the employee claims that the employer
failed to provide him or her with other suitable job positions that he or she might
be able to perform with reasonable accommodation. The rule has been that the
employer has an affirmative duty to make known to the employee other suitable job
opportunities and to determine whether the employee is interested in, and qualified
for, those positions, if the employer can do so without undue hardship or if the
employer offers similar assistance or benefit to other disabled or nondisabled
employees or has a policy of offering such assistance or benefit to any other
employees. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
950–951 [62 Cal.Rptr.2d 142]; see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 745 [151 Cal.Rptr.3d 292]; Claudio v. Regents of the University
of California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v.
Lucky Stores (1999) 74 Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast,
1541

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
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “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
1542

employee by excusing him or her from the performance of essential functions.”

(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [184
Cal.Rptr.3d 9].)
• “A term of leave from work can be a reasonable accommodation under FEHA,
and, therefore, a request for leave can be considered to be a request for
accommodation under FEHA.” (Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation
omitted.)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶ ] Applying Green’s burden of proof analysis
to section 12940(m), we conclude that the burden of proving ability to perform
the essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well. First, . . . an employee’s ability to perform
the essential functions of a job is a prerequisite to liability under section
12940(m). Second, the Legislature modeled section 12940(m) on the federal
reasonable accommodation requirement (adopting almost verbatim the federal
statutory definition of ‘reasonable accommodation’ by way of example). Had
the Legislature intended the employer to bear the burden of proving ability to
perform the essential functions of the job, contrary to the federal allocation of
the burden of proof, . . . it could have expressly provided for that result, but it
did not. Finally, general evidentiary principles support allocating the burden of
proof on this issue to the plaintiff.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at
• “ ‘If the employee cannot be accommodated in his or her existing position and
the requested accommodation is reassignment, an employer must make
affirmative efforts to determine whether a position is available. [Citation.] A
reassignment, however, is not required if “there is no vacant position for which
the employee is qualified.” [Citations.] “The responsibility to reassign a disabled
employee who cannot otherwise be accommodated does ‘not require creating a
new job, moving another employee, promoting the disabled employee or
violating another employee’s rights . . . .” ’ [Citations.] “What is required is the
‘duty to reassign a disabled employee if an already funded, vacant position at
the same level exists.’ [Citations.]” [Citations.]’ ” (Furtado, supra, 212
• “[A]n employee’s probationary status does not, in and of itself, deprive an
employee of the protections of FEHA, including a reasonable reassignment. The
statute does not distinguish between the types of reasonable accommodations an
employer may have to provide to employees on probation or in training and
those an employer may have to provide to other employees. We decline to read
into FEHA a limitation on an employee’s eligibility for reassignment based on
1543

an employee’s training or probationary status. Instead, the trier of fact should

consider whether an employee is on probation or in training in determining
whether a particular reassignment is comparable in pay and status to the
employee’s original position.” (Atkins v. City of Los Angeles (2017) 8
• “[A] disabled employee seeking reassignment to a vacant position ‘is entitled to
preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
• “ ‘Generally, “ ‘[t]he employee bears the burden of giving the employer notice
of the disability.’ ” ’ An employer, in other words, has no affirmative duty to
investigate whether an employee’s illness might qualify as a disability.
‘ “ ‘[T]he employee can’t expect the employer to read his mind and know he
secretly wanted a particular accommodation and sue the employer for not
providing it. Nor is an employer ordinarily liable for failing to accommodate a
disability of which it had no knowledge.’ ” ’ ” (Featherstone v. Southern
California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [217
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by
observation.” ’ . . . [¶] ‘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 under the [FEHA].” ’ ”
(Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations omitted.)
• “ ‘ “ ‘This notice then triggers the employer’s burden to take “positive steps” to
accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or her]
disability and qualifications. [Citation.] Reasonable accommodation thus
envisions an exchange between employer and employee where each seeks and
shares information to achieve the best match between the [employee’s]
capabilities and available positions.’ ” ’ ” (Soria v. Univision Radio Los Angeles,
• “Employers must make reasonable accommodations to the disability of an
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.)
• “[A]n employer is relieved of the duty to reassign a disabled employee whose
1544

limitations cannot be reasonably accommodated in his or her current job only if

reassignment would impose an ‘undue hardship’ on its operations . . . .”
(Atkins, supra, 8 Cal.App.5th at p. 721.)
• “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].)
• “While a claim of failure to accommodate is independent of a cause of action
for failure to engage in an interactive dialogue, each necessarily implicates the
other.” (Moore, supra, 248 Cal.App.4th at p. 242.)
• “[A] pretextual termination of a perceived-as-disabled employee’s employment
in lieu of providing reasonable accommodation or engaging in the interactive
process does not provide an employer a reprieve from claims for failure to
accommodate and failure to engage in the interactive process.” (Moore, supra,
• “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
• “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
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347
(The Rutter Group)
Claims, § 2.79
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
1545

1546

2542. Disability Discrimination—“Reasonable Accommodation”

Explained
A reasonable accommodation is a reasonable change to the workplace

that [choose one or more of the following]
[gives a qualified applicant with a disability an equal opportunity in
the job application process;]
[allows an employee with a disability to perform the essential duties
of the job;] [or]
[allows an employee with a disability to enjoy the same benefits and
privileges of employment that are available to employees without
disabilities.]
Reasonable accommodations may include the following:
a. Making the workplace readily accessible to and usable by
employees with disabilities;
b. Changing job responsibilities or work schedules;
c. Reassigning the employee to a vacant position;
d. Modifying or providing equipment or devices;
e. Modifying tests or training materials;
f. Providing qualified interpreters or readers; or
g. Providing other similar accommodations for an individual with a
disability.
If more than one accommodation is reasonable, an employer makes a
reasonable accommodation if it selects one of those accommodations in
good faith.

Directions for Use
Give this instruction to explain “reasonable accommodation” as used in CACI No.
2541, Disability Discrimination—Reasonable Accommodation—Essential Factual
Elements. For discussion regarding the burden of proof on reasonable
accommodation, see the Directions for Use to CACI No. 2541.
• Employer Obligation to Make Reasonable Accommodation. Government Code
section 12940(m).
• “Reasonable Accommodation” Defined. Government Code section 12926(p).
1547

• “Reasonable Accommodation” Defined. Cal. Code Regs., tit. 2, § 11068(a).

• “[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 v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 362 [118
Cal.Rptr.2d 443].)
• “[A]n employer who knows of the disability of an employee has an affirmative
duty to make known to the employee other suitable job opportunities with the
employer and to determine whether the employee is interested in, and qualified
for, those positions, if the employer can do so without undue hardship or if the
employer offers similar assistance or benefit to other disabled or nondisabled
employees or has a policy of offering such assistance or benefit to any other
employees.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
950–951 [62 Cal.Rptr.2d 142].)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶] Applying Green’s burden of proof analysis
to section 12940(m), we conclude that the burden of proving ability to perform
the essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well.” (Nadaf-Rahrov v. The Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 977–978 [83 Cal.Rptr.3d 190], internal
citations omitted.)
• “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].)
Secondary Sources
And The California Fair Employment And Housing Act, ¶ 7:213 (The Rutter Group)
Fair Employment And Housing Act (FEHA), ¶¶ 9:2091, 9:2093–9:2095, 9:2197,
9:2252, 9:2265, 9:2366 (The Rutter Group)
Claims, § 2.79
Equal Employment Opportunity Laws, § 41.51[3][a], [b] (Matthew Bender)
1548


1549

2543. Disability Discrimination—“Essential Job Duties” Explained

(Gov. Code, §§ 12926(f), 12940(a)(1))
In deciding whether a job duty is essential, you may consider, among

other factors, the following:
a. Whether the reason the job exists is to perform that duty;
b. Whether there is a limited number of employees available who
can perform that duty;
c. Whether the job duty is highly specialized so that the person
currently holding the position was hired for his or her expertise
or ability to perform the particular duty.
Evidence of whether a particular duty is essential includes, but is not
limited to, the following:
a. [Name of defendant]’s judgment as to which functions are
essential;
b. Written job descriptions prepared before advertising or
interviewing applicants for the job;
c. The amount of time spent on the job performing the duty;
d. The consequences of not requiring the person currently holding
the position to perform the duty;
e. The terms of a collective bargaining agreement;
f. The work experiences of past persons holding the job;
g. The current work experience of persons holding similar jobs;
h. Reference to the importance of the job in prior performance
reviews.
“Essential job duties” do not include the marginal duties of the position.
“Marginal duties” are those that, if not performed would not eliminate
the need for the job, or those that could be readily performed by
another employee, or those that could be performed in another way.
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,
1550

§§ 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)
• 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],
• “Evidence of ‘essential functions’ may include the employer’s judgment, written
job descriptions, the amount of time spent on the job performing the function,
the consequences of not requiring employees to perform the function, the terms
of a collective bargaining agreement, the work experiences of past incumbents
in the job, and the current work experience of incumbents in similar jobs.”
(Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717–718 [214
Cal.Rptr.3d 113].)
• “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.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m), and to a claim for failure
to engage in the interactive process under section 12940, subdivision (n).”
(Atkins, supra, 8 Cal.App.5th at p. 717.)
1551

• “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
• “[R]equiring employers to eliminate an essential function of a job to
accommodate a disabled employee ‘would be at odds with the definition of the
employee’s prima facie case’ under FEHA. The employee’s burden includes
‘showing he or she can perform the essential functions of the job with
accommodation, not that an essential function can be eliminated altogether to
suit his or her restrictions.’ ” (Atkins, supra, 8 Cal.App.5th at p. 720.)
Secondary Sources
§§ 1045–1049
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 9.2247, 9:2247.1,
9:2247.2, 9:2402–9:2402.1 (The Rutter Group)
Claims, § 2.79
1552

2544. Disability Discrimination—Affirmative Defense—Health or

Safety Risk
[Name of defendant] claims that [his/her/its] conduct was lawful because,

even with reasonable accommodations, [name of plaintiff] was unable to
perform an essential job duty without endangering [[his/her] health or
safety] [or] [the health or safety of others]. To succeed, [name of
1. That [describe job duty] was an essential job duty; and
2. That even with reasonable accommodations, [name of plaintiff]
could not [describe job duty] without endangering [[his/her]
health or safety] [or] [the health or safety of others] more than if
an individual without a disability performed the job duty.
[In determining whether [name of plaintiff]’s performance of the job
duty would endanger [his/her] health or safety, you must decide whether
the performance of the job duty presents an immediate and substantial
degree of risk to [him/her].]
In deciding whether a job duty is essential, you may consider, among
other factors, the following:
a. Whether the reason the job exists is to perform that duty;
b. The number of employees available who can perform that duty;
and
c. Whether the job duty is highly specialized.
New September 2003

• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(c)–(e).
• “FEHA’s ‘danger to self’ defense has a narrow scope; an employer must offer
more than mere conclusions or speculation in order to prevail on the defense
. . . . As one court said, ‘[t]he defense requires that the employee face an
“imminent and substantial degree of risk” in performing the essential functions
of the job.’ An employer may not terminate an employee for harm that is
merely potential . . . . In addition, in cases in which the employer is able to
establish the ‘danger to self’ defense, it must also show that there are ‘no
“available reasonable means of accommodation which could, without undue
hardship to [the employer], have allowed [the plaintiff] to perform the essential
job functions . . . without danger to himself.” ’ ” (Wittkopf v. County of Los
1553

Angeles (2001) 90 Cal.App.4th 1205, 1218–1219 [109 Cal.Rptr.2d 543], internal

citations omitted.)
• “An employer may refuse to hire persons whose physical handicap prevents
them from performing their duties in a manner which does not endanger their
health. Unlike the BFOQ defense, this exception must be tailored to the
individual characteristics of each applicant . . . in relation to specific, legitimate
job requirements . . . . [Defendant’s] evidence, at best, shows a possibility
[plaintiff] might endanger his health sometime in the future. In the light of the
strong policy for providing equal employment opportunity, such conjecture will
not justify a refusal to employ a handicapped person.” (Sterling Transit Co. v.
Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798, 799 [175
Cal.Rptr. 548], internal citations and footnote omitted.)
• “FEHA does not expressly address whether the act protects an employee whose
disability causes him or her to make threats against coworkers. FEHA, however,
does authorize an employer to terminate or refuse to hire an employee who
poses an actual threat of harm to others due to a disability . . . .” (Wills v.
Superior Court (2011) 195 Cal.App.4th 143, 169 [125 Cal.Rptr.3d 1] [idle
threats against coworkers do not disqualify employee from job, but rather may
provide legitimate, nondiscriminatory reason for discharging employee].)
• “The employer has the burden of proving the defense of the threat to the health
and safety of other workers by a preponderance of the evidence.” (Raytheon Co.
v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261
Cal.Rptr. 197].)
Secondary Sources
937
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 9-C, California Fair
Employment And Housing Act (FEHA), ¶¶ 9:2298, 9:2402–9:2403, 9:2405, 9:2420
(The Rutter Group)
Claims, § 2.111
Discrimination, §§ 115.54, 115.104 (Matthew Bender)
1554

2545. Disability Discrimination—Affirmative Defense—Undue

Hardship
[Name of defendant] claims that [name of plaintiff]’s proposed

accommodations would create an undue hardship to the operation of
[his/her/its] business. To succeed, [name of defendant] must prove that
the accommodations would be significantly difficult or expensive to
make. In deciding whether an accommodation would create an undue
hardship, you may consider the following factors:
a. The nature and cost of the accommodation;
b. [Name of defendant]’s ability to pay for the accommodation;
c. The type of operations conducted at the facility;
d. The impact on the operations of the facility;
e. The number of [name of defendant]’s employees and the
relationship of the employees’ duties to one another;
f. The number, type, and location of [name of defendant]’s facilities;
and
g. The administrative and financial relationship of the facilities to
one another.
New September 2003

Directions for Use
The issue of whether undue hardship is a true affirmative defense or whether the
defendant only has the burden of coming forward with the evidence of hardship as
a way of negating the element of plaintiff’s case concerning the reasonableness of
an accommodation appears to be unclear.
• Employer Duty to Provide Reasonable Accommodation. Government Code
section 12940(m).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “ ‘Undue hardship’ means ‘an action requiring significant difficulty or expense,
when considered in light of the following factors: [¶] (1) The nature and cost of
the accommodation needed. [¶] (2) The overall financial resources of the
facilities involved in the provision of the reasonable accommodations, the
number of persons employed at the facility, and the effect on expenses and
resources or the impact otherwise of these accommodations upon the operation
of the facility. [¶] (3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the number of
1555

employees, and the number, type, and location of its facilities. [¶] (4) The type
of operations, including the composition, structure, and functions of the
workforce of the entity. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a
particular accommodation will impose an undue hardship for a particular
employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact-
intensive inquiry.’ ” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696,
733 [214 Cal.Rptr.3d 113].)
• “[U]nder California law and the instructions provided to the jury, an employer
must do more than simply assert that it had economic reasons to reject a
plaintiff’s proposed reassignment to demonstrate undue hardship. An employer
must show why and how asserted economic reasons would affect its ability to
provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734,
Secondary Sources
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367
(The Rutter Group)
Claims, § 2.80
Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)
1556

2546. Disability Discrimination—Reasonable

Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
[Name of plaintiff] contends that [name of defendant] failed to engage in a

good-faith interactive process with [him/her] to determine whether it
would be possible to implement effective reasonable accommodations so
that [name of plaintiff] [insert job requirements requiring accommodation].
In order to establish this claim, [name of plaintiff] must prove the
following:
3. That [name of plaintiff] had [a] [select term to describe basis of
limitations, e.g., physical condition] that was known to [name of
defendant];
4. That [name of plaintiff] requested that [name of defendant] make
reasonable accommodation for [his/her] [e.g., physical condition]
so that [he/she] would be able to perform the essential job
requirements;
5. That [name of plaintiff] was willing to participate in an
interactive process to determine whether reasonable
accommodation could be made so that [he/she] would be able to
perform the essential job requirements;
6. That [name of defendant] failed to participate in a timely good-
faith interactive process with [name of plaintiff] to determine
whether reasonable accommodation could be made;
8. That [name of defendant]’s failure to engage in a good-faith
interactive process was a substantial factor in causing [name of
New December 2007; Revised April 2009, December 2009

Directions for Use
In elements 3 and 4, select a term 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
1557

general term such as “condition,” “disease,” or “disorder.” Or it may be a specific

health condition such as “diabetes.”
Modify elements 3 and 4, as necessary, if the employer perceives the employee to
have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34,
61, fn. 21 [43 Cal.Rptr.3d 874].)
In element 4, specify the position at issue and the reason why some reasonable
accommodation was needed. In element 5, you may add the specific
accommodation requested, though the focus of this cause of action is on the failure
to discuss, not the failure to provide.
For an instruction on a cause of action for failure to make reasonable
accommodation, see CACI No. 2541, Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements. For an instruction defining
“reasonable accommodation,” see CACI No. 2542, Disability
Discrimination—“Reasonable Accommodation” Explained.
There is a split of authority as to whether the employee must also prove that
reasonable accommodation was possible before there is a violation for failure to
engage in the interactive process. (Compare Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1]
[jury’s finding that no reasonable accommodation was possible is not inconsistent
with its finding of liability for refusing to engage in interactive process] and
Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243
[35 Cal.Rptr.3d 837] with Nadaf-Rahrov v. The Nieman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a
section 12940(n) claim bears the burden of proving a reasonable accommodation
was available before the employer can be held liable under the statute]; see also
Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93
Cal.Rptr.3d 338] [attempting to reconcile conflict].)
• Good-Faith Interactive Process. Government Code section 12940(n).
• Federal Interpretive Guidance Incorporated. Government Code section
12926.1(e).
• Interactive Process. The Interpretive Guidance on title I of the Americans With
Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.
• An employee may file a civil action based on the employer’s failure to engage
in the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
• “Two principles underlie a cause of action for failure to provide a reasonable
accommodation. First, the employee must request an accommodation. Second,
the parties must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure rests with
the party who failed to participate in good faith.” (Gelfo, supra, 140
• “While a claim of failure to accommodate is independent of a cause of action
1558

for failure to engage in an interactive dialogue, each necessarily implicates the

other.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 242 [206 Cal.Rptr.3d 841].)
• “FEHA requires an informal process with the employee to attempt to identify
reasonable accommodations, not necessarily ritualized discussions.” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
• “The point of the interactive process is to find reasonable accommodation for a
disabled employee, or an employee regarded as disabled by the employer, in
order to avoid the employee’s termination. Therefore, a pretextual termination
of a perceived-as-disabled employee’s employment in lieu of providing
reasonable accommodation or engaging in the interactive process does not
provide an employer a reprieve from claims for failure to accommodate and
failure to engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at
pp. 243–244, original italics.)
• “FEHA’s reference to a ‘known’ disability is read to mean a disability of which
the employer has become aware, whether because it is obvious, the employee
has brought it to the employer’s attention, it is based on the employer’s own
perception—mistaken or not—of the existence of a disabling condition or,
perhaps as here, the employer has come upon information indicating the
presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
• “Typically, the employee must initiate the process ‘unless the disability and
resulting limitations are obvious.’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d
258].)
• “Once initiated, the employer has a continuous obligation to engage in the
interactive process in good faith. ‘Both employer and employee have the
obligation “to keep communications open” and neither has “a right to obstruct
the process.” [Citation.] “Each party must participate in good faith, undertake
reasonable efforts to communicate its concerns, and make available to the other
information which is available, or more accessible, to one party. Liability hinges
on the objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with the party who
fails to participate in good faith.” [Citation.]’ ” (Swanson v. Morongo Unified
School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)
• “[Employer] asserts that, if it had a duty to engage in the interactive process,
the duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed
to engage in a good faith interactive process.’ [Employee] counters [employer]
made up its mind before July 2002 that it would not accommodate [employee]’s
limitations, and nothing could cause it reconsider that decision. Because the
evidence is conflicting and the issue of the parties’ efforts and good faith is
factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra,
140 Cal.App.4th at p. 62, fn. 23.)
• “None of the legal authorities that [defendant] cites persuades us that the
1559

Legislature intended that after a reasonable accommodation is granted, the

interactive process continues to apply in a failure to accommodate context. . . .
To graft an interactive process intended to apply to the determination of a
reasonable accommodation onto a situation in which an employer failed to
provide a reasonable, agreed-upon accommodation is contrary to the apparent
intent of the FEHA and would not support the public policies behind that
provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100
Cal.Rptr.3d 449].)
• “[T]he verdicts on the reasonable accommodations issue and the interactive
process claim are not inconsistent. They involve separate causes of action and
proof of different facts. Under FEHA, an employer must engage in a good faith
interactive process with the disabled employee to explore the alternatives to
accommodate the disability. ‘An employee may file a civil action based on the
employer’s failure to engage in the interactive process.’ Failure to engage in this
process is a separate FEHA violation independent from an employer’s failure to
provide a reasonable disability accommodation, which is also a FEHA violation.
An employer may claim there were no available reasonable accommodations.
But if it did not engage in a good faith interactive process, ‘it cannot be known
whether an alternative job would have been found.’ The interactive process
determines which accommodations are required. Indeed, the interactive process
could reveal solutions that neither party envisioned.” (Wysinger, supra, 157
• “We disagree . . . with Wysinger’s construction of section 12940(n). We
conclude that the availability of a reasonable accommodation (i.e., a
modification or adjustment to the workplace that enables an employee to
perform the essential functions of the position held or desired) is necessary to a
section 12940(n) claim. [¶ ] Applying the burden of proof analysis in Green,
supra, 42 Cal.4th 254, we conclude the burden of proving the availability of a
reasonable accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166
• “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the
law as follows: To prevail on a claim under section 12940, subdivision (n) for
failure to engage in the interactive process, an employee must identify a
reasonable accommodation that would have been available at the time the
interactive process should have occurred. An employee cannot necessarily be
expected to identify and request all possible accommodations during the
interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal
the extensive information concerning possible alternative positions or possible
accommodations which employers have. . . .’ ” ’ However, as the Nadaf-Rahrov
court explained, once the parties have engaged in the litigation process, to
prevail, the employee must be able to identify an available accommodation the
interactive process should have produced: ‘Section 12940[, subdivision](n),
which requires proof of failure to engage in the interactive process, is the
appropriate cause of action where the employee is unable to identify a specific,
1560

available reasonable accommodation while in the workplace and the employer

fails to engage in a good faith interactive process to help identify one, but the
employee is able to identify a specific, available reasonable accommodation
through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.
1018–1019.)
Secondary Sources
Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment and Housing Act (FEHA),
¶¶ 9:2280–9:2285, 9:2345–9:2347 (The Rutter Group)
Claims, § 2.79
Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)
Discrimination, § 115.35[1][a] (Matthew Bender)
1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)
1561

2547. Disability-Based Associational Discrimination—Essential

Factual Elements

discriminated against [him/her] based on [his/her] association with a
disabled person. To establish this claim, [name of plaintiff] must prove all
of the following:
3. That [name of plaintiff] was [specify basis of association or
relationship, e.g., the brother of [name of disabled person]], who
had [a] [e.g., physical condition];
4. [That [name of disabled person]’s [e.g., physical condition] was
costly to [name of defendant] because [specify reason, e.g., [name
of disabled person] was covered under [plaintiff]’s employer-
provided health care plan];]
4. [or]
4. [That [name of defendant] feared [name of plaintiff]’s association
with [name of disabled person] because [specify, e.g., [name of
disabled person] has a disability with a genetic component and
[name of plaintiff] may develop the disability as well];]
4. [or]
4. [That [name of plaintiff] was somewhat inattentive at work
because [name of disabled person]’s [e.g., physical condition]
requires [name of plaintiff]’s attention, but not so inattentive that
to perform to [name of defendant]’s satisfaction [name of plaintiff]
would need an accommodation;]
4. [or]
4. [[Specify other basis for associational discrimination];]
duties;
6. [or]
1562


6. [or]
7. That [name of plaintiff]’s association with [name of disabled
person] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
New December 2014; Revised May 2017

Directions for Use
Give this instruction if plaintiff claims that he or she was subjected to an adverse
employment action because of his or her association with a disabled person.
Discrimination based on an employee’s association with a person who is (or is
perceived to be) disabled is an unlawful employment practice under the FEHA.
(See Gov. Code, § 12926(o).)
Select a term to use throughout to describe the source of the disabled person’s
health condition such as “diabetes.”
Three versions of disability-based associational discrimination have been
recognized, called “expense,” “disability by association,” and “distraction.” (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].) Element 4 sets forth options for the three
versions. But the versions are illustrative rather than exhaustive; therefore, an
“other” option is provided. (See Castro-Ramirez v. Dependable Highway Express,
An element of a disability discrimination case is that the plaintiff must be
otherwise qualified to do the job, with or without reasonable accommodation.
(Green v. State of California (2007) 42 Cal.4th 254, 262 [64 Cal.Rptr.3d 390, 165
P.3d 118] (see element 5).) However, the FEHA does not expressly require
reasonable accommodation for association with a disabled person. (Gov. Code,
§ 12940(m) [employer must reasonably accommodate applicant or employee].)
Nevertheless, one court has suggested that such a requirement may exist, without
expressly deciding the issue. (See Castro-Ramirez, supra, 2 Cal.App.5th at pp.
1038–1039.) A reference to reasonable accommodation may be added to element 5
1563

if the court decides to impose this requirement.

Element 7 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]; Castro-Ramirez, supra, 2 Cal.App.5th at p.
1037; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)
If the existence of the associate’s disability is disputed, additional instructions
defining “medical condition,” “mental disability,” and “physical disability,” may be
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
• Association With Disabled Person Protected. Government Code section
12926(o).
• “ ‘Three types of situation are, we believe, within the intended scope of the
rarely litigated . . . association section. We’ll call them “expense,” “disability
by association,” and “distraction.” They can be illustrated as follows: an
employee is fired (or suffers some other adverse personnel action) because (1)
(“expense”) his spouse has a disability that is costly to the employer because
the spouse is covered by the company’s health plan; (2a) (“disability by
association”) the employee’s homosexual companion is infected with HIV and
the employer fears that the employee may also have become infected, through
sexual contact with the companion; (2b) (another example of disability by
association) one of the employee’s blood relatives has a disabling ailment that
has a genetic component and the employee is likely to develop the disability as
well (maybe the relative is an identical twin); (3) (“distraction”) the employee is
somewhat inattentive at work because his spouse or child has a disability that
requires his attention, yet not so inattentive that to perform to his employer’s
satisfaction he would need an accommodation, perhaps by being allowed to
work shorter hours.’ ” (Rope, supra, 220 Cal.App.4th at p. 657.)
• “We agree with Rope [supra] that Larimer [Larimer v. International Business
Machines Corp. (7th Cir. 2004) 370 F.3d 698] provides an illustrative, rather
1564

than an exhaustive, list of the kinds of circumstances in which we might find

associational disability discrimination. The common thread among the Larimer
categories is simply that they are instances in which the ‘employer has a motive
to discriminate against a nondisabled employee who is merely associated with a
disabled person.’ As we discuss above, this is an element of a plaintiff’s prima
facie case—that the plaintiff’s association with a disabled person was a
substantial motivating factor for the employer’s adverse employment action.
Rope held the alleged facts in that case could give rise to an inference of such
discriminatory motive. Our facts do not fit neatly within one of the Larimer
categories either, but a jury could reasonably infer the requisite discriminatory
motive.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1042, internal citation
omitted.)
• “ ‘[A]n employer who discriminates against an employee because of the latter’s
association with a disabled person is liable even if the motivation is purely
monetary. But if the disability plays no role in the employer’s decision . . .
then there is no disability discrimination.’ ” (Rope, supra, 220 Cal.App.4th at p.
658, original italics.)
• “A prima facie case of disability discrimination under FEHA requires a showing
that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise
qualified to do his or her job, with or without reasonable accommodation, and
(3) the plaintiff was subjected to adverse employment action because of the
disability. Adapting this [disability discrimination] framework to the
associational discrimination context, the ‘disability’ from which the plaintiff
suffers is his or her association with a disabled person. . . . [T]he disability
must be a substantial factor motivating the employer’s adverse employment
action.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.)
italics.)
without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[W]hen section 12940, subdivision (m) requires employers to reasonably
accommodate ‘the known physical . . . disability of an applicant or employee,’
read in conjunction with other relevant provisions, subdivision (m) may
reasonably be interpreted to require accommodation based on the employee’s
1565

association with a physically disabled person.” (Castro-Ramirez, supra, 2

Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment And Housing Act (FEHA),
1566

2548. Disability Discrimination—Refusal to Make Reasonable

Accommodation in Housing (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to reasonably

accommodate [his/her] [select term to describe basis of limitations, e.g.,
physical disability] as necessary to afford [him/her] an equal opportunity
to use and enjoy a dwelling. To establish this claim, [name of plaintiff]
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [specify nature
of housing at issue, e.g., apartment building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [e.g., physical
disability] [that limited [insert major life activity]];
4. That [name of defendant] knew of, or should have known of,
[name of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
accommodation required];
6. That it was reasonable to [specify accommodation];
7. That [name of defendant] refused to make this accommodation.
New May 2017

Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to reasonably accommodate a disability. Under the Fair Employment and
Housing Act, “discrimination” includes the refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity to
use and enjoy a dwelling. (Gov. Code, § 12927(c)(1).)
In the introductory paragraph, select a term to describe the source of the plaintiff’s
health condition such as “diabetes.” Use the term in element 3.
In element 2, if the plaintiff encountered a barrier before actually submitting an
application, such as discovering a policy that would make it impossible to live in
1567

the unit, specify what he or she did to obtain the housing.

In element 3, 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.
Modify element 3 if plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because he or she was perceived to
be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
employer].)
In element 5, explain the accommodation in rules, policies, practices that is alleged
to be needed.
• Discrimination Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
against discrimination.’ In other words, the FHA provides a minimum level of
protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “In order to establish discrimination based on a refusal to provide reasonable
accommodations, a party must establish that he or she (1) suffers from a
disability as defined in FEHA, (2) the discriminating party knew of, or should
have known of, the disability, (3) accommodation is necessary to afford an
equal opportunity to use and enjoy the dwelling, and (4) the discriminating
party refused to make this accommodation.” (Auburn Woods I Homeowners
Assn., supra, 121 Cal.App.4th at p.1592.)
• “FEHA prohibits, as unlawful discrimination, a ‘refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity
to use and enjoy a dwelling.’ ‘In order to establish discrimination based on a
refusal to provide reasonable accommodations, a party must establish that he or
1568

she (1) suffers from a disability as defined in FEHA, (2) the discriminating
party knew of, or should have known of, the disability, (3) accommodation is
necessary to afford an equal opportunity to use and enjoy the dwelling, and (4)
the discriminating party refused to make this accommodation.’ ” (Roman v. BRE
Properties, Inc. (2015) 237 Cal.App.4th 1040, 1051 [188 Cal.Rptr.3d 537],
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or
psychological disorder or condition . . . that limits a major life activity’, that is,
‘makes the achievement of the major life activity difficult.’ ‘Major life
activities’ is to be broadly construed, and includes ‘physical, mental, and social
activities and working.’ ” (Auburn Woods I Homeowners Assn., supra, 121
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation
omitted.)
• “This evidence established the requisite causal link between the [defendant]’s
no-pets policy and the interference with the [plaintiffs]’ use and enjoyment of
their condominium.” (Auburn Woods I Homeowners Assn., supra, 121
• “When the reasons for a delay in offering a reasonable accommodation are
subject to dispute, the matter is left for the trier of fact to resolve. The
administrative law judge properly characterized this lengthy delay as a refusal
to provide reasonable accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p. 1599, internal citation omitted.)
• “We reiterate that the FEHC did not rule that companion pets are always a
reasonable accommodation for individuals with mental disabilities. Each inquiry
is fact specific and requires a case-by-case determination.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1593.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice on Reasonable Accommodations under the Fair Housing Act
(May 17, 2004) https://www.hud.gov/offices/fheo/library/huddojstatement.pdf
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
1569

1570

2549. Disability Discrimination—Refusal to Permit Reasonable

Modification to Housing Unit (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to permit

reasonable modifications of [name of plaintiff]’s [specify type of housing,
e.g., apartment] necessary to afford [name of plaintiff] full enjoyment of
the premises. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [e.g., apartment
building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [select term
to describe basis of limitations, e.g., physical disability] [that
limited [insert major life activity]];
4. That [name of defendant] knew of, or should have known of,
[name of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
modification(s) required];
6. That it was reasonable to expect [name of defendant] to [specify
modification(s) required];
7. That [name of plaintiff] agreed to pay for [this/these]
modification[s]; [and]
8. [That [name of plaintiff] agreed that [he/she] would restore the
interior of the unit to the condition that existed before the
modifications, other than for reasonable wear and tear; and]
9. That [name of defendant] refused to permit [this/these]
modification[s].
New May 2017

Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to permit reasonable modifications to a living unit to accommodate a
disability. Under the Fair Employment and Housing Act, “discrimination” includes
the refusal to permit, at the expense of the disabled person, reasonable
modifications of existing premises occupied or to be occupied by the disabled
1571

person, if the modifications may be necessary to afford the disabled person full
enjoyment of the premises. (Gov. Code, § 12927(c)(1).)
In element 2, if the plaintiff encountered a barrier before actually submitting an
application, such as discovering a policy that would make it impossible to live in
the unit, specify what he or she did to obtain the housing.
In element 3, select a term to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
In element 3, 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.
Modify element 3 if plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because he or she was perceived to
be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
employer].)
In element 5, specify the modifications that are alleged to be needed.
Element 7 may not apply if section 504 of the Rehabilitation Act of 1973
(applicable to federal subsidized housing) or Title II of the Americans With
Disabilities Act requires the landlord to incur the cost of reasonable modifications.
In the case of a rental, the landlord may, if it is reasonable to do so, condition
permission for a modification on the renter’s agreeing to restore the interior of the
premises to the condition that existed before the modification (other than for
reasonable wear and tear). (Gov. Code, § 12927(c)(1).) Include element 8 if the
premises to be physically altered is a rental unit, and the plaintiff agreed to
restoration. If the parties dispute whether restoration is reasonable, presumably the
defendant would have to prove reasonableness. (See Evid. Code, § 500 [party has
the burden of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that s/he is asserting].)
• Discrimination Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
against discrimination.’ In other words, the FHA provides a minimum level of
1572

protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or
psychological disorder or condition . . . that limits a major life activity’, that is,
‘makes the achievement of the major life activity difficult.’ ‘Major life
activities’ is to be broadly construed, and includes ‘physical, mental, and social
activities and working.’ ” (Auburn Woods I Homeowners Assn., supra, 121
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation
omitted.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice on Reasonable Modifications under the Fair Housing Act
(March 3, 2008)
https://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
1573

2560. Religious Creed Discrimination—Failure to

Accommodate—Essential Factual Elements (Gov. Code,
§ 12940(l))

discriminated against [him/her] by failing to reasonably accommodate
[his/her] religious [belief/observance]. To establish this claim, [name of
applied to [name of defendant] for a job/[other covered relationship
to defendant]];
3. That [name of plaintiff] has a sincerely held religious belief that
[describe religious belief, observance, or practice];
4. That [name of plaintiff]’s religious [belief/observance] conflicted
with a job requirement;
5. That [name of defendant] knew of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement;
6. That [name of defendant] did not reasonably accommodate [name
of plaintiff]’s religious [belief/observance];
7. That [name of plaintiff]’s failure to comply with the conflicting
job requirement was a substantial motivating reason for
7. [[name of defendant]’s decision to [discharge/refuse to hire/[other
adverse employment action]] [name of plaintiff]];]
7. [or]
7. [[name of defendant]’s subjecting [him/her] to an adverse
employment action;]
7. [or]
7. [[his/her] constructive discharge;]
9. That [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] was a substantial
factor in causing [his/her] harm.
If more than one accommodation is reasonable, an employer satisfies its
obligation to make a reasonable accommodation if it selects one of those
1574

accommodations in good faith.
New September 2003; Revised June 2012, December 2012, June 2013
Directions for Use
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.”
• 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,
1575

• “Any reasonable accommodation is sufficient to meet an employer’s obligations.

However, the employer need not adopt the most reasonable accommodation nor
must the employer accept the remedy preferred by the employee. The
reasonableness of the employer’s efforts to accommodate is determined on a
case by case basis . . . . ‘[O]nce it is determined that the employer has offered
a reasonable accommodation, the employer need not show that each of the
employee’s proposed accommodations would result in undue hardship.’
‘[W]here the employer has already reasonably accommodated the employee’s
religious needs, the . . . inquiry [ends].’ ” (Soldinger, supra, 51 Cal.App.4th at
italics.)
Secondary Sources
922, 940, 941
California Fair Employment And Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610–7:611,
7:631–7:634, 7:641 (The Rutter Group)
Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996)
Religion, pp. 219–224, 226–227; id. (2000 supp.) at pp. 100–101
1576

2561. Religious Creed Discrimination—Reasonable

Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, §§ 12940(l)(1), 12926(u))
Please see CACI No. 2545, Disability Discrimination—Affirmative

Defense—Undue Hardship.
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.
• 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
• “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
1577

California Fair Employment and Housing Act, ¶¶ 7:215, 7:305, 7:610, 7:631,
Discrimination, §§ 115.35[2][a]–[c], 115.54, 115.91 (Matthew Bender)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Religion,
pp. 227–234 (2000 supp.) at pp. 100–105
1578

2570. Age Discrimination—Disparate Treatment—Essential

Factual Elements

discriminated against [him/her] because of [his/her] age. To establish
2. [That [name of plaintiff] [was an employee of [name of defendant]/
3. [or]
3. [or]
4. That [name of plaintiff] was age 40 or older at the time of the
[discharge/[other adverse employment action]];
5. That [name of plaintiff]’s age was a substantial motivating reason
for [name of defendant]’s [decision to [discharge/refuse to hire/
[other adverse employment action]] [name of plaintiff]/conduct];
New June 2011; Revised June 2012, June 2013

Directions for Use
element 5 if the either the second or third option is included for element 3.
the discriminatory animus based on age and the adverse action (see element 5), and
1579

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.
1580


• Age Discrimination Prohibited Under Fair Employment and Housing Act.
• “Age” Defined. Government Code section 12926(b).
• Disparate Treatment; Layoffs Based on Salary. Government Code section 12941.
• “In order to make out a prima facie case of age discrimination under FEHA, a
plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2)
suffered an adverse employment action; (3) was performing satisfactorily at the
time of the adverse action; and (4) suffered the adverse action under
circumstances that give rise to an inference of unlawful discrimination, i.e.,
evidence that the plaintiff was replaced by someone significantly younger than
the plaintiff.” (Sandell, supra, 188 Cal.App.4th at p. 321.)
• “In other words, ‘[b]y 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, leaving only the issue of the employer’s discriminatory
intent for resolution by the trier of fact. Otherwise, the case would have been
disposed of as a matter of law for the trial court. That is to say, if the plaintiff
cannot make out a prima facie case, the employer wins as a matter of law. If
the employer cannot articulate a nondiscriminatory reason for the adverse
employment decision, the plaintiff wins as a matter of law. In those instances,
no fact-finding is required, and the case will never reach a jury. [¶] In short, if
and when the case is submitted to the jury, the construct of the shifting burden
“drops from the case,” and 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 race or age-neutral reasons for the employment decision.’ ”
(Muzquiz, supra, 79 Cal.App.4th at p. 1118, fn. 5.)
• “Because the only issue properly before the trier of fact was whether the
[defendant]’s adverse employment decision was motivated by discrimination on
the basis of age, the shifting burdens of proof regarding appellant’s prima facie
case and the issue of legitimate nondiscriminatory grounds were actually
irrelevant.” (Muzquiz, supra, 79 Cal.App.4th at p. 1119.)
• “An employee alleging age discrimination must ultimately prove that the
adverse employment action taken was based on his or her age. Since direct
evidence of such motivation is seldom available, the courts use a system of
shifting burdens as an aid to the presentation and resolution of age
discrimination cases. That system necessarily establishes the basic framework
for reviewing motions for summary judgment in such cases.” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d
1581


italics.)
• “While we agree that a plaintiff must demonstrate some basic level of
competence at his or her job in order to meet the requirements of a prima facie
showing, the burden-shifting framework established in McDonnell Douglas
compels the conclusion that any measurement of such competency should, to
the extent possible, be based on objective, rather than subjective, criteria. A
plaintiff’s burden in making a prima facie case of discrimination is not intended
to be ‘onerous.’ Rather, the prima facie burden exists in order to weed out
patently unmeritorious claims.” (Sandell, supra, 188 Cal.App.4th at p. 322,
• “A discharge is not ‘on the ground of age’ within the meaning of this
prohibition unless age is a ‘motivating factor’ in the decision. Thus, ‘ “an
employer would be entitled to judgment as a matter of law if the record
conclusively revealed some other, nondiscriminatory reason for the employer’s
decision.” ’ ‘[A]n employee claiming discrimination must offer substantial
evidence that the employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted with a
discriminatory animus, or a combination of the two, such that a reasonable trier
of fact could conclude the employer engaged in intentional discrimination.’ ”
(West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978 [117 Cal.Rptr.2d 647].)
Secondary Sources
§§ 932–935
Chin et al., California Practice Guide: Employment Litigation, Ch. 8-B, California
Fair Employment and Housing Act, ¶¶ 8:740, 8:800 et seq. (The Rutter Group)
1582

1583


1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
3. Did [name of defendant] [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]?
3. Yes No
4. Was [name of plaintiff]’s [protected status] a substantial
motivating reason for [name of defendant]’s [discharge/refusal to
hire/[other adverse employment action]]?
4. Yes No
5. Was [name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]] a substantial factor in causing harm to [name
of plaintiff]?
5. Yes No
1584

FAIR EMPLOYMENT AND HOUSING ACT VF-2500

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements.
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
1585

VF-2500 FAIR EMPLOYMENT AND HOUSING ACT
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).)
1586

VF-2501. Disparate Treatment—Affirmative Defense—Bona fide

Occupational Qualification (Gov. Code, § 12940(a))

1. Yes No
2. Yes No
3. Yes No
4. Was [name of plaintiff]’s [protected status] a substantial
motivating reason for [name of defendant]’s [discharge/refusal to
hire/[other adverse employment action]]?
4. Yes No
5. Was the job requirement regarding [protected status] reasonably
necessary for the operation of [name of defendant]’s business?
5. Yes No
you answered no, skip questions 6, 7, and 8, and answer question
9.
6. Did [name of defendant] have a reasonable basis for believing that
1587

substantially all [members of protected group] are unable to safely

and efficiently perform that job?
6. Yes No
you answered no, skip questions 7 and 8, and answer question 9.
7. Was it impossible or highly impractical for [name of defendant] to
consider whether each [applicant/employee] was able to safely
and efficiently perform the job?
7. Yes No
8. Was it impossible or highly impractical for [name of defendant] to
rearrange job responsibilities to avoid using [protected status] as
a job requirement?
8. Yes No
of plaintiff]?
9. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
1588

[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
question 10 and do not have to categorize “economic” and “noneconomic”
1589

1590


1. Yes No
2. Yes No
3. Did [name of defendant] have [an employment practice of
example, persons over the age of 40]?
3. Yes No
4. Is [name of plaintiff] [protected status]?
4. Yes No
5. Was [name of defendant]’s [employment practice/selection policy]
5. Yes No
1591

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential
Factual Elements.
1592


1593

VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative

Defense—Business Necessity/Job Relatedness—Rebuttal to
Business Necessity/Job Relatedness Defense

1. Yes No
2. Yes No
3. Did [name of defendant] have [an employment practice of
example, persons over the age of 40]?
3. Yes No
4. Is [name of plaintiff] [protected status]?
4. Yes No
5. Was the purpose of the [employment practice/selection policy] to
operate the business safely and efficiently?
5. Yes No
you answered no, skip questions 6, 7, and 8, and answer question
9.
1594

6. Did the [employment practice/selection policy] substantially

accomplish this business purpose?
6. Yes No
you answered no, skip questions 7 and 8, and answer question 9.
7. Was there an alternative [employment practice/selection policy]
that would have accomplished the business purpose equally well?
7. Yes No
8. Would this alternative [employment practice/selection policy]
have had less adverse impact on [describe members of protected
group—for example, persons over the age of 40]?
8. Yes No
9. Was [name of defendant]’s [employment practice/selection policy]
9. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
1595

[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1596

1597


1. Did [name of plaintiff] [describe protected activity]?
1. Yes No
2. [Did [name of defendant] [discharge/demote/[specify other adverse
employment action]] [name of plaintiff]?]
2. [or]
2. [Did [name of defendant] engage in conduct that, taken as a
whole, materially and adversely affected the terms and conditions
of [name of plaintiff]’s employment?]
2. Yes No
3. Was [name of plaintiff]’s [describe protected activity] a substantial
motivating reason for [name of defendant]’s [decision to
[discharge/demote/[specify other adverse employment action]]
[name of plaintiff]/conduct]?
3. Yes No
4. Yes No
[lost earnings $ ]
1598

[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
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.
1599

1600


1. Was [name of plaintiff] an employee of [name of defendant]?
1. Yes No
2. Did [name of alleged harasser] make unwanted sexual advances to
[name of plaintiff] or engage in other unwanted verbal or physical
conduct of a sexual nature?
2. Yes No
3. Were terms of employment, job benefits, or favorable working
conditions made contingent on [name of plaintiff]’s acceptance of
[name of alleged harasser]’s sexual advances or conduct?
3. Yes No
4. At the time of [his/her] conduct, was [name of alleged harasser] a
supervisor or agent for [name of defendant]?
4. Yes No
5. Was [name of alleged harasser]’s conduct a substantial factor in
5. Yes No
1601

[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
December 2016
Directions for Use
This verdict form is based on CACI No. 2520, Quid pro quo Sexual
Harassment—Essential Factual Elements.
Relationships other than employer/employee can be substituted in question number
1, as in element 1 in CACI No. 2520.
1602


1603

VF-2506A. Hostile Work Environment Harassment—Conduct

Directed at Plaintiff—Employer or Entity Defendant (Gov. Code,
§ 12940(j))

1. Was [name of plaintiff] [an employee of/a person providing
services under a contract with] [name of defendant]?
1. Yes No
2. Was [name of plaintiff] subjected to unwanted harassing conduct
because [he/she] was [protected status, e.g., a woman]?
2. Yes No
3. Was the harassment severe or pervasive?
3. Yes No
4. Would a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances have considered the work environment to be
hostile or abusive?
4. Yes No
5. Did [name of plaintiff] consider the work environment to be
hostile or abusive?
5. Yes No
6. Did [name of defendant] [or [his/her/its] supervisors or agents]
1604

FAIR EMPLOYMENT AND HOUSING ACT VF-2506A
know or should [he/she/it/they] have known of the harassing

conduct?
6. Yes No
7. Did [name of defendant] [or [his/her/its] supervisors or agents] fail
to take immediate and appropriate corrective action?
7. Yes No
8. Was the harassing conduct a substantial factor in causing harm
8. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

1605

VF-2506A FAIR EMPLOYMENT AND HOUSING ACT

[d. TOTAL $
Signed:
Presiding Juror
Dated:
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
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.
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.
(See Gov. Code, § 12926(o).)
1606

VF-2506B. Hostile Work Environment Harassment—Conduct

Directed at Others—Employer or Entity Defendant (Gov. Code,
§ 12940(j))

1. Yes No
2. Did [name of plaintiff] personally witness harassing conduct that
took place in [his/her] immediate work environment?
2. Yes No
3. Yes No
4. Would a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances have considered the
work environment to be hostile or abusive?
4. Yes No
hostile or abusive toward [e.g., women]?
5. Yes No
1607

VF-2506B FAIR EMPLOYMENT AND HOUSING ACT
know or should [he/she/it/they] have known of the harassing

conduct?
6. Yes No
7. Yes No
8. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

1608

FAIR EMPLOYMENT AND HOUSING ACT VF-2506B

[d. TOTAL $
Signed:
Presiding Juror
Dated:
Directions for Use
This verdict form is based on CACI No. 2521B, Hostile Work Environment
or Entity Defendant.
element 1 of CACI No. 2521B. Depending on the facts of the case, other factual
1609

VF-2506C. Hostile Work Environment Harassment—Widespread

Sexual Favoritism—Employer or Entity Defendant (Gov. Code,
§ 12940(j))

1. Yes No
2. Was there sexual favoritism in the work environment?
2. Yes No
3. Was the sexual favoritism widespread, and also severe or
pervasive?
3. Yes No
4. Yes No
hostile or abusive?
5. Yes No
1610

FAIR EMPLOYMENT AND HOUSING ACT VF-2506C
know or should [he/she/it/they] have known of the sexual

favoritism?
6. Yes No
7. Yes No
8. Was the sexual favoritism a substantial factor in causing harm to
8. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

1611

VF-2506C FAIR EMPLOYMENT AND HOUSING ACT

[d. TOTAL $
Signed:
Presiding Juror
Dated:
December 2016
Directions for Use
This verdict form is based on CACI No. 2521C, Hostile Work Environment
Elements—Employer or Entity Defendant.
element 1 of CACI No. 2521C. Depending on the facts of the case, other factual
1612

VF-2507A. Hostile Work Environment Harassment—Conduct

Directed at Plaintiff—Individual Defendant (Gov. Code, § 12940(j))

services under a contract with] [name of employer]?
1. Yes No
2. Was [name of plaintiff] subjected to unwanted harassing conduct
because [he/she] was [protected status, e.g., a woman]?
2. Yes No
3. Yes No
4. Would a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances have considered the work environment to be
hostile or abusive?
4. Yes No
hostile or abusive?
5. Yes No
6. Did [name of defendant] [participate in/assist/ [or] encourage] the
harassing conduct?
1613

VF-2507A FAIR EMPLOYMENT AND HOUSING ACT
6. Yes No
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

[d. TOTAL $
Signed:
Presiding Juror
Dated:
1614

FAIR EMPLOYMENT AND HOUSING ACT VF-2507A

Directions for Use
This verdict form is based on CACI No. 2522A, Hostile Work Environment
Elements—Individual Defendant.
element 1 of CACI No. 2522A.
(See Gov. Code, § 12926(o).)
1615

VF-2507B. Hostile Work Environment Harassment—Conduct

Directed at Others—Individual Defendant (Gov. Code, § 12940(j))

1. Yes No
2. Did [name of plaintiff] personally witness harassing conduct that
took place in [his/her] immediate work environment?
2. Yes No
3. Yes No
4. Yes No
hostile or abusive toward [e.g., women]?
5. Yes No
harassing conduct?
1616

FAIR EMPLOYMENT AND HOUSING ACT VF-2507B
6. Yes No
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

[d. TOTAL $
Signed:
Presiding Juror
Dated:
1617

VF-2507B FAIR EMPLOYMENT AND HOUSING ACT

Directions for Use
This verdict form is based on CACI No. 2522B, Hostile Work Environment
Defendant.
element 1 of CACI No. 2521C, Hostile Work Environment
Elements—Employer or Entity Defendant.
1618

VF-2507C. Hostile Work Environment Harassment—Widespread

Sexual Favoritism—Individual Defendant (Gov. Code, § 12940(j))

1. Yes No
2. Was there sexual favoritism in the work environment?
2. Yes No
3. Was the sexual favoritism widespread, and also severe or
pervasive?
3. Yes No
woman] in [name of plaintiff]’s circumstances have considered the work
environment to be hostile or abusive?
4. Yes No
hostile or abusive?
5. Yes No
sexual favoritism?
1619

VF-2507C FAIR EMPLOYMENT AND HOUSING ACT
6. Yes No
7. Was the sexual favoritism a substantial factor in causing harm to
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]

[d. TOTAL $
Signed:
Presiding Juror
Dated:
1620

FAIR EMPLOYMENT AND HOUSING ACT VF-2507C

Directions for Use
This verdict form is based on CACI No. 2522C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism— Essential Factual
Elements—Individual Defendant.
element 1 in CACI No. 2521C. Depending on the facts of the case, other factual
1621


1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
2. Yes No
3. Did [name of defendant] [know that [name of plaintiff had/treat
[name of plaintiff] as if [he/she] had] [a history of having] [a]
[select term to describe basis of limitations, e.g., physical condition]
[that limited [insert major life activity]]?
3. Yes No
4. Was [name of plaintiff] able to perform the essential job duties
[with reasonable accommodation] for [his/her] [e.g., physical
condition]?
4. Yes No
5. Yes No
1622

6. Was [name of plaintiff]’s [perceived] [history of [a]] [e.g., physical

condition] a substantial motivating reason for [name of
defendant]’s decision to [discharge/refuse to hire/[other adverse
6. Yes No
7. Was [name of defendant]’s [decision/conduct] a substantial factor
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
1623

Dated:
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.
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.”
§ 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
1624

1625

VF-2509. Disability Discrimination—Reasonable Accommodation

(Gov. Code, § 12940(m))

1. Yes No
2. Yes No
3. Did [name of plaintiff] have [a] [select term to describe basis of
limitations, e.g., physical condition] [that limited [insert major life
activity]]?
3. Yes No
4. Did [name of defendant] know of [name of plaintiff]’s [e.g., physical
condition [that limited [insert major life activity]]?
4. Yes No
with reasonable accommodation for [his/her] [e.g., physical
condition]?
5. Yes No
1626

6. Did [name of defendant] fail to provide reasonable

accommodation for [name of plaintiff]’s [e.g., physical condition]?
6. Yes No
7. Was [name of defendant]’s failure to provide reasonable
accommodation a substantial factor in causing harm to [name of
plaintiff]?
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
1627

Dated:
2010, December 2016
Directions for Use
Discrimination—Reasonable Accommodation—Essential Factual Elements.
element 1 of CACI No. 2541.
§ 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].)
1628

VF-2510. Disability Discrimination—Reasonable

Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, § 12940(m))

1. Yes No
2. Yes No
activity]]?
3. Yes No
4. Did [name of defendant] know of [name of plaintiff]’s [e.g., physical
condition] [that limited [insert major life activity]]?
4. Yes No
with reasonable accommodation for [his/her] [e.g., physical
condition]?
5. Yes No
1629

6. Did [name of defendant] fail to provide reasonable

accommodation for [name of plaintiff]’s [e.g., physical condition]?
6. Yes No
7. Would [name of plaintiff]’s proposed accommodations have
created an undue hardship to the operation of [name of
defendant]’s business?
7. Yes No
8. Was [name of defendant]’s failure to provide a reasonable
accommodation a substantial factor in causing harm to [name of
plaintiff]?
8. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
1630

[d. TOTAL $
Signed:
Presiding Juror
Dated:
2010, December 2016
Directions for Use
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.
element 1 of CACI No. 2541.
§ 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].)
1631

1632

VF-2511. Religious Creed Discrimination—Failure to

Accommodate (Gov. Code, § 12940(l))

1. Yes No
2. Yes No
3. Does [name of plaintiff] have a sincerely held religious belief that
[describe religious belief, observance, or practice]?
3. Yes No
4. Did [name of plaintiff]’s religious [belief/observance] conflict with
a job requirement?
4. Yes No
5. Did [name of defendant] know of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement?
5. Yes No
6. Did [name of defendant] reasonably accommodate [name of
plaintiff]’s religious [belief/observance]?
1633

6. Yes No
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
7. Yes No
8. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
8. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
1634


[d. TOTAL $
Signed:
Presiding Juror
Dated:
2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements.
1635

VF-2512. Religious Creed Discrimination—Failure to

Accommodate—Affirmative Defense—Undue Hardship (Gov.
Code, §§ 12926(u), 12940(l))

1. Yes No
2. Yes No
3. Does [name of plaintiff] have a sincerely held religious belief that
[describe religious belief, observance, or practice]?
3. Yes No
4. Did [name of plaintiff]’s religious [belief/observance] conflict with
a job requirement?
4. Yes No
5. Did [name of defendant] know of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement?
5. Yes No
6. Did [name of defendant] reasonably accommodate [name of
1636

plaintiff]’s religious [belief/observance]?

6. Yes No
7. Did [name of defendant] explore available ways to accommodate
[name of plaintiff]’s religious [belief/observance]?
7. Yes No
8. Could [name of defendant] have accommodated [name of
plaintiff]’s religious [belief/observance] without causing undue
hardship to [name of defendant]’s business?
8. Yes No
9. 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
9. Yes No
10. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
10. Yes No
[lost earnings $ ]
[lost profits $ ]
1637

[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1638

1639

VF-2513. Disability Discrimination—Reasonable

Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))

1. Yes No
2. Yes No
activity]]?
3. Yes No
4. Did [name of plaintiff] request that [name of defendant] make
reasonable accommodation for [his/her] [e.g., physical condition]
so that [he/she] would be able to perform the essential job
requirements?
4. Yes No
5. Was [name of plaintiff] willing to participate in an interactive
process to determine whether reasonable accommodation could
be made so that [he/she] would be able to perform the essential
job requirements?
5. Yes No
1640


6. Did [name of defendant] fail to participate in a timely, good-faith
interactive process with [name of plaintiff] to determine whether
reasonable accommodation could be made?
6. Yes No
7. Was [name of defendant]’s failure to participate in a good-faith
interactive process 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
[lost earnings $ ]
[lost profits $ ]
Total Past Economic Damages: $ ]
[lost earnings $ ]
[lost profits $ ]
Total Future Economic Damages: $ ]
1641

[d. TOTAL $ ]
Signed:
Presiding Juror
Dated:
New April 2009; Revised December 2009, December 2010, December 2016
Directions for Use
Discrimination—Reasonable Accommodation—Failure to Engage in Interactive
Process.
§ 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
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.
There is a split of authority as to whether the employee must also prove that
1642

reasonable accommodation was possible before there is a violation for failure to

engage in the interactive process. (Compare Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1 [jury’s
finding that no reasonable accommodation was possible is not inconsistent with its
finding of liability for refusing to engage in interactive process] with Nadaf-Rahrov
v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985 [83
Cal.Rptr.3d 190] [employee who brings a section 12940(n) claim bears the burden
of proving that a reasonable accommodation was available before the employer can
be held liable under the statute].)
1643

VF-2514. Failure to Prevent Harassment, Discrimination, or

Retaliation

1. Did [name of defendant] fail to take all reasonable steps to
prevent the [harassment/discrimination/retaliation]?
1. Yes No
2. Was [name of defendant]’s failure to prevent the [harassment/
discrimination/retaliation] a substantial factor in causing harm to
2. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
1644

[d. TOTAL $
Signed:
Presiding Juror
Dated:
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.
1645


1. Yes No
2. Yes No
3. Yes No
4. Was [name of plaintiff]’s [protected status or activity] a substantial
motivating reason for [name of defendant]’s [discharge of/refusal
to hire/[other adverse employment action]] [name of plaintiff]?
4. Yes No
5. Was [specify employer’s stated legitimate reason, e.g., plaintiff’s
poor job performance] also a substantial motivating reason for
[name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]]?
5. Yes No
6. Would [name of defendant] have [discharged/refused to hire/[other
1646

adverse employment action]] [name of plaintiff] anyway at that

time based on [e.g., plaintiff’s poor job performance] had [name of
defendant] not also been substantially motivated by
[discrimination/retaliation]?
6. Yes No
of plaintiff]?
7. Yes No
[lost earnings $ ]
[lost profits $ ]
[lost earnings $ ]
[lost profits $ ]
[d. TOTAL $
1647

Signed:
Presiding Juror
Dated:
New December 2013; Revised December 2015, December 2016

Directions for Use
This verdict form is based on CACI No. 2512, Limitation of Damages—Same
Decision. It incorporates questions from VF-2500, Disparate Treatment, and VF-
2504, Retaliation, to guide the jury through the evaluation of the employer’s
purported legitimate reason for the adverse employment action.
Question 5 asks the jury to determine whether the employer’s stated legitimate
reason actually was a motivating reason for the adverse action. In this way, the jury
evaluates the employer’s reason once. If it finds that it was an actual motivating
reason, it then proceeds to question 6 to consider whether the employer has proved
“same decision,” that is, that it would have taken the adverse employment action
anyway for the legitimate reason, even though it may have also had a
discriminatory or retaliatory motivation. If the jury answers “no” to question 5 it
then proceeds to consider substantial-factor causation of harm and damages in
questions 7 and 8.
1648

1649


0001 [ST: 1] [ED: m] [REL: 17] (Beg Group) Composed: Tue Nov 14 13:45:32 EST 2017
XPP 9.0C.1 SP #4 FM000150 nllp 1283 [PW=516pt PD=720pt TW=380pt TD=580pt]
VER: [FM000150-Master:03 Oct 14 02:10][MX-SECNDARY: 09 Aug 17 08:28][TT-: 23 Sep 11 07:01 loc=usa unit=01283-fmvol002] 0

Civil Jury Instructions
CACI*
* Pronounced “Casey”
As approved at the
November 2017 Judicial Council Meeting
2
Series 2600–5000

Advisory Committee on Civil Jury Instructions
Hon. Martin J. Tangeman, Chair
LexisNexis Matthew Bender
Official Publisher

0002 [ST: 1] [ED: m] [REL: 17] Composed: Tue Nov 14 13:45:32 EST 2017
QUESTIONS ABOUT THIS PUBLICATION?

For questions about the Editorial Content appearing in these volumes or reprint permission, please call:
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ISSN: 1549-7100
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CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2018 edition)
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(2018–Pub.1283)

Table of Contents
Volume 1
USER GUIDE
SERIES 100 PRETRIAL
SERIES 200 EVIDENCE
iii

iv

Volume 2
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTEC-

TION ACT
SERIES 3900 DAMAGES
SERIES 4200 UNIFORM VOIDABLE TRANSACTIONS ACT


TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
vi


USER GUIDE
SERIES 100 PRETRIAL

105. Insurance
106. Evidence
107. Witnesses
113. Bias
SERIES 200 EVIDENCE

vii



313. Modification
viii


325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Elements
354. Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements on Real
Property
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ. Code, § 3306)
ix


380. Agreement Formalized by Electronic Means—Uniform Electronic Transactions Act
(Civ. Code, § 1633.1 et seq.)

404. Intoxication
408. Primary Assumption of Risk—Liability of Coparticipant in Sport or Other Recreational
Activity
409. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
410. Primary Assumption of Risk—Liability of Facilities Owners and Operators and Event
Sponsors
420. Negligence per se: Rebuttal of the Presumption of Negligence (Violation Excused)
x


421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor
Excused)
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code,
§ 25602.1)
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding Cause
440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure—Essential
Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements
xi


VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
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-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would Not
Have Disclosed Pertinent Facts

503B. Affirmative Defense—Psychotherapist’s Communication of Threat to Victim and
Law Enforcement
xii


517. Affirmative Defense—Patient’s Duty to Provide for His or Her Own Well-Being
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff Would
Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative Defense—Emergency

610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit
xiii


611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit

710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code, § 21950)
Permission
xiv




1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal Conduct of
Others
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained
Control
xv


VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity—Exceptions

1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code,
§ 835)
1101. Control
1103. Notice (Gov. Code, § 835.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code,
§ 835.4(a))
§ 835.4(b))
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code, § 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov.
Code, § 831)
VF-1101. Dangerous Condition of Public Property—Affirmative Defense—Reasonable Act
or Omission (Gov. Code, § 835.4)
xvi


1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential Factual
Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not Prescription
Drugs)—Essential Factual Elements
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual Elements
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue
xvii


VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse or
Modification
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not “Basis of
Bargain”
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular Purpose

1320. Intent
VF-1300. Battery
VF-1302. Assault

1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause
to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
xviii


1404. False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable
Cause to Arrest
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain
for Investigation
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable
Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable
Cause to Arrest
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception

1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s Reliance on
Information Provided by Client
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
xix


VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative
Defense—Reliance on Counsel

1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress” Defined
1605. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
Conduct—Essential Factual Elements
VF-1601. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
Injury—Direct Victim
Injury—Bystander
Injury—Fear of Cancer, HIV, or AIDS
Conduct
xx



1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private
Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of
Private Concern)
xxi



1802. False Light
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports
Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment
(Comedy III)
1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ.
Code, § 1708.85)
1820. Damages
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632, 637.2)

1901. Concealment
1902. False Promise
xxii


1905. Revoked
1907. Reliance

2022. Private Nuisance—Balancing-Test Factors—Seriousness and Public Benefit
VF-2000. Trespass
xxiii


VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346; Code
Civ. Proc., § 733)

VF-2100. Conversion

2201. Intentional Interference With Contractual Relations—Essential Factual Elements
2202. Intentional Interference With Prospective Economic Relations—Essential Factual
Elements
2203. Intent
2205. Intentional Interference With Expected Inheritance—Essential Factual Elements
2210. Affirmative Defense—Privilege to Protect Own Financial Interest

2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual Elements
xxiv


Application—Essential Factual Elements
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in
Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential Factual
Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights—Essential
Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Within Liability
Policy Limits—Essential Factual Elements
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual
Elements
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered Claims
2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements
VF-2301. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or
Delay in Payment
xxv



2400. Breach of Employment Contract—Unspecified Term—“At-Will” Presumption
2401. Breach of Employment Contract—Unspecified Term—Essential Factual Elements
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact Promise Not
to Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause” Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good Cause”
Defined—Misconduct
2420. Breach of Employment Contract—Specified Term—Essential Factual Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense (Lab. Code,
§ 2924)
2423. Breach of the Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
2424. Breach of the Implied Covenant of Good Faith and Fair Dealing—Good Faith
Mistaken Belief Defense
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy
2441. Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet.
Code, § 394)
VF-2401. Breach of Employment Contract—Unspecified Term—Constructive Discharge
VF-2403. Breach of Employment Contract—Specified Term—Good-Cause Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair Dealing
xxvi


VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative
Defense—Good Faith Mistaken Belief
Endure Intolerable Conditions for Improper Purpose That Violates Public Policy

2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(d))—Plaintiff
Alleges Continuing Violation
xxvii


2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a
Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements
(Gov. Code, § 12940(m))
§§ 12926(f), 12940(a)(1))
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
2560. Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements (Gov. Code, § 12940(l))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative Defense—Business
Necessity/Job Relatedness—Rebuttal to Business Necessity/Job Relatedness
Defense
xxviii


§ 12940(m))
§ 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
xxix



2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice of CFRA Leave
2603. “Comparable Job” Explained
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613. Affirmative Defense—Key Employee
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(l))
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation

2700. Nonpayment of Wages—Essential Factual Elements (Lab. Code, §§ 201, 202, 218)
2701. Nonpayment of Minimum Wage—Essential Factual Elements (Lab. Code, § 1194)
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (Lab. Code,
§ 1194)
2703. Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked
2704. Damages—Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203,
218)
2710. Solicitation of Employee by Misrepresentation—Essential Factual Elements (Lab.
Code, § 970)
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual
Elements (Lab. Code, § 1050)
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
xxxi


2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab.
Code, § 1019)
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code, § 1050)

2800. Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation
2801. Employer’s Willful Physical Assault—Essential Factual Elements (Lab. Code,
§ 3602(b)(1))
2802. Fraudulent Concealment of Injury—Essential Factual Elements (Lab. Code,
§ 3602(b)(2))
2803. Employer’s Defective Product—Essential Factual Elements (Lab. Code, § 3602(b)(3))
2804. Removal or Noninstallation of Power Press Guards—Essential Factual Elements (Lab.
Code, § 4558)
2810. Co-Employee’s Affirmative Defense—Injury Covered by Workers’ Compensation
2811. Co-Employee’s Willful and Unprovoked Physical Act of Aggression—Essential
Factual Elements (Lab. Code, § 3601(a)(1))
2812. Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements (Lab.
Code, § 3601(a)(2))
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1))
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2))
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression (Lab. Code,
§ 3601(a)(1))
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2))
xxxii


2900. FELA—Essential Factual Elements
2901. Negligence—Duty of Railroad
2902. Negligence—Assignment of Employees
2903. Causation—Negligence
2905. Compliance With Employer’s Requests or Directions
2920. Federal Safety Appliance Act or Boiler Inspection Act—Essential Factual Elements
2921. Causation Under FSAA or BIA
2922. Statute of Limitations—Special Verdict Form or Interrogatory
2923. Borrowed Servant/Dual Employee
2924. Status as Defendant’s Employee—Subservant Company
2925. Status of Defendant as Common Carrier
2940. Income Tax Effects of Award
2941. Introduction to Damages for Personal Injury
2942. Damages for Death of Employee
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act

3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42
U.S.C. § 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42
U.S.C. § 1983)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
3003. Local Government Liability—Failure to Train—Essential Factual Elements (42
U.S.C. § 1983)
3004. Local Government Liability—Act or Ratification by Official With Final Policymaking
Authority—Essential Factual Elements (42 U.S.C. § 1983)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual
Elements (42 U.S.C. § 1983)
xxxiii


3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3023. Unreasonable Search—Search Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3024. Affirmative Defense—Search Incident to Lawful Arrest
3025. Affirmative Defense—Consent to Search
3026. Affirmative Defense—Exigent Circumstances
3040. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial Risk
of Serious Harm (42 U.S.C. § 1983)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (42
U.S.C. § 1983)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive Force
(42 U.S.C. § 1983)
3043. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities (42 U.S.C. § 1983)
3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
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))
xxxiv


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-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-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 USC § 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-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5, 52(a))
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
VF-3033. Ralph Act (Civ. Code, § 51.7)
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9)
VF-3035. Bane Act (Civ. Code, § 52.1)
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL

PROTECTION ACT
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. & Inst. Code, § 15657.5)
3102A. Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3102B. Employer Liability for Enhanced Remedies—Employer Defendant Only (Welf. &
Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
xxxv


3106. Physical Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.63)
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)
3112. “Dependent Adult” Explained (Welf. & Inst. Code, § 15610.23)
3113. “Recklessness” Explained
3114. “Malice” Explained
3115. “Oppression” Explained
3116. “Fraud” Explained
3117. Financial Abuse—“Undue Influence” Explained
VF-3100. Financial Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
VF-3101. Financial Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.30,
15657.5(b))
§§ 15610.57, 15657; Civ. Code, § 3294(b))
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.57, 15657;
Civ. Code, § 3294(b))
VF-3104. Physical Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.63,
15657; Civ. Code, § 3294(b))
VF-3106. Abduction—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.06,
15657.05; Civ. Code, § 3294(b))
Table A. Elder Abuse: Causes of Action, Remedies, and Employer Liability

3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable
Number of Repair Opportunities—Essential Factual Elements (Civ. Code,
§ 1793.2(d))
xxxvi


3202. “Repair Opportunities” Explained
3203. Reasonable Number of Repair Opportunities—Rebuttable Presumption (Civ. Code,
§ 1793.22(b))
3204. “Substantially Impaired” Explained
3205. Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30
Days—Essential Factual Elements (Civ. Code, § 1793.2(b))
3206. Breach of Disclosure Obligations—Essential Factual Elements
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements
3211. Breach of Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
3212. Duration of Implied Warranty
3220. Affirmative Defense—Unauthorized or Unreasonable Use
3221. Affirmative Defense—Disclaimer of Implied Warranties
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)
3230. Continued Reasonable Use Permitted
3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6)
3240. Reimbursement Damages—Consumer Goods (Civ. Code, §§ 1793.2(d)(1), 1794(b))
3241. Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2),
1794(b))
3242. Incidental Damages
3243. Consequential Damages
3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
Repair Opportunities (Civ. Code, § 1793.2(d))
VF-3201. Consequential Damages
Repair Opportunities—Affirmative Defense—Unauthorized or Unreasonable Use
(Civ. Code, § 1793.2(d))
VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil Penalty Sought
VF-3204. Breach of Implied Warranty of Merchantability
VF-3205. Breach of Implied Warranty of Merchantability—Affirmative
Defense—Disclaimer of Implied Warranties
VF-3206. Breach of Disclosure Obligations
xxxvii



3300. Locality Discrimination—Essential Factual Elements
3301. Below Cost Sales—Essential Factual Elements
3302. Loss Leader Sales—Essential Factual Elements
3303. Definition of “Cost”
3304. Presumptions Concerning Costs—Manufacturer
3305. Presumptions Concerning Costs—Distributor
3306. Methods of Allocating Costs to an Individual Product
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3330. Affirmative Defense to Locality Discrimination Claim—Cost Justification
Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales,
and Secret Rebates—Functional Classifications
Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer Meeting
Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
VF-3300. Locality Discrimination
VF-3301. Locality Discrimination Claim—Affirmative Defense—Cost Justification
VF-3302. Below Cost Sales
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-out, Discontinued,
Damaged, or Perishable Items
VF-3304. Loss Leader Sales
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting Competition
VF-3306. Secret Rebates
VF-3307. Secret Rebates Claim—Affirmative Defense—Functional Classifications

3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
Fixing—Essential Factual Elements
xxxviii


3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Essential Factual Elements
3402. Horizontal Restraints—Dual Distributor Restraints—Essential Factual Elements
3403. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation—Essential Factual Elements
3404. Horizontal Restraints—Group Boycott—Rule of Reason—Essential Factual Elements
3405. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason—Essential
Factual Elements
3406. Horizontal and Vertical Restraints—“Agreement” Explained
3407. Horizontal and Vertical Restraints—Agreement Between Company and Its Employee
3408. Vertical Restraints—“Coercion” Explained
3409. Vertical Restraints—Termination of Reseller
3410. Vertical Restraints—Agreement Between Seller and Reseller’s Competitor
3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
3412. Rule of Reason—“Market Power” Explained
3413. Rule of Reason—“Product Market” Explained
3414. Rule of Reason—“Geographic Market” Explained
3420. Tying—Real Estate, Products, or Services—Essential Factual Elements (Bus. & Prof.
Code, § 16720)
3421. Tying—Products or Services—Essential Factual Elements (Bus. & Prof. Code,
§ 16727)
3422. Tying—“Separate Products” Explained
3423. Tying—“Economic Power” Explained
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3440. Damages
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price Fixing
Commerce
Commerce—Affirmative Defense—In Pari Delicto
VF-3403. Horizontal Restraints—Dual Distributor Restraints
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation
xxxix


VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
Reason
Reason Affirmative Defense—“Noerr-Pennington” Doctrine
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof. Code, § 16720)
VF-3409. Tying—Products or Services (Bus. & Prof. Code, § 16727)

3501. “Fair Market Value” Explained
3502. “Highest and Best Use” Explained
3503. Change in Zoning or Land Use Restriction
3504. Project Enhanced Value
3505. Information Discovered after Date of Valuation
3506. Effect of Improvements
3507. Personal Property and Inventory
3508. Bonus Value of Leasehold Interest
3509. Precondemnation Damages (Klopping Damages)
3510. Value of Easement
3511. Permanent Severance Damages
3512. Severance Damages—Offset for Benefits
3513. Goodwill
3514. Burden of Proof
3515. Valuation Testimony
3516. View
3517. Comparable Sales (Evid. Code, § 816)
VF-3500. Fair Market Value Plus Goodwill
VF-3501. Fair Market Value Plus Severance Damages
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property
xl


3600. Conspiracy—Essential Factual Elements
3601. Ongoing Conspiracy
3602. Affirmative Defense—Agent and Employee Immunity Rule
3610. Aiding and Abetting Tort—Essential Factual Elements

3700. Introduction to Vicarious Responsibility
3701. Tort Liability Asserted Against Principal—Essential Factual Elements
3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
3703. Legal Relationship Not Disputed
3704. Existence of “Employee” Status Disputed
3705. Existence of “Agency” Relationship Disputed
3706. Special Employment—Lending Employer Denies Responsibility for Worker’s Acts
3707. Special Employment—Joint Responsibility
3708. Peculiar-Risk Doctrine
3709. Ostensible Agent
3710. Ratification
3711. Partnerships
3712. Joint Ventures
3713. Nondelegable Duty
3721. Scope of Employment—Peace Officer’s Misuse of Authority
3722. Scope of Employment—Unauthorized Acts
3723. Substantial Deviation
3724. Going-and-Coming Rule—Business-Errand Exception
3725. Going-and-Coming Rule—Vehicle-Use Exception
3726. Social or Recreational Activities
VF-3700. Negligence—Vicarious Liability
xli



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Judicial Council of California

Civil Jury Instructions

Judicial Council of California

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The Advisory Committee on Civil Jury Instructions welcomes comments. Send

Or you may send print comments by regular mail to:

Advisory Committee on Civil Jury Instructions—Attn. Bruce Greenlee

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MOTOR VEHICLES AND HIGHWAY SAFETY

DANGEROUS CONDITION OF PUBLIC PROPERTY

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CALIFORNIA FAMILY RIGHTS ACT

LABOR CODE ACTIONS

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ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT

BREACH OF FIDUCIARY DUTY

UNIFORM FRAUDULENT TRANSACTIONS ACT

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CONSUMERS LEGAL REMEDIES ACT (new series)

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Hon. Martin J. Tangeman

Administrative Director, Staff to the Judicial Council

Legal Services Office

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Hon. James D. Ward, Chair Hon. Carolyn B. Kuhl

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SERIES 100 PRETRIAL

SERIES 200 EVIDENCE

SERIES 300 CONTRACTS

SERIES 400 NEGLIGENCE

SERIES 500 MEDICAL NEGLIGENCE

SERIES 600 PROFESSIONAL NEGLIGENCE

SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY

SERIES 800 RAILROAD CROSSINGS

SERIES 900 COMMON CARRIERS

SERIES 1000 PREMISES LIABILITY

SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY

SERIES 1200 PRODUCTS LIABILITY

SERIES 1300 ASSAULT AND BATTERY

SERIES 1400 FALSE IMPRISONMENT

SERIES 1500 MALICIOUS PROSECUTION

SERIES 1600 EMOTIONAL DISTRESS

SERIES 1700 DEFAMATION

SERIES 1800 RIGHT OF PRIVACY

SERIES 1900 FRAUD OR DECEIT

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SERIES 2100 CONVERSION

SERIES 2200 ECONOMIC INTERFERENCE

SERIES 2300 INSURANCE LITIGATION

SERIES 2400 WRONGFUL TERMINATION

SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT

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SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT