Trials Litigation Caci
Trials Litigation Caci
Trials Litigation Caci
As approved at the
Judicial Council’s Rules Committee August 2022 Meeting
and Judicial Council December 2022 Meeting
1
Judicial Council of California
Series 100–2500
ISSN: 1549-7100
ISBN: 978-1-6633-4409-0 (print)
© 2023, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2023 edition)
Cite these instructions: “CACI No. _________.”
Cite these verdict forms: “CACI No. VF-_________.”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(1/2023–Pub.1283)
December 2022
Hon. Adrienne M. Grover
Court of Appeal, Sixth 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]
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CONTRACTS
306. Unformalized Agreement (sources and authority)
NEGLIGENCE
472. Primary Assumption of Risk—Exception to Nonliability─Facilities Owners and Operators and Event
Sponsors (sources and authority)
MEDICAL NEGLIGENCE
509. Abandonment of Patient (sources and authority)
PROFESSIONAL NEGLIGENCE
600. Standard of Care (sources and authority)
601. Legal Malpractice—Causation (revised)
PREMISES LIABILITY
1004. Obviously Unsafe Conditions (revised)
1007. Sidewalk Abutting Property (revised)
CONVERSION
2102. Presumed Measure of Damages for Conversion (Civ. Code, § 3336) (sources and authority)
WRONGFUL TERMINATION
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements (sources and
authority)
Volume 2
CIVIL RIGHTS
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42
U.S.C. § 1983) (sources and authority)
3046. Violation of Pretrial Detainee’s Federal Civil Rights—Fourteenth Amendment—Medical Care and
Conditions of Confinement (sources and authority)
3050. Retaliation—Essential Factual Elements (sources and authority)
VICARIOUS RESPONSIBILITY
3726. Going-and-Coming Rule—Business-Errand Exception (sources and authority)
WHISTLEBLOWER PROTECTION
VF-4601. Protected Disclosure by State Employee─California Whistleblower Protection Act─Affirmative
Defense─Same Decision (Gov. Code, § 8547.8(c)) (revised)
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code, §§ 1102.5,
1102.6) (revised)
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5) (revised)
4604. Affirmative Defense─Same Decision (Lab. Code, § 1102.6) (revised)
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COMMITTEE MEMBERS
HON. SUZANNE RAMOS BOLANOS
MS. KATHLEEN A. BREWER
HON. TANA L. COATES
MR. NICHOLAS P. CONNON
HON. ROBERT P. DAHLQUIST
HON. JOHN P. DEVINE
MR. PAUL T. HAYDEN
MR. MICHAEL A. KELLY
MS. MICHELLE G. LEE
MR. JOSEPH P. MCMONIGLE
HON. MARLA J. MILLER
HON. MARGARET L. OLDENDORF
HON. IOANA PETROU
MS. MELINDA PILLING
MR. JULIAN W. POON
MR. RAHUL RAVIPUDI
MR. TODD M. SCHNEIDER
HON. RICHARD L. SEABOLT
HON. MARK WOOD SNAUFFER
MS. CHRISTINE SPAGNOLI
HON. JOHN SHEPARD WILEY JR.
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Supreme Court
Hon. Carol A. Corrigan
Courts of Appeal
Hon. Carin T. Fujisaki
Hon. Brad R. Hill
Hon. Marsha G. Slough
Trial Courts
Hon. Maria O. Anderson
Hon. Maria Lucy Armendariz
Hon. C. Todd Bottke
Hon. Stacy Boulware Eurie
Hon. Kevin C. Brazile
Hon. Kyle S. Brodie
Hon. Jonathan B. Conklin
Hon. Samuel K. Feng
Hon. Harold W. Hopp
Hon. Ann C. Moorman
Hon. David M. Rubin
Legislature
Hon. Richard Bloom
Senator Thomas J. Umberg
State Bar
Mr. David D. Fu
Ms. Rachel W. Hill
Ms. Gretchen Nelson
Advisory Members
Hon. Judith K. Dulcich
Ms. Rebecca J. Fleming
Mr. Shawn C. Landry
Hon. Kimberly Merrifield
Hon. Glenn Mondo
Hon. David Rosenberg
Mr. David Yamasaki
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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.
xiv
September 2003
James D. Ward, Former Associate Justice
Court of Appeal, Fourth Appellate District, Division Two
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xix
USER GUIDE
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TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
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xxxi
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lvi
lvii
lxv
lxx
Codes
Deering’s California Codes Annotated
Matthew Bender and Deering’s Desktop Codes
Citations
lxxi
Specialized Publications
Antitrust Laws & Trade Regulation
New Appleman on Insurance Law Library Edition
Wilcox, California Employment Law
California Employment Law Reporter
Selmi & Manaster, California Environmental Law and Land Use Practice
California Insurance Law and Practice
California Products Liability Actions
California Real Estate Law and Practice
California Legal Forms—Transaction Guide
Levy, Golden & Sacks, California Torts
California Uninsured Motorist Law
Hanna, California Law of Employee Injuries and Workers’ Compensation
Civil Rights Actions
Long, The Law of Liability Insurance
Nichols on Eminent Domain
For a complete listing of LexisNexis Matthew Bender products, visit the online bookstore at
<http://www.lexisnexis.com/store/us/>.
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research on the subject. The standard is that the committee believes that the excerpt
would be of interest and relevant to CACI users.
Secondary Sources are also provided for treatises and practice guides from a variety of
legal publishers.
Instructions for the Common Case: These instructions were drafted for the common
type of case and can be used as drafted in most cases. When unique or complex
circumstances prevail, users will have to adapt the instructions to the particular case.
Multiple Parties: Because jurors more easily understand instructions that refer to
parties by name rather than by legal terms such as “plaintiff” and “defendant,” the
instructions provide for insertion of names. For simplicity of presentation, the
instructions use single party plaintiffs and defendants as examples. If a case involves
multiple parties or cross-complaints, the user will usually need to modify the parties in
the instructions. Rather than naming a number of parties in each place calling for
names, the user may consider putting the names of all applicable parties in the
beginning and thereafter identifying them as “plaintiffs,” “defendants,” “cross-
complaints,” etc. Different instructions often apply to different parties. The user should
only include the parties to whom each instruction applies.
Personal Pronouns: Many CACI instructions include an option to insert the personal
pronouns “he/she/nonbinary pronoun,” “his/her/nonbinary pronoun,” or “him/her/
nonbinary pronoun.” It is the policy of the State of California that intersex, transgender,
and nonbinary people are entitled to full legal recognition and equal treatment under the
law. In accordance with this policy, attorneys and courts should take affirmative steps
to ensure that they are using individuals’ correct personal pronouns. Although the
advisory committee acknowledges a trend for the use of “they,” “their,” and “them” as
singular personal pronouns, the committee also recognizes these same pronouns have
plural denotations with the potential to confuse jurors. For clarity in the jury
instructions, the committee recommends using an individual’s name rather than a
personal nonbinary pronoun (such as “they”) if the pronoun’s use could result in
confusion.
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
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USER GUIDE
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).
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.
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USER GUIDE
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 corresponding
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 evidence
will be such that the jury could reach different results for different parties. The liability
of each defendant should always be evaluated individually, and the damages to be
awarded to each plaintiff must usually be determined separately. Therefore, separate
special verdicts should usually be prepared for each plaintiff with regard to each
defendant. In some cases, the facts may be sufficiently simple to include multiple
parties in the same verdict form, but if this is done, the transitional language from one
question to another must be modified to account for all the different possibilities of yes
and no answers for the various parties.
Multiple Causes of Action: The verdict forms are self-contained for a particular cause
of action. When multiple causes of action are being submitted to the jury, it may be
better to combine the verdict forms and eliminate duplication.
Modifications as Required by Circumstances: The verdict forms must be modified as
required by the circumstances. It is necessary to determine whether any lesser or greater
specificity is appropriate. The question in special verdict forms for plaintiff’s damages
provides an illustration. Consistent with the jury instructions, the question asks the jury
to determine separately the amounts of past and future economic loss, and of past and
future noneconomic loss. These four choices are included in brackets. In some cases it
may be unnecessary to distinguish between past and future losses. In others there may
be no claim for either economic or noneconomic damages. In some cases the court may
wish to eliminate the terms “economic loss” and “noneconomic loss” from both the
instructions and the verdict form. Without defining those terms, the court may prefer
simply to ask the jury to determine the appropriate amounts for the various components
of the losses without categorizing them for the jury as economic or noneconomic. The
court can fix liability as joint or several under Civil Code sections 1431 and 1431.2,
based on the verdicts. A more itemized breakdown of damages may be appropriate if
the court is concerned about the sufficiency of the evidence supporting a particular
component of damages. Appropriate special verdicts are preferred when periodic
payment schedules may be required by Code of Civil Procedure section 667.7.
(Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 148–150 [266 Cal. Rptr. 671].)
December 2022
Hon. Adrienne M. Grover
Chair, Judicial Council Advisory Committee on Civil Jury Instructions
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PRETRIAL
5
100. Preliminary Admonitions
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 that
person 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.
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PRETRIAL INSTRUCTIONS CACI No. 100
New September 2003; Revised April 2004, October 2004, February 2005, June
2005, December 2007, December 2009, December 2011, December 2012, May 2020
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 that
it is their duty not to form or express an opinion thereon until the case is finally
submitted to them.”
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CACI No. 100 PRETRIAL INSTRUCTIONS
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 §§ 12.6, 13.50, 13.51, 13.58
(Cal CJER 2019)
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101. Overview of Trial
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/Nonbinary pronoun/It] is called a
[plaintiff/petitioner]. [He/She/Nonbinary pronoun/It] seeks
[damages/specify other relief] from [name of defendant], who is called a
[defendant/respondent].
[[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/respondent], but also is called the cross-complainant.
[Name of cross-defendant] is called a cross-defendant.]
[In [his/her/nonbinary pronoun/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
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PRETRIAL INSTRUCTIONS CACI No. 101
into evidence. As one side presents evidence, the other side has the right
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, May 2019
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.
Sources and Authority
• 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
Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, Ch. 1, Preparing for
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CACI No. 101 PRETRIAL INSTRUCTIONS
12
102. Taking Notes During the Trial
You have been given notebooks and may take notes during the trial. Do
not take the notebooks out of the courtroom or jury room at any time
during the trial. You may take your notes into the jury room during
deliberations.
You should use your notes only to remind yourself of what happened
during the trial. Do not let your note-taking interfere with your ability to
listen carefully to all the testimony and to watch the witnesses as they
testify. Nor should you allow your impression of a witness or other
evidence to be influenced by whether or not other jurors are taking
notes. Your independent recollection of the evidence should govern your
verdict, and you should not allow yourself to be influenced by the notes
of other jurors if those notes differ from what you remember.
[The court reporter is making a record of everything that is said. If
during deliberations you have a question about what the witness said,
you should ask that the court reporter’s records be read to you. You
must accept the court reporter’s record as accurate.]
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/ [specify other disposition]].
that another juror has taken notes; and that the notes are for the note taker’s own
personal use in refreshing his recollection of the evidence. The jury must be
reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a cautionary
instruction on note-taking. Although the ideal instruction would advert
specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . .’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
California Deskbook on Complex Civil Litigation Management, Ch. 4, Trial of
Complex Cases, § 4.21[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 3.97 (Cal CJER 2019)
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103. Multiple Parties
[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 that plaintiff’s 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 that defendant’s 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.]
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104. Nonperson Party
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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.
outweighs the prejudicial effect of the mention of insurance.” (Blake, supra, 170
Cal.App.3d at p. 831, internal citation omitted.)
• “[T]he trial court did not abuse its discretion by excluding evidence of
[plaintiff]’s insured [health care coverage] under Evidence Code section 352.
[Plaintiff] had the right to treat outside his plan. Evidence of his insurance would
have confused the issues or misled and prejudiced the jury.” (Pebley v. Santa
Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1278 [232 Cal.Rptr.3d 404].)
• “[M]ost of these references to Kaiser and Medicare, as well as the single
reference to Social Security, merely provided context and background
information on [plaintiff]’s past treatment at Kaiser and on some aspects of
[defendant]’s experts’ calculation of past and future reasonable medical expenses.
They were helpful and even necessary to the jury’s understanding of the issues.
[Plaintiff] has not shown the court abused its discretion in admitting these
references to assist the jury’s understanding of the facts.” (Stokes v. Muschinske
(2019) 34 Cal.App.5th 45, 58 [245 Cal.Rptr.3d 764].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 217 et seq.
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.32–34.36
California Practice Guide: Civil Trials and Evidence, Ch. 5-G, Jury
Selection—Scope of Permissible Voir Dire—Proper vs. Improper Questions ¶ 5:371
(The Rutter Group)
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, §§ 50.20, 50.32 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 16, Jury Instructions, 16.06
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.26
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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 that witness 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,
May 2020
Directions for Use
This instruction should be given as an introductory instruction.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• A stipulation in proper form is binding on the parties if it is within the authority
19
CACI No. 106 PRETRIAL INSTRUCTIONS
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 (5th ed. 2012) Presentation at Trial, § 1
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)
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§§ 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 §§ 2.37, 2.38, 3.99, 5.21,
5.29, 5.39, 11.9, 11.35 (Cal CJER 2019)
20
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 the
witness 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 the witness 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, May 2020
Directions for Use
This instruction may be given as an introductory instruction or as a concluding
21
CACI No. 107 PRETRIAL INSTRUCTIONS
22
108. Duty to Abide by Translation Provided in Court
23
109. Removal of Claims or Parties
24
110. Service Provider for Juror With Disability
25
111. Instruction to Alternate Jurors
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.
26
112. Questions From Jurors
If, during the trial, you have a question that you believe should be asked
of a witness, you may write out the question and send it to me through
my courtroom staff. I will share your question with the attorneys and
decide whether it may be asked.
Do not feel disappointed if your question is not asked. Your question
may not be asked for a variety of reasons. For example, the question
may call for an answer that is not allowed for legal reasons. Also, you
should not try to guess the reason why a question is not asked or
speculate about what the answer might have been. Because the decision
whether to allow the question is mine alone, do not hold it against any of
the attorneys or their clients if your question is not asked.
Remember that you are not an advocate for one side or the other. Each
of you is an impartial judge of the facts. Your questions should be posed
in as neutral a fashion as possible. Do not discuss any question asked by
any juror with any other juror until after deliberations begin.
New February 2005; Revised April 2007, April 2009, June 2011
Directions for Use
This is an optional instruction for use if the jurors will be allowed to ask questions
of the witnesses. For an instruction to be given at the end of the trial, see CACI No.
5019, Questions From Jurors. This instruction may be modified to account for an
individual judge’s practice.
Sources and Authority
• Written Questions From Jurors. Rule 2.1033 of the California Rules of Court.
• “In a proper case there may be a real benefit from allowing jurors to submit
questions under proper control by the court. However, in order to permit the
court to exercise its discretion and maintain control of the trial, the correct
procedure is to have the juror write the questions for consideration by the court
and counsel prior to their submission to the witness.” (People v. McAlister
(1985) 167 Cal.App.3d 633, 644 [213 Cal.Rptr. 271].)
• “[T]he judge has discretion to ask questions submitted by jurors or to pass those
questions on and leave to the discretion of counsel whether to ask the
questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 [18 Cal.Rptr.2d
796, 850 P.2d 1].)
• “The appellant urges that when jurymen ask improper questions the defendant is
placed in the delicate dilemma of either allowing such question to go in without
objection or of offending the jurors by making the objection and the appellant
insists that the court of its own motion should check the putting of such
27
CACI No. 112 PRETRIAL INSTRUCTIONS
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 (5th ed. 2012) Presentation at Trial, § 97
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-E, Juror
Questioning Of Witnesses, ¶ 7:45.11b (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.01–91.03 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 3.96, 8.53 (Cal CJER
2019)
28
113. Bias
29
114. Bench Conferences and Conferences in Chambers
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.
30
115. “Class Action” Defined (Plaintiff Class)
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)
California Deskbook on Complex Civil Litigation Management, Ch. 5, Specialized
Areas, § 5.80 et seq. (Matthew Bender)
12 California Forms of Pleading and Practice, Ch. 120, Class Actions, §§ 120.11,
120.14 (Matthew Bender)
4 California Points and Authorities, Ch. 41, Class and Representative Actions,
§ 41.30 et seq. (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 37,
Class Actions, § 37-I et seq.
32
116. Why Electronic Communications and Research Are
Prohibited
34
117. Wealth of Parties
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.
36
118. Personal Pronouns
37
EVIDENCE
39
200. Obligation to Prove—More Likely True Than Not True
The parties must persuade you, by the evidence presented in court, that
what they are 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.
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 (5th ed. 2012) Burden of Proof and Presumptions,
§ 36
Jefferson, California Evidence Benchbook (3d ed. 1997) Ch. 45, Burdens of Proof
and of Producing Evidence; Presumptions
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
41
201. Highly Probable—Clear and Convincing Proof
42
EVIDENCE CACI No. 201
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 39, 40
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 45.4, 45.21
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
1 Cathcart et al., Matthew Bender Practice Guide: California Debt Collection and
Enforcement of Judgments, Ch. 9, Burdens of Proof and Persuasion, 9.16
43
202. Direct and Indirect Evidence
[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 (5th ed. 2012) Circumstantial Evidence, §§ 1, 2
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 152–155
7 Witkin, California Procedure (5th ed. 2008) Trial, § 291
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.62 (Matthew
Bender)
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 19.12–19.18
45
203. Party Having Power to Produce Better Evidence
46
204. Willful Suppression of Evidence
829, 836 fn. 2 [148 Cal.Rptr. 39, 582 P.2d 126], original italics.)
• “We can see no error in the trial court’s ruling [giving this instruction]. The jury
was told only that it could ‘consider whether one party intentionally concealed
or destroyed evidence.’ Defendants were free to present the jury with evidence
that (as counsel represented to the court), the redactions were only of telephone
numbers, and that the failure to interview certain witnesses was proper, and to
argue that evidence to the jury.” (Ventura v. ABM Industries Inc. (2012) 212
Cal.App.4th 258, 273 [150 Cal.Rptr.3d 861].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 5.44, 11.10 (Cal CJER
2019)
48
205. Failure to Explain or Deny Evidence
49
206. Evidence Admitted for Limited Purpose
During the trial, certain evidence was admitted for a limited purpose.
You may consider that evidence only for that purpose and for no other.
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
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 20.11–20.13
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, § 21.21 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.66[2], 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 3.106, 12.26 (Cal CJER
2019)
51
207. Evidence Applicable to One Party
52
208. Deposition as Substantive Evidence
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.
53
209. Use of Interrogatories of a Party
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.
54
210. Requests for Admissions
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.]
55
211. Prior Conviction of a Felony
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.
56
212. Statements of a Party Opponent
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.
58
213. Adoptive Admissions
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/nonbinary pronoun] 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/nonbinary pronoun] 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.]
60
215. Exercise of a Communication Privilege
61
216. Exercise of Right Not to Incriminate Oneself (Evid. Code,
§ 913)
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
63
CACI No. 216 EVIDENCE
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.)
• “Once a court determines a witness has a valid Fifth Amendment right not to
testify, it is, of course, improper to require him to invoke the privilege in front
of a jury; such a procedure encourages inappropriate speculation on the part of
jurors about the reasons for the invocation. An adverse inference, damaging to
the defense, may be drawn by jurors despite the possibility the assertion of
privilege may be based upon reasons unrelated to guilt.” (Victaulic Co. v.
American Home Assurance Co. (2018) 20 Cal.App.5th 948, 981 [229 Cal.Rptr.3d
545].)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 98
5 Levy et al., California Torts, Ch. 72, Discovery, §§ 72.20, 72.30 (Matthew Bender)
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, § 51.32 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 191, Discovery: Privileges and
Other Discovery Limitations, § 191.30 et seq. (Matthew Bender)
1 California Deposition and Discovery Practice, Ch. 21, Privileged Matters in
General, § 21.20, Ch. 22, Privilege Against Self-Incrimination (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.34 (Cal CJER 2019)
64
217. Evidence of Settlement
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/nonbinary pronoun] testimony is
believable.
65
CACI No. 217 EVIDENCE
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 145–153
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.15–34.24
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, § 50.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
66
218. Statements Made to Physician (Previously Existing
Condition)
67
219. Expert Witness Testimony
During the trial you heard testimony from expert witnesses. The law
allows an expert to state opinions about matters in the expert’s field of
expertise even if the expert 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.
v. Sanner (2012) 207 Cal.App.4th 12, 19 [142 Cal.Rptr.3d 782], internal citations
omitted.)
• Under Evidence Code section 801(a), expert witness testimony “must relate to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” (New v. Consolidated Rock Products Co.
(1985) 171 Cal.App.3d 681, 692 [217 Cal.Rptr. 522].)
• Expert witnesses are qualified by special knowledge to form opinions on facts
that they have not personally witnessed. (Manney v. Housing Authority of The
City of Richmond (1947) 79 Cal.App.2d 453, 460 [180 P.2d 69].)
• “Although a jury may not arbitrarily or unreasonably disregard the testimony of
an expert, it is not bound by the expert’s opinion. Instead, it must give to each
opinion the weight which it finds the opinion deserves. So long as it does not do
so arbitrarily, a jury may entirely reject the testimony of a plaintiff’s expert, even
where the defendant does not call any opposing expert and the expert testimony
is not contradicted.” (Howard, supra, 72 Cal.App.4th at p. 633, citations
omitted.)
• “When any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert’s
opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth.” (People v. Sanchez (2016) 63
Cal.4th 665, 686 [204 Cal.Rptr.3d 102, 374 P.3d 320].)
• “Any expert may still rely on hearsay in forming an opinion, and may tell the
jury in general terms that he did so. Because the jury must independently
evaluate the probative value of an expert’s testimony, Evidence Code section 802
properly allows an expert to relate generally the kind and source of the ‘matter’
upon which his opinion rests. A jury may repose greater confidence in an expert
who relies upon well-established scientific principles. It may accord less weight
to the views of an expert who relies on a single article from an obscure journal
or on a lone experiment whose results cannot be replicated. There is a distinction
to be made between allowing an expert to describe the type or source of the
matter relied upon as opposed to presenting, as fact, case-specific hearsay that
does not otherwise fall under a statutory exception.” (People v. Sanchez, supra,
63 Cal.4th at pp. 685–686, original italics.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 26–44
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 29.18–29.55
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)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.70, 551.113
(Matthew Bender)
70
220. Experts—Questions Containing Assumed Facts
The law allows expert witnesses to be asked questions that are based on
assumed facts. These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert’s opinion that is based on
the assumed facts, you should consider whether the assumed facts are
true.
Farm Mutual Automobile Insurance Co. (1977) 66 Cal.App.3d 981, 995 [136
Cal.Rptr. 331].)
• The jury should not be instructed that they are entitled to reject the entirety of
an expert’s opinion if a hypothetical assumption has not been proven. Rather, the
jury should be instructed “to determine the effect of that failure of proof on the
value and weight of the expert opinion based on that assumption.” (Lysick v.
Walcom (1968) 258 Cal.App.2d 136, 156 [65 Cal.Rptr. 406].)
• “The jury still plays a critical role in two respects. First, it must decide whether
to credit the expert’s opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the significance of
any difference between the actual facts and the facts stated in the questions.”
(People v. Vang, supra, 52 Cal.4th at pp. 1049–1050.)
• “[Experts] . . . can rely on background information accepted in their field of
expertise under the traditional latitude given by the Evidence Code. They can
rely on information within their personal knowledge, and they can give an
opinion based on a hypothetical including case-specific facts that are properly
proven. They may also rely on nontestimonial hearsay properly admitted under a
statutory hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665, 685 [204
Cal.Rptr.3d 102, 374 P.3d 320].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 208–215
Jefferson, California Evidence Benchbook (3d ed. 1997) § 29.43, pp. 609–610
3A California Trial Guide, Unit 60, Opinion Testimony, §§ 60.05, 60.50–60.51
(Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.92 (Cal CJER 2019)
72
221. Conflicting Expert Testimony
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.
73
222. Evidence of Sliding-Scale Settlement
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/
nonbinary pronoun] testimony is believable.
75
223. Opinion Testimony of Lay Witness
76
224. Testimony of Child
77
CONTRACTS
80
300. Breach of Contract—Introduction
the trial court. The excuse of frustration, however, like that of impossibility, 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].)
• “A settlement agreement is a contract, and the legal principles which apply to
contracts generally apply to settlement contracts.” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 789 [249 Cal.Rptr.3d 295, 444 P.3d 97].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 872–892
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
82
301. Third-Party Beneficiary
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].)
• “[A] review of this court’s third party beneficiary decisions reveals that our court
has carefully examined the express provisions of the contract at issue, as well as
all of the relevant circumstances under which the contract was agreed to, in
order to determine not only (1) whether the third party would in fact benefit
from the contract, but also (2) whether a motivating purpose of the contracting
parties was to provide a benefit to the third party, and (3) whether permitting a
third party to bring its own breach of contract action against a contracting party
is consistent with the objectives of the contract and the reasonable expectations
of the contracting parties. All three elements must be satisfied to permit the third
party action to go forward.” (Goonewardene, supra, 6 Cal.5th at pp. 829–830.)
• “Because of the ambiguous and potentially confusing nature of the term ‘intent’,
this opinion uses the term ‘motivating purpose’ in its iteration of this element to
clarify that the contracting parties must have a motivating purpose to benefit the
third party, and not simply knowledge that a benefit to the third party may
follow from the contract.” (Goonewardene, supra, 6 Cal.5th at p. 830, internal
citation omitted.)
• “[The third] element calls for a judgment regarding the potential effect that
permitting third party enforcement would have on the parties’ contracting goals,
rather than a determination whether the parties actually anticipated third party
enforcement at the time the contract was entered into.” (Goonewardene, supra, 6
Cal.5th at p. 831.)
• “Section 1559 of the Civil Code, which provides for enforcement by a third
person of a contract made ‘expressly’ for his benefit, does not preclude this
result. The effect of the section is to exclude enforcement by persons who are
only incidentally or remotely benefited.” (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 it
was entered. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26
Cal.App.4th 1717, 1725 [33 Cal.Rptr.2d 291].)
• “[A] third party’s rights under the third party beneficiary doctrine may arise
under an oral as well as a written contract . . . .” (Goonewardene, supra, 6
Cal.5th at p. 833.)
• “In place of former section 133, the Second Restatement inserted section 302:
‘(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
[para. ] (a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or [para. ] (b) the circumstances
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CONTRACTS CACI No. 301
indicate that the promisee intends to give the beneficiary the benefit of the
promised performance. [para. ] (2) An incidental beneficiary is a beneficiary who
is not an intended beneficiary.’ ” (Outdoor Servs. v. Pabagold (1986) 185
Cal.App.3d 676, 684 [230 Cal.Rptr. 73].)
• “[T]he burden is upon [plaintiff] to prove that the performance he seeks was
actually promised. This is largely a question of interpretation of the written
contract.” (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 436 [204
Cal.Rptr. 435, 682 P.2d 1100].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 705–726
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
85
302. Contract Formation—Essential Factual Elements
New September 2003; Revised October 2004, June 2011, June 2014
Directions for Use
This instruction should only be given if the existence of a contract is contested. At
other times, the parties may be contesting only a limited number of contract
formation issues. Also, some of these issues may be decided by the judge as a
matter of law. Read the bracketed paragraph only if element 3 is read.
The elements regarding legal capacity and legal purpose are omitted from this
instruction because these issues are not likely to be before the jury. If legal capacity
or legal purpose is factually disputed then this instruction should be amended to add
that issue as an element. Regarding legal capacity, the element could be stated as
follows: “That the parties were legally capable of entering into a contract.”
Regarding legal purpose, the element could be stated as follows: “That the contract
had a legal purpose.”
The final element of this instruction would be given before instructions on offer and
acceptance. If neither offer nor acceptance is contested, then this element of the
instruction will not need to be given to the jury.
Sources and Authority
• Essential Elements of Contract. Civil Code section 1550.
• Who May Contract. Civil Code section 1556.
• Consent. Civil Code section 1565.
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CONTRACTS CACI No. 302
88
303. Breach of Contract—Essential Factual Elements
New September 2003; Revised April 2004, June 2006, December 2010, June 2011,
June 2013, June 2015, December 2016, May 2020
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
89
CACI No. 303 CONTRACTS
1131, 1147 [180 Cal.Rptr.3d 683].) Element 2 involves the first kind of condition
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 the plaintiff was
excused from having to perform some or all of the contractual conditions.
Not every breach of contract by the plaintiff will relieve the defendant of the
obligation to perform. The breach must be material; element 2 captures materiality
by requiring that the plaintiff have done the significant things that the contract
required. Also, the two obligations must be dependent, meaning that the parties
specifically bargained that the failure to perform the one relieves the obligation to
perform the other. While materiality is generally a question of fact, whether
covenants are dependent or independent is a matter of construing the agreement.
(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 [120 Cal.Rptr.3d 893].) If
there is no extrinsic evidence in aid of construction, the question is one of law for
the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 [284 P.2d 94].)
Therefore, element 2 should not be given unless the court has determined that
dependent obligations are involved. If parol evidence is required and a dispute of
facts is presented, additional instructions on the disputed facts will be necessary.
(See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395 [75 Cal.Rptr.3d 333, 181 P.3d 142].)
Element 3 involves the second kind of condition precedent; an uncertain event that
must happen before contractual duties are triggered. Include the second option if the
plaintiff alleges that the defendant agreed to perform even though a condition did
not occur. For reasons that the occurrence of a condition may have been excused,
see the Restatement Second of Contracts, section 225, Comment b. See also CACI
No. 321, Existence of Condition Precedent Disputed, CACI No. 322, Occurrence of
Agreed Condition Precedent, and CACI No. 323, Waiver of Condition Precedent.
Element 6 states the test for causation in a breach of contract action: whether the
breach was a substantial factor in causing the damages. (US Ecology, Inc. v. State of
California (2005) 129 Cal.App.4th 887, 909 [28 Cal.Rptr.3d 894].) In the context of
breach of contract, it has been said that the term “substantial factor” has no precise
definition, but is something that is more than a slight, trivial, negligible, or
theoretical factor in producing a particular result. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 871–872 [63 Cal.Rptr.3d 514]; see
CACI No. 430, Causation—Substantial Factor, applicable to negligence actions.)
Equitable remedies are also available for breach. “As a general proposition, ‘[t]he
jury trial is a matter of right in a civil action at law, but not in equity. [Citations.]’ ”
(C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23 Cal.3d 1, 8
[151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy (1979) 91
Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render advisory
verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn. (1974) 10
Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].)
Sources and Authority
• Contract Defined. Civil Code section 1549.
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CONTRACTS CACI No. 303
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 872
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)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.03–22.50
93
304. Oral or Written Contract Terms
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts § 117
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶ 8:3145 (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.83
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
95
305. Implied-in-Fact Contract
97
306. Unformalized Agreement
[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.
99
307. Contract Formation—Offer
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 (11th ed. 2017) Contracts, §§ 116, 117,
125–137
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.210 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.18–13.24
101
308. Contract Formation—Revocation of Offer
103
309. Contract Formation—Acceptance
question of fact. Further, based on the general rule that manifested mutual assent
rather than actual mental assent is the essential element in the formation of
contracts, the test of the true meaning of an acceptance or rejection is not what
the party making it thought it meant or intended it to mean. Rather, the test is
what a reasonable person in the position of the parties would have thought it
meant.” (Guzman, supra, 71 Cal.App.4th at pp. 1376–1377.)
• “Acceptance of an offer, which may be manifested by conduct as well as by
words, must be expressed or communicated by the offeree to the offeror.”
(Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)
• “The Restatement Second of Contracts, section 60 provides, ‘If an offer
prescribes the place, time or manner of acceptance its terms in this respect must
be complied with in order to create a contract. If an offer merely suggests a
permitted place, time or manner of acceptance, another method of acceptance is
not precluded.’ Comment a to Restatement 2d, section 60 provides, ‘a.
Interpretation of offer. If the offeror prescribes the only way in which his offer
may be accepted, an acceptance in any other way is a counter-offer. But
frequently in regard to the details of methods of acceptance, the offeror’s
language, if fairly interpreted, amounts merely to a statement of a satisfactory
method of acceptance, without positive requirement that this method shall be
followed.’ [¶] Similarly, Restatement 2d, section 30 provides in relevant part,
‘Unless otherwise indicated by the language or the circumstances, an offer
invites acceptance in any manner and by any medium reasonable in the
circumstances.’ Comment b to Restatement 2d section 30 states: ‘Invited form.
Insistence on a particular form of acceptance is unusual. Offers often make no
express reference to the form of acceptance; sometimes ambiguous language is
used. Language referring to a particular mode of acceptance is often intended
and understood as suggestion rather than limitation; the suggested mode is then
authorized, but other modes are not precluded. In other cases language which in
terms refers to the mode of acceptance is intended and understood as referring to
some more important aspect of the transaction, such as the time limit for
acceptance.’ ” (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232
Cal.App.4th 294, 311–312 [181 Cal.Rptr.3d 399], original italics, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 180–192
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.25–13.31
105
310. Contract Formation—Acceptance by Silence
106
311. Contract Formation—Rejection of Offer
108
312. Substantial Performance
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [name of plaintiff] was required to do under the
contract, and therefore [name of defendant] did not have to perform [his/
her/nonbinary pronoun/its] obligations under the contract. To overcome
this contention, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] made a good faith effort to comply with
the contract; and
2. That [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial or unimportant that they could have been easily fixed or
paid for.
110
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.]
112
314. Interpretation—Disputed Words
115
315. Interpretation—Meaning of Ordinary Words
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.
116
316. Interpretation—Meaning of Technical Words
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.
117
317. Interpretation—Construction of Contract as a Whole
119
318. Interpretation—Construction by Conduct
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.
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 772
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.51
121
319. Interpretation—Reasonable Time
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.
122
320. Interpretation—Construction Against Drafter
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].
124
321. Existence of Condition Precedent Disputed
126
322. Occurrence of Agreed Condition Precedent
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/
nonbinary pronoun/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].
action for breach of contract.’ ” (Stephens & Stephens XII, LLC, supra, 231
Cal.App.4th at p. 1147.)
• “[W]here defendant’s duty to perform under the contract is conditioned on the
happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
• “When a contract establishes the satisfaction of one of the parties as a condition
precedent, two tests are recognized: (1) The party is bound to make his decision
according to the judicially discerned, objective standard of a reasonable person;
(2) the party may make a subjective decision regardless of reasonableness,
controlled only by the need for good faith. Which test applies in a given
transaction is a matter of actual or judicially inferred intent. Absent an explicit
contractual direction or one implied from the subject matter, the law prefers the
objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43
Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 799–814
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44,
140.101 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.19, 22.66
128
323. Waiver of Condition Precedent
130
324. Anticipatory Breach
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)
1 Cal.App.4th 613, 625 [2 Cal.Rptr.2d 288], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 886–893
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.54,
140.105 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.23 (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.15, 77.361
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.23
132
325. Breach of Implied Covenant of Good Faith and Fair
Dealing—Essential Factual Elements
New April 2004; Revised June 2011, December 2012, June 2014, November 2019,
May 2020
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.
Include element 2 if the plaintiff’s substantial performance of contract requirements
is at issue. Include element 3 if the contract contains conditions precedent that must
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CACI No. 325 CONTRACTS
occur before the defendant is required to perform. For discussion of element 3, see
the Directions for Use to CACI No. 303.
In element 4, insert an explanation of the defendant’s conduct that violated the duty
to act in good faith.
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 6 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 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.3d 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.
Sources and Authority
• “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
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CONTRACTS CACI No. 325
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 cannot be read to require
defendants to take a particular action that is discretionary under the contract
when the contract also expressly grants them the discretion to take a different
action. To apply the covenant to require a party to take one of two alternative
actions expressly allowed by the contract and forgo the other would contravene
the rule that the implied covenant of good faith and fair dealing may not be
‘read to prohibit a party from doing that which is expressly permitted by an
agreement.’ ” (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230,
256 [244 Cal.Rptr.3d 797], original italics.)
• “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 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, internal
citations omitted.)
• “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].)
• “ ‘It is universally recognized the scope of conduct prohibited by the covenant of
good faith is circumscribed by the purposes and express terms of the contract.’
Violation of an express provision is not, however, required. ‘Nor is it necessary
that the party’s conduct be dishonest. Dishonesty presupposes subjective
immorality; the covenant of good faith can be breached for objectively
unreasonable conduct, regardless of the actor’s motive.’ ‘A party violates the
covenant if it subjectively lacks belief in the validity of its act or if its conduct
is objectively unreasonable. [Citations.] In the case of a discretionary power, it
has been suggested the covenant requires the party holding such power to
135
CACI No. 325 CONTRACTS
exercise it “for any purpose within the reasonable contemplation of the parties at
the time of formation—to capture opportunities that were preserved upon
entering the contract, interpreted objectively.” ’ [¶] ‘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.” ’ ” (Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280,
291–292 [251 Cal.Rptr.3d 779], internal citations omitted.)
• “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 (11th ed. 2017) Contracts, §§ 822, 824–826
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.12, 140.50
et seq. (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 23, Suing or
Defending Action for Breach of Duty of Good Faith and Fair Dealing, 23.05
136
326. Assignment Contested
• “An assignor may not maintain an action upon a claim after making an absolute
assignment of it to another; his right to demand performance is extinguished, the
assignee acquiring such right. To ‘assign’ ordinarily means to transfer title or
ownership of property, but an assignment, to be effective, must include
manifestation to another person by the owner of his intention to transfer the
right, without further action, to such other person or to a third person. It is the
substance and not the form of a transaction which determines whether an
assignment was intended. If from the entire transaction and the conduct of the
parties it clearly appears that the intent of the parties was to pass title to the
chose in action, then an assignment will be held to have taken place.” (McCown
v. Spencer (1970) 8 Cal.App.3d 216, 225 [87 Cal.Rptr. 213], internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 727–739
6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20 (Matthew
Bender)
27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations, § 76.201
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
138
327. Assignment Not Contested
[Name of plaintiff] was not a party to the original contract. However, [he/
she/nonbinary pronoun/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.”
139
328. Breach of Implied Duty to Perform With Reasonable
Care—Essential Factual Elements
This instruction may be adapted for use as an affirmative defense if the defendant
asserts that the plaintiff is not entitled to recover on the contract because of the
plaintiff’s failure to perform its duties competently. (See Roscoe Moss Co. v. Jenkins
(1942) 55 Cal.App.2d 369, 376–378 [130 P.2d 477].)
For discussion of issues with the options for elements 2 and 3, see the Directions
for Use to CACI No. 303, Breach of Contract—Essential Factual Elements.
Sources and Authority
• “[E]xpress contractual terms give rise to implied duties, violations of which may
themselves constitute breaches of contract. ‘ “Accompanying every contract is a
common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any
of these conditions is a tort, as well as a breach of the contract.” The rule which
imposes this duty is of universal application as to all persons who by contract
undertake professional or other business engagements requiring the exercise of
care, skill and knowledge; the obligation is implied by law and need not be
stated in the agreement [citation].’ ” (Holguin, supra, 229 Cal.App.4th at p.
1324.)
• “A contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69
Cal.Rptr.2d 466].)
• “[T]he statement in the written contract that it contains the entire agreement of
the parties cannot furnish the appellants an avenue of escape from the entirely
reasonable obligation implied in all contracts to the effect that the work
performed ‘shall be fit and proper for its said intended use,’ as stated by the trial
court.” (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 822, 824
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.12
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Crompton et al., Matthew Bender Practice Guide: California Contract Litigation,
Ch. 21, Asserting a Particular Construction of Contract, 21.79
329. Reserved for Future Use
141
330. Affirmative Defense—Unilateral Mistake of Fact
duty.’ Ordinary 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 (1985) 164 Cal.App.3d 1001, 1007–1008 [211 Cal.Rptr. 45], internal
citations omitted.)
• 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
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 257–276
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)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.24
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 16, Attacking
or Defending Existence of Contract—Mistake, 16.08[2], 16.13–16.16, 16.18
143
331. Affirmative Defense—Bilateral Mistake
Nat’l Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496 [36 Cal.Rptr. 806],
internal citations omitted.)
• “[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
Cal.App.4th 1230, 1243 [160 Cal.Rptr.3d 718], internal citation omitted.)
• “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
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 257–276
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.50–215.57, 215.140 (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)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.24
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 16, Attacking
or Defending Existence of Contract—Mistake, 16.08[1], 16.09, 16.11, 16.18
145
332. Affirmative Defense—Duress
consent: “[A]n action for duress and menace cannot be sustained when the
voluntary action of the apprehensive party is induced by his speculation upon or
anticipation of a future event suggested to him by the defendant but not
threatened to induce his conduct. The issue in each instance is whether the
defendant intentionally exerted an unlawful pressure on the injured party to
deprive him of contractual volition and induce him to act to his own detriment.”
(Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
• It is wrongful to use the threat of criminal prosecution to obtain a consent:
“California law is clear that an agreement obtained by threat of criminal
prosecution constitutes menace and is unenforceable as against public policy.”
(Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15
Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate civil
action is not considered wrongful: “[T]he action or threat in duress or menace
must be unlawful, and a threat to take legal action is not unlawful unless the
party making the threat knows the falsity of his claim.” (Odorizzi v. Bloomfield
School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Standard duress is evaluated under a subjective standard: “The question in each
case [is], Was the person so acted upon by threats of the person claiming the
benefit of the contract, for the purpose of obtaining such contract, as to be bereft
of the quality of mind essential to the making of a contract, and was the contract
thereby obtained? Hence, under this theory duress is to be tested, not by the
nature of the threats, but rather by the state of mind induced thereby in the
victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129
Cal.Rptr. 566].)
• The wrongful acts of a third party may constitute duress sufficient to allow
rescission of a contract with a party, who, although not participating in those
wrongful acts, had knowledge of the innocent party’s position. (Leeper v.
Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)
• “[Defendant has] the burden of proving by a preponderance of the evidence the
affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito
(1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson
(1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 310–316
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
147
CACI No. 332 CONTRACTS
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]
148
333. Affirmative Defense—Economic Duress
New September 2003; Revised December 2005, June 2011, December 2011, May
2020
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.
(See Restatement 2d of Contracts, § 176, When a Threat is Improper.) The conduct
must be something more than the breach or threatened breach of the contract itself.
An act for which a party has an adequate legal remedy is not duress. (River Bank
America v. Diller (1995) 38 Cal.App.4th 1400, 1425 [45 Cal.Rptr.2d 790].)
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
149
CACI No. 333 CONTRACTS
• “The doctrine of ‘economic duress’ can apply when one party has done a
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
150
CONTRACTS CACI No. 333
151
334. Affirmative Defense—Undue Influence
“It is, of course, well settled that while the mere fact that a relationship is
friendly and intimate does not necessarily amount to a confidential relationship,
such relationship may be said to exist whenever trust and confidence is reposed
by one person in the integrity and fidelity of another. It is likewise frequently
emphasized that the existence of a confidential relationship presents a question
of fact which, of necessity, may be determined only on a case by case basis.”
(O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 153 [119 Cal.Rptr. 245], internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 317–322
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.40–215.42, 215.130–215.132 (Matthew
Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.70 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.352 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.25–17.28
153
335. Affirmative Defense—Fraud
155
336. Affirmative Defense—Waiver
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 (11th ed. 2017) Contracts, §§ 881, 882
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
157
337. Affirmative Defense—Novation
asserting it. (Alexander v. Angel (1951) 37 Cal.2d 856, 860 [236 P.2d 561].)
• “When there is conflicting evidence the question whether the parties to an
agreement entered into a modification or a novation is a question of fact.”
(Howard v. County of Amador (1990) 220 Cal.App.3d 962, 980 [269 Cal.Rptr.
807].)
• “The ‘question whether a novation has taken place is always one of intention,’
with the controlling factor being the intent of the obligee to effect a release of
the original obligor on his obligation under the original agreement.” (Alexander,
supra, 37 Cal.2d at p. 860, internal citations omitted.)
• “[I]n order for there to be a valid novation, it is necessary that the parties intend
that the rights and obligations of the new contract be substituted for the terms
and conditions of the old contract.” (Wade v. Diamond A Cattle Co. (1975) 44
Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
• “While the evidence in support of a novation must be ‘clear and convincing,’ the
‘whole question is one of fact and depends upon all the facts and circumstances
of the particular case,’ with the weight and sufficiency of the proof being matters
for the determination of the trier of the facts under the general rules applicable
to civil actions.” (Alexander, supra, 37 Cal.2d at pp. 860–861, internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 992–994
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.141
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.450–50.464 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
77.280–77.282 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58[3]
159
338. Affirmative Defense—Statute of Limitations
Cal.Rptr.2d 680].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 345
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
339–349. Reserved for Future Use
161
350. Introduction to Contract Damages
• “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. 40], internal citations omitted.)
• “[D]amages may not exceed the benefit which it would have received had the
promisor performed.” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 468,
internal citations omitted.)
• “ ‘The rules of law governing the recovery of damages for breach of contract are
very flexible. Their application in the infinite number of situations that arise is
beyond question variable and uncertain. Even more than in the case of other
rules of law, they must be regarded merely as guides to the court, leaving much
to the individual feeling of the court created by the special circumstances of the
particular case.’ ” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 455, internal
citation omitted.)
• “Contractual damages are of two types—general damages (sometimes called
direct damages) and special damages (sometimes called consequential
damages).” (Lewis Jorge Construction Management, Inc. v. Pomona Unified
School Dist. (2004) 34 Cal.4th 960, 968 [22 Cal.Rptr.3d 340, 102 P.3d 257].)
• “General damages are often characterized as those that flow directly and
necessarily from a breach of contract, or that are a natural result of a breach.
Because general damages are a natural and necessary consequence of a contract
breach, they are often said to be within the contemplation of the parties,
meaning that because their occurrence is sufficiently predictable the parties at the
time of contracting are ‘deemed’ to have contemplated them.” (Lewis Jorge
Construction Management, Inc., supra, 34 Cal.4th at p. 968, internal citations
omitted.)
• “ ‘Contract damages are generally limited to those within the contemplation of
the parties when the contract was entered into or at least reasonably foreseeable
by them at that time; consequential damages beyond the expectation of the
parties are not recoverable. This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to
estimate in advance the financial risks of their enterprise.’ ‘In contrast, tort
damages are awarded to [fully] compensate the victim for [all] injury suffered.’ ”
(Erlich v. Menezes (1999) 21 Cal.4th 543, 550 [87 Cal.Rptr.2d 886, 981 P.2d
978], internal citations omitted.)
• “[I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract.’ ” (Resort
Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1697 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “The detriment that is ‘likely to result therefrom’ is that which is foreseeable to
the breaching party at the time the contract is entered into.” (Wallis v. Farmers
Group, Inc. (1990) 220 Cal.App.3d 718, 737 [269 Cal.Rptr. 299], internal
citation omitted.)
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CACI No. 350 CONTRACTS
• “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 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],
internal citation omitted.)
• “[T]he principle that attorney fees qua damages are recoverable as damages, and
not as costs of suit, applies equally to breach of contract.” (Copenbarger, supra,
29 Cal.App.5th at p. 10, original italics.)
• “Numerous other cases decided both before and after Brandt have likewise
recognized that ‘[a]lthough fee issues are usually addressed to the trial court in
the form of a posttrial motion, fees as damages are pleaded and proved by the
party claiming them and are decided by the jury unless the parties stipulate to a
posttrial procedure.’ ” (Monster, LLC v. Superior Court (2017) 12 Cal.App.5th
1214, 1229 [219 Cal.Rptr.3d 814].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 894–903
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,
164
CONTRACTS CACI No. 350
165
351. Special Damages
• “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
978], internal citations omitted.)
• “ ‘[F]oreseeability is to be determined as of the time of the making of the
contract’; ‘what must be foreseeable is only that the loss would result if the
breach occurred’; ‘it is foreseeability only by the party in breach that is
determinative’; ‘foreseeability has an objective character’; and ‘the loss need
only have been foreseeable as a probable, as opposed to a necessary or certain,
result of the breach.’ ” (Ash, supra, 223 Cal.App.4th at p. 1270.)
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CACI No. 351 CONTRACTS
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 896
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.13
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.61 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[6], 7.08[3]
168
352. Loss of Profits—No Profits Earned
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/nonbinary pronoun/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.
171
353. Loss of Profits—Some Profits Earned
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/nonbinary pronoun/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/nonbinary pronoun/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/nonbinary pronoun/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/nonbinary pronoun/
its] estimated total profit, which you determined in the first step.
The resulting amount is [name of plaintiff]’s lost profit.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773−774 [149
Cal.Rptr.3d 614, 288 P.3d 1237].)
• “Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. This is especially true where, as
here, it is the wrongful acts of the defendant that have created the difficulty in
proving the amount of loss of profits or where it is the wrongful acts of the
defendant that have caused the other party to not realize a profit to which that
party is entitled.” (GHK Associates v. Mayer Group (1990) 224 Cal.App.3d 856,
873–874 [274 Cal.Rptr. 168], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may be
recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 774].)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “Unestablished businesses have been permitted to claim lost profit damages in
situations where owners have experience in the business they are seeking to
establish, and where the business is in an established market.” (Resort Video,
Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698–1699 [42 Cal.Rptr.2d
136], internal citations omitted.)
• “Even if [plaintiff] was able to provide credible evidence of lost profits, it must
be remembered that ‘[w]hen loss of anticipated profits is an element of damages,
it means net and not gross profits.’ Net profits are the gains made from sales
‘after deducting the value of the labor, materials, rents, and all expenses,
together with the interest of the capital employed.’ ” (Resort Video, Ltd., supra,
173
CACI No. 353 CONTRACTS
174
354. Owner’s/Lessee’s Damages for Breach of Contract to
Construct Improvements on Real Property
176
355. Obligation to Pay Money Only
177
356. Buyer’s Damages for Breach of Contract for Sale of Real
Property (Civ. Code, § 3306)
bargain damages’ measured by the difference between the contract price and the
fair market value on the date of the breach.” (Reese v. Wong (2001) 93
Cal.App.4th 51, 56 [112 Cal.Rptr.2d 669], internal citation omitted.)
• “It is settled that when a seller of real property fails or refuses to convey, a
buyer who has made advance payments toward the purchase price may recover
interest on those payments as damages for breach of contract. This rule is not
limited to sales of real property; it applies to sales in general.” (Al-Husry v.
Nilsen Farms Mini-Market, Inc. (1994) 25 Cal.App.4th 641, 648 [31 Cal.Rptr.2d
28], internal citations omitted.)
• Section 3306 does not ordinarily apply to breach of an unexercised option to buy
property. (Schmidt v. Beckelman (1960) 187 Cal.App.2d 462, 470–471 [9
Cal.Rptr. 736].)
• “ ‘Generally, [consequential] damages are those which, in view of all facts
known by the parties at the time of the making of the contract, may reasonably
be supposed to have been considered as a likely consequence of a breach in the
ordinary course of events. This provision would conform the measure of
damages in real property conveyance breaches to the general contract measure of
damages which is specified in Civil Code 3300: “. . . all the detriment
proximately caused (by the breach), or which, in the ordinary course of things,
would be likely to result therefrom.” ’ ” (Stevens Group Fund IV v. Sobrato
Development Co. (1991) 1 Cal.App.4th 886, 892 [2 Cal.Rptr.2d 460], quoting the
Assembly Committee on Judiciary.)
• “Moreover, in none of the foregoing cases does it appear that the buyer
demonstrated the existence of the other requisites for an award of consequential
or special damages, i.e., that the seller knew of the buyer’s purpose in
purchasing the property and that the anticipated profits were proved with
reasonable certainty as to their occurrence and amount.” (Greenwich S.F., LLC,
supra, 190 Cal.App.4th at p. 757.)
• “The plain language of section 3306, adding consequential damages to the
general damages and other specified damages recoverable for breach of a
contract to convey real property, the legislative history of the 1983 amendment
acknowledging that the addition of consequential damages would conform the
measure of damages to the general contract measure of damages, and the
generally accepted inclusion of lost profits as a component of consequential or
special damages in other breach of contract contexts and by other states in the
context of breach of contracts to convey real property, taken together, persuade
us that lost profits may be awarded as part of consequential damages under
section 3306 upon a proper showing.” (Greenwich S.F., LLC, supra, 190
Cal.App.4th at p. 758, internal citations omitted.)
• “Rents received from the lease of the property in this case are not properly an
item of consequential damages. Here, plaintiff introduced evidence as to the fair
market value of the property which included these profits. To allow these as
consequential damages under these circumstances would have permitted a double
179
CACI No. 356 CONTRACTS
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
Cal.App.5th 984, 1011 [207 Cal.Rptr.3d 82].)
• “We think the phrase ‘and interest’ should continue to be read as referring to the
generally applicable provisions of [Civil Code] section 3287 regarding
prejudgment interest. As amended in 1967, subdivision (a) of section 3287
establishes a right to recover prejudgment interest on damages ‘capable of being
made certain by calculation’ and subdivision (b) gives the court general
discretionary authority to award prejudgment interest where damages are ‘based
upon a cause of action in contract . . ..’ The discretionary authority conferred by
subdivision (b) will ordinarily apply to loss-of-bargain damages measured by the
contract price/market value differential.” (Rifkin v. Achermann (1996) 43
Cal.App.4th 391, 397 [50 Cal.Rptr.2d 661].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 926–928
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.) Breach
of Seller-Buyer Agreements, §§ 4.11–4.14
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
11-D, Buyer’s Remedies Upon Seller’s Breach—Damages And Specific Performance,
¶ 11:184 (The Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
180
357. Seller’s Damages for Breach of Contract to Purchase Real
Property
R & R Land Co. (1986) 179 Cal.App.3d 1101, 1107 [225 Cal.Rptr. 285], internal
citation omitted.)
• “[I]f the property increases in value before trial and the vendor resells the
property at a price higher than the value of the contract, there are no longer any
loss of bargain damages.” (Spurgeon v. Drumheller (1985) 174 Cal.App.3d 659,
664 [220 Cal.Rptr. 195].)
• “The same rule of no loss of bargain damages to the vendor applies where the
resale is for the same price as the contract price.” (Spurgeon, supra, 174
Cal.App.3d at p. 664, internal citations omitted.)
• “For the reason that no loss of bargain damages are available to a seller if there
is a resale at the same or a higher price than the contract price, the law imposes
on the seller of the property the duty to exercise diligence and to make a resale
within the shortest time possible. In discussing the duty to mitigate where the
vendee seeks return of a deposit, the Sutter court states the requirement that
resales be made with reasonable diligence ‘states a policy applicable to resales
of real property. Whether the resale is made one, two or three months later, or
whether it be a year or more, it should be made with reasonable diligence to
qualify the vendor to an allowance of an off-set against the vendee’s claim for
restitution of money paid.’ ” (Spurgeon, supra, 174 Cal.App.3d at p. 665,
internal citations omitted.)
• “Although it is well settled in the foregoing authorities that damages under Civil
Code section 3307 for the difference between the contract price and property
value may be insufficient to give the vendor the benefit of his bargain and he is
entitled also to resale expenses and some costs of continued ownership, he
should not be permitted to receive a windfall at the purchaser’s expense.” (Smith
v. Mady (1983) 146 Cal.App.3d 129, 133 [194 Cal.Rptr. 42].)
• “Inasmuch as under Abrams and Sutter the vendor has an obligation to resell
promptly in order to obtain consequential damages and the resale price may fix
the property value as a basis for Civil Code section 3307 damages, we are
impelled to conclude that there is no inherent separateness in the original sale
and subsequent resale transactions. The increased resale price should not be
disregarded in considering an offset to consequential damages awarded to a
vendor against a defaulting purchaser of real property.” (Smith, supra, 146
Cal.App.3d at p. 133.)
• “The owner of real or personal property may competently testify to its value.”
(Newhart, supra, 254 Cal.App.2d at p. 789, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 929–934
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, Ch. 11-C, ¶¶ 11:101–11:110,
Seller’s Remedies Upon Buyer’s Breach-Damages and Specific Performance (The
182
CONTRACTS CACI No. 357
Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
183
358. Mitigation of Damages
However, the injured party is not precluded from recovery to the extent that he
has made reasonable but unsuccessful efforts to avoid loss.” (Brandon & Tibbs v.
George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460 [277
Cal.Rptr. 40], internal citations omitted.)
• “The burden of proving that losses could have been avoided by reasonable effort
and expense must always be borne by the party who has broken the contract.
Inasmuch as the law denies recovery for losses that can be avoided by
reasonable effort and expense, justice requires that the risks incident to such
effort should be carried by the party whose wrongful conduct makes them
necessary. Therefore, special losses that a party incurs in a reasonable effort to
avoid losses resulting from a breach are recoverable as damages.” (Brandon &
Tibbs, supra, 226 Cal.App.3d at pp. 460–461, internal citations omitted.)
Secondary Sources
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.56
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.77
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
185
359. Present Cash Value of Future Damages
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/nonbinary pronoun/its] future damages.
[You may consider expert testimony in determining the present cash
value of future damages.] [You must use [the interest rate of
percent/ [and] [specify other stipulated information]] agreed to by the
parties in determining the present cash value of future damages.]
• “If the breach is partial only, the injured party may recover damages for non-
performance only to the time of trial and may not recover damages for
anticipated future non-performance. Furthermore, even if a breach is total, the
injured party may treat it as partial, unless the wrongdoer has repudiated the
contract. The circumstances of each case determine whether an injured party
may treat a breach of contract as total.” (Coughlin, supra, 41 Cal.2d at pp.
598–599, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1719
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.09[3]
187
360. Nominal Damages
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/nonbinary pronoun/it] nominal damages such as one dollar.
188
361. Reliance Damages
• “[I]n the context of reliance damages, the plaintiff bears the burden to establish
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, internal
citation omitted.)
• “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 (11th ed. 2017) Contracts, § 894 et seq.
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.21 et seq.
(Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.15
362–369. Reserved for Future Use
190
370. Common Count: Money Had and Received
not used for the plaintiff’s benefit, and that the defendant has not given the
money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th
1439, 1454 [151 Cal.Rptr.3d 804], internal citations omitted.)
• “ ‘The action for money had and received is based upon an implied promise
which the law creates to restore money which the defendant in equity and good
conscience should not retain. The law implies the promise from the receipt of
the money to prevent unjust enrichment. The measure of the liability is the
amount received.’ Recovery is denied in such cases unless the defendant himself
has actually received the money.” (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95
P.2d 927], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief is
something in the nature of a constructive trust and . . . ‘one cannot be held to
be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘This kind of action to recover back money which ought not in justice to be
kept is very beneficial, and, therefore, much encouraged. It lies for money paid
by mistake, or upon a consideration which happens to fail, or extortion, or
oppression, or an undue advantage of the plaintiff’s situation contrary to the laws
made for the protection of persons under those circumstances.’ ” (Minor v.
Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
192
CONTRACTS CACI No. 370
193
371. Common Count: Goods and Services Rendered
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.)
• “To recover on a claim for the reasonable value of services under a quantum
meruit theory, a plaintiff must establish both that he or she was acting pursuant
to either an express or implied request for services from the defendant and that
the services rendered were intended to and did benefit the defendant.” (Ochs v.
PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d 734],
internal citation omitted.)
• “[W]here services have been rendered under a contract which is unenforceable
because not in writing, an action generally will lie upon a common count for
quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76
Cal.App.4th 990, 996 [90 Cal.Rptr.2d 665].)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned. . . . The plaintiff’s right to recover is governed by
principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
195
CACI No. 371 CONTRACTS
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 554
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, §§ 121.25,
121.55–121.58 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, §§ 44.33, 44.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
196
372. Common Count: Open Book Account
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 a book
account.” (Joslin, supra, 155 Cal.App.2d at pp. 65–66, internal citations
omitted.)
• “A book account may furnish the basis for an action on a common count ‘ “. . .
when it contains a statement of the debits and credits of the transactions
involved completely enough to supply evidence from which it can be reasonably
determined what amount is due to the claimant.” ’ A book account is described
as ‘open’ when the debtor has made some payment on the account, leaving a
balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co.
(1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and
footnote omitted.)
• “A book account is a detailed statement of debit/credit transactions kept by a
creditor in the regular course of business, and in a reasonably permanent manner.
In one sense, an open-book account is an account with one or more items
unsettled. However, even if an account is technically settled, the parties may still
have an open-book account, if they anticipate possible future transactions
between them.” (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579, fn. 5 [53
Cal.Rptr.3d 887, 150 P.3d 764], original italics, internal citation 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
198
CONTRACTS CACI No. 372
200
373. Common Count: Account Stated
defendant ‘will not be heard to answer when action is brought upon the account
stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103
Cal.App.3d at p. 787, internal citations omitted.)
• “An account stated need not cover all the dealings or claims between the parties.
There may be a partial settlement and account stated as to some of the
transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 1003, 1004
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
203
374. Common Count: Mistaken Receipt
A person who has paid money to another because of a mistake of fact and who
does not obtain what he expected in return is entitled to restitution from the
other if the mistake was induced:
(a) by the fraud of the payee, or
(b) by his innocent and material misrepresentation, or
(c) by the fraud or material misrepresentation of a person purporting
to act as the payee’s agent, or
(d) by the fraud or material misrepresentation of a third person,
provided that the payee has notice of the fraud or representation
before he has given or promised something of value.
• “Money paid upon a mistake of fact may be recovered under the common count
of money had and received. The plaintiff, however negligent he may have been,
may recover if his conduct has not altered the position of the defendant to his
detriment.” (Thresher v. Lopez (1921) 52 Cal.App. 219, 220 [198 P. 419],
internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned. . . . The plaintiff’s right to recover is governed by
principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
205
CACI No. 374 CONTRACTS
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, § 121.25
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
206
375. Restitution From Transferee Based on Quasi-Contract or
Unjust Enrichment
209
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.]
executed or adopted by a person with the intent to sign the electronic record. (Civ.
Code, § 1633.2(h); see Gov. Code, § 16.5(d) (digital signature).) The validity of an
electronic signature under this definition would most likely be a question of law for
the court. If there is an issue of fact with regard to the parties’ intent to use
electronic signatures, this instruction will need to be modified accordingly.
Sources and Authority
• “Electronic Record” Defined Under UETA. Civil Code section 1633.2(g).
• “Electronic Signature” Defined Under UETA. Civil Code section 1633.2(h).
• Agreement to Conduct Transaction by Electronic Means. Civil Code section
1633.5(b).
• Enforceability of Electronic Transactions. Civil Code section 1633.7.
• Providing Required Information by Electronic Means. Civil Code section
1633.8(a).
• Attributing Electronic Record or Signature to Person. Civil Code section 1633.9.
• “ ‘Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties’ conduct. . . . ‘The absence of an explicit agreement to conduct the
transaction by electronic means is not determinative; however, it is a relevant
factor to consider.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
Cal.App.4th 974, 989 [182 Cal.Rptr.3d 154].)
• “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform
Electronic Transactions Act, an electronic signature has the same legal effect as a
handwritten signature.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232
Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781], internal citations omitted.)
• “Civil Code section 1633.9 addresses how a proponent of an electronic signature
may authenticate the signature—that is, show the signature is, in fact, the
signature of the person the proponent claims it is.” (Ruiz, supra, 232 Cal.App.4th
at p. 843.)
• “We agree that a printed name or some other symbol might, under specific
circumstances, be a signature under UETA . . . .” (J.B.B. Investment Partners,
Ltd., supra, 232 Cal.App.4th at p. 988.)
• “The trial court’s analysis was incomplete. Attributing the name on an e-mail to
a particular person and determining that the printed name is ‘[t]he act of [this]
person’ is a necessary prerequisite but is insufficient, by itself, to establish that it
is an ‘electronic signature.’ . . . UETA defines the term ‘electronic signature.’
Subdivision (h) of section 1633.2 states that ‘ “[e]lectronic signature” means an
electronic sound, symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the intent to sign 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
211
CACI No. 380 CONTRACTS
212
VF-300. Breach of Contract
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, May
2020
Directions for Use
This verdict form is based on CACI No. 303, Breach of Contract—Essential Factual
214
CONTRACTS VF-300
Elements. This form is intended for use in most contract disputes. If more specificity
is desired, see verdict forms that follow.
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 the plaintiff
was excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 4 and 5 address conditions precedent, not the defendant’s
nonperformance after the conditions have all occurred or been excused. The
defendant’s nonperformance is the first option for question 6. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an additional
question on excuse or waiver should be included after question 6.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
215
VF-301. Breach of Contract—Affirmative Defense—Unilateral
Mistake of Fact
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.
217
VF-302. Breach of Contract—Affirmative Defense—Duress
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.
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.
219
VF-303. Breach of Contract—Contract Formation at Issue
[6. Yes No
[6. If your answer to question 6 is yes, [skip question 7 and] answer
question 8. If you answered no, [answer question 7 if excuse_or
waiver is at issue/stop here, answer no further questions, and
have the presiding juror sign and date this form.]
[7. Were the required conditions that did not occur
[excused/waived]?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
8. [Did [name of defendant] fail to do something that the contract
required [him/her/nonbinary pronoun/it] to do?
8. Yes No]
8. [or]
8. [Did [name of defendant] do something that the contract
prohibited [him/her/nonbinary pronoun/it] from doing?
8. Yes No]
8. If your answer to [either option for] question 8 is yes, then
answer question 9. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
9. Was [name of plaintiff] harmed by [name of defendant]’s breach of
contract?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What are [name of plaintiff]’s damages?
[a. Past [economic] loss [including] [insert descriptions of claimed
damages]:
[a. $ ]
[b. Future [economic] loss [including] [insert descriptions of
claimed damages]:]
[b. $ ]
[b. TOTAL $
221
VF-303 CONTRACTS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New October 2004; Revised December 2010, June 2015, May 2020
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.
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 4 and 5 address acts that the plaintiff must have performed
before the defendant’s duty to perform is triggered. Include question 4 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 5 if the plaintiff claims that the plaintiff
was excused from having to perform an otherwise required obligation.
Optional questions 6 and 7 address conditions precedent to the defendant’s
performance. Include question 6 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 7 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 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 the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 10.
If specificity is not required, users do not have to itemize all the damages listed in
222
CONTRACTS VF-303
223
VF-304. Breach of Implied Covenant of Good Faith and Fair
Dealing
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.
before the defendant’s duty to perform is triggered. Include question 2 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].) Note that questions 4 and 5 address
conditions precedent, not the defendant’s nonperformance after the conditions have
all occurred or been excused.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories. If counts for both breach of express
contractual terms and breach of the implied covenant are alleged, this verdict form
may be combined with CACI No. VF-300, Breach of Contract. Use VF-3920 to
direct the jury to separately address the damages awarded on each count and to
avoid the jury’s awarding the same damages on both counts. (See Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr. 387].)
VF-305–VF-399. Reserved for Future Use
226
NEGLIGENCE
229
400. Negligence—Essential Factual Elements
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.
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless clearly
supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112
[70 Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d
496].)
• “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission
Inn Corp. (2018) 24 Cal.App.5th 627, 643 [234 Cal.Rptr.3d 330].)
• “The element of causation requires there to be a connection between the
defendant’s breach and the plaintiff’s injury.” (Coyle, supra, 24 Cal.App.5th at p.
645.)
• “ ‘In most cases, courts have fixed no standard of care for tort liability more
230
NEGLIGENCE CACI No. 400
precise than that of a reasonably prudent person under like circumstances.’ This
is because ‘[e]ach case presents different conditions and situations. What would
be ordinary care in one case might be negligence in another.’ ” (Coyle, supra, 24
Cal.App.5th at pp. 639–640, internal citation omitted.)
• “ ‘ “[I]t is the further function of the court to determine and formulate the
standard of conduct to which the duty requires the defendant to conform.”
[Citation.] [¶] The formulation of the standard of care is a question of law for
the court. [Citations.] 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 the defendant’s conduct has conformed to the standard.
[Citations.]’ ” (Regents of University of California v. Superior Court (2018) 29
Cal.App.5th 890, 902–903 [240 Cal.Rptr.3d 675].)
• “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
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 analysis of foreseeability for purposes of assessing the existence or scope
of a duty is different, and more general, than it is for assessing whether any such
duty was breached or whether a breach caused a plaintiff’s injuries. ‘[I]n
analyzing duty, the court’s task “ ‘ “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.” ’ ” ‘The jury,
by contrast, considers “foreseeability” in two more focused, fact-specific settings.
First, 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. Second, foreseeability may be relevant to the jury’s determination
231
CACI No. 400 NEGLIGENCE
• “The issue here is whether [defendant]—separate from other legal and practical
reasons it had to prevent injury of any kind to the public—had a tort duty to
guard against negligently causing what we and others have called ‘purely
economic loss[es].’ We use that term as a shorthand for ‘pecuniary or
commercial loss that does not arise from actionable physical, emotional or
reputational injury to persons or physical injury to property.’ And although
[defendant] of course had a tort duty to guard against the latter kinds of injury,
we conclude it had no tort duty to guard against purely economic losses.”
(Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398 [247
Cal.Rptr.3d 632, 441 P.3d 881], internal citations omitted.)
• “[Defendant] relies on the rule that a person has no general duty to safeguard
another from harm or to rescue an injured person. But that rule has no
application where the person has caused another to be put in a position of peril
of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227
Cal.App.4th 879, 883 [174 Cal.Rptr.3d 339].)
• “A defendant may owe a duty to protect the plaintiff from third party conduct if
the defendant has a special relationship with either the plaintiff or the third
party.” (University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 440 [241 Cal.Rptr.3d 616].)
• “ ‘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.)
• “We agree that the same factors we discussed in Giraldo [v. Dept. of Corrections
& Rehabilitation (2008) 168 Cal.App.4th 231] apply to the relationship between
a law enforcement officer and arrestee: Once in custody, an arrestee is
vulnerable, dependent, subject to the control of the officer and unable to attend
to his or her own medical needs. Due to this special relationship, the officer
owes a duty of reasonable care to the arrestee.” (Frausto v. Dept. of California
Highway Patrol (2020) 53 Cal.App.5th 973, 993 [267 Cal.Rptr.3d 889].)
• “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.)
• “[P]ostsecondary schools do have a special relationship with students while they
are engaged in activities that are part of the school’s curriculum or closely
related to its delivery of educational services.” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 624–625 [230 Cal.Rptr.3d
415, 413 P.3d 656], original italics.)
233
CACI No. 400 NEGLIGENCE
234
401. Basic Standard of Care
235
CACI No. 401 NEGLIGENCE
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 998, 999
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01, 1.02,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
236
402. Standard of Care for Minors
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.121, 165.190
(Matthew Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors (Matthew Bender)
238
403. Standard of Care for Physically Disabled Person
239
404. Intoxication
240
405. Comparative Fault of Plaintiff
242
406. Apportionment of Responsibility
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 Cal.4th
243
CACI No. 406 NEGLIGENCE
593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the defendant
concedes some degree of liability.
If the plaintiff’s comparative fault is also at issue, give CACI No. 405, Comparative
Fault of Plaintiff, in addition to this instruction.
Include the last paragraph if any of the defendants or others alleged to have
contributed to the plaintiff’s harm is not an individual.
Sources and Authority
• Proposition 51. Civil Code section 1431.2.
• “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a proximate
cause of an indivisible injury remains liable for the total amount of damages,
diminished only ‘in proportion to the amount of negligence attributable to the
person recovering.’ ” (American Motorcycle Assn. v. Superior Court (1978) 20
Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “In light of Li, however, we think that the long-recognized common law
equitable indemnity doctrine should be modified to permit, in appropriate cases,
a right of partial indemnity, under which liability among multiple tortfeasors may
be apportioned on a comparative negligence basis. . . . Such a doctrine
conforms to Li’s objective of establishing ‘a system under which liability for
damage will be borne by those whose negligence caused it in direct proportion
to their respective fault.’ ” (American Motorcycle Assn., supra, 20 Cal.3d at p.
583.)
• “[W]e hold that section 1431.2, subdivision (a), does not authorize a reduction in
the liability of intentional tortfeasors for noneconomic damages based on the
extent to which the negligence of other actors—including the plaintiffs, any
codefendants, injured parties, and nonparties—contributed to the injuries in
question.” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 29 [267
Cal.Rptr.3d 203, 471 P.3d 329].)
• “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].)
• “ ‘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.’ More specifically, a defendant has ‘the burden to
establish concurrent or alternate causes by proving: that [the plaintiff] was
exposed to defective asbestos-containing products of other companies; that the
defective designs of the other companies’ products were legal causes of the
244
NEGLIGENCE CACI No. 406
plaintiffs’ injuries; and the percentage of legal cause attributable to the other
companies.’ ” (Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 332
[278 Cal.Rptr.3d 688], internal citations omitted.)
• “[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
Cal.App.4th 93, 100 fn. 5 [168 Cal.Rptr.3d 323], internal citation omitted.)
• “[U]nder Proposition 51, fault will be allocated to an entity that is immune from
paying for its tortious acts, but will not be allocated to an entity that is not a
tortfeasor, that is, one whose actions have been declared not to be tortious.”
(Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d
695], original italics.)
• “A defendant bears the burden of proving affirmative defenses and indemnity
cross-claims. Apportionment of noneconomic damages is a form of equitable
indemnity in which a defendant may reduce his or her damages by establishing
others are also at fault for the plaintiff’s injuries. Placing the burden on
defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly
onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d
336].)
• “[T]here must be substantial evidence that a nonparty is at fault before damages
can be apportioned to that nonparty.” (Scott v. C. R. Bard, Inc. (2014) 231
Cal.App.4th 763, 785 [180 Cal.Rptr.3d 479].)
• “When a defendant is liable only by reason of a derivative nondelegable duty
arising from his status as employer or landlord or vehicle owner or
coconspirator, or from his role in the chain of distribution of a single product in
a products liability action, his liability is secondary (vicarious) to that of the
actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v.
Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics,
internal citations omitted.)
• “Under the doctrine of strict products liability, all defendants in the chain of
distribution are jointly and severally liable, meaning that each defendant can be
held liable to the plaintiff for all damages the defective product caused.”
(Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [169
Cal.Rptr.3d 208].)
245
CACI No. 406 NEGLIGENCE
• Proposition 51 does not apply in a strict products liability action when a single
defective product produced a single injury to the plaintiff. That is, all the
defendants in the stream of commerce of that single product remain jointly and
severally liable. . . . [I]n strict products liability asbestos exposure actions, . . .
Proposition 51 applies when there are multiple products that caused the
plaintiff’s injuries and there is evidence that provides a basis to allocate fault for
noneconomic damages between the defective products.” (Romine, supra, 224
Cal.App.4th at pp. 1011–1012, internal citations omitted.)
• “[T]he jury found that defendants are parties to a joint venture. The incidents of
a joint venture are in all important respects the same as those of a partnership.
One such incident of partnership is that all partners are jointly and severally
liable for partnership obligations, irrespective of their individual partnership
interests. Because joint and several liability arises from the partnership or joint
venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni
(2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 156, 158–163, 167,
168, 171, 172, 176
Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And
Judgment, ¶ 9:662.3 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52–1.59
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04
et seq. (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380
(Matthew Bender)
246
407. Comparative Fault of Decedent
247
411. Reliance on Good Conduct of Others
Every person has a right to expect that every other person will use
reasonable care [and will not violate the law], unless that person knows,
or should know, that the other person will not use reasonable care [or
will violate the law].
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1468–1470
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.90 (Matthew
Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.51
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.120 et seq.
(Matthew Bender)
249
412. Duty of Care Owed Children
250
413. Custom or Practice
252
414. Amount of Caution Required in Dangerous Situations
People must be extremely careful when they deal with dangerous items
or participate in dangerous activities. [Insert type of dangerous item or
activity] is dangerous in and of itself. The risk of harm is so great that
the failure to use extreme caution is negligence.
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.14
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
254
415. Employee Required to Work in Dangerous Situations
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1484
2 Wilcox, California Employment Law, Ch. 30, Employer’s Tort Liability to Third
Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.14 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.172
(Matthew Bender)
256
416. Amount of Caution Required in Transmitting Electric Power
257
417. Special Doctrines: Res ipsa loquitur
finding. (See Cal. Law Revision Com. com. to Evid. Code, § 646.) The last two
paragraphs of the instruction assume that the defendant has presented evidence that
would support a finding that the defendant was not negligent or that any negligence
on the defendant’s part was not a proximate cause of the accident. In this case, the
presumption drops out, and the plaintiff must then prove the elements of negligence
without the benefit of the presumption of res ipsa loquitur. (See Howe, supra, 189
Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res Ipsa Loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption arises
when the evidence satisfies three conditions: ‘(1) the accident must be of a kind
which ordinarily does not occur in the absence of someone’s negligence; (2) it
must be caused by an agency or instrumentality within the exclusive control of
the defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.’ A presumption affecting the burden of
producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant . . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’ the
trier of fact determines whether defendant was negligent without regard to the
presumption, simply by weighing the evidence.” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal
citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was the
result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161,
internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
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.
259
CACI No. 417 NEGLIGENCE
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
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of negligence
or lack of proximate cause that the injury claimed was the result of that
negligence. As a presumption affecting the burden of producing evidence (as
distinguished from a presumption affecting the burden of proof), if evidence is
presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of the
accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of the
presumed fact causes the presumption, as a matter of law, to disappear.’ When
the presumptive effect vanishes, it is the plaintiff’s burden to introduce actual
evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
260
NEGLIGENCE CACI No. 417
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 Hospital Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 116–120
7 Witkin, California Procedure (5th ed. 2008) 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)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.11
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.340 et seq.
(Matthew Bender)
261
418. Presumption of Negligence per se
New September 2003; Revised December 2005, June 2011, November 2020
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).
Sources and Authority
• 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.” (Jacobs Farm/Del Cabo, Inc. v. Western Farm
Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529]; see also
262
NEGLIGENCE CACI No. 418
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
Cal.App.4th 799, 808 [52 Cal.Rptr.2d 128].)
• “[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].)
• “While courts have applied negligence per se to building code violations, it has
only been applied in limited situations.” (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1212 [252 Cal.Rptr.3d 596].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
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)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
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)
264
NEGLIGENCE CACI No. 418
265
419. Presumption of Negligence per se (Causation Only at Issue)
268
421. Negligence per se: Rebuttal of the Presumption of
Negligence (Violation of Minor Excused)
269
422. Providing Alcoholic Beverages to Obviously Intoxicated
Minors (Bus. & Prof. Code, § 25602.1)
270
NEGLIGENCE CACI No. 422
New September 2003; Revised December 2009, June 2014, December 2014, May
2020
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 the plaintiff’s own injuries (see Chalup
v. Aspen Mine Co. (1985) 175 Cal.App.3d 973, 974 [221 Cal.Rptr. 97]), modify the
instruction by substituting the appropriate pronoun for “[name of alleged minor]”
throughout.
For purposes of this instruction, a “minor” is someone under the age of 21. (Rogers
v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60].)
Sources and Authority
• Liability for Providing Alcohol to Minors. Business and Professions Code
section 25602.1.
• Sales Under the Alcoholic Beverage Control Act. Business and Professions Code
section 23025.
• “In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of the
plaintiff’s injuries or death, section 25602.1—the applicable statute in this
case—permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to sell
alcoholic beverages in certain places, and the defendant sold, furnished, or gave
the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was ‘any other person’ (i.e., neither licensed nor required to
be licensed), and he or she sold alcohol to the minor or caused it to be sold.
Whereas licensees (and those required to be licensed) may be liable if they
merely furnish or give an alcoholic beverage away, a nonlicensee may be liable
only if a sale occurs; that is, a nonlicensee, such as a social host, who merely
furnishes or gives drinks away—even to an obviously intoxicated minor—retains
his or her statutory immunity.” (Ennabe, supra, 58 Cal.4th at pp. 709–710,
original italics.)
• “[W]e conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
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CACI No. 422 NEGLIGENCE
by the Department of ABC, those without licenses but who are nevertheless
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.)
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NEGLIGENCE CACI No. 422
• “As instructed by the court, the jury was told to consider several outward
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
Cal.App.3d 364, 370 [243 Cal.Rptr. 611], internal citation omitted.)
• “[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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1218
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.63
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-L, Liability For
Providing Alcoholic Beverages, ¶ 2:2101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.21
(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)
273
423. Public Entity Liability for Failure to Perform Mandatory Duty
276
424. Negligence Not Contested—Essential Factual Elements
277
425. “Gross Negligence” Explained
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], internal
citations omitted.)
• “[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
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CACI No. 425 NEGLIGENCE
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.)
• “In assessing where on the spectrum a particular negligent act falls, ‘ “[t]he
amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater, the actor is
required to exercise caution commensurate with it.” ’ ” (Hass v. RhodyCo
Productions (2018) 26 Cal.App.5th 11, 32 [236 Cal.Rptr.3d 682].)
• “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
280
NEGLIGENCE CACI No. 425
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 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
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 331
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,
380.171 (Matthew Bender)
281
426. Negligent Hiring, Supervision, or Retention of Employee
In most cases, “unfitness” or “incompetence” (or both) will adequately describe the
particular risk that the employee represents. However, there may be cases in which
neither word adequately describes the risk that the employer should have known
about.
Sources and Authority
• “California case law recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit employee.”
(Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have
known that hiring the employee created a particular risk or hazard and that
particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including
negligent hiring, supervising, and retaining [employee], and failure to warn. To
prevail on his negligent hiring/retention claim, [plaintiff] will be required to
prove [employee] was [defendant employer]’s agent and [defendant employer]
knew or had reason to believe [employee] was likely to engage in sexual abuse.
On the negligent supervision and failure to warn claims, [plaintiff] will be
required to show [defendant employer] knew or should have known of
[employee]’s alleged misconduct and did not act in a reasonable manner when it
allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th
566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “[A] negligent supervision claim depends, in part, on a showing that the risk of
harm was reasonably foreseeable. [Citations.] ‘Foreseeability is determined in
light of all the circumstances and does not require prior identical events or
injuries.’ [Citations.] ‘ “It is not necessary to prove that the very injury which
occurred must have been foreseeable by the school authorities . . .. Their
negligence is established if a reasonably prudent person would foresee that
injuries of the same general type would be likely to happen in the absence of
[adequate] safeguards.” ’ ” (D.Z. v. Los Angeles Unified School Dist. (2019) 35
Cal.App.5th 210, 229 [247 Cal.Rptr.3d 127], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability.” (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that if
an enterprise hires individuals with characteristics which might pose a danger to
customers or other employees, the enterprise should bear the loss caused by the
wrongdoing of its incompetent or unfit employees. The tort has developed in
California in factual settings where the plaintiff’s injury occurred in the
workplace, or the contact between the plaintiff and the employee was generated
by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66
Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].)
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CACI No. 426 NEGLIGENCE
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
Cal.App.5th 1255, 1264 [218 Cal.Rptr.3d 664].)
• “[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 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.)
• “Any claim alleging negligent hiring by an employer will be based in part on
events predating the employee’s tortious conduct. Plainly, that sequence of
events does not itself preclude liability.” (Liberty Surplus Ins. Corp., supra, 5
Cal.5th at p. 225, fn. 7.)
• “We find no relevant case law approving a claim for direct liability based on a
public entity’s allegedly negligent hiring and supervision practices. . . .
Here, . . . there is no statutory basis for declaring a governmental entity liable
for negligence in its hiring and supervision practices and, accordingly, plaintiffs’
claim against County based on that theory is barred . . . .” (de Villers v. County
285
CACI No. 426 NEGLIGENCE
of San Diego (2007) 156 Cal.App.4th 238, 252–253 [67 Cal.Rptr.3d 253].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1350
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-I,
Employment Torts and Related Claims—Negligence, ¶ 5:800 et seq. (The Rutter
Group)
3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.22 (Matthew Bender)
286
427. Furnishing Alcoholic Beverages to Minors (Civ. Code,
§ 1714(d))
288
428. Parental Liability (Nonstatutory)
New September 2003; Renumbered from CACI No. 410 December 2013
Directions for Use
This instruction is not intended for use for claims of statutory liability against
parents or guardians based on a minor’s willful conduct, e.g., Civil Code section
1714.1 (willful misconduct), section 1714.3 (discharging firearm), or Education
Code section 48904(a)(1) (willful misconduct).
Sources and Authority
• “While it is the rule in California . . . that there is no vicarious liability on a
parent for the torts of a child there is ‘another rule of the law relating to the
torts of minors, which is somewhat in the nature of an exception, and that is that
a parent may become liable for an injury caused by the child where the parent’s
negligence made it possible for the child to cause the injury complained of, and
probable that it would do so.’ ” (Ellis v. D’Angelo (1953) 116 Cal.App.2d 310,
317 [253 P.2d 675], internal citations omitted.)
• “Parents are responsible for harm caused by their children only when it has been
shown that ‘the parents as reasonable persons previously became aware of habits
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CACI No. 428 NEGLIGENCE
or tendencies of the infant which made it likely that the child would misbehave
so that they should have restrained him in apposite conduct and actions.’ ”
(Reida v. Lund (1971) 18 Cal.App.3d 698, 702 [96 Cal.Rptr. 102], internal
citation omitted.)
• “In cases where the parent did not observe the child’s conduct which led to the
injury, the parent has been held liable where he had been aware of the child’s
dangerous propensity or habit and negligently failed to exercise proper control or
negligently failed to give appropriate warning. In other cases, where the parent
did not observe and was not in a position to control the conduct which
endangered the plaintiff, recovery was denied on the ground that there was no
showing that the parent knew of any dangerous tendency. What is said about
‘propensity’ or ‘habit’ in those cases has no applicability where the parent is
present and observes the dangerous behavior and has an opportunity to exercise
control but neglects to do so.” (Costello v. Hart (1972) 23 Cal.App.3d 898,
900–901 [100 Cal.Rptr. 554], internal citations omitted.)
• “ ‘The ability to control the child, rather than the relationship as such, is the
basis for a finding of liability on the part of a parent. . . . [The] absence of such
ability is fatal to a claim of legal responsibility.’ The ability to control is inferred
from the relationship of parent to minor child, as it is from the relationship of
custodian to charge; yet it may be disproved by the circumstances surrounding
the particular situation.” (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1290
[232 Cal.Rptr. 634], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1378–1385
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, § 1.25
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.12; Ch. 8,
Vicarious Liability, § 8.08 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.16
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 367A, Minors: Tort Actions,
§ 367A.32 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.131
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.130 (Matthew
Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors, § 100A.251
(Matthew Bender)
1 California Civil Practice: Torts §§ 3:32–3:35 (Thomson Reuters)
290
429. Negligent Sexual Transmission of Disease
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1044
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.13
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2]
(Matthew Bender)
292
NEGLIGENCE CACI No. 429
293
430. Causation: Substantial Factor
New September 2003; Revised October 2004, June 2005, December 2005, December
2007, May 2018, May 2020, November 2020
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. (See also Major v. R.J. Reynolds
Tobacco Co. (2017) 14 Cal.App.5th 1179, 1198 [222 Cal.Rptr.3d 563] [court did not
err in refusing to give last sentence of instruction in case involving exposure to
carcinogens in cigarettes].)
In cases of multiple (concurrent dependent) causes, CACI No. 431, Causation:
Multiple Causes, should also be given.
A case in which the plaintiff’s claim is based on disease resulting from asbestos
exposure requires a different instruction. (Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d 1203]; Lopez v. The Hillshire
294
NEGLIGENCE CACI No. 430
Brands Co. (2019) 41 Cal.App.5th 679, 688 [254 Cal.Rptr.3d 377] [citing previous
discussion of issues related to asbestos cases in Directions for Use of this instruction
and CACI No. 435].) Give CACI No. 435, Causation for Asbestos-Related Cancer
Claims, and do not give this instruction. (But see Petitpas v. Ford Motor Co. (2017)
13 Cal.App.5th 261, 298–299 [220 Cal.Rptr.3d 185] [not error to give both CACI
Nos. 430 and 435 in case with both product liability and premises liability
defendants].)
Sources and Authority
• “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,
internal citations 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 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 pp. 968–969,
internal citations omitted.)
• “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
295
CACI No. 430 NEGLIGENCE
that does cause harm is a substantial factor. This rule honors the principle of
comparative fault.” (Bockrath, supra, 21 Cal.4th at p. 79, internal citations
omitted.)
• “[G]iving CACI No. 430, which states that a factor is not substantial when it is
‘remote or trivial,’ could be misleading in an asbestos case, where the long
latency period necessitates exposures will have been several years earlier. Jury
instructions therefore should not suggest that a long latency period, in which the
exposure was temporally ‘remote,’ precludes an otherwise sufficient asbestos
claim. ‘ “Remote” often connotes a time limitation. Nothing in Rutherford
suggests such a limitation; indeed, asbestos cases are brought long after exposure
due to the long-term latent nature of asbestos-related diseases.’ It was not error
for the court to give CACI No. 435 alone instead of CACI No. 430.” (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citation 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
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].)
• “Giving CACI No. 430 in its entirety also would have meant instructing the jury
on the principle of ‘but-for’ causation. Although generally subsumed within the
substantial factor test, ‘the but-for test is inappropriate in cases when two forces
are actively operating and each is sufficient to bring about the harm.’ . . . ‘If a
plaintiff [or decedent] has developed a disease after having been exposed to
multiple defendants’ asbestos products, medical science [is] unable to determine
which defendant’s product included the specific fibers that caused the plaintiff’s
[or decedent’s] disease.’ A ‘but-for’ instruction is therefore inappropriate in the
asbestos context, at least when there are multiple sources of exposure. (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citations omitted.)
• “That the Use Notes caution against giving the more general CACI No. 430 in a
296
NEGLIGENCE CACI No. 430
mesothelioma case, when the more specific instruction CACI No. 435 is more
applicable, does not support a conclusion that it was error to give both
instructions. CACI No. 430 is a correct statement of the law relating to
substantial factor causation, even though, as Rutherford [v. Owens-Illinois, Inc.]
noted, more specific instructions also must be given in a mesothelioma case.
Because the more specific CACI No. 435 also was given, we do not find that the
trial court erred by giving both instructions.” (Petitpas, supra, 13 Cal.App.5th p.
299, original italics.)
• “A tort is a legal cause of injury only when it is a substantial factor in producing
the injury. If the external force of a vehicle accident was so severe that it would
have caused identical injuries notwithstanding an abstract ‘defect’ in the vehicle’s
collision safety, the defect cannot be considered a substantial factor in bringing
them about. [¶] The general causation instruction given by the trial court
correctly advised that plaintiff could not recover for a design defect unless it was
a ‘substantial factor’ in producing plaintiff’s ‘enhanced’ injuries. However, this
instruction dealt only by ‘negative implication’ with [defendant]’s theory that any
such defect was not a ‘substantial factor’ in this case because this particular
accident would have broken plaintiff’s ankles in any event. As we have seen,
[defendant] presented substantial evidence to that effect. [Defendant] was
therefore entitled to its special instruction, and the trial court’s refusal to give it
was error.” (Soule, supra, 8 Cal.4th at p. 572–573, original italics, footnote and
internal citations omitted.)
• “The first element of legal cause is cause in fact . . . . The ‘but for’ rule has
traditionally been applied to determine cause in fact. The Restatement formula
uses the term substantial factor ‘to denote the fact that the defendant’s conduct
has such an effect in producing the harm as to lead reasonable men to regard it
as a cause.’ ” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095 [44
Cal.Rptr.3d 14], internal citations omitted.)
• “If the accident would have happened anyway, whether the defendant was
negligent or not, then his or her negligence was not a cause in fact, and of
course cannot be the legal or responsible cause.” (Toste v. CalPortland
Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal.Rptr.3d 522].)
• “We have recognized that proximate cause has two aspects. ‘ “One is cause in
fact. An act is a cause in fact if it is a necessary antecedent of an event.” ’ This
is sometimes referred to as ‘but-for’ causation. In cases where concurrent
independent causes contribute to an injury, we apply the ‘substantial factor’ test
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], original italics, footnote omitted.)
• “The second aspect of proximate cause ‘focuses on public policy considerations.
Because the purported [factual] causes of an event may be traced back to the
dawn of humanity, the law has imposed additional “limitations on liability other
297
CACI No. 430 NEGLIGENCE
than simple causality.” [Citation.] “These additional limitations are related not
only to the degree of connection between the conduct and the injury, but also
with public policy.” [Citation.] Thus, “proximate 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.’ ”
[Citation.]’ ” (State Dept. of State Hospitals, supra, 61 Cal.4th at p. 353, internal
citation omitted.)
• “On the issue . . . of causation, as on other issues essential to the cause of
action for negligence, the plaintiff, in general, has the burden of proof. The
plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such 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.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095,
1104 [236 Cal.Rptr.3d 128].)
• “ ‘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
[68 Cal.Rptr.3d 897], internal citations omitted.)
• “Ordinarily, proximate cause is a question of fact which cannot be decided as a
matter of law from the allegations of a complaint. . . . Nevertheless, where the
facts are such that the only reasonable conclusion is an absence of causation, the
question is one of law, not of fact.” (Modisette v. Apple Inc. (2018) 30
Cal.App.5th 136, 152 [241 Cal.Rptr.3d 209].)
• “[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
298
NEGLIGENCE CACI No. 430
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.)
• “As a general matter, juries may decide issues of causation without hearing
expert testimony. But ‘[w]here the complexity of the causation issue is beyond
common experience, expert testimony is required to establish causation.’ ”
(Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290 [236 Cal.Rptr.3d
802], internal citation omitted.)
• “The Supreme Court . . . set forth explicit guidelines for plaintiffs attempting 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.)
• “[M]ultiple sufficient causes exist not only when there are two causes each of
which is sufficient to cause the harm, but also when there are more than two
causes, partial combinations of which are sufficient to cause the harm. As such,
the trial court did not err in refusing to instruct the jury with the but-for test.”
(Major, supra, 14 Cal.App.5th at p. 1200.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1334–1341
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.13–1.15
1 Levy et al., California Torts, Ch. 2, Causation, § 2.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22,
Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.71
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.260–165.263
(Matthew Bender)
299
431. Causation: Multiple Causes
Cal.Rptr.3d 79] [CACI No. 431 properly explained concurrent substantial causes
to the jury].)
• “For there to be comparative fault there must be more than one contributory or
concurrent legal cause of the injury for which recompense is sought.” (Doupnik
v. General Motors Corp. (1991) 225 Cal.App.3d 849, 866 [275 Cal.Rptr. 715].)
• “Because we conclude that, in this case, in which causation was the most critical
contested issue and in which there was substantial evidence of multiple causes of
[decedent]’ s death, the trial court improperly [refused to instruct] the jury with
respect to concurrent causation . . . .” (Logacz v. Limansky (1999) 71
Cal.App.4th 1149, 1152 [84 Cal.Rptr.2d 257].)
• “Clearly, where a defendant’s negligence is a concurring cause of an injury, the
law regards it as a legal cause of the injury, regardless of the extent to which it
contributes to the injury.” (Espinosa v. Little Company of Mary Hospital (1995)
31 Cal.App.4th 1304, 1317–1318 [37 Cal.Rptr.2d 541], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1344
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.280–165.284
(Matthew Bender)
301
432. Affirmative Defense—Causation: Third-Party Conduct as
Superseding Cause
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 Cal.Rptr. 521, 362 P.2d 345],
internal citations omitted.)
• “This test is but another way of saying that foreseeable intervening ordinary
negligence will not supersede but such negligence, if ‘highly extraordinary,’ will
supersede. [¶] ‘[T]he fact that an intervening act of a third person is done in a
negligent manner does not make it a superseding cause if . . . the act is a
normal response to a situation created by the defendant’s conduct and the
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CACI No. 432 NEGLIGENCE
force is due to a third person’s act or to his failure to act; [¶] (e) the fact that the
intervening force is due to an act of a third person which is wrongful toward the
other and as such subjects the third person to liability to him; [¶] (f) the degree
of culpability of a wrongful act of a third person which sets the intervening
force in motion.’ ” (Novak v. Continental Tire North America (2018) 22
Cal.App.5th 189, 197 [231 Cal.Rptr.3d 324], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1348, 1349
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)
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.74
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.321
(Matthew Bender)
306
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act
as Superseding Cause
act was reasonably foreseeable at the time of his negligent conduct.’ Moreover,
under section 449 of the Restatement Second of Torts that foreseeability may
arise directly from the risk created by the original act of negligence: ‘If the
likelihood that a third person may act in a particular manner is the hazard or one
of the hazards which makes the actor negligent, such an act whether innocent,
negligent, intentionally tortious, or criminal does not prevent the actor from
being liable for harm caused thereby.’ ” (Landeros v. Flood (1976) 17 Cal.3d
399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], internal citations omitted.)
• “The trial court’s modification of CACI No. 433 appears to have been intended
to apply the principle of negligence law that unforeseeable criminal conduct cuts
off a tortfeasor’s liability. CACI No. 433 sets forth the heightened foreseeability
that is required before an intervening criminal act will relieve a defendant of
liability for negligence. A third party’s criminal conduct becomes actionable if
the negligent tortfeasor has created a situation that facilitated the crime.” (Collins
v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508 [155 Cal.Rptr.3d 137],
internal citations omitted.)
• “Criminal conduct which causes injury will ordinarily be deemed the proximate
cause of an injury, superseding any prior negligence which might otherwise be
deemed a contributing cause.” (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1449
[23 Cal.Rptr.2d 34].)
• “The common law rule that an intervening criminal act is, by its very nature, a
superseding cause has lost its universal application and its dogmatic rigidity.”
(Kane, supra, 98 Cal.App.3d at p. 360.)
• “CACI No. 433 is neither a concurrent causation nor a comparative fault
instruction allowing the jury to apportion relative degrees of fault. CACI No.
433, a superseding cause instruction, applies when a third party takes advantage
of or utilizes a situation created by the tortfeasor’s conduct to engage in
intentional or criminal conduct inflicting harm on another person.” (Crouch v.
Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1023
[253 Cal.Rptr.3d 1].)
• “CACI No. 433 erroneously allowed [defendant] a complete defense based on a
heightened standard of foreseeability inapplicable to plaintiffs’ design defect
claims. Specifically, CACI No. 433 allowed [defendant] to secure a defense
verdict by showing it ‘could not have reasonably foreseen that another person
would be likely to take advantage of the situation created by . . . [defendant]’s
conduct to commit this type of act.’ However, [defendant] did not create a
situation that [third party] took advantage of in order to commit a crime. [Third
party] did not throw the concrete at [decedent]’s truck because he perceived a
defective angle or composition of the windshield. CACI No. 433 erroneously
introduced a test that does not make sense in this products liability case.”
(Collins, supra, 214 Cal.App.4th at p. 1509.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1365, 1367
308
NEGLIGENCE CACI No. 433
309
434. Alternative Causation
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/nonbinary pronoun/it] did not
cause [name of plaintiff]’s harm, then you must conclude that defendant
is not responsible.
p. 446.) It goes on to state that the rule thus far has been applied only where all
the actors involved are joined as defendants and where the conduct of all is
simultaneous in time, but cases might arise in which some modification of the
rule would be necessary if one of the actors is or cannot be joined, or because of
the effects of lapse of time, or other circumstances.” (Sindell, supra, 26 Cal.3d at
p. 602, fn. 16.)
• “Summers applies to multiple tortfeasors not to multiple defendants, and it is
immaterial in this case that the matter went to trial only as against respondent,
for A, B, and/or C was also a tortfeasor.” (Vahey v. Sacia (1981) 126 Cal.App.3d
171, 177 [178 Cal.Rptr. 559], original italics, footnote omitted.)
• “[Restatement Second of Torts] Section 433B, subdivision (3) sets forth the rule
of Summers v. Tice, supra, 33 Cal. 2d 80, using its facts as an example.
Comment h provides: ‘The cases thus far decided in which the rule stated in
Subsection (3) has been applied all have been cases in which all of the actors
involved have been joined as defendants. All of these cases have involved
conduct simultaneous in time, or substantially so, and all of them have involved
conduct of substantially the same character, creating substantially the same risk
of harm, on the part of each actor. It is possible that cases may arise in which
some modification of the rule stated may be necessary because of complications
arising from the fact that one of the actors involved is not or cannot be joined as
a defendant, or because of the effect of lapse of time, or because of substantial
differences in the character of the conduct of the actors or the risks which they
have created. Since such cases have not arisen, and the situations which might
arise are difficult to forecast, no attempt is made to deal with such problems in
this Section. The rule stated in Subsection (3) is not intended to preclude
possible modification if such situations call for it.’ ” (Setliff, supra, 32
Cal.App.4th at p. 1535.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1345
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.03 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.72
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.330 (Matthew
Bender)
311
435. Causation for Asbestos-Related Cancer Claims
New September 2003; Revised December 2007, May 2018, November 2018, May
2020, November 2020
Directions for Use
This instruction is to be given in a case in which the plaintiff’s claim is that the
plaintiff contracted an asbestos-related disease from exposure to the defendant’s
asbestos-containing product or asbestos-related activities. (See Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203];
Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688 [254 Cal.Rptr.3d
377] [addressing causation standard for exposure to asbestos from a defendant’s
property or operation when the defendant is not a manufacturer or supplier of
asbestos-containing products]; but see Petitpas v. Ford Motor Co. (2017) 13
Cal.App.5th 261, 290 [220 Cal.Rptr.3d 185] [court gave CACI No. 435 with regard
to premises liability defendant].) If the plaintiff’s claim is based on anything other
than disease resulting from asbestos exposure, then this instruction is not to be
given.
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.
Sources and Authority
• “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
312
NEGLIGENCE CACI No. 435
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
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
Cal.App.4th 1078, 1084 [109 Cal.Rptr.3d 371], internal citations omitted.)
• “[G]iving CACI No. 430, which states that a factor is not substantial when it is
‘remote or trivial,’ could be misleading in an asbestos case, where the long
latency period necessitates exposures will have been several years earlier. Jury
instructions therefore should not suggest that a long latency period, in which the
exposure was temporally ‘remote,’ precludes an otherwise sufficient asbestos
claim. ‘ “Remote” often connotes a time limitation. Nothing in Rutherford
suggests such a limitation; indeed, asbestos cases are brought long after exposure
due to the long-term latent nature of asbestos-related diseases.’ It was not error
for the court to give CACI No. 435 alone instead of CACI No. 430.” (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citation omitted.)
• “That the Use Notes caution against giving the more general CACI No. 430 in a
mesothelioma case, when the more specific instruction CACI No. 435 is more
applicable, does not support a conclusion that it was error to give both
instructions. CACI No. 430 is a correct statement of the law relating to
substantial factor causation, even though, as Rutherford noted, more specific
instructions also must be given in a mesothelioma case. Because the more
specific CACI No. 435 also was given, we do not find that the trial court erred
314
NEGLIGENCE CACI No. 435
• “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
expert medical opinion.” (Davis v. Honeywell Internat. Inc. (2016) 245
Cal.App.4th 477, 495 [199 Cal.Rptr.3d 583], internal citation omitted.)
• “Mere presence at a site where asbestos was present is insufficient to establish
legally significant asbestos exposure.” (Shiffer v. CBS Corp. (2015) 240
Cal.App.4th 246, 252 [192 Cal.Rptr.3d 346].)
• “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 Cal.Rptr.3d
90], internal citations omitted.)
• “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’]
316
NEGLIGENCE CACI No. 435
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
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)
1 Levy et al., California Torts, Ch. 2, Causation, § 2.03 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22,
Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.72
(Matthew Bender)
436–439. Reserved for Future Use
317
440. Negligent Use of Nondeadly Force by Law Enforcement
Officer in Arrest or Other Seizure—Essential Factual Elements
New June 2016; Revised May 2020, November 2020, May 2021
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
battery. See CACI No. 1305, Battery by Peace Offıcer—Essential Factual Elements.
For additional authorities on excessive force by a law enforcement officer, see the
Sources and Authority to these two CACI instructions.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a negligence claim involving nondeadly force does
not depend on whether the individual qualifies as a peace officer under the Penal
Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 441, Negligent Use of Deadly Force by Peace Offıcer—Essential Factual
Elements. (Pen. Code, § 835a.) This instruction and CACI No. 441 may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the last bracketed sentence in the first paragraph only if there is evidence
the person being arrested or detained used force to resist the officer.
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) 673 F.3d 864, 872);
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 multiple claims.
Factor (d) is bracketed because no reported California state court decision has held
that an officer’s tactical decisions before using nondeadly force can be actionable
negligence. It has been held that liability can arise if the officer’s earlier tactical
conduct and decisions show, as part of the totality of circumstances, that the
ultimate use of deadly force was unreasonable. (Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].) In this respect,
319
440 NEGLIGENCE
California negligence law differs from the federal standard under the Fourth
Amendment. (Hayes, supra, 57 Cal.4th at p. 639 [“[T]he state and federal standards
are not the same, which we now confirm”]; cf. Vos v. City of Newport Beach (9th
Cir. 2018) 892 F.3d 1024, 1037 [“To determine police liability [under state law
negligence], a court applies tort law’s ‘reasonable care’ standard, which is distinct
from the Fourth Amendment’s ‘reasonableness’ standard. The Fourth Amendment is
narrower and ‘plac[es] less emphasis on preshooting conduct.’”)
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a(b).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
• “The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt. . . . [¶] This court held it was reversible error
to exclude the negligence issue from the jury even though plaintiff also had pled
intentional tort. The court pointed to the rule that a party may proceed on
inconsistent causes of action unless a nonsuit is appropriate.” (Munoz v. Olin
(1979) 24 Cal.3d 629, 635 [156 Cal.Rptr. 727, 596 P.2d 1143].)
• “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
320
NEGLIGENCE 440
federal and state standards of reasonableness differ in that the former involves a
fact finder’s balancing of competing interests.” (Hernandez, supra, 46 Cal.4th at
p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘ “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests” ’ against
the countervailing governmental interests at stake. Our Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . [T]he question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. . . .” ’ In calculating whether the
amount of force was excessive, a trier of fact must recognize that peace officers
are often forced to make split-second judgments, in tense circumstances,
concerning the amount of force required.” (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’”
(Hayes, supra, 57 Cal.4th at p. 632.)
• “The California Supreme Court did not address whether decisions before non-
deadly force can be actionable negligence, but addressed this issue only in the
context of ‘deadly force.’” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983,
991, fn. 7.)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
321
440 NEGLIGENCE
322
441. Negligent Use of Deadly Force by Peace Officer—Essential
Factual Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant] was
negligent in using deadly force to [arrest/detain/ [,/or] prevent escape of/
[,/or] overcome resistance to] [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was a peace officer;
2. That [name of defendant] used deadly force on [name of
plaintiff/decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [either]:
[to defend against an imminent threat of death or serious bodily injury
to [name of defendant] [and/or] [another person]][; or/.]]
[to apprehend a fleeing person for a felony, when all of the following
conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. [Name of defendant] made reasonable efforts to identify
[himself/herself/nonbinary pronoun] as a peace officer and to
warn that deadly force may be used, unless the officer had
objectively reasonable grounds to believe the person is aware
of those facts.]
[A peace officer must not use deadly force against persons based only on
the danger those persons pose to themselves, if an objectively reasonable
officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person.]
323
441 NEGLIGENCE
there are contested issues of fact regarding element 1, include the specific factual
findings necessary for the jury to determine whether the defendant was a peace
officer.
Select either or both bracketed options concerning the justifications for using deadly
force under Penal Code section § 835a(c) depending on the facts of the case. If only
one justification is supported by the facts, omit the either/or language. Include the
bracketed sentence following the justifications if the plaintiff claims that the only
threat the plaintiff posed was self-harm. A peace officer may not use deadly force
against a person based on a danger that person poses to themselves if an objectively
reasonable officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person. (Pen. Code,
§ 835a(c)(2).)
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) The definition may be omitted from the
instruction if a firearm was used. Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
• Legislative Findings Regarding Use of Force by Law Enforcement. Penal Code
section 835a(a).
• When Use of Deadly Force Is Justified. Penal Code section 835a(c).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “Peace Officer” Defined. Penal Code section 830 et seq.
• “There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
• “The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt v. City of Los Angeles, supra, 2 Cal.3d 575. . . .
[¶] This court held it was reversible error to exclude the negligence issue from
the jury even though plaintiff also had pled intentional tort. The court pointed to
325
441 NEGLIGENCE
the rule that a party may proceed on inconsistent causes of action unless a
nonsuit is appropriate.” (Munoz v. Olin (1979) 24 Cal.3d 629, 635 [156 Cal.Rptr.
727, 596 P.2d 1143].)
• “[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, original italics, internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
442–449. Reserved for Future Use
326
450A. Good Samaritan—Nonemergency
same position that he or she already occupied cannot support a finding of duty
of care. Affirmative conduct or misfeasance on the part of CHP that induces
reliance or changes the risk of harm is required.” (Greyhound Lines, Inc. v.
Department of the California Highway Patrol (2013) 213 Cal.App.4th 1129,
1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• “A special relationship can be found ‘when the state, through its agents,
voluntarily assumes a protective duty toward a certain member of the public and
undertakes action on behalf of that member, thereby inducing reliance, it is held
to the same standard of care as a private person or organization.’ ” (Arista,
supra, 29 Cal.App.5th at p. 1061.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.150 (Matthew
Bender)
329
450B. Good Samaritan—Scene of Emergency
Derived from former CACI No. 450 December 2010; Revised December 2011, May
2020
330
NEGLIGENCE CACI No. 450B
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
(2010) 184 Cal.App.4th 967, 975 [109 Cal.Rptr.3d 676].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a danger
has induced reliance, or when the actions of CHP place a person in peril or
increase the risk of harm. In other words, to create a special relationship and a
duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s way
[citations], or lulled a citizen into a false sense of security and then withdrew
essential safety precautions.” ’ Nonfeasance that leaves the citizen in exactly the
same position that he or she already occupied cannot support a finding of duty
of care. Affirmative conduct or misfeasance on the part of CHP that induces
reliance or changes the risk of harm is required.” (Greyhound Lines, Inc. v.
Department of the California Highway Patrol (2013) 213 Cal.App.4th 1129,
1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• Statutory exceptions to Good Samaritan liability include immunities under
certain circumstances for medical licensees (Bus. & Prof. Code, §§ 2395–2398),
nurses (Bus. & Prof. Code, §§ 2727.5, 2861.5), dentists (Bus. & Prof. Code,
§ 1627.5), rescue teams (Health & Saf. Code, § 1317(f)), persons rendering
emergency medical services (Health & Saf. Code, § 1799.102), paramedics
(Health & Saf. Code, § 1799.104), and first-aid volunteers (Gov. Code, § 50086).
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Haning et al., California Practice Guide: Personal Injury, Ch. 2(IV)-H, Emergency
Medical Services Immunity, ¶¶ 2:3495–2:3516 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
332
NEGLIGENCE CACI No. 450B
333
450C. Negligent Undertaking
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 performing services to one person has resulted
in harm to another person.
Select one or more of the three options for element 5 depending on the facts.
Sources and Authority
• Negligent Undertaking. Restatement Second of Torts section 324A.
• “[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].)
• “Under this formulation, a duty of care exists when the first, second and fifth
elements are established. The third element addresses the breach of that duty of
care and the fourth element covers both causation and damages.” (Peredia v. HR
Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691 [236 Cal.Rptr.3d 157].)
• “Section 324A is applied to determine the ‘duty element’ in a negligence action
where the defendant has ‘ “specifically . . . undertaken to perform the task that
he is charged with having performed negligently, for without the actual
assumption of the undertaking there can be no correlative duty to perform that
undertaking carefully.” ’ The negligent undertaking theory of liability applies to
335
CACI No. 450C NEGLIGENCE
personal injury and property damage claims, but not to claims seeking only
economic loss.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914,
922 [224 Cal.Rptr.3d 725], internal citations omitted.)
• “The foundation for considering whether an actor . . . should be exposed to
liability on this theory is whether the actor made a specific undertaking ‘ “to
perform the task that he is charged with having performed negligently, for
without the actual assumption of the undertaking there can be no correlative duty
to perform that undertaking carefully.” ’ ” (Jabo v. YMCA of San Diego County
(2018) 27 Cal.App.5th 853, 878 [238 Cal.Rptr.3d 588].)
• “[U]nder a negligent undertaking theory of liability, the scope of a defendant’s
duty presents a jury issue when there is a factual dispute as to the nature of the
undertaking. The issue of ‘whether [a defendant’s] alleged actions, if proven,
would constitute an “undertaking” sufficient . . . to give rise to an actionable
duty of care is a legal question for the court.’ However, ‘there may be fact
questions “about precisely what it was that the defendant undertook to do.” That
is, while “[t]he ‘precise nature and extent’ of [an alleged negligent undertaking]
duty ‘is a question of law . . . “it depends on the nature and extent of the act
undertaken, a question of fact.” ’ ” [Citation.] Thus, if the record can support
competing inferences [citation], or if the facts are not yet sufficiently developed
[citation], “ ‘an ultimate finding on the existence of a duty cannot be made prior
to a hearing on the merits’ ” [citation], and summary judgment is precluded.
[Citations.]’ (see CACI No. 450C [each element of the negligent undertaking
theory of liability is resolved by the trier of fact].)” (O’Malley v. Hospitality
Staffıng Solutions (2018) 20 Cal.App.5th 21, 27–28 [228 Cal.Rptr.3d 731],
internal citations omitted.)
• “To establish as a matter of law that defendant does not owe plaintiffs a duty
under a negligent undertaking theory, defendant must negate all three alternative
predicates of the fifth factor: ‘(a) the actor’s carelessness increased the risk of
such harm, or (b) the undertaking was to perform a duty owed by the other to
the third persons, or (c) the harm was suffered because of the reliance of the
other or the third persons upon the undertaking.’ ” (Lichtman, supra, 16
Cal.App.5th at p. 926.)
• “The undisputed facts here present a classic scenario for consideration of the
negligent undertaking theory. This theory of liability is typically applied where
the defendant has contractually agreed to provide services for the protection of
others, but has negligently done so.” (Lichtman, supra, 16 Cal.App.5th at p.
927.)
• “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 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.)
336
NEGLIGENCE CACI No. 450C
337
451. Affirmative Defense—Contractual Assumption of Risk
[Name of defendant] claims that [name of plaintiff] may not recover any
damages because [he/she/nonbinary pronoun] agreed before the incident
that [he/she/nonbinary pronoun] 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/nonbinary pronoun/it] is
responsible for [name of plaintiff]’s harm based on the other instructions
that I have given you.]
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)
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
341
CACI No. 451 NEGLIGENCE
of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250
Cal.Rptr. 299].)
• “By signing as [decedent]’s parent, [plaintiff] approved of the terms of the
release and understood that her signature made the release ‘irrevocable and
binding.’ Under these circumstances, the release could not be disaffirmed. [¶]
Although [plaintiff]’s signature prevented the agreement from being disaffirmed,
it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th at
p. 721.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1439, 1449–1451
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.44
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.171
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.402 (Matthew
Bender)
342
452. Sudden Emergency
344
453. Injury Incurred in Course of Rescue
[name of plaintiff]” in element 2. Also omit the bracketed material in the opening
sentence.
Sources and Authority
• “The cases have developed the rule that persons injured in the course of
undertaking a necessary rescue may, absent rash or reckless conduct on their
part, recover from the person whose negligence created the peril which
necessitated the rescue. [¶] Although its precise limits are not yet fully
developed, the rescue doctrine varies the ordinary rules of negligence in two
important respects: (1) it permits the rescuer to sue on the basis of defendant’s
initial negligence toward the party rescued, without the necessity of proving
negligence toward the rescuer, and (2) it substantially restricts the availability of
the defense of contributory negligence by requiring defendant to prove that the
rescuer acted rashly or recklessly under the circumstances.” (Solgaard, supra, 6
Cal.3d at p. 368, footnote omitted.)
• “The rescue doctrine contemplates a voluntary act by one who, in an emergency
and prompted by spontaneous human motive to save human life, attempts a
rescue that he had no duty to attempt by virtue of a legal obligation or duty
fastened on him by his employment.” (Bryant v. Glastetter (1995) 32
Cal.App.4th 770, 784 [38 Cal.Rptr.2d 291].)
• “[T]he rescue doctrine arose in an era of contributory negligence, where any
negligence on the part of a plaintiff barred the action. ‘The purpose of the rescue
doctrine when it was first created was to avoid having a plaintiff be found
contributorily negligent as a matter of law when he voluntarily placed himself in
a perilous position to prevent another person from suffering serious injury or
death, the courts often stating that the plaintiff’s recovery should not be barred
unless his rescue attempt was recklessly or rashly made.’ Most defendants could
point to some negligence by the rescuer and simply approaching the danger
could be construed as negligent, or as an assumption of the risk. This advanced
no tenable public policy: It deterred rescues and ran counter to the human
impulse to help others in need. Accordingly, the courts ruled the act of
approaching danger did not interrupt the normal causal reach of tort liability and
did not, of itself, establish contributory negligence.” (Sears v. Morrison (1999)
76 Cal.App.4th 577, 581 [90 Cal.Rptr.2d 528], internal citations omitted.)
• “In order to assert the rescue doctrine, the rescuer must show that there was
someone in peril and that he acted to rescue such person from the peril.” (Tucker
v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1252 [124 Cal.Rptr.3d
245].)
• “The evidence in the instant case was uncontradicted that defendant’s employees
. . . were in peril of their lives, that immediate action was required to save or
assist them, that plaintiff undertook to rescue them, and that he was injured
while in the course of doing so. It is apparent, therefore, that plaintiff was, as a
matter of law, a rescuer and entitled to the benefits of the rescuer doctrine,
including an instruction to the jury that as a rescuer, plaintiff could recover on
346
NEGLIGENCE CACI No. 453
347
CACI No. 453 NEGLIGENCE
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1463–1465
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.41
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03[4], 1.30
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence,
§ 380.30[5][e][v] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.140 (Matthew
Bender)
348
454. Affirmative Defense—Statute of Limitations
• “It is undisputed that plaintiffs discovered shortly after the accident in 2010 that
[defendant] had failed to secure the insurance coverage plaintiffs requested.
Thus, this case does not involve the delayed discovery doctrine, which makes
‘accrual of a cause of action contingent on when a party discovered or should
have discovered that his or her injury had a wrongful cause.’ In delayed
discovery cases, ‘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.’ Here, the
question is when plaintiffs incurred ‘actual injury’—not when they discovered
[defendant]’s negligence. The trial court erred to the extent that it relied on the
delayed discovery doctrine to determine when plaintiffs incurred actual injury.”
(Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 521 [231
Cal.Rptr.3d 518], 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
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].)
• “[W]hen a defendant asserts a statute of limitations defense against a FEHA
failure to promote claim, the burden is on the defendant to prove when the
plaintiff knew or should have known of the adverse promotion decision. (Pollock
v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 947 [281
Cal.Rptr.3d 498, 491 P.3d 290].)
• “ ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the
speculative nor uncertain character of damages nor the difficulty of proof will
toll the period of limitation.’ Cases contrast actual and appreciable harm with
nominal damages, speculative harm or the threat of future harm. The mere
breach of duty—causing only nominal damages, speculative harm or the threat
of future harm not yet realized—normally does not suffice to create a cause of
action.” (San Francisco Unified School Dist. v. W. R. Grace & Co. (1995) 37
Cal.App.4th 1318, 1326 [44 Cal.Rptr.2d 305], internal citations omitted.)
• “Violations of a continuing or recurring obligation may give rise to ‘continuous
accrual’ of causes of action, meaning that ‘ “a cause of action accrues each time
a wrongful act occurs, triggering a new limitations period.” [Citation.]’ ”
(Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59 [247 Cal.Rptr.3d 875].)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White
(2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of
fact . . . .’ ” (Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
350
NEGLIGENCE CACI No. 454
351
455. Statute of Limitations—Delayed Discovery
New April 2007; Revised December 2007, April 2009, December 2009, May 2020
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 the plaintiff’s 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.
Read this instruction with the second option 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. (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
352
NEGLIGENCE CACI No. 455
[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.)
• “The California rule on delayed discovery of a cause of action is the statute of
limitation begins to run ‘when the plaintiff has reason to suspect an injury and
some wrongful cause . . . .’ ‘A plaintiff need not be aware of the specific “facts”
necessary to establish the claim; that is a process contemplated by pretrial
discovery. . . . So long as a suspicion exists, it is clear that the plaintiff must go
find the facts; she cannot wait for the facts to find her.’ ” (MGA Entertainment,
Inc. v. Mattel, Inc. (2019) 41 Cal.App.5th 554, 561 [254 Cal.Rptr.3d 314].)
• “[A]s Fox teaches, claims based on two independent legal theories against two
separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)
• “A limitation period does not begin until a cause of action accrues, i.e., all
essential elements are present and a claim becomes legally actionable. Developed
to mitigate the harsh results produced by strict definitions of accrual, the
common law discovery rule postpones accrual until a plaintiff discovers or has
reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82 Cal.App.4th
at p. 1029, internal citations omitted.)
• “A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ ” (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)
• “[T]he plaintiff may discover, or have reason to discover, the cause of action
even if he does not suspect, or have reason to suspect, the identity of the
defendant. That is because the identity of the defendant is not an element of any
cause of action. It follows that failure to discover, or have reason to discover, the
identity of the defendant does not postpone the accrual of a cause of action,
whereas a like failure concerning the cause of action itself does. ‘Although never
354
NEGLIGENCE CACI No. 455
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].)
• “[T]he trial court erred in concluding that the discovery rule did not pertain to
the limitations period of section 335.1 for medical battery claims.” (Daley v.
Regents of University of California (2019) 39 Cal.App.5th 595, 606 [252
Cal.Rptr.3d 273].)
• 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 Cal.App.4th
1202, 1206 [48 Cal.Rptr.3d 668].)
• “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].)
• “ ‘[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)
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, § 71.03[3] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.19[3] (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.47,
143.52 et seq. (Matthew Bender)
356
NEGLIGENCE CACI No. 455
357
456. Defendant Estopped From Asserting Statute of Limitations
Defense
New October 2008; Revised December 2014, June 2015, May 2020
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 the party’s 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 the party’s 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 Cal.App.4th
358
NEGLIGENCE CACI No. 456
1236, 1246 [150 Cal.Rptr.3d 446] [equitable estoppel to deny family leave under
California Family Rights Act].)
Most cases do not frame the issue as one of equitable estoppel and its four
elements. All that is required is that the defendant’s conduct actually have misled
the plaintiff, and that plaintiff reasonably have relied on that conduct. Bad faith or
an intent to mislead is not required. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363,
384 [2 Cal.Rptr.3d 655, 73 P.3d 517]; Shaffer v. Debbas (1993) 17 Cal.App.4th 33,
43 [21 Cal.Rptr.2d 110].) Nor does it appear that there is a requirement that the
defendant specifically intended to induce the plaintiff to defer filing suit. Therefore,
no specific intent element has been included. However, the California Supreme
Court has stated that element 4 is to be given in a construction defect case in which
the defendant has assured the plaintiff that all defects will be repaired. (See Lantzy,
supra, 31 Cal.4th at p. 384.)
Sources and Authority
• “As the name suggests, equitable estoppel is an equitable issue for court
resolution.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory verdicts
as to questions of fact [in equitable actions], it is the duty of the trial court to
make its own independent findings and to adopt or reject the findings of the jury
as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156 [85
Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 456 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
estoppel . . . .” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “Equitable tolling and equitable estoppel are distinct doctrines. ‘ “Tolling, strictly
speaking, is concerned with the point at which the limitations period begins to
run and with the circumstances in which the running of the limitations period
may be suspended. . . . Equitable estoppel, however, . . . comes into play only
after the limitations period has run and addresses . . . the circumstances in
which a party will be estopped from asserting the statute of limitations as a
defense to an admittedly untimely action because his conduct has induced
another into forbearing suit within the applicable limitations period. [Equitable
estoppel] is wholly independent of the limitations period itself and takes its life
. . . from the equitable principle that no man [may] profit from his own
wrongdoing in a court of justice.” ’ Thus, equitable estoppel is available even
where the limitations statute at issue expressly precludes equitable tolling.”
(Lantzy, supra, 31 Cal.4th at pp. 383–384, internal citations omitted.)
• “Accordingly, (1) if one potentially liable for a construction defect represents,
while the limitations period is still running, that all actionable damage has been
or will be repaired, thus making it unnecessary to sue, (2) the plaintiff
359
CACI No. 456 NEGLIGENCE
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],
internal citations omitted.)
• “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
361
CACI No. 456 NEGLIGENCE
362
457. Statute of Limitations—Equitable Tolling—Other Prior
Proceeding
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
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. (2009) 172
Cal.App.4th 1494, 1505 [92 Cal.Rptr.3d 131].)
• “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,
supra, 45 Cal.4th at p. 101, internal citation omitted.)
• “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
366
NEGLIGENCE CACI No. 457
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],
internal citation omitted.)
• “Tolling the FEHA limitation period while the employee awaits the outcome of
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 440, 482–483 [216 Cal.Rptr.3d 390], internal
citations omitted.)
• “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
367
CACI No. 457 NEGLIGENCE
368
460. Strict Liability for Ultrahazardous Activities—Essential
Factual Elements
371
461. Strict Liability for Injury Caused by Wild Animal—Essential
Factual Elements
the question of the owner’s negligence is not in the case.’ ” (Hillman v. Garcia-
Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033].)
• “[I]f the animal which inflicted the injury is vicious and dangerous, known to the
defendant to be such, an allegation of negligence on the part of defendant is
unnecessary and the averment, if made, may be treated as surplusage.” (Baugh,
supra, 91 Cal.App.2d at p. 791.)
• “[A] wild animal is presumed to be vicious and since the owner of such an
animal . . . is an insurer against the acts of the animal to anyone who is injured,
and unless such person voluntarily or consciously does something which brings
the injury on himself, the question of the owner’s negligence is not in the case.”
Baugh, supra, 91 Cal.App.2d at p. 791.)
• “The court instructed the jury with respect to the liability of the keeper of a
vicious or dangerous animal, known to be such by its owner. Although plaintiff
has not raised any objection to this instruction, it was not proper in the instant
case since the animal was of the class of animals ferae naturae, of known
savage and vicious nature, and hence an instruction on the owner’s knowledge of
its ferocity was unnecessary.” (Baugh, supra, 91 Cal.App.2d at pp. 791–792.)
• “[Strict] liability has been imposed on ‘keepers of lions and tigers, bears,
elephants, wolves [and] monkeys.’ ” (Rosenbloom v. Hanour Corp. (1998) 66
Cal.App.4th 1477, 1479, fn. 1 [78 Cal.Rptr.2d 686].)
• “The owner of a naturally dangerous animal may be excused from the usual duty
of care: ‘In cases involving “primary assumption of risk”—where, by virtue of
the nature of the activity and the parties’ relationship to the activity, the
defendant owes no legal duty to protect the plaintiff from the particular risk of
harm that caused the injury—the doctrine . . . operates as a complete bar to the
plaintiff’s recovery.’ ” (Rosenbloom, supra, 66 Cal.App.4th at p. 1479, internal
citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1563
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.23 (Matthew Bender)
1 California Civil Practice: Torts §§ 2:20–2:21 (Thomson Reuters)
373
462. Strict Liability for Injury Caused by Domestic Animal With
Dangerous Propensities—Essential Factual Elements
That the owner knew it.” (Mann v. Stanley (1956) 141 Cal.App.2d 438, 441 [296
P.2d 921].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1575–1588 et seq.
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.33 (Matthew Bender)
1 California Civil Practice: Torts, §§ 2:20–2:21 (Thomson Reuters)
376
463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual
Elements
378
470. Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013; Revised and Renumbered from CACI No. 408 May 2017;
Revised May 2018
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
379
CACI No. 470 NEGLIGENCE
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, some courts have held that whether the
defendant has increased the risk beyond those inherent in the sport or activity 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, including cases contra.) 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].)
Sources and Authority
• “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 Cal.Rptr.2d 855],
internal citations omitted.)
• “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”]; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 540 [220
Cal.Rptr.3d 556] [horseback riding is an inherently dangerous sport]; Foltz v.
Johnson (2017) 16 Cal.App.5th 647, 656–657 [224 Cal.Rptr.3d 506] [off-road
dirt bike riding].)
• “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
380
NEGLIGENCE CACI No. 470
385
471. Primary Assumption of Risk—Exception to
Nonliability—Instructors, Trainers, or Coaches
New September 2003; Revised April 2004, June 2012, December 2013; Revised and
Renumbered from CACI No. 409 May 2017; Revised May 2020
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 the plaintiff to
participate in the sport or activity when the plaintiff was physically unfit to
participate or by allowing the plaintiff to use unsafe equipment or instruments. (See
386
NEGLIGENCE CACI No. 471
Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120 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.
Sources and Authority
• “In order to support a cause of action in cases in which it is alleged that a sports
instructor has required a student to perform beyond the student’s capacity or
without providing adequate instruction, it must be alleged and proved that the
instructor acted with intent to cause a student’s injury or that the instructor acted
recklessly in the sense that the instructor’s conduct was ‘totally outside the range
of the ordinary activity’ involved in teaching or coaching the sport.” (Kahn v.
East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4
Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to
skateboarding”].)
• “Here, we do not deal with the relationship between coparticipants in a sport, or
387
CACI No. 471 NEGLIGENCE
with the duty that an operator may or may not owe to a spectator. Instead, we
deal with the duty of a coach or trainer to a student who has entrusted himself to
the former’s tutelage. There are precedents reaching back for most of this
century that find an absence of duty to coparticipants and, often, to spectators,
but the law is otherwise as applied to coaches and instructors. For them, the
general rule is that coaches and instructors owe a duty of due care to persons in
their charge. The coach or instructor is not, of course, an insurer, and a student
may be held to notice that which is obvious and to ask appropriate questions.
But all of the authorities that comment on the issue have recognized the
existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528,
1535–1536 [17 Cal.Rptr.2d 89], internal citations omitted.)
• “[D]ecisions have clarified that the risks associated with learning a sport may
themselves be inherent risks of the sport, and that an instructor or coach
generally does not increase the risk of harm inherent in learning the sport simply
by urging the student to strive to excel or to reach a new level of competence.”
(Kahn, supra, 31 Cal.4th at p. 1006.)
• “To the extent a duty is alleged against a coach for ‘pushing’ and/or
‘challenging’ a student to improve and advance, the plaintiff must show that the
coach intended to cause the student’s injury or engaged in reckless conduct—that
is, conduct totally outside the range of the ordinary activity involved in teaching
or coaching the sport. Furthermore, a coach has a duty of ordinary care not to
increase the risk of injury to a student by encouraging or allowing the student to
participate in the sport when he or she is physically unfit to participate or by
allowing the student to use unsafe equipment or instruments.” (Eriksson, supra,
191 Cal.App.4th at p. 845, internal citation omitted.)
• “That an instructor might ask a student to do more than the student can manage
is an inherent risk of the activity. Absent evidence of recklessness, or other risk-
increasing conduct, liability should not be imposed simply because an instructor
asked the student to take action beyond what, with hindsight, is found to have
been the student’s abilities. To hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club,
LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)
• Coaches and sports instructors “owe students a duty ‘not to increase the risks
inherent in the learning process undertaken by the student.’ But this does not
require them to ‘fundamentally alter the nature of the sport and, in some
instances, effectively preclude participation altogether . . . .’ Instead, ‘[b]y
choosing to participate in a sport that poses the obvious possibility of injury, the
student athlete must learn to accept an adverse result of the risks inherent in the
sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437
[89 Cal.Rptr.2d 920], internal citations omitted.)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question of
law and based on the general characteristics of the sport activity and the parties’
388
NEGLIGENCE CACI No. 471
relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th
490, 501 [194 Cal.Rptr.3d 830].)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a 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].)
• “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
389
CACI No. 471 NEGLIGENCE
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84 Cal.App.4th
975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court to determine
whether defendant’s conduct increased the risk inherent in participating in a
particular sport, but that trial court may receive expert testimony on the
customary practices in the sport to make that determination].) [¶] Our conclusion
it is for the trier of fact to determine whether [defendant] breached his limited
duty not to increase the risks inherent in the sport of volleyball finds solid
support in the Supreme Court’s most recent sports injury, primary assumption of
the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a case that postdates the
appellate court decisions suggesting the issue is one for the court to resolve.”
(Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “The existence of a duty of care is a separate issue from the question whether
(on the basis of forseeability among other factors) a particular defendant
breached that duty of care, which is an essentially factual matter.” (Kockelman v.
Segal (1998) 61 Cal.App.4th 491, 498 [71 Cal.Rptr.2d 552].)
• “[A duty not to increase the risk] arises only if there is an ‘ “organized
relationship” ’ between the defendants and the participant in relation to the
sporting activity, such as exists between . . . a coach or instructor and his or her
students. [I]mposing such a duty in the context of these types of relationships is
justified because the defendants are ‘responsible for, or in control of, the
conditions under which the [participant] engaged in the sport.’ ” (Bertsch, supra,
247 Cal.App.4th at pp. 1208−1209, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496, 1497,
1501–1510
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶¶ 3:1067–3:1078 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
390
472. Primary Assumption of Risk—Exception to
Nonliability—Facilities Owners and Operators and Event
Sponsors
New December 2013; Revised and Renumbered from CACI No. 410 May 2017;
Revised May 2019
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. Cedar Fair, L.P.
(2012) 55 Cal.4th 1148, 1162 [150 Cal.Rptr.3d 551, 290 P.3d 1158] [participants];
Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65
Cal.Rptr.2d 105] [spectators].)
There is also a duty to minimize risks that are extrinsic to the nature of the sport;
that is, those that can be addressed without altering the essential nature of the
activity. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 38 [236
391
CACI No. 472 NEGLIGENCE
Cal.Rptr.3d 682].) Choose either or both options for element 2 depending on which
duty is alleged to have been breached.
While duty is a question of law, courts have held that whether the defendant has
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]; cf.
Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344,
354 [235 Cal.Rptr.3d 716] [court to decide whether an activity is an active sport, the
inherent risks of that sport, and whether the defendant has increased the risks of the
activity beyond the risks inherent in the sport].) 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 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.
Sources and Authority
• “[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, supra,
55 Cal.4th at p. 1162.)
• “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].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to
skateboarding”], internal citations omitted.)
• “What the primary assumption of risk doctrine does not do, however, is absolve
operators of any obligation to protect the safety of their customers. As a general
rule, where an operator can take a measure that would increase safety and
minimize the risks of the activity without also altering the nature of the activity,
the operator is required to do so. As the court explained in Knight, ‘in the sports
392
NEGLIGENCE CACI No. 472
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. [¶] 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, a
case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna, supra, 169 Cal.App.4th at pp. 112–113, internal
citations omitted.)
• “Although defendants generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself, it is well established that
defendants generally do have a duty to use due care not to increase the risks to a
participant over and above those inherent in the sport. Thus, although a ski resort
has no duty to remove moguls from a ski run, it clearly does have a duty to use
due care to maintain its towropes in a safe, working condition so as not to
expose skiers to an increased risk of harm. The cases establish that the latter
type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in
the sport) that is assumed by a participant.” (Knight, supra, 3 Cal.4th at pp.
315–316.)
• “Under Knight, defendants had a duty not to increase the inherent risks to which
spectators at professional baseball games are regularly exposed and which they
assume. As a result, a triable issue of fact remained, namely whether the
[defendants]’ mascot cavorting in the stands and distracting plaintiff’s attention,
while the game was in progress, constituted a breach of that duty, i.e.,
constituted negligence in the form of increasing the inherent risk to 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].)
394
NEGLIGENCE CACI No. 472
• “[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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496–1497,
1501–1511
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶ 3:1120 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
395
473. Primary Assumption of Risk—Exception to
Nonliability—Occupation Involving Inherent Risk
While duty is a question of law, courts have held that whether the defendant has
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].)
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 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.
Sources and Authority
• “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)
243 Cal.App.4th 427, 435 [197 Cal.Rptr.3d 51].)
• “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.
397
CACI No. 473 NEGLIGENCE
398
VF-400. Negligence—Single Defendant
399
VF-400 NEGLIGENCE
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
400
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
402
NEGLIGENCE VF-401
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
403
VF-402. Negligence—Fault of Plaintiff and Others at Issue
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
406
NEGLIGENCE VF-402
407
VF-403. Primary Assumption of Risk—Liability of Coparticipant
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, April 2009, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 470, Primary Assumption of
Risk—Exception to Nonliability—Coparticipant in Sport or Other Recreational
Activity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
409
VF-404. Primary Assumption of Risk—Liability of Instructors,
Trainers, or Coaches
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, December 2010, June 2012,
December 2016
Directions for Use
This verdict form is based on CACI No. 471, Primary Assumption of
Risk—Exception to Nonliability—Instructors, Trainers, or Coaches.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
411
VF-404 NEGLIGENCE
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
412
VF-405. Primary Assumption of Risk—Liability of Facilities
Owners and Operators and Event Sponsors
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
414
VF-406. Negligence—Providing Alcoholic Beverages to Obviously
Intoxicated Minor
Signed:
Presiding Juror 416
NEGLIGENCE VF-406
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 422, Providing Alcoholic Beverages to
Obviously Intoxicated Minors.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Omit question 1 if the defendant is a person such as a social host who, though not
required to be licensed, sells alcohol to an obviously intoxicated minor. (See Ennabe
v. Manosa (2014) 58 Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].)
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the comparative fault of the plaintiff is an issue, this form should be modified.
See CACI No. VF-401, Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue, for a model form involving the issue of
comparative fault.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
417
VF-407. Strict Liability—Ultrahazardous Activities
418
NEGLIGENCE VF-407
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 460, Strict Liability for Ultrahazardous
Activities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
419
VF-408. Strict Liability for Domestic Animal With Dangerous
Propensities
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 462, Strict Liability for Injury Caused by
Domestic Animal With Dangerous Propensities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
421
VF-408 NEGLIGENCE
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.
422
VF-409. Dog Bite Statute (Civ. Code, § 3342)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 463, Dog Bite Statute (Civ. Code,
§ 3342)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
424
VF-410. Statute of Limitations—Delayed Discovery—Reasonable
Investigation Would Not Have Disclosed Pertinent Facts
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.
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. If both delayed discovery
and nondiscovery despite reasonable investigation are at issue, use both options and
renumber them as question 2 and question 3.
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.
426
VF-411. Parental Liability (Nonstatutory)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-405 December 2015; 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.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
428
NEGLIGENCE VF-411
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-412–VF-499. Reserved for Future Use
429
MEDICAL NEGLIGENCE
432
500. Medical Negligence—Essential Factual Elements
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.)
• “On causation, the plaintiff must establish ‘it is more probable than not the
negligent act was a cause-in-fact of the plaintiff’s injury.’ ‘ “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.” ’ ‘[C]ausation in actions arising from medical negligence must be proven
within a reasonable medical probability based on competent expert testimony,
i.e., something more than a “50-50 possibility.” ’ ‘[T]he evidence must be
sufficient to allow the jury to infer that in the absence of the defendant’s
negligence, there was a reasonable medical probability the plaintiff would have
obtained a better result.’ ” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th
234, 247 [235 Cal.Rptr.3d 629], internal citations omitted.)
• “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
434
MEDICAL NEGLIGENCE CACI No. 500
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
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
(1996) 50 Cal.App.4th 797, 806–807 [57 Cal.Rptr.2d 894].)
• “[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 (11th ed. 2017) Torts, §§ 1066–1068, 1071,
1072
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.65
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, 295.43
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
seq. (Matthew Bender)
435
501. Standard of Care for Health Care Professionals
New September 2003; Revised October 2004, December 2005, December 2010
Directions for Use
This instruction is intended to apply to nonspecialist physicians, surgeons, and
dentists. The standards of care for nurses, specialists, and hospitals are addressed in
separate instructions. (See CACI No. 502, Standard of Care for Medical Specialists,
CACI No. 504, Standard of Care for Nurses, and CACI No. 514, Duty of Hospital.)
The second paragraph should be used if the court determines that expert testimony
is necessary to establish the standard of care, which is usually the case. (See Scott v.
Rayhrer (2010) 185 Cal.App.4th 1535, 1542–1543 [111 Cal.Rptr.3d 36].)
If the standard of care is set by statute or regulation, refer to instructions on
negligence per se (CACI Nos. 418–421). (See Galvez v. Frields (2001) 88
Cal.App.4th 1410 [107 Cal.Rptr.2d 50].)
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
• “With unimportant variations in phrasing, we have consistently held that a
physician is required to possess and exercise, in both diagnosis and treatment,
that reasonable degree of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar circumstances.”
(Landeros v. Flood (1976) 17 Cal.3d 399, 408 [131 Cal.Rptr. 69, 551 P.2d 389].)
• “The courts require only that physicians and surgeons exercise in diagnosis and
treatment that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of the medical profession under similar
circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36 [210 Cal.Rptr.
762, 694 P.2d 1134].)
• “[T]he law imposes on individuals a duty to have medical education, training
and skill before practicing medicine and that practicing medicine without this
education, training and skill is negligent. . . . [A] breach of that portion of the
436
MEDICAL NEGLIGENCE CACI No. 501
standard of care does not, in and of itself, establish actionable malpractice (i.e.,
one cannot recover from a person merely for lacking medical knowledge unless
that lack of medical knowledge caused injury to the plaintiff).” (Hinson v.
Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1119 [267
Cal.Rptr. 503], disapproved on other grounds in Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1228 [23 Cal.Rptr.2d 397, 859 P.2d 96].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating to
the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
• “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
theory than that someone has committed actionable negligence.” (Ales v. Ryan
(1936) 8 Cal.2d 82, 93 [64 P.2d 409].)
437
CACI No. 501 MEDICAL NEGLIGENCE
438
502. Standard of Care for Medical Specialists
often make diagnoses and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and in predicting
whether a patient presents a serious danger of violence is comparable to the
judgment which doctors and professionals must regularly render under accepted
rules of responsibility.” (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d
425, 438 [131 Cal.Rptr. 14, 551 P.2d 334].)
• “[A] psychotherapist or other mental health care provider has a duty to use a
reasonable degree of skill, knowledge and care in treating a patient,
commensurate with that possessed and exercised by others practicing within that
specialty in the professional community.” (Kockelman v. Segal (1998) 61
Cal.App.4th 491, 505 [71 Cal.Rptr.2d 552].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating to
the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.2
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.85 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
440
503A. Psychotherapist’s Duty to Protect Intended Victim From
Patient’s Threat
Derived from former CACI No. 503 April 2007; Revised June 2013, May 2020
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 the therapist is immune from liability under
Civil Code section 43.92(b) because the therapist made reasonable efforts to
communicate the threat to the victim and to a law enforcement agency.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(a).
• “[T]herapists cannot escape liability merely because [the victim] was not their
patient. When a therapist determines, or pursuant to the standards of his
441
CACI No. 503A MEDICAL NEGLIGENCE
442
503B. Affirmative Defense—Psychotherapist’s Communication of
Threat to Victim and Law Enforcement
Derived from former CACI No. 503 April 2007; Revised June 2013, May 2020
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 the therapist makes reasonable efforts to
communicate the threat to the victim and to a law enforcement agency. (Civ. Code,
§ 43.92(b).) CACI No. 503A, Psychotherapist’s Duty to Protect Intended Victim
From Patient’s Threat, sets forth the elements of a Tarasoff cause of action if the
defendant is not immune.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(b).
• Failure to inform a law enforcement agency concerning a homicidal threat made
by a patient against his work supervisor did not abrogate the “firefighter’s rule”
and, therefore, did not render the psychiatrist liable to a police officer who was
subsequently shot by the patient. (Tilley v. Schulte (1999) 70 Cal.App.4th 79,
85–86 [82 Cal.Rptr.2d 497].)
• “When the communication of the serious threat of physical violence is received
by the therapist from a member of the patient’s immediate family and is shared
for the purpose of facilitating and furthering the patient’s treatment, the fact that
the family member is not technically a ‘patient’ is not crucial to the statute’s
purpose.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d
864].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1189, 1190
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services and Civil Rights, § 361A.93
(Matthew Bender)
443
CACI No. 503B MEDICAL NEGLIGENCE
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
444
504. Standard of Care for Nurses
446
505. Success Not Required
in the absence of a want of reasonable care and skill will not be held responsible
for untoward results.” (Sanchez v. Rodriguez (1964) 226 Cal.App.2d 439, 449
[38 Cal.Rptr. 110].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066, 1067
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.5
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.01 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.38
(Matthew Bender)
448
506. Alternative Methods of Care
449
507. Duty to Warn Patient
Secondary Sources
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.16 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.22,
175.23 (Matthew Bender)
451
508. Duty to Refer to a Specialist
452
509. Abandonment of Patient
surgeon, is under his special supervision and control during the operation, the
relationship of master and servant exists, and the surgeon is liable, under the
doctrine of respondeat superior, for the employee’s negligence.’ ” (Thomas,
supra, 47 Cal.App.4th at pp. 966–967, original italics.)
• This doctrine applies only to medical personnel who are actively participating in
the surgical procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)
• While the “captain of the ship” doctrine has never been expressly rejected, it has
been eroded by modern courts. “A theory that the surgeon directly controls all
activities of whatever nature in the operating room certainly is not realistic in
present day medical care.” (Truhitte, supra, 128 Cal.App.3d at p. 348, original
italics.)
• “[T]he Truhitte court ignores what we have already recognized as the special
relationship between a vulnerable hospital patient and the surgeon operating on
the patient. A helpless patient on the operating table who cannot understand or
control what is happening reasonably expects a surgeon to oversee her care and
to look out for her interests. We find this special relationship sufficient
justification for the continued application of captain of the ship doctrine.
Moreover, in light of the Supreme Court’s expressions of approval of the
doctrine . . . , we feel compelled to adhere to the doctrine.” (Baumgardner,
supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)
• Absent evidence of right to control, an operating surgeon is generally not
responsible for the conduct of anesthesiologists or others who independently
carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d
915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1109
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.25
(Matthew Bender)
455
511. Wrongful Birth—Sterilization/Abortion—Essential Factual
Elements
456
MEDICAL NEGLIGENCE CACI No. 511
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1110
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
457
512. Wrongful Birth—Essential Factual Elements
458
MEDICAL NEGLIGENCE CACI No. 512
459
513. Wrongful Life—Essential Factual Elements
New September 2003; Revised April 2007, April 2008, November 2019
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
460
MEDICAL NEGLIGENCE CACI No. 513
462
514. Duty of Hospital
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1120
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”, ¶¶ 2:1898–2:1925 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA Provisions
Affecting Damages, ¶¶ 3:282.11c, 3:282.11d (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.64
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
465
515. Duty of Hospital to Provide Safe Environment
467
517. Affirmative Defense—Patient’s Duty to Provide for the
Patient’s Own Well-Being
A patient must use reasonable care to provide for the patient’s 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/nonbinary pronoun] harm.
469
518. Medical Malpractice: Res ipsa loquitur
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 negligence
on the defendant’s part was not a proximate cause of the accident. In this case, the
presumption drops out, and the plaintiff must then prove the elements of negligence
without the benefit of the presumption of res ipsa loquitur. (See Howe, supra, 189
Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res ipsa loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption arises
when the evidence satisfies three conditions: ‘ “(1) the accident must be of a
kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff.” ’ A presumption affecting the burden
of producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant. . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’ the
trier of fact determines whether defendant was negligent without regard to the
presumption, simply by weighing the evidence.” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal
citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was the
result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
471
CACI No. 518 MEDICAL NEGLIGENCE
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of negligence
or lack of proximate cause that the injury claimed was the result of that
negligence. As a presumption affecting the burden of producing evidence (as
distinguished from a presumption affecting the burden of proof), if evidence is
presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of the
accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of the
presumed fact causes the presumption, as a matter of law, to disappear.’ When
the presumptive effect vanishes, it is the plaintiff’s burden to introduce actual
evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving rise
to the presumption have been proved by a preponderance of the evidence, it may
nevertheless find the defendant negligent if it concludes from a consideration of
all the evidence that it is more probable than not that the defendant was
negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal citation
omitted.)
• “It follows that where part of the facts basic to the application of the doctrine of
res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” (Rimmele v.
Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 116–120
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
473
CACI No. 518 MEDICAL NEGLIGENCE
474
530A. Medical Battery
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Select either or both of the two bracketed options in the first element depending on
the nature of the case. In a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred, give CACI No.
530B, Medical Battery—Conditional Consent.
Sources and Authority
• “The California Supreme Court has described the right to consent to medical
treatment as ‘ “basic and fundamental,” ’ ‘intensely individual,’ and ‘broadly
based.’ The same court has also emphasized that excusing the patient from a
judicial proceeding regarding a surgery to be performed over his objection
‘denie[s] fundamental due process.’ It is immaterial that a doctor has said the
treatment is required to save the patient’s life. Rather, ‘ “A doctor might well
believe that an operation or form of treatment is desirable or necessary, but the
law does not permit him to substitute his own judgment for that of the patient by
any form of artifice or deception.” ’ Finally, the patient’s reasons for refusing are
irrelevant. ‘For self-determination to have any meaning, it cannot be subject to
the scrutiny of anyone else’s conscience or sensibilities.’ ” (Stewart v. Superior
Court (2017) 16 Cal.App.5th 87, 105 [224 Cal.Rptr.3d 219], internal citations
omitted.)
• 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
475
CACI No. 530A MEDICAL NEGLIGENCE
477
530B. Medical Battery—Conditional Consent
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Give this instruction in a case of a conditional consent in which it is alleged that the
defendant proceeded without the condition having occurred. If the claim is that the
defendant proceeded without any consent or deviated from the consent given, give
CACI No. 530A, Medical Battery.
Sources and Authority
• Battery may also be found if a conditional consent is violated: “[I]t is well
recognized a person may place conditions on 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, 610 [278 Cal.Rptr. 900].)
• Battery is an intentional tort. Therefore, a claim for battery against a doctor as a
violation of conditional consent requires proof that the doctor intentionally
violated the condition placed on the patient’s consent. (Piedra v. Dugan (2004)
123 Cal.App.4th 1483, 1498 [21 Cal.Rptr.3d 36], internal citations omitted.)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No. 530A.
478
MEDICAL NEGLIGENCE CACI No. 530B
On the other hand, in a case involving conditional consent, the requisite element
of deliberate intent to deviate from the consent given cannot be presumed simply
from the act itself. This is because if the intent element is not explicitly stated in
the instruction, it would be possible for a jury (incorrectly) to find a doctor liable
for medical battery even if it believed the doctor negligently forgot about the
condition precedent.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94
Cal.Rptr.3d 559], internal citation omitted.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71
Cal.Rptr.3d 469].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459–740
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew
Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
479
531. Consent on Behalf of Another
In this case [name of patient] could not consent to the [insert medical
procedure] because [he/she/nonbinary pronoun] 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].
480
532. Informed Consent—Definition
New September 2003; Revised December 2005, October 2008, June 2014
Directions for Use
This instruction should be read in conjunction with CACI No. 533, Failure to
Obtain Informed Consent—Essential Factual Elements. Do not give this instruction
with CACI No. 530A, Medical Battery, or CACI No. 530B, Medical
Battery—Conditional Consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316,
324 [71 Cal.Rptr.3d 469].)
If the patient is a minor or is incapacitated, tailor the instruction accordingly. If a
medical practitioner knows or should know of a patient’s unique concerns or lack of
familiarity with medical procedures, this knowledge may expand the scope of
required disclosures and require additional instructional language. (See Truman v.
Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902].)
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “From the foregoing axiomatic ingredients emerges a necessity, and a resultant
requirement, for divulgence by the physician to his patient of all information
relevant to a meaningful decisional process.” (Cobbs v. Grant (1972) 8 Cal.3d
229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “ ‘[A] physician has a fiduciary duty to disclose all information material to the
patient’s decision,’ when soliciting a patient’s consent to a medical procedure. A
cause of action premised on a physician’s breach of this fiduciary duty may
481
CACI No. 532 MEDICAL NEGLIGENCE
483
533. Failure to Obtain Informed Consent—Essential Factual
Elements
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.23 et seq.
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.23,
175.29 (Matthew Bender)
486
534. Informed Refusal—Definition
488
535. Risks of Nontreatment—Essential Factual Elements
(1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations
omitted.)
• “The duty of reasonable disclosure was expanded in Truman v. Thomas [supra].
There, a doctor recommended that his patient undergo a risk-free diagnostic
procedure but failed to advise her of the risks involved in the failure to follow
his recommendation. The Supreme Court concluded that for a patient to make an
informed choice to decline a recommended procedure the patient must be
adequately advised of the risks of refusing to undergo the procedure. Thus, the
high court extended the duty to make disclosure to include recommended
diagnostic as well as therapeutic procedures and to include situations in which
the patient declines the recommended procedure.” (Vandi v. Permanente Medical
Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].)
• “In a nutshell, a doctor has a duty to disclose all material information to his
patient which will enable that patient to make an informed decision regarding
the taking or refusal to take such a test.” (Moore v. Preventive Medicine Medical
Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471, 475, 477,
480, 481
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.33 (Matthew Bender)
536–549. Reserved for Future Use
490
550. Affirmative Defense—Plaintiff Would Have Consented
491
CACI No. 550 MEDICAL NEGLIGENCE
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
492
551. Affirmative Defense—Waiver
493
552. Affirmative Defense—Simple Procedure
495
553. Affirmative Defense—Emotional State of Patient
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
497
554. Affirmative Defense—Emergency
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.14, 31.62 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[7] (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.38 (Matthew
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
499
555. Affirmative Defense—Statute of Limitations—Medical
Malpractice—One-Year Limit (Code Civ. Proc., § 340.5)
(See Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d 701]
[construing structurally similar Code Civ. Proc., § 340.6, on legal malpractice, to
place burden regarding delayed discovery on the defendant and disapproving Burgon
v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813 [155 Cal.Rptr. 763],
which had reached the opposite result under Code Civ. Proc., § 340.5].) See also
CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit.
Sources and Authority
• Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section
340.5.
• Notice of Intent to Commence Action. Code of Civil Procedure section 364(a).
• 90-Day Extension of Limitation Period. Code of Civil Procedure section 364(d).
• “The one-year limitation period of section 340.5 is a codification of the
discovery rule, under which a cause of action accrues when the plaintiff is
aware, or reasonably should be aware, of ‘injury,’ a term of art which means
‘both the negligent cause and the damaging effect of the alleged wrongful act.’ ”
(Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 [170 Cal.Rptr.3d 125].)
• “When a plaintiff has information which would put a reasonable person on
inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused”
and the plaintiff has “become alerted to the necessity for investigation and
pursuit of her remedies,” the one-year period commences. “Possession of
‘presumptive’ as well as ‘actual’ knowledge will commence the running of the
statute.” ’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [16 Cal.Rptr.2d
714], internal citations omitted.)
• “[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].)
• “Injury from the failure to diagnose a latent, progressive condition occurs ‘when
the undiagnosed condition develops into a more serious condition,’ and that more
serious condition is made manifest by an appreciable increase or alteration in
symptoms. A patient’s concerns or suspicions about a diagnosis do not trigger
the statute of limitations when no more serious condition is manifest and no lack
of diligence is shown.” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 781
[273 Cal.Rptr.3d 731], internal citations omitted.)
• “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
501
CACI No. 555 MEDICAL NEGLIGENCE
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-year
period it does not mention, in addition to the three-year period it does mention.
The general purpose of MICRA does not require us to expand that sentence
beyond its language.” (Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928,
934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [Code Civ. Proc., § 352.1, which tolls
statutes of limitation for prisoners, applies to extend one-year period of Code
Civ. Proc., § 340.5].)
• “The implications of Belton’s analysis for our case here is inescapable. Like
tolling the statute of limitations for confined prisoners under section 352.1,
tolling under section 351 for a defendant’s absence from California is of general
applicability [and therefore extends the one-year period of Code of Civil
Procedure section 340.5]. (For other general tolling provisions, see § 352 [minors
or insanity]; § 352.5 [restitution orders]; § 353.1 [court’s assumption of
attorney’s practice]; § 354 [war]; § 356 [injunction].)” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 643 [75 Cal.Rptr.3d 861].)
• “[A] plaintiff’s minority as such does not toll the limitations period of section
340.5. When the Legislature added the separate statute of limitations for minors
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. Memorial Hospital (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
502
MEDICAL NEGLIGENCE CACI No. 555
503
556. Affirmative Defense—Statute of Limitations—Medical
Malpractice—Three-Year Limit (Code Civ. Proc., § 340.5)
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
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see
Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153,
157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision of
medical care].)
• “[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.)
• “[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
506
MEDICAL NEGLIGENCE CACI No. 556
507
VF-500. Medical Negligence
508
MEDICAL NEGLIGENCE VF-500
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 500, Medical Negligence—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
509
VF-501. Medical Negligence—Informed Consent—Affirmative
Defense—Plaintiff Would Have Consented Even If Informed
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2015, December
2016, May 2020
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.
511
VF-501 MEDICAL NEGLIGENCE
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the 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.
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.
512
VF-502. Medical Negligence—Informed Consent—Affirmative
Defense—Emergency
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2016, May 2020
514
MEDICAL NEGLIGENCE VF-502
515
PROFESSIONAL NEGLIGENCE
517
600. Standard of Care
New September 2003; Revised October 2004, December 2007, May 2020
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.
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
If the defendant is a specialist in a 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.
Sources and Authority
• “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
518
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)
171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
• “[A]n attorney’s duty to exercise the skill and care that a reasonably careful
attorney would use in similar circumstances extends to prelitigation investigation
and evaluation of a client’s potential claims. ‘ “When one suspects that another
has caused harm, a preliminary investigation is usually necessary in order to
know whether one has a potential legal claim, evaluate the likelihood of success,
and decide whether or not to assert it. Consequently, the investigation of a
potential claim is normally and reasonably part of effective litigation, if not an
essential part of it.” ’ With the duty to investigate comes an attorney’s duty to
evaluate and advise clients of the risks of contemplated litigation.”
(Mireskandari v. Edwards Wildman Palmer LLP (2022) 77 Cal.App.5th 247, 260
[292 Cal.Rptr.3d 410], internal citations omitted.)
• “[I]f the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP
(2014) 228 Cal.App.4th 107, 112–113 [174 Cal.Rptr.3d 662].)
• “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of
fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
• “ ‘[T]he requirement that the plaintiff prove causation should not be confused
with the method or means of doing so. Phrases such as “trial within a
trial,” “case within a case,” . . . and “better deal” scenario describe methods of
proving causation, not the causation requirement itself or the test for determining
whether causation has been established.’ ” (Knutson v. Foster (2018) 25
Cal.App.5th 1075, 1091 [236 Cal.Rptr.3d 473].)
519
CACI No. 600 PROFESSIONAL NEGLIGENCE
• “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,
supra, 5 Cal.App.5th at p. 1050.)
• “It is well settled that an attorney is liable for malpractice when his negligent
investigation, advice, or conduct of the client’s affairs results in loss of the
client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218
Cal.Rptr. 313, 705 P.2d 886].)
• “[A] lawyer holding himself out to the public and the profession as specializing
in an area of the law must exercise the skill, prudence, and diligence exercised
by other specialists of ordinary skill and capacity specializing in the same field.”
(Wright, supra, 47 Cal.App.3d at p. 810.)
• “To establish a [professional] malpractice claim, a plaintiff is required to present
expert testimony establishing the appropriate standard of care in the relevant
community. ‘Standard of care “ ‘is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations] . . . .’ ” [Citation.]’ ” (Quigley v. McClellan
(2013) 214 Cal.App.4th 1276, 1283 [154 Cal.Rptr.3d 719], internal citations
omitted.)
• “California law does not require an expert witness to prove professional
malpractice in all circumstances. ‘In professional malpractice cases, expert
opinion testimony is required to prove or disprove that the defendant performed
in accordance with the prevailing standard of care [citation], except in cases
where the negligence is obvious to laymen.’ ” (Ryan v. Real Estate of the
Pacific, Inc. (2019) 32 Cal.App.5th 637, 644–645 [244 Cal.Rptr.3d 129].)
• “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].)
520
PROFESSIONAL NEGLIGENCE CACI No. 600
521
601. Legal Malpractice—Causation
New September 2003; Revised June 2015, May 2020, December 2022
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, the
plaintiff would have obtained a more favorable result. (Viner v. Sweet (2003) 30
Cal.4th 1232, 1244 [135 Cal.Rptr.2d 629, 70 P.3d 1046].) The second sentence
expresses this “but for” standard.
Sources and Authority
• “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
caused by a professional’s malfeasance.” (Mattco Forge Inc., supra, 52
Cal.App.4th at p. 834.)
522
PROFESSIONAL NEGLIGENCE CACI No. 601
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 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.)
• “[W]e conclude the applicable standard of proof for the elements of causation
and damages in a ‘settle and sue’ legal malpractice action is the preponderance
of the evidence standard. First, use of the preponderance of the evidence
standard of proof is appropriate because it is the ‘default standard of proof in
civil cases’ and use of a higher standard of proof ‘occurs only when interests
“ ‘more substantial than mere loss of money’ ” are at stake.’ ” (Masellis v. Law
Offıce of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092 [264 Cal.Rptr.3d
621].)
• “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].)
• “For purposes of determining whether a more favorable outcome would have
been obtained, the object of the exercise is not to ‘ “recreate what a particular
judge or fact finder would have done. Rather, the [finder of fact’s] task is to
determine what a reasonable judge or fact finder would have done . . . .” ’ ”
(O’Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 236 [278 Cal.Rptr.3d 654].)
• “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
v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357–358 [89 Cal.Rptr.3d
710].)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 330–331, 333
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-E,
Professional Liability, ¶ 6:322 (The Rutter Group)
3 Neil M. Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.30
(Matthew Bender, Rev. Ed.)
524
PROFESSIONAL NEGLIGENCE CACI No. 601
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.70 et seq. (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)
525
602. Success Not Required
527
603. Alternative Legal Decisions or Strategies
528
604. Referral to Legal Specialist
529
606. Legal Malpractice Causing Criminal Conviction—Actual
Innocence
as follows. ‘First, we should not permit a guilty defendant to profit from his or
her own wrong. [Citation.] Second, to allow guilty defendants to shift their
punishment to their former attorneys would undermine the criminal justice
system. [Citation.] Third, “a defendant’s own criminal act remains the ultimate
source of his predicament irrespective of counsel’s subsequent negligence.”
[Citation.] Fourth, a guilty defendant who is convicted or given a longer
sentence as a result of counsel’s incompetence can obtain postconviction relief
on that basis; in contrast, “a civil matter lost through an attorney’s negligence is
lost forever.” [Citation.] Fifth, there are formidable practical problems with
criminal malpractice litigation, including the difficulty of quantifying damages
and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard
applicable in a criminal trial. [Citation.]’ ” (Khodayari v. Mashburn (2011) 200
Cal.App.4th 1184, 1193 [132 Cal.Rptr.3d 903].)
• “If the defendant has in fact committed a crime, the remedy of a new trial or
other relief is sufficient reparation in light of the countervailing public policies
and considering the purpose and function of constitutional guaranties.” Wiley v.
County of San Diego (1998) 19 Cal.4th 532, 543 [79 Cal.Rptr.2d 672, 966 P.2d
983].)
• “The question of actual innocence is inherently factual. While proof of the
government’s inability to prove guilt may involve technical defenses and
evidentiary rules, proof of actual innocence obliges the malpractice plaintiff ‘to
convince the civil jurors of his innocence.’ Thus, the determination of actual
innocence is rooted in the goal of reliable factfinding.” (Salisbury v. County of
Orange (2005) 131 Cal.App.4th 756, 764–765 [31 Cal.Rptr.3d 831], internal
citations omitted.)
• “[A]n individual convicted of a criminal offense must obtain reversal of his or
her conviction, or other exoneration by postconviction relief, in order to establish
actual innocence in a criminal malpractice action. . . . [P]ublic policy
considerations require that only an innocent person wrongly convicted be
deemed to have suffered a legally compensable harm. Unless a person convicted
of a criminal offense is successful in obtaining postconviction relief, the policies
reviewed in Wiley [supra] preclude recovery in a legal malpractice action.”
(Coscia, supra, 25 Cal.4th at p. 1201.)
• “[A] plaintiff must obtain postconviction relief in the form of a final disposition
of the underlying criminal case—for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus
relief—as a prerequisite to proving actual innocence in a malpractice action
against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p. 1205.)
• “[T]he rationale of Wiley and Coscia requires a plaintiff in a criminal legal
malpractice case to show actual innocence and postconviction exoneration on
any guilty finding for a lesser included offense, even though the plaintiff alleges
he received negligent representation only on the greater offense.” (Sangha v.
531
CACI No. 606 PROFESSIONAL NEGLIGENCE
532
610. Affirmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)
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 90],
internal citations omitted.)
• “[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
Cal.App.4th 557, 576 [125 Cal.Rptr.3d 120].)
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6, discovery
of the negligent act or omission initiates the statutory period, and the absence of
injury or damages serves as a tolling factor.” (Adams v. Paul (1995) 11 Cal.4th
583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute of
limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273, 989
P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the facts
alleged to constitute defendant’s wrongdoing more than one year prior to filing
this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
535
CACI No. 610 PROFESSIONAL NEGLIGENCE
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
ongoing mutual relationship and of activities in furtherance of the relationship.’ ”
(Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69 Cal.Rptr.3d 435],
internal citations omitted.)
• “[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
Cal.App.4th at p. 951.)
• “[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
537
CACI No. 610 PROFESSIONAL NEGLIGENCE
end. To this extent and for these reasons, we conclude that continuous
representation should be viewed objectively from the client’s perspective . . . .”
(Laclette v. Galindo (2010) 184 Cal.App.4th 919, 928 [109 Cal.Rptr.3d 660],
original italics.)
• “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
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].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “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
538
PROFESSIONAL NEGLIGENCE CACI No. 610
539
611. Affirmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit (Code Civ. Proc., § 340.6)
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6, discovery
of the negligent act or omission initiates the statutory period, and the absence of
injury or damages serves as a tolling factor.” (Adams v. Paul (1995) 11 Cal.4th
583, 598 fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute of
limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273, 989
P.2d 701], internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6
Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “If the allegedly negligent conduct does not cause damage, it generates no cause
of action in tort. The mere breach of a professional duty, causing only nominal
damages, speculative harm, or the threat of future harm—not yet realized—does
not suffice to create a cause of action for negligence. Hence, until the client
suffers appreciable harm as a consequence of his attorney’s negligence, the client
cannot establish a cause of action for malpractice.” (Budd v. Nixen (1971) 6
Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses a
particular phase of such a relationship-representation regarding a specific subject
matter. Moreover, the limitations period is not tolled when an attorney’s
542
PROFESSIONAL NEGLIGENCE CACI No. 611
notification to the client that the attorney will perform no further services, or, if
the attorney remains silent, may be inferred from the circumstances. Absent
actual notice to the client that the attorney will perform no further legal services
or circumstances that reasonably should cause the client to so conclude, a client
should be entitled to rely on an attorney to perform the agreed services and
should not be required to interrupt the attorney-client relationship by filing a
malpractice complaint. After a client has no reasonable expectation that the
attorney will provide further legal services, however, the client is no longer
hindered by a potential disruption of the attorney-client relationship and no
longer relies on the attorney’s continuing representation, so the tolling should
end. To this extent and for these reasons, we conclude that continuous
representation should be viewed objectively from the client’s perspective . . . .”
(Laclette v. Galindo (2010) 184 Cal.App.4th 919, 928 [109 Cal.Rptr.3d 660],
original italics.)
• “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.)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
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].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “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,
544
PROFESSIONAL NEGLIGENCE CACI No. 611
545
MOTOR VEHICLES AND HIGHWAY SAFETY
547
700. Basic Standard of Care
persons on the highway and must keep his car under such control as will enable
him to avoid a collision; failure to keep such a lookout constitutes negligence.”
(Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519,
524 [113 Cal.Rptr. 277].)
• On the lookout requirement, one court observed: “The driver of an automobile is
bound to use reasonable care to anticipate the presence on the highway of others
who have equal right to be there and the fact that his vision is temporarily
interfered with, either by the glaring sun or headlights, does not relieve him
from that duty.” (Hill v. Peres (1934) 136 Cal.App. 132, 137 [28 P.2d 946],
internal citations omitted.)
• On the control requirement, one court observed: “Cases in which the problem
has been presented adhere to the view that a driver must at all times exercise
ordinary care to avoid a collision including swerving or altering his course, in
addition to applying his brakes, if that would be a reasonable means of avoiding
the collision.” (Guyton v. City of Los Angeles (1959) 174 Cal.App.2d 354, 362
[344 P.2d 910].)
• “The age of a minor who operates a motor vehicle will not excuse him from
liability for driving it in a negligent manner, and he will be required to meet the
standard established primarily for adults.” (Prichard v. Veterans Cab Co. (1965)
63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360].)
• Drivers with mental disabilities are required to exercise the ordinary care
required of an adult without such disability. (Fox v. City and County of San
Francisco (1975) 47 Cal.App.3d 164, 173 [120 Cal.Rptr. 779].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.1–4.5
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.01 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
California Civil Practice: Torts § 25:22 (Thomson Reuters)
549
701. Definition of Right-of-Way
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
(1965) 236 Cal.App.2d 555, 563 [46 Cal.Rptr. 164], internal citation omitted.)
• “Although such a driver may have the right-of-way, he is not absolved of the
duty to exercise ordinary care; may not proceed blindly in disregard of an
obvious danger; and must be watchful of the direction in which danger is most
likely to be apprehended.” (Malone v. Perryman (1964) 226 Cal.App.2d 227,
234 [37 Cal.Rptr. 864].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, § 4.15
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§§ 82.10, 82.68 (Matthew Bender)
California Civil Practice: Torts § 25:26 (Thomson Reuters)
551
702. Waiver of Right-of-Way
552
703. Definition of “Immediate Hazard”
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].
553
704. Left Turns (Veh. Code, § 21801)
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 the driver
proceeds across each lane.]
554
705. Turning (Veh. Code, § 22107)
A driver must use reasonable care when turning [or moving to the right
or to the left].
555
706. Basic Speed Law (Veh. Code, § 22350)
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[3][a] (Matthew
Bender)
557
707. Speed Limit (Veh. Code, § 22352)
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 the driver was driving faster than the
speed limit. However, a driver may be negligent even if the driver was
driving at or below the speed limit.
The maximum speed limit where the accident occurred was [insert
number] miles per hour.
559
709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
The statute just read to you uses the term “under the influence.” A
driver is not necessarily “under the influence” just because the driver
has consumed some alcohol [or drugs]. A driver is “under the influence”
when the driver has consumed an amount of alcohol [or drugs] that
impairs the driver’s ability to drive in a reasonably careful manner.
certain time is a question of fact for the jury to decide.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319].)
• Driving while “under the influence” under Vehicle Code sections 23152 and
23153 is not the same as “being under the influence” of a controlled substance
under Health and Safety Code section 11550. Under the Vehicle Code
provisions, “the defendant’s ability to drive must actually be impaired,” while
the Health and Safety Code provision is violated as soon as the influence is
present “in any detectable manner.” (People v. Enriquez (1996) 42 Cal.App.4th
661, 665 [49 Cal.Rptr.2d 710].)
• Courts have also distinguished the “under the influence” standard from the
“obvious intoxication” standard used in Business and Professions Code section
25602.1. (Jones v. Toyota Motor Co. (1988) 198 Cal.App.3d 364, 368 [243
Cal.Rptr. 611]: “ ‘Under the influence’ is defined by a person’s capability to
drive safely, whereas ‘obvious intoxication’ is defined by a person’s
appearance.”)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1014, 1015, 1017
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.25
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.02[3][b] (Matthew
Bender)
2 California Civil Practice: Torts § 25:28 (Thomson Reuters)
561
710. Duties of Care for Pedestrians and Drivers in Crosswalk
(Veh. Code, § 21950)
563
711. The Passenger’s Duty of Care for Own Safety
564
712. Affirmative Defense—Failure to Wear a Seat Belt
should have used seat belts, if available to him. Second you must determine with
expert testimony the nature of injuries and damages Plaintiff would have
sustained if he had used seat belts.”
• “[Section 27315] permits the civil trial courts to instruct on the existence of the
seat belt statute in appropriate cases, while allowing the jury to decide what
weight, if any, to give the statute in determining the standard of reasonable
care.” (Housley, supra, 4 Cal.App.4th at p. 747.)
• “[N]othing in the statute prohibits a jury from knowing and considering its very
existence when determining the reasonableness of driving without a seat belt.”
(Housley, supra, 4 Cal.App.4th at p. 744.)
• “There was evidence presented that appellant’s failure to wear a seat belt
worsened his injuries. The foreseeability test clearly eliminates this act as a
supervening cause because it is the general likelihood of the type of injury that
must be unforeseeable in order to absolve defendant; the extent of injury need
not be foreseeable.” (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 28 [22
Cal.Rptr.2d 106].)
• “Expert testimony is not always required to prove that failure to use a seat belt
may cause at least some, if not all, of plaintiff’s claimed injuries. [¶] Depending
on the facts of the case, expert testimony may be necessary for the jury to
distinguish the injuries that [plaintiff] unavoidably sustained in the collision from
the injuries he could have avoided if he had worn a seat belt.” (Lara v. Nevitt
(2004) 123 Cal.App.4th 454, 458–459 [19 Cal.Rptr.3d 865], internal citation
omitted.)
• “The seat belt defense does not depend on a Vehicle Code violation nor is it
eviscerated by a Vehicle Code exemption from the requirement to wear seat
belts.” (Lara, supra, 123 Cal.App.4th at p. 461 fn. 3.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.71
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05[2] (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
California Civil Practice: Torts § 25:26 (Thomson Reuters)
713–719. Reserved for Future Use
566
720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
Inc. (1961) 57 Cal.2d 43, 51 [17 Cal.Rptr. 828, 367 P.2d 420], internal citations
omitted.)
• “[P]ermission cannot be left to speculation or conjecture nor be assumed, but
must be affirmatively proved, and the fact of permission is just as important to
sustain the imposition of liability as is the fact of ownership.” (Scheff v. Roberts
(1950) 35 Cal.2d 10, 12 [215 P.2d 925], internal citations omitted.)
• “Where the issue of implied permissive use is involved, the general relationship
existing between the owner and the operator, is of paramount importance.
Where, for example, the parties are related by blood, or marriage, or where the
relationship between the owner and the operator is that of principal and agent,
weaker direct evidence will support a finding of such use than where the parties
are only acquaintances or strangers.” (Elkinton v. California State Automobile
Assn., Interstate Insurance Bureau (1959) 173 Cal.App.2d 338, 344 [343 P.2d
396], internal citations omitted.)
• “There is no doubt that the word ‘owner’ as used in [the predecessor to Vehicle
Code section 17150] for the purpose of creating a liability thereunder, is not
synonymous with that word as used in the ordinary sense of referring to a
person or persons whose title is good as against all others. Under the Vehicle
Code there may be several such ‘owners’ at any one time. One or more persons
may be an ‘owner,’ and thus liable for the injuries of a third party, even though
no such ‘owner’ possesses all of the normal incidents of ownership.” (Stoddart v.
Peirce (1959) 53 Cal.2d 105, 115 [346 P.2d 774], internal citation omitted.)
• “The question whether the [defendant] was an owner for purposes of imposition
of liability for negligence [under Vehicle Code section 17150] was one of fact.”
(Campbell v. Security Pacific Nat. Bank (1976) 62 Cal.App.3d 379, 385 [133
Cal.Rptr. 77].)
• “Strict compliance with Vehicle Code section 5602 [regarding the sale or transfer
of a vehicle] is required to enable a transferring owner to escape the liability
imposed by section 17150 on account of an accident occurring before notice of
the transfer is received by the Motor Vehicle Department.” (Laureano v.
Christensen (1971) 18 Cal.App.3d 515, 520–521 [95 Cal.Rptr. 872].)
• “[T]he true and actual owner of an automobile [is not] relieved from liability by
the expedient of registration in the name of another. . . . It is clear that it was
the legislative intent to make the actual owners of automobiles liable for the
negligence of those to whom permission is given to drive them. According to the
allegations of the complaint defendants . . . were in fact the true owners of the
car and had control of it, the registration being in the name of defendant [driver]
for the purpose of avoiding liability.” (McCalla v. Grosse (1941) 42 Cal.App.2d
546, 549–550 [109 P.2d 358].)
• “[I]t is a question of fact in cases of co-ownership, as it is in cases of single
ownership, whether the operation of an automobile is with or without the
consent, express or implied, of an owner who is not personally participating in
such operation. The mere fact of co-ownership does not necessarily or
568
MOTOR VEHICLES AND HIGHWAY SAFETY CACI No. 720
conclusively establish that the common owners have consented to any usage or
possession among themselves of a type for which permission is essential.”
(Krum v. Malloy (1943) 22 Cal.2d 132, 136 [137 P.2d 18].)
• “The immunity of the negligent operator under the [Workers’ Compensation] Act
does not insulate a vehicle owner who is neither the plaintiff’s employer nor co-
employee from liability under section 17150. [¶] Since the owner’s liability does
not arise from the status or liability of the operator, the defenses applicable to
the operator are not available to the owner.” (Galvis v. Petito (1993) 13
Cal.App.4th 551, 554 [16 Cal.Rptr.2d 560].)
• “The doctrine of ‘negligent entrustment’ is clearly distinguishable from the
theory of ‘vicarious liability.’ Negligent entrustment is a common law liability
doctrine. Conversely, the obligation of a lending owner of an automobile is one
of statutory liability. An owner of an automobile may be independently negligent
in entrusting it to an incompetent driver. California is one of several states which
recognizes the liability of an automobile owner who has entrusted a car to an
incompetent, reckless, or inexperienced driver, and has supplemented the
common law doctrine of negligent entrustment by enactment of a specific
consent statute.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 538 [55 Cal.Rptr.
741], internal citations omitted.)
• For purposes of liability under the permissive use statute, “[s]ince defendant [car
owner] had the opportunity of making such investigation as he deemed necessary
to satisfy himself as to the identity of the [renter] to whom he intrusted his
automobile, he should not be permitted to escape liability to a third party
because of any fraudulent misrepresentation made by the renter of the car to
him.” (Tuderios v. Hertz Drivurself Stations, Inc. (1945) 70 Cal.App.2d 192, 198
[160 P.2d 554].)
• “[T]he provisions of Proposition 51 do not operate to reduce the liability of
vehicle owners imposed by Vehicle Code section 17150.” (Rashtian v. BRAC-
BH, Inc. (1992) 9 Cal.App.4th 1847, 1849 [12 Cal.Rptr.2d 411].)
• “[I]f the evidence shows that an automobile was being driven by an employee of
the owner at the time of an accident, the jury may infer that the employee was
operating the automobile with the permission of the owner.” (Hicks v. Reis
(1943) 21 Cal.2d 654, 659 [134 P.2d 788], internal quotation marks and citations
omitted.)
• “The mere fact that at the time of an accident one is driving an automobile
belonging to another is not, of itself, sufficient to establish that the former was
driving the car with the permission of the owner.” (Di Rebaylio v. Herndon
(1935) 6 Cal.App.2d 567, 569 [44 P.2d 581].)
• “[I]mplied permission to use an automobile may be found even where the owner
and permittee expressly deny that permission was given.” (Anderson v. Wagnon
(1952) 110 Cal.App.2d 362, 366 [242 P.2d 915].)
• “[I]n determining whether there has been an implied permission, it is not
569
CACI No. 720 MOTOR VEHICLES AND HIGHWAY SAFETY
necessary that the owner have prior knowledge that the driver intends to use the
car, but it must be ‘under circumstances from which consent to use the car is
necessarily implied.’ ” (Mucci v. Winter (1951) 103 Cal.App.2d 627, 631 [230
P.2d 22], internal citation omitted.)
• For purposes of statutory vicarious liability, “if the owner entrusts his car to
another he invests him with the same authority to select an operator which the
owner has in the first instance. . . . [¶] . . . The owner is thus liable for
negligent acts by a subpermittee even though the subpermittee operated the
owner’s vehicle with authorization only from the permittee, since the foundation
of the statutory liability is the permission given to another to use an
instrumentality which if improperly used is a danger and menace to the public.”
(Peterson v. Grieger, Inc. (1961) 57 Cal.2d 43, 54 [17 Cal.Rptr. 828, 367 P.2d
420], internal quotation marks and citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1416–1421, 1427
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.28–4.32, 4.37
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.20 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§§ 82.11, 82.16 (Matthew Bender)
California Civil Practice: Torts §§ 25:44–25:45 (Thomson Reuters)
570
721. Motor Vehicle Owner Liability—Affirmative Defense—Use
Beyond Scope of Permission
572
722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
574
723. Liability of Cosigner of Minor’s Application for Driver’s
License
17707] of the Vehicle Code, the legislature intended to create a limited liability
for imputed negligence against both the owner of an automobile and the signer
of a driver’s license. . . . We must assume the legislature intended to fix a
limited liability . . . for imputed negligence against the owner of an automobile
and the signer of a driver’s license or either of them and that it did not intend to
double that limited liability when the same individual was both the owner of the
machine and the signer of the license.” (Rogers v. Foppiano (1937) 23
Cal.App.2d 87, 92–93 [72 P.2d 239].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1412–1415
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.41, 4.43
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[2] (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.134 (Matthew Bender)
California Civil Practice: Torts § 25:52 (Thomson Reuters)
576
724. Negligent Entrustment of Motor Vehicle
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].)
• “The effect of Vehicle Code sections 21055 and 21056 is: where the driver of an
authorized emergency vehicle is engaged in a specified emergency function he
may violate certain rules of the road, such as speed and right of way laws, if he
activates his red light and where necessary his siren in order to alert other users
of the road to the situation. In such circumstances the driver may not be held to
be negligent solely upon the violation of specified rules of the road, but may be
held to be negligent if he fails to exercise due regard for the safety of others
under the circumstances. Where the driver of an emergency vehicle fails to
activate his red light, and where necessary his siren, he is not exempt from the
rules of the road even though he may be engaged in a proper emergency
function, and negligence may be based upon the violation of the rules of the
road.” (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395,
402–403 [182 Cal.Rptr. 443], internal citations omitted.)
• “Notwithstanding [Vehicle Code section 17004], a public entity is liable for
injuries proximately caused by negligent acts or omissions in the operation of
any motor vehicle by an employee of the public entity, acting within the scope
of his or her employment.” (City of San Jose v. Superior Court (1985) 166
Cal.App.3d 695, 698 [212 Cal.Rptr. 661], internal citations omitted.)
• “If the driver of an authorized emergency vehicle is responding to an emergency
call and gives the prescribed warnings by red light and siren, a charge of
negligence against him may not be predicated on his violation of the designated
Vehicle Code sections; but if he does not give the warnings, the contrary is true;
and in the event the charged negligence is premised on conduct without the
scope of the exemption a common-law standard of care is applicable.” (Grant v.
Petronella (1975) 50 Cal.App.3d 281, 286 [123 Cal.Rptr. 399], internal citations
omitted.)
• “Where the driver of an emergency vehicle responding to an emergency call
does not give the warnings prescribed by section 21055, the legislative warning
policy expressed in that section dictates the conclusion [that] the common-law
standard of care governing his conduct does not include a consideration of the
emergency circumstances attendant upon his response to an emergency call.”
(Grant, supra, 50 Cal.App.3d at p. 289, footnote omitted.)
• “It will be remembered that the exemption provided by section 454 [from which
section 21055] of the Vehicle Code [was derived] was available to appellant as
an affirmative defense, and upon appellant rested the burden of proving the
necessary compliance with its provisions.” (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
581
CACI No. 730 MOTOR VEHICLES AND HIGHWAY SAFETY
582
731. Definition of “Emergency” (Veh. Code, § 21055)
583
VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
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.
584
VF-701. Motor Vehicle Owner Liability—Permissive Use of
Vehicle—Affirmative Defense—Use Beyond Scope of Permission
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
motor vehicles. The four questions here should be incorporated into the verdict form
regarding the underlying case. The special verdict forms in this section are intended
only as models. They may need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 720, Motor Vehicle Owner
Liability—Permissive Use of Vehicle, and CACI No. 721, Motor Vehicle Owner
Liability—Affırmative Defense—Use Beyond Scope of Permission.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
586
VF-702. Adult’s Liability for Minor’s Permissive Use of Motor
Vehicle
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 722, Adult’s Liability for Minor’s
Permissive Use of Motor Vehicle.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
588
VF-703. Liability of Cosigner of Minor’s Application for Driver’s
License
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 723, Liability of Cosigner of Minor’s
Application for Driver’s License.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
590
MOTOR VEHICLES AND HIGHWAY SAFETY VF-703
findings that are required in order to calculate the amount of prejudgment interest.
591
VF-704. Negligent Entrustment of Motor Vehicle
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 724, Negligent Entrustment of Motor
Vehicle. Modify to include elements of negligence instruction against the driver if
plaintiff is suing both driver and owner.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
593
VF-704 MOTOR VEHICLES AND HIGHWAY SAFETY
594
RAILROAD CROSSINGS
595
800. Basic Standard of Care for Railroads
597
801. Duty to Comply With Safety Regulations
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.4
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
802. Reserved for Future Use
599
803. Regulating Speed
601
804. Lookout for Crossing Traffic
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.
603
805. Installing Warning Systems
Railroad companies must post signs or other devices that give the public
reasonable warning of the presence of its tracks. A railroad company
must use reasonable care in the design, installation, operation, and
maintenance of its warning signals and protective systems. The amount
of care that is reasonable depends on the particular characteristics of
each crossing.
created by the presence of the device constitute a trap for persons relying upon it
for protection.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d 866, 869
[180 P.2d 896].)
• “Whatever may be the purpose of maintaining an automatic wig-wag signal at a
railroad crossing, even though it be intended to merely warn travelers of the
approach of trains, common justice demands that it shall be so constructed and
maintained that it will not lure travelers on the highway into danger. It follows
that a company which does maintain such a defective system will be held liable
for injuries sustained as the result of those imperfections, regardless of whether
the system was designed to warn travelers of the approach of trains rather than
to inform them of the danger from stationary cars which block the crossings.”
(Mallett v. Southern Pacific Co. (1937) 20 Cal.App.2d 500, 509 [68 P.2d 281].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.8–12.9
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
605
806. Comparative Fault—Duty to Approach Crossing With Care
by the railroad with complete disregard for his own safety and recover damages
for injuries sustained by reason of his own failure to use reasonable care.” (Will,
supra, 18 Cal.2d at p. 475.)
• “Violation of the railroad’s statutory duty to sound bell and whistle at a highway
crossing does not absolve a driver from his failure to look and listen and, if
necessitated by circumstances such as obstructed vision, even to stop.”
(Wilkinson, supra, 224 Cal.App.2d at p. 489.)
• “It is settled that a railroad may not encourage persons traveling on highways to
rely on safety devices and then hold them to the same degree of care as if the
devices were not present.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d
866, 871 [180 P.2d 896].)
• “When a flagman or mechanical warning device has been provided at a railroad
crossing, the driver of an automobile is thereby encouraged to relax his
vigilance, and, in using other means to discover whether there is danger of
approaching trains, he is not required to exercise the same quantum of care as
would otherwise be necessary.” (Spendlove v. Pacific Electric Ry. Co. (1947) 30
Cal.2d 632, 634 [184 P.2d 873], internal citations omitted.)
• “When the case before us was tried January 30, 1958, the stop, look and listen
instruction was included in BAJI as instruction Number 203-B. Since the trial,
the editors of BAJI have concluded that the instruction does not conform to the
standards of negligence which prevail in California.” (Anello v. Southern Pacific
Co. (1959) 174 Cal.App.2d 317, 322 [344 P.2d 843].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.10–12.12
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.27 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads § 485.67
(Matthew Bender)
807–899. Reserved for Future Use
607
COMMON CARRIERS
609
900. Introductory Instruction
610
901. Status of Common Carrier Disputed
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].)
• “In deciding whether [defendant] is a common carrier, a court may properly
consider whether (1) the defendant maintains a regular place of business for the
purpose of transportation; (2) the defendant advertises its services to the general
public; and (3) the defendant charges standard fees for its services.” (Martine v.
Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 725 [238
Cal.Rptr.3d 237, citing this instruction].)
• “Common carrier status emerged in California in the mid-19th century as a
narrow concept involving stagecoaches hired purely for transportation. Over
time, however, the concept expanded to include a wide array of recreational
transport like scenic airplane and railway tours, ski lifts, and roller coasters. This
expansion reflects the policy determination that a passenger’s purpose, be it
recreation, thrill-seeking, or simply conveyance from point A to B, should not
control whether the operator should bear a higher duty to protect the passenger.”
(Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1294 [222
Cal.Rptr.3d 633], internal citations omitted.)
• “[T]he key inquiry in the common carrier analysis is whether passengers expect
the transportation to be safe because the operator is reasonably capable of
controlling the risk of injury.” (Grotheer, supra, 14 Cal.App.5th at p. 1295 [hot
air balloon is not a common carrier].)
• “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.)
612
COMMON CARRIERS CACI No. 901
• “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.)
• “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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1056
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.14 (Matthew
Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
California Civil Practice: Torts §§ 28:1–28:2 (Thomson Reuters)
613
902. Duty of Common Carrier
615
903. Duty to Provide and Maintain Safe Equipment
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1055, 1057
2 Levy et al., California Torts, Ch 23, Carriers, § 23.03[5] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:15 (Thomson Reuters)
617
904. Duty of Common Carrier Toward Disabled/Infirm Passengers
618
905. Duty of Common Carrier Toward Minor Passengers
619
906. Duty of Passenger for Own Safety
While a common carrier must use the highest care for its passengers’
safety, passengers need only use reasonable care for their own safety.
620
907. Status of Passenger Disputed
A common carrier owes the highest care and vigilance to persons only
while they are passengers. [Name of plaintiff] claims that
[he/she/nonbinary pronoun] was [name of defendant]’s passenger at the
time of the incident.
To establish that [name of plaintiff] was a passenger, [he/she/nonbinary
pronoun] must prove all of the following:
1. That [name of plaintiff] intended to become a passenger;
2. That [name of plaintiff] was accepted as a passenger by [name of
defendant]; and
3. That [name of plaintiff] placed [himself/herself/nonbinary pronoun]
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 the person
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].
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], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1058, 1059
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.36 (Matthew
Bender)
2A California Points and Authorities, Ch. 33, Carriers, § 33.22 (Matthew Bender)
2 California Civil Practice: Torts § 28:7 (Thomson Reuters)
622
908. Duty to Protect Passengers From Assault
required degree of care, the carrier has or should have knowledge from which it
may reasonably be apprehended that an assault on a passenger may occur, and
has the ability in the exercise of that degree of care to prevent the injury.”
(Lopez, supra, 40 Cal.3d at p. 791, internal citation omitted.)
• There is no liability when a sudden assault occurs with no warning. (City and
County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 49 [36
Cal.Rptr.2d 372].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1062, 1063
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.03[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:16 (Thomson Reuters)
909–999. Reserved for Future Use
624
PREMISES LIABILITY
625
1000. Premises Liability—Essential Factual Elements
627
1001. Basic Duty of Care
Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [85 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,
863 P.2d 207], internal citations omitted.)
• “To comply with this duty, a person who controls property must ‘ “ ‘ “inspect
[the premises] or take other proper means to ascertain their condition” ’ ” ’ and,
if a dangerous condition exists that would have been discovered by the exercise
of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats
v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [236 Cal.Rptr.3d
236].)
• “[T]he measures an operator must take to comply with the duty to keep the
premises in a reasonably safe condition depend on the circumstances, and the
issue is a question for the jury unless the facts of the case are not reasonably in
dispute.” (Staats, supra, 25 Cal.App.5th at p. 840.)
• “An owner of real property is ‘not the insurer of [a] visitor’s personal
safety . . . .’ However, an owner is responsible ‘ “for an injury occasioned to
another by [the owner’s] want of ordinary care or skill in the management of his
or her property. . . .” ’ Accordingly, landowners are required ‘to maintain land in
their possession and control in a reasonably safe condition’, and to use due care
to eliminate dangerous conditions on their property.” (Taylor v. Trimble (2017)
13 Cal.App.5th 934, 943–944 [220 Cal.Rptr.3d 741], internal citations omitted.)
• “[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 [132
Cal.Rptr.3d 617], internal citations omitted.)
• In this state, duties are no longer imposed on an occupier of land solely on the
629
CACI No. 1001 PREMISES LIABILITY
631
1002. Extent of Control Over Premises Area
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1225, 1226
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.02–15.03
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.03–381.04 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.52 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 16:2 (Thomson Reuters)
633
1003. Unsafe Conditions
v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d
298].)
• “Because the owner is not the insurer of the visitor’s personal safety, the owner’s
actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a
defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]
defective condition of the premises, the owner or occupier “must have either
actual or constructive knowledge of the dangerous condition or have been able
by the exercise of ordinary care to discover the condition, which if known to
him, he should realize as involving an unreasonable risk to invitees on his
premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114
Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the property
or his employee acting within the scope of the employment, the owner of the
property cannot be permitted to assert that he had no notice or knowledge of the
defective or dangerous condition in an action by an invitee for injuries suffered
by reason of the dangerous condition. Under such circumstances knowledge
thereof is imputed to him. Where the dangerous condition is brought about by
natural wear and tear, or third persons, or acts of God or by other causes which
are not due to the negligence of the owner, or his employees, then to impose
liability the owner must have either actual or constructive knowledge of the
dangerous condition or have been able by the exercise of ordinary care to
discover the condition, which if known to him, he should realize as involving an
unreasonable risk to invitees on his premises. His negligence in such cases is
founded upon his failure to exercise ordinary care in remedying the defect after
he has discovered it or as a man of ordinary prudence should have discovered
it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806 [117 P.2d 841], internal
citation omitted.)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip-and-fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641], internal
citation omitted.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of
operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the
owner had knowledge of the dangerous condition that caused the accident.
Moreover, it would not be prudent to hold otherwise. Without this knowledge
requirement, certain store owners would essentially incur strict liability for slip-
and-fall injuries, i.e., they would be insurers of the safety of their patrons. For
635
CACI No. 1003 PREMISES LIABILITY
example, whether the french fry was dropped 10 seconds or 10 hours before the
accident would be of no consequence to the liability finding. However, this is
not to say that a store owner’s business choices do not impact the negligence
analysis. If the store owner’s practices create a higher risk that dangerous
conditions will exist, ordinary care will require a corresponding increase in
precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479
[3 Cal.Rptr. 3d 813].)
• “Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of
the dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and therefore
must inspect them or take other proper means to ascertain their condition. And
if, by the exercise of reasonable care, he would have discovered the dangerous
condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325,
330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of
concealed dangerous conditions of which the agent has actual or constructive
knowledge. The agent’s actual or constructive knowledge of a dangerous
condition is imputed to his or her principal, the property owner, who shares with
the agent liability for damages proximately caused by a breach of this duty.”
(Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155 Cal.Rptr.3d
739].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1261–1265
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.02 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.51 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
636
1004. Obviously Unsafe Conditions
11 California Real Estate Law & Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.20, 381.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.25 et seq.
(Matthew Bender)
639
1005. Business Proprietor’s or Property Owner’s Liability for the
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
criminal conduct on [his/her/nonbinary pronoun/its] property if the
[owner/landlord] can reasonably anticipate that conduct.
You must decide whether the steps taken by [name of defendant] to
protect persons such as [name of plaintiff] were adequate and reasonable
under the circumstances.
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.30
et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:5 (Thomson Reuters)
643
1006. Landlord’s Duty
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.
Sources and Authority
• “A landlord owes a duty of care to a tenant to provide and maintain safe
644
PREMISES LIABILITY CACI No. 1006
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
755], internal citations omitted.)
• “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 47], internal citations
omitted.)
• “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.
741], internal citations omitted.)
• “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
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
645
CACI No. 1006 PREMISES LIABILITY
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.)
• “With regard to landlords, ‘reasonable care ordinarily involves making sure the
property is safe at the beginning of the tenancy, and repairing any hazards the
landlord learns about later.’ ‘ “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.” ’ ” (Day v. Lupo Vine Street, L.P. (2018) 22
Cal.App.5th 62, 69 [231 Cal.Rptr.3d 193], internal citations omitted.)
• “Limiting a landlord’s obligations releases it from needing to engage in
potentially intrusive oversight of the property, thus permitting the tenant to enjoy
its tenancy unmolested.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [82
Cal.Rptr.3d 735], internal citations omitted.)
• “[A] commercial landowner cannot totally abrogate its landowner responsibilities
merely by signing a lease. As the owner of property, a lessor out of possession
must exercise due care and must act reasonably toward the tenant as well as to
unknown third persons. At the time the lease is executed and upon renewal a
landlord has a right to reenter the property, has control of the property, and must
inspect the premises to make the premises reasonably safe from dangerous
conditions. Even if the commercial landlord executes a contract which requires
the tenant to maintain the property in a certain condition, the landlord is
obligated at the time the lease is executed to take reasonable precautions to
avoid unnecessary danger.” (Mora, supra, 210 Cal.App.3d at p. 781, internal
citations omitted.)
• “[T]he landlord’s responsibility to inspect is limited. Like a residential landlord,
the duty to inspect charges the lessor ‘only with those matters which would have
been disclosed by a reasonable inspection.’ The burden of reducing or avoiding
the risk and the likelihood of injury will affect the determination of what
constitutes a reasonable inspection. The landlord’s obligation is only to do what
is reasonable under the circumstances. The landlord need not take extraordinary
measures or make unreasonable expenditures of time and money 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
646
PREMISES LIABILITY CACI No. 1006
647
1007. Sidewalk Abutting Property
[An owner of/An occupier of/One who controls] property must avoid
creating an unsafe condition on the surrounding public streets or
sidewalks.
649
1008. Liability for Adjacent Altered Sidewalk—Essential Factual
Elements
the exclusivity of use, the more an improvement benefits solely the adjoining
property and the more reasonable it is to impose upon the landowner a duty to
maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del
Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)
• The requirement of due care in altering a sidewalk applies only to that portion of
the sidewalk that is actually altered: “The rule cited by plaintiff requires the
owner to keep the altered portion in reasonably safe condition or be liable for
injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays,
she slipped on the dog dropping, a hazard which defendant did not create.”
(Selger, supra, 222 Cal.App.3d at p. 1595.)
• “The duty to maintain portions of a sidewalk which have been altered for the
benefit of the property runs with the land, and a property owner cannot avoid
liability on the ground that the condition was created by or at the request of his
predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1231–1234
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29 (Matthew
Bender)
651
1009A. Liability to Employees of Independent Contractors for
Unsafe Concealed Conditions
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
hirer’s retained control over the contractor’s performance of work, 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.
652
PREMISES LIABILITY CACI No. 1009A
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
654
1009B. Liability to Employees of Independent Contractors for
Unsafe Conditions—Retained Control
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011, May 2017, May 2022
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 manner of
performance of some part of the work entrusted to the contractor. (Sandoval v.
Qualcomm Inc. (2021) 12 Cal.5th 256, 273 [283 Cal.Rptr.3d 519, 494 P.3d 487].)
Both retaining control and actually exercising control over some aspect of the work
is required because hirers who fully and effectively delegate work to a contractor
owe no tort duty to that contractor’s workers. (See id.) If there is a question of fact
regarding whether the defendant entrusted the work to the contractor, the instruction
should be modified. For an instruction for injuries to others due to a concealed
condition, see CACI No. 1003, Unsafe Conditions. For an instruction for injuries
based on unsafe conditions not discoverable by the plaintiff’s employer, see CACI
No. 1009A, Liability to Employees of Independent Contractors for Unsafe
Concealed Conditions. For an instruction for injuries based on the property owner’s
providing defective equipment, see CACI No. 1009D, Liability to Employees of
Independent Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
The hirer’s exercise of retained control must have “affirmatively contributed” to the
655
CACI No. 1009B PREMISES LIABILITY
658
1009D. Liability to Employees of Independent Contractors for
Unsafe Conditions—Defective Equipment
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 hirer’s retained control over
the contractor’s performance of work, see CACI No. 1009B, Liability to Employees
of Independent Contractors for Unsafe Conditions—Retained Control.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
Sources and Authority
• “[W]hen a hirer of an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the injury of an
employee of the contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.” (Elsner v. Uveges (2004) 34
Cal.4th 915, 937 [22 Cal.Rptr.3d 530, 102 P.3d 915].)
• “ ‘[W]here the hiring party actively contributes to the injury by supplying
defective equipment, it is the hiring party’s own negligence that renders it liable,
not that of the contractor.’ ” (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th
219, 225 [115 Cal.Rptr.2d 868, 38 P.3d 1094], internal citation omitted.)
659
CACI No. 1009D PREMISES LIABILITY
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.24 (Matthew
Bender)
660
1010. Affirmative Defense—Recreation Immunity—Exceptions
(Civ. Code, § 846)
New September 2003; Revised October 2008, December 2014, May 2017, November
2017, May 2021
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
Cal.App.5th 1, 17 [208 Cal.Rptr.3d 461].)
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
661
CACI No. 1010 PREMISES LIABILITY
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
(2017) 10 Cal.App.5th 563, 566 [216 Cal.Rptr.3d 426].)
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.
Sources and Authority
• Recreational Immunity. Civil Code section 846.
• “[A]n owner of . . . real property owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes or to give recreational
users warning of hazards on the property, unless: (1) the landowner willfully or
maliciously fails to guard or warn against a dangerous condition, use, structure
or activity; (2) permission to enter for a recreational purpose is granted for a
consideration; or (3) the landowner expressly invites rather than merely permits
the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th
1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)
• “Generally, whether one has entered property for a recreational purpose within
the meaning of the statute is a question of fact, to be determined through a
consideration of the ‘totality of the facts and circumstances, including . . . the
prior use of the land. While the plaintiff’s subjective intent will not be
controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p.
1102, internal citation omitted.)
• “The phrase ‘interest in real property’ should not be given a narrow or technical
interpretation that would frustrate the Legislature’s intention in passing and
amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266
Cal.Rptr. 491, 785 P.2d 1183].)
• “[D]efendants’ status as business invitees of the landowner does not satisfy the
prerequisite that the party seeking to invoke the immunity provisions of section
662
PREMISES LIABILITY CACI No. 1010
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
663
CACI No. 1010 PREMISES LIABILITY
664
1011. Constructive Notice Regarding Dangerous Conditions on
Property
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641], internal
citation omitted.)
• “Although no two accidents happen in the same way, to be admissible for
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
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
667
1012. Knowledge of Employee Imputed to Owner
If you find that the condition causing the risk of harm was created by
[name of defendant] or [his/her/nonbinary pronoun/its] employee acting
within the scope of [his/her/nonbinary pronoun] employment, then you
must conclude that [name of defendant] knew of this condition.
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
670
VF-1001. Premises Liability—Affirmative Defense—Recreation
Immunity—Exceptions
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential Factual
Elements, and CACI No. 1010, Affırmative Defense—Recreation
Immunity—Exceptions.
The special verdict forms in this section are intended only as models. They may
672
PREMISES LIABILITY VF-1001
673
VF-1002. Premises Liability—Comparative Fault of Plaintiff at
Issue
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New February 2005; Revised April 2007, December 2009, December 2010,
December 2016
675
VF-1002 PREMISES LIABILITY
676
DANGEROUS CONDITION OF PUBLIC PROPERTY
677
1100. Dangerous Condition on Public Property—Essential Factual
Elements (Gov. Code, § 835)
New September 2003; Revised October 2008, December 2015, June 2016, May 2020
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• “The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions under
678
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1100
which a public entity may be held liable for injuries caused by a dangerous
condition of public property. Section 835 provides that a public entity may be
held liable for such injuries ‘if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately
caused by the dangerous condition, [and] that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred.’ In
addition, the plaintiff must establish that either: (a) ‘[a] negligent or wrongful act
or omission of an employee of the public entity within the scope of his
employment created the dangerous condition,’ or (b) ‘[t]he public entity had . . .
notice of the dangerous condition . . . a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.’ ” (Cordova v.
City of Los Angeles (2015) 61 Cal.4th 1099, 1105–1106 [190 Cal.Rptr.3d 850,
353 P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types of
cases. However, what distinguishes the two types of cases is not simply whether
the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
679
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
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have consistently
refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the public—proximately
caused the fatal injuries their decedents suffered as a result of the collision with
[third party]’s car. But nothing in the statute requires plaintiffs to show that the
allegedly dangerous condition also caused the third party conduct that
precipitated the accident.” (Cordova, supra, 61 Cal.4th at p. 1106.)
• “The existence of a dangerous condition is ordinarily a question of fact but ‘can
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
680
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1100
Cal.Rptr.3d 168].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 301–341
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-C, Immunity
From Liability, ¶ 6:91 et seq. (The Rutter Group)
Haning 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)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
681
1101. Control
683
1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
property in a criminal way, here, driving with a ‘willful or wanton disregard for
safety of persons or property . . . .’ ” (Fuller v. Department of Transportation
(2019) 38 Cal.App.5th 1034, 1042 [251 Cal.Rptr.3d 549].)
• “[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
property creates a substantial risk of injury when it is used with due care.
Whether a condition creates a substantial risk of harm depends on how the
general public would use the property exercising due care, including children
who are held to a lower standard of care. (§ 830.) The standard is an objective
one; a plaintiff’s particular condition . . . , does not alter the standard.”
(Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466 [72
Cal.Rptr.2d 464], internal citations omitted.)
• “A public entity may be liable for a dangerous condition of public property even
where the immediate cause of a plaintiff’s injury is a third party’s negligence if
some physical characteristic of the property exposes its users to increased danger
from third party negligence. ‘But it is insufficient to show only harmful third
party conduct, like the conduct of a motorist. “ ‘[T]hird party conduct, by itself,
unrelated to the condition of the property, does not constitute a “dangerous
condition” for which a public entity may be held liable.’ ” . . . There must be a
defect in the physical condition of the property and that defect must have some
causal relationship to the third party conduct that injures the plaintiff. . . .’ ”
(Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069–1070
[129 Cal.Rptr.3d 690], internal citation omitted.)
• “Nothing in the provisions of section 835, however, specifically precludes a
finding that a public entity may be under a duty, given special circumstances, to
protect against harmful criminal conduct on its property.” (Peterson, supra, 36
Cal.3d at pp. 810–811, internal citations omitted.)
• “Two points applicable to this case are . . . well established: first, that the
location of public property, by virtue of which users are subjected to hazards on
adjacent property, may constitute a ‘dangerous condition’ under sections 830 and
835; second, that a physical condition of the public property that increases the
risk of injury from third party conduct may be a ‘dangerous condition’ under the
statutes.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th
139, 154 [132 Cal.Rptr.2d 341, 65 P.3d 807].)
• “[T]he absence of other similar accidents is ‘relevant to the determination of
whether a condition is dangerous.’ But the city cites no authority for the
proposition that the absence of other similar accidents is dispositive of whether a
condition is dangerous, or that it compels a finding of nondangerousness absent
686
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1102
other evidence.” (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346
[107 Cal.Rptr.3d 730], original italics, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 321
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.15
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[2][a] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
687
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.]
• “Whether the dangerous condition was obvious and whether it existed for a
sufficient period of time are threshold elements to establish a claim of
constructive notice. Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768],
internal citation omitted.)
• “ ‘It is well settled that constructive notice can be shown by the long continued
existence of the dangerous or defective condition, and it is a question of fact for
the jury to determine whether the condition complained of has existed for a
sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State of
California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal
citations omitted.)
• “Admissible evidence for establishing constructive notice is defined by
[Government Code section 835.2(b)] as including whether a reasonably adequate
inspection system would have informed the public entity, and whether it
maintained and operated such an inspection system with due care.” (Heskel,
supra, 227 Cal.App.4th at p. 317.)
• “In the instant case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is constructive notice,
the method of inspection has been held to be secondary.” (Superior Court of San
Mateo County, supra, 263 Cal.App.2d at p. 400, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 323
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.45–12.51
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
689
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
§§ 12.48–12.50
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
1105–1109. Reserved for Future Use
691
1110. Affirmative Defense—Natural Conditions (Gov. Code,
§ 831.2)
responsible for reasonable risk management in that area, [is] required to preclude
application of the immunity.’ ” (Meddock, supra, 220 Cal.App.4th at p. 178 [162
Cal.Rptr.3d 796], original italics.)
• “It is also the rule that ‘improvement of a portion of a park area does not
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.)
• “We express no opinion, however, as to whether proof of a causal link is merely
sufficient to defeat immunity or, as Alana M. held, necessary. [Plaintiff] contends
proof of a causal connection between improvements and the accident is
necessary to establish that property is improved and thus accepts the burden of
having to prove this. Therefore, for purposes here, we will assume without
deciding that proof that human conduct or improvements created, contributed to,
or exacerbated the dangerousness of a natural condition is not only a sufficient
but necessary, additional element of establishing that property is ‘improved.’ ”
(County of San Mateo, supra, 13 Cal.App.5th at p. 740.)
• “It is now generally settled that human-altered conditions, especially those that
have existed for some years, which merely duplicate models common to nature
are still ‘natural conditions’ as a matter of law for the purposes of Government
Code section 831.2.” (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d
310, 314 [268 Cal.Rptr. 233].)
• “Immunity under section 831.2 exists even where the public entity’s nearby
improvements together with natural forces add to the buildup of sand on a public
beach.” (Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 188 [263
Cal.Rptr. 479].)
• “The statutory immunity is fully applicable to manmade lakes and reservoirs.
Moreover, section 831.2 has been broadly construed to provide immunity even
where a natural condition has been affected in some manner by human activity
or nearby improvements.” (Goddard, supra, 243 Cal.App.4th at p. 361, internal
citations omitted.)
• “The mere attachment of a rope on defendant’s undeveloped land by an
unknown third party did not change the ‘natural condition’ of the land.”
(Kuykendall v. State of California (1986) 178 Cal.App.3d 563, 566 [223
Cal.Rptr. 763].)
• “Essentially, [plaintiff]’s position is she was entitled to a campsite in the forest
safe from falling trees, but this ‘is exactly the type of complaint section 831.2
was designed to protect public entities against.’ ” (Alana M., supra, 245
Cal.App.4th at p. 1493.)
• “The courts have generally understood campsites with amenities to be improved,
693
CACI No. 1110 DANGEROUS CONDITION OF PUBLIC PROPERTY
including the court in Alana M.” (County of San Mateo, supra, 13 Cal.App.5th
at p. 736.)
• “Given the intent of the Legislature in enacting section 831.2, we hold that wild
animals are a natural part of the condition of unimproved public property within
the meaning of the statute.” (Arroyo, supra, 34 Cal.App.4th at p. 762.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 302, 308
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2825 et seq. (The Rutter Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.82–12.87
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.214
(Matthew Bender)
694
1111. Affirmative Defense—Condition Created by Reasonable Act
or Omission (Gov. Code, § 835.4(a))
696
1112. Affirmative Defense—Reasonable Act or Omission to
Correct (Gov. Code, § 835.4(b))
698
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.
700
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].
701
CACI No. 1121 DANGEROUS CONDITION OF PUBLIC PROPERTY
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 316, 317
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.76–12.79
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.304
(Matthew Bender)
702
1122. Affirmative Defense—Weather Conditions Affecting Streets
and Highways (Gov. Code, § 831)
704
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
707
1124. Loss of Design Immunity (Cornette)
New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and
Revised December 2014
Directions for Use
Give this instruction if the plaintiff claims that the public entity defendant has lost
its design immunity because of changed conditions since the design or plan was
originally adopted. Read either or both options for element 3 depending on the facts
of the case.
If the applicability of design immunity in the first instance is disputed, give CACI
No. 1123, Affırmative Defense—Design Immunity. Also in this case, the introductory
paragraph might begin with “Even if [name of defendant] proves both of these
elements” (from CACI No. 1123).
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and
CACI No. 1103, Notice, to define “dangerous condition” and “notice” in connection
with this instruction. Additionally, the meaning and legal requirements for a “change
of physical condition” have been the subject of numerous decisions involving
specific contexts. Appropriate additional instructions to account for these decisions
may be necessary.
Sources and Authority
• Design Immunity. Government Code section 830.6.
708
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1124
709
CACI No. 1124 DANGEROUS CONDITION OF PUBLIC PROPERTY
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 338 et seq.
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)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[3][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew
Bender)
710
1125. Conditions on Adjacent Property
instruction given to the jury, which told it that the City’s ‘property may be
considered dangerous if a condition on adjacent property, such as the pink
stamped concrete or the location of the stop sign, exposes those using the public
property to a substantial risk of injury in conjunction with the adjacent property.’
Giving the jury these two conflicting instructions could not have been anything
but hopelessly confusing to the jury.” (Guernsey v. City of Salinas (2018) 30
Cal.App.5th 269, 281–282 [241 Cal.Rptr.3d 335].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 321 et seq.
5 Levy et al., California Torts, Ch. 61, Tort Claims Against Public Entities and
Employees, § 61.01 et seq. (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Officers,
§ 464.84 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 190.213 (Matthew
Bender)
1126–1199. Reserved for Future Use
712
VF-1100. Dangerous Condition of Public Property
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
714
DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1100
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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.
715
VF-1101. Dangerous Condition of Public Property—Affirmative
Defense—Reasonable Act or Omission (Gov. Code, § 835.4)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, June 2010,
December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements, CACI No. 1111, Affırmative
Defense—Condition Created by Reasonable Act or Omission, and CACI No. 1112,
Affırmative Defense—Reasonable Act or Omission to Correct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
For questions 4 and 6, choose the first bracketed options if liability is alleged
because of an employee’s negligent conduct under Government Code section 835(a).
Use the second bracketed options if liability is alleged for failure to act after actual
or constructive notice under Government Code section 835(b). Both options may be
given if the plaintiff is proceeding under both theories of liability.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
718
DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1101
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1102–VF-1199. Reserved for Future Use
719
PRODUCTS LIABILITY
§ 1714.45)
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
1250–1299. Reserved for Future Use
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
VF-1209–VF-1299. Reserved for Future Use
722
1200. Strict Liability—Essential Factual Elements
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
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1591–1601
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1207, 2:1215 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.10
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.20 et seq.
(Matthew Bender)
726
1201. Strict Liability—Manufacturing Defect—Essential Factual
Elements
New September 2003; Revised April 2009, December 2009, June 2011, May 2020
Directions for Use
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case]; Cronin v. J.B.E. Olson
Corp. (1972) 8 Cal.3d 121, 125–126 [104 Cal.Rptr. 433, 501 P.2d 1153] [product
misuse asserted as a defense to manufacturing defect]; see also CACI No. 1245,
Affırmative Defense—Product Misuse or Modification.) Product misuse is a complete
defense to strict products liability if the defendant proves that an unforeseeable
abuse or alteration of the product after it left the manufacturer’s hands was the sole
cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d
51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or
modification that was a substantial factor in, but not the sole cause of, plaintiff’s
harm may also be considered in determining the comparative fault of the plaintiff or
of third persons. See CACI No. 1207A, Strict Liability—Comparative Fault of
Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of Third
Person.
Sources and Authority
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• “A manufacturing defect occurs when an item is manufactured in a substandard
727
CACI No. 1201 PRODUCTS LIABILITY
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. 843],
internal citation omitted.)
• “[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.
106], original italics.)
• “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, 572
[34 Cal.Rptr.2d 607, 882 P.2d 298], internal citations omitted.)
• “[Plaintiff] argues whether the alleged defects in the cup were a cause of her
injuries is a question for the jury. ‘ “Ordinarily, proximate cause is a question of
fact which cannot be decided as a matter of law. . . . Nevertheless, where the
facts are such that the only reasonable conclusion is an absence of causation, the
question is one of law, not of fact.” ’ ” (Shih v. Starbucks Corp. (2020) 53
Cal.App.5th 1063, 1071 [267 Cal.Rptr.3d 919], internal citation 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, supra, 8
Cal.3d at p. 126.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1591
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1215, 2:1216 (The Rutter Group)
728
PRODUCTS LIABILITY CACI No. 1201
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11,
Ch. 7, Proof, § 7.06 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.30 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.140
(Matthew Bender)
729
1202. Strict Liability—“Manufacturing Defect” Explained
730
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
prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] did not perform as safely as an ordinary
consumer would have expected it to perform when used or
misused in an intended or reasonably foreseeable way;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s failure to perform safely was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, April 2009, December 2009, June
2011, January 2018, May 2020
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If both tests are
asserted by the plaintiff, the burden-of-proof instructions must make it clear that the
two tests are alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d
1101, 1106–1107 [206 Cal.Rptr. 431].)
The court must make an initial determination as to whether the consumer
expectation test applies to the product. In some cases, the court may determine that
the product is one to which the test may, but not necessarily does, apply, leaving the
determination to the jury. (See Saller v. Crown Cork & Seal Co., Inc. (2010) 187
Cal.App.4th 1220, 1233–1234 [115 Cal.Rptr.3d 151].) In such a case, modify the
instruction to advise the jury that it must first determine whether the product is one
about which an ordinary consumer can form reasonable minimum safety
expectations.
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [risk-benefit case]; see also CACI No. 1245, Affırmative
731
CACI No. 1203 PRODUCTS LIABILITY
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.)
• “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
pp. 1233–1234, internal citations omitted.)
• “[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, supra,
20 Cal.3d at p. 418.)
• 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
733
CACI No. 1203 PRODUCTS LIABILITY
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 does not apply merely because the consumer
states that he or she did not expect to be injured by the product.” (Trejo, supra,
13 Cal.App.5th at p. 159.)
• “[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
opinion about the merits of the design.” (Soule, supra, 8 Cal.4th at p. 567,
original italics.)
• “[A] product’s users include anyone whose injury was ‘reasonably foreseeable.’ ”
(Demara, supra, 13 Cal.App.5th at p. 559.)
• “If the facts permit an inference that the product at issue is one about which
consumers may form minimum safety assumptions in the context of a particular
accident, then it is enough for a plaintiff, proceeding under the consumer
expectation test, to show the circumstances of the accident and ‘the objective
features of the product which are relevant to an evaluation of its safety’
[citation], leaving it to the fact finder to ‘employ “[its] own sense of whether the
product meets ordinary expectations as to its safety under the circumstances
presented by the evidence.” ’ [Citations.] Expert testimony as to what consumers
ordinarily ‘expect’ is generally improper.” (Chavez, supra, 207 Cal.App.4th at p.
1303.)
• “That causation for a plaintiff’s injuries was proved through expert testimony
does not mean that an ordinary consumer would be unable to form assumptions
about the product’s safety. Accordingly, the trial court properly instructed the
jury on the consumer expectations test.” (Romine v. Johnson Controls, Inc.
(2014) 224 Cal.App.4th 990, 1004 [169 Cal.Rptr.3d 208], internal citations
omitted.)
• “Generally, ‘ “[e]xpert witnesses may not be used to demonstrate what an
ordinary consumer would or should expect,” because the idea behind the
consumer expectations test is that the lay jurors have common knowledge about
the product’s basic safety.’ However, ‘where the product is in specialized use
with a limited group of consumers[,] . . . ‘. . . expert testimony on the limited
subject of what the product’s actual consumers do expect may be proper” ’
because ‘ “the expectations of the product’s limited group of ordinary consumers
are beyond the lay experience common to all jurors.” ’ ” (Verrazono v. Gehl Co.
(2020) 50 Cal.App.5th 636, 646–647 [263 Cal.Rptr.3d 663], original italics,
internal citation omitted.)
• “In determining whether a product’s safety satisfies [the consumer expectation
test], the jury considers the expectations of a hypothetical reasonable consumer,
734
PRODUCTS LIABILITY CACI No. 1203
rather than those of the particular plaintiff in the case.” (Campbell v. General
Motors Corp. (1982) 32 Cal.3d 112, 126, fn. 6 [184 Cal.Rptr. 891, 649 P.2d
224].)
• “[E]vidence as to what the scientific community knew about the dangers . . .
and when they knew it is not relevant to show what the ordinary consumer of
[defendant]’s product reasonably expected in terms of safety at the time of
[plaintiff]’s exposure. It is the knowledge and reasonable expectations of the
consumer, not the scientific community, that is relevant under the consumer
expectations test.” (Morton v. Owens-Corning Fiberglas Corp. (1995) 33
Cal.App.4th 1529, 1536 [40 Cal.Rptr.2d 22].)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1220–2:1222 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11,
Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
735
CACI No. 1203 PRODUCTS LIABILITY
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.116
(Matthew Bender)
736
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential
Factual Elements—Shifting Burden of Proof
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011, January 2018, May 2019, May 2020
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If the plaintiff asserts
both tests, the instructions must make it clear that the two tests are alternatives.
(Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1106–1107 [206
Cal.Rptr. 431].) Risk-benefit weighing is not a formal part of, nor may it serve as a
defense to, the consumer expectations test. (Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
737
CACI No. 1204 PRODUCTS LIABILITY
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff 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]; 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.
If evidence of industry custom and practice has been admitted for a limited purpose,
at the timely request of a party opposing this evidence, the jury must be given a
limiting instruction on how this evidence may and may not be considered under the
risk-benefit test. (See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 38 [237
Cal.Rptr.3d 205, 424 P.3d 290].)
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• The risk-benefit test requires the plaintiff to first ‘demonstrate[] that the product’s
design proximately caused his injury.’ If the plaintiff makes this initial showing,
the defendant must then ‘establish, in light of the relevant factors, that, on
balance, the benefits of the challenged design outweigh the risk of danger
inherent in such design.’ ” (Kim, supra, 6 Cal.5th at p. 30, internal citation
omitted.)
• “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.
738
PRODUCTS LIABILITY CACI No. 1204
Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485, 497–498 [200 Cal.Rptr.
387], internal citations omitted.)
• “[U]nder the risk/benefit test, the plaintiff may establish the product is defective
by showing that its design proximately caused his injury and the defendant then
fails to establish that on balance the benefits of the challenged design outweigh
the risk of danger inherent in such design. In such case, the jury must evaluate
the product’s design by considering the gravity of the danger posed by the
design, the likelihood such danger would occur, the feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the consumer resulting from an alternative design. ‘In such
cases, the jury must consider the manufacturer’s evidence of competing design
considerations . . . , and the issue of design defect cannot fairly be resolved by
standardless reference to the “expectations” of an “ordinary consumer.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233 [115
Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by the
nature of the product’s design. If this prima facie burden is met, the burden of
proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its product
was not defective because the plaintiff’s injury resulted from a misuse of the
product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics, internal
citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] standard, a jury may consider, among other relevant factors, the gravity
of the danger posed by the challenged design, the likelihood that such danger
would occur, the mechanical feasibility of a safer alternative design, the financial
cost of an improved design, and the adverse consequences to the product and to
739
CACI No. 1204 PRODUCTS LIABILITY
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1223–2:1224 (The Rutter Group)
California Products Liability Actions, Ch. 7, Proof, § 7.02 (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, §§ 190.110,
190.118–190.122 (Matthew Bender)
741
1205. Strict Liability—Failure to Warn—Essential Factual Elements
New September 2003; Revised April 2009, December 2009, June 2011, December
2011, May 2020
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]; 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
742
PRODUCTS LIABILITY CACI No. 1205
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence principles,
and failure to warn claims are generally ‘ “rooted in negligence” to a greater
extent than’ manufacturing or design defect claims. Unlike those other defects, a
‘ “warning defect” relates to a failure extraneous to the product itself’ and can
only be assessed by examining the manufacturer’s conduct. These principles
notwithstanding, California law recognizes separate failure to warn claims under
both strict liability and negligence theories. In general, a product seller will be
strictly liable for failure to warn if a warning was feasible and the absence of a
warning caused the plaintiff’s injury. Reasonableness of the seller’s failure to
warn is immaterial in the strict liability context. Conversely, to prevail on a
claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], original italics, footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
• “The actual knowledge of the individual manufacturer, even if reasonably
prudent, is not the issue. We view the standard to require that the manufacturer
is held to the knowledge and skill of an expert in the field; it is obliged to keep
abreast of any scientific discoveries and is presumed to know the results of all
such advances.” (Carlin, supra, 13 Cal.4th at p. 1113, fn. 3.)
• “[A] defendant in a strict products liability action based upon an alleged failure
to warn of a risk of harm may present evidence of the state of the art, i.e.,
evidence that the particular risk was neither known nor knowable by the
application of scientific knowledge available at the time of manufacture and/or
distribution.” (Anderson, supra, 53 Cal.3d at p. 1004.)
• “[T]here can be no liability for failure to warn where the instructions or
warnings sufficiently alert the user to the possibility of danger.” (Aguayo v.
Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1042 [228 Cal.Rptr.
768], internal citation omitted.)
• “A duty to warn or disclose danger arises when an article is or should be known
to be dangerous for its intended use, either inherently or because of defects.”
(DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d
744
PRODUCTS LIABILITY CACI No. 1205
prove that if [defendant] had properly reported the adverse events to the FDA as
required under federal law, that information would have reached [her] doctors in
time to prevent [her] injuries.’ [Citation.]” But at this stage, [plaintiff] need only
allege ‘ “a causal connection” ’ between [defendant’s] failure to report and her
injuries.” (Mize v. Mentor Worldwide LLC (2020) 51 Cal.App.5th 850, 863–864
[265 Cal.Rptr.3d 468], internal citation omitted.)
• “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
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].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of fact. . . .
[A] manufacturer owes a foreseeable user of its product a duty to warn of risks
of using the product.’ ” (Wright v. Stang Manufacturing Co. (1997) 54
Cal.App.4th 1218, 1235 [63 Cal.Rptr.2d 422].)
• “California law does not impose a duty to warn about dangers arising entirely
from another manufacturer’s product, even if it is foreseeable that the products
will be used together.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 361 [135
Cal.Rptr.3d 288, 266 P.3d 987].)
• “The O’Neil [supra] court concluded that Tellez-Cordova [Tellez-Cordova v.
Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577] marked an
746
PRODUCTS LIABILITY CACI No. 1205
748
1206. Strict Liability—Failure to Warn—Products Containing
Allergens (Not Prescription Drugs)—Essential Factual Elements
Harris v. Belton (1968) 258 Cal.App.2d 595, 608 [65 Cal.Rptr. 808] [skin tone
cream].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631–1643
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.165 (Matthew Bender)
751
1207A. Strict Liability—Comparative Fault of Plaintiff
Derived from former CACI No. 1207 April 2009; Revised December 2009, May
2020
Directions for Use
Give this instruction if the defendant alleges that the plaintiff’s own negligence
contributed to the plaintiff’s harm. See also CACI No. 405, Comparative Fault of
Plaintiff. For an instruction on the comparative fault of a third person, see CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[W]e do not permit plaintiff’s own conduct relative to the product to escape
unexamined, and as to that share of plaintiff’s damages which flows from his
own fault we discern no reason of policy why it should, following Li, be borne
by others.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 [144
Cal.Rptr. 380, 575 P.2d 1162] [comparative fault applies to strict product liability
actions].)
• “[A] petitioner’s recovery may accordingly be reduced, but not barred, where his
752
PRODUCTS LIABILITY CACI No. 1207A
753
1207B. Strict Liability—Comparative Fault of Third Person
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,
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
754
PRODUCTS LIABILITY CACI No. 1207B
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
756
1208. Component Parts Rule
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, supra, 61
Cal.App.4th at p. 837.)
• “[T]he protection afforded to defendants by the component parts doctrine does
not apply when the product supplied has not been incorporated into a different
finished or end product but instead, as here, itself allegedly causes injury when
used in the manner intended by the product supplier.” (Ramos, supra, 63 Cal.4th
at p. 504.)
• “The Restatement further explains ‘Product components include raw
materials. . . . Thus, when raw materials are contaminated or otherwise defective
within the meaning of § 2(a), the seller of the raw material is subject to liability
for harm caused by such defects.’ California courts have generally adopted the
component parts doctrine as it is articulated in the Restatement.” (Brady v.
Calsol, Inc. (2015) 241 Cal.App.4th 1212, 1219 [194 Cal.Rptr.3d 243], internal
citation omitted.)
• “The California Supreme Court has not determined whether the component parts
defense is limited to fungible products.” (Romine, supra, 224 Cal.App.4th at p.
1006, fn. 6.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1617, 1666
1209–1219. Reserved for Future Use
759
1220. Negligence—Essential Factual Elements
761
1221. Negligence—Basic Standard of Care
can also take into account other applicable and relevant circumstances. As
framed by CACI No. 1221, the negligence inquiry asks if the manufacturer
failed to use the amount of care in designing the product that a reasonably
careful designer or manufacturer would have used in similar circumstances.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430
[136 Cal.Rptr.3d 739], internal citations omitted.)
• “[F]reedom from negligence does not inure to the manufacturer because it
purchased parts from another which were defective.” (Sheward v. Virtue (1942)
20 Cal.2d 410, 412 [126 P.2d 345].)
• “The duty of a manufacturer with respect to the design of products placed on the
market is defined in the Restatement Second of Torts, section 398: ‘A
manufacturer of a chattel made under a plan or design which makes it dangerous
for the uses for which it is manufactured is subject to liability to others whom
he should expect to use the chattel or to be endangered by its probable use for
physical harm caused by his failure to exercise reasonable care in the adoption
of a safe plan or design.’ Thus, the manufacturer must use reasonable care ‘to so
design his product as to make it not accident-proof, but safe for the use for
which it was [sic] intended.’ What is ‘reasonable care,’ of course, varies with the
facts of each case, but it involves a balancing of the likelihood of harm to be
expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470 [85 Cal.Rptr.
629, 467 P.2d 229], internal citation omitted.)
• “ ‘[T]he test of negligent design “involves a balancing of the likelihood of harm
to be expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” [Citation.] . . . “A manufacturer or other seller can be negligent in
marketing a product because of the way it was designed. In short, even if a
seller had done all that he could reasonably have done to warn about a risk or
hazard related to the way a product was designed, it could be that a reasonable
person would conclude that the magnitude of the reasonably foreseeable harm as
designed outweighed the utility of the product as so designed.” [Citation.] Thus,
“most of the evidentiary matters” relevant to applying the risk/benefit test in
strict liability cases “are similar to the issues typically presented in a negligent
design case.” ’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1305 [144
Cal.Rptr.3d 326].)
• “A danger is unreasonable when it is foreseeable, and the manufacturer’s ability,
actual, constructive, or potential, to forestall unreasonable danger is the measure
of its duty in the design of its product.” (Balido v. Improved Machinery, Inc.
(1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other
grounds in Regents of University of California v. Hartford Accident & Indemnity
Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d 197].)
• “With respect to tests or inspections, it is well settled that where an article is
such that it is reasonably certain, if negligently manufactured or designed, to
763
CACI No. 1221 PRODUCTS LIABILITY
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 p.
1078, internal citations omitted.)
• “[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. (1960)
184 Cal.App.2d 724, 736 [7 Cal.Rptr. 879], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631–1643
Haning 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)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.190 et seq.
(Matthew Bender)
764
1222. Negligence—Manufacturer or Supplier—Duty to
Warn—Essential Factual Elements
New September 2003; Revised June 2011, December 2012, May 2020
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.
To make a prima facie case, the plaintiff has the initial burden of producing
765
CACI No. 1222 PRODUCTS LIABILITY
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [strict liability design defect risk-benefit case].) See also
CACI No. 1245, Affırmative Defense—Product Misuse or Modification. Product
misuse is a complete defense to strict products liability if the defendant proves that
an unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
The last bracketed paragraph is to be used in prescription drug cases only.
Sources and Authority
• “[T]he manufacturer has a duty to use reasonable care to give warning of the
dangerous condition of the product or of facts which make it likely to be
dangerous to those whom he should expect to use the product or be endangered
by its probable use, if the manufacturer has reason to believe that they will not
realize its dangerous condition.” (Putensen v. Clay Adams, Inc. (1970) 12
Cal.App.3d 1062, 1076–1077 [91 Cal.Rptr. 319].)
• “Under California law, a manufacturer generally has no duty to warn of risks
from another manufacturer’s product, and is typically liable only for harm
caused by its own product.” (Johnson & Johnson Talcum Powder Cases (2019)
37 Cal.App.5th 292, 315 [249 Cal.Rptr.3d 642].)
• “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.)
• “Thus, the question defendants wanted included in the special verdict
form—whether a reasonable manufacturer under the same or similar
circumstances would have given a warning—is an essential inquiry in the
negligent failure to warn claim.” (Trejo v. Johnson & Johnson (2017) 13
Cal.App.5th 110, 137 [220 Cal.Rptr.3d 127] [citing this instruction].)
• “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,
766
PRODUCTS LIABILITY CACI No. 1222
768
1223. Negligence—Recall/Retrofit
770
1224. Negligence—Negligence for Product Rental/Standard of
Care
(1953) 40 Cal.2d 740, 742 [255 P.2d 810].) The bailor is not an insurer or
guarantor. (Tierstein, supra, 174 Cal.App.2d at p. 841.)
• Restatement Second of Torts, section 408, provides: “One who leases a chattel as
safe for immediate use is subject to liability to those whom he should expect to
use the chattel, or to be endangered by its probable use, for physical harm
caused by its use in a manner for which, and by a person for whose use, it is
leased, if the lessor fails to exercise reasonable care to make it safe for such use
or to disclose its actual condition to those who may be expected to use it.”
• This Restatement section was cited with approval in Rae v. California Equipment
Co. (1939) 12 Cal.2d 563, 569 [86 P.2d 352].
• “The general rule is that the only duty which a gratuitous bailor owes either to
the bailee or to third persons is to warn them of actually known defects which
render the chattel dangerous for the purpose for which it is ordinarily used; he
has no liability for injuries caused by defects in the subject matter of the
bailment of which he was not aware.” (Tierstein, supra, 174 Cal.App.2d at p.
841.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1670
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.053 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 413, Personal Property Leases,
§ 413.34 (Matthew Bender)
1225–1229. Reserved for Future Use
772
1230. Express Warranty—Essential Factual Elements
773
CACI No. 1230 PRODUCTS LIABILITY
with the warranty terms may seek to enforce the express warranty against the
manufacturer by bringing an action under the Commercial Code based on breach
of express warranty. Such an action does not require that the plaintiff purchase
the vehicle from a retail seller.” (Dagher, supra, 238 Cal.App.4th at p. 928.)
• “ ‘The determination as to whether a particular statement is an expression of
opinion or an affirmation of a fact is often difficult, and frequently is dependent
upon the facts and circumstances existing at the time the statement is made.’ ”
(Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
• “Statements made by a seller during the course of negotiation over a contract are
presumptively affirmations of fact unless it can be demonstrated that the buyer
could only have reasonably considered the statement as a statement of the
seller’s opinion. Commentators have noted several factors which tend to indicate
an opinion statement. These are (1) a lack of specificity in the statement made,
(2) a statement that is made in an equivocal manner, or (3) a statement which
reveals that the goods are experimental in nature.” (Keith, supra, 173 Cal.App.3d
at p. 21.)
• “It is important to note . . . that even statements of opinion can become
warranties under the code if they become part of the basis of the bargain.”
(Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
• “The basis of the bargain requirement represents a significant change in the law
of warranties. Whereas plaintiffs in the past have had to prove their reliance
upon specific promises made by the seller, the Uniform Commercial Code
requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations
omitted.)
• “It is immaterial whether defendant had actual knowledge of the
contraindications. ‘The obligation of a warranty is absolute, and is imposed as a
matter of law irrespective of whether the seller knew or should have known of
the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969) 274
Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
• “[A] sale is ordinarily an essential element of any warranty, express or implied
. . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137
Cal.Rptr. 417], internal citations omitted.)
• “Neither Magnuson-Moss nor the California Uniform Commercial Code requires
proof that a defect substantially impairs the use, value, or safety of a vehicle in
order to establish a breach of an express or written warranty, as required under
Song-Beverly.” (Orichian, supra, 226 Cal.App.4th at p. 1331; fn. 9, see CACI
No. 3204, “Substantially Impaired” Explained.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 57–67
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
775
CACI No. 1230 PRODUCTS LIABILITY
776
1231. Implied Warranty of Merchantability—Essential Factual
Elements
61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243,
Notification/Reasonable Time.
Sources and Authority
• 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).
• “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 Cal.Rptr.2d
526], internal citations omitted.)
• “[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 Cal.Rptr.
533], internal citations omitted.)
• “[Plaintiff] comes within a well-recognized exception to the [privity] rule: he is a
member of the purchaser’s family.” (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “Therefore, says plaintiff, . . . in view of modern industrial usage employe[e]s
should be considered a member of the industrial ‘family’ of the
employer—whether corporate or private—and to thus stand in such privity to the
manufacturer as to permit the employe[e]s to be covered by warranties made to
the purchaser-employer. [¶] We are persuaded that this position is meritorious.”
(Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339, 347 [5 Cal.Rptr. 863, 353
P.2d 575].)
• “A buyer who is damaged by a breach of implied warranty has two possible
measures of those damages: one where the buyer has rightfully rejected or
‘justifiably revoked acceptance’ of the goods, and one where the buyer has
accepted the goods.” (Simgel Co., Inc. v. Jaguar Land Rover North America,
LLC (2020) 55 Cal.App.5th 305, 315–316 [269 Cal.Rptr.3d 364].)
778
PRODUCTS LIABILITY CACI No. 1231
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 51
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.200–502.214 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.63 et seq. (Matthew
Bender)
779
1232. Implied Warranty of Fitness for a Particular
Purpose—Essential Factual Elements
• Although privity appears to be required for actions based upon the implied
warranty of merchantability, there are exceptions to this rule, such as one for
members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for
employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr.
863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she
leases or negotiates the sale or lease of the product. (United States Roofing,
supra.)
Secondary Sources
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.220 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
782
1233. Implied Warranty of Merchantability for Food—Essential
Factual Elements
cause of action in strict liability or implied warranty. If, however, the presence 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
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.32
(Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 268, Food, § 268.14A (Matthew
Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.201
(Matthew Bender)
1234–1239. Reserved for Future Use
784
1240. Affirmative Defense to Express Warranty—Not “Basis of
Bargain”
New September 2003; Revoked June 2010; Restored and Revised December 2010
Sources and Authority
• Creation of Express Warranties. California Uniform Commercial Code section
2313.
• “The key under [California Uniform Commercial Code section 2313] is that the
seller’s statements—whether fact or opinion—must become ‘part of the basis of
the bargain.’ The basis of the bargain requirement represents a significant change
in the law of warranties. Whereas plaintiffs in the past have had to prove their
reliance upon specific promises made by the seller, the Uniform Commercial
Code requires no such proof. According to official comment 3 to the Uniform
Commercial Code following section 2313, ‘no particular reliance . . . need be
shown in order to weave [the seller’s affirmations of fact] into the fabric of the
agreement. Rather, any fact which is to take such affirmations, once made, out of
the agreement requires clear affirmative proof.’ ” (Hauter v. Zogarts (1975) 14
Cal.3d 104, 115 [120 Cal.Rptr. 681, 534 P.2d 377, internal citations and footnote
omitted.)
• “The California Supreme Court, in discussing the continued viability of the
reliance factor, noted that commentators have disagreed in regard to the impact
of this development. Some have indicated that it shifts the burden of proving
nonreliance to the seller, and others have indicated that the code eliminates the
concept of reliance altogether.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13,
22 [220 Cal.Rptr. 392], citing Hauter, supra, 14 Cal.3d at pp. 115–116.)
• “The official Uniform Commercial Code comment in regard to section 2-313
‘indicates that in actual practice affirmations of fact made by the seller about the
785
CACI No. 1240 PRODUCTS LIABILITY
goods during a bargain are regarded as part of the description of those 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 Cal.App.4th at p.
1230.)
• “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
786
PRODUCTS LIABILITY CACI No. 1240
proof that extracts the affirmations from the ‘agreement’ or ‘bargain of the
parties in fact,’ not, as Keith would suggest, to proof that they were not an
inducement for the purchase. Relying on Keith, the court in effect equated the
concept of the ‘bargain in fact of the parties’ with the concept of reliance, but
. . . the two are not synonymous. Moreover, the opinion in Keith contradicts
itself on this matter. On the one hand the opinion states unequivocally that ‘[i]t
is clear’ section 2313 ‘purposefully abandoned’ the concept of reliance. On the
other hand, we must ask if section 2313 has eliminated the concept of reliance
from express warranty law all together, by what logic can reliance reappear, by
its absence, as an affirmative defense?” (Weinstat, supra, 180 Cal.App.4th at p.
1234, internal citation omitted.)
Secondary Sources
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.62
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 (Matthew Bender)
21 California Legal Forms, Ch. 52, Sales of Goods Under the Uniform Commercial
Code, § 52.290[1] (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or
Defending Action for Breach of Warranty, 24.36[4]
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
787
1241. Affirmative Defense—Exclusion or Modification of Express
Warranty
disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “Interpretation of a written document, where extrinsic evidence is unnecessary, is
a question of law for the trial court to determine.” (Temple v. Velcro USA, Inc.
(1983) 148 Cal.App.3d 1090, 1095 [196 Cal.Rptr. 531], internal citations
omitted.)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.23
(Matthew Bender)
789
1242. Affirmative Defense—Exclusion of Implied Warranties
791
1243. Notification/Reasonable Time
793
1244. Affirmative Defense—Sophisticated User
796
1245. Affirmative Defense—Product Misuse or Modification
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.)
797
CACI No. 1245 PRODUCTS LIABILITY
799
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.
‘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.)
• “[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, 177
Cal.App.4th at p. 712.)
• “[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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1704
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict 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,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
802
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.
provided warnings that conformed to the approved warnings; and (3) the
contractor warned the United States of the dangers in the equipment’s use about
which the contractor knew, but the United States did not.’ ” (Oxford, supra, 177
Cal.App.4th at p. 712.)
• “As in design defect cases, in order to satisfy the first condition—government
‘approval’—in failure to warn cases, the government’s involvement must
transcend rubber stamping. And where the government goes beyond approval
and actually determines for itself the warnings to be provided, the contractor has
surely satisfied the first condition because the government exercised its
discretion. The second condition in failure to warn cases, as in design defect
cases, assures that the defense protects the government’s, not the contractor’s,
exercise of discretion. Finally, the third condition encourages frank
communication to the government of the equipment’s dangers and increases the
likelihood that the government will make a well-informed judgment.” (Oxford,
supra, 177 Cal.App.4th at p. 712, quoting Tate, supra, 55 F.3d at p. 1157.)
• “Under California law, a manufacturer has a duty to warn of a danger when the
manufacturer has knowledge of the danger or has reason to know of it and has
no reason to know that those who use the product will realize its dangerous
condition. Whereas the government contractor’s defense may be used to trump a
design defect claim by proving that the government, not the contractor, is
responsible for the defective design, that defense is inapplicable to a failure to
warn claim in the absence of evidence that in making its decision whether to
provide a warning . . . , [defendant] was ‘acting in compliance with “reasonably
precise specifications” imposed on [it] by the United States.’ ” (Butler v. Ingalls
Shipbuilding (9th Cir. 1996) 89 F.3d 582, 586.)
• “In a failure-to-warn action, where no conflict exists between requirements
imposed under a federal contract and a state law duty to warn, regardless of any
conflict which may exist between the contract and state law design requirements,
Boyle commands that we defer to the operation of state law.” (Butler, supra, 89
F.3d at p. 586.)
• “Defendants’ evidence did not establish as a matter of law the necessary
significant conflict between federal contracting requirements and state law.
Although defendants’ evidence did show that certain warnings were required by
the military specifications, that evidence did not establish that the specifications
placed any limitation on additional information from the manufacturers to users
of their products. Instead, the evidence suggested no such limitation existed.”
(Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1317 [273 Cal.Rptr. 214].)
• “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal
interests” ’ state law may be preempted or displaced by federal law, and that
civil liability arising from the performance of federal procurement contracts is
such an area. The court further determined that preemption or displacement of
state law occurs in an area of uniquely federal interests only where a
‘ “significant conflict” ’ exists between an identifiable federal policy or interest
and the operation of state law.” (Oxford, supra, 177 Cal.App.4th at p. 708,
804
PRODUCTS LIABILITY CACI No. 1247
quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
• “[T]he Supreme Court in Boyle did not expressly limit its holding to products
liability causes of action. Thus, the government contractor defense is applicable
to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
• “[T]he fact that a company supplies goods to the military does not, in and of
itself, immunize it from liability for the injuries caused by those goods. Where
the goods ordered by the military are those readily available, in substantially
similar form, to commercial users, the military contractor defense does not
apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806,
811.)
• “In our view, if a product is produced according to military specifications and
used by the military because of particular qualities which serve a military
purpose, and is incidentally sold commercially as well, that product may
nonetheless still qualify as military equipment under the military contractor
defense.” (Jackson, supra, 223 Cal.App.3d at p. 1319.)
• “While courts such as the court in Hawaii have sought to confine the
government contractor defense to products that are made exclusively for the
military, we agree with the court in Jackson that this limitation is unduly
confining. Though the court in Boyle discussed the parameters of the contractor
defense in terms of ‘military equipment,’ use of that term appears to have
followed from the facts of that case. Other courts considering this issue have
concluded the defense is not limited to military contracts. . . . [Boyle’s]
application focuses instead on whether the issue or area is one involving
‘uniquely federal interests’ and, if so, whether the application of state law
presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177
Cal.App.4th at p. 710; the split on this issue in the federal and other state courts
is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1704
1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)
2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
805
1248. Affirmative Defense—Inherently Unsafe Consumer Product
(Civ. Code, § 1714.45)
dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous. Good
butter is not unreasonably dangerous merely because, if such be the case, it
deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.”
• “Additional limitations on the scope of the immunity may be deduced from the
history and purpose of the Immunity Statute . . . .The statute’s express premise
. . . was ‘that suppliers of certain products which are “inherently unsafe,” but
which the public wishes to have available despite awareness of their dangers,
should not be responsible in tort for resulting harm to those who voluntarily
consumed the products despite such knowledge.’ . . . [T]he Immunity Statute
[is] based on the principle that ‘if a product is pure and unadulterated, its
inherent or unavoidable danger, commonly known to the community which
consumes it anyway, does not expose the seller to liability for resulting harm to
a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th
856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
• “The law should not ignore interactive effects that might render a product more
dangerous than is contemplated by the ordinary consumer who purchases it and
possesses the ordinary knowledge common to the community as to the product’s
characteristics. Therefore, when a court addresses whether a multi-ingredient
product is a common consumer product for purposes of Civil Code section
1714.45 and the ingredients have an interactive effect, the product and its
inherent dangers must be considered as a whole so that the interactive effects of
its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co.,
LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
• “The foregoing inferences preclude us from finding, as a matter of law, that
[product] was a common consumer product for purposes of Civil Code section
1714.45, subdivision (a). As a result, that factual question should be presented to
the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1930 et seq.
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[5] (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.70 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
807
1249. Affirmative Defense—Reliance on Knowledgeable
Intermediary
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1321
1 California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21[3][c] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.11[10][b] (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.263 et seq.
(Matthew Bender)
1250–1299. Reserved for Future Use
811
VF-1200. Strict Products Liability—Manufacturing
Defect—Comparative Fault at Issue
[Name of defendant]: %
[Name of plaintiff]: %
[Name/description of other person]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, June 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1201, Strict Liability—Manufacturing
Defect—Essential Factual Elements, CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person. If product misuse or modification is
alleged as a complete defense (see CACI No. 1245, Affırmative Defense—Product
Misuse or Modification), questions 2 and 3 of CACI No. VF-1201, Strict Products
Liability—Design Defect—Consumer Expectation Test—Affırmative Defense—Misuse
or Modification, may be included after question 1.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the negligence or fault of more than one third person is alleged to have
contributed to the plaintiff’s injury, repeat questions 7 and 8.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
814
VF-1201. Strict Products Liability—Design Defect—Affirmative
Defense—Misuse or Modification
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.
816
PRODUCTS LIABILITY VF-1201
New September 2003; Revised October 2004, April 2007, April 2009, December
2010, June 2011, December 2011, December 2014, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1203, Strict Liability—Design
Defect—Consumer Expectation Test—Essential Factual Elements, CACI No. 1204,
Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof, and CACI No. 1245, Affırmative
Defense—Product Misuse or Modification. If the comparative fault or negligence of
the plaintiff or of third persons is at issue, questions 6 through 9 of CACI No. VF-
1200, Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue,
may be added at the end.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form can be used in a case in which the jury will decide design defect
under both the consumer expectation and the risk-benefit tests. If only the risk-
benefit test is at issue, omit questions 4 and 5. If only the consumer expectation test
is at issue, omit question 6. Modify the transitional language following questions 5
and 6 if only one test is at issue in the case. Include question 4 if the court has
decided to give to the jury the preliminary question as to whether the consumer
expectation test can be applied to the product at issue in the case. (See Saller v.
Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233–1234 [115
Cal.Rptr.3d 151].) An additional question may be needed if the defendant claims
that the plaintiff’s injuries were caused by some product other than the defendant’s.
If specificity is not required, users do not have to itemize all the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
817
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit
Test
Revoked December 2014; See CACI No. VF-1201
818
VF-1203. Strict Products Liability—Failure to Warn
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2010, June 2011,
December 2011, December 2016
820
PRODUCTS LIABILITY VF-1203
821
VF-1204. Products Liability—Negligence—Comparative Fault of
Plaintiff at Issue
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
823
VF-1204 PRODUCTS LIABILITY
New September 2003; Revised April 2007, December 2009, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1220, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
824
VF-1205. Products Liability—Negligent Failure to Warn
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.
826
PRODUCTS LIABILITY VF-1205
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
827
VF-1206. Products Liability—Express Warranty—Affirmative
Defense—Not “Basis of Bargain”
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2011, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1230, Express Warranty—Essential Factual
Elements, and CACI No. 1240, Affırmative Defense to Express Warranty—Not
“Basis of Bargain.”
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that the plaintiff 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?”
If specificity is not required, users do not have to itemize all the damages listed in
829
VF-1206 PRODUCTS LIABILITY
830
VF-1207. Products Liability—Implied Warranty of
Merchantability—Affirmative Defense—Exclusion of Implied
Warranties
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
Directions for Use
This verdict form is based on CACI No. 1231, Implied Warranty of
Merchantability—Essential Factual Elements, and CACI No. 1242, Affırmative
Defense—Exclusion of Implied Warranties.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that the plaintiff 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
832
PRODUCTS LIABILITY VF-1207
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?”
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Question 2 should be modified if the defendant purported to have 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.
833
VF-1208. Products Liability—Implied Warranty of Fitness for a
Particular Purpose
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
835
VF-1208 PRODUCTS LIABILITY
836
ASSAULT AND BATTERY
837
1300. Battery—Essential Factual Elements
person attacked the former may not shield himself behind the charge that his
victim may have been guilty of contributory negligence, for such a plea is
unavailable to him.” (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 [59
Cal.Rptr. 382].)
• “ ‘It has long been established, both in tort and criminal law, that “the least
touching” may constitute battery. In other words, force against the person is
enough; it need not be violent or severe, it need not cause bodily harm or even
pain, and it need not leave any mark.’ ” (People v. Mansfield (1988) 200
Cal.App.3d 82, 88 [245 Cal.Rptr. 800], internal citations omitted.)
• “[T]he tort of battery generally is not limited to direct body-to-body contact. In
fact, the commentary to the Restatement Second of Torts clearly states that the
‘[m]eaning of “contact with another’s person” ’ . . . does not require that one
‘should bring any part of his own body in contact with another’s person. . . .
[One] is liable [for battery] in this Section if [one] throws a substance, such as
water, upon the other . . . .’ ” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219
Cal.App.4th 876, 881 [162 Cal.Rptr.3d 211].)
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains, supra, 150 Cal.App.3d at p. 938.)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
• “In an action for civil battery the element of intent is satisfied if the evidence
shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.”
(Ashcraft, supra, 228 Cal.App.3d at p. 613, internal citation omitted.)
• “ ‘The usages of decent society determine what is offensive.’ ” (Barouh, supra,
26 Cal.App.4th at p. 46, fn. 5, internal citation omitted.)
• “Even though pushing a door cannot be deemed a harmful injury, the pushing of
a door which was touching the prosecutrix could be deemed an offensive
touching and a battery is defined as a harmful or offensive touching.” (People v.
Puckett (1975) 44 Cal.App.3d 607, 614–615 [118 Cal.Rptr. 884].)
• “ ‘If defendant unlawfully aims at one person and hits another he is guilty of
assault and battery on the party he hit, the injury being the direct, natural and
probable consequence of the wrongful act.’ ” (Singer v. Marx (1956) 144
Cal.App.2d 637, 642 [301 P.2d 440], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452–488
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-J, Assault And
Battery, ¶ 5:858 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
839
CACI No. 1300 ASSAULT AND BATTERY
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.21 (Matthew
Bender)
California Civil Practice: Torts §§ 12:7–12:9 (Thomson Reuters)
840
1301. Assault—Essential Factual Elements
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 one
person to inflict immediate injury on the person of another then present.’ ”
(Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1603–1604 [146 Cal.Rptr.3d
585].)
• “A civil action for assault is based upon an invasion of the right of a person to
live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of
California (1944) 63 Cal.App.2d 1, 6–7 [146 P.2d 57], internal citation omitted.)
• “The tort of assault is complete when the anticipation of harm occurs.” (Kiseskey
v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d 222, 232
[192 Cal.Rptr 492].)
• “Furthermore, . . . ‘while apprehension of that contact is the basis of assault
[citation,] [m]ere words, however threatening, will not amount to an assault.
[Citations.]’ ” (Plotnik, supra, 208 Cal.App.4th at p. 1604.)
• Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452–488
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-J, Assault And
Battery, ¶ 5:856 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[4] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters)
842
1302. Consent Explained
843
1303. Invalid Consent
844
ASSAULT AND BATTERY CACI No. 1303
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 457–488
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
Bender)
California Civil Practice: Torts §§ 12:9, 12:18–12:19 (Thomson Reuters)
845
1304. Affirmative Defense—Self-Defense/Defense of Others
• “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
Cal.App.4th at p. 20.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 489–493, 495
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.21 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery,
§§ 58.19–58.20, 58.70–58.71 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.40 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 12:20–12:21 (Thomson Reuters)
847
1305A. Battery by Law Enforcement Officer (Nondeadly
Force)—Essential Factual Elements
New September 2003; Revised December 2012, May 2020, November 2020;
Renumbered from CACI No. 1305 and Revised May 2021
Directions for Use
See CACI No. 1302, Consent Explained, and CACI No. 1303, Invalid Consent, if
there is an issue concerning the plaintiff’s consent.
For additional authorities on excessive force, see the Sources and Authority for
CACI No. 440, Negligent Use of Nondeadly Force by Law Enforcement Offıcer in
Arrest or Other Seizure—Essential Factual Elements, CACI No. 441, Negligent Use
of Deadly Force by Peace Offıcer—Essential Factual Elements, and CACI No.
3020, Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential
Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a battery claim involving nondeadly force does not
depend on whether the individual qualifies as a peace officer under the Penal Code.
(See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 1305B, Battery by Peace Offıcer (Deadly Force)—Essential Factual Elements.
(Pen. Code, § 835a.) This instruction and CACI No. 1305B may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the bracketed sentence in the second paragraph only if the defendant claims
that the person being arrested or detained resisted the officer.
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 not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673
F.3d 864, 872); additional factors may be added if appropriate to the facts of the
case.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a.
• Duty to Submit to Arrest. 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
849
CACI No. 1305A ASSAULT AND BATTERY
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
851
1305B. Battery by Peace Officer (Deadly Force)—Essential Factual
Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant]
unnecessarily used deadly force on [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] intentionally touched [name of plaintiff/
decedent] [or caused [name of plaintiff/decedent] to be touched];
2. That [name of defendant] used deadly force on [name of plaintiff/
decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [insert
one or both of the following:]
5. [to defend against an imminent threat of death or serious bodily
harm to [name of defendant] [or] [to another person][; or/.]]
5. [to apprehend a fleeing person for a felony, when all of the
following conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. If practical under the circumstances, [name of defendant] made
reasonable efforts to identify [himself/herself/nonbinary
pronoun] as a peace officer and to warn that deadly force
would be used, unless the officer had objectively reasonable
grounds to believe the person is aware of those facts.]
[A peace officer must not use deadly force against persons based only on
the danger those persons pose to themselves, if an objectively reasonable
officer would believe the person does not pose an imminent threat of
852
ASSAULT AND BATTERY CACI No. 1305B
decide whether the amount of force used was deadly or nondeadly, this instruction
may be used along with the CACI No. 1305A, Battery by Law Enforcement Offıcer
(Nondeadly Force)—Essential Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers,” a term defined by the Penal Code. (See Pen. Code, § 835a; see also Pen.
Code, § 830 et seq. [defining “peace officer”].) That the defendant is a peace officer
may be stipulated to or decided by the judge as a matter of law. In such a case, the
judge must instruct the jury that the defendant was a peace officer. If there are
contested issues of fact on this issue, include the specific factual findings necessary
for the jury to determine whether the defendant was acting as a peace officer.
In the paragraph after the essential factual elements, select either or both bracketed
options depending on the asserted justification(s) for the use of deadly force.
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
In the “totality of the circumstances” paragraph, do not include the final optional
sentence or its optional clause unless there is evidence of a disability or evidence of
the person’s ability to comprehend or comply with the officer’s commands.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
• When Use of Deadly Force is Justified. Penal Code section 835a(c).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “Peace Officer” Defined. Penal Code section 830 et seq.
• “[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, original italics, internal
citation omitted.)
854
ASSAULT AND BATTERY CACI No. 1305B
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
855
1306. Sexual Battery—Essential Factual Elements (Civ. Code,
§ 1708.5)
personal dignity.]
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.27,
58.55 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.27 (Matthew
Bender)
California Civil Practice: Torts §§ 12:7–12:9, 12:36–12:39 (Thomson Reuters)
1307–1319. Reserved for Future Use
858
1320. Intent
859
1321. Transferred Intent
860
VF-1300. Battery
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
862
ASSAULT AND BATTERY VF-1300
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.
863
VF-1301. Battery—Self-Defense/Defense of Others at Issue
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual Elements,
865
VF-1301 ASSAULT AND BATTERY
866
VF-1302. Assault
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, June 2005, April 2007, December
2010, December 2016
868
ASSAULT AND BATTERY VF-1302
869
VF-1303A. Battery by Law Enforcement Officer (Nondeadly Force)
870
ASSAULT AND BATTERY VF-1303A
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016;
Renumbered from CACI No. VF-1303 and Revised May 2021
Directions for Use
This verdict form is based on CACI No. 1305A, Battery by Law Enforcement
Offıcer (Nondeadly Force)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
871
VF-1303A ASSAULT AND BATTERY
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.
872
VF-1303B. Battery by Peace Officer (Deadly Force)
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.
874
FALSE IMPRISONMENT
875
1400. No Arrest Involved—Essential Factual Elements
New September 2003; Revised December 2010, December 2011, May 2020
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 the existence of a lawful privilege, the judge should read the
applicable affirmative defense instructions immediately following this one.
Sources and Authority
• “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
876
FALSE IMPRISONMENT CACI No. 1400
877
CACI No. 1400 FALSE IMPRISONMENT
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 499–502
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§§ 42.01, 42.07, 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.40 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
878
1401. False Arrest Without Warrant by Peace Officer—Essential
Factual Elements
880
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/
nonbinary pronoun] 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.]
883
1403. False Arrest Without Warrant by Private Citizen—Essential
Factual Elements
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “ ‘[T]he delegation of the physical act of arrest need not be express, but may be
implied from the citizen’s act of summoning an officer, reporting the offense, and
pointing out the suspect.’ ” (Johanson v. Dept. of Motor Vehicles (1995) 36
Cal.App.4th 1209, 1216 [43 Cal.Rptr.2d 42], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 511, 512
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
885
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/nonbinary pronoun] 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.]
887
1405. False Arrest With Warrant—Essential Factual Elements
889
1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
[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.
891
1407. Unnecessary Delay in Processing/Releasing—Essential
Factual Elements
but one way of committing a false imprisonment, and they are distinguishable
only in terminology.” (Collins v. City and County of San Francisco (1975) 50
Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
• “In determining which delays are necessary, this court has rejected arguments
that the delay was ‘not unusual’ or made ‘the work of the police and the district
attorney easier.’ As the Court of Appeal recently observed, ‘[t]here is no
authority to delay for the purpose of investigating the case. Subject to obvious
health considerations the only permissible delay between the time of arrest and
bringing the accused before a magistrate is the time necessary: to complete the
arrest; to book the accused; to transport the accused to court; or the district
attorney to evaluate the evidence for the limited purpose of determining what
charge, if any, is to be filed; and to complete the necessary clerical and
administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates (1988)
200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775], internal citations omitted.)
• “Although both false imprisonment and malicious prosecution may cause a
person to be restrained or confined, under Asgari (Asgari v. City of Los Angeles
(1997) 15 Cal.4th 744 [63 Cal.Rptr.2d 842, 937 P.2d 273]) only damages
attributable to injuries arising from false arrest and false imprisonment are
compensable in an action under state law against a public entity and its
employees. False imprisonment ends at the point malicious prosecution begins
which, under Asgari, is the point at which the person is arraigned.” (County of
Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 220–221 [92
Cal.Rptr.2d 668].)
• “[W]here the arrest is lawful, subsequent unreasonable delay in taking the person
before a magistrate will not affect the legality of the arrest, although it will
subject the offending person to liability for so much of the imprisonment as
occurs after the period of necessary or reasonable delay.” (Dragna v. White
(1955) 45 Cal.2d 469, 473 [289 P.2d 428].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 518
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.26 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.24 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.110 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 13:31–13:34 (Thomson Reuters)
893
1408. Affirmative Defense—Police Officer’s Lawful Authority to
Detain
[Name of defendant] claims that the detention was not wrongful because
[he/she/nonbinary pronoun] 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.
895
1409. Common Law Right to Detain for Investigation
[Name of defendant] claims that the detention was not wrongful because
[he/she/nonbinary pronoun] had a right to detain [name of plaintiff]. To
succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] was the
[owner/employer/employee/agent] of a business;
2. That [name of defendant] had reasonable grounds to believe that
[name of plaintiff] had wrongfully [taken or damaged merchandise
or other personal property] [secured services] from the business.
If you find that [insert facts, that if established, would constitute
reasonable grounds], then [name of defendant] had reasonable
grounds to detain [name of plaintiff];
3. That [name of defendant] detained [name of plaintiff] for a
reasonable amount of time; and
4. That [name of defendant] detained [name of plaintiff] in a
reasonable manner.
• Penal Code section 490.5(f) provides, in part: “A merchant may detain a person
for a reasonable time for the purpose of conducting an investigation in a
reasonable manner whenever the merchant has probable cause to believe the
person to be detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant’s premises.”
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 504, 505
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.41
(Matthew Bender)
California Civil Practice: Torts § 13:11 (Thomson Reuters)
1410–1499. Reserved for Future Use
897
VF-1400. False Imprisonment—No Arrest Involved
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
899
VF-1400 FALSE IMPRISONMENT
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.
900
VF-1401. False Imprisonment—No Arrest Involved—Affirmative
Defense—Right to Detain for Investigation
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements, and CACI No. 1409, Common Law Right to Detain for
Investigation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
902
FALSE IMPRISONMENT VF-1401
903
VF-1402. False Arrest Without Warrant
904
FALSE IMPRISONMENT VF-1402
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 2 to direct the jury to skip question 3 and answer
question 4 if they find no harm. Then add a new question 4: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 3 that the jury should not answer question 4. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
905
VF-1403. False Arrest Without Warrant by Peace
Officer—Affirmative Defense—Probable Cause to Arrest
906
FALSE IMPRISONMENT VF-1403
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements, and CACI No. 1402, False Arrest
Without Warrant—Affırmative Defense—Peace Offıcer—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
907
VF-1403 FALSE IMPRISONMENT
908
VF-1404. False Arrest Without Warrant by Private
Citizen—Affirmative Defense—Probable Cause to Arrest
909
VF-1404 FALSE IMPRISONMENT
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1403, False Arrest Without Warrant by
Private Citizen—Essential Factual Elements, and CACI No. 1404, False Arrest
Without Warrant—Affırmative Defense—Private Citizen—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
910
FALSE IMPRISONMENT VF-1404
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
911
VF-1405. False Arrest With Warrant
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With Warrant—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
913
VF-1405 FALSE IMPRISONMENT
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.
914
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With Warrant—Essential
Factual Elements, and CACI No. 1406, False Arrest With Warrant—Peace
Offıcer—Affırmative Defense—“Good-Faith” Exception.
The special verdict forms in this section are intended only as models. They may
916
FALSE IMPRISONMENT VF-1406
917
VF-1407. False Imprisonment—Unnecessary Delay in Processing/
Releasing
918
FALSE IMPRISONMENT VF-1407
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1407, Unnecessary Delay in Processing/
Releasing—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
919
VF-1407 FALSE IMPRISONMENT
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1408–VF-1499. Reserved for Future Use
920
MALICIOUS PROSECUTION
921
1500. Former Criminal Proceeding—Essential Factual Elements
New September 2003; Revised April 2008, October 2008, June 2015, May 2018
Directions for Use
Give this instruction in a malicious prosecution case based on an underlying
922
MALICIOUS PROSECUTION CACI No. 1500
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].)
• “[I]n most cases, a person who merely alerts law enforcement to a possible
crime . . . is not liable if . . . law enforcement, on its own, after an
independent investigation, decides to prosecute.” (Cox v. Griffın (2019) 34
Cal.App.5th 440, 452 [246 Cal.Rptr.3d 185].)
• “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 Cal.Rptr.3d 887], internal
citations omitted.)
• “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.)
925
CACI No. 1500 MALICIOUS PROSECUTION
• “ ‘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
plaintiff.” (Verdier, supra, 152 Cal.App.2d at p. 354.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 552–570, 605
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)
926
1501. Wrongful Use of Civil Proceedings
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, the jury may be required
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or did not know at the time. (See
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336,
765 P.2d 498].) If so, include element 3 and also the bracketed part of the
instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury to
decide.
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “Although the tort is usually called ‘malicious prosecution,’ the word
‘prosecution’ is not a particularly apt description of the underlying civil action.
The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the
tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486,
internal citations omitted.)
• “To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor; (2) was brought without probable cause; and
(3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13
Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
• “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it
threatens the efficient administration of justice. The individual is harmed because
928
MALICIOUS PROSECUTION CACI No. 1501
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], internal citation omitted.)
• “[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
(2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
• “[F]avorable termination requires favorable resolution of the underlying action in
its entirety, not merely a single cause of action. ‘[I]f the defendant in the
underlying action prevails on all of the plaintiff’s claims, he or she may
successfully sue for malicious prosecution if any one of those claims was
subjectively malicious and objectively unreasonable. But if the underlying
plaintiff succeeds on any of his or her claims, the favorable termination
requirement is unsatisfied and the malicious prosecution action cannot be
maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th
117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
• “[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
Cal.App.4th at p. 346.)
• “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
929
CACI No. 1501 MALICIOUS PROSECUTION
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],
internal citations omitted.)
• “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].)
• “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 (2017) 3 Cal.5th 767, 776–777
[221 Cal.Rptr.3d 432, 400 P.3d 1], internal 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
932
MALICIOUS PROSECUTION CACI No. 1501
• “Malice does not require that the defendants harbor actual ill will toward the
plaintiff in the malicious prosecution case, and liability attaches to attitudes that
range ‘ “from open hostility to indifference. [Citations.]” ’ ” (Cole v. Patricia A.
Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113–1114 [142
Cal.Rptr.3d 646], internal citations omitted.)
• “ ‘ “Suits with the hallmark of an improper purpose” include, but are not
necessarily limited to, “those in which: ‘ “. . . (1) the person initiating them
does not believe that his claim may be held valid; (2) the proceedings are begun
primarily because of hostility or ill will; (3) the proceedings are initiated solely
for the purpose of depriving the person against whom they are initiated of a
beneficial use of his property; (4) the proceedings are initiated for the purpose of
forcing a settlement which has no relation to the merits of the claim.” ’ ”
[Citation.] [¶] Evidence tending to show that the defendants did not subjectively
believe that the action was tenable is relevant to whether an action was instituted
or maintained with malice. [Citation.]’ ” (Oviedo, supra, 212 Cal.App.4th at pp.
113–114.)
• “Although Zamos [supra] did not explicitly address the malice element of a
malicious prosecution case, its holding and reasoning compel us to conclude that
malice formed after the filing of a complaint is actionable.” (Daniels, supra, 182
Cal.App.4th at p. 226.)
Secondary Sources
6 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
For Unfair Collection Practices—Tort Liability, ¶ 2:428 (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§§ 43.01–43.10 (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 et seq. (Matthew Bender)
934
1502. Wrongful Use of Administrative Proceedings
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
938
1503. Affirmative Defense—Proceeding Initiated by Public
Employee Within Scope of Employment (Gov. Code, § 821.6)
New September 2003; Renumbered from CACI No. 1506 June 2013; Revised May
2018
Directions for Use
Give this instruction if there is an issue of fact as to whether the proceeding giving
rise to the alleged malicious prosecution claim was initiated as a governmental
action. Government Code section 821.6 provides immunity from liability for
malicious prosecution for a public employee who is acting within the scope of
employment, even if the employee acts maliciously and without probable cause. If
the employee is immune, then there can be no vicarious liability on the entity. (Gov.
Code, § 815.2.) This immunity is not unqualified, however; it applies only if the
employee was acting within the scope of employment. (Tur v. City of Los Angeles
(1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470].)
For an instruction on scope of employment, see CACI No. 3720, Scope of
Employment, in the Vicarious Responsibility series.
Sources and Authority
• Public Entity Vicarious Liability for Acts of Employee. Government Code
section 815.2.
• Public Employee Immunity. Government Code section 821.6.
• “The defendants 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.” (Tur, supra, 51 Cal.App.4th
at p. 904 [failure to instruct jury under section 821.6 was prejudicial error].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 434 et seq.
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
939
CACI No. 1503 MALICIOUS PROSECUTION
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.31 (Matthew Bender)
940
1504. Former Criminal Proceeding—“Actively Involved” Explained
942
1510. Affirmative Defense—Reliance on Counsel
New September 2003; Renumbered from CACI No. 1505 June 2013
Sources and Authority
• “ ‘Good faith reliance on the advice of counsel, after truthful disclosure of all
the relevant facts, is a complete defense to a malicious prosecution claim.’ The
burden of proving the advice of counsel defense is on [defendant].” (Nunez v.
Pennisi (2015) 241 Cal.App.4th 861, 876–877 [193 Cal.Rptr.3d 912], internal
citation omitted.)
• “[I]f the initiator acts in bad faith or withholds from counsel facts he knew or
should have known would defeat a cause of action otherwise appearing from the
information supplied, [the] defense fails.” (Bertero v. National General Corp.
(1974) 13 Cal.3d 43, 53–54 [118 Cal.Rptr. 184, 529 P.2d 608].)
• “[T]he defense that a criminal prosecution was commenced upon the advice of
counsel is unavailing in an action for malicious prosecution if it appears . . .
that the defendant did not believe that the accused was guilty of the crime
charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d
886].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 602, 604
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.07 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.37, 147.46 (Matthew Bender)
943
1511. Wrongful Use of Civil Proceedings—Affirmative
Defense—Attorney’s Reliance on Information Provided by Client
945
1520. Abuse of Process—Essential Factual Elements
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 the first place).
Hence, abuse of process claims typically arise for improper or excessive
attachments [citation] or improper use of discovery [citation].” (S.A., supra, 229
Cal.App.4th at pp. 41–42, original italics.)
• “[W]hile a defendant’s act of improperly instituting or maintaining an action
may, in an appropriate case, give rise to a cause of action for malicious
prosecution, the mere filing or maintenance of a lawsuit—even for an improper
purpose—is not a proper basis for an abuse of process action.” (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [141 Cal.Rptr.3d
338].)
• “Some definite act or threat not authorized by the process or aimed at an
objective not legitimate in the use of the process is required. And, generally, an
action lies only where the process is used to obtain an unjustifiable collateral
advantage. For this reason, mere vexation [and] harassment are not recognized as
objectives sufficient to give rise to the tort.” (Younger v. Solomon (1974) 38
Cal.App.3d 289, 297 [113 Cal.Rptr. 113], internal citations omitted.)
• “Process is action taken pursuant to judicial authority. It is not action taken
without reference to the power of the court.” (Adams v. Superior Court (1992) 2
Cal.App.4th 521, 530 [3 Cal.Rptr.2d 49].)
• “This broad reach of the ‘abuse of process’ tort can be explained historically,
since the tort evolved as a ‘catch-all’ category to cover improper uses of the
judicial machinery that did not fit within the earlier established, but narrowly
circumscribed, action of malicious prosecution.” (Younger, supra, 38 Cal.App.3d
at p. 296, internal citations omitted.)
• “ ‘The improper purpose usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such as the surrender
of property or the payment of money, by the use of the process as a threat or a
club.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232–233 [317 P.2d 613],
internal citation omitted.)
• “[A]n improper purpose may consist in achievement of a benefit totally
extraneous to or of a result not within its legitimate scope. Mere ill will against
the adverse party in the proceedings does not constitute an ulterior or improper
motive.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 876 [168
Cal.Rptr. 361], internal citations omitted.)
• “Merely obtaining or seeking process is not enough; there must be subsequent
abuse, by a misuse of the judicial process for a purpose other than that which it
was intended to serve. The gist of the tort is the improper use of the process
after it is issued.” (Adams, supra, 2 Cal.App.4th at pp. 530–531, internal
citations omitted.)
• “ ‘ “Some definite act or threat not authorized by the process, or aimed at an
947
CACI No. 1520 MALICIOUS PROSECUTION
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
Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874],
internal citations omitted.)
• “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt
malicious prosecution while still applying the privilege to abuse of process
causes of action.” (Abraham v. Lancaster Community Hospital (1990) 217
Cal.App.3d 796, 824 [266 Cal.Rptr. 360].)
• “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct
like the filing of a motion for a writ of sale, the filing of assessment liens, or the
filing of a mechanic’s lien. The privilege also applies to conduct or publications
occurring outside the courtroom, to conduct or publications which are legally
deficient for one reason or another, and even to malicious or fraudulent conduct
or publications.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [100
Cal.Rptr.2d 602], internal citations omitted.)
• “The use of the machinery of the legal system for an ulterior motive is a classic
indicia of the tort of abuse of process. However, the tort requires abuse of legal
process, not just filing suit.” (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359
[82 Cal.Rptr.2d 281], internal citations omitted.)
• “We have located no authority extending the tort of abuse of process to
administrative proceedings. Application of the tort to administrative proceedings
would not serve the purpose of the tort, which is to preserve the integrity of the
court.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th
1811, 1822–1823 [31 Cal.Rptr.2d 229], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 611–622
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§§ 43.20–43.25 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.51 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.70 et seq. (Matthew Bender)
1521–1529. Reserved for Future Use
948
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.
43, 60 [118 Cal.Rptr. 184, 529 P.2d 608], internal citation omitted.)
• “Defendants also charge that under the Bertero rule the apportionment of
damages between the theories of liability that are and are not supported by
probable cause is difficult and ‘highly speculative.’ There is no showing,
however, that juries cannot perform that task fairly and consistently if they are
properly instructed—they draw more subtle distinctions every day. Moreover,
any difficulty in this regard is chargeable to the tortfeasor . . . .” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 690 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
• “It was the defendants’ burden, however, not the [plaintiffs]’, to prove such an
allocation, just as it generally is the burden of the defendant in a malicious
prosecution action to prove certain attorney fees incurred in the underlying
action are not recoverable because they are attributable to claims that had been
properly pursued.” (Jackson, supra, 179 Cal.App.4th at p. 96.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 554
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-D, Costs,
¶ 17:384 et seq. (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-E,
Attorney Fees As Costs, ¶ 17:544 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.08 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.18 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.45 (Matthew Bender)
1531–1599. Reserved for Future Use
950
VF-1500. Malicious Prosecution—Former Criminal Proceeding
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016, May 2018
Directions for Use
This verdict form is based on CACI No. 1500, Former Criminal Proceeding. This
form can be adapted to include the affirmative defense of reliance on counsel. See
VF-1502 for a form that includes this affirmative defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In question 1, include the bracketed reference to prosecution if the arrest was
without a warrant.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1500, Former Criminal
Proceeding, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
952
MALICIOUS PROSECUTION VF-1500
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.
953
VF-1501. Malicious Prosecution—Wrongful Use of Civil
Proceedings
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2011,
December 2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings.
See VF-1502 for a form that includes the affirmative defense of reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3).
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
955
VF-1502. Malicious Prosecution—Wrongful Use of Civil
Proceedings—Affirmative Defense—Reliance on Counsel
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings,
and CACI No. 1510, Affırmative Defense—Reliance on Counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
957
VF-1502 MALICIOUS PROSECUTION
958
VF-1503. Malicious Prosecution—Wrongful Use of Administrative
Proceedings
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1502, Wrongful Use of Administrative
Proceedings. See VF-1502 for a form that includes the affirmative defense of
reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1502, elements 3 and 4.)
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
960
MALICIOUS PROSECUTION VF-1503
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
961
VF-1504. Abuse of Process
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1520, Abuse of Process—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1505–VF-1599. Reserved for Future Use
963
EMOTIONAL DISTRESS
965
1600. Intentional Infliction of Emotional Distress—Essential
Factual Elements
been extreme and outrageous to result in liability. Otherwise stated, the court
determines whether severe emotional distress can be found; the jury determines
whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1614 [146 Cal.Rptr.3d 585].)
• “ ‘[I]t is generally held that there can be no recovery for mere profanity,
obscenity, or abuse, without circumstances of aggravation, or for insults,
indignities or threats which are considered to amount to nothing more than mere
annoyances.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [257
Cal.Rptr. 665], internal citations omitted.)
• “Liability for IIED does not extend to ‘ “ ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’ ” ’ Malicious or evil purpose
is not essential to liability for IIED.” (Crouch v. Trinity Christian Center of
Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007 [253 Cal.Rptr.3d 1], internal
citations omitted.)
• “It is not enough that the conduct be intentional and outrageous. It must be
conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom
the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868,
903–904 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
• “A requirement of a special relationship does not appear in the California
Supreme Court’s formulation of the elements of IIED. To recover for negligent
infliction of emotional distress, a plaintiff must prove a special relationship with
the defendant but [the plaintiff] sought recovery for intentional infliction, for
which proof of a special relationship is not required.” (Crouch, supra, 39
Cal.App.5th at pp. 1009–1010.)
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable man in a civilized society should be
expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78].)
• “ ‘The law limits claims of intentional infliction of emotional distress to
egregious conduct toward plaintiff proximately caused by defendant.’ The only
exception to this rule is that recognized when the defendant is aware, but acts
with reckless disregard of, the plaintiff and the probability that his or her
conduct will cause severe emotional distress to that plaintiff. Where reckless
disregard of the plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized as the element
establishing a higher degree of culpability which, in turn, justifies recovery of
greater damages by a broader group of plaintiffs than allowed on a negligent
infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp.
905–906, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 525–528
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-E, Intentional
967
CACI No. 1600 EMOTIONAL DISTRESS
968
1601. Intentional Infliction of Emotional Distress—Fear of Cancer,
HIV, or AIDS
970
1602. Intentional Infliction of Emotional Distress—“Outrageous
Conduct” Defined
972
1603. Intentional Infliction of Emotional Distress—“Reckless
Disregard” Defined
973
1604. Intentional Infliction of Emotional Distress—“Severe
Emotional Distress” Defined
974
1605. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
976
1620. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Direct Victim—Essential Factual
Elements
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
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
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].)
Sources and Authority
• “ ‘[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
Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)
• “ ‘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,
supra, 209 Cal.App.4th at p. 205.)
• “[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
engendered by the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp.
927–928.)
978
EMOTIONAL DISTRESS CACI No. 1620
• “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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1138 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:899 et seq. (The Rutter Group)
1 California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.03
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.31 et seq. (Matthew Bender)
979
1621. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Bystander—Essential Factual
Elements
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015, May 2022
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is not
a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “bystander” case is one in which a plaintiff seeks recovery for damages for
emotional distress suffered as a percipient witness of an injury to another person. If
the plaintiff is a direct victim of tortious conduct, use CACI No. 1620,
Negligence—Recovery of Damages for Emotional Distress—No Physical
980
EMOTIONAL DISTRESS CACI No. 1621
984
1622. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice,
then CACI No. 1623, Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious,
Oppressive, or Fraudulent Conduct—Essential Factual Elements, should be read.
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in the
absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p. 986,
internal citation omitted.)
• “[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases
where the feared cancer is at best only remotely possible, is to require a showing
of the actual likelihood of the feared cancer to establish its significance.” (Potter,
supra, 6 Cal.4th at p. 990.)
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
consequence of a plaintiff’s toxic exposure and that the recommended monitoring
986
EMOTIONAL DISTRESS CACI No. 1622
987
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
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,
supra, 6 Cal.4th at p. 998.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “[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.)
• “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.)
• “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].)
• “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
Cal.App.4th 306, 331 [5 Cal.Rptr.2d 594].)
• “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].)
• “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
990
EMOTIONAL DISTRESS CACI No. 1623
991
VF-1600. Intentional Infliction of Emotional Distress
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
993
VF-1600 EMOTIONAL DISTRESS
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.
994
VF-1601. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
996
EMOTIONAL DISTRESS VF-1601
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements, and CACI No. 1605, Intentional Infliction of
Emotional Distress—Affırmative Defense-Privileged Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
997
VF-1602. Intentional Infliction of Emotional Distress—Fear of
Cancer, HIV, or AIDS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1601, Intentional Infliction of Emotional
Distress—Fear of Cancer, HIV, or AIDS.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
999
VF-1602 EMOTIONAL DISTRESS
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1000
VF-1603. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Direct Victim
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1620, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1002
VF-1604. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Bystander
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016, May 2022
Directions for Use
This verdict form is based on CACI No. 1621, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Bystander—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1004
EMOTIONAL DISTRESS VF-1604
1005
VF-1605. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1622, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1007
VF-1605 EMOTIONAL DISTRESS
1008
VF-1606. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
1010
EMOTIONAL DISTRESS VF-1606
1011
DEFAMATION
1014
1700. Defamation per se—Essential Factual Elements (Public
Officer/Figure and Limited Public Figure)
you believe is reasonable. You must award at least a nominal sum, such
as one dollar.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] 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, January
2018
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 the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
1016
DEFAMATION CACI No. 1700
perceive a defamatory meaning without extrinsic aid beyond his or her own
intelligence and common sense, then . . . there is a libel per se. But if the
reader would be able to recognize a defamatory meaning only by virtue of his or
her knowledge of specific facts and circumstances, extrinsic to the publication,
which are not matters of common knowledge rationally attributable to all
reasonable persons, then . . . the libel cannot be libel per se but will be libel per
quod,” requiring pleading and proof of special damages.’ ” (Barker v. Fox &
Associates (2015) 240 Cal.App.4th 333, 351−352 [192 Cal.Rptr.3d 511].)
• “A slander that falls within the first four subdivisions of Civil Code section 46 is
slander per se and requires no proof of actual damages. A slander that does not
fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
• “With respect to slander per se, the trial court decides if the alleged statement
falls within Civil Code section 46, subdivisions 1 through 4. It is then for the
trier of fact to determine if the statement is defamatory. This allocation of
responsibility may appear, at first glance, to result in an overlap of
responsibilities because a trial court determination that the statement falls within
those categories would seemingly suggest that the statement, if false, is
necessarily defamatory. But a finder of fact might rely upon extraneous evidence
to conclude that, under the circumstances, the statement was not defamatory.”
(The Nethercutt Collection, supra, 172 Cal.App.4th at pp. 368–369.)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from the
publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence of
actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the evidence.
You may in the exercise of your discretion award nominal damages only, namely
an insignificant sum such as one dollar.’ [¶] . . . [¶] . . . [T]he instant
instruction, which limits damages to ‘those damages that necessarily result from
the publication of defamatory matter,’ constitutes substantial compliance with
[Civil Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not
allow the jurors to “enter the realm of speculation” regarding future suffering.’ ”
(Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473 [48 Cal.Rptr.2d
235], internal citations omitted.)
1018
DEFAMATION CACI No. 1700
• “The law is clear [that] the recklessness or doubt which gives rise to actual or
constitutional malice is subjective recklessness or doubt.” (Melaleuca, Inc.,
supra, 66 Cal.App.4th at p. 1365.)
• To show reckless disregard, “[t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication. Publishing with such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice.” (St. Amant, supra, 390 U.S. at p. 731.)
• “ ‘A defamation plaintiff may rely on inferences drawn from circumstantial
evidence to show actual malice. [Citation.] “A failure to investigate [fn. omitted]
[citation], anger and hostility toward the plaintiff [citation], reliance upon sources
known to be unreliable [citations], or known to be biased against the plaintiff
[citations]—such factors may, in an appropriate case, indicate that the publisher
himself had serious doubts regarding the truth of his publication.” ’ ” (Sanders v.
Walsh (2013) 219 Cal.App.4th 855, 873 [162 Cal.Rptr.3d 188].)
• “ ‘ “[Evidence] of negligence, of motive and of intent may be adduced for the
purpose of establishing, by cumulation and by appropriate inferences, the fact of
a defendant’s recklessness or of his knowledge of falsity.” [Citations.] A failure
to investigate [citation], anger and hostility toward the plaintiff [citation],
reliance upon sources known to be unreliable [citations], or known to be biased
against the plaintiff [citations]—such factors may, in an appropriate case,
indicate that the publisher himself had serious doubts regarding the truth of his
publication. [¶] We emphasize that such evidence is relevant only to the extent
that it reflects on the subjective attitude of the publisher. [Citations.] The failure
to conduct a thorough and objective investigation, standing alone, does not prove
actual malice, nor even necessarily raise a triable issue of fact on that
controversy. [Citations.] Similarly, mere proof of ill will on the part of the
publisher may likewise be insufficient. [Citation.]’ ” (Young v. CBS Broadcasting,
Inc. (2012) 212 Cal.App.4th 551, 563 [151 Cal.Rptr.3d 237], quoting Reader’s
Digest Assn., supra, 37 Cal.3d at pp. 257–258, footnote omitted.)
• “An entity other than a natural person may be libeled.” (Live Oak Publishing
Co., supra, 234 Cal.App.3d at p. 1283.)
• “A political challenger must be afforded leeway to characterize the conduct of
his opponent, even if such characterization takes the most negative perspective,
in order to ensure ‘uninhibited, robust, and wide-open’ debate on public issues.
Again, ‘[h]yperbole, distortion, invective, and tirades’ are ‘a part of American
politics,’ and while providing protection for such speech may allow ‘candidates
and their supporters to express . . . the most vile sentiments,’ it is nevertheless
necessary in order to ensure the ‘opportunity to criticize and comment upon
government and the issues of the day.’ ” (Issa, supra, 31 Cal.App.5th at p. 709,
internal citation omitted.)
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(I)-E,
1021
CACI No. 1700 DEFAMATION
1022
1701. Defamation per quod—Essential Factual Elements (Public
Officer/Figure and Limited Public Figure)
New September 2003; Revised April 2008, June 2016, December 2016, January
2018
Directions for Use
Special verdict form CACI No. VF-1701, Defamation per quod (Public
Offıcer/Figure and Limited Public Figure), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
1024
DEFAMATION CACI No. 1701
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’).” [Citation.]
“The office of an innuendo is to declare what the words meant to those to whom
they were published.” “In order to plead . . . ambiguous language into an
actionable libel . . . it is incumbent upon the plaintiff also to plead an
inducement, that is to say, circumstances which would indicate that the words
were understood in a defamatory sense showing that the situation or opinion of
the readers was such that they derived a defamatory meaning from them.
[Citation.]” ’ ” (Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217,
1227 [225 Cal.Rptr.3d 917], original italics, internal citations omitted.)
• “For libel per quod, which [plaintiff] herself emphasizes is the cause of action at
issue here, it is ‘necessary that the words should have been published concerning
the plaintiff and should have been understood by at least one third person to
have concerned him [or her]. [Citations.] “Defamatory words to be actionable
must refer to some ascertained or ascertainable person, and that person must be
plaintiff [citations]. If the words used really contain no reflection upon any
particular individual, no averment can make them defamatory. It is not necessary
that plaintiff should be mentioned by name if the words used in describing the
person meant, can be shown to have referred to him and to have been so
understood [citation].” [Citation].’ ‘ “It is the office of the inducement to narrate
the extrinsic circumstances which, coupled with the language published, affect its
construction and render it actionable, where, standing alone and not thus
explained, the language would appear either not to concern the plaintiff, or, if
concerning him, not to affect him injuriously. [Citation.]” ’ ” (Bartholomew,
supra, 17 Cal.App.5th at p. 1231, internal citation omitted.)
• “A slander that falls within the first four subdivisions of Civil Code section 46 is
slander per se and requires no proof of actual damages. A slander that does not
fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 705–718
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10–340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
1026
DEFAMATION CACI No. 1701
1027
1702. Defamation per se—Essential Factual Elements (Private
Figure—Matter of Public Concern)
New September 2003; Revised April 2008, October 2008, December 2009, June
2016, December 2016, January 2018
Directions for Use
Special verdict form CACI No. VF-1702, Defamation per se (Private
Figure—Matter of Public Concern), should be used in this type of case.
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1700,
Defamation per se—Essential Factual Elements (Public Offıcer/Figure and Limited
Public Figure).
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
1029
CACI No. 1702 DEFAMATION
• “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,
445 [26 Cal.Rptr.2d 305], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 719–721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12–340.13, 340.18 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 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)
1032
1703. Defamation per quod—Essential Factual Elements (Private
Figure—Matter of Public Concern)
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name 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/nonbinary pronoun] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1703, Defamation per quod (Private Figure—Matter of
Public Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1701,
Defamation per quod—Essential Factual Elements (Public Offıcer/Figure and
Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
1034
DEFAMATION CACI No. 1703
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must specially
plead and prove those facts.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th
at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) Allege his
interpretation of the defamatory meaning of the language (the “innuendo,” . . . );
(2) support that interpretation by alleging facts showing that the readers or
hearers to whom it was published would understand it in that defamatory sense
(the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181
Cal.App.3d 377, 387 [226 Cal.Rptr. 354].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.” (Selleck
v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr. 838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• Private-figure plaintiffs must prove actual malice to recover punitive or presumed
damages for defamation if the matter is one of public concern. They are 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].)
• “ ‘[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.)
1035
CACI No. 1703 DEFAMATION
1036
1704. Defamation per se—Essential Factual Elements (Private
Figure—Matter of Private Concern)
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1704, Defamation per se—Affırmative Defense—Truth
(Private Figure—Matter of Private Concern), may be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1700,
Defamation per se—Essential Factual Elements (Public Offıcer/Figure and Limited
Public Figure).
Sources and Authority
• “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has a
natural tendency to injure or which causes special damage.” (Smith v. Maldonado
1038
DEFAMATION CACI No. 1704
1040
1705. Defamation per quod—Essential Factual Elements (Private
Figure—Matter of Private Concern)
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1705, Defamation per quod (Private Figure—Matter of
Private Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1701,
Defamation per quod—Essential Factual Elements (Public Offıcer/Figure and
Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
1042
DEFAMATION CACI No. 1705
1044
1706. Definition of Statement
1045
1707. Fact Versus Opinion
1048
DEFAMATION CACI No. 1707
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 643–646
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.86 (Matthew Bender)
California Civil Practice: Torts §§ 21:20–21:21 (Thomson Reuters)
1049
1708. Coerced Self-Publication
1051
1709. Retraction: News Publication or Broadcast (Civ. Code,
§ 48a)
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].)
Sources and Authority
• Demand for Correction. Civil Code section 48a.
• “Under California law, a newspaper gains immunity from liability for all but
1052
DEFAMATION CACI No. 1709
1053
1720. Affirmative Defense—Truth
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.10 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.55
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.39 (Matthew Bender)
1 California Civil Practice: Torts §§ 21:19, 21:52 (Thomson Reuters)
1055
1721. Affirmative Defense—Consent
1056
1722. Affirmative Defense—Statute of Limitations—Defamation
New April 2009; Renumbered from CACI No. 1724 November 2017
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
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.
Sources and Authority
• 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 the
1057
CACI No. 1722 DEFAMATION
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.)
1058
DEFAMATION CACI No. 1722
1059
1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
• “[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
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 92, 655, 690–704
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Employment Torts And Related Claims—Defamation, ¶ 5:471 et seq. (The Rutter
Group)
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.12 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.66
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.53 (Matthew Bender)
California Civil Practice: Torts §§ 21:40–21:41 (Thomson Reuters)
1062
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
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,
217 Cal.App.4th at p. 396.)
• “ ‘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
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 691
4 Levy et al., California Torts, Ch. 45, Intentional Torts and Other Theories of
Recovery, § 45.11 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.64
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, § 142.51 (Matthew
Bender)
1725–1729. Reserved for Future Use
1065
1730. Slander of Title—Essential Factual Elements
for the depreciation in the market value of the property.’ ” (M.F. Farming, Co. v.
Couch Distributing Co. (2012) 207 Cal.App.4th 180, 198–199 [143 Cal.Rptr.3d
160], internal citations omitted.)
• “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
Cal.Rptr.3d 34], internal citations omitted.)
• “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.)
• “In an action for wrongful disparagement of title, a plaintiff may recover (1) the
expense of legal proceedings necessary to remove the doubt cast by the
disparagement, (2) financial loss resulting from the impairment of vendibility of
the property, and (3) general damages for the time and inconvenience suffered by
plaintiff in removing the doubt cast upon his property.” (Klem v. Access Ins. Co.
(2017) 17 Cal.App.5th 595, 624 [225 Cal.Rptr.3d 711].)
• “While it is true that an essential element of a cause of action for slander of title
is that the plaintiff suffered pecuniary damage as a result of the disparagement of
title, the law is equally clear that the expense of legal proceedings necessary to
remove the doubt cast by the disparagement and to clear title is a recognized
form of pecuniary damage in such cases.” (Sumner Hill Homeowners’ Assn., Inc.
v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1032 [141 Cal.Rptr.3d
109], internal citations omitted; see Rest.2d Torts, § 633, subd. (1)(b).)
• “Although attorney fees and litigation expenses reasonably necessary to remove
1068
DEFAMATION CACI No. 1730
the memorandum from the record were recoverable, those incurred merely in
pursuit of damages against . . . defendants were not.” (Seeley v. Seymour (1987)
190 Cal.App.3d 844, 865–866 [237 Cal.Rptr. 282].)
• “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,
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.)
• “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
1069
CACI No. 1730 DEFAMATION
1070
1731. Trade Libel—Essential Factual Elements
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].) If a
privilege is claimed, additional instructions will be necessary to frame the privilege.
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 the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required.
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.
Sources and Authority
• “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,
LLC (2013) 214 Cal.App.4th 358, 376 [154 Cal.Rptr.3d 698].)
• “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
Cal.App.4th 87, 97 [201 Cal.Rptr.3d 782].)
• “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.
1072
DEFAMATION CACI No. 1731
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 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 Cal.App.3d at p. 548.)
• “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
1073
CACI No. 1731 DEFAMATION
1074
DEFAMATION CACI No. 1731
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 747–750
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.70 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§ 340.103 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 9, Commercial Defamation, 9.04
1732–1799. Reserved for Future Use
1075
VF-1700. Defamation per se (Public Officer/Figure and Limited
Public Figure)
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . . $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her/nonbinary pronoun] reputation, and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
1077
VF-1700 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1700, Defamation per se—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8. For
these categories, the jury may find that no actual damages have been proven but
must still make an award of assumed damages.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there 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.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1078
VF-1701. Defamation per quod (Public Officer/Figure and Limited
Public Figure)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
1080
DEFAMATION VF-1701
1081
VF-1702. Defamation per se (Private Figure—Matter of Public
Concern)
1082
DEFAMATION VF-1702
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . $ ]
[d. Shame, mortification, or hurt feelings?. . . . . . . . $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, 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. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her/nonbinary pronoun] reputation and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
9. Regardless of your answer to question 9, skip question 10 and
answer question 11.
PUNITIVE DAMAGES
10. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
1083
VF-1702 DEFAMATION
10. Yes No
10. If your answer to question 10 is yes, then answer question 11. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
11. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] acted with malice, oppression, or fraud?
11. Yes No
11. If your answer to question 11 is yes, then answer question 12. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
12. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1702, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8. For
these categories, the jury may find that no actual damages have been proven but
must still make an award of assumed damages.
1084
DEFAMATION VF-1702
1085
VF-1703. Defamation per quod (Private Figure—Matter of Public
Concern)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 8 if, for example, there
are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 5 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1703, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Public Concern), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 11 if the issue of punitive damages has been bifurcated.
If there 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.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1088
VF-1704. Defamation per se—Affirmative Defense—Truth (Private
Figure—Matter of Private Concern)
1089
VF-1704 DEFAMATION
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . $ ]
TOTAL $
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/nonbinary pronoun] reputation and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
8. Regardless of your answer to question 8, answer question 9.
PUNITIVE DAMAGES
9. Has [name of plaintiff] proved by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
1090
DEFAMATION VF-1704
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1704, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Private Concern), and CACI No.
1720, Affirmative Defense—Truth. Delete question 4 if the affirmative defense of the
truth is not at issue.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
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.
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.
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.
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.
Additional questions on the issue of punitive damages may be needed if the
defendant is a corporate or other entity.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1091
VF-1704 DEFAMATION
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.
1092
VF-1705. Defamation per quod (Private Figure—Matter of Private
Concern)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
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.
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.
Question 4 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1705, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Private Concern), depending on which ground is
applicable in the case.
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.
Users may need to itemize all the damages listed in question 7 if, for example, there
are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Omit question 9 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
1095
VF-1705 DEFAMATION
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1706–VF-1719. Reserved for Future Use
1096
VF-1720. Slander of Title
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1099
VF-1721. Trade Libel
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss $ ]
[b. Future economic loss $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1722–VF-1799. Reserved for Future Use
1102
Table A. Defamation Per Se
1103
Table B. Defamation Per Quod
1104
RIGHT OF PRIVACY
1105
1800. Intrusion Into Private Affairs
giving rise to tort liability: (1) intrusion into private matters; (2) public
disclosure of private facts; (3) publicity placing a person in a false light; and (4)
misappropriation of a person’s name or likeness. . . . Prosser’s classification was
adopted by the Restatement Second of Torts in sections 652A–652E. California
common law has generally followed Prosser’s classification of privacy interests
as embodied in the Restatement.” (Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633].)
• “[The tort of intrusion] encompasses unconsented-to physical intrusion into the
home, hospital room or other place the privacy of which is legally recognized, as
well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and
visual or photographic spying.” (Shulman v. Group W Productions, Inc. (1998)
18 Cal.4th 200, 230–231 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal citation
omitted.)
• “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 cause of action . . . has two elements: (1) intrusion into a private place,
conversation or matter, (2) in a manner highly offensive to a reasonable person.
The first element . . . is not met when the plaintiff has merely been observed, or
even photographed or recorded, in a public place. Rather, ‘the plaintiff must
show the defendant penetrated some zone of physical or sensory privacy
surrounding, or obtained unwanted access to data about, the plaintiff.’ ” (Sanders
v. American Broadcasting Co. (1999) 20 Cal.4th 907, 914–915 [85 Cal.Rptr.2d
909, 978 P.2d 67], internal citations omitted.)
• “As to the first element of the common law tort, the defendant must have
‘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
1107
CACI No. 1800 RIGHT OF PRIVACY
1108
RIGHT OF PRIVACY CACI No. 1800
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 756, 757, 762–765
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1887
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,
§ 183.30 (Matthew Bender)
California Civil Practice: Torts § 20:8 (Thomson Reuters)
1109
1801. Public Disclosure of Private Facts
when both can be equally damaging to privacy, is a rule better suited to an era
when the town crier was the principal purveyor of news. It is long past time to
discard this outmoded rule.” (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th
808, 819 [154 Cal.Rptr.3d 275], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 772–775
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.20 (Matthew Bender)
California Civil Practice: Torts §§ 20:1–20:2 (Thomson Reuters)
1113
1802. False Light
New September 2003; Revised November 2017, May 2018, November 2018
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.
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
Cal.Rptr. 866, 483 P.2d 34], overruled on other grounds in Gates v. Discovery
Communications, Inc. (2004) 34 Cal.4th 679, 696, fn. 9 [21 Cal.Rptr.3d 663, 101
P.3d 552] [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. (See
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721–722 [257 Cal.Rptr. 708,
1114
RIGHT OF PRIVACY CACI No. 1802
771 P.2d 406].) Give the first option for element 3 if the disclosure involves a
public figure. Give the second option for a private citizen, at least with regard to a
matter of private concern. (See id. at p. 742 [private person need prove only
negligence rather than malice to recover for defamation].)
There is perhaps some question as to which option for element 3 to give for a
private person if the matter is one of public concern. For defamation, a private
figure plaintiff must prove malice to recover presumed and punitive damages for a
matter of public concern, but not to recover for damages to reputation. (Khawar v.
Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178, 965 P.2d
696].) No case has been found that provides for presumed damages for a false light
violation. Therefore, the court will need to decide whether proof of malice is
required from a private plaintiff even though the matter may be one of public
concern.
If the jury will also be instructed on defamation, 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.) For defamation, utterance of a defamatory
statement to a single third person constitutes sufficient publication. (Cunningham v.
Simpson (1969) 1 Cal.3d 301, 307 [81 Cal.Rptr. 855, 461 P.2d 39]; but see Warfield
v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 660 [262 Cal.Rptr.
890] [false light case holding that “account” published in defendant’s membership
newsletter does not meet threshold allegation of a general public disclosure].)
Sources and Authority
• “ ‘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].)
• “A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule,
or obloquy and assumes the audience will recognize it as such.” (De Havilland v.
FX Networks, LLC (2018) 21 Cal.App.5th 845, 865 [230 Cal.Rptr.3d 625].)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal
citation omitted.)
• “In order to be actionable, the false light in which the plaintiff is placed must be
highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation omitted.)
• “When a false light claim is coupled with a defamation claim, the false light
1115
CACI No. 1802 RIGHT OF PRIVACY
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.)
• “Because in this defamation action [plaintiff] is a private figure plaintiff, he was
required to prove only negligence, and not actual malice, to recover damages for
actual injury to his reputation. But [plaintiff] was required to prove actual malice
to recover punitive or presumed damages . . . .” (Khawar, supra, 19 Cal.4th at
p. 274.)
• “To defeat [defendant] ’s anti-SLAPP motion on her false light claim, [plaintiff],
as a public figure, must demonstrate a reasonable probability she can prove
[defendant] broadcast statements that are (1) assertions of fact, (2) actually false
or create a false impression about her, (3) highly offensive to a reasonable
person or defamatory, and (4) made with actual malice.” (De Havilland, supra,
21 Cal.App.5th at p. 865.)
• “[Plaintiff] does not dispute that she is a public figure. . . . Accordingly, the
Constitution requires [plaintiff] to prove by clear and convincing evidence that
[defendant] ‘knew the [docudrama] would create a false impression about [her]
or acted with reckless disregard for the truth.’ (CACI No. 1802.)” (De
Havilland, supra, 21 Cal.App.5th at p. 869.)
• “Publishing a fictitious work about a real person cannot mean the author, by
virtue of writing fiction, has acted with actual malice.” (De Havilland, supra, 21
Cal.App.5th at p. 869.)
• “[I]n cases where the claimed highly offensive or defamatory aspect of the
portrayal is implied, courts have required plaintiffs to show that the defendant ‘
“intended to convey the defamatory impression.” ’ [Plaintiff] must demonstrate
‘that [defendant] either deliberately cast [her] statements in an equivocal fashion
in the hope of insinuating a defamatory import to the reader, or that [it] knew
or acted in reckless disregard of whether [its] words would be interpreted by the
average reader as defamatory statements of fact.’ Moreover, because actual
malice is a ‘deliberately subjective’ test, liability cannot be imposed for an
implication that merely ‘ “should have been foreseen.” ’ ” (De Havilland, supra,
21 Cal.App.5th at pp. 869–870, internal citations omitted.)
• “The New York Times decision defined a zone of constitutional protection within
which one could publish concerning a public figure without fear of liability. That
constitutional protection does not depend on the label given the stated cause of
action; it bars not only actions for defamation, but also claims for invasion of
privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37 Cal.3d 244,
265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)
1116
RIGHT OF PRIVACY CACI No. 1802
• “[T]he constitutional protections for speech and press preclude the application of
the New York statute to redress false reports of matters of public interest in the
absence of proof that the defendant published the report with knowledge of its
falsity or in reckless disregard of the truth.” (Time, Inc. v. Hill (1967) 385 U.S.
374, 387–388 [87 S.Ct. 534, 17 L.Ed.2d 456].)
• “We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 781–783
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.04 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.33 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
California Civil Practice: Torts §§ 20:12–20:15 (Thomson Reuters)
1117
1803. Appropriation of Name or Likeness—Essential Factual
Elements
New September 2003; Revised December 2014, November 2017, May 2020
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.
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 the artist’s 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 Amendment
1118
RIGHT OF PRIVACY CACI No. 1803
1120
1804A. Use of Name or Likeness (Civ. Code, § 3344)
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name and
likeness are protected under both the common law and under Civil Code section
3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this
instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets
forth the common-law cause of action, will normally be given.
Different standards apply if the use is in connection with a news, public affairs, or
sports broadcast or account, or with a political campaign. (See Civ. Code, § 3344(d);
Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr.
342].) The plaintiff bears the burden of proving the nonapplicability of these
exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400,
416–417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no question
of fact with regard to this issue. See CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign, for an instruction to use if one of the exceptions of
Civil Code section 3344(d) applies.
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g.,
1121
CACI No. 1804A RIGHT OF PRIVACY
not a “news” account) but that even if it were covered it is not protected under the
standards of Eastwood, then both this instruction and CACI No. 1804B should be
given in the alternative. In that case, it should be made clear to the jury that if the
plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth
in element 2, the claim is still viable if the plaintiff proves all the elements of CACI
No. 1804B.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a)
even if actual damages are not proven. (See Miller v. Collectors Universe, Inc.
(2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “Civil Code section 3344 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
Cal.App.5th 1, 13 [206 Cal.Rptr.3d 884].)
• “[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
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy, a
plaintiff must present evidence of ‘all the elements of the common law cause of
action’ and must also prove ‘a knowing use by the defendant as well as a direct
connection between the alleged use and the commercial purpose.’ ” (Orthopedic
Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135 Cal.Rptr.3d 200],
internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are cumulative
and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d
at p. 417, fn. 6, internal citation omitted.)
• “[B]oth the statutory and common law versions of a right of publicity claim
require that the defendant actually use the plaintiff’s likeness . . . .” (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)
• “Plaintiffs assert that Civil Code section 3344’s ‘commercial use’ requirement
does not need to ‘involve some form of advertising or endorsement.’ This is
simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides
1122
RIGHT OF PRIVACY CACI No. 1804A
for possible liability on ‘[a]ny person who knowingly uses another’s name,
voice, signature, photograph, or likeness, in any manner . . . for purposes of
advertising . . . without such person’s prior consent.’ The statute requires some
‘use’ by the advertiser aimed at obtaining a commercial advantage for the
advertiser.” (Cross, supra, 14 Cal.App.5th at p. 210.)
• “[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, supra, 94 Cal.App.4th at pp. 416–417, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 789–791
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Invasion Of
Privacy, ¶¶ 5:1116–5:1118 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35–429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§§ 184.22–184.24 (Matthew Bender)
California Civil Practice: Torts § 20:17 (Thomson Reuters)
1123
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))
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
1124
RIGHT OF PRIVACY CACI No. 1804B
private individuals may sue for negligent publication of defamatory falsehoods. (Id.
at p. 424.) Presumably, the same distinction between public figures and private
individuals would apply under Civil Code section 3344(d). Element 4 provides for
the standards established and suggested by Eastwood.
Give CACI No. 1804A, Use of Name or Likeness, if there is no issue whether one
of the exceptions of Civil Code section 3344(d) applies. If plaintiff alleges that the
use was not covered by subdivision (d) (e.g., not a “news” account) but that even if
it were covered it is not protected under the standards of Eastwood, then both this
instruction and CACI No. 1804A should be given in the alternative. In that case, it
should be made clear to the jury that if the plaintiff fails to prove the inapplicability
of Civil Code section 3344(d) as set forth element 2 of CACI No. 1804A, the claim
is still viable if the plaintiff proves all the elements of this instruction.
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name and
likeness are protected under both the common law and under Civil Code section
3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this
instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets
forth the common-law cause of action, will normally be given.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a)
even if actual damages are not proven. (See Miller v. Collectors Universe, Inc.
(2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Even though consent is not required, it may be an affirmative defense. CACI No.
1721, Affırmative Defense—Consent (to defamation), may be used in this situation.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
(2000) 78 Cal.App.4th 362, 366–367 [92 Cal.Rptr.2d 713].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters., supra, 78 Cal.App.4th at p. 367.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy, a
plaintiff must present evidence of ‘all the elements of the common law cause of
action’ and must also prove ‘a knowing use by the defendant as well as a direct
connection between the alleged use and the commercial purpose.’ ” (Orthopedic
1125
CACI No. 1804B RIGHT OF PRIVACY
Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135 Cal.Rptr.3d 200],
internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are cumulative
and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d
at p. 417, fn. 6, internal citation omitted.)
• “The spacious interest in an unfettered press is not without limitation. This
privilege is subject to the qualification that it shall not be so exercised as to
abuse the rights of individuals. Hence, in defamation cases, the concern is with
defamatory lies masquerading as truth. Similarly, in privacy cases, the concern is
with nondefamatory lies masquerading as truth. Accordingly, we do not believe
that the Legislature intended to provide an exemption from liability for a
knowing or reckless falsehood under the canopy of ‘news.’ We therefore hold
that Civil Code section 3344, subdivision (d), as it pertains to news, does not
provide an exemption for a knowing or reckless falsehood.” (Eastwood, supra,
149 Cal.App.3d at p. 426, internal citations omitted.)
• The burden of proof as to knowing or reckless falsehood under Civil Code
section 3344(d) is on the plaintiff. (See Eastwood, supra, 149 Cal.App.3d at p.
426.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416–417 [114
Cal.Rptr.2d 307], internal citation omitted.)
• “We presume that the Legislature intended that the category of public affairs
would include things that would not necessarily be considered news. Otherwise,
the appearance of one of those terms in the subsection would be superfluous, a
reading we are not entitled to give to the statute. We also presume that the term
‘public affairs’ was intended to mean something less important than news. Public
affairs must be related to real-life occurrences.” (Dora v. Frontline Video, Inc.
(1993) 15 Cal.App.4th 536, 546 [18 Cal.Rptr.2d 790], internal citations omitted.)
• “[N]o cause of action will lie for the ‘publication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
1126
RIGHT OF PRIVACY CACI No. 1804B
1127
1805. Affirmative Defense to Use or Appropriation of Name or
Likeness—First Amendment (Comedy III)
(2003) 30 Cal.4th 881, 891–892 [134 Cal.Rptr.2d 634, 69 P.3d 473], internal
citation omitted.)
• “[T]he First Amendment . . . safeguards the storytellers and artists who take the
raw materials of life—including the stories of real individuals, ordinary or
extraordinary—and transform them into art, be it articles, books, movies, or
plays.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860
[230 Cal.Rptr.3d 625].)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th at
p. 400.)
• “Furthermore, in determining whether a work is sufficiently transformative,
courts may find useful a subsidiary inquiry, particularly in close cases: does the
marketability and economic value of the challenged work derive primarily from
the fame of the celebrity depicted? If this question is answered in the negative,
then there would generally be no actionable right of publicity. When the value of
the work comes principally from some source other than the fame of the
celebrity—from the creativity, skill, and reputation of the artist—it may be
presumed that sufficient transformative elements are present to warrant First
Amendment protection. If the question is answered in the affirmative, however, it
does not necessarily follow that the work is without First Amendment
protection—it may still be a transformative work.” (Comedy III Productions,
Inc., supra, 25 Cal.4th at p. 407.)
• “As the Supreme Court has stated, the central purpose of the inquiry into this
fair use factor ‘is to see . . . whether the new work merely “supersede[s] the
objects” of the original creation, or instead adds something new, with a further
purpose or different character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent the new work is
“transformative.” ’ ” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 404,
internal citations omitted.)
• “We emphasize that the transformative elements or creative contributions that
require First Amendment protection are not confined to parody and can take
many forms, from factual reporting to fictionalized portrayal, from heavy-handed
lampooning to subtle social criticism.” (Comedy III Productions, Inc., supra, 25
Cal.4th at p. 406.)
• “[Defendant] contends the plaintiffs’ claims are barred by the transformative use
defense formulated by the California Supreme Court in Comedy III . . . . ‘The
defense is “a balancing test between the First Amendment and the right of
publicity based on whether the work in question adds significant creative
elements so as to be transformed into something more than a mere celebrity
likeness or imitation.” ’ ” (Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d
1172, 1177, internal citation omitted.)
1129
CACI No. 1805 RIGHT OF PRIVACY
• “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 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
(2013) 222 Cal.App.4th 677, 686 [166 Cal.Rptr.3d 359], internal citations
omitted.)
• “Comedy III’s ‘transformative’ test makes sense when applied to products and
merchandise—‘tangible personal property,’ in the Supreme Court’s words. Lower
courts have struggled mightily, however, to figure out how to apply it to
expressive works such as films, plays, and television programs.” (De Havilland,
supra, 21 Cal.App.5th at p. 863, internal citation 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
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 788
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 4(VII)-C, Harm to Reputation and Privacy Interests, ¶ 4:1385 et seq.
(The Rutter Group)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.38 (Matthew Bender)
1130
1806. Affirmative Defense to Invasion of Privacy—First
Amendment Balancing Test—Public Interest
1133
1807. Affirmative Defense—Invasion of Privacy Justified
[Name of defendant] claims that even if [name of plaintiff] has proven all
of the above, [his/her/nonbinary pronoun/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/nonbinary pronoun/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.
1135
1808. Stalking (Civ. Code, § 1708.7)
Revoked June 2015. See Stats 2014, Ch. 853 (AB 1356), substantially
amending Civ. Code, § 1708.7.
1136
1809. Recording of Confidential Information (Pen. Code, §§ 632,
637.2)
1138
1810. Distribution of Private Sexually Explicit Materials—Essential
Factual Elements (Civ. Code, § 1708.85)
1140
1812. Comprehensive Computer Data and Access Fraud
Act—Essential Factual Elements (Pen. Code, § 502)
(c)(1)–(7) and (c)(9)–(13), but not for violations of subdivisions (c)(8) and (c)(14).
Modify element 3 accordingly. Delete element 3 for violations of the latter
subdivisions.
If plaintiff’s claim involves a “government computer system” or a “public safety
infrastructure computer system” and there is a factual dispute about the type of
computer system involved, this instruction should be modified to add that issue as
an element. (See Pen. Code, § 502(c)(10), (11), (12), (13), and (14).)
Sources and Authority
• Comprehensive Computer Data Access and Fraud Act. Penal Code section 502.
• “Penal Code section 502, subdivision (e)(1) permits a civil action to recover
expenses related to investigating the unauthorized computer access.” (Verio
Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315, 1321 fn. 3 [208
Cal.Rptr.3d 436].)
• “Four of the section 502, subdivision (c) offenses include access as an element.
The provision under which [defendant] was charged does not. When different
words are used in adjoining subdivisions of a statute that were enacted at the
same time, that fact raises a compelling inference that a different meaning was
intended. The Legislature’s requirement of unpermitted access in some section
502 offenses and its failure to require that element in other parts of the same
statute raise a strong inference that the subdivisions that do not require
unpermitted access were intended to apply to persons who gain lawful access to
a computer but then abuse that access.” (People v. Childs (2013) 220
Cal.App.4th 1079, 1102 [164 Cal.Rptr.3d 287], internal citations omitted.)
• “[The CDAFA] does not require unauthorized access. It merely requires knowing
access. What makes that access unlawful is that the person ‘without permission
takes, copies, or makes use of’ data on the computer. A plain reading of the
statute demonstrates that its focus is on unauthorized taking or use of
information.” (United States v. Christensen (9th Cir. 2015) 828 F.3d 763, 789,
original italics, internal citations omitted.)
• “Because [defendant] had implied authorization to access [plaintiff]’s computers,
it did not, at first, violate the [CDAFA]. But when [plaintiff] sent the cease and
desist letter, [defendant], as it conceded, knew that it no longer had permission
to access [plaintiff]’s computers at all. [Defendant], therefore, knowingly
accessed and without permission took, copied, and made use of [plaintiff]’s
data.” (Facebook, Inc. v. Power Ventures, Inc. (9th Cir. 2016) 844 F.3d 1058,
1069.)
• “[T]aking data using a method prohibited by the applicable terms of use, when
the taking itself generally is permitted, does not violate the CDAFA.” (Oracle
USA, Inc. v. Rimini Street, Inc. (9th Cir. 2018) 879 F.3d 948, 962, reversed in
part on other grounds by Rimini Street, Inc. v. Oracle USA, Inc. (2019) — U.S.
— [139 S.Ct. 873, 881, 203 L.Ed.2d 180], original italics.)
1142
RIGHT OF PRIVACY CACI No. 1812
Secondary Sources
5 Witkin, California Criminal Law (4th ed. 2012) Crimes Against Property, § 229 et
seq.
31 California Forms of Pleading and Practice, Ch. 349, Literary Property and
Copyright, § 349.41[5] (Matthew Bender)
1143
1813. Definition of “Access” (Pen. Code, § 502(b)(1))
The term “access” means to gain entry to, instruct, cause input to, cause
output from, cause data processing with, or communicate with the
logical, arithmetical, or memory function resources of a computer,
computer system, or computer network.
A person can access a computer, computer system, or computer network
in different ways. For example, access can be accomplished by sitting
down at a computer and using the mouse and keyboard, or by using a
wireless network or some other method or tool to gain remote entry.
1144
1814. Damages for Investigating Violations of Comprehensive
Computer Data and Access Fraud Act (Pen. Code, § 502(e)(1))
1145
1820. Damages
One who has established a cause of action for invasion of his privacy is entitled
to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind
that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Note that this Restatement section has not been cited by any published
California cases.
• “Damages recoverable in California for invasion of a privacy right were
discussed in detail in Fairfield v. American Photocopy Equipment Co. The Court
of Appeal declared that because the interest involved privacy, the damages
flowing from its invasion logically would include an award for mental suffering
and anguish. Fairfield was an appropriation case, but the principles it laid down
concerning damage awards in privacy cases relied on a body of California law
which had already recognized violation of the right of privacy as a tort.” (Miller
v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484 [232 Cal.Rptr.
668], internal citation omitted.)
• “The elements of emotional distress damages, i.e., anxiety, embarrassment,
humiliation, shame, depression, feelings of powerlessness, anguish, etc., would
thus be subjects of legitimate inquiry by a jury in the action before us, taking
into account all of the consequences and events which flowed from the
actionable wrong.” (Miller, supra, 187 Cal.App.3d at p. 1485.)
• “The actual injury involved herein is not limited to out-of-pocket loss. It
generally includes ‘impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering.’ ” (Diaz, supra, 139
Cal.App.3d at p. 137, internal citation omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374, 384, fn. 9 [87 S.Ct. 534, 17 L.Ed.2d
456], the court stated: “In the ‘right of privacy’ cases the primary damage is the
mental distress from having been exposed to public view, although injury to
reputation may be an element bearing upon such damage.”
• “There is a distinction between causes of action for invasion of privacy and
defamation with regard to the respective interests protected and compensated by
each. ‘The gist of a cause of action in a privacy case is not injury to the
character or reputation but a direct wrong of a personal character resulting in
injury to the feelings without regard to any effect which the publication may
have on the property, business, pecuniary interest, or the standing of the
individual in the community. The right of privacy concerns one’s own peace of
mind, while the right of freedom from defamation concerns primarily one’s
reputation. The injury is mental and subjective.’ ” (Selleck v. Globe Int’l, Inc.
(1985) 166 Cal.App.3d 1123, 1135 [212 Cal.Rptr. 838], internal citations
omitted.)
• “California recognizes the right to profit from the commercial value of one’s
1147
CACI No. 1820 RIGHT OF PRIVACY
1148
1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
the defendant wrongfully earned. In such a case, to avoid a double recovery, the
advisory committee recommends computing damages to recover the defendant’s
wrongful profits separately from actual damages, that is, under the second part of
the instruction and not under actual damages item 3 (“other item(s) of claimed
harm”). See also CACI No. VF-1804, Privacy—Use of Name or Likeness. Give the
bracketed phrase in the paragraph that introduces the second part of the instruction
if the plaintiff alleges lost profits that are different from the defendant’s wrongful
profits and that are claimed under actual damages item 3.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “[Plaintiff] alleges, and submits evidence to show, that he was injured
economically because the ad will make it difficult for him to endorse other
automobiles, and emotionally because people may be led to believe he has
abandoned his current name and assume he has renounced his religion. These
allegations suffice to support his action. Injury to a plaintiff’s right of publicity is
not limited to present or future economic loss, but ‘may induce humiliation,
embarrassment, and mental distress.’ ” (Abdul-Jabbar v. General Motors Corp.
(9th Cir. 1996) 85 F.3d 407, 416, internal citation omitted.)
• “The statutory language of section 3344 is unambiguous—the plaintiff bears the
burden of presenting proof of the gross revenue attributable to the defendant’s
unauthorized use of the plaintiff’s likeness, and the defendant must then prove its
deductible expenses. CACI No. 1821 mirrors the language of section 3344:
‘[plaintiff] must prove the amount of gross revenue, and [. . . defendant] must
prove the amount of expenses.’ (CACI No. 1821.)” (Olive v. General Nutrition
Centers, Inc. (2018) 30 Cal.App.5th 804, 814 [242 Cal.Rptr.3d 15], internal
citation omitted.)
• “CACI No. 1821 adequately explained the applicable law to the jury.” (Olive,
supra, 30 Cal.App.5th at p. 815.)
• “We can conceive no rational basis for the Legislature to limit the $750 as an
alternative to all other damages, including profits. If someone profits from the
unauthorized use of another’s name, it makes little sense to preclude the injured
party from recouping those profits because he or she is entitled to statutory
damages as opposed to actual damages. Similar reasoning appears to be reflected
in the civil jury instructions for damages under section 3344, which provides: ‘If
[name of plaintiff] has not proved the above damages, or has proved an amount
of damages less than $750, then you must award [him/her] $750. [¶] In addition,
[name of plaintiff] may recover any profits that [name of defendant] received
from the use of [name of plaintiff]’s [name . . . ] [that have not already been
taken into account in computing the above damages].’ (CACI No. 1821, italics
omitted.).” (Orthopedic Systems, Inc., supra, 202 Cal.App.4th at p. 546.)
1150
RIGHT OF PRIVACY CACI No. 1821
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1715–1724
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Invasion Of
Privacy, ¶¶ 5:1116–5:1118 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
California Civil Practice, Torts § 20:17 (Thomson Reuters)
1822–1899. Reserved for Future Use
1151
VF-1800. Privacy—Intrusion Into Private Affairs
1152
RIGHT OF PRIVACY VF-1800
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1800, Intrusion Into Private Affairs.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1153
VF-1801. Privacy—Public Disclosure of Private Facts
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1801, Public Disclosure of Private Facts.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1155
VF-1801 RIGHT OF PRIVACY
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1156
VF-1802. Privacy—False Light
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1802, False Light.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the conduct does not involve a matter of public concern, then substitute the
following for question number 3: “Was [name of defendant] negligent in
determining the truth of the information or whether a false impression would be
created by its publication?” If the conduct involved material that is not defamatory
on its face, the following question should be added to this form: “Did [name of
plaintiff] sustain harm to [his/her/nonbinary pronoun] property, business, profession,
or occupation [including money spent as a result of the statements(s)]?”
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1158
RIGHT OF PRIVACY VF-1802
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1159
VF-1803. Privacy—Appropriation of Name or Likeness
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016,
November 2017
Directions for Use
This verdict form is based on CACI No. 1803, Appropriation of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1161
VF-1803 RIGHT OF PRIVACY
findings that are required in order to calculate the amount of prejudgment interest.
1162
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [humiliation/embarrassment/
mental distress including any physical symptoms:] $ ]
[d. Future noneconomic loss, including
[humiliation/embarrassment/mental distress including any
physical symptomns:] $ ]
[d. TOTAL ACTUAL DAMAGES $
[7. Did [name of defendant] receive any profits from the use of [name
of plaintiff]’s [name/voice/signature/photograph/likeness] that you
did not include under [name of plaintiff]’s actual damages for lost
profits in Question 6 above?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What amount of those profits did [name of defendant] receive from
the use of [name of plaintiff]’s [name/voice/signature/photograph/
likeness]?
8. TOTAL PROFITS RECEIVED BY DEFENDANT $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1164
RIGHT OF PRIVACY VF-1804
New September 2003; Revised April 2007, April 2008, December 2010, June 2012,
December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 1804A, Use of Name or Likeness, and
CACI No. 1821, Damages for Use of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under Civil Code section 3344(a), the plaintiff may recover actual damages or $750,
whichever is greater. The plaintiff may also recover any profits that the defendant
received from the unauthorized use that were not taken into account in calculating
actual damages. (Orthopedic Systems Inc. v. Schlein (2011) 202 Cal.App.4th 529,
547 [135 Cal.Rptr.3d 200].) The advisory committee recommends calculating the
defendant’s profits to be disgorged separately from actual damages. Questions 5
through 8 take the jury through the recommended course. If no actual damages are
sought, question 5 may be omitted and the jury instructed to enter $750 as the total
actual damages in question 6. If the jury awards actual damages of less than $750,
the court should raise the amount to $750. If there is no claim to disgorge the
defendant’s wrongful profits, questions 7 and 8 may be omitted.
Additional questions may be necessary if the facts implicate Civil Code section
3344(d) (see Directions for Use under CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign).
If specificity is not required, users do not have to itemize all the actual damages
listed in question 6 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1805–VF-1806. Reserved for Future Use
1165
VF-1807. Privacy—Recording of Confidential Information (Pen.
Code, §§ 632, 637.2)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1809, Recording of Confidential
Information.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 4 and 5 do not have to be read if the plaintiff is seeking the statutory
penalty only.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
1167
VF-1807 RIGHT OF PRIVACY
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1808–VF-1899. Reserved for Future Use
1168
FRAUD OR DECEIT
1169
1900. Intentional Misrepresentation
• “The elements of fraud that will give rise to a tort action for deceit are: “ ‘(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [64 Cal.Rptr.2d 843, 938 P.2d
903], internal quotation marks omitted.)
• “A complaint for fraud must allege the following elements: (1) a knowingly false
representation by the defendant; (2) an intent to deceive or induce reliance; (3)
justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by
Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52 Cal.Rptr.2d
650] [combining misrepresentation and scienter as a single element].)
• “Puffing,” or sales talk, is generally considered opinion, unless it involves a
representation of product safety. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112
[120 Cal.Rptr. 681, 534 P.2d 377].)
• “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to
deceive, that distinguishes it from actionable negligent misrepresentation and
from nonactionable innocent misrepresentation. It is the element of intent which
makes fraud actionable, irrespective of any contractual or fiduciary duty one
party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce,
Fenner & Smith (1998) 68 Cal.App.4th 445, 482 [80 Cal.Rptr.2d 329], internal
citations omitted.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]he trial court failed to consider that a cause of action based in fraud may
arise from conduct that is designed to mislead, and not only from verbal or
written statements.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 839 [199 Cal.Rptr.3d 901].)
• “[A] cause of action for misrepresentation requires an affirmative statement, not
an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089,
1102 [223 Cal.Rptr.3d 458].)
• “ ‘[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
1171
CACI No. 1900 FRAUD OR DECEIT
1172
1901. Concealment
New September 2003; Revised October 2004, December 2012, June 2014, June
2015
Directions for Use
Give this instruction if it is alleged that the defendant concealed certain information
to the detriment of the plaintiff. (See Civ. Code, § 1710(3).) Element 2 may be
deleted if the third option for element 1 is selected.
Regarding element 1, before there can be liability for concealment, there must
1173
CACI No. 1901 FRAUD OR DECEIT
to mislead; (2) the facts are known or accessible only to defendant, and
defendant knows they are not known to or reasonably discoverable by the
plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”
(Warner Construction Corp., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “[O]ther than the first instance, in which there must be a fiduciary relationship
between the parties, ‘the other three circumstances in which nondisclosure may
be actionable: presuppose[] the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise. . . . “[W]here
material facts are known to one party and not to the other, failure to disclose
them is not actionable fraud unless there is some relationship between the parties
which gives rise to a duty to disclose such known facts.” [Citation.]’ A
relationship between the parties is present if there is ‘some sort of transaction
between the parties. [Citations.] Thus, a duty to disclose may arise from the
relationship between seller and buyer, employer and prospective employee,
doctor and patient, or parties entering into any kind of contractual agreement.’ ”
(Hoffman, supra, 228 Cal.App.4th at p. 1187, original italics, internal citations
omitted.)
• “Even if a fiduciary relationship is not involved, a non-disclosure claim arises
when the defendant makes representations but fails to disclose additional facts
which materially qualify the facts disclosed, or which render the disclosure likely
to mislead.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 666 [51
Cal.Rptr.2d 907], internal citations omitted.)
• “ ‘[T]he rule has long been settled in this state that although one may be under
no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or
in response to inquiries, he is bound not only to state truly what he tells but also
not to suppress or conceal any facts within his knowledge which materially
qualify those stated. If he speaks at all he must make a full and fair
disclosure.” ’ ” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal.App.4th 603, 613 [7 Cal.Rptr.2d 859].)
• “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
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
1175
CACI No. 1901 FRAUD OR DECEIT
1176
1902. False Promise
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],
internal citations omitted.)
• “[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
Cal.App.4th at p. 1060.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra,
205 Cal.App.4th at p. 1061.)
• “[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.)
• “An action for promissory fraud may lie where a defendant fraudulently induces
the plaintiff to enter into a [written] contract. [Citations.] In such cases, the
plaintiff’s claim does not depend upon whether the defendant’s promise is
ultimately enforceable as a contract.” (Austin v. Medicis (2018) 21 Cal.App.5th
577, 588 [230 Cal.Rptr.3d 528].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 899–904
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][a] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.12
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.30 et seq.
(Matthew Bender)
California Civil Practice: Torts § 22:20 (Thomson Reuters)
1178
1903. Negligent Misrepresentation
they are true, but without reasonable ground for such belief, he may be liable for
negligent misrepresentation, a form of deceit.’ ” (Bily, supra, 3 Cal.4th at p. 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.)
• “Negligent misrepresentation requires an assertion of fact, falsity of that
assertion, and the tortfeasor’s lack of reasonable grounds for believing the
assertion to be true. It also requires the tortfeasor’s intent to induce reliance,
justifiable reliance by the person to whom the false assertion of fact was made,
and damages to that person. An implied assertion of fact is ‘not enough’ to
support liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29
Cal.App.5th 146, 154 [239 Cal.Rptr.3d 788], internal citation omitted.)
• “ ‘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,
1180
FRAUD OR DECEIT CACI No. 1903
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
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].)
• “[P]laintiffs rely on section 311 of the Restatement Second of Torts (section
311), which addresses negligent misrepresentation involving physical harm.
Under section 311(1), ‘[o]ne who negligently gives false information to another
is subject to liability for physical harm caused by action taken by the other in
reasonable reliance upon such information, where such harm results [¶] . . . [¶]
to such third persons as the actor should expect to be put in peril by the action
taken.’ [¶] Section 311’s theory of liability is intended to be ‘somewhat broader’
than that for mere pecuniary loss. It ‘finds particular application where it is a
part of the actor’s business or profession to give information upon which the
safety of the recipient or a third person depends.’ This court applied and
followed section 311 . . .” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4
Cal.5th 145, 162–163 [226 Cal.Rptr.3d 336, 407 P.3d 18], internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 940–942, 946–949
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-H, Negligent
Misrepresentation, ¶ 5:781 et seq. (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-D, Negligent
Misrepresentation, ¶ 11:41 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.10 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.14
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.270 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 22:13–22:15 (Thomson Reuters)
1182
1904. Opinions as Statements of Fact
implying facts which justify a belief in the truth of the opinion. [Citation.]’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1], internal citation omitted.)
• “[W]hen one of the parties possesses, or assumes to possess, superior knowledge
or special information regarding the subject matter of the representation, and the
other party is so situated that he may reasonably rely upon such supposed
superior knowledge or special information, a representation made by the party
possessing or assuming to possess such knowledge or information, though it
might be regarded as but the expression of an opinion if made by any other
person, is not excused if it be false.” (Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)
• “Since the appraisal is a value opinion performed for the benefit of the lender,
there is no representation of fact upon which a buyer may reasonably rely.”
(Graham, supra, 226 Cal.App.4th at p. 607.)
• “Whether a statement is nonactionable opinion or actionable misrepresentation of
fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65
Cal.App.4th 1069, 1080–1081 [76 Cal.Rptr.2d 911], internal citations omitted.)
• “If defendants’ assertion of safety is merely a statement of opinion—mere
‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “The alleged false representations in the subject brochures were not statements
of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the
DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that
promises of safety are not statements of opinion—they are ‘representations of
fact.’ ” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)
• “Under certain circumstances, expressions of professional opinion are treated as
representations of fact. When a statement, although in the form of an opinion, is
‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters
stated,’ it may be regarded as a positive assertion of fact. Moreover, when a
party possesses or holds itself out as possessing superior knowledge or special
information or expertise regarding the subject matter and a plaintiff is so situated
that it may reasonably rely on such supposed knowledge, information, or
expertise, the defendant’s representation may be treated as one of material fact.”
(Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 892–896
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.17
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50 (Matthew
1184
FRAUD OR DECEIT CACI No. 1904
Bender)
California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)
1185
1905. Definition of Important Fact/Promise
1186
1906. Misrepresentations Made to Persons Other Than the
Plaintiff
1188
1907. Reliance
1190
1908. Reasonable Reliance
New September 2003; Revised October 2004, December 2013, May 2020
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.
Sources and Authority
• “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
1178, 1194 [175 Cal.Rptr.3d 820], internal citations omitted.)
• “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
1191
CACI No. 1908 FRAUD OR DECEIT
1193
1910. Real Estate Seller’s Nondisclosure of Material Facts
• “ ‘A real estate seller has both a common law and statutory duty of
disclosure. . . . “In the context of a real estate transaction, ‘[i]t is now settled in
California that 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.]” . . . 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].” [Citation.]’ ” (RSB Vineyards,
LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1097 [223 Cal.Rptr.3d 458], original
italics.)
• “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.)
• “Actual knowledge can, and often is, shown by inference from circumstantial
evidence. In that case, however, ‘ “actual knowledge can be inferred from the
circumstances only if, in the light of the evidence, such inference is not based on
speculation or conjecture. Only where the circumstances are such that the
defendant ‘must have known’ and not ‘should have known’ will an inference of
actual knowledge be permitted.” ’ ” (RSB Vineyards, LLC, supra, 15 Cal.App.5th
at p. 1098, internal citation 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.
1195
CACI No. 1910 FRAUD OR DECEIT
1196
1920. Buyer’s Damages for Purchase or Acquisition of Property
1198
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/nonbinary pronoun/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/nonbinary pronoun/it] has proved all of the following:
1. That [name of plaintiff] acquired the property for the purpose of
using or reselling it for a [profit/gain];
2. That [name of plaintiff] reasonably relied on [name of defendant]’s
[false representation/failure to disclose/promise] in entering into
the transaction and in anticipating [profits/gains] from the use or
sale of the property; and
3. That [name of defendant]’s [false representation/failure to disclose/
promise] and [name of plaintiff]’s reliance on it were both
substantial factors in causing the lost profits.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
specifically, lost profits proximately caused are recoverable. The cases cited, the
arguments made concerning Civil Code section 3343 limitations are simply not
relevant to post-1971 proceedings, where profits are the claimed loss. Civil Code
section 3343 as amended, in so many words, authorizes recovery of lost profits.”
(Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 247 [137 Cal.Rptr. 244].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897–1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1200
1922. Seller’s Damages for Sale or Exchange of Property
damage arising from the particular transaction including any of the following: 1.
amounts expended in reliance upon the fraud; 2. amounts compensating for loss
of use and enjoyment of the property due to the fraud; and 3. an amount which
would compensate him for the profits or other gains by the use of the property
had he retained it.” (Channell, supra, 58 Cal.App.3d at p. 312, internal citation
omitted.)
• “What that time span [for damages for lost use and lost profits] should be would
be determined by the peculiar circumstances of the particular case before the
court and should present no insurmountable difficulty for a court in fixing a
reasonable period contemplated by the statute.” (Channell, supra, 58 Cal.App.3d
at p. 317, footnote omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “Mental distress is not an element of damages allowable under Civil Code
section 3343.” (Channell, supra, 58 Cal.App.3d at p. 315, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897–1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1203
1923. Damages—“Out of Pocket” Rule
date the promise was breached because that is the date when the damage
occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
(1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44
Cal.Rptr.2d 352, 900 P.2d 601], internal citations omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it).” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In fraud cases involving the ‘purchase, sale or exchange of property,’ the
Legislature has expressly provided that the ‘out-of-pocket’ rather than the
‘benefit-of-the-bargain’ measure of damages should apply. Civil Code section
3343 provides the exclusive measure of damages for fraud in such cases.”
(Fragale v. Faulkner (2003) 110 Cal.App.4th 229, 236 [1 Cal.Rptr.3d 616].)
• “Civil Code section 3343 does not apply, however, ‘when a victim is defrauded
by its fiduciaries.’ Instead, in the case of fraud by a fiduciary, ‘the “broader”
measure of damages provided by sections 1709 and 3333 applies.’ . . . [¶] In
the case of a negligent misrepresentation by a fiduciary, ‘a plaintiff is only
entitled to its actual or “out-of-pocket” losses suffered because of [the]
fiduciary’s negligent misrepresentation under section 3333.’ [¶] The Supreme
Court has not decided whether ‘the measure of damages under section 3333
might be greater for a fiduciary’s intentional misrepresentation . . . .’ ” (Fragale,
supra, 110 Cal.App.4th at pp. 236–237, original italics, internal citations
omitted.)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
greater for a fiduciary’s intentional misrepresentation, we need not address that
issue here.” (Alliance Mortgage Co., supra, 10 Cal.4th at pp. 1249–1250.)
• “To recover damages for fraud, a plaintiff must have sustained damages
1205
CACI No. 1923 FRAUD OR DECEIT
1206
1924. Damages—“Benefit of the Bargain” Rule
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.)
• “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,
supra, 110 Cal.App.4th at p. 232.)
• “[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,
supra, 24 Cal.App.4th at pp. 566–567.)
• “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
Cal.App.4th at p. 568.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “[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
[119 Cal.Rptr. 288], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1893–1900
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23
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, § 105.131 et seq.
(Matthew Bender)
1209
1925. Affirmative Defense—Statute of Limitations—Fraud or
Mistake
In a case such as this, that date is the date the complaining party learns, or at
least is put on notice, that a representation was false.” (Brandon G. v. Gray
(2003) 111 Cal.App.4th 29, 35 [3 Cal.Rptr.3d 330].)
• “This discovery element has been interpreted to mean ‘the discovery by the
aggrieved party of the fraud or facts that would lead a reasonably prudent person
to suspect fraud.’ ” (Doe v. Roman Catholic Bishop of Sacramento (2010) 189
Cal.App.4th 1423, 1430 [117 Cal.Rptr.3d 597], original italics.)
• “Case law has interpreted this accrual provision to mean that ‘a cause of action
[under Code Civ. Proc., § 338(d)] accrues, and the limitations period commences
to run, when the aggrieved party could have discovered the . . . mistake through
the exercise of reasonable diligence.’ ” (Creditors Collection Serv. v. Castaldi
(1995) 38 Cal.App.4th 1039, 1044 [45 Cal.Rptr. 2d 511].)
• “One [exception to the limitations period] is the doctrine of fraudulent
concealment, which tolls the statute of limitations if a defendant’s deceptive
conduct ‘has caused a claim to grow stale.’ ” (Fuller v. First Franklin Financial
Corp. (2013) 216 Cal.App.4th 955, 962 [163 Cal.Rptr.3d 44].)
• “ ‘Technical rules as to when a cause of action accrues apply therefore only in
those cases which are free from fraud committed by the defendant. Said section
338, subdivision 4, . . . recognizes the nonapplicability of those technical rules
where the fraud of the defendant may be so concealed that in the absence of
circumstances imposing greater diligence on the plaintiff, the cause of action is
deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the
defendant by concealing his fraud, would effectively block recovery by the
plaintiff because of the intervention of the statute of limitations.’ ” (Snow v. A.
H. Robins Co. (1985) 165 Cal.App.3d 120, 127–128 [211 Cal.Rptr. 271], internal
citation omitted.)
• “[C]ourts have relied on the nature of the relationship between defendant and
plaintiff to explain application of the delayed accrual rule. The rule is generally
applicable to confidential or fiduciary relationships. The fiduciary relationship
carries a duty of full disclosure, and application of the discovery rule ‘prevents
the fiduciary from obtaining immunity for an initial breach of duty by a
subsequent breach of the obligation of disclosure.’ ” (Parsons v. Tickner (1995)
31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)
• “ ‘The provision tolling operation of [section 338(d)] until discovery of the fraud
has long been treated as an exception and, accordingly, this court has held that if
an action is brought more than three years after commission of the fraud,
plaintiff has the burden of pleading and proving that he did not make the
discovery until within three years prior to the filing of his complaint.’ ” (Samuels
v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701], internal
citation omitted.)
• “Only causes of action based on actual fraud are governed by section 338,
subdivision (d). This includes . . . causes of action based on fraudulent
concealment, which ‘is a species of fraud or deceit. [Citations.]’ ” (Stueve Bros.
1211
CACI No. 1925 FRAUD OR DECEIT
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 322 [166 Cal.Rptr.3d
116].)
• “[T]he section 338, subdivision (d), three-year statute of limitations applies to an
unjust enrichment cause of action based on mistake.” (Federal Deposit Ins.
Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original
italics.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 653–663
Rylaarsdam & Edmon, California Practice Guide: Civil Procedure Before Trial, Ch.
6-C, Answer, ¶¶ 6:462–6:462.2 (The Rutter Group)
California Civil Procedure Before Trial, Ch. 25, Answer (Cont.Ed.Bar 4th ed.)
§ 25.46
43 California Forms of Pleading and Practice, Ch. 489, Relief From Judgments and
Orders, § 489.261 (Matthew Bender)
7 California Points and Authorities, Ch. 70A, Defaults and Relief From Orders and
Judgments: Equitable Remedies, §§ 70A.32, 70A.52 et seq. (Matthew Bender)
1926–1999. Reserved for Future Use
1212
VF-1900. Intentional Misrepresentation
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1900, Intentional Misrepresentation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the defendant alleges that the representations referred to in question 1 were
1214
FRAUD OR DECEIT VF-1900
opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. However, if both intentional misrepresentation and negligent
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
alternative, the preferred practice would seem to be that this verdict form and VF-
1903, Negligent Misrepresentation, be kept separate and presented in the alternative.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
With respect to the same misrepresentation, question 2 above cannot be answered
“yes” and question 3 of VF-1903 cannot also be answered “no.” The jury may
continue to answer the next question from one form or the other, but not both.
If both intentional and negligent misrepresentation are before the jury, it is important
to distinguish between a statement made recklessly and without regard for the truth
(see question 2 above) and one made without reasonable grounds for believing it is
true (see CACI No. VF-1903, question 3). Question 2 of VF-1903 should be
included to clarify that the difference is that for negligent misrepresentation, the
defendant honestly believes that the statement is true. (See Bily v. Arthur Young &
Co. (1992) 3 Cal.4th 370, 407–408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1215
VF-1901. Concealment
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1901, Concealment.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Modify question 1 by referring to one of the other three grounds for concealment
listed in element 1 of CACI No. 1901, Concealment, depending on which ground is
applicable to the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1217
VF-1901 FRAUD OR DECEIT
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.
1218
VF-1902. False Promise
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2015, December 2016
Directions for Use
This verdict form is based on CACI No. 1902, False Promise.
1220
FRAUD OR DECEIT VF-1902
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If multiple promises are at issue, question 1 should be repeated to specify each 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.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action (or from different promises), replace the damages tables in all of the verdict
forms with CACI No. VF-3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1221
VF-1903. Negligent Misrepresentation
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
1223
VF-1903 FRAUD OR DECEIT
1224
TRESPASS
1225
2000. Trespass—Essential Factual Elements
with the possession.” ’ California has adhered firmly to the view that ‘[t]he cause
of action for trespass is designed to protect possessory—not necessarily
ownership—interests in land from unlawful interference.’ ” (Capogeannis v.
Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal
citations omitted.)
• “In the context of a trespass action, ‘possession’ is synonymous with
‘occupation’ and connotes a subjection of property to one’s will and control.”
(Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105 [247 Cal.Rptr.3d 868].)
• “ ‘[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,
‘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
Cal.Rptr.2d 377], internal citations omitted.)
• 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].)
• “ ‘It is a well-settled proposition that the proper party plaintiff in an action for
trespass to real property is the person in actual possession. No averment of title
in plaintiff is necessary. [Citations.]’ . . . ‘A defendant who is a mere stranger to
the title will not be allowed to question the title of a plaintiff in possession of
the land. It is only where the trespasser claims title himself, or claims under the
real owner, that he is allowed to attack the title of the plaintiff whose peaceable
possession he has disturbed.’ ” (Veiseh, supra, 35 Cal.App.5th at p. 1104,
internal citation omitted.)
• “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,
774 [184 Cal.Rptr. 308], internal citation omitted.)
• “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
1228
TRESPASS CACI No. 2000
1230
2001. Trespass—Extrahazardous Activities
1232
2002. Trespass to Timber—Essential Factual Elements (Civ. Code,
§ 3346)
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “Diminution in market value . . . is not an absolute limitation; several other
theories are available to fix appropriate compensation for the plaintiff’s loss. . . .
[¶] One alternative measure of damages is the cost of restoring the property to
its condition prior to the injury. Courts will normally not award costs of
restoration if they exceed the diminution in the value of the property; the
plaintiff may be awarded the lesser of the two amounts.” (Heninger v. Dunn
(1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104], internal citations omitted.)
• “The rule precluding recovery of restoration costs in excess of diminution in
value is, however, not of invariable application. Restoration costs may be
awarded even though they exceed the decrease in market value if ‘there is a
reason personal to the owner for restoring the original condition,’ or ‘where there
is reason to believe that the plaintiff will, if fact, make the repairs.’ ” (Heninger,
supra, 101 Cal.App.3d at p. 863, internal citations omitted.)
• “Courts have stressed that only reasonable costs of replacing destroyed trees
with identical or substantially similar trees may be recovered.” (Heninger, supra,
101 Cal.App.3d at p. 865.)
• “As a tree growing on a property line, the Aleppo pine tree was a ‘line tree.’
Civil Code section 834 provides: ‘Trees whose trunks stand partly on the land of
two or more coterminous owners, belong to them in common.’ As such, neither
owner ‘is at liberty to cut the tree without the consent of the other, nor to cut
away the part which extends into his land, if he thereby injures the common
property in the tree.’ ” (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278 [146
Cal.Rptr.3d 419].)
• “[W]hen considering the diminished value of an injured tree, the finder of fact
may account for lost aesthetics and functionality.” (Rony v. Costa (2012) 210
Cal.App.4th 746, 755 [148 Cal.Rptr.3d 642].)
• “Although [plaintiff] never quantified the loss of aesthetics at $15,000, she need
not have done so. As with other hard-to-quantify injuries, such as emotional and
reputational ones, the trier of fact court was free to place any dollar amount on
aesthetic harm, unless the amount was ‘ “so grossly excessive as to shock the
moral sense, and raise a reasonable presumption that the [trier of fact] was under
the influence of passion or prejudice.” ’ ” (Rony, supra, 210 Cal.App.4th at p.
756.)
• “[P]laintiffs here showed (i) the tree’s unusual size and form made it very
unusual for a ‘line tree’—it functioned more like two trees growing on the
separate properties; (ii) the tree’s attributes, such as its broad canopy, provided
significant benefits to the [plaintiffs’] property; and (iii) the [plaintiffs] placed
great personal value on the tree. The trial court correctly recognized that it could
account for these factors when determining damages, including whether or not
damages should be reduced.” (Kallis, supra, 208 Cal.App.4th at p. 1279.)
1235
CACI No. 2002 TRESPASS
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1917−1919
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1236
2003. Damage to Timber—Willful and Malicious Conduct
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.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “ ‘ “ ‘[T]reble damages may only be awarded when the wrongdoer intentionally
acted wilfully or maliciously. The intent required is the intent to vex, harass, or
annoy or injure the plaintiff. It is a question of fact for the trial court whether or
not such intent exists.’ [Civil Code section 3346 and Code of Civil Procedure
section 733] are permissive and not mandatory and while they ‘prescribe the
degree of penalty to be invoked they commit to the sound discretion of the trial
court the facts and circumstances under which it shall be invoked.’ ” ’ ” (Salazar,
supra, 245 Cal.App.4th at p. 646, internal citation omitted.)
• “Although neither section [3346 or 733] expressly so provides, it is now settled
that to warrant such an award of treble damages it must be established that the
wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211
Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
• “A proper and helpful analogue here is the award of exemplary damages under
section 3294 of the Civil Code when a defendant has been guilty, inter alia, of
‘malice, express or implied.’ . . . ‘In order to warrant the allowance of such
damages the act complained of must not only be wilful, in the sense of
intentional, but it must be accompanied by some aggravating circumstance,
amounting to malice. Malice implies an act conceived in a spirit of mischief or
with criminal indifference towards the obligations owed to others. There must be
an intent to vex, annoy or injure. Mere spite or ill will is not sufficient.’ . . .
Malice may consist of a state of mind determined to perform an act with
reckless or wanton disregard of or indifference to the rights of others. Since a
defendant rarely admits to such a state of mind, it must frequently be established
from the circumstances surrounding his allegedly malicious acts.” (Caldwell,
supra, 211 Cal.App.2d at pp. 763–764, internal citations omitted.)
• “Under [Health and Safety Code] section 13007, a tortfeasor generally is liable
1238
TRESPASS CACI No. 2003
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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1918
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)
1239
2004. “Intentional Entry” Explained
Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20[3] (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.15 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.40 (Matthew Bender)
California Civil Practice: Torts § 18:4 (Thomson Reuters)
1241
2005. Affirmative Defense—Necessity
1243
2020. Public Nuisance—Essential Factual Elements
New September 2003; Revised December 2007, June 2016, November 2017, May
2019, November 2019
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
1244
TRESPASS CACI No. 2020
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
(2017) 8 Cal.App.5th 350, 358 [213 Cal.Rptr.3d 538].)
There is some uncertainty as to whether lack of consent is an element (element 5)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341–345 [23 Cal.Rptr. 2d 377]; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138–1140 [281 Cal.Rptr. 827].)
Sources and Authority
• “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.)
• “The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
1245
CACI No. 2020 TRESPASS
of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.” (Department of Fish & Game, supra, 197 Cal.App.4th
at p. 1352 [citing this instruction].)
• “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 v.
Owens Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [99 Cal.Rptr.
350], internal citations omitted; but see Birke, supra, 169 Cal.App.4th at p. 1550
[“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.” (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.)
• “A public nuisance cause of action is established by proof that a defendant
knowingly created or assisted in the creation of a substantial and unreasonable
interference with a public right.” (People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 79 [227 Cal.Rptr.3d 499].)
• “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.)
• “It is substantial if it causes significant harm and unreasonable if its social utility
is outweighed by the gravity of the harm inflicted.” People v. ConAgra Grocery
Products Co., supra, 17 Cal.App.5th at p. 112.)
• “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.
1246
TRESPASS CACI No. 2020
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
omitted.)
• “An essential element of a cause of action for nuisance is damage or injury.”
(Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [147
Cal.Rptr. 683].)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be a
public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “By analogy to the rules governing tort liability, courts apply the same elements
to determine liability for a public nuisance.” (People ex rel. Gallo, supra, 14
Cal.4th at p. 1105, fn. 3, internal citation omitted.)
• “The elements ‘of a cause of action for public nuisance include the existence of
a duty and causation.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
[107 Cal.Rptr.3d 481], internal citations omitted.)
• “[L]iability for nuisance 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.” (People v. ConAgra Grocery Products Co., supra, 17
Cal.App.5th at p. 109, original italics.)
• “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
1247
CACI No. 2020 TRESPASS
1248
2021. Private Nuisance—Essential Factual Elements
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016, May 2017, May 2018, May 2019
Directions for Use
Private nuisance liability depends on some sort of conduct by the defendant that
either directly and unreasonably interferes with the plaintiff’s property or creates a
condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206
Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant have
acted to create a condition or allowed a condition to exist by failing to act.
The act that causes the interference may be intentional and unreasonable. Or it may
be unintentional but caused by negligent or reckless conduct. Or it may result from
an abnormally dangerous activity for which there is strict liability. However, if the
act is intentional but reasonable, or if it is entirely accidental, there is generally no
liability. (Lussier, supra, 206 Cal.App.3d at p. 100.)
The intent required is only to do the act that interferes, not an intent to cause harm.
(Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For
example, it is sufficient that one intend to chop down a tree; it is not necessary to
intend that it fall on a neighbor’s property.
If the condition results from an abnormally dangerous activity, it must be one for
which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d
Torts, § 822).
There may be an exception to the scienter requirement of element 3 for at least
some harm caused by trees. There are cases holding that a property owner is strictly
liable for damage caused by tree branches and roots that encroach on neighboring
property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also Mattos v.
Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of an owner
to remove portions of his fallen trees that extend over and upon another’s land]; cf.
City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236 [176
Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell onto
plaintiff’s property in a windstorm].) Do not give element 3 if the court decides that
there is strict liability for damage caused by encroaching or falling trees.
There is some uncertainty as to whether lack of consent is an element (element 6)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341–345, 23 Cal. Rptr. 2d 377; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138–1140 [281 Cal.Rptr. 827].)
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TRESPASS CACI No. 2021
If the claim is that the defendant failed to abate a nuisance, negligence must be
proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.)
Element 9 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.
Sources and Authority
• “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],
internal citations omitted.)
• “The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.[¶] The elements of a private nuisance are the same
except there is no requirement that plaintiffs prove a substantial number of
people were harmed and plaintiffs suffered harm that was different from that
suffered by the general public, but there are additional elements that plaintiffs
owned, leased, occupied or controlled real property, that the 2007 poisoning
interfered with plaintiffs’ use of their property, and that plaintiffs were harmed
thereby” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352
[citing this instruction].)
• “In their first cause of action, plaintiffs allege the 2007 poisoning adversely
affected tourism for a substantial period of time, caused plaintiffs to suffer
serious losses, obstructed the free use of plaintiffs’ property, and interfered with
plaintiffs’ comfortable enjoyment of their property or their businesses. Strictly
speaking, this does not state a claim for either public or private nuisance. There
is no allegation that plaintiffs did not consent to the 2007 poisoning, that an
1251
CACI No. 2021 TRESPASS
ordinary person would have been annoyed or disturbed by the 2007 poisoning,
or that the seriousness of the harm caused by the 2007 poisoning outweighed its
public benefit.” (Department of Fish & Game, supra, 197 Cal.App.4th at p.
1352.)
• “In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff’s property; proof of interference with the plaintiff’s use
and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal.Rptr.2d 724, 920 P.2d 669].)
• “[T]he essence of a private nuisance is its interference with the use and
enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable
enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and
odors from the operation of a refreshment stand, or the noise and vibration of
machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534
[90 Cal.Rptr.2d 491], internal citations omitted.)
• “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.” (McBride v.
Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].)
• “[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
Cal.App.4th 1036, 1041 [29 Cal.Rptr.2d 664], internal citation omitted.)
• “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, supra,
3 Cal.App.5th at p. 262.)
• “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
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
1252
TRESPASS CACI No. 2021
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
at p. 938, internal citations omitted.)
• “The second additional requirement for nuisance is superficially similar but
analytically distinct: ‘The interference with the protected interest must not only
be substantial, but it must also be unreasonable’, i.e., it must be ‘of such a
nature, duration or amount as to constitute unreasonable interference with the use
and enjoyment of the land.’ The primary test for determining whether the
invasion is unreasonable is whether the gravity of the harm outweighs the social
utility of the defendant’s conduct, taking a number of factors into account. Again
the standard is objective: the question is not whether the particular plaintiff
found the invasion unreasonable, but ‘whether reasonable persons generally,
looking at the whole situation impartially and objectively, would consider it
unreasonable.’ And again this is a question of fact: ‘Fundamentally, the
unreasonableness of intentional invasions is a problem of relative values to be
determined by the trier of fact in each case in the light of all the circumstances
of that case.’ ” (San Diego Gas & Electric Co., supra, 13 Cal.4th at pp.
938–939, internal citations omitted.)
• “Appellant first argues that the judgment is erroneous because there is no
showing that any act or conduct of his caused the damage. It is true that there is
neither showing nor finding of any negligent or wrongful act or omission of
defendant proximately causing the falling of the trees. But no such showing is
required. If the trees remained upright, with some of their branches extending
over or upon plaintiff’s land, they clearly would constitute a nuisance, which
defendant could be required to abate.” (Mattos, supra, 162 Cal.App.2d at p. 42.)
• “Although the central idea of nuisance is the unreasonable invasion of this
interest and not the particular type of conduct subjecting the actor to liability,
liability nevertheless depends on some sort of conduct that either directly and
unreasonably interferes with it or creates a condition that does so. ‘The invasion
may be intentional and unreasonable. It may be unintentional but caused by
negligent or reckless conduct; or it may result from an abnormally dangerous
activity for which there is strict liability. On any of these bases the defendant
may be liable. On the other hand, the invasion may be intentional but
1253
CACI No. 2021 TRESPASS
reasonable; or it may be entirely accidental and not fall within any of the
categories mentioned above. In these cases there is no liability.’ ” (Lussier,
supra, 206 Cal.App.3d at p. 100, internal citations omitted.)
• “A finding of an actionable nuisance does not require a showing that the
defendant acted unreasonably. As one treatise noted, ‘[c]onfusion has resulted
from the fact that the intentional interference with the plaintiff’s use of his
property can be unreasonable even when the defendant’s conduct is reasonable.
This is simply because a reasonable person could conclude that the plaintiff’s
loss resulting from the intentional interference ought to be allocated to the
defendant.’ ” (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th
786, 804 [230 Cal.Rptr.3d 595], quoting Prosser & Keeton (5th ed. 1984) Torts
§ 88.)
• “We do not intend to suggest, however, that one is strictly liable for damages
that arise when a natural condition of one’s land interferes with another’s free
use and enjoyment of his property. Such a rule would, quite anomalously, equate
natural conditions with dangerous animals, ultrahazardous activities, or defective
products, for which strict liability is reserved.” (Lussier, supra, 206 Cal.App.3d
at pp. 101–102.)
• “Clearly, a claim of nuisance based on our example is easier to prove than one
based on negligent conduct, for in the former, a plaintiff need only show that the
defendant committed the acts that caused injury, whereas in the latter, a plaintiff
must establish a duty to act and prove that the defendant’s failure to act
reasonably in the face of a known danger breached that duty and caused
damages.” (Lussier, supra, 206 Cal.App.3d at p. 106.)
• “We note, however, a unique line of cases, starting with Grandona v. Lovdal
(1886) 70 Cal. 161 [11 P. 623], which holds that to the extent that the branches
and roots of trees encroach upon another’s land and cause or threaten damage,
they may constitute a nuisance. Superficially, these cases appear to impose
nuisance liability in the absence of wrongful conduct.” (Lussier, supra, 206
Cal.App.3d at p. 102, fn. 5 [but questioning validity of such a rule], internal
citations omitted.)
• “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, 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, supra, 228
Cal.App.4th at p. 1236, internal citations omitted.)
1254
TRESPASS CACI No. 2021
• “We acknowledge that to recover on a nuisance claim the harm the plaintiff
suffers need not be a physical injury. Thus, the absence of evidence in this case
to establish that [plaintiff] ‘s physical injuries were caused by the stray voltage
would not preclude recovery on her nuisance claim.” (Wilson, supra, 234
Cal.App.4th at p. 159, internal citations omitted.)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property. . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “It is the general rule that the unreasonable, unwarrantable or unlawful use by a
person of his own property so as to interfere with the rights of others is a
nuisance [citation]. In fact, any unwarranted activity which causes substantial
injury to the property of another or obstructs its reasonable use and enjoyment is
a nuisance which may be abated. And, even a lawful use of one’s property may
constitute a nuisance if it is part of a general scheme to annoy a neighbor and if
the main purpose of the use is to prevent the neighbor from reasonable
enjoyment of his own property [citation].” (McBride, supra, 18 Cal.App.5th at p.
1180.)
• “ ‘Occupancy goes to the holding, possessing or residing in or on something.’
‘The rights which attend occupancy may be, arguably, many.’ ‘ “Invasion of the
right of private occupancy” resembles the definition of nuisance, an
“ ‘interference with the interest in the private use and enjoyment of the land.’ ”
[Citations.] ‘The typical and familiar nuisance claim involves an activity or
condition which causes damage or other interference with the enjoyment of
adjoining or neighboring land.” ’ ” (Albert v. Truck Ins. Exchange (2018) 23
Cal.App.5th 367, 380 [232 Cal.Rptr.3d 774, internal citations omitted.)
• “An invasion of the right of private occupancy does not have to be a physical
invasion of the land; a nonphysical invasion of real property rights can interfere
with the use and enjoyment of real property.” (Albert, supra, 23 Cal.App.5th at
p. 380.)
• “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.)
• “[W]here, as here, an owner of property seeks damages for creation of a
nuisance by a prior lessee, the lessee has a defense that his use of the property
1255
CACI No. 2021 TRESPASS
was lawful and was authorized by the lease; i.e., his use of the property was
undertaken with the consent of the owner.” (Mangini, supra, 230 Cal.App.3d at
p. 1138, original italics.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 174
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew Bender)
California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters)
1256
2022. Private Nuisance—Balancing-Test Factors—Seriousness of
Harm and Public Benefit
invasion.
1259
2023. Failure to Abate Artificial Condition on Land Creating
Nuisance
knows or should know of the condition and the nuisance or unreasonable risk of
nuisance involved, and [para. ] (b) he knows or should know that it exists
without the consent of those affected by it, and [para. ] (c) he has failed after a
reasonable opportunity to take reasonable steps to abate the condition or to
protect the affected persons against it.’” (Leslie Salt Co., supra, 153 Cal.App.3d
at pp. 619–620.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 160
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 1045
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1230, 1300
2024–2029. Reserved for Future Use
1261
2030. Affirmative Defense—Statute of Limitations—Trespass or
Private Nuisance
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, supra, 153
Cal.App.4th at p. 597, internal citations omitted.)
• “[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
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
1264
TRESPASS CACI No. 2030
rule has been ameliorated in some cases where it is manifestly unjust to deprive
plaintiffs of a cause of action before they are aware that they have been injured.
This modified rule has been applied to latent defects in real property and
improvements. In the case of such latent defects the statute of limitations begins
to run only when ‘noticeable damage occurs.’ ” (Leaf v. City of San Mateo
(1980) 104 Cal.App.3d 398, 406–407 [163 Cal.Rptr. 711], internal citations
omitted, disapproved on another ground in Trope v. Katz (1995) 11 Cal.4th 274,
292 [45 Cal.Rptr.2d 241, 902 P.2d 259], original italics.)
Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.09[5] (Matthew
Bender)
Brown et al., California Practice Guide: Civil Procedure Before Trial, Ch. 6-C,
Pleadings ¶¶ 6:462–6:462.2 (The Rutter Group)
2 California Real Property Remedies and Damages, Ch. 11, Remedies for Nuisance
and Trespass (Cont.Ed.Bar 2d ed.) §§ 11.38–11.40
1 California Forms of Pleading and Practice, Ch. 11, Adjoining Landowners, § 11.24
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240–225.245
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.44 (Matthew Bender)
1265
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/nonbinary pronoun] for the
annoyance and discomfort, including emotional distress or mental
anguish, caused by the injury to [his/her/nonbinary pronoun] peaceful
enjoyment of the property that [he/she/nonbinary pronoun] occupied.
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
(2017) 7 Cal.App.5th 1305, 1313 [212 Cal.Rptr.3d 920], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1915
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.21 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
2032–2099. Reserved for Future Use
1268
VF-2000. Trespass
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1270
TRESPASS VF-2000
1271
VF-2001. Trespass—Affirmative Defense—Necessity
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, October 2008, December
2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements, and CACI No. 2005, Affırmative Defense—Necessity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 3 can be modified, as in element 3 in CACI No. 2000.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1273
VF-2001 TRESPASS
1274
VF-2002. Trespass—Extrahazardous Activities
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2001, Trespass—Extrahazardous Activities.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
1276
TRESPASS VF-2002
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 4 can be modified.
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.
1277
VF-2003. Trespass to Timber (Civ. Code, § 3346)
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements. The amount of actual damages found by the jury is to be
doubled. (See Civ. Code, § 3346(a).) The court can do the computation based on the
jury’s award.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 3 can be modified, as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
1279
VF-2003 TRESPASS
1280
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ.
Code, § 3346; Code Civ. Proc., § 733)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements, and CACI No. 2003, Damage to Timber—Willful and Malicious
Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
1282
TRESPASS VF-2004
If there is an issue regarding whether the defendant exceeded the scope of the
plaintiff’s consent, question 3 can be modified as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1283
VF-2005. Public Nuisance
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
1285
VF-2005 TRESPASS
New September 2003; Revised April 2007, December 2007, December 2010,
December 2016
Directions for Use
This form is based on CACI No. 2020, Public Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations may be substituted in question 1 as in element 1 of CACI
No. 2020.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Depending on the facts of the case, question 1 can be modified, as in element 1 of
CACI No. 2020.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1286
VF-2006. Private Nuisance
Signed:
Presiding Juror
Dated:
1288
TRESPASS VF-2006
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2010,
December 2011, December 2016, May 2017
Directions for Use
This form is based on CACI No. 2021, Private Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Depending on the facts of the case, question 2 may be replaced with one of the
other options from element 2 of CACI No. 2021.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2007–VF-2099. Reserved for Future Use
1289
CONVERSION
1291
2100. Conversion—Essential Factual Elements
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].)
Sources and Authority
• “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
Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)
• “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.” . . .’ ”
1292
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].)
• “To prove a cause of action for conversion, the plaintiff must show the defendant
acted intentionally to wrongfully dispose of the property of another.” (Duke v.
Superior Court (2017) 18 Cal.App.5th 490, 508 [226 Cal.Rptr.3d 807].)
• “[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.)
• “[C]onversion is a strict liability tort. It does not require bad faith, knowledge, or
even negligence; it requires only that the defendant have intentionally done the
act depriving the plaintiff of his or her rightful possession.” (Voris v. Lampert
(2019) 7 Cal.5th 1141, 1158 [250 Cal.Rptr.3d 779, 446 P.3d 284].)
• “ ‘ “Conversion is a strict liability tort,” ’ so the Bank cannot defeat the claim on
the grounds that it accepted a forged signature in good faith. Financial
institutions can be liable to their depositors for transferring money out of their
accounts on forged instruments.” (Fong v. East West Bank (2018) 19 Cal.App.5th
224, 235 [227 Cal.Rptr.3d 838], internal citation omitted.)
• “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,
1181 [180 Cal.Rptr.3d 610], internal citations omitted.)
• “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
1293
CACI No. 2100 CONVERSION
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. 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
Cal.Rptr. 15], internal citations omitted.)
• “ ‘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.
(1990) 51 Cal.3d 120, 136 [271 Cal.Rptr. 146, 793 P.2d 479], internal citations
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.)
• “[A] claim for unpaid wages resembles other actions for a particular amount of
money owed in exchange for contractual performance—a type of claim that has
long been understood to sound in contract, rather than as the tort of conversion.”
(Voris, supra, 7 Cal.5th at p. 1156.)
• “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
1294
CONVERSION CACI No. 2100
and had the right of possession of the realty, which included the right to keep his
personal property thereon, [defendant]’s act of placing the goods in storage,
although not constituting the assertion of ownership and a substantial
interference with possession to the extent of a conversion, amounted to an
intermeddling. Therefore, [plaintiff] is entitled to actual damages in an amount
sufficient to compensate him for any impairment of the property or loss of its
use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551–552 [176 P.2d 1], internal
citation omitted.)
• “[T]he law is well settled that there can be no conversion where an owner either
expressly or impliedly assents to or ratifies the taking, use or disposition of his
property.” (Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474
[139 P.2d 80], internal citations omitted.)
• “As to intentional invasions of the plaintiff’s interests, his consent negatives the
wrongful element of the defendant’s act, and prevents the existence of a tort.
‘The absence of lawful consent,’ said Mr. Justice Holmes, ‘is part of the
definition of an assault.’ The same is true of false imprisonment, conversion, and
trespass.” (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552 [51 Cal.Rptr.
575], internal citations omitted.)
• “If a defendant is authorized to make a specific use of a plaintiff’s property, use
in excess of that authorized may subject the defendant to liability for conversion,
if such use seriously violates another’s right to control the use of the property.”
(Duke, supra, 18 Cal.App.5th at p. 506.)
• “[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,
395 [58 Cal.Rptr.3d 516], internal citations omitted.)
• “Generally, conversion has been held to apply to the taking of intangible
property rights when ‘represented by documents, such as bonds, notes, bills of
exchange, stock certificates, and warehouse receipts.’ As one authority has
written, ‘courts have permitted a recovery for conversion of assets reflected in
such documents as accounts showing amounts owed, life insurance policies, and
other evidentiary documents. These cases are far removed from the paradigm
case of physical conversion; they are essentially financial or economic tort cases,
not physical interference cases.’ ” (Welco Electronics, Inc. v. Mora (2014) 223
Cal.App.4th 202, 209 [166 Cal.Rptr.3d 877], internal citation omitted.)
• “[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
1295
CACI No. 2100 CONVERSION
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].)
• “[T]here is no special rule preventing a depositor from pursuing a conversion
action against the bank that holds his or her money. . . . ‘The law applicable to
conversion of personal property applies to instruments,’ which includes
certificates of deposit.” (Fong, supra, 19 Cal.App.5th at pp. 232–233.)
• “Credit card, debit card, or PayPal information may be the subject of a
conversion.” (Welco Electronics, Inc., supra, 223 Cal.App.4th at p. 212, footnote
omitted.)
• “One who buys property in good faith from a party lacking title and the right to
sell may be liable for conversion. The remedies for conversion include specific
recovery of the property, damages, and a quieting of title.” (State Farm Mut.
Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,
1081–1082 [62 Cal.Rptr.2d 178], internal citations omitted.)
• “In order to establish a conversion, the plaintiff ‘must show an intention or
purpose to convert the goods and to exercise ownership over them, or to prevent
the owner from taking possession of his property.’ Thus, a necessary element of
the tort is an intent to exercise ownership over property which belongs to
another. For this reason, conversion is considered an intentional tort.” (Collin v.
American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812 [26 Cal.Rptr.2d
391], internal citations omitted.)
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
Cal.App.3d 1254, 1257 [209 Cal.Rptr. 309], internal citation omitted.)
• “A demand for return of the property is not a condition precedent to institution
of the action when possession was originally acquired by a tort as it was in this
case.” (Igauye v. Howard (1952) 114 Cal.App.2d 122, 127 [249 P.2d 558].)
• “ ‘Negligence in caring for the goods is not an act of dominion over them such
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
464, 477 [65 Cal.Rptr.2d 473], internal citations omitted.)
• “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,
Inc. (1997) 55 Cal.App.4th 1084, 1096 [64 Cal.Rptr.2d 457], internal citation
omitted.)
1296
CONVERSION CACI No. 2100
1297
2101. Trespass to Chattels—Essential Factual Elements
1300
2102. Presumed Measure of Damages for Conversion (Civ. Code,
§ 3336)
1301
CACI No. 2102 CONVERSION
such compensation must be fair, i.e., reasonable.” (Haines v. Parra (1987) 193
Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178], internal citations omitted.)
• “[A]lthough good faith and mistake are not defenses to an action for conversion,
the plaintiff’s damages will be reduced if the defendant returns the property or
the plaintiff otherwise recovers the property.” (Krusi v. Bear, Stearns & Co.
(1983) 144 Cal.App.3d 664, 673 [192 Cal.Rptr. 793], internal citations omitted.)
• “Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
• “Ordinarily ‘value of the property’ at the time of the conversion is determined by
its market value at the time. However, ‘[w]here certain property has a peculiar
value to a person recovering damages for deprivation thereof, or injury thereto,
that may be deemed to be its value . . . against a willful wrongdoer.’ ” (In re
Brian S. (1982) 130 Cal.App.3d 523, 530 [181 Cal.Rptr. 778], internal citations
omitted.)
• “In an action for damages for conversion, it is the rule that the plaintiff, although
owning but a limited or qualified interest in the property, may, as against a
stranger who has no ownership therein, recover the full value of the property
converted.” (Camp v. Ortega (1962) 209 Cal.App.2d 275, 286 [25 Cal.Rptr.
873], internal citations omitted.)
• “A plaintiff seeking recovery under the alternative provision of the statute must
therefore plead and prove the existence of ‘special circumstances which require a
different measure of damages to be applied.’ Having done so, the trier of fact
must then determine ‘whether it was reasonably forseeable to a prudent person,
having regard for the accompanying circumstances, that injury or damage would
likely result from his wrongful act.’ ” (Krueger v. Bank of America (1983) 145
Cal.App.3d 204, 215 [193 Cal.Rptr. 322], internal citations omitted.)
• “Defendants contend that the anticipated loss of profits is not ‘the natural,
reasonable and proximate result of the wrongful act complained of,’ within the
meaning of section 3336. Although no California case which has applied the
alternative measure of damages in a conversion case has specifically defined this
language, we are satisfied that its meaning is synonymous with the term
‘proximate cause’ or ‘legal cause.’ These terms mean, in essence, ‘that there be
some reasonable connection between the act or omission of the defendant and
the damage which the plaintiff has suffered.’ In determining whether this
connection exists, the question is whether it was reasonably foreseeable to a
prudent person, having regard for the accompanying circumstances, that injury or
damage would likely result from his wrongful act. This question being one of
fact to be determined generally by the trier of fact.” (Myers, supra, 233
Cal.App.2d at pp. 119–120, internal citations omitted.)
• “In exceptional circumstances, to avoid injustice, loss of profits may be the
measure.” (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 794 [62 Cal.Rptr.
553], internal citation omitted.)
1304
CONVERSION CACI No. 2102
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1906, 1907
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,
150.16, 150.40–150.41 (Matthew Bender)
5 California Points and Authorities, Ch. 51, Conversion (Matthew Bender)
2103–2199. Reserved for Future Use
1305
VF-2100. Conversion
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2005; Revised December 2009, December 2010, June 2011,
December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 2100, Conversion—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the case involves multiple items of personal property as to which the evidence
differs, users may need to modify question 2 to focus the jury on the different items.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2101–VF-2199. Reserved for Future Use
1307
ECONOMIC INTERFERENCE
1309
2200. Inducing Breach of Contract
(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.)
• “ ‘To recover damages for inducing a breach of contract, the plaintiff need not
establish that the defendant had full knowledge of the contract’s terms. Comment
i to Restatement Second of Torts, section 766, . . . states: “To be subject to
liability [for inducing a breach of contract], the actor must have knowledge of
the contract with which he is interfering and of the fact that he is interfering
with the performance of the contract.” ’ ” (Jenni Rivera Enterprises, LLC v.
Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 783 [249
Cal.Rptr.3d 122].)
• “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 [185 Cal.Rptr.3d
24], internal citation omitted.)
• “[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
P.2d 454], internal citations omitted.)
1311
CACI No. 2200 ECONOMIC INTERFERENCE
1312
2201. Intentional Interference With Contractual
Relations—Essential Factual Elements
1316
2202. Intentional Interference With Prospective Economic
Relations—Essential Factual Elements
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], internal citations omitted.)
• “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
Cal.App.4th 464, 477–478 [54 Cal.Rptr.2d 888], internal citations omitted.)
• “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.
603, internal citation omitted.)
• “[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.)
• “[T]o state a cause of action for intentional or negligent interference with
prospective economic advantage, it is not necessary to also plead a separate,
stand-alone tort cause of action.” (Redfearn v. Trader Joe’s Co. (2018) 20
Cal.App.5th 989, 1006 [230 Cal.Rptr.3d 98], internal citations omitted.)
1319
CACI No. 2202 ECONOMIC INTERFERENCE
• “[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
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,
546 [30 Cal.Rptr.2d 706], internal citations omitted.)
• “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 P.2d 728],
internal citations omitted.)
• “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
1320
ECONOMIC INTERFERENCE CACI No. 2202
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 [119
Cal.Rptr.3d 127], original italics.)
• “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].)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 854–855, 875
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference With Contract Or Prospective Economic Advantage,
¶¶ 5:463, 5:470 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-G, Intentional
Interference With Contract Or Economic Advantage, ¶ 11:138.5 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.100–40.105 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, §§ 122.23, 122.32
(Matthew Bender)
1321
2203. Intent
1322
2204. Negligent Interference With Prospective Economic
Relations
(2003) 29 Cal.4th 1134, 1159 fn. 11 [131 Cal.Rptr.2d 29, 63 P.3d 937].)
• “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.)
• “The fact that the defendant’s conduct was independently wrongful is an element
of the interference cause of action itself. In addition, the wrongful interfering act
can be independently tortious only as to a third party; it need not be
independently wrongful as to the plaintiff. Accordingly, . . . to state a cause of
action for intentional or negligent interference with prospective economic
advantage, it is not necessary to also plead a separate, stand-alone tort cause of
action.” (Redfearn, supra, 20 Cal.App.5th at p. 1006, internal citations omitted.)
• “[A]mong the criteria for establishing [the existence of] a duty of care is the
‘blameworthiness’ of the defendant’s conduct. For negligent interference, a
defendant’s conduct is blameworthy only if it was independently wrongful apart
from the interference itself.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179,
1187 [81 Cal.Rptr.2d 39], internal citations omitted.)
• “Under the privilege of free competition, a competitor is free to divert business
to himself as long as he uses fair and reasonable means. Thus, the plaintiff must
present facts indicating the defendant’s interference is somehow wrongful—i.e.,
based on facts that take the defendant’s actions out of the realm of legitimate
business transactions.” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman,
Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153–1154 [265 Cal.Rptr.
330], internal citations omitted.)
• “Since the crux of the competition privilege is that one can interfere with a
competitor’s prospective contractual relationship with a third party as long as the
interfering conduct is not independently wrongful (i.e., wrongful apart from the
fact of the interference itself), Della Penna’s requirement that a plaintiff plead
and prove such wrongful conduct in order to recover for intentional interference
with prospective economic advantage has resulted in a shift of burden of proof.
It is now the plaintiff’s burden to prove, as an element of the cause of action
itself, that the defendant’s conduct was independently wrongful and, therefore,
was not privileged rather than the defendant’s burden to prove, as an affirmative
defense, that it’s [sic] conduct was not independently wrongful and therefore was
privileged.” (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square
Venture Partners (1997) 52 Cal.App.4th 867, 881 [60 Cal.Rptr.2d 830].)
• “There are three formulations of the manager’s privilege: (1) absolute, (2) mixed
1325
CACI No. 2204 ECONOMIC INTERFERENCE
1326
2205. Intentional Interference With Expected
Inheritance—Essential Factual Elements
1328
ECONOMIC INTERFERENCE CACI No. 2205
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 854
14 Witkin, Summary of California Law (11th ed. 2017) Wills, § 37, 598, 599
Ross et al., California Practice Guide: Probate, Ch. 15-A, Will Contests, ¶ 15:115.6
et seq. (The Rutter Group)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133[2][b] (Matthew Bender)
2206–2209. Reserved for Future Use
1329
2210. Affirmative Defense—Privilege to Protect Own Economic
Interest
1331
VF-2200. Inducing Breach of Contract
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2200, Inducing Breach of Contract.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1333
VF-2200 ECONOMIC INTERFERENCE
1334
VF-2201. Intentional Interference With Contractual Relations
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2201, Intentional Interference With
Contractual Relations—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
1336
ECONOMIC INTERFERENCE VF-2201
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1337
VF-2202. Intentional Interference With Prospective Economic
Relations
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2202, Intentional Interference With
1339
VF-2202 ECONOMIC INTERFERENCE
1340
VF-2203. Negligent Interference With Prospective Economic
Relations
1341
VF-2203 ECONOMIC INTERFERENCE
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1342
ECONOMIC INTERFERENCE VF-2203
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2204, Negligent Interference With
Prospective Economic Relations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2204–VF-2299. Reserved for Future Use
1343
INSURANCE LITIGATION
1346
2300. Breach of Contractual Duty to Pay a Covered
Claim—Essential Factual Elements
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.83, 120.90, 120.115
(Matthew Bender)
1348
2301. Breach of Insurance Binder—Essential Factual Elements
1351
2302. Breach of Contract for Temporary Life Insurance—Essential
Factual Elements
• 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 (11th ed. 2017) Insurance, §§ 54–56
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2-D, When
Insurance Effective; Coverage of Losses Before Policy Issued, ¶¶ 2:134–2:137,
6:428–6:448 (The Rutter Group)
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies, § 9.07
(Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.19–120.20
(Matthew Bender)
1353
2303. Affirmative Defense—Insurance Policy Exclusion
New September 2003; Revised October 2008, June 2014, May 2021
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.
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. Identify with specificity the disputed factual issues the jury must
resolve to determine whether the exclusion applies.
This instruction can be used in cases involving either a third party liability or a first
party loss policy. Use CACI No. 2306, Covered and Excluded Risks—Predominant
Cause of Loss, rather than this instruction, if a first party loss policy is involved and
there is evidence that a loss was caused by both covered and excluded perils.
Sources and Authority
• “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
Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213].)
• 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
1354
INSURANCE LITIGATION CACI No. 2303
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].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 85, 88
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:911–15:912 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
4 California Insurance Law and Practice, Ch. 41, Liability Insurance in General,
§ 41.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502
(Matthew Bender)
1355
2304. Exception to Insurance Policy Exclusion—Burden of Proof
1356
2305. Lost or Destroyed Insurance Policy
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 (5th ed. 2012) Presentation at Trial, §§ 60–62, 71–72,
75, 77
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:978–15:994 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, § 8.8
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.42 (Matthew
Bender)
1358
2306. Covered and Excluded Risks—Predominant Cause of Loss
You have heard evidence that the claimed loss was caused by a
combination of covered and excluded risks under the insurance policy.
When a loss is caused by a combination of covered and excluded risks
under the policy, the loss is covered only if the most important or
predominant cause is a covered risk.
[[Name of defendant] claims that [name of plaintiff]’s loss is not covered
because the loss was caused by a risk excluded under the policy. To
succeed, [name of defendant] must prove that the most important or
predominant cause of the loss was [describe excluded peril or event],
which is a risk excluded under the policy.]
[or]
[[Name of plaintiff] claims that the loss was caused by a risk covered
under the policy. To succeed, [name of plaintiff] must prove that the most
important or predominant cause of the loss was [describe covered peril or
event], which is a risk covered under the policy.]
in motion—is the cause to which the loss is to be attributed, though the other
causes may follow it, and operate more immediately in producing the disaster.”
(Sabella v. Wisler (1963) 59 Cal.2d 21, 31–32 [27 Cal.Rptr. 689, 377 P.2d 889],
internal quotation marks and citation omitted.)
• “Sabella defined ‘efficient proximate cause’ alternatively as the ‘one that sets
others in motion,’ and as ‘the predominating or moving efficient cause.’ We use
the term ‘efficient proximate cause’ (meaning predominating cause) when
referring to the Sabella analysis because we believe the phrase ‘moving cause’
can be misconstrued to deny coverage erroneously, particularly when it is
understood literally to mean the ‘triggering’ cause.” (Garvey v. State Farm Fire
& Casualty Co. (1989) 48 Cal.3d 395, 403 [257 Cal.Rptr. 292, 770 P.2d 704],
internal citations omitted.)
• “The efficient proximate cause referred to in Sabella has also been called the
predominant cause or the most important cause of the loss. ‘By focusing the
causal inquiry on the most important cause of a loss, the efficient proximate
cause doctrine creates a “workable rule of coverage that provides a fair result
within the reasonable expectations of both the insured and the insurer.” ’ ”
(Vardanyan v. AMCO Ins. Co. (2015) 243 Cal.App.4th 779, 787 [197 Cal.Rptr.3d
195], internal citation omitted.)
• “[T]he ‘cause’ of loss in the context of a property insurance contract is totally
different from that in a liability policy. This distinction is critical to the
resolution of losses involving multiple causes. Frequently property losses occur
which involve more than one peril that might be considered legally
significant. . . . ‘The task becomes one of identifying the most important cause
of the loss and attributing the loss to that cause.’ [¶] On the other hand, the right
to coverage in the third party liability insurance context draws on traditional tort
concepts of fault, proximate cause and duty.” (Garvey, supra, 48 Cal.3d at pp.
406–407, internal quotation marks, italics, and citations omitted.)
• “[I]n an action upon an all-risks policy (unlike a specific peril policy), the
insured does not have to prove that the peril proximately causing his loss was
covered by the policy. This is because the policy covers all risks save for those
risks specifically excluded by the policy. The insurer, though, since it is denying
liability upon the policy, must prove the policy’s noncoverage of the insured’s
loss—that is, that the insured’s loss was proximately caused by a peril
specifically excluded from the coverage of the policy.” (Vardanyan, supra, 243
Cal.App.4th at pp. 796−797, original italics.)
• “A policy cannot extend coverage for a specified peril, then exclude coverage for
a loss caused by a combination of the covered peril and an excluded peril,
without regard to whether the covered peril was the predominant or efficient
proximate cause of the loss. Other Coverage 9 identifies the perils that are
covered when the loss involves collapse. If any other peril contributes to the
loss, whether the loss is covered or excluded depends upon which peril is the
predominant cause of the loss. To the extent the term ‘caused only by one or
more’ of the listed perils can be construed to mean the contribution of any
1360
INSURANCE LITIGATION CACI No. 2306
unlisted peril, in any way and to any degree, would result in the loss being
excluded from coverage, the provision is an unenforceable attempt to contract
around the efficient proximate cause doctrine. ¶ Accordingly, CACI No. 2306
. . . was the correct instruction to give to the jury.” Vardanyan, supra, 243
Cal.App.4th at p. 796.)
• “[T]he scope of coverage under an all-risk homeowner’s policy includes all risks
except those specifically excluded by the policy. When a loss is caused by a
combination of a covered and specifically excluded risks, the loss is covered if
the covered risk was the efficient proximate cause of the loss. . . . [T]he
question of what caused the loss is generally a question of fact, and the loss is
not covered if the covered risk was only a remote cause of the loss, or the
excluded risk was the efficient proximate, or predominate, cause.” (State Farm
Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2
Cal.Rptr.2d 183, 820 P.2d 285], internal citation omitted.)
• “[A]n insurer is not absolutely prohibited from drafting and enforcing policy
provisions that provide or leave intact coverage for some, but not all,
manifestations of a particular peril. This is, in fact, an everyday practice that
normally raises no questions regarding section 530 or the efficient proximate
cause doctrine.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747,
759 [27 Cal.Rptr.3d 648, 110 P.3d 903].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 6A-E, First
Party Coverages—Causation Principles, ¶¶ 6:134–6:143, 6:253 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.42
3 California Insurance Law & Practice, Ch. 9, Homeowners and Related Policies,
§ 36.42 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.113
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.50 (Matthew
Bender)
1361
2307. Insurance Agency Relationship Disputed
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
Cal.App.3d 752, 761 [269 Cal.Rptr. 617], internal citations omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2A, Agents and
Brokers, ¶¶ 2:12–2:24, 2:31–2:43 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Determining Whether Enforceable Obligation Exists, §§ 5.4–5.8
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Actions
Against Agents and Brokers, §§ 29.2–29.5
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies, § 9.02
(Matthew Bender)
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)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.114
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.18, 120.110,
120.170, 120.383, 120.392, 120.403 (Matthew Bender)
1364
2308. Affirmative Defense—Misrepresentation or Concealment in
Insurance Application
New September 2003; Revised April 2004, October 2004, June 2015, May 2020
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 the plaintiff
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 the insured failed
to appreciate the significance of some information known to him or her. (See
1365
CACI No. 2308 INSURANCE LITIGATION
Thompson v. Occidental Life Insurance Co. of California (1973) 9 Cal.3d 904, 916
[109 Cal.Rptr. 473, 513 P.2d 353].)
If it is alleged that omission occurred in circumstances other than a written
application, this instruction should be modified accordingly.
Sources and Authority
• Rescission of Contract. Civil Code section 1689(b)(1).
• Time of Insurer’s Rescission of Policy. Insurance Code section 650.
• Concealment by Failure to Communicate. Insurance Code section 330.
• Concealment Entitles Insurer to Rescind. Insurance Code section 331.
• Duty to Communicate in Good Faith. Insurance Code section 332.
• Materiality. Insurance Code section 334.
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “It is well established that material misrepresentations or concealment of
material facts in an application for insurance entitle an insurer to rescind an
insurance policy, even if the misrepresentations are not intentionally made.
Additionally, ‘[a] misrepresentation or concealment of a material fact in an
insurance application also establishes a complete defense in an action on the
policy. [Citations.] As with rescission, an insurer seeking to invalidate a policy
based on a material misrepresentation or concealment as a defense need not
show an intent to deceive. [Citations.]’ ” (Douglas, supra, 229 Cal.App.4th at p.
408, internal citations omitted.)
• “When the [automobile] insurer fails . . . to conduct . . . a reasonable
investigation [of insurability] it cannot assert . . . a right of rescission” under
section 650 of the Insurance Code as an affirmative defense to an action by an
injured third party. (Barrera v. State Farm Mutual Automobile Insurance Co.
(1969) 71 Cal.2d 659, 678 [79 Cal.Rptr. 106, 456 P.2d 674].)
• “[A]n insurer has a right to know all that the applicant for insurance knows
regarding the state of his health and medical history. Material misrepresentation
or concealment of such facts [is] grounds for rescission of the policy, and an
actual intent to deceive need not be shown. Materiality is determined solely by
the probable and reasonable effect [that] truthful answers would have had upon
the insurer. The fact that the insurer has demanded answers to specific questions
in an application for insurance is in itself usually sufficient to establish
materiality as a matter of law.” (Thompson, supra, 9 Cal.3d at pp. 915–916,
internal citations omitted.)
• “[A]lthough an insurer generally ‘has the right to rely on the applicant’s answers
without verifying their accuracy[,] . . . [¶] . . . [t]he insurer cannot rely on
answers given where the applicant-insured was misled by vague or ambiguous
1366
INSURANCE LITIGATION CACI No. 2308
1368
2309. Termination of Insurance Policy for Fraudulent Claim
[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/nonbinary pronoun] made a false claim. To establish this claim, [name
of insurer] must prove all of the following:
1. That [name of insured] made a claim for insurance benefits under
a policy with [name of insurer];
2. That [name of insured] represented to [name of insurer] that [insert
allegedly false representation];
3. That [name of insured]’s representation was not true;
4. That [name of insured] knew that the representation was not true;
5. That [name of insured] intended that [name of insurer] rely on this
representation in [investigating/paying] [name of insured]’s claim
for insurance benefits; and
6. That the representation that [insert allegedly false representation],
if true, would affect a reasonable insurance company’s
[investigation of/decision to pay] a claim for insurance benefits.
Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr.
568], original italics, internal citation omitted.)
• “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 Cal.Rptr.
639], internal citation omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 5-F, Rescission
by Insurer, ¶¶ 5:143–5:146, 5:153–5:159.1, 5:160, 5:249–5:260.5, 15:241–15:256
(The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
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)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250–120.251
(Matthew Bender)
2310–2319. Reserved for Future Use
1370
2320. Affirmative Defense—Failure to Provide Timely Notice
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because it did not receive timely
notice of the [lawsuit/[insert other]]. To succeed, [name of defendant] must
prove both of the following:
1. That [name of plaintiff] did not give [name of defendant] notice [or
that [name of defendant] did not receive notice by some other
means] [within the time specified in the policy/within a reasonable
time] of the [lawsuit/[insert other]]; and
2. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to give timely notice.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, with timely notice, it would have [taken steps that would
have substantially reduced or eliminated [name of plaintiff]’s liability] [or]
[settled for a substantially smaller amount].
underlying claim.” ’ ” (Lat v. Farmers New World Life Ins. Co. (2018) 29
Cal.App.5th 191, 196–197 [239 Cal.Rptr.3d 796], internal citations omitted.)
• “[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 Cal.3d
865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “Prejudice is a question of fact on which the insurer has the burden of proof.
The insured’s delay does not itself satisfy the burden of proof. The insurer
establishes actual and substantial prejudice by proving more than delayed or late
notice. It 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.” ’ ” (Pitzer College v. Indian Harbor Ins. Co. (2019) 8
Cal.5th 93, 105 [251 Cal.Rptr.3d 701, 447 P.3d 669].)
• “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].)
• “Under the notice prejudice rule, an insurance company may not deny an
insured’s claim under an occurrence policy based on lack of timely notice or
proof of claim unless it can show actual prejudice from the delay. The rule is
based on the rationale that ‘ “[t]he primary and essential part of the contract [is]
insurance coverage, not the procedure for determining liability . . .” [citations],
and that “the notice requirement serves to protect insurers from prejudice, . . .
not . . . to shield them from their contractual obligations” through “a technical
escape-hatch”.’ ” (Lat, supra, 29 Cal.App.5th at p. 196, internal citations
omitted.)
• “[The notice-prejudice rule] does not apply to every time limit on any insurance
policy. [¶] Where the policy provides that special coverage for a particular type
of claim is conditioned on express compliance with a reporting requirement, the
time limit is enforceable without proof of prejudice. Such reporting time limits
often are found in provisions for expanded liability coverage that the insurer
usually does not cover. The insurer makes an exception and extends special
coverage conditioned on compliance with a reporting requirement and other
conditions. The reporting requirement becomes ‘the written notice necessary to
trigger the expanded coverage afforded’ by the special policy provision.”
(Venoco, Inc. v. Gulf Underwriters Ins. Co. (2009) 175 Cal.App.4th 750, 760 [96
Cal.Rptr.3d 409], internal citations omitted.)
• “With respect to notice provisions, one Court of Appeal has explained: ‘[A]n
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INSURANCE LITIGATION CACI No. 2320
“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.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch.15-I, Trial
¶¶ 15:917–15:920 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, §§ 8.24–8.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.65[1]–[9] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.500
(Matthew Bender)
1373
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/nonbinary pronoun/its] defense. To succeed, [name
of defendant] must prove all of the following:
1. That [name of plaintiff] failed to cooperate in the defense of the
lawsuit against [him/her/nonbinary pronoun/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/nonbinary pronoun/its] defense.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, if [name of plaintiff] had cooperated, [name of defendant]
would have [taken steps that would have substantially reduced or
eliminated [name of plaintiff]’s liability] [or] [settled for a substantially
smaller amount].
• “[W]e apprehend that Campbell stands for these propositions: (1) that breach by
an insured of a cooperation . . . clause may not be asserted by an insurer unless
the insurer was substantially prejudiced thereby; (2) that prejudice is not
presumed as a matter of law from such breach; (3) that the burden of proving
prejudicial breach is on the insurer; and (4) that, although the issue of prejudice
is ordinarily one of fact, it may be established as a matter of law by the facts
proved.” (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134, 141
[85 Cal.Rptr. 693].)
• “ ‘[C]ooperation clauses serve an important purpose. “[A] condition of a policy
requiring the cooperation and assistance of the assured in opposing a claim or an
action lodged against him by an injured person is material to the risk and of the
utmost importance in a practical sense. Without such cooperation and assistance
the insurer is severely handicapped and may in some instances be absolutely
precluded from advancing any defense.” . . . “[S]uch provisions ‘enable the
[insurer] to possess itself of all knowledge, and all information as to other
sources and means of knowledge, in regard to facts, material to [its] rights, to
enable [it] to decide upon [its] obligations, and to protect [itself] against false
claims.’ ” . . . Where an insured violates a cooperation clause, the insurer’s
performance is excused if its ability to provide a defense has been substantially
prejudiced.’ ” (Belz v. Clarendon America Ins. Co. (2007) 158 Cal.App.4th 615,
626 [69 Cal.Rptr.3d 864].)
• “[A]n insurer, in order to establish it was prejudiced by the failure of the insured
to cooperate in his defense, must establish at the very least that if the
cooperation clause had not been breached there was a substantial likelihood the
trier of fact would have found in the insured’s favor.” (Billington v.
Interinsurance Exchange of Southern California (1969) 71 Cal.2d 728, 737 [79
Cal.Rptr. 326, 456 P.2d 982].)
• “[I]f the trial court finds . . . that the insurer failed to diligently seek its
insured’s presence a finding that he breached the cooperation clause would not
be justified.” (Billington, supra, 71 Cal.2d at p. 744.)
• “[P]rejudice is not shown simply by displaying end results; the probability that
such results could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch.15-I, Trial,
¶¶ 15:917–15:919 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Insured’s Role in Defense, §§ 11.2–11.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.64[1]–[11] (Matthew Bender)
1375
2322. Affirmative Defense—Insured’s Voluntary Payment
[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].
1378
2330. Implied Obligation of Good Faith and Fair Dealing Explained
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
overpower its duty to act in the trust’s best interests. An insurer, however, may
give its own interests consideration equal to that it gives the interests of its
insured; it is not required to disregard the interests of its shareholders and other
policyholders when evaluating claims; and it is not required to pay noncovered
claims, even though payment would be in the best interests of its insured.” (Love
v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148–1149 [271 Cal.Rptr.
246], internal citations omitted.)
• “[I]n California, an insurer has the same duty to act in good faith in the
uninsured motorist context as it does in any other insurance context.” (Maslo v.
Ameriprise Auto & Home Ins. (2014) 227 Cal.App.4th 626, 636 [173 Cal.Rptr.3d
854].)
• “ ‘[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
Cal.App.5th 545, 557–558 [204 Cal.Rptr.3d 433], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 340
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)
1381
CACI No. 2330 INSURANCE LITIGATION
1382
2331. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment (First Party)—Essential
Factual Elements
New September 2003; Revised December 2007, April 2008, December 2009,
December 2015
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
If there is a genuine issue as to the insurer’s liability under the policy for the claim
asserted by the insured, there can be no bad-faith liability imposed on the insurer for
advancing its side of that dispute. This is known as the “genuine dispute” doctrine.
The genuine-dispute doctrine is subsumed within the test of reasonableness or
proper cause (element 3). No specific instruction on the doctrine need be given. (See
McCoy v. Progressive West Ins. Co. (2009) 171 Cal.App.4th 785, 792–794 [90
Cal.Rptr.3d 74].)
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
1383
CACI No. 2331 INSURANCE LITIGATION
Co. in the City of New York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d
744]; cf. Carma Developers (Cal.), Inc. v. Marathon Development California,
Inc. (1992) 2 Cal.4th 342, 372 [6 Cal.Rptr.2d 467, 826 P.2d 710] [“[I]t has been
suggested the covenant has both a subjective and objective aspect—subjective
good faith and objective fair dealing. A party violates the covenant if it
subjectively lacks belief in the validity of its act or if its conduct is objectively
unreasonable.”].)
• “[W]hile an insurer’s subjective bad intentions are not a sufficient basis on
which to establish a bad faith cause of action, an insurer’s subjective mental
state may nonetheless be a circumstance to be considered in the evaluation of
the objective reasonableness of the insurer’s actions.” (Bosetti, supra, 175
Cal.App.4th at p. 1239, original italics.)
• “[A]n insured cannot maintain a claim for tortious breach of the implied
covenant of good faith and fair dealing absent a covered loss. If the insurer’s
investigation—adequate or not—results in a correct conclusion of no coverage,
no tort liability arises for breach of the implied convenant.” (Benavides v. State
Farm General Ins. Co. (2006) 136 Cal.App.4th 1241, 1250 [39 Cal.Rptr.3d 650],
internal citations omitted; cf. Brehm v. 21st Century Ins. Co. (2008) 166
Cal.App.4th 1225, 1236 [83 Cal.Rptr.3d 410] [“[B]reach of a specific provision
of the contract is not a necessary prerequisite to a claim for breach of the
implied covenant of good faith and fair dealing. . . . [E]ven an insurer that pays
the full limits of its policy may be liable for breach of the implied covenant, if
improper claims handling causes detriment to the insured”].)
• “ ‘[D]enial of a claim on a basis unfounded in the facts known to the insurer, or
contradicted by those facts, may be deemed unreasonable. “A trier of fact may
find that an insurer acted unreasonably if the insurer ignores evidence available
to it which supports the claim. The insurer may not just focus on those facts
which justify denial of the claim.” ’ ” (Maslo v. Ameriprise Auto & Home Ins.
(2014) 227 Cal.App.4th 626, 634 [173 Cal.Rptr.3d 854].)
• “We conclude . . . that the duty of good faith and fair dealing on the part of
defendant insurance companies is an absolute one. . . . [T]he nonperformance by
one party of its contractual duties cannot excuse a breach of the duty of good
faith and fair dealing by the other party while the contract between them is in
effect and not rescinded.” (Gruenberg, supra, 9 Cal.3d at p. 578.)
• “Thus, an insurer may be liable for bad faith in failing to attempt to effectuate a
prompt and fair settlement (1) where it unreasonably demands arbitration, or (2)
where it commits other wrongful conduct, such as failing to investigate a claim.
An insurer’s statutory duty to attempt to effectuate a prompt and fair settlement
is not abrogated simply because the insured’s damages do not plainly exceed the
policy limits. Nor is the insurer’s duty to investigate a claim excused by the
arbitrator’s finding that the amount of damages was lower than the insured’s
initial demand. Even where the amount of damages is lower than the policy
limits, an insurer may act unreasonably by failing to pay damages that are
certain and demanding arbitration on those damages.” (Maslo, supra, 227
1386
INSURANCE LITIGATION CACI No. 2331
1387
2332. Bad Faith (First Party)—Failure to Properly Investigate
Claim—Essential Factual Elements
New September 2003; Revised December 2005, December 2007, April 2008,
December 2015, June 2016
Directions for Use
This instruction sets forth a claim for breach of the implied covenant of good faith
and fair dealing based on the insurer’s failure or refusal to conduct a proper
investigation of the plaintiff’s claim. The claim alleges that the insurer acted
unreasonably, that is, without proper cause, by failing to properly investigate the
claim. (See Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146
Cal.App.4th 831, 837 [53 Cal.Rptr.3d 245].)
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “[A]n insurer may breach the covenant of good faith and fair dealing when it
1388
INSURANCE LITIGATION CACI No. 2332
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 medical
foundation.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 722 [68
Cal.Rptr.3d 746, 171 P.3d 1082], original italics.)
• “[W]hether an insurer breached its duty to investigate [is] a question of fact to
be determined by the particular circumstances of each case.” (Paulfrey v. Blue
Chip Stamps (1983) 150 Cal.App.3d 187, 196 [197 Cal.Rptr. 501].)
• “[L]iability in tort arises only if the conduct was unreasonable, that is, without
proper cause.” (Rappaport-Scott, supra, 146 Cal.App.4th at p. 837.)
• “[W]ithout actual presentation of a claim by the insured in compliance with
claims procedures contained in the policy, there is no duty imposed on the
insurer to investigate the claim.” (California Shoppers, Inc. v. Royal Globe
Insurance Co. (1985) 175 Cal.App.3d 1, 57 [221 Cal.Rptr. 171].)
• “It would seem reasonable that any responsibility to investigate on an insurer’s
part would not arise unless and until the threshold issue as to whether a claim
was filed, or a good faith effort to comply with claims procedure was made, has
been determined. In no event could an insured fail to keep his/her part of the
bargain in the first instance, and thereafter seek recovery for breach of a duty to
pay seeking punitive damages based on an insurer’s failure to investigate a
nonclaim.” (Paulfrey, supra, 150 Cal.App.3d at pp. 199–200.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 348
Croskey et al., California Practice Guide: Insurance Litigation, Chapter 12C-D, Bad
Faith—First Party Cases—Application—Matters Held “Unreasonable”,
¶¶ 12:848–12:904 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Investigating the Claim, §§ 9.2, 9.14–9.22
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.04[1]–[3] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.153, 120.184
(Matthew Bender)
1390
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of
Rights—Essential Factual Elements
1393
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable
Settlement Demand Within Liability Policy Limits—Essential
Factual Elements
interests.
New September 2003; Revised December 2007, June 2012, December 2012, June
2016, November 2021, May 2022
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. Use the first option for
element 6 if the plaintiff is seeking only the amount of the excess judgment. Use the
second option for element 6 if the plaintiff is seeking damages separate from or in
addition to the excess judgment. (See Howard v. American National Fire Ins. Co.
(2010) 187 Cal.App.4th 498, 527 [115 Cal.Rptr.3d 42].) If there has been both an
excess judgment and other damages, modify element 6 as appropriate to address all
damages involved in the case.
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case. For example, if the plaintiff is the insured’s assignee, modify the
instruction as needed to reflect the underlying facts and relationship between the
parties.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
If it is alleged that a demand was made in excess of the policy limits and there is a
claim that the defendant should have contributed the policy limits toward a
settlement, 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.
Sources and Authority
• “[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
1395
CACI No. 2334 INSURANCE LITIGATION
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 v. California State
Auto. Assn. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123 Cal.Rptr. 288,
538 P.2d 744], internal citation omitted.)
• “[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 v. Maryland Cas. Co. (2002) 27 Cal.4th 718, 724–725 [117
Cal.Rptr.2d 318, 41 P.3d 128].)
• “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
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
(2007) 146 Cal.App.4th 831, 836 [53 Cal.Rptr.3d 245], internal citations
omitted.)
• “An insured’s claim for bad faith based on an alleged wrongful refusal to settle
1396
INSURANCE LITIGATION CACI No. 2334
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 v. Mercury General Corp. (2014) 231 Cal.App.4th 414,
425 [179 Cal.Rptr.3d 717], internal citations omitted.)
• “An insurer’s duty to accept a reasonable settlement offer is not absolute. ‘ “[I]n
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.” ’ [¶] Therefore, failing to accept a reasonable settlement offer does not
necessarily constitute bad faith. ‘[T]he crucial issue is . . . the basis for the
insurer’s decision to reject an offer of settlement.’ ” (Pinto v. Farmers Ins.
Exchange (2021) 61 Cal.App.5th 676, 688 [276 Cal.Rptr.3d 13], original italics,
internal citations omitted.)
• “A claim for bad faith based on the wrongful refusal to settle thus requires proof
the insurer unreasonably failed to accept an offer. [¶] Simply failing to settle
does not meet this standard.” (Pinto, supra, 61 Cal.App.5th at p. 688, internal
citation omitted.)
• “To be liable for bad faith, an insurer must not only cause the insured’s
damages, it must act or fail to act without proper cause, for example by placing
its own interests above those of its insured.” (Pinto, supra, 61 Cal.App.5th at p.
692.)
• “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
Cal.App.4th at p. 434.)
1397
CACI No. 2334 INSURANCE LITIGATION
• “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 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, supra, 187
Cal.App.4th at p. 527, internal citations omitted.)
• “ ‘An insurer who denies coverage does so at its own risk and although its
position may not have been entirely groundless, if the denial is found to be
wrongful it is liable for the full amount which will compensate the insured for
all the detriment caused by the insurer’s breach of the express and implied
obligations of the contract.’ Accordingly, contrary to the defendant’s suggestion,
an insurer’s ‘good faith,’ though erroneous, belief in noncoverage affords no
defense to liability flowing from the insurer’s refusal to accept a reasonable
settlement offer.” (Johansen, supra, 15 Cal.3d at pp. 15−16, original italics,
footnotes and internal citation omitted.)
• “[W]here the kind of claim asserted is not covered by the insurance contract
(and not simply the amount of the claim), an insurer has no obligation to pay
money in settlement of a noncovered claim, because ‘The insurer does not . . .
insure the entire range of an insured’s well-being, outside the scope of and
unrelated to the insurance policy, with respect to paying third party claims.’ ”
(Dewitt v. Monterey Ins. Co. (2012) 204 Cal.App.4th 233, 244 [138 Cal.Rptr.3d
705], original italics.)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
(1981) 30 Cal.3d 220, 243 [178 Cal.Rptr. 343, 636 P.2d 32], internal citation
omitted.)
• “An insurer that breaches its duty of reasonable settlement is liable for all the
insured’s damages proximately caused by the breach, regardless of policy limits.
Where the underlying action has proceeded to trial and a judgment in excess of
the policy limits has been entered against the insured, the insurer is ordinarily
liable to its insured for the entire amount of that judgment, excluding any
punitive damages awarded.” (Hamilton, supra, 27 Cal.4th at p. 725, internal
citations omitted.)
• “[I]nsurers do have a ‘selfish’ interest (that is, one that is peculiar to themselves)
1398
INSURANCE LITIGATION CACI No. 2334
1400
2335. Bad Faith—Advice of Counsel
[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.]
1403
2336. Bad Faith (Third Party)—Unreasonable Failure to
Defend—Essential Factual Elements
New October 2004; Revised December 2007, December 2014, December 2015
Directions for Use
The instructions in this series assume that the plaintiff is an insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
The court will decide the issue of whether the claim was potentially covered by the
policy. (See California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175
Cal.App.3d 1, 52 [221 Cal.Rptr. 171].) If coverage depends on an unresolved
dispute over a factual question, the very existence of that dispute establishes a
possibility of coverage and thus a duty to defend. (North Counties Engineering, Inc.
v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 922 [169 Cal.Rptr.3d
726].) Therefore, the jury does not resolve factual disputes that determine coverage.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “A breach of the duty to defend in itself constitutes only a breach of contract,
but it may also violate the covenant of good faith and fair dealing where it
involves unreasonable conduct or an action taken without proper cause. On the
other hand, ‘[i]f the insurer’s refusal to defend is reasonable, no liability will
1404
INSURANCE LITIGATION CACI No. 2336
result.’ ” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. 78
Cal.App.4th 847, 881 [93 Cal.Rptr.2d 364], internal citations omitted.)
• “To prevail in an action seeking declaratory relief on the question of the duty to
defend, ‘the insured must prove the existence of a potential for coverage, while
the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy
coverage; the insurer must prove it cannot.’ The duty to defend exists if the
insurer ‘becomes aware of, or if the third party lawsuit pleads, facts giving rise
to the potential for coverage under the insuring agreement.’ ” (Delgado v.
Interinsurance Exchange of Automobile Club of Southern California (2009) 47
Cal.4th 302, 308 [97 Cal.Rptr.3d 298, 211 P.3d 1083], original italics, internal
citation omitted.)
• “ ‘[A]n insurer has a duty to defend an insured if it becomes aware of, or if the
third party lawsuit pleads, facts giving rise to the potential for coverage under
the insuring agreement. . . . This duty . . . is separate from and broader than
the insurer’s duty to indemnify. . . .’ ‘ “[F]or an insurer, the existence of a duty
to defend turns not upon the ultimate adjudication of coverage under its policy
of insurance, but upon those facts known by the insurer at the inception of a
third party lawsuit. . . . Hence, the duty ‘may exist even where coverage is in
doubt and ultimately does not develop.’ . . .” . . .’ ” (State Farm Fire &
Casualty Co. v. Superior Court (2008) 164 Cal.App.4th 317, 323 [78 Cal.Rptr.3d
828], internal citations omitted.)
• “If any facts stated or fairly inferable in the complaint, or otherwise known or
discovered by the insurer, suggest a claim potentially covered by the policy, the
insurer’s duty to defend arises and is not extinguished until the insurer negates
all facts suggesting potential coverage. On the other hand, if, as a matter of law,
neither the complaint nor the known extrinsic facts indicate any basis for
potential coverage, the duty to defend does not arise in the first instance.” (GGIS
Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1506 [86
Cal.Rptr.3d 515].)
• “ ‘The proper focus is on the facts alleged in the complaint, rather than the
alleged theories for recovery. . . . “The ultimate question is whether the facts
alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.” ’ ”
(Albert v. Truck Ins. Exchange (2018) 23 Cal. App. 5th 367, 378 [232
Cal.Rptr.3d 774].)
• “The duty to defend was not a question of fact for the jury; the trial court was
compelled to determine as a matter of law that [indemnitee]’s claim was
embraced by the indemnity agreement.” (Centex Homes v. R-Help Construction
Co., Inc. (2019) 32 Cal.App.5th 1230, 1236 [244 Cal.Rptr.3d 574].)
• “A duty to defend can be extinguished only prospectively and not
retrospectively.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
(2016) 6 Cal.App.5th 1258, 1284 [212 Cal.Rptr.3d 231].)
• “[F]acts known to the insurer and extrinsic to the third party complaint can
1405
CACI No. 2336 INSURANCE LITIGATION
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
coverage, but information available later shows otherwise, a duty to defend may
then arise.” (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009)
180 Cal.App.4th 18, 26 [102 Cal.Rptr.3d 591], internal citations omitted.)
• “The duty does not depend on the labels given to the causes of action in the
underlying claims against the insured; ‘instead it rests on whether the alleged
facts or known extrinsic facts reveal a possibility that the claim may be covered
by the policy.’ ” (Travelers Property Casualty Co. of America v. Charlotte Russe
Holding, Inc. (2012) 207 Cal.App.4th 969, 976 [144 Cal.Rptr.3d 12], 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
Cal.App.4th 825, 831–832 [61 Cal.Rptr.2d 909], internal citations omitted.)
• “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.)
1406
INSURANCE LITIGATION CACI No. 2336
• “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.)
• “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
1220, 1231 [184 Cal.Rptr.3d 394], internal citations omitted.)
• “No tender of defense is required if the insurer has already denied coverage of
the claim. In such cases, notice of suit and tender of the defense are excused
because other insurer has already expressed its unwillingness to undertake the
defense.” (Croskey et al., California Practice Guide: Insurance Litigation, Ch.
12D-G, Insurer’s Reliance on Advice of Counsel ¶ 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
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, §§ 82.10–82.16 (Matthew Bender)
1407
CACI No. 2336 INSURANCE LITIGATION
1408
2337. Factors to Consider in Evaluating Insurer’s Conduct
conduct was unreasonable or without proper cause. (See Jordan v. Allstate Ins. Co.
(2007) 148 Cal.App.4th 1062, 1078 [56 Cal.Rptr.3d 312], internal citations omitted.)
Include only the factors that are relevant to the case.
Sources and Authority
• Bad-Faith Insurance Practices. Insurance Code section 790.03.
• “[Plaintiff] was not seeking to recover on a claim based on a violation of
Insurance Code section 790.03, subdivision (h). Rather, her claim was based on
a claim of common law bad faith arising from [defendant]’s breach of the
implied covenant of good faith and fair dealing which she is entitled to pursue.
[Plaintiff]’s reliance upon the [expert’s] declaration was for the purpose of
providing evidence supporting her contention that [defendant] had breached the
implied covenant by its actions. This is a proper use of evidence of an insurer’s
violations of the statute and the corresponding regulations.” (Jordan, supra, 148
Cal.App.4th at p. 1078, original italics, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance §§ 360, 361, 365,
461
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 14-A, Statutory
and Administrative Regulation—The California Regulator, ¶ 14:109 et seq. (The
Rutter Group)
1 California Liability Insurance Practice: Claims and Litigation, Ch. 24, General
Principles of Contract and Bad Faith (Cont.Ed.Bar) § 24.30 et seq.
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.25
(Matthew Bender)
1 Rushing et al., Matthew Bender Practice Guide: California Unfair Competition
and Business Torts, Ch. 2, Unfair Competition, 2.11 (Matthew Bender)
2338–2349. Reserved for Future Use
1411
2350. Damages for Bad Faith
For instructions on damages for pain and suffering, see CACI No. 3905, Items of
Noneconomic Damage, and CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage). For instructions on punitive damages,
see other instructions in the Damages series.
Sources and Authority
• “When an insurer’s tortious conduct reasonably compels the insured to retain an
attorney to obtain the benefits due under a policy, it follows that the insurer
should be liable in a tort action for that expense. The attorney’s fees are an
economic loss—damages—proximately caused by the tort.” (Brandt v. Superior
Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].)
• “The fees recoverable . . . may not exceed the amount attributable to the
attorney’s efforts to obtain the rejected payment due on the insurance contract.
Fees attributable to obtaining any portion of the plaintiff’s award which exceeds
the amount due under the policy are not recoverable. [¶] Since the attorney’s
fees are recoverable as damages, the determination of the recoverable fees must
be made by the trier of fact unless the parties stipulate otherwise.” (Brandt,
supra, 37 Cal.3d at p. 819.)
• “If . . . the matter is to be presented to the jury, the court should instruct along
the following lines: ‘If you find (1) that the plaintiff is entitled to recover on his
cause of action for breach of the implied covenant of good faith and fair dealing,
and (2) that because of such breach it was reasonably necessary for the plaintiff
to employ the services of an attorney to collect the benefits due under the policy,
then and only then is the plaintiff entitled to an award for attorney’s fees
incurred to obtain the policy benefits, which award must not include attorney’s
fees incurred to recover any other portion of the verdict.’ ” (Brandt, supra, 37
Cal.3d at p. 820.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 13-B,
Extracontractual Compensatory Damages, ¶¶ 13:120–13:144 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.70–24.71
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[5][c] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 25, Uninsured Motorist Bad Faith
Litigation, §§ 25.40–25.44 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
1413
2351. Insurer’s Claim for Reimbursement of Costs of Defense of
Uncovered Claims
triable issue of material fact that it can. It must be allowed the attempt.” (Buss,
supra, 16 Cal.4th at p. 61.)
• “By law applied in hindsight, courts can determine that no potential for
coverage, and thus no duty to defend, ever existed. If that conclusion is reached,
the insurer, having reserved its right, may recover from its insured the costs it
expended to provide a defense which, under its contract of insurance, it was
never obliged to furnish.” (Scottsdale Ins. Co. v. MV Transportation (2005) 36
Cal.4th 643, 658 [31 Cal.Rptr.3d 147, 115 P.3d 460].)
• “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.
(2016) 6 Cal.App.5th 1258, 1285 [212 Cal.Rptr.3d 231], original italics.)
• “ ‘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
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 381
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.123
1415
CACI No. 2351 INSURANCE LITIGATION
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.51 (Matthew
Bender)
2352–2359. Reserved for Future Use
1416
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 of
plaintiff] must prove all of the following:
1. That [name of plaintiff] brought a lawsuit for [personal injury/
wrongful death/property damage] against [name of insured] and a
judgment was entered against [name of insured];
2. That [all or part of] [name of insured]’s liability under the
judgment is covered by an insurance policy with [name of
defendant]; and
3. The amount of the judgment [covered by the policy].
trial or by ‘written agreement of the insured, the claimant and the company.’ ”
(Rose v. Royal Insurance Co. of America (1991) 2 Cal.App.4th 709, 716–717 [3
Cal.Rptr.2d 483].)
• “[A] trial does not have to be adversarial to be considered an ‘actual trial’ under
the ‘no action’ clause, or to be considered binding against the insurer in a
section 11580 proceeding. . . . [W]e conclude that the term ‘actual trial’ in the
standard ‘no action’ clause has two components: (1) an independent adjudication
of facts based on an evidentiary showing; and (2) a process that does not create
the potential for abuse, fraud or collusion.” (National Union Fire Insurance Co.
v. Lynette C. (1994) 27 Cal.App.4th 1434, 1449 [33 Cal.Rptr.2d 496].)
• “A defending insurer cannot be bound by a settlement made without its
participation and without any actual commitment on its insured’s part to pay the
judgment, even where the settlement has been found to be in good faith for
purposes of [Code of Civil Procedure] section 877.6.” (Hamilton v. Maryland
Casualty Co. (2002) 27 Cal.4th 718, 730 [117 Cal.Rptr.2d 318, 41 P.3d 128].)
• “[W]hen . . . a liability insurer wrongfully denies coverage or refuses to provide
a defense, then the insured is free to negotiate the best possible settlement
consistent with his or her interests, including a stipulated judgment accompanied
by a covenant not to execute. Such a settlement will raise an evidentiary
presumption in favor of the insured (or the insured’s assignee) with respect to
the existence and amount of the insured’s liability. The effect of such
presumption is to shift the burden of proof to the insurer to prove that the
settlement was unreasonable or the product of fraud or collusion. If the insurer is
unable to meet that burden of proof then the stipulated judgment will be binding
on the insurer and the policy provision proscribing a direct action against an
insurer except upon a judgment against the insured after an ‘actual trial’ will not
bar enforcement of the judgment.” (Pruyn v. Agricultural Insurance Co. (1995)
36 Cal.App.4th 500, 509 [42 Cal.Rptr.2d 295].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-K, Judgment
Creditor’s Action to Enforce Judgment Debtor’s Liability Insurance,
¶¶ 15:1028–15:1077, 15:1123–15:1136 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Claimant’s Direct Action for Recovery of Judgment, §§ 27.1–27.7, 27.17–27.27
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§§ 41.60–41.63 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.186, 120.198,
120.206 (Matthew Bender)
1419
2361. Negligent Failure to Obtain Insurance Coverage—Essential
Factual Elements
1421
VF-2300. Breach of Contractual Duty to Pay a Covered Claim
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.
1422
VF-2301. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, April 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2331, Breach of the Implied Obligation of
Good Faith and Fair Dealing—Failure or Delay in Payment (First
Party)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1424
INSURANCE LITIGATION VF-2301
1425
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform
Insured of Rights
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2333, Bad Faith (First Party)—Breach of
Duty to Inform Insured of Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1427
VF-2303 INSURANCE LITIGATION
1428
VF-2304. Bad Faith (Third Party)—Refusal to Accept Reasonable
Settlement Demand Within Liability Policy Limits
6. [or]
6. [Was [name of defendant]’s failure to accept the settlement
demand a substantial factor in causing harm to [name of
plaintiff]?]
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Amount of judgment entered against [name of plaintiff]
[a. $ ]
[b. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[b. Total Past Economic Damages: $ ]
[c. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[c. Total Future Economic Damages: $ ]
[d. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[e. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[e. 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
1430
INSURANCE LITIGATION VF-2304
1431
WRONGFUL TERMINATION
1434
2400. Breach of Employment Contract—Unspecified Term—“At-
Will” Presumption
1436
2401. Breach of Employment Contract—Unspecified Term—Actual
or Constructive Discharge—Essential Factual Elements
Elements 2 and 4 may be modified for adverse employment actions other than
discharge, for example demotion. The California Supreme Court has extended the
implied contract theory to encompass adverse employment actions 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].) See CACI No. 2509, “Adverse
Employment Action” Explained.
For an instruction on damages, give CACI No. 3903P, Damages From Employer for
Wrongful Discharge (Economic Damage). See also CACI No. 304, Oral or Written
Contract Terms, and CACI No. 305, Implied-in-Fact Contract.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Contractual Conditions Precedent. Civil Code section 1439.
• “Where there is no express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an
actual mutual understanding on particular terms and conditions of employment.
If such evidence logically permits conflicting inferences, a question of fact is
presented. But where the undisputed facts negate the existence or the breach of
the contract claimed, summary judgment is proper.” (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal
citations omitted.)
• The employee bears the ultimate burden of proving that he or she was
wrongfully terminated. (Pugh v. See’s Candies, Inc. (Pugh I) (1981) 116
Cal.App.3d 311, 330 [171 Cal.Rptr. 917].)
• “The presumption that an employment relationship of indefinite duration is
intended to be terminable at will is therefore ‘subject, like any presumption, to
contrary evidence. This may take the form of an agreement, express or implied,
that . . . the employment relationship will continue indefinitely, pending the
occurrence of some event such as the employer’s dissatisfaction with the
employee’s services or the existence of some “cause” for termination.’ ” (Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765
P.2d 373], internal citation omitted.)
• “In Foley, we identified several factors, apart from express terms, that may bear
upon ‘the existence and content of an . . . [implied-in-fact] agreement’ placing
limits on the employer’s right to discharge an employee. These factors might
include ‘ “the personnel policies or practices of the employer, the employee’s
longevity of service, actions or communications by the employer reflecting
assurances of continued employment, and the practices of the industry in which
the employee is engaged.” ’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 336–337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “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
1438
WRONGFUL TERMINATION CACI No. 2401
• “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, original italics.)
• “ ‘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 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,
474 P.2d 689], internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch.4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:8, 4:15 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation Ch.4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:65, 4:81, 4:105 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:273 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.4–8.20B
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.05, 60.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.10, 249.15, 249.43, 249.90, Ch. 250,
Employment Law: Wage and Hour Disputes, § 250.66 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10, 50.11 (Matthew
Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.28, 100.29, 100.31 (Matthew
1440
WRONGFUL TERMINATION CACI No. 2401
Bender)
California Civil Practice: Employment Litigation §§ 6:9–6:11 (Thomson Reuters)
1441
CACI No. 2401 WRONGFUL TERMINATION
1442
2403. Breach of Employment Contract—Unspecified
Term—Implied-in-Fact Promise Not to Discharge Without Good
Cause
New September 2003; Revised April 2009, June 2013, May 2020
Directions for Use
This instruction should be read when an employee is basing the 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].)
Sources and Authority
• 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.”
1443
CACI No. 2403 WRONGFUL TERMINATION
(Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 380 [84
Cal.Rptr.3d 111], internal citations omitted.)
• “[M]ost cases applying California law . . . have held that an at-will provision in
an express written agreement, signed by the employee, cannot be overcome by
proof of an implied contrary understanding.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 340 fn. 10 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original
italics.)
• “Where there is no express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an
actual mutual understanding on particular terms and conditions of employment.
If such evidence logically permits conflicting inferences, a question of fact is
presented.” (Guz, supra, 24 Cal.4th at p. 337, internal citations omitted.)
• “The question whether such an implied-in-fact agreement [to termination only
for cause] exists is a factual question for the trier of fact unless the undisputed
facts can support only one reasonable conclusion.” (Faigin, supra, 211
Cal.App.4th at p. 739.)
• “In the employment context, factors apart from consideration and express terms
may be used to ascertain the existence and content of an employment agreement,
including ‘the personnel policies or practices of the employer, the employee’s
longevity of service, actions or communications by the employer reflecting
assurances of continued employment, and the practices of the industry in which
the employee is engaged.’ ” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d
654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)
• “[A]n employee’s mere passage of time in the employer’s service, even where
marked with tangible indicia that the employer approves the employee’s work,
cannot alone form an implied-in-fact contract that the employee is no longer at
will. Absent other evidence of the employer’s intent, longevity, raises and
promotions are their own rewards for the employee’s continuing valued service;
they do not, in and of themselves, additionally constitute a contractual guarantee
of future employment security.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 341–342 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original italics.)
• “We agree that disclaimer language in an employee handbook or policy manual
does not necessarily mean an employee is employed at will. But even if a
handbook disclaimer is not controlling in every case, neither can such a
provision be ignored in determining whether the parties’ conduct was intended,
and reasonably understood, to create binding limits on an employer’s statutory
right to terminate the relationship at will. Like any direct expression of employer
intent, communicated to employees and intended to apply to them, such
language must be taken into account, along with all other pertinent evidence, in
ascertaining the terms on which a worker was employed.” (Guz, supra, 24
Cal.4th at p. 340, internal citations omitted.)
• “Conceptually, there is no rational reason why an employer’s policy that its
employees will not be demoted except for good cause, like a policy restricting
1444
WRONGFUL TERMINATION CACI No. 2403
1445
2404. Breach of Employment Contract—Unspecified Term—“Good
Cause” Defined
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 219–221, 244
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:273, 4:300 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.25
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21[14][c], 249.63 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.22, 100.27, 100.29, 100.34 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1448
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/nonbinary pronoun] 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/nonbinary
pronoun/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.
and (3) did the employer have reasonable grounds for believing the employee
had engaged in the misconduct.’ ‘Cotran did not delineate the earmarks of an
appropriate investigation but noted that investigative fairness contemplates
listening to both sides and providing employees a fair opportunity to present
their position and to correct or contradict relevant statements prejudicial to their
case, without the procedural formalities of a trial.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 872–873 [172 Cal.Rptr.3d 732], internal
citations omitted.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either on
the ground that it is pretextual and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 329–330
[171 Cal.Rptr. 917], disapproved on other grounds in Guz v. Bechtel National
Inc. (2000) 24 Cal.4th 317, 350−351 [100 Cal. Rptr. 2d 352, 8 P.3d 1089],
internal citation omitted.)
• “[Plaintiff] contends that it was up to a jury to decide whether the [defendant]
‘honestly and objectively reasonably’ believed that her conduct was egregious
enough to be ‘gross misconduct’ and that the court therefore erred in granting
summary adjudication of her fourth cause of action for breach of contract.
Although the elements of the Cotran standard are triable to the jury, ‘if the facts
are undisputed or admit of only one conclusion, then summary judgment may be
entered . . . .’ ” (Serri, supra, 226 Cal.App.4th at p. 873.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 219, 220, 221
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:271, 4:289 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[5][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21, 249.43 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.25, 100.29 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1450
2406. Breach of Employment Contract—Unspecified
Term—Damages
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may not
be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-Fox
Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted.)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employee but
also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d
426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In cases for wrongful demotion, the measure of damages is “the difference in
compensation before and after the demotion.” (Scott v. Pac. Gas & Elec. Co.
(1995) 11 Cal.4th 454, 468 [46 Cal.Rptr.2d 427, 904 P.2d 834].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 284, 285, 286
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[3] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)
2407–2419. Reserved for Future Use
1452
2420. Breach of Employment Contract—Specified Term—Essential
Factual Elements
• “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, Ch. 4-A, Employment
Presumed at Will, ¶¶ 4:2, 4:47 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.2–8.20
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
1454
2421. Breach of Employment Contract—Specified Term—Good-
Cause Defense (Lab. Code, § 2924)
who has a contract for a specified term may not be terminated prior to the term’s
expiration based on an honest but mistaken belief that the employee breached
the contract: Such a right would treat a contract with a specified term no better
than an implied contract that has no term; such a right would dilute the
enforceability of the contract’s specified term because an employee who had
properly performed his or her contract could still be terminated before the term’s
end; and such a right would run afoul of the plain language of Labor Code
section 2924, which allows termination of an employment for a specified term
only ‘in case of any willful breach of duty . . . habitual neglect of . . . duty or
continued incapacity to perform it.’ Termination of employment for a specified
term, before the end of the term, based solely on the mistaken belief of a breach,
cannot be reconciled with either the governing statute’s text or settled principles
of contract law.” (Khajavi, supra, 84 Cal.App.4th at pp. 38–39.)
• Good cause in the context of wrongful termination based on an implied contract
“ ‘is quite different from the standard applicable in determining the propriety of
an employee’s termination under a contract for a specified term.’ ” (Khajavi,
supra, 84 Cal.App.4th at p. 58, internal citations omitted.)
• “An employer is justified in discharging his employee, when the latter fails to
perform his duty, even though injury does not result to the employer as a result
of the employee’s failure to do his duty.” (Bank of America National Trust &
Savings Ass’n v. Republic Productions, Inc. (1941) 44 Cal.App.2d 651, 654 [112
P.2d 972], internal citation omitted.)
• “To terminate an employment without the expiration of its contractual term
‘there must be good cause.’ The grounds for terminating such an employment
are stated in Labor Code section 2924. . . . It is therefore not every deviation of
the employee from the standard of performance sought by his employer that will
justify a discharge. There must be some ‘wilful act or wilful misconduct . . .’
when the employee uses his best efforts to serve the interests of his employer.”
(Holtzendorff v. Housing Authority of the City of Los Angeles (1967) 250
Cal.App.2d 596, 610 [58 Cal.Rptr. 886], internal citation omitted.)
• “ ‘Willful’ disobedience of a specific, peremptory instruction of the master, if the
instruction be reasonable and consistent with the contract, is a breach of duty—a
breach of the contract of service; and, like any other breach of the contract, of
itself entitles the master to renounce the contract of employment.” (May v. New
York Motion Picture Corp. (1920) 45 Cal.App. 396, 403 [187 P. 785].)
• “An employment agreement that specifies the length of employment (e.g., two
years) limits the employer’s right to discharge the employee within that period.
Unless the agreement provides otherwise (e.g., by reserving the right to
discharge for cause), the employer may terminate employment for a specified
term only for [the grounds specified in Labor Code section 2924].” (Chin et al.,
California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:47 (The Rutter Group)
1456
WRONGFUL TERMINATION CACI No. 2421
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:47, 4:56, 4:57 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:47, 4:56, 4:57 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and
Discipline Claims, § 62.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63 (Matthew Bender)
1457
2422. Breach of Employment Contract—Specified
Term—Damages
1459
2423. Breach of Implied Covenant of Good Faith and Fair
Dealing—Employment Contract—Essential Factual Elements
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-D, Implied
Covenant of Good Faith and Fair Dealing, ¶¶ 4:330, 4:331, 4:340, 4:343, 4:346
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.27–8.28
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.02[2][c], 60.06 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.14 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:21–6:22 (Thomson Reuters)
1462
2424. Affirmative Defense—Breach of the Implied Covenant of
Good Faith and Fair Dealing—Good Faith Though Mistaken Belief
(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, supra, 223
Cal.App.3d at p. 1521 [upholding jury instruction].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:5 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶ 4:271 (The Rutter Group)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.30 (Matthew Bender)
2425–2429. Reserved for Future Use
1464
2430. Wrongful Discharge in Violation of Public Policy—Essential
Factual Elements
New September 2003; Revised June 2013, June 2014, December 2014, November
2018, May 2020
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 there are two causation elements. First, there must be causation between
the public policy violation and the discharge (element 3). This instruction uses the
term “substantial motivating reason” to express this causation element. “[S]ubstantial
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.)
Element 5 then expresses a second causation requirement; that the plaintiff was
harmed as a result of the wrongful discharge.
If plaintiff alleges the plaintiff 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
1465
CACI No. 2430 WRONGFUL TERMINATION
• “[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, supra, 19 Cal.4th at p. 80, fn. 6; accord Stevenson, supra, 16
Cal.4th at p. 889.)
• “[T]ermination of an employee most clearly violates public policy when it
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,
supra, 27 Cal.3d at p. 178.)
• “[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 v. Allen (2014) 229 Cal.App.4th 144, 157 [176 Cal.Rptr.3d
824].)
• “Whether an employer has conducted an adequate investigation before
dismissing an employee for an unlawful purpose is generally a question of fact
for the jury.” (Garcia-Brower, supra, 55 Cal.App.5th at p. 974.)
• “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.
1467
CACI No. 2430 WRONGFUL TERMINATION
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172
Cal.Rptr.3d 686], original italics.)
• “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, supra,
226 Cal.App.4th at p. 1351.)
• “To establish a claim for wrongful termination in violation of public policy, an
employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial
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 Cal.App.4th
1334, 1341 [166 Cal.Rptr.3d 720].)
• “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
Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d 258].)
• “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,
supra, 226 Cal.App.4th at p. 1349.)
• “[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
1468
WRONGFUL TERMINATION CACI No. 2430
law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1381 [196 Cal.Rptr.3d 68].)
• “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)
222 Cal.App.4th 819, 831–832 [166 Cal.Rptr.3d 242].)
• “ ‘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
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 Cal.App.4th
750, 756 [146 Cal.Rptr.3d 922], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 255 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 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
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
1469
CACI No. 2430 WRONGFUL TERMINATION
1470
2431. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Violate Public Policy
New September 2003; Revised June 2014, December 2014, May 2020
Directions for Use
This instruction should be given if a plaintiff claims that the plaintiff’s constructive
termination was wrongful because the defendant required the plaintiff to commit an
act in violation of public policy. If the plaintiff alleges the plaintiff 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. 3903P, Damages From
Employer for Wrongful Discharge (Economic Damage). See also CACI No. 2510,
“Constructive Discharge” Explained.
The judge should determine whether the purported reason for plaintiff’s resignation
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.
1471
CACI No. 2431 WRONGFUL TERMINATION
1473
CACI No. 2431 WRONGFUL TERMINATION
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 235
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)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 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)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.45–5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.35–100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
1474
2432. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions That
Violate Public Policy
New September 2003; Revised December 2014, June 2015, May 2020
Directions for Use
This instruction should be given if the plaintiff claims that the plaintiff’s
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. 3903P, Damages From Employer for Wrongful
Discharge (Economic Damage). See also CACI No. 2510, “Constructive
Discharge” Explained.
1475
CACI No. 2432 WRONGFUL TERMINATION
The judge should determine whether the purported reason for plaintiff’s resignation
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.
Whether conditions are so intolerable as to justify the employee’s decision to quit
rather than endure them is to be judged by an objective reasonable-employee
standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32
Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The
paragraph at the end of the instruction gives the jury additional guidance as to what
makes conditions intolerable. (See id. at p. 1247.) Note that in some circumstances,
a single intolerable incident, such as a crime of violence against an employee by an
employer, or an employer’s ultimatum that an employee commit a crime, may
constitute a constructive discharge. (Id. at p. 1247, fn. 3.)
Sources and Authority
• “[W]hen an employer’s discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66
Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that impacts
on an employer’s right to discharge employees when such regulations implement
fundamental public policy found in their enabling statutes.” (D’sa v. Playhut, Inc.
(2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)
• “Plaintiffs assert, in essence, that they were terminated for refusing to engage in
conduct that violated fundamental public policy, to wit, nonconsensual sexual
acts. They also assert, in effect, that they were discharged in retaliation for
attempting to exercise a fundamental right—the right to be free from sexual
assault and harassment. Under either theory, plaintiffs, in short, should have been
granted leave to amend to plead a cause of action for wrongful discharge in
violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276
Cal.Rptr. 130, 801 P.2d 373].)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the employment
1476
WRONGFUL TERMINATION CACI No. 2432
1478
2441. Discrimination Against Member of Military—Essential
Factual Elements (Mil. & Vet. Code, § 394)
causation between the the employee’s military service and the discharge.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies to
cases alleging military service discrimination under section 394 has not been
addressed by the courts. However, military and veteran status is now a protected
category under the FEHA. (See Gov. Code, § 12940(a).
Sources and Authority
• Discrimination Against Members of the Military. Military and Veterans Code
section 394.
• Military and Veteran Status Protected Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “[I]ndividual employees may not be held personally liable under section 394 for
alleged discriminatory acts that arise out of the performance of regular and
necessary personnel management duties.” (Haligowski v. Superior Court (2011)
200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 369, 472
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
2442–2499. Reserved for Future Use
1480
VF-2400. Breach of Employment Contract—Unspecified Term
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.
1482
VF-2401. Breach of Employment Contract—Unspecified
Term—Constructive Discharge
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff] harmed by the loss of employment?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1484
VF-2402. Breach of Employment Contract—Specified Term
[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.
1486
VF-2403. Breach of Employment Contract—Specified
Term—Good-Cause Defense
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.
1488
VF-2404. Employment—Breach of the Implied Covenant of Good
Faith and Fair Dealing
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Employment Contract—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages in question 7 is optional; depending on the
circumstances, users may wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1490
VF-2405. Breach of the Implied Covenant of Good Faith and Fair
Dealing—Affirmative Defense—Good Faith Mistaken Belief
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Employment Contract—Essential Factual Elements,
and CACI No. 2424, Affırmative Defense—Breach of the Implied Covenant of Good
Faith and Fair Dealing—Good Faith Though Mistaken Belief.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages in question 9 is optional; depending on the
circumstances, users may wish to break down the damages even further.
1492
WRONGFUL TERMINATION VF-2405
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1493
VF-2406. Wrongful Discharge in Violation of Public Policy
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2430, Wrongful Discharge in Violation of
Public Policy—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1495
VF-2406 WRONGFUL TERMINATION
findings that are required in order to calculate the amount of prejudgment interest.
1496
VF-2407. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Violate Public Policy
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2431, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Violate Public Policy.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1498
WRONGFUL TERMINATION VF-2407
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1499
VF-2408. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions for
Improper Purpose That Violates Public Policy
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
1501
VF-2408 WRONGFUL TERMINATION
1502
FAIR EMPLOYMENT AND HOUSING ACT
1505
2500. Disparate Treatment—Essential Factual Elements (Gov.
Code, § 12940(a))
New September 2003; Revised April 2009, June 2011, June 2012, June 2013, May
2020
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
1506
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2500
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).)
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 the plaintiff 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.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Perception and Association. Government Code section 12926(o).
• “Race” and “Protective Hairstyles.” Government Code section 12926(w), (x).
• “[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
1507
CACI No. 2500 FAIR EMPLOYMENT AND HOUSING ACT
must clearly state the actual nondiscriminatory reason for the challenged
conduct.” (Dept. of Corrections & Rehabilitation v. State Personnel Bd. (2022)
74 Cal.App.5th 908, 930 [290 Cal.Rptr.3d 70], original italics.)
• “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 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 200], internal citations omitted.)
• “Although ‘[t]he specific elements of a prima facie case may vary depending on
the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally . . . must
provide evidence that (1) he [or she] was a member of a protected class, (2) he
[or she] was qualified for the position he [or she] sought . . . , (3) he [or she]
suffered an adverse employment action, such as . . . denial of an available job,
and (4) some other circumstance suggests discriminatory motive,’ such as that
the position remained open and the employer continued to solicit applications for
it.” (Abed, supra, 23 Cal.App.5th at p. 736.)
• “Although we recognize that in most cases, a plaintiff who did not apply for a
position will be unable to prove a claim of discriminatory failure to hire, a job
application is not an element of the claim.” (Abed, supra, 23 Cal.App.5th at p.
740, original italics.)
• “Employers who lie about the existence of open positions are not immune from
liability under the FEHA simply because they are effective in keeping protected
persons from applying.” (Abed, supra, 23 Cal.App.5th at p. 741.)
• “[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
1509
CACI No. 2500 FAIR EMPLOYMENT AND HOUSING ACT
Cal.App.4th 143, 170–171 [125 Cal.Rptr.3d 1], original italics, internal citations
omitted.)
• “[W]e hold that a residency program’s claim that it terminated a resident for
academic reasons is not entitled to deference. . . . [T]he jury should be
instructed to evaluate, without deference, whether the program terminated the
resident for a genuine academic reason or because of an impermissible reason
such as retaliation or the resident’s gender.” (Khoiny v. Dignity Health (2022) 76
Cal.App.5th 390, 404 [291 Cal.Rptr.3d 496].)
• “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.)
• “Evidence that an employer’s proffered reasons were pretextual does not
necessarily establish that the employer intentionally discriminated: ‘ “ ‘[I]t is not
enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.’ ” ’ However, evidence of pretext is
important: ‘ “[A] plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” ’ ” (Diego v. City
of Los Angeles (2017) 15 Cal.App.5th 338, 350–351 [223 Cal.Rptr.3d 173],
internal citations omitted.)
• “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.)
• “In cases involving a comparison of the plaintiff’s qualifications and those of the
1510
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2500
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 896], original italics.)
• “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
Cal.App.4th at p. 675, internal citation omitted.)
• “In no way did the Court of Appeal in Reeves overturn the long-standing rule
that comparator evidence is relevant and admissible where the plaintiff and the
comparator are similarly situated in all relevant respects and the comparator is
treated more favorably. Rather, it held that in a job hiring case, and in the
context of a summary judgment motion, a plaintiff’s weak comparator evidence
‘alone’ is insufficient to show pretext.” (Gupta v. Trustees of California State
University (2019) 40 Cal.App.5th 510, 521 [253 Cal.Rptr.3d 277].)
• “[Defendant] contends that a trial court must assess the relative strength and
nature of the evidence presented on summary judgment in determining if the
plaintiff has ‘created only a weak issue of fact.’ However, [defendant] overlooks
that a review of all of the evidence is essential to that assessment. The stray
remarks doctrine, as advocated by [defendant], goes further. It allows a court to
weigh and assess the remarks in isolation, and to disregard the potentially
damaging nature of discriminatory remarks simply because they are made by
‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional
process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant,
prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous
utterances is for trial, not for summary judgment.’ Determining the weight of
discriminatory or ambiguous remarks is a role reserved for the jury. The stray
remarks doctrine allows the trial court to remove this role from the jury.” (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 540–541 [113 Cal.Rptr.3d 327, 235 P.3d
988], internal citations omitted; see Gov. Code, § 12923(c) [Legislature affirms
the decision in Reid v. Google, Inc. in its rejection of the “stray remarks
doctrine”].)
1511
CACI No. 2500 FAIR EMPLOYMENT AND HOUSING ACT
1512
2501. Affirmative Defense—Bona fide Occupational Qualification
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 (11th ed. 2017) Constitutional Law, §§ 1032,
1033
Chin et al., California Practice Guide: Employment Litigation, Ch.9-C, California
Fair Employment and Housing Act (FEHA), ¶¶ 9:2380, 9:2382, 9:2400, 9:2430 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
1514
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2501
1515
2502. Disparate Impact—Essential Factual Elements (Gov. Code,
§ 12940(a))
• 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, 8
P.3d 1089], internal citations omitted.)
• “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).)
1517
CACI No. 2502 FAIR EMPLOYMENT AND HOUSING ACT
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)
1518
2503. Affirmative Defense—Business Necessity/Job Relatedness
1520
2504. Disparate Impact—Rebuttal to Business Necessity/Job
Relatedness Defense
1522
2505. Retaliation—Essential Factual Elements (Gov. Code,
§ 12940(h))
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
1523
CACI No. 2505 FAIR EMPLOYMENT AND HOUSING ACT
12900 through 12966] or because the person has filed a complaint, testified, or
assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or
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].)
Read the first option for element 2 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. 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.)
Note that there are two causation elements. There must be a causal link between 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
1524
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2505
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.
Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206
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 Cal.Rptr.3d 809],
original italics.)
• “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,
supra, 157 Cal.App.4th at p. 424, internal citations omitted.)
• “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
131], internal citations omitted.)
• “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
1527
CACI No. 2505 FAIR EMPLOYMENT AND HOUSING ACT
1530
2506. Limitation on Remedies—After-Acquired Evidence
New September 2003; Revised June 2016, December 2016, May 2019
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
1531
CACI No. 2506 FAIR EMPLOYMENT AND HOUSING ACT
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.) Give the
optional last paragraph if the court decides to allow the jury to award damages or to
make a finding on damages. Add the last sentence of the paragraph if the date on
which the defendant discovered the after-acquired evidence is contested.
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.)
Sources and Authority
• “In general, the after-acquired-evidence doctrine shields an employer from
liability or limits available relief where, after a termination, the employer learns
for the first time about employee wrongdoing that would have led to the
discharge in any event. Employee wrongdoing in after-acquired-evidence cases
generally falls into one of two categories: (1) misrepresentations on a resume or
job application; or (2) posthire, on-the-job misconduct.” (Camp v. Jeffer,
Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d
329].)
• “The after-acquired-evidence doctrine serves as a complete or partial defense to
an employee’s claim of wrongful discharge . . . To invoke this doctrine, ‘. . .
the employer must establish “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it” . . . [T]he employer . . . must show that such a
firing would have taken place as a matter of “settled” company policy.’ ”
(Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845–846 [77
Cal.Rptr.2d 12], internal citations omitted.)
• “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the employee
in fact would have been terminated on those grounds alone if the employer had
known of it at the time of the discharge.” (McKennon v. Nashville Banner
Publishing Co. (1995) 513 U.S. 352, 362–363 [115 S.Ct. 879, 130 L.Ed.2d
852].)
• “Courts must tread carefully in applying the after-acquired-evidence doctrine to
discrimination claims . . . . Where, as here, the discriminatory conduct was
pervasive during the term of employment, therefore, it would not be sound
public policy to bar recovery for injuries suffered while employed. In applying
the after-acquired-evidence doctrine, the equities between employer and
employee can be balanced by barring all portions of the employment
discrimination claim tied to the employee’s discharge.” (Murillo, supra, 65
Cal.App.4th at pp. 849–850.)
• “As the Supreme Court recognized in McKennon, the use of after-acquired
1532
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2506
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
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
1533
CACI No. 2506 FAIR EMPLOYMENT AND HOUSING ACT
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 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
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 223
Chin et al., California Practice Guide: Employment Litigation Ch. 7-A, Title VII and
the California Fair Employment and Housing Act, ¶¶ 7:930–7:932 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses—After-Acquired Evidence of Employee Misconduct, ¶¶ 16:615–16:616,
16:625, 16:635–16:637, 16:647 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.92 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.54[2] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)
1534
2507. “Substantial Motivating Reason” Explained
1536
2508. Failure to File Timely Administrative Complaint (Gov. Code,
§ 12960(e))—Plaintiff Alleges Continuing Violation
New June 2010; Revised December 2011, June 2015, May 2019, May 2020
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 three years within which to file an
administrative complaint. (See Gov. Code, § 12960(e).) Although the continuing-
violation doctrine is labeled an equitable exception, it may involve triable issues of
fact. (See Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714,
723–724 [85 Cal.Rptr.3d 705].)
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.
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.
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CACI No. 2508 FAIR EMPLOYMENT AND HOUSING ACT
The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This
burden of proof extends to any excuse or justification for the failure to timely file,
such as the continuing-violation exception. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section 12960.
• “At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in CACI
No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice or
refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [DFEH] and obtaining a
right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, the 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.)
• “Under the continuing violation doctrine, a plaintiff may recover for unlawful
acts occurring outside the limitations period if they continued into that period.
The continuing violation doctrine requires proof that (1) the defendant’s actions
inside and outside the limitations period are sufficiently similar in kind; (2) those
actions occurred with sufficient frequency; and (3) those actions have not
acquired a degree of permanence.” (Wassmann v. South Orange County
Community College Dist. (2018) 24 Cal.App.5th 825, 850–851 [234 Cal.Rptr.3d
712], internal citations omitted.)
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of
disability, or ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
1538
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2508
discriminated against at the time the earlier events occurred.” (Morgan, supra,
88 Cal.App.4th at p. 65.)
• “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
[100 Cal.Rptr.3d 296], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1065
4 Witkin, California Procedure (5th ed. 2008) Actions, § 564
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
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)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.51[1] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.59 (Matthew Bender)
1540
2509. “Adverse Employment Action” Explained
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 Cal.Rptr.2d 770], internal
citations omitted.)
• “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.)
• “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.” (Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 366–367 [225 Cal.Rptr.3d 321].)
• “[A] mere oral or written criticism of an employee . . . does not meet the
definition of an adverse employment action under [the] FEHA.” (Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92 [221
Cal.Rptr.3d 668].)
• “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 Cal.App.4th
191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)
• “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].)
• “[T]he reduction of [plaintiff]’s hours alone could constitute a material and
adverse employment action by the [defendant].” (Light, supra, 14 Cal.App.5th at
p. 93.)
1543
CACI No. 2509 FAIR EMPLOYMENT AND HOUSING ACT
1544
2510. “Constructive Discharge” Explained
1547
2511. Adverse Action Made by Decision Maker Without Animus
(Cat’s Paw)
New December 2012; Revised June 2013, May 2020, November 2020
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 another person 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 Cal.App.4th
95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. (2013)
212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that
an employer may be held liable on the basis of a non-supervisor’s discriminatory
motivation].) The cases have not yet defined the scope of the cat’s paw rule when
the decision maker relies on the acts of a nonsupervisory coworker or other person
involved in the employment decision.
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 another person 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
1548
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2511
that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, 121
Cal.App.4th at pp. 106–108.)
Element 1 requires that the protected activity or attribute be a substantial motivating
reason for the retaliatory acts. Element 2 requires that the other person’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”
Explained.)
In both elements 1 and 2, all of the other person’s specific acts need not be listed in
all cases. Depending on the facts, doing so may be too cumbersome and impractical.
If the specific acts are listed, the list should include all acts on which plaintiff
claims the decision maker relied, not just the acts admitted to have been relied on
by the decision maker.
Sources and Authority
• “This case presents the question whether an employer may be liable for
retaliatory discharge when the supervisor who initiates disciplinary proceedings
acts with retaliatory animus, but the cause for discipline is separately
investigated and the ultimate decision to discharge the plaintiff is made by a
manager with no knowledge that the worker has engaged in protected activities.
We hold that so long as the supervisor’s retaliatory motive was an actuating . . .
cause of the dismissal, the employer may be liable for retaliatory discharge. Here
the evidence raised triable issues as to the existence and effect of retaliatory
motive on the part of the supervisor, and as to whether the manager and the
intermediate investigator acted as tools or ‘cat’s paws’ for the supervisor, that is,
instrumentalities by which his retaliatory animus was carried into effect to
plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “This concept—which for convenience we will call the ‘defense of
ignorance’—poses few analytical challenges so long as the ‘employer’ is
conceived as a single entity receiving and responding to stimuli as a unitary,
1549
CACI No. 2511 FAIR EMPLOYMENT AND HOUSING ACT
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
the same evidence, i.e., the employer’s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive. (See
City and County of San Francisco v. Fair Employment and Housing Com. (1987)
191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the burden of
proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the employee proves
discrimination or retaliation and also pretext, the employer is liable for all potential
remedies including damages. But if the employee proves discrimination or
retaliation but fails to prove pretext, then a mixed-motive case is presented. To
avoid an award of damages, the employer then has the burden of proving that it
would have made the same decision anyway solely for the legitimate reason, even
though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a
substantial factor motivating a termination of employment, and when the
employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of
reinstatement. But the employer does not escape liability. In light of the FEHA’s
express purpose of not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this circumstance could
still be awarded, where appropriate, declaratory relief or injunctive relief to stop
discriminatory practices. In addition, the plaintiff may be eligible for reasonable
attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of
cases in which we have applied the clear and convincing standard, we hold that
preponderance of the evidence is the standard of proof applicable to an
employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer,
in the absence of any discrimination, would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original
italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful
termination should be instructed that it must find the employer’s action was
substantially motivated by discrimination before the burden shifts to the
employer to make a same-decision showing, and that a same-decision showing
precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56
Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
1552
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2512
1554
2513. Business Judgment
1556
2520. Quid pro quo Sexual Harassment—Essential Factual
Elements
claims: quid pro quo and hostile work environment. Quid pro quo harassment
occurs when submission to sexual conduct is made a condition of concrete
employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)
• “A cause of action for quid pro quo harassment involves the behavior most
commonly regarded as sexual harassment, including, e.g., sexual propositions,
unwarranted graphic discussion of sexual acts, and commentary on the
employee’s body and the sexual uses to which it could be put. To state a cause
of action on this theory, it is sufficient to allege that a term of employment was
expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome
sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409,
1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
• “Cases based on threats which are carried out are referred to often as quid pro
quo cases, as distinct from bothersome attentions or sexual remarks that are
sufficiently severe or pervasive to create a hostile work environment. The terms
quid pro quo and hostile work environment are helpful, perhaps, in making a
rough demarcation between cases in which threats are carried out and those
where they are not or are absent altogether, but beyond this are of limited utility
. . . [¶] We do not suggest the terms quid pro quo and hostile work environment
are irrelevant to Title VII litigation. To the extent they illustrate the distinction
between cases involving a threat which is carried out and offensive conduct in
general, the terms are relevant when there is a threshold question whether a
plaintiff can prove discrimination in violation of Title VII. When a plaintiff
proves that a tangible employment action resulted from a refusal to submit to a
supervisor’s sexual demands, he or she establishes that the employment decision
itself constitutes a change in the terms and conditions of employment that is
actionable under Title VII. For any sexual harassment preceding the employment
decision to be actionable, however, the conduct must be severe or pervasive.”
(Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753–754 [118
S.Ct. 2257, 141 L.Ed.2d 633].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166,
7:168–7:169, 7:194 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
1558
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2520
1559
2521A. Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, May 2020, November 2021
1560
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521A
1561
CACI No. 2521A FAIR EMPLOYMENT AND HOUSING ACT
when the harasser is not a supervisor. (State Dept. of Health Services, supra, 31
Cal.4th at p. 1041, original italics.)
• “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.
Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
• “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.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• 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
incorporates respondeat superior principles or has some other meaning].)
• “Here, [defendant] was jointly liable with its employees on a respondeat superior
or vicarious liability theory on every cause of action in which it was named as a
defendant.” (Bihun, supra, 13 Cal.App.4th at p. 1000.)
• “The McDonnell Douglas burden-shifting framework does not apply to
[plaintiff]’s harassment claim either. Since ‘there is no possible justification for
harassment in the workplace,’ an employer cannot offer a legitimate
nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)
• “[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
1563
CACI No. 2521A FAIR EMPLOYMENT AND HOUSING ACT
it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100
Cal.Rptr.3d 296].)
• “In contending that the ‘subjectively offensive’ element was not proven, a
defendant ‘will assert that a plaintiff consented to the conduct through active
participation in it, or was not injured because the plaintiff did not subjectively
find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the
defendant may use to support this assertion. It provides that ‘[i]n any civil action
alleging conduct which constitutes sexual harassment, sexual assault, or sexual
battery, opinion evidence, reputation evidence, and evidence of specific instances
of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the
defendant in order to prove consent by the plaintiff or the absence of injury to
the plaintiff . . . .’ This general rule is, however, subject to the exception that it
‘does not apply to evidence of the plaintiff’s sexual conduct with the alleged
perpetrator.’ The term ‘sexual conduct’ within the meaning of section 1106 has
been broadly construed to include ‘all active or passive behavior (whether
statements or actions), that either directly or through reasonable inference
establishes a plaintiff’s willingness to engage in sexual activity,’ including ‘racy
banter, sexual horseplay, and statements concerning prior, proposed, or planned
sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 874 [235
Cal.Rptr.3d 161], internal citations omitted.)
• “[A]llegations of a racially hostile work-place must be assessed from the
perspective of a reasonable person belonging to the racial or ethnic group of the
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 Cal.App.4th
1519, 1525 [169 Cal.Rptr.3d 794], 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, internal citation
omitted.)
• “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
Cal.Rptr.3d 384], internal citations omitted.)
• “[A] heterosexual male is subjected to harassment because of sex under the
1565
CACI No. 2521A FAIR EMPLOYMENT AND HOUSING ACT
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 Cal.App.4th
1228, 1239–1240 [166 Cal.Rptr.3d 676].)
• “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.)
• “California courts have held so-called ‘me too’ evidence, that is, evidence of
gender bias against employees other than the plaintiff, may be admissible
evidence in discrimination and harassment cases.” (Meeks, supra, 24 Cal.App.5th
at p. 871.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
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, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1566
2521B. Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, November 2021
1567
CACI No. 2521B FAIR EMPLOYMENT AND HOUSING ACT
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 2, 132
P.3d 211], internal citations omitted.)
• “[U]nder the FEHA, an employer is strictly liable for all acts of sexual
harassment by a supervisor. (State Dep’t. of Health Servs., supra, 31 Cal.4th at p.
1041, original italics.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not
acting within the scope of an agency for the employer.’ By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment ‘by an employee other than an agent or supervisor’ (italics added),
the Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
when the harasser is not a supervisor. (State Dept. of Health Servs., supra, 31
Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it becomes
or reasonably should become aware of the conduct—for example, when the
victim or someone else informs the employer—there simply is no ‘unlawful
employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
1570
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521B
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1571
2521C. Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
1572
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521C
Derived from former CACI No. 2521 December 2007; Revised December 2015, May
2018, July 2019, May 2020, November 2021
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
favoritism when the defendant is an employer or other entity covered by the FEHA.
If the defendant is a labor organization, employment agency, apprenticeship training
program or any training program leading to employment (rather than an employer),
the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).)
The relevant provision protects an employee, an applicant, an unpaid intern or
volunteer, or a person providing services under a contract. (See ibid.) If the facts of
the case support it, the instruction should be modified as appropriate for the
applicant’s circumstances.
For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see
CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential
Factual 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, 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, 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.
In element 6, select the applicable basis of employer liability: (a) strict 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. If there are both employer and individual supervisor defendants (see CACI
No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant) and both are found liable, they are both jointly and
severally liable for any damages. Comparative fault and Proposition 51 do not apply
to the employer’s strict liability for supervisor harassment. (State Dep’t of Health
Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79
P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976,
1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179];
see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 1851 [12
Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault
and only have vicarious liability by virtue of some statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
1573
CACI No. 2521C FAIR EMPLOYMENT AND HOUSING ACT
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1576
2522A. Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, May 2020, November 2021, May 2022
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was the
target of the harassing conduct and the defendant is also an employee of the covered
entity. (Gov. Code, § 12940(j)(3).) Include optional element 2 if there is a dispute
about the defendant’s status as an employee and include optional question 2 on the
verdict form. See CACI No. VF-2507A, Work Environment Harassment—Conduct
1577
CACI No. 2522A FAIR EMPLOYMENT AND HOUSING ACT
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56–2:56.50 (Thomson
Reuters)
1580
2522B. Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, November 2021, May 2022
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 also an employee of the
1581
CACI No. 2522B FAIR EMPLOYMENT AND HOUSING ACT
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 2, 132
P.3d 211], internal citations omitted.)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
1584
2522C. Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Individual Defendant
(Gov. Code, §§ 12923, 12940(j))
Derived from former CACI No. 2522 December 2007; Revised December 2015, May
2018, July 2019, May 2020, November 2021, May 2022
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
1585
CACI No. 2522C FAIR EMPLOYMENT AND HOUSING ACT
favoritism when the defendant is also an employee of the covered entity. (Gov.
Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the
defendant’s status as an employee and include optional question 2 on the verdict
form. See CACI No. VF-2507C, Work Environment Harassment—Sexual
Favoritism—Individual Defendant.
The relevant provision protects an employee, an applicant, an unpaid intern or
volunteer, or a person providing services under a contract. (Gov. Code,
§ 12940(j)(1).) If the facts of the case support it, the instruction should be modified
as appropriate to the applicant’s circumstances.
For an employer defendant, see CACI No. 2521C, Work Environment
Harassment—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 orientation, see CACI No. 2522A,
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, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI
No. 2524, “Severe or Pervasive” Explained.
If there are both employer and individual supervisor defendants (see CACI No.
2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant) and both are found liable, they are both
jointly and severally liable for any damages. Comparative fault and Proposition 51
do not apply to the employer’s strict liability for supervisor harassment. (State Dep’t
of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6
Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993)
13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d
109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847,
1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are
without fault and only have vicarious liability by virtue of some statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Declaration of Legislative Intent With Regard to Application of the Laws About
Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• Employee Personal Liability for Harassment. Government Code section
12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
1586
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2522C
1588
2523. “Harassing Conduct” Explained
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].]
1591
2524. “Severe or Pervasive” Explained
1594
2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
New September 2003; Revised June 2006, December 2015, December 2022
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 FEHA’s definition of
“supervisor” also expressly refers to authority and responsibility over “other
employees.” (Gov. Code, § 12926(t).) 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), italics 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], italics added.) Therefore, the last sentence of the
instruction refers to “authority or responsibility.”
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “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
1595
CACI No. 2525 FAIR EMPLOYMENT AND HOUSING ACT
other than an agent or supervisor’ by implication the FEHA makes the employer
strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr. 3d 441, 79 P.3d
556], internal citations omitted.)
• “Unlike discrimination in hiring, the ultimate responsibility for which rests with
the employer, sexual or other harassment perpetrated by a supervisor with the
power to hire, fire and control the victimized employee’s working conditions is a
particularly personal form of the type of discrimination which the Legislature
sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court
(1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable for
the harassing actions of its supervisors and agents, but that the employer is only
liable for harassment by a coworker if the employer knew or should have known
of the conduct and failed to take immediate corrective action. Thus,
characterizing the employment status of the harasser is very significant.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal
citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a
supervisor who personally engages in sexually harassing conduct is personally
liable under the FEHA. Second, . . . if the supervisor participates in the sexual
harassment or substantially assists or encourages continued harassment, the
supervisor is personally liable under the FEHA as an aider and abettor of the
harasser. Third, under the FEHA, the employer is vicariously and strictly liable
for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th
1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual
harassment committed by a supervisor or agent is broader than the liability
created by the common law principle of respondeat superior, respondeat superior
principles are nonetheless relevant in determining liability when, as here, the
sexual harassment occurred away from the workplace and not during work
hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider
general principles of agency law. An agent is one who represents a principal in
dealings with third persons. An agent is a person authorized by the principal to
conduct one or more transactions with one or more third persons and to exercise
a degree of discretion in effecting the purpose of the principal. A supervising
employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1328,
internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of supervisory
1596
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2525
power, they are not required elements of . . . the FEHA definition of supervisor.
Indeed, many supervisors with responsibility to direct others using their
independent judgment, and whose supervision of employees is not merely
routine or clerical, would not meet these additional criteria though they would
otherwise be within the ambit of the FEHA supervisor definition.” (Chapman,
supra, 116 Cal.App.4th at p. 930, footnote omitted.)
• “Defendants take the position that the court’s modified instruction is,
nonetheless, accurate because the phrase ‘responsibility to direct’ is the
functional equivalent of being ‘fully accountable and responsible for the
performance and work product of the employees. . . .’ In this, they rely on the
dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it
relates to the issue before us, this definition is unhelpful for two reasons. First,
one can be accountable for one’s own actions without being accountable for
those of others. Second, the argument appears to ignore the plain language of the
statute which itself defines the circumstances under which the exercise of the
responsibility to direct will be considered supervisory, i.e., ‘if . . . [it] is not of a
merely routine or clerical nature, but requires the use of independent
judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321,
10:322 (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, § 4.21
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.80 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
1597
2526. Affirmative Defense—Avoidable Consequences Doctrine
(Sexual Harassment by a Supervisor)
New April 2004; Revised December 2011, December 2015, May 2020
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 the employee 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. 3963, 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 Rosenfeld v.
1598
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2526
Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900–901
[172 Cal.Rptr.3d 465].)
Sources and Authority
• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts
of sexual harassment by a supervisor. But strict liability is not absolute liability
in the sense that it precludes all defenses. Even under a strict liability standard, a
plaintiff’s own conduct may limit the amount of damages recoverable or bar
recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042,
internal citations omitted.)
• “We emphasize that the defense affects damages, not liability. An employer that
has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care. The
avoidable consequences doctrine is part of the law of damages; thus, it affects
only the remedy available. If the employer establishes that the employee, by
taking reasonable steps to utilize employer-provided complaint procedures, could
have caused the harassing conduct to cease, the employer will nonetheless
remain liable for any compensable harm the employee suffered before the time
at which the harassment would have ceased, and the employer avoids liability
only for the harm the employee incurred thereafter.” (State Dept. of Health
Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
• “Under the avoidable consequences doctrine as recognized in California, a
person injured by another’s wrongful conduct will not be compensated for
damages that the injured person could have avoided by reasonable effort or
expenditure. The reasonableness of the injured party’s efforts must be judged in
light of the situation existing at the time and not with the benefit of hindsight.
‘The standard by which the reasonableness of the injured party’s efforts is to be
measured is not as high as the standard required in other areas of law.’ The
defendant bears the burden of pleading and proving a defense based on the
avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “Although courts explaining the avoidable consequences doctrine have
sometimes written that a party has a ‘duty’ to mitigate damages, commentators
have criticized the use of the term ‘duty’ in this context, arguing that it is more
accurate to state simply that a plaintiff may not recover damages that the
plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “We hold . . . that in a FEHA action against an employer for hostile
environment sexual harassment by a supervisor, an employer may plead and
prove a defense based on the avoidable consequences doctrine. In this particular
context, the defense has three elements: (1) the employer took reasonable steps
to prevent and correct workplace sexual harassment; (2) the employee
unreasonably failed to use the preventive and corrective measures that the
employer provided; and (3) reasonable use of the employer’s procedures would
1599
CACI No. 2526 FAIR EMPLOYMENT AND HOUSING ACT
have prevented at least some of the harm that the employee suffered.” (State
Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)
• “This defense will allow the employer to escape liability for those damages, and
only those damages, that the employee more likely than not could have
prevented with reasonable effort and without undue risk, expense, or humiliation,
by taking advantage of the employer’s internal complaint procedures
appropriately designed to prevent and eliminate sexual harassment.” (State Dept.
of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to
utilize employer-provided complaint procedures, could have caused the harassing
conduct to cease, the employer will nonetheless remain liable for any
compensable harm the employee suffered before the time at which the
harassment would have ceased, and the employer avoids liability only for the
harm the employee incurred thereafter.” (State Dept. of Health Services, supra,
31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that
employees victimized by a supervisor’s sexual harassment must always report
such conduct immediately to the employer through internal grievance
mechanisms. The employer may lack an adequate antiharassment policy or
adequate procedures to enforce it, the employer may not have communicated the
policy or procedures to the victimized employee, or the employee may
reasonably fear reprisal by the harassing supervisor or other employees.
Moreover, in some cases an employee’s natural feelings of embarrassment,
humiliation, and shame may provide a sufficient excuse for delay in reporting
acts of sexual harassment by a supervisor.” (State Dept. of Health Services,
supra, 31 Cal.4th at p. 1045.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371,
10:375 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)
1600
2527. Failure to Prevent Harassment, Discrimination, or
Retaliation—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, § 12940(k))
New June 2006; Revised April 2007, June 2013, December 2015
Directions for Use
Give this instruction after the appropriate instructions in this series on the
underlying claim for discrimination, retaliation, or harassment if the employee also
claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).)
Read the bracketed language in the opening paragraph beginning with “based on” if
the claim is for failure to prevent harassment or discrimination.
For guidance for a further instruction on what constitutes “reasonable steps,” see
section 11019(b)(4) of Title 2 of the California Code of Regulations.
Sources and Authority
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative
and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd.
(2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
1601
CACI No. 2527 FAIR EMPLOYMENT AND HOUSING ACT
corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F. v. Pacific Pearl Hotel Management LLC
(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)
• “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
will provide a remedy in the form of an action for damages.’ ‘It is well settled
the Legislature possesses a broad authority . . . to establish . . . tort causes of
action.’ Examples of statutory torts are plentiful in California law.” ’ Section
12960 et seq. provides procedures for the prevention and elimination of unlawful
employment practices. In particular, section 12965, subdivision (a) authorizes the
Department of Fair Employment and Housing (DFEH) to bring an accusation of
an unlawful employment practice if conciliation efforts are unsuccessful, and
section 12965, subdivision (b) creates a private right of action for damages for a
complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596],
internal citations omitted.)
• “With these rules in mind, we examine the section 12940 claim and finding with
regard to whether the usual elements of a tort, enforceable by private plaintiffs,
have been established: Defendants’ legal duty of care toward plaintiffs, breach of
duty (a negligent act or omission), legal causation, and damages to the plaintiff.”
(Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940, subdivision (k).”
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184
Cal.Rptr.3d 774].)
• “Also, there is a significant question of how there could be legal causation of
any damages (either compensatory or punitive) from such a statutory violation,
where the only jury finding was the failure to prevent actionable harassment or
discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th
at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015), . . . states that the failure
to prevent instruction should be given ‘after the appropriate instructions in this
series on the underlying claim for . . . harassment if the employee also claims
that the employer failed to prevent the conduct.’ An instruction on the elements
of an underlying sexual harassment claim would be unnecessary if the failure to
take reasonable steps necessary to prevent a claim for harassment could be based
1602
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2527
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
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 Cal.App.4th 466,
480 [161 Cal.Rptr.3d 758].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025,
1026
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)
1603
2528. Failure to Prevent Harassment by Nonemployee (Gov. Code,
§ 12940(j))
The employer’s duty is to “take immediate and appropriate corrective action.” (Gov.
Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an
employee, the duty is to “take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)
Whether the employer must prevent or later correct the harassing situation would
seem to depend on the facts of the case. If the issue is to stop harassment from
recurring after becoming aware of it, the employer’s duty would be to “correct” the
problem. If the issue is to address a developing problem before the harassment
occurs, the duty would be to “prevent” it. Choose the appropriate words in elements
4, 5, and 7 depending on the facts.
Sources and Authority
• Prevention of Harassment by a Nonemployee. Government Code section
12940(j)(1).
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The FEHA provides: ‘An employer may . . . be responsible for the acts of
nonemployees, with respect to sexual harassment of employees . . . , where the
employer, or its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective action. In
reviewing cases involving the acts of nonemployees, the extent of the employer’s
control and any other legal responsibility that the employer may have with
respect to the conduct of those nonemployees shall be considered.’ . . . ’ A
plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff
first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management
LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
• “[T]he language of section 12940, subdivision (j)(1), does not limit its
application to a particular fact pattern. Rather, the language of the statute
provides for liability whenever an employer (1) knows or should know of sexual
harassment by a nonemployee and (2) fails to take immediate and appropriate
remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “The more egregious the abuse and the more serious the threat of which the
1605
CACI No. 2528 FAIR EMPLOYMENT AND HOUSING ACT
employer has notice, the more the employer will be required under a standard of
reasonable care to take steps for the protection of likely future victims.” (M.F.,
supra, 16 Cal.App.5th at p. 701.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019,
1028, 1035
2529–2539. Reserved for Future Use
1606
2540. Disability Discrimination—Disparate Treatment—Essential
Factual Elements
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016, May
2019, May 2020
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).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2, 5, and 6 depending on the plaintiff’s status.
Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history
of disability, but alleges discrimination because the plaintiff 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/nonbinary pronoun] . . .” and with language in
element 6 “That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of the plaintiff’s 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
1608
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2540
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, with or without reasonable accommodation, is an element of the
plaintiff’s burden of proof. (See Green v. State of California (2007) 42 Cal.4th 254,
257–258 [64 Cal.Rptr.3d 390, 165 P.3d 118].)
Read the first option for element 5 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 5 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of the plaintiff’s
disability.
If the existence of a qualifying disability is disputed, additional instructions defining
“physical disability,” “mental disability,” and “medical condition” may be required.
(See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section 12940(a)(1).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Disabled Person Protected.
Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
1609
CACI No. 2540 FAIR EMPLOYMENT AND HOUSING ACT
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 discrimination.”
(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [115 Cal.Rptr.3d
453], original italics, internal citations omitted.)
• “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
1610
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2540
concerns or fear about his possible future disability. The relevant FEHA
definition of an individual regarded as disabled applies only to those who suffer
certain specified physical disabilities or those who have a condition with ‘no
present disabling effect’ but which ‘may become a physical disability . . . .’
According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating
him because of his association with his physically disabled sister. That is not a
basis for liability under the ‘regarded as’ disabled standard.” (Rope, supra, 220
Cal.App.4th at p. 659, internal citations omitted.)
• “ ‘[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 Cal.App.5th
570, 592 [210 Cal.Rptr.3d 59].)
• “ ‘An adverse employment decision cannot be made “because of” a disability,
when the disability is not known to the employer. Thus, in order to prove [a
discrimination] claim, a plaintiff must prove the employer had knowledge of the
employee’s disability when the adverse employment decision was made. . . .
While knowledge of the disability can be inferred from the circumstances,
knowledge will only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations . . . .” . . .’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)
• “[W]e interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of
threats or violence against coworkers. If employers are not permitted to make
this distinction, they are caught on the horns of a dilemma. They may not
discriminate against an employee based on a disability but, at the same time,
must provide all employees with a safe work environment free from threats and
violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125
Cal.Rptr.3d 1], internal citations omitted.)
• “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
1613
CACI No. 2540 FAIR EMPLOYMENT AND HOUSING ACT
section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340
[153 Cal.Rptr.3d 367].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 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)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.78–2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14, 115.23, 115.34, 115.77[3][a] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:46 (Thomson Reuters)
1615
2541. Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m))
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013, May 2019
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
1616
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2541
[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, other
courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that the employee 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 the plaintiff is a qualified individual by establishing that the plaintiff can
perform the essential functions of the position to which reassignment is sought].)
The question of whether the employee has to present evidence of other suitable job
descriptions and prove that a vacancy existed for a position that the employee could
do with reasonable accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “There are three elements to a failure to accommodate action: ‘(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.
[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22
Cal.App.5th 1187, 1193–1194 [232 Cal.Rptr.3d 349].)
• “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, 969 [181 Cal.Rptr.3d 553],
original italics.)
1618
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2541
• “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.)
• “While ‘a finite leave can be a reasonable accommodation under FEHA,
provided it is likely that at the end of the leave, the employee would be able to
perform . . . her duties’, a finite leave is not a reasonable accommodation when
the leave leads directly to termination of employment because the employee’s
performance could not be evaluated while she was on the leave.” (Hernandez,
supra, 22 Cal.App.5th at p. 1194.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 977
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
1622
2542. Disability Discrimination—“Reasonable Accommodation”
Explained
1625
2543. Disability Discrimination—“Essential Job Duties” Explained
(Gov. Code, §§ 12926(f), 12940(a)(1))
New September 2003; Revoked June 2013; Restored and Revised December 2013;
Revised May 2020
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,
1626
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2543
1628
2544. Disability Discrimination—Affirmative Defense—Health or
Safety Risk
addressing the defense of health or safety risk. (See Cal. Code Regs., tit. 2,
§ 11067.) Give CACI No. 2543, Disability Discrimination—“Essential Job Duties”
Explained, to instruct on when a job duty is essential.
If more than one essential job duty is alleged to involve a health or safety risk,
pluralize the elements accordingly.
Give the optional paragraph following the elements if there is concern about a
future risk. (See Cal. Code Regs., tit. 2, § 11067(d).)
The list of factors to be considered is not exclusive. (See Cal. Code Regs., tit. 2,
§ 11067(e).) Additional factors may be added according to the facts and
circumstances of the case.
Sources and Authority
• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(b)–(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 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].)
1630
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2544
• “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
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045–1048
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2297, 2297.1, 9:2402, 9:2402.1
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.111
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
1631
2545. Disability Discrimination—Affirmative Defense—Undue
Hardship
1633
2546. Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
New December 2007; Revised April 2009, December 2009, May 2022
1634
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2546
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,
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.)
• “Well-reasoned precedent supports [defendant’s] argument that, in order to
succeed on a cause of action for failure to engage in an interactive process, ‘an
employee must identify a reasonable accommodation that would have been
available at the time the interactive process should have occurred.’ ”
(Shirvanyan, supra, 59 Cal.App.5th at p. 96.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1048
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)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.35[1][a] (Matthew Bender)
1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)
1638
2547. Disability-Based Associational Discrimination—Essential
Factual Elements
Machines Corp. (7th Cir. 2004) 370 F.3d 698] provides an illustrative, rather
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.)
• “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.)
• “[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
1642
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2547
1643
2548. Disability Discrimination—Refusal to Make Reasonable
Accommodation in Housing (Gov. Code, § 12927(c)(1))
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
1647
2549. Disability Discrimination—Refusal to Permit Reasonable
Modification to Housing Unit (Gov. Code, § 12927(c)(1))
1650
2560. Religious Creed Discrimination—Failure to
Accommodate—Essential Factual Elements (Gov. Code,
§ 12940(l))
New September 2003; Revised June 2012, December 2012, June 2013, November
2019, May 2020
Directions for Use
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Regulations provide that refusing to hire an applicant or terminating an employee in
order to avoid the need to accommodate a religious practice constitutes religious
creed discrimination. (Cal. Code Regs., tit. 2, § 11062.) Give the second option for
element 6 if the plaintiff claims that the employer terminated or refused to hire the
plaintiff to avoid a need for accommodation.
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, replace “decision to” with
“threat to.” Or in the second option, “subjecting [name of plaintiff] to” may be
replaced with “threatening [name of plaintiff] with.”
1652
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2560
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
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)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996)
Religion, pp. 219–224, 226–227; id. (2000 supp.) at pp. 100–101
1654
2561. Religious Creed Discrimination—Reasonable
Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, §§ 12940(l)(1), 12926(u))
New September 2003; Revoked December 2012; Restored and Revised June 2013;
Revised November 2019, May 2020, May 2021
Directions for Use
For religious beliefs and observances, the statute requires the employer (or other
covered entity) to demonstrate that the employer explored certain means of
accommodating the plaintiff, including two specific possibilities: (1) excusing the
plaintiff from duties that conflict with the plaintiff’s religious belief or observance or
(2) permitting those duties to be performed at another time or by another person.
1655
CACI No. 2561 FAIR EMPLOYMENT AND HOUSING ACT
1656
2570. Age Discrimination—Disparate Treatment—Essential
Factual Elements
New June 2011; Revised June 2012, June 2013, May 2020
Directions for Use
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
5 if the 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
1657
CACI No. 2570 FAIR EMPLOYMENT AND HOUSING ACT
discriminatory animus based on age and the adverse action (see element 5), and
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 the employee’s 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 a 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 the
employee’s job performance was satisfactory at the time of the adverse employment
action as a part of the employee’s 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.
1658
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2570
1661
VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
1663
VF-2500 FAIR EMPLOYMENT AND HOUSING ACT
1664
VF-2501. Disparate Treatment—Affirmative Defense—Bona fide
Occupational Qualification (Gov. Code, § 12940(a))
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements, and CACI No. 2501, Affırmative Defense—Bona fide
Occupational Qualification.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if the plaintiff was not actually a member of the protected class,
but alleges discrimination because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
1667
VF-2501 FAIR EMPLOYMENT AND HOUSING ACT
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.
1668
VF-2502. Disparate Impact (Gov. Code, § 12940(a))
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1670
FAIR EMPLOYMENT AND HOUSING ACT VF-2502
1671
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative
Defense—Business Necessity/Job Relatedness—Rebuttal to
Business Necessity/Job Relatedness Defense
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential Factual
Elements, CACI No. 2503, Affırmative Defense—Business Necessity/Job
Relatedness, and CACI No. 2504, Disparate Impact—Rebuttal to Business
Necessity/Job Relatedness Defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1674
VF-2504. Retaliation (Gov. Code, § 12940(h))
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, August 2007, December 2010, June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2505, Retaliation—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Read the second option for question 2 in cases involving a pattern of employer
harassment consisting of acts that might not individually be sufficient to constitute
retaliation, but taken as a whole establish prohibited conduct. Give both options if
the employee presents evidence supporting liability under both a sufficient-single-act
theory or a pattern-of-harassment theory. Also select “conduct” in question 3 if the
second option or both options are included for question 2.
1676
FAIR EMPLOYMENT AND HOUSING ACT VF-2504
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1677
VF-2505. Quid pro quo Sexual Harassment
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2015,
December 2016
Directions for Use
This verdict form is based on CACI No. 2520, Quid pro quo Sexual
Harassment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question number
1, as in element 1 in CACI No. 2520.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1679
VF-2505 FAIR EMPLOYMENT AND HOUSING ACT
1680
VF-2506A. Work Environment Harassment—Conduct Directed at
Plaintiff—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521A. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
Modify question 2 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
1683
VF-2506A FAIR EMPLOYMENT AND HOUSING ACT
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.
1684
VF-2506B. Work Environment Harassment—Conduct Directed at
Others—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521B. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1687
VF-2506C. Work Environment Harassment—Sexual
Favoritism—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1690
VF-2507A. Work Environment Harassment—Conduct Directed at
Plaintiff—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021, May 2022
Directions for Use
This verdict form is based on CACI No. 2522A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Include optional question 2 only if optional element 2 is included in CACI No.
2522A.
Modify question 3 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1693
VF-2507B. Work Environment Harassment—Conduct Directed at
Others—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021, May 2022
Directions for Use
This verdict form is based on CACI No. 2522B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Include optional question 2 only if optional element 2 is included in CACI No.
2522B.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1696
VF-2507C. Work Environment Harassment—Sexual
Favoritism—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
December 2014, December 2016, May 2020, May 2021, November 2021, May 2022
Directions for Use
This verdict form is based on CACI No. 2522C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Include optional question 2 only if optional element 2 is included in CACI No.
2522C.
Depending on the facts of the case, other factual scenarios for employer liability can
be substituted in question 7, as in element 7 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1699
VF-2508. Disability Discrimination—Disparate Treatment
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2009, June
2010, December 2010, June 2013, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2540. Depending on the facts of the case, other factual
scenarios can be substituted in questions 3 and 7, 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/nonbinary pronoun] had.”
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in question 3. (Compare
Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement that medical
condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
1702
FAIR EMPLOYMENT AND HOUSING ACT VF-2508
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1703
VF-2509. Disability Discrimination—Reasonable Accommodation
(Gov. Code, § 12940(m))
Signed:
Presiding Juror 1705
VF-2509 FAIR EMPLOYMENT AND HOUSING ACT
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in questions 3 and 4.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1706
VF-2510. Disability Discrimination—Reasonable
Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, § 12940(m))
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, and
CACI No. 2545, Disability Discrimination—Affırmative Defense—Undue Hardship.
If a different affirmative defense is at issue, this form should be tailored accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in questions 3 and 4.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1709
VF-2510 FAIR EMPLOYMENT AND HOUSING ACT
1710
VF-2511. Religious Creed Discrimination—Failure to
Accommodate (Gov. Code, § 12940(l))
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff]’s failure to comply with the conflicting job
requirement a substantial motivating reason for [name of
defendant]’s [discharge of/refusal to hire/[other adverse employment
action]] [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
1712
FAIR EMPLOYMENT AND HOUSING ACT VF-2511
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1713
VF-2512. Religious Creed Discrimination—Failure to
Accommodate—Affirmative Defense—Undue Hardship (Gov. Code,
§§ 12926(u), 12940(l))
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2012, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements (see Gov.
Code, §§ 12926(u), 12940(l)) and CACI No. 2561, Religious Creed
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 11 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
1716
FAIR EMPLOYMENT AND HOUSING ACT VF-2512
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1717
VF-2513. Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2009; Revised December 2009, December 2010, December 2016, May
2022
Directions for Use
This verdict form is based on CACI No. 2546, Disability
Discrimination—Reasonable Accommodation—Failure to Engage in Interactive
Process.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in question 3. (Compare
Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement that medical
condition limit major life activity].)
Bracketed question 7 reflects that there is a split of authority as to whether the
employee must also prove that a reasonable accommodation was available.
(Compare Shirvanyan v. Los Angeles Community College Dist. (2020) 59
Cal.App.5th 82, 87 [273 Cal.Rptr.3d 312] [“the availability of a reasonable
accommodation is an essential element of an interactive process claim”] and Nadaf-
Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985
[83 Cal.Rptr.3d 190] [employee who brings section 12940(n) claim bears burden of
1720
FAIR EMPLOYMENT AND HOUSING ACT VF-2513
1721
VF-2514. Failure to Prevent Harassment, Discrimination, or
Retaliation
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2010; Revised December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2527, Failure to Prevent Harassment,
Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity
Defendant. These questions should be added to the verdict form that addresses the
underlying claim of discrimination, retaliation, or harassment if the plaintiff also
asserts a separate claim against the employer for failure to prevent the underlying
conduct. The jury should not reach these questions unless it finds that the underlying
claim is proved.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1723
VF-2515. Limitation on Remedies—Same Decision
1725
VF-2515 FAIR EMPLOYMENT AND HOUSING ACT
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2013; Revised December 2015, December 2016, May 2020
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.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 5 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.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if the plaintiff was not actually a member of the protected class,
but alleges discrimination because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1726
FAIR EMPLOYMENT AND HOUSING ACT VF-2515
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2516–VF-2599. Reserved for Future Use
1727
Judicial Council of California
Civil Jury Instructions
CACI*
* Pronounced “Casey”
As approved at the
Judicial Council’s Rules Committee August 2022 Meeting
and Judicial Council December 2022 Meeting
2
Judicial Council of California
Series 2600–5000
ISSN: 1549-7100
ISBN: 978-1-6633-4409-0 (print)
© 2023, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2023 edition)
Cite these instructions: “CACI No. .”
Cite these verdict forms: “CACI No. VF- .”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(1/2023–Pub.1283)
Table of Contents
Volume 1
USER GUIDE
iii
SERIES 2000 TRESPASS
iv
Volume 2
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
vi
Volume 1 Table of Contents
USER GUIDE
xiii
Volume 1 Table of Contents
SERIES 600 PROFESSIONAL NEGLIGENCE
600. Standard of Care
601. Legal Malpractice—Causation
602. Success Not Required
603. Alternative Legal Decisions or Strategies
604. Referral to Legal Specialist
605. Reserved for Future Use
606. Legal Malpractice Causing Criminal Conviction—Actual Innocence
607–609. Reserved for Future Use
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit
(Code Civ. Proc., § 340.6)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit
(Code Civ. Proc., § 340.6)
612–699. Reserved for Future Use
xxx
Volume 2 Table of Contents
SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice by Employee of Need for CFRA Leave
2603. “Comparable Job” Explained
2604–2609. Reserved for Future Use
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613–2619. Reserved for Future Use
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(k))
2621–2699. Reserved for Future Use
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation
VF-2603–VF-2699. Reserved for Future Use
xxxvii
Volume 2 Table of Contents
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
3207–3209. Reserved for Future Use
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
3213–3219. Reserved for Future Use
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)
3223–3229. Reserved for Future Use
3230. Continued Reasonable Use Permitted
3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6)
3232–3239. Reserved for Future Use
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))
3245–3299. Reserved for Future Use
VF-3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities (Civ. Code, § 1793.2(d))
VF-3201. Consequential Damages
VF-3202. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
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
VF-3207–VF-3299. Reserved for Future Use
xxxviii
Volume 2 Table of Contents
SERIES 3300 UNFAIR PRACTICES ACT
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
3307–3319. Reserved for Future Use
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3322–3329. Reserved for Future Use
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
3333. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer Meeting
Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
3336–3399. Reserved for Future Use
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
VF-3308–VF-3399. Reserved for Future Use
xxxix
Volume 2 Table of Contents
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
3415–3419. Reserved for Future Use
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
3424–3429. Reserved for Future Use
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3432–3439. Reserved for Future Use
3440. Damages
3441–3499. Reserved for Future Use
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
VF-3402. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
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
xl
Volume 2 Table of Contents
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
VF-3407. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of 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)
VF-3410–VF-3499. Reserved for Future Use
xlvii
Volume 2 Table of Contents
SERIES 4400 TRADE SECRETS
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
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
4413–4419. Reserved for Future Use
4420. Affirmative Defense—Information Was Readily Ascertainable by Proper Means
4421. Affirmative Defense—Statute of Limitations—Three-Year Limit (Civ. Code, § 3426.6)
4422–4499. Reserved for Future Use
VF-4400. Misappropriation of Trade Secrets
VF-4401–VF-4499. Reserved for Future Use
lii
CALIFORNIA FAMILY RIGHTS ACT
1
2600. Violation of CFRA Rights—Essential Factual Elements
5
2601. Eligibility
6
2602. Reasonable Notice by Employee of Need for CFRA Leave
For notice of the need for leave to be reasonable, [name of plaintiff] must
make [name of defendant] aware that [he/she/nonbinary pronoun] needs
[family care/medical] leave, when the leave will begin, and how long it is
expected to last. The notice can be verbal or in writing and does not
need to mention the law. An employer cannot require disclosure of any
medical diagnosis, but should ask for information necessary to decide
whether the employee is entitled to leave.
Linen Supply (2012) 211 Cal.App.4th 1236, 1241 [150 Cal.Rptr.3d 446], internal
citations omitted.)
• “[Cal. Code Regs., tit. 2, § 11091(a)(1)] appears to presume the existence of
circumstances in which an employee is able to provide an employer with notice
of the need for leave. Indeed, the regulation permits employers to ‘require that
employees provide at least 30 days’ advance notice before CFRA leave is to
begin if the need for the leave is foreseeable based on an expected birth,
placement for adoption or foster care, or planned medical treatment for a serious
health condition of the employee or a family member.’ However, the regulations
provide that this 30-day general rule is inapplicable when the need for medical
leave is not foreseeable: ‘If 30 days’ notice is not practicable, such as because of
a lack of knowledge of approximately when leave will be required to begin, a
change in circumstances, or a medical emergency, notice must be given as soon
as practicable.’ Further, ‘[a]n employer shall not deny a CFRA leave, the need
for which is an emergency or is otherwise unforeseeable, on the basis that the
employee did not provide advance notice of the need for the leave, so long as
the employee provided notice to the employer as soon as practicable.’ ” (Bareno
v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 563 [212
Cal.Rptr.3d 682], original italics; see Cal. Code Regs. tit. 2, § 11091(a)(2)–(4).)
• “When viewed as a whole, it is clear that CFRA and its implementing
regulations envision a scheme in which employees are provided reasonable time
within which to request leave for a qualifying purpose, and to provide the
supporting certification to demonstrate that the requested leave was, in fact, for a
qualifying purpose, particularly when the need for leave is not foreseeable or
when circumstances have changed subsequent to an initial request for leave.”
(Bareno, supra, 7 Cal.App.5th at p. 565.)
• “[A]n employer bears a burden, under CFRA, to inquire further if an employee
presents the employer with a CFRA-qualifying reason for requesting leave.”
(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 249
[206 Cal.Rptr.3d 841].)
• “Whether notice is sufficient under CFRA is a question of fact.” (Soria, supra, 5
Cal.App.5th at p. 603.)
• “That plaintiff called in sick was, by itself, insufficient to put [defendant] on
notice that he needed CFRA leave for a serious health condition.” (Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255 [82 Cal.Rptr.3d
440].)
• “The regulations thus expressly contemplate that an employee may be out on
CFRA-protected leave prior to providing medical certification regarding that
leave.” (Bareno, supra, 7 Cal.App.5th at p. 568, original italics; see Cal. Code
Regs., tit. 2, § 11091(b)(3).)
• “CFRA establishes that a certification issued by an employee’s health provider is
sufficient if it includes ‘[t]he date on which the serious health condition
commenced’; ‘[t]he probable duration of the condition’; and ‘[a] statement that,
8
CALIFORNIA FAMILY RIGHTS ACT CACI No. 2602
due to the serious health condition, the employee is unable to perform the
function of his or her position.’ ” (Bareno, supra, 7 Cal.App.5th at pp. 569–570.)
• “[A]n employee need not share his or her medical condition with the employer,
and a certification need not include such information to be considered sufficient:
‘For medical leave for the employee’s own serious health condition, this
certification need not, but may, at the employee’s option, identify the serious
health condition involved.’ ” (Bareno, supra, 7 Cal.App.5th at p. 570, fn. 18,
original italics.)
• “Under the CFRA regulations, the employer has a duty to respond to the leave
request within 10 days, but clearly and for good reason the law does not specify
that the response must be tantamount to approval or denial.” (Olofsson, supra,
211 Cal.App.4th at p. 1249.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA),
¶¶ 12:852–12:853, 12:855–12:857 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][e] (Matthew Bender)
9
2603. “Comparable Job” Explained
10
2610. Affirmative Defense—No Certification From Health-Care
Provider
11
2611. Affirmative Defense—Fitness for Duty Statement
12
2612. Affirmative Defense—Employment Would Have Ceased
13
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov.
Code, § 12945.2(k))
New September 2003; Revised December 2012, June 2013, May 2018, May 2021
Directions for Use
Use this instruction in cases of alleged retaliation for an employee’s exercise of
rights granted by the California Family Rights Act (CFRA). (See Gov. Code,
§ 12945.2(k).) The instruction assumes that the defendant is plaintiff’s present or
former employer, and therefore it must be modified if the defendant is a prospective
employer or other person.
The “other protected activity” option of the opening paragraph and elements 2 and 4
could be providing information or testimony in an inquiry or a proceeding related to
CFRA rights. (Gov. Code, § 12945.2(k).
The CFRA reaches a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, § 12945.2(k).) Element 3 may be modified to allege
constructive discharge or adverse acts other than actual 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.
Element 4 uses the term “substantial motivating reason” to express both intent and
14
CALIFORNIA FAMILY RIGHTS ACT CACI No. 2620
causation between the employee’s exercise of a CFRA right and the adverse
employment action. “Substantial motivating reason” has been held to be the
appropriate standard under the discrimination prohibitions of 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 this standard applies to CFRA retaliation
cases has not been addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under California Family Rights Act. Government Code
section 12945.2(k), (q).
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• “The elements of a cause of action for retaliation in violation of CFRA are “ ‘(1)
the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to
take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or suspension, because of
her exercise of her right to CFRA [leave].” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [210 Cal.Rptr.3d 59].)
• “Similar to causes of action under FEHA, the McDonnell Douglas burden
shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of
University of California (2016) 248 Cal.App.4th 216, 248 [206 Cal.Rptr.3d
841].)
• “ ‘When an adverse employment action “follows hard on the heels of protected
activity, the timing often is strongly suggestive of retaliation.” ’ ” (Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [212 Cal.Rptr.3d
682].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1058–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300,
12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew
Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][c] (Matthew Bender)
2621–2699. Reserved for Future Use
15
VF-2600. Violation of CFRA Rights
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA Rights—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
17
VF-2600 CALIFORNIA FAMILY RIGHTS ACT
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
18
VF-2601. Violation of CFRA Rights—Affirmative
Defense—Employment Would Have Ceased
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.
20
CALIFORNIA FAMILY RIGHTS ACT VF-2601
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA Rights—Essential
Factual Elements, and CACI No. 2612, Affırmative Defense—Employment Would
Have Ceased. If a different affirmative defense is at issue, this form should be
tailored accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
21
VF-2602. CFRA Rights Retaliation
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2620, CFRA Rights Retaliation—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
23
VF-2602 CALIFORNIA FAMILY RIGHTS ACT
24
LABOR CODE ACTIONS
26
2700. Nonpayment of Wages—Essential Factual Elements (Lab.
Code, §§ 201, 202, 218)
New September 2003; Revised December 2005, December 2013, June 2015
Directions for Use
This instruction is for use in a civil action for payment of wages. Depending on the
allegations in the case, the definition of “wages” may be modified to include
additional compensation, such as earned vacation, nondiscretionary bonuses, or
severance pay.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of wage orders, adopted by the Industrial Welfare
Commission. All of the wage orders define hours worked as “the time during which
an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so.”
(Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 137 [239
Cal.Rptr.3d 852]; see, e.g., Wage Order 4-2001, subd. 2(K).) The two parts of the
definition are independent factors, each of which defines whether certain time spent
is compensable as “hours worked.” Thus, an employee who is subject to an
employer’s control does not have to be working during that time to be compensated.
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582–584 [94 Cal.Rptr.2d 3,
995 P.2d 139].) Courts have identified various factors bearing on an employer’s
control during on-call time. However, what qualifies as hours worked is a question
of law. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838−840
[182 Cal.Rptr.3d 124, 340 P.3d 355].) Therefore, the jury should not be instructed
on the factors to consider in determining whether the employer has exercised
sufficient control over the employee during the contested period to require
compensation.
However, the jury should be instructed to find any disputed facts regarding the
factors. For example, one factor is whether a fixed time limit for the employee to
27
CACI No. 2700 LABOR CODE ACTIONS
respond to a call was unduly restrictive. Whether there was a fixed time limit would
be a disputed fact for the jury. Whether it was unduly restrictive would be a matter
of law for the court.
The court may modify this instruction or write an appropriate instruction if the
defendant employer claims a permissible setoff from the plaintiff employee’s unpaid
wages. Under California Wage Orders, an employer may deduct from an employee’s
wages for cash shortage, breakage, or loss of equipment if the employer proves that
this was caused by a dishonest or willful act or by the gross negligence of the
employee. (See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 8.)
Sources and Authority
• Right of Action for Wage Claim. Labor Code section 218.
• Wages Due on Discharge. Labor Code section 201.
• Wages Due on Quitting. Labor Code section 202.
• “Wages” Defined, Labor Code section 200.
• Wages Partially in Dispute. Labor Code section 206(a).
• Deductions From Pay. Labor Code section 221, California Code of Regulations,
Title 8, section 11010, subdivision 8.
• Nonapplicability to Government Employers. Labor Code section 220.
• Employer Not Entitled to Release. Labor Code section 206.5.
• Private Agreements Prohibited. Labor Code section 219(a).
• “As an employee, appellant was entitled to the benefit of wage laws requiring an
employer to promptly pay all wages due, and prohibiting the employer from
deducting unauthorized expenses from the employee’s wages, deducting for debts
due the employer, or recouping advances absent the parties’ express agreement.”
(Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1330 [200
Cal.Rptr.3d 315].)
• “The Labor Code’s protections are ‘designed to ensure that employees receive
their full wages at specified intervals while employed, as well as when they are
fired or quit,’ and are applicable not only to hourly employees, but to highly
compensated executives and salespeople.” (Davis, supra, 245 Cal.App.4th at p.
1331, internal citation omitted.)
• “[W]ages include not just salaries earned hourly, but also bonuses, profit-sharing
plans, and commissions.” (Davis, supra, 245 Cal.App.4th at p. 1332, fn. 20.)
• “The Industrial Welfare Commission (IWC) was created in 1913 with express
authority to adopt regulations—called wage orders—governing wages, hours, and
working conditions in the state of California. These wage orders, being the
product of quasi-legislative rulemaking under a broad delegation of legislative
power, are entitled to great deference, and they have the dignity and force of
statutory law.” (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718,
724–725 [248 Cal.Rptr.3d 891, 443 P.3d 924], internal citations omitted.)
28
LABOR CODE ACTIONS CACI No. 2700
30
2701. Nonpayment of Minimum Wage—Essential Factual Elements
(Lab. Code, § 1194)
New September 2003; Revised June 2005, June 2014, June 2015, May 2020
Directions for Use
The court must determine the prevailing minimum wage rate from applicable state
or federal law. (See, e.g., Cal. Code Regs., tit. 8, § 11000.) The jury must be
instructed accordingly.
Both liquidated damages (See Lab. Code, § 1194.2) and civil penalties (See Lab.
Code, § 1197.1) may be awarded on a claim for nonpayment of minimum wage.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) The California Labor Code and the
IWC’s wage orders provide that certain employees are exempt from minimum wage
requirements (for example, outside salespersons; see Lab. Code, § 1171), and that
under certain circumstances employers may claim credits for meals and lodging
against minimum wage pay (see Cal. Code Regs., tit. 8, § 11000, subd. 3, § 11010,
subd. 10, and § 11150, subd. 10(B)). The assertion of an exemption from wage and
hour laws is an affirmative defense. (See generally Ramirez v. Yosemite Water Co.
(1999) 20 Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) The advisory
committee has chosen not to write model instructions for the numerous fact-specific
affirmative defenses to minimum wage claims. (Cf. CACI No. 2720, Affırmative
Defense—Nonpayment of Overtime—Executive Exemption, and CACI No. 2721,
Affırmative Defense—Nonpayment of Overtime—Administrative Exemption.)
31
CACI No. 2701 LABOR CODE ACTIONS
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.13[1][a], 250.14[d] (Matthew Bender)
California Civil Practice: Employment Litigation §§ 4:67, 4:76 (Thomson Reuters)
33
2702. Nonpayment of Overtime Compensation—Essential Factual
Elements (Lab. Code, § 1194)
New September 2003; Revised June 2005, June 2014, June 2015, May 2020,
November 2021
Directions for Use
The court must determine the overtime compensation rate under applicable state or
federal law. (See, e.g., Lab. Code, §§ 1173, 1182; Cal. Code Regs., tit. 8, § 11000,
subd. 2, § 11010, subd. 4(A), and § 11150, subd. 4(A).) If an employee earns a flat
sum bonus during a pay period, under state law the overtime pay rate is calculated
using the actual number of nonovertime hours worked by the employee during the
pay period. (Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542,
573 [229 Cal.Rptr.3d 347, 411 P.3d 528].) The jury must be instructed on the
applicable overtime pay formula. It is possible that the overtime rate will be
different over different periods of time.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code, and a series of 18 wage orders adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2014) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Both the Labor Code and the IWC wage
orders provide for certain exemptions from overtime laws. (See, e.g., Lab. Code,
§ 1171 [outside salespersons are exempt from overtime requirements]). The assertion
of an employee’s exemption is an affirmative defense, which presents a mixed
34
LABOR CODE ACTIONS CACI No. 2702
question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794
[85 Cal.Rptr.2d 844, 978 P.2d 2].) For instructions on exemptions, see CACI No.
2720, Affırmative Defense—Nonpayment of Overtime—Executive Exemption, and
CACI No. 2721, Affırmative Defense—Nonpayment of Overtime—Administrative
Exemption.
Sources and Authority
• Employee Right to Recover Minimum Wage or Overtime Compensation. Labor
Code section 1194(a).
• Recovery of Liquidated Damages. Labor Code section 1194.2.
• “Wages” Defined. Labor Code section 200.
• Payment of Uncontested Wages Required. Labor Code section 206(a).
• What Hours Worked Are Overtime. Labor Code section 510.
• Rate of Compensation. Labor Code section 515(d).
• Action by Department to Recover Unpaid Minimum Wage or Overtime
Compensation. Labor Code section 1193.6(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “[W]here an employer has no knowledge that an employee is engaging in
overtime work and that employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation . . . .” (Jong
v. Kaiser Foundation Health Plan, Inc. (2014) 226 Cal.App.4th 391, 395 [171
Cal.Rptr.3d 874] [applying rule under federal Fair Labor Standards Act to claims
under California Labor Code].)
• “[A]n employer’s actual or constructive knowledge of the hours its employees
work is an issue of fact . . . .” (Jong, supra, 226 Cal.App.4th at p. 399.)
• “The question whether [plaintiff] was an outside salesperson within the meaning
of applicable statutes and regulations is . . . a mixed question of law and fact.”
(Ramirez, supra, 20 Cal.4th at p. 794.)
• “The FLSA [federal Fair Labor Standards Act] requires overtime pay only if an
employee works more than 40 hours per week, regardless of the number of
hours worked during any one day. California law, codified at Labor Code section
510, is more stringent and requires overtime compensation for ‘[a]ny work in
excess of eight hours in one workday and any work in excess of 40 hours in any
one workweek.’ ” (Flowers v. Los Angeles County Metropolitan Transportation
Authority (2015) 243 Cal.App.4th 66, 83 [196 Cal.Rptr.3d 352], internal citation
omitted.)
• “We conclude that the flat sum bonus at issue here should be factored into an
employee’s regular rate of pay by dividing the amount of the bonus by the total
35
CACI No. 2702 LABOR CODE ACTIONS
number of nonovertime hours actually worked during the relevant pay period
and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime
pay rate.” (Alvarado, supra, 4 Cal.5th at p. 573.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 417, 420, 421, 437, 438, 439
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
Of Wages, ¶¶ 11:456, 11:470.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment Of
Overtime Compensation, ¶¶ 11:730, 11:955 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and
Regulation of Hours Worked, §§ 3.03[1], 3.04[1], 3.07[1], 3.08[1], 3.09[1]; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72 (Matthew
Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.40 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:76 (Thomson Reuters)
36
2703. Nonpayment of Overtime Compensation—Proof of Overtime
Hours Worked
New September 2003; Revised June 2005, December 2005, November 2019
Directions for Use
This instruction is intended for use when a nonexempt employee plaintiff is unable
to provide evidence of the precise number of hours worked because of the
employer’s failure to keep accurate payroll records. (See Hernandez v. Mendoza
(1988) 199 Cal.App.3d 721, 727–728 [245 Cal.Rptr. 36].)
Sources and Authority
• Right of Action for Unpaid Overtime. Labor Code section 1194(a).
• Employer Duty to Keep Payroll Records. Labor Code section 1174(d).
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “Although the employee has the burden of proving that he performed work for
which he was not compensated, public policy prohibits making that burden an
impossible hurdle for the employee. . . . ‘In such situation . . . an employee
has carried out his burden if he proves that he has in fact performed work for
which he was improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to come forward with evidence
37
CACI No. 2703 LABOR CODE ACTIONS
38
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code,
§§ 203, 218)
New September 2003; Revised June 2005, May 2019, May 2020, November 2021
Directions for Use
The first part of this instruction sets forth the elements required to obtain a waiting
time penalty under Labor Code section 203. The second part is intended to instruct
the jury on the facts required to assist the court in calculating the amount of waiting
time penalties. Some or all of these facts may be stipulated, in which case they may
be omitted from the instruction. Select between the factual scenarios in element 2 of
the second part: the employer eventually paid all wages due or the employer never
paid the wages due.
39
CACI No. 2704 LABOR CODE ACTIONS
The court must determine when final wages are due based on the circumstances of
the case and applicable law. (See Lab. Code, §§ 201, 202.) Final wages are
generally due on the day an employee is discharged by the employer (Lab. Code,
§ 201(a)), but are not due for 72 hours if an employee quits without notice. (Lab.
Code, § 202(a).)
If there is a factual dispute, for example, whether plaintiff gave advance notice of
the intention to quit, or whether payment of final wages by mail was authorized by
plaintiff, the court may be required to give further instruction to the jury.
The definition of “wages” may be deleted if it is included in other instructions.
Sources and Authority
• Wages of Discharged Employee Due Immediately. Labor Code section 201.
• Wages of Employee on Quitting. Labor Code section 202.
• Willful Failure to Pay Wages of Discharged Employee. Labor Code section 203.
• Right of Action for Unpaid Wages. Labor Code section 218.
• “Wages” Defined. Labor Code section 200.
• Payment for Accrued Vacation of Terminated Employee. Labor Code section
227.3.
• Wages Partially in Dispute. Labor Code section 206(a).
• Exemption for Certain Governmental Employers. Labor Code section 220(b).
• “Labor Code section 203 empowers a court to award ‘an employee who is
discharged or who quits’ a penalty equal to up to 30 days’ worth of the
employee’s wages ‘[i]f an employer willfully fails to pay’ the employee his full
wages immediately (if discharged) or within 72 hours (if he or she quits). It is
called a waiting time penalty because it is awarded for effectively making the
employee wait for his or her final paycheck. A waiting time penalty may be
awarded when the final paycheck is for less than the applicable wage—whether
it be the minimum wage, a prevailing wage, or a living wage.” (Diaz v. Grill
Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 867 [233 Cal.Rptr.3d 524],
original italics, internal citations omitted.)
• “ ‘[T]he public policy in favor of full and prompt payment of an employee’s
earned wages is fundamental and well established . . .’ and the failure to timely
pay wages injures not only the employee, but the public at large as well. We
have also recognized that sections 201, 202, and 203 play an important role in
vindicating this public policy. To that end, the Legislature adopted the penalty
provision as a disincentive for employers to pay final wages late. It goes without
saying that a longer statute of limitations for section 203 penalties provides
additional incentive to encourage employers to pay final wages in a prompt
manner, thus furthering the public policy.” (Pineda v. Bank of America, N.A.
(2010) 50 Cal.4th 1389, 1400 [117 Cal.Rptr.3d 377, 241 P.3d 870], internal
citations omitted.)
• “ ‘The plain purpose of [Labor Code] sections 201 and 203 is to compel the
40
LABOR CODE ACTIONS CACI No. 2704
calculation of a daily wage rate, which can then be multiplied by the number of
days of nonpayment, up to 30 days.” (Mamika v. Barca (1998) 68 Cal.App.4th
487, 493 [80 Cal.Rptr.2d 175].)
• “ ‘A tender of the wages due at the time of the discharge, if properly made and
in the proper amount, terminates the further accumulation of penalty, but it does
not preclude the employee from recovering the penalty already accrued.’ ”
(Oppenheimer v. Sunkist Growers, Inc. (1957) 153 Cal.App.2d Supp. 897, 899
[315 P.2d 116], citation omitted.)
• “[Plaintiff] fails to distinguish between a request for statutory penalties provided
by the Labor Code for employer wage-and-hour violations, which were
recoverable directly by employees well before the Act became part of the Labor
Code, and a demand for ‘civil penalties,’ previously enforceable only by the
state’s labor law enforcement agencies. An example of the former is section 203,
which obligates an employer that willfully fails to pay wages due an employee
who is discharged or quits to pay the employee, in addition to the unpaid wages,
a penalty equal to the employee’s daily wages for each day, not exceeding 30
days, that the wages are unpaid.” (Caliber Bodyworks, Inc. v. Superior Court
(2005) 134 Cal.App.4th 365, 377–378 [36 Cal.Rptr.3d 31].)
• “In light of the unambiguous statutory language, as well as the practical
difficulties that would arise under defendant’s interpretation, we conclude there is
but one reasonable construction: section 203(b) contains a single, three-year
limitations period governing all actions for section 203 penalties irrespective of
whether an employee’s claim for penalties is accompanied by a claim for unpaid
final wages.” (Pineda, supra, 50 Cal.4th at p. 1398.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 437–439
Chin et al., California Practice Guide: Employment Litigation, Ch. 1-A,
Introduction—Background, ¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B,
Compensation—Coverage and Exemptions—In General, ¶ 11:121 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D,
Compensation—Payment of Wages, ¶¶ 11:456, 11:470.1, 11:510, 11:513–11:515 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J,
Compensation—Enforcing California Laws Regulating Employee Compensation,
¶¶ 11:1458–11:1459, 11:1461–11:1461.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B,
Remedies—Contract Damages, ¶ 17:148 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
42
LABOR CODE ACTIONS CACI No. 2704
43
2705. Independent Contractor—Affirmative Defense—Worker Was
Not Hiring Entity’s Employee (Lab. Code, § 2775)
New November 2018; Revised May 2020, May 2021, November 2021
Directions for Use
This instruction may be used if a hiring entity claims that the worker is an
independent contractor and not an employee, and is primarily intended for use in
cases involving claims under the Labor Code, the Unemployment Insurance Code,
or a wage order. Any person providing services or labor for remuneration is
presumptively an employee. (Lab. Code, § 2775; see Dynamex Operations West, Inc.
v. Superior Court (2018) 4 Cal.5th 903, 913–914, & fn. 3 [232 Cal.Rptr.3d 1, 416
P.3d 1].) The hiring entity has the burden to prove independent contractor status.
(Lab. Code, § 2775(b)(1); Dynamex, supra, 4 Cal.5th at p. 916.) This instruction
may not be appropriate if the hiring entity claims independent contractor status
based on Proposition 22 (Bus. & Prof. Code, § 7451) or one of the many exceptions
listed in Labor Code sections 2776–2784. For an instruction on employment status
under the Borello test, see CACI No. 3704, Existence of “Employee” Status
Disputed.
The jury decides whether a worker is an employee or an independent contractor
only when there are disputed issues of fact material to the determination. (Espejo v.
The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 342 [221 Cal.Rptr.3d 1].) On
undisputed facts, the court decides whether the relationship is employment as a
matter of law. (Dynamex, supra, 4 Cal.5th at p. 963.)
Sources and Authority
• Worker Status: Employees. Labor Code section 2775.
44
LABOR CODE ACTIONS CACI No. 2705
• “The ABC test presumptively considers all workers to be employees, and permits
workers to be classified as independent contractors only if the hiring business
demonstrates that the worker in question satisfies each of three conditions: (a)
that the worker is free from the control and direction of the hirer in connection
with the performance of the work, both under the contract for the performance
of the work and in fact; and (b) that the worker performs work that is outside
the usual course of the hiring entity’s business; and (c) that the worker is
customarily engaged in an independently established trade, occupation, or
business of the same nature as that involved in the work performed.” (Dynamex,
supra, 4 Cal.5th at pp. 955–956.)
• “A business that hires any individual to provide services to it can always be said
to knowingly ‘suffer or permit’ such an individual to work for the business. A
literal application of the suffer or permit to work standard, therefore, would
bring within its reach even those individuals hired by a business—including
unquestionably independent plumbers, electricians, architects, sole practitioner
attorneys, and the like—who provide only occasional services unrelated to a
company’s primary line of business and who have traditionally been viewed as
working in their own independent business.” (Dynamex, supra, 4 Cal.5th at pp.
948–949.)
• “A multifactor standard—like the economic reality standard or the Borello
standard—that calls for consideration of all potentially relevant factual
distinctions in different employment arrangements on a case-by-case, totality-of-
the-circumstances basis has its advantages. A number of state courts,
administrative agencies and academic commentators have observed, however,
that such a wide-ranging and flexible test for evaluating whether a worker should
be considered an employee or an independent contractor has significant
disadvantages, particularly when applied in the wage and hour context.”
(Dynamex, supra, 4 Cal.5th at p. 954.)
• “Thus, on the one hand, when a retail store hires an outside plumber to repair a
leak in a bathroom on its premises or hires an outside electrician to install a new
electrical line, the services of the plumber or electrician are not part of the
store’s usual course of business and the store would not reasonably be seen as
having suffered or permitted the plumber or electrician to provide services to it
as an employee. On the other hand, when a clothing manufacturing company
hires work-at-home seamstresses to make dresses from cloth and patterns
supplied by the company that will thereafter be sold by the company, or when a
bakery hires cake decorators to work on a regular basis on its custom-designed
cakes, the workers are part of the hiring entity’s usual business operation and the
hiring business can reasonably be viewed as having suffered or permitted the
workers to provide services as employees. In the latter settings, the workers’ role
within the hiring entity’s usual business operations is more like that of an
employee than that of an independent contractor.” (Dynamex, supra, 4 Cal.5th at
pp. 959–960, internal citations omitted.)
• “A company that labels as independent contractors a class of workers who are
45
CACI No. 2705 LABOR CODE ACTIONS
47
2710. Solicitation of Employee by Misrepresentation—Essential
Factual Elements (Lab. Code, § 970)
Covenant of Good Faith and Fair Dealing, ¶¶ 4:351, 5:532, 5:540, 5:892.10,
16:493(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Defamation, ¶¶ 5:532, 5:540 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-K, False
Imprisonment, ¶¶ 5:891–5:8932.10 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-E, Statute of
Limitations, ¶ 16:493 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, § 4.51
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 249.30, 249.80 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:27 (Thomson Reuters)
50
2711. Preventing Subsequent Employment by
Misrepresentation—Essential Factual Elements (Lab. Code,
§ 1050)
former employee. It is patent that the aggrieved party must be the blacklisted
employee, not a union, since the latter can neither be fired nor quit.” (Service
Employees Internat. Union, Local 193, AFL-CIO v. Hollywood Park, Inc. (1983)
149 Cal.App.3d 745, 765 [197 Cal.Rptr. 316].)
• “Labor Code section 1050 applies only to misrepresentations made to
prospective employers other than the defendant. [¶] . . . [T]he Legislature
intended that Labor Code section 1050 would apply only to misstatements to
other potential employers, not to misstatements made internally by employees of
the party to be charged.” (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d
278, 288–289 [186 Cal.Rptr. 184].)
• A communication without malice solicited by a prospective employer from a
former employer would be privileged in accordance with Civil Code section
47(c). (See O’Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1047
[238 Cal.Rptr. 715].)
• “We . . . recognize that ‘[t]he primary purpose of punitive damages is to punish
the defendant and make an example of him.’ Since this purpose is the same as
the treble damages authorized by Labor Code section 1054, we do not sanction a
double recovery for the plaintiff. In the new trial on damages, the jury should be
instructed on the subject of punitive damages based on malice or oppression.
Any verdict finding compensatory damages must be trebled by the court.
Plaintiff may then elect to have judgment entered in an amount which reflects
either the statutory trebling, or the compensatory and punitive damages.”
(Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [190 Cal.Rptr. 392].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 302, 373, 374, 377, 379, 387, 416, 455, 459
Chin et al., California Practice Guide: Employment Litigation, Ch.4-D, Implied
Covenant of Good Faith and Fair Dealing, ¶ 4:351 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Defamation, ¶¶ 5:532, 5:540 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-K, False
Imprisonment, ¶¶ 5:891–5:893 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-E, Statute of
Limitations, ¶ 16:493 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 249.22[3][a], 249.31, 249.81 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:29 (Thomson Reuters)
2712–2719. Reserved for Future Use
52
2720. Affirmative Defense—Nonpayment of Overtime—Executive
Exemption
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an outside
salesperson, must steer clear of these two pitfalls by inquiring into the realistic
requirements of the job. In so doing, the court should consider, first and
foremost, how the employee actually spends his or her time. But the trial court
should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 392 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, §§ 2.04, 2.06
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
57
2721. Affirmative Defense—Nonpayment of
Overtime—Administrative Exemption
[defendant] was required to show all of the following: (1) his duties and
responsibilities involve the performance of office or nonmanual work directly
related to management policies or general business operations of [defendant]; (2)
he customarily and regularly exercises discretion and independent judgment; (3)
he performs work requiring special training, experience, or knowledge under
general supervision only (the two alternative prongs of the general supervision
element are not pertinent to our discussion); (4) he is primarily engaged in duties
that meet the test of exemption; and (5) his monthly salary is equivalent to no
less than two times the state minimum wage for full-time employment.” (United
Parcel Service Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1028 [relying
on 8 Cal. Code Regs., § 11090, subd. 1(A)(2)].)
• “Read together, the applicable Labor Code statutes, wage orders, and
incorporated federal regulations now provide an explicit and extensive
framework for analyzing the administrative exemption.” (Harris v. Superior
Court (2011) 53 Cal.4th 170, 182 [135 Cal.Rptr.3d 247, 266 P.3d 953].)
• “Determining whether or not all of the elements of the exemption have been
established is a fact-intensive inquiry.” (United Parcel Service Wage & Hour
Cases (2010) 190 Cal.App.4th 1001, 1014 [118 Cal.Rptr.3d 834].)
• “Review of the determination that [plaintiff] was not an exempt employee is a
mixed question of law and fact. Whether an employee satisfies the elements of
the exemption is a question of fact reviewed for substantial evidence. The
appropriate manner of evaluating the employee’s duties is a question of law that
we review independently.” (Heyen, supra, 216 Cal.App.4th at p. 817, internal
citations omitted.)
• “The appropriateness of any employee’s classification as exempt must be based
on a review of the actual job duties performed by that employee. Wage Order 9
expressly provides that ‘[t]he work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the
amount of time the employee spends on such work, together with the employer’s
realistic expectations and the realistic requirements of the job, shall be
considered . . . .’ No bright-line rule can be established classifying everyone
with a particular job title as per se exempt or nonexempt—the regulations
identify job duties, not job titles. ‘A job title alone is insufficient to establish the
exempt status of an employee. The exempt or nonexempt status of any particular
employee must be determined on the basis of whether the employee’s salary and
duties meet the requirements of the regulations . . . .’ ” (United Parcel Service
Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1014–1015, original italics,
internal citation omitted.)
• “This is not a day-by-day analysis. The issue is whether the employees ‘ “spend
more than 51% of their time on managerial tasks in any given workweek.” ’ ”
(Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 473, fn. 36 [216 Cal.Rptr.3d
390].)
• “Put simply, ‘the regulations do not recognize “hybrid” activities—i.e., activities
60
LABOR CODE ACTIONS CACI No. 2721
that have both “exempt” and “nonexempt” aspects. Rather, the regulations
require that each discrete task be separately classified as either “exempt’ or
“nonexempt.” [Citations.]’ [¶] We did not state, however, that the same task must
always be labeled exempt or nonexempt: ‘ [I]dentical tasks may be “exempt” or
‘nonexempt” based on the purpose they serve within the organization or
department.’ ” (Batze, supra, 10 Cal.App.5th at p. 474.)
• “In basic terms, the administrative/production worker dichotomy distinguishes
between administrative employees who are primarily engaged in ‘ “administering
the business affairs of the enterprise” ’ and production-level employees whose
‘ “primary duty is producing the commodity or commodities, whether goods or
services, that the enterprise exists to produce and market.” [Citation.]’ ¶¶ [T]he
dichotomy is a judicially created creature of the common law, which has been
effectively superseded in this context by the more specific and detailed statutory
and regulatory enactments.” (Harris, supra, 53 Cal.4th at pp. 183, 188.)
• “We do not hold that the administrative/production worker dichotomy . . . can
never be used as an analytical tool. We merely hold that the Court of Appeal
improperly applied the administrative/production worker dichotomy as a
dispositive test. [¶] . . . [I]n resolving whether work qualifies as administrative,
courts must consider the particular facts before them and apply the language of
the statutes and wage orders at issue. Only if those sources fail to provide
adequate guidance . . . is it appropriate to reach out to other sources.” (Harris,
supra, 53 Cal.4th at p. 190.)
• “[T]he federal regulations incorporated into Wage Order 7 do not support the
‘multi-tasking’ standard proposed by [defendant]. Instead, they suggest, as the
trial court correctly instructed the jury, that the trier of fact must categorize tasks
as either ‘exempt’ or ‘nonexempt’ based on the purpose for which [plaintiff]
undertook them.” (Heyen, supra, 216 Cal.App.4th at p. 826.)
• “Wage Order 4 refers to compensation in the form of a ‘salary.’ It does not
define the term. The regulation does not use a more generic term, such as
‘compensation’ or ‘pay.’ Either of these terms would encompass hourly wages, a
fixed annual salary, and anything in between. ‘Salary’ is a more specific form of
compensation. A salary is generally understood to be a fixed rate of pay as
distinguished from an hourly wage. Thus, use of the word ‘salary’ implies that
an exempt employee’s pay must be something other than an hourly wage.
California’s Labor Commission noted in an opinion letter dated March 1, 2002,
that the Division of Labor Standards Enforcement (DLSE) construes the IWC
wage orders to incorporate the federal salary-basis test for purposes of
determining whether an employee is exempt or nonexempt.” (Negri v. Koning &
Associates (2013) 216 Cal.App.4th 392, 397–398 [156 Cal.Rptr.3d 697, footnote
omitted.)
• “[T]he costs incurred by an employer to provide an employee with board,
lodging or other facilities may not count towards the minimum salary amount
required for exemption . . . .” (Kao v. Holiday (2017) 12 Cal.App.5th 947, 958
[219 Cal.Rptr.3d 580].)
61
CACI No. 2721 LABOR CODE ACTIONS
• “The rule is that state law requirements for exemption from overtime pay must
be at least as protective of the employee as the corresponding federal standards.
Since federal law requires that, in order to meet the salary basis test for
exemption the employee would have to be paid a predetermined amount that is
not subject to reduction based upon the number of hours worked, state law
requirements must be at least as protective.” (Negri, supra, 216 Cal.App.4th at p.
398.)
• “Under California law, to determine whether an employee was properly classified
as ‘exempt,’ the trier of fact must look not only to the ‘work actually performed
by the employee during the . . . workweek,’ but also to the ‘employer’s realistic
expectations and the realistic requirements of the job.’ ” (Heyen, supra, 216
Cal.App.4th at p. 828.)
• “Having recognized California’s distinctive quantitative approach to determining
which employees are outside salespersons, we must then address an issue
implicitly raised by the parties that caused some confusion in the trial court and
the Court of Appeal: Is the number of hours worked in sales-related activities to
be determined by the number of hours that the employer, according to its job
description or its estimate, claims the employee should be working in sales, or
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an outside
salesperson, must steer clear of these two pitfalls by inquiring into the realistic
requirements of the job. In so doing, the court should consider, first and
foremost, how the employee actually spends his or her time. But the trial court
should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 392 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, § 2.04 (Matthew
Bender)
62
LABOR CODE ACTIONS CACI No. 2721
11 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
2722–2731. Reserved for Future Use
63
2732. Retaliatory Unfair Immigration-Related Practice—Essential
Factual Elements (Lab. Code, § 1019)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
11 California Forms or Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][b] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
2733–2739. Reserved for Future Use
66
2740. Violation of Equal Pay Act—Essential Factual Elements
(Lab. Code, § 1197.5)
New May 2018; Revised January 2019, November 2019, May 2020
Directions for Use
The California Equal Pay Act prohibits paying employees at lower wage rates than
rates paid to employees of the opposite sex or a different race or ethnicity for
substantially similar work. (Lab. Code, § 1197.5(a), (b).) An employee receiving less
than the wage to which the employee is entitled may bring a civil action to recover
the balance of the wages, including interest, and an equal amount as liquidated
damages. Costs and attorney fees may also be awarded. (Lab. Code, § 1197.5(h).)
There is no requirement that an employee show discriminatory intent as an element
of the claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–625, 629
[3 Cal.Rptr.3d 844].)
This instruction presents singular and plural options for the comparator, the
employee or employees whose pay and work are being compared to the plaintiff’s to
establish a violation of the Equal Pay Act. The statute refers to employees of the
opposite sex or different race or ethnicity. There is language in cases, however, that
suggests that a single comparator (e.g., one woman to one man) is sufficient. (See
Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 [55 Cal.Rptr.3d
732] [plaintiff had to show that she is paid lower wages than a male comparator,
italics added]; Green, supra, 111 Cal.App.4th at p. 628 [plaintiff in a section 1197.5
action must first show that the employer paid a male employee more than a female
employee for equal work, italics added].) No California case has expressly so held,
however.
There are a number of defenses that the employer may assert to defend what
appears to be an improper pay differential. (Lab. Code, § 1197.5(a), (b).) See CACI
67
CACI No. 2740 LABOR CODE ACTIONS
No. 2741, Affırmative Defense—Different Pay Justified, and CACI No. 2742, Bona
Fide Factor Other Than Sex, Race, or Ethnicity, for instructions on the employer’s
affirmative defenses. (See Lab. Code, § 1197.5(a)(1), (b)(1).)
Sources and Authority
• Right to Equal Pay Based on Gender, Race, or Ethnicity. Labor Code section
1197.5(a), (b).
• Private Right of Action to Enforce Equal Pay Claim. Labor Code section
1197.5(h).
• “This section was intended to codify the principle that an employee is entitled to
equal pay for equal work without regard to gender.” (Jones v. Tracy School Dist.
(1980) 27 Cal.3d 99, 104 [165 Cal.Rptr. 100, 611 P.2d 441].)
• “To establish her prima facie case, [plaintiff] had to show not only that she is
paid lower wages than a male comparator for equal work, but that she has
selected the proper comparator. ‘The EPA does not require perfect diversity
between the comparison classes, but at a certain point, when the challenged
policy effects [sic] both male and female employees equally, there can be no
EPA violation. [Citation.] [A plaintiff] cannot make a comparison of one
classification composed of males and females with another classification of
employees also composed of males and females.’ ” (Hall, supra, 148
Cal.App.4th at pp. 324–325.)
• “[T]he plaintiff in a section 1197.5 action must first show that the employer paid
a male employee more than a female employee ‘ “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.” ’ ” (Green, supra, 111
Cal.App.4th at p. 628.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.14 (Matthew Bender)
68
2741. Affirmative Defense—Different Pay Justified
70
2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
[Name of defendant] claims that [specify bona fide factor other than sex,
race, or ethnicity] is a legitimate factor other than [sex/race/ethnicity] that
justifies paying [name of plaintiff] at a wage rate that is less than the rate
paid to employees of [the opposite sex/another race/another ethnicity].
[Specify factor] is a factor that justifies the pay differential only if [name
of defendant] proves all of the following:
1. That the factor is not based on or derived from a [sex/race/
ethnicity]-based differential in compensation;
2. That the factor is job related with respect to [name of plaintiff]’s
position; and
3. That the factor is consistent with a business necessity.
A “business necessity” means an overriding legitimate business purpose
such that the factor effectively fulfills the business purpose it is supposed
to serve.
This defense does not apply, however, if [name of plaintiff] proves that an
alternative business practice exists that would serve the same business
purpose without producing the pay differential.
71
CACI No. 2742 LABOR CODE ACTIONS
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1077.10 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
72
2743. Equal Pay Act—Retaliation—Essential Factual Elements
(Lab. Code, § 1197.5(k))
74
2750. Failure to Reimburse Employee for Necessary Expenditures
or Losses—Essential Factual Elements (Lab. Code, § 2802(a))
76
2752. Tip Pool Conversion—Essential Factual Elements (Lab.
Code, § 351)
the owner, managers, and supervisors. For the second option, the court must
determine as a matter of law whether an individual was properly included in the tip
pool. (See Lab. Code, § 350(a), (d) [defining employer and agent to include “every
person other than the employer having the authority to hire or discharge any
employee or supervise, direct, or control the acts of employees”], § 351 [prohibiting
employers and agents from receiving any gratuity paid to an employee by a patron].
Include the optional sentence in the introductory paragraph if the court has
determined that the defendant allowed ineligible individuals to partake in the tip
pool.
Sources and Authority
• “Employer” Defined. Labor Code section 350(a).
• “Employee” Defined. Labor Code section 350(b).
• “Gratuity” Defined. Labor Code section 350(e).
• Employee Gratuities. Labor Code section 351.
• Employer’s Duty to Keep Records. Labor Code section 353.
• “The purpose of section 351, as spelled out in the language of the statute, is to
prevent an employer from collecting, taking or receiving gratuity income or any
part thereof, as his own as part of his daily gross receipts, from deducting from
an employee’s wages any amount on account of such gratuity, and from
requiring an employee to credit the amount of the gratuity or any part thereof
against or as a part of his wages. And the legislative intent reflected in the
history of the statute, was to ensure that employees, not employers, receive the
full benefit of gratuities that patrons intend for the sole benefit of those
employees who serve them.” (Leighton v. Old Heidelberg, Ltd. (1990) 219
Cal.App.3d 1062, 1068 [268 Cal.Rptr. 647].)
• “[W]hen a customer leaves a tip in a collective tip box, the customer necessarily
understands the tip is not intended for a particular person and the tip will be
divided among the behind-the-counter service employees. It is undisputed that
these employees consist of baristas and shift supervisors. It would be
inconsistent with the purpose of the statute to require an employer to disregard
the customer’s intent and to instead compel the employer to redirect the tips to
only some of the service personnel.” (Chau v. Starbucks Corp. (2009) 174
Cal.App.4th 688, 699 [94 Cal.Rptr.3d 593], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 456
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10 (Matthew
Bender)
78
2753. Failure to Pay All Vested Vacation Time—Essential Factual
Elements (Lab. Code, § 227.3)
paid in wages for a pro rata share of his vacation pay.” (Suastez, supra, 31
Cal.3d at p. 784.)
• “Under Labor Code section 227.3, an employee has the right to be paid for
unused vacation only after the ‘employee is terminated without having taken off
his vested vacation time.’ Thus, termination of employment is the event that
converts the employer’s obligation to allow an employee to take vacation from
work into the monetary obligation to pay that employee for unused vested
vacation time. Consequently, [the plaintiff’s] cause of action to enforce his
statutory right to be paid for vested vacation did not accrue until the date his
employment was terminated.” (Church v. Jamison (2006) 143 Cal.App.4th 1568,
1576–1577 [50 Cal.Rptr.3d 166], footnote omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 461–463
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.40 (Matthew
Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.16 (Matthew Bender)
80
2754. Reporting Time Pay—Essential Factual Elements
those things. And if, as plaintiff alleges in this case, the employer directs
employees to present themselves for work by telephoning the store two hours
prior to the start of a shift, then the reporting time requirement is triggered by
the telephonic contact.” (Ward, supra, 31 Cal.App.5th at p. 1185, original
italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 432
1 Wilcox, California Employment Law, Ch. 1, Overview of Wage and Hour Laws,
§ 1.05; Ch. 3, Determining Compensable Hours and Proper Payment Amounts,
§ 3.13 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
2755–2759. Reserved for Future Use
83
2760. Rest Break Violations—Introduction (Lab. Code, § 226.7)
86
2761. Rest Break Violations—Essential Factual Elements (Lab.
Code, § 226.7)
For each workday on which [name of plaintiff] has proved one or more
rest break violations, [name of defendant] must pay one additional hour
of pay at [name of plaintiff]’s regular rate of pay. You must determine the
amount of pay owed for the rest break violations that [name of plaintiff]
has proved.
[The “regular rate of pay” for [name of plaintiff] from [insert beginning
date] to [insert ending date] was [insert applicable formula]. [Repeat as
necessary for date ranges with different regular rates of pay.] Multiply the
regular rate of pay by the number of workdays for which [name of
plaintiff] has proved one or more rest break violations.]
the same meaning as ‘regular rate of pay’ in section 510(a) and encompasses not
only hourly wages but all nondiscretionary payments for work performed by the
employee. This interpretation of section 226.7(c) comports with the remedial
purpose of the Labor Code and wage orders and with our general guidance that
the ‘state’s labor laws are to be liberally construed in favor of worker
protection.’ ” (Ferra, supra, 11 Cal.5th at p. 878.)
• “[W]e hold that the Court of Appeal erred in construing section 226.7 as a
penalty and applying a one-year statute of limitations. The statute’s plain
language, the administrative and legislative history, and the compensatory
purpose of the remedy compel the conclusion that the ‘additional hour of pay’ is
a premium wage intended to compensate employees, not a penalty.” (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [56 Cal.Rptr.3d
880, 155 P.3d 284], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 390
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4.1, 4.74, 4.76 (Thomson
Reuters)
2763–2764. Reserved for Future Use
89
2765. Meal Break Violations—Introduction (Lab. Code, §§ 226.7,
512)
90
LABOR CODE ACTIONS CACI No. 2765
• Employer Duty to Keep Time Records. Cal. Code Regs., tit. 8, §§ 11010–11030,
11060–11110, 11150, ¶ 11(C), 11040–11050 & 11130–11140, ¶ 11(A), § 11120,
¶ 11(B), § 11160, ¶ 10(D).
• “Workday” Defined. Labor Code section 500.
• “An employer’s duty with respect to meal breaks under both section 512,
subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period
to its employees. The employer satisfies this obligation if it relieves its
employees of all duty, relinquishes control over their activities and permits them
a reasonable opportunity to take an uninterrupted 30-minute break, and does not
impede or discourage them from doing so. What will suffice may vary from
industry to industry, and we cannot in the context of this class certification
proceeding delineate the full range of approaches that in each instance might be
sufficient to satisfy the law.” (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1040 [139 Cal.Rptr.3d 315, 273 P.3d 513].)
• “[U]nder the relevant statute and wage order, an employee becomes entitled to
premium pay for missed or noncompliant meal and rest breaks precisely because
she was required to work when she should have been relieved of duty: required
to work too long into a shift without a meal break; required in whole or part to
work through a break; or, as was the case here, required to remain on duty
without an appropriate agreement in place authorizing on-duty meal breaks.”
(Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 106–107 [293
Cal.Rptr.3d 599, 509 P.3d 956].)
• “Accordingly, we conclude that Wage Order No. 5 imposes no meal timing
requirements beyond those in section 512. Under the wage order, as under the
statute, an employer’s obligation is to provide a first meal period after no more
than five hours of work and a second meal period after no more than 10 hours
of work.” (Brinker Restaurant Corp., supra, 53 Cal.4th at p. 1049.)
• “An employee who remains on duty during lunch is providing the employer
services; so too the employee who works without relief past the point when
permission to stop to eat or rest was legally required. Section 226.7 reflects a
determination that work in such circumstances is worth more—or should cost the
employer more—than other work, and so requires payment of a premium.”
(Naranjo, supra, 13 Cal.5th at p. 107.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390–391
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 3, Determining Compensable Hours and
Proper Payment Amounts, § 3.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
92
2766A. Meal Break Violations—Essential Factual Elements (Lab.
Code, §§ 226.7, 512)
93
2766B. Meal Break Violations—Rebuttable
Presumption—Employer Records
An employer must keep accurate records of the start and end times of
each meal break. [Specify noncompliance in records that gives rise to
rebuttable presumption of meal break violation, e.g., missing time records,
records showing missed meal breaks, meal breaks of less than 30 minutes, or
meal breaks taken too late in a workday may prove a meal break violation.]
If you decide that [name of plaintiff] has proved that [[name of defendant]
did not keep accurate records of compliant meal breaks/[name of
defendant]’s records show [missed/ [,/or] shortened/ [,/or] delayed] meal
breaks], then your decision on [name of plaintiff]’s meal break claim must
be for [name of plaintiff] unless [name of defendant] proves all of the
following:
1. That [name of defendant] provided [name of plaintiff] a reasonable
opportunity to take uninterrupted 30-minute meal breaks on
time;
2. That [name of defendant] did not impede [name of plaintiff] from
taking 30-minute meal breaks;
3. That [name of defendant] did not discourage [name of plaintiff]
from taking 30-minute meal breaks;
4. That [name of defendant] relieved [name of plaintiff] of all duties
during 30-minute meal breaks; and
5. That [name of defendant] relinquished control over [name of
plaintiff]’s activities during 30-minute meal breaks.
If you decide that [name of defendant] has proved all of the above for
each meal break, then there have been no meal break violations and
your decision must be for [name of defendant].
However, if you decide that [name of defendant] has not proved all of the
above for each meal break, then you must still decide how many
workdays [name of defendant] did not prove all of the above and you
must determine the amount of pay owed.
[Name of defendant] must pay one additional hour of pay at [name of
plaintiff]’s regular rate of pay for each workday on which [name of
defendant] did not prove all of the above.
[The “regular rate of pay” for [name of plaintiff] from [insert beginning
date] to [insert ending date] was [insert applicable formula]. [Repeat as
necessary for date ranges with different regular rates of pay.] Multiply the
regular rate of pay by the number of workdays for which [name of
94
LABOR CODE ACTIONS CACI No. 2766B
• “The practice of rounding time punches for meal periods is inconsistent with the
purpose of the Labor Code provisions and the IWC wage order. The text of
Labor Code section 512 and Wage Order No. 4 sets precise time requirements
for meal periods. Each meal period must be ‘not less than 30 minutes,’ and no
employee shall work ‘more than five hours per day’ or ‘more than 10 hours per
day’ without being provided with a meal period. These provisions speak directly
to the calculation of time for meal period purposes. [¶ ] The precision of the
time requirements set out in Labor Code section 512 and Wage Order No.
4—‘not less than 30 minutes’ and ‘five hours per day’ or ‘10 hours per day’—is
at odds with the imprecise calculations that rounding involves. The regulatory
scheme that encompasses the meal period provisions is concerned with small
amounts of time. For example, we have ‘requir[ed] strict adherence to’ the Labor
Code’s requirement that employees receive two daily 10-minute rest periods and
‘scrupulously guarded against encroachments on’ these periods. The same
vigilance is warranted here. Given the relatively short length of a 30-minute
meal period, the potential incursion that might result from rounding is
significant.” (Donohue, supra, 11 Cal.5th at p. 68, internal citations omitted.)
• “Because time records are required to be accurate, it makes sense to apply a
rebuttable presumption of liability when records show noncompliant meal
periods. If the records are accurate, then the records reflect an employer’s true
liability; applying the presumption would not adversely affect an employer that
has complied with meal period requirements and has maintained accurate
records. If the records are incomplete or inaccurate—for example, the records do
not clearly indicate whether the employee chose to work during meal periods
despite bona fide relief from duty—then the employer can offer evidence to
rebut the presumption. It is appropriate to place the burden on the employer to
plead and prove, as an affirmative defense, that it genuinely relieved employees
from duty during meal periods. ‘To place the burden elsewhere would offer an
employer an incentive to avoid its recording duty and a potential windfall from
the failure to record meal periods.’ ” (Donohue, supra, 11 Cal.5th at p. 76,
internal citations omitted.)
• “[Defendant] misunderstands how the rebuttable presumption operates at the
summary judgment stage. Applying the presumption does not mean that time
records showing missed, short, or delayed meal periods result in ‘automatic
liability’ for employers. If time records show missed, short, or delayed meal
periods with no indication of proper compensation, then a rebuttable presumption
arises. Employers can rebut the presumption by presenting evidence that
employees were compensated for noncompliant meal periods or that they had in
fact been provided compliant meal periods during which they chose to work.
‘Representative testimony, surveys, and statistical analysis,’ along with other
types of evidence, ‘are available as tools to render manageable determinations of
the extent of liability.’ Altogether, this evidence presented at summary judgment
may reveal that there are no triable issues of material fact. The rebuttable
presumption does not require employers to police meal periods. Instead, it
96
LABOR CODE ACTIONS CACI No. 2766B
97
2767. Meal Break Violations—Pay Owed
For each workday on which [name of plaintiff] has proved one or more
meal break violations, [name of defendant] must pay one additional hour
of pay at [name of plaintiff]’s regular rate of pay. You must determine the
amount of pay owed for the meal break violations that [name of plaintiff]
has proved.
[The “regular rate of pay” for [name of plaintiff] from [insert beginning
date] to [insert ending date] was [insert applicable formula]. [Repeat as
necessary for date ranges with different regular rates of pay.] Multiply the
regular rate of pay by the number of workdays for which [name of
plaintiff] has proved one or more meal break violations.]
100
2770. Affirmative Defense—Meal Breaks—Waiver by Mutual
Consent
102
2771. Affirmative Defense—Meal Breaks—Written Consent to On-
Duty Meal Breaks
104
2775. Nonpayment of Wages Under Rounding System—Essential
Factual Elements
106
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2711, Nonpayment of Wages—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
107
VF-2700 LABOR CODE ACTIONS
findings that are required in order to calculate the amount of prejudgment interest.
108
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2701, Nonpayment of Minimum
Wage—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. If there are multiple causes
of action, users may wish to combine the individual forms into one form. If
different damages are recoverable on different causes of action, replace the damages
tables in all of the verdict forms with CACI No. VF-3920, Damages on Multiple
Legal Theories.
109
VF-2701 LABOR CODE ACTIONS
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.
110
VF-2702. Nonpayment of Overtime Compensation (Lab. Code,
§ 1194)
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.
111
VF-2702 LABOR CODE ACTIONS
New September 2003; Revised December 2010, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
112
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab.
Code, §§ 203, 218)
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.
113
VF-2703 LABOR CODE ACTIONS
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2704, Damages—Waiting-Time Penalty for
Nonpayment of Wages. Depending on the facts of the case, other factual scenarios
can be substituted in questions 2, 3, and 4, as in elements 2, 3, and 4 in the
instruction.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
114
VF-2704. Solicitation of Employee by Misrepresentation (Lab.
Code, § 970)
plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2710, Solicitation of Employee by
116
LABOR CODE ACTIONS VF-2704
117
VF-2705. Preventing Subsequent Employment by
Misrepresentation (Lab. Code, § 1050)
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2700, Preventing Subsequent Employment
by Misrepresentation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
119
VF-2705 LABOR CODE ACTIONS
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code 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.
120
VF-2706. Rest Break Violations (Lab. Code, § 226.7)
Signed:
Presiding Juror
Dated:
[After this verdict form has/After all verdict forms have] been signed,
notify the [clerk/bailiff/court attendant] that you are ready to present
your verdict in the courtroom.
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
122
VF-2707. Meal Break Violations (Lab. Code, §§ 226.7, 512)
Signed:
Presiding Juror
Dated:
[After this verdict form has/After all verdict forms have] been signed,
notify the [clerk/bailiff/court attendant] that you are ready to present
your verdict in the courtroom.
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2708–VF-2799. Reserved for Future Use
124
WORKERS’ COMPENSATION
125
2800. Employer’s Affirmative Defense—Injury Covered by
Workers’ Compensation
should not be given if the plaintiff/employee has been determined to fall within a
statutory exception.
If appropriate to the facts of the case, see instructions on the going-and-coming rule
in the Vicarious Responsibility series. These instructions may need to be modified to
fit this context.
Sources and Authority
• Exclusive Remedy. Labor Code section 3602(a).
• Conditions of Compensation. Labor Code section 3600(a).
• If Conditions of Compensation Not Met. Labor Code section 3602(c).
• “Employee” Defined. Labor Code section 3351.
• Presumption of Employment Status. Labor Code section 3357.
• Failure to Secure Payment of Compensation. Labor Code section 3706.
• “[T]he basis for the exclusivity rule in workers’ compensation law is the
‘presumed “compensation bargain,” pursuant to which the employer assumes
liability for industrial personal injury or death without regard to fault in
exchange for limitations on the amount of that liability. The employee is
afforded relatively swift and certain payment of benefits to cure or relieve the
effects of industrial injury without having to prove fault but, in exchange, gives
up the wider range of damages potentially available in tort.’ ” (Fermino v.
Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal
citation omitted.)
• “Because an employer faced with a civil complaint seeking to enforce a common
law remedy which does not state facts indicating coverage by the act bears the
burden of pleading and proving ‘that the (act) is a bar to the employee’s
ordinary remedy,’ we believe that the burden includes a showing by the
employer-defendant, through appropriate pleading and proof, that he had
‘secured the payment of compensation’ in accordance with the provisions of the
act.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98, fn. 8 [151 Cal.Rptr. 347,
587 P.2d 1160], internal citations omitted.)
• “A defendant need not plead and prove that it has purchased workers’
compensation insurance where the plaintiff alleges facts that otherwise bring the
case within the exclusive province of workers’ compensation law, and no facts
presented in the pleadings or at trial negate the workers’ compensation law’s
application or the employer’s insurance coverage.” (Gibbs v. American Airlines,
Inc. (1999) 74 Cal.App.4th 1, 14 [87 Cal.Rptr.2d 554], internal citations
omitted.)
• “[T]he fact that an employee has received workers’ compensation benefits from
some source does not bar the employee’s civil action against an uninsured
employer. Instead, ‘[t]he price that must be paid by each employer for immunity
from tort liability is the purchase of a workers’ compensation policy [and where
the employer chooses] not to pay that price . . . it should not be immune from
127
CACI No. 2800 WORKERS’ COMPENSATION
must occur “in the course of the employment.” This concept “ordinarily refers to
the time, place, and circumstances under which the injury occurs.” Thus “ ‘[a]n
employee is in the “course of his employment” when he does those reasonable
things which his contract with his employment expressly or impliedly permits
him to do.’ ” And, ipso facto, an employee acts within the course of his
employment when “ ‘performing a duty imposed upon him by his employer and
one necessary to perform before the terms of the contract [are] mutually
satisfied.’ ” ’ [¶] ‘On the other hand, the statute requires that an injury “arise out
of” the employment. . . . It has long been settled that for an injury to “arise out
of the employment” it must “occur by reason of a condition or incident of [the]
employment . . . .” That is, the employment and the injury must be linked in
some causal fashion.’ ” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17
Cal.4th 644, 651 [72 Cal.Rptr.2d 217, 951 P.2d 1184], internal citations and
footnote omitted.)
• “The requirements that an injury arise out of employment or be proximately
caused by employment are sometimes referred to together as the requirement of
industrial causation. It is a looser concept of causation than the concept of
proximate cause employed in tort law. In general, the industrial causation
requirement is satisfied ‘if the connection between work and the injury [is] a
contributing cause of the injury . . . .’ ” (Lee v. West Kern Water Dist. (2016) 5
Cal.App.5th 606, 624 [210 Cal.Rptr.3d 362], internal citation omitted.)
• “For our purposes here, it is important that ‘arising out of’ and ‘in the course of’
are two separate requirements. Even if it is conceded that an employee was
injured while performing job tasks in the workplace during working hours, the
exclusivity rule applies only if it also is shown that the work was a contributing
cause of the injury.” (Lee, supra, 5 Cal.App.5th at p. 625.)
• “The jury could properly make this finding [that conduct was not within scope
of employment] by applying special instruction No. 5, the instruction stating that
an employer’s conduct falls outside the workers’ compensation scheme when an
employer steps outside of its proper role or engages in conduct unrelated to the
employment. This instruction stated the doctrine of Fermino correctly.” (Lee,
supra, 5 Cal.App.5th at pp. 628–629.)
• “The concept of ‘scope of employment’ in tort is more restrictive than the phrase
‘arising out of and in the course of employment,’ used in workers’
compensation.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86
Cal.App.4th 1053, 1057 [103 Cal.Rptr.2d 790], internal citations omitted.)
• “Whether an employee’s injury arose out of and in the course of her
employment is generally a question of fact to be determined in light of the
circumstances of the particular case. However, where the facts are undisputed,
resolution of the question becomes a matter of law.” (Wright v. Beverly Fabrics,
Inc. (2002) 95 Cal.App.4th 346, 353 [115 Cal.Rptr.2d 503], internal citations
omitted.)
• “Injuries sustained while an employee is performing tasks within his or her
130
WORKERS’ COMPENSATION CACI No. 2800
employment contract but outside normal work hours are within the course of
employment. The rationale is that the employee is still acting in furtherance of
the employer’s business.” (Wright, supra, 95 Cal.App.4th at p. 354.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 23–49
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:520 et seq., 15:555 (The Rutter
Group)
1 Hanna, California Law of Employee Injuries and Workers’ Compensation (2d ed.)
Ch. 4, §§ 4.03–4.06 (Matthew Bender)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 10, The Injury,
§ 10.09 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.10
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§§ 10.02, 10.03[3], 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.310, 577.530 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
131
2801. Employer’s Willful Physical Assault—Essential Factual
Elements (Lab. Code, § 3602(b)(1))
134
2802. Fraudulent Concealment of Injury—Essential Factual
Elements (Lab. Code, § 3602(b)(2))
bargain, even as it reinforces the exclusivity rule by repealing the dual capacity
doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18,
872 P.2d 559], internal citation omitted.)
• “In general, the Workers’ Compensation Act provides an employee with his or
her exclusive remedy for a work-related injury. Subject to narrow exceptions,
‘where the . . . conditions of compensation concur,’ an injured employee cannot
maintain a civil action against his or her employer or another employee.” (Lopez
v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430 [124 Cal.Rptr.2d 227],
internal citation omitted.)
• “[A]n employee seeking to state a cause of action against an employer under
section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the
trier of fact, establish the existence of three essential elements: (1) the employer
knew that the plaintiff had suffered a work-related injury; (2) the employer
concealed that knowledge from the plaintiff; and (3) the injury was aggravated
as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002)
99 Cal.App.4th 80, 89–90 [120 Cal.Rptr.2d 741], internal citation omitted.)
• “While there are no cases defining the term ‘fraudulent concealment’ as used in
the section, its general meaning is not difficult to discern. According to both
statute and case law, the failure to disclose facts may constitute fraud if the party
with knowledge has a duty to make disclosure. We have no reason to believe
that the term ‘fraudulent concealment’ as used in subdivision (b)(2) was intended
to have a meaning other than this.” (Foster v. Xerox Corp. (1985) 40 Cal.3d 306,
309–310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations omitted.)
• “An employer’s actual knowledge of the existence of an employee’s injury
connected with the employment is a necessary prerequisite to establishing a
claim against the employer for fraudulent concealment under section 3602(b)(2).
This principle is based on the rationale that an employer cannot be held liable
under section 3602(b)(2) for concealing something of which it had no
knowledge.” (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations
omitted.)
• “In order to succeed in their attempt to remove their case from the workers’
compensation law, appellants first had to show an ‘injury.’ They then had to
prove that the injury was aggravated by Firestone’s fraudulent concealment of
the existence of the injury and its connection with the employment.” (Santiago v.
Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274 Cal.Rptr.
576], internal citation omitted.)
• “The Supreme Court in Johns-Manville recognized that the aggravation of an
injury that results when an employer fraudulently conceals the injury’s cause is a
harm distinct from the injury itself. For this reason, aggravation that results
when an employer fraudulently conceals an injury’s cause remains actionable
even though the injured party has recovered worker’s compensation benefits for
the injury itself.” (Aerojet General Corp. v. Superior Court (1986) 177
Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)
136
WORKERS’ COMPENSATION CACI No. 2802
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 50, 51
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:526.1, 15:570, 15:570.5–15:570.6,
15:590 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][c] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][d] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.314[3], 577.525 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
137
2803. Employer’s Defective Product—Essential Factual Elements
(Lab. Code, § 3602(b)(3))
139
2804. Removal or Noninstallation of Power Press
Guards—Essential Factual Elements (Lab. Code, § 4558)
large power tools. Many of these power tools are run by large mechanical
motors or hydraulically. . . . These sorts of machines are difficult to stop while
they are in their sequence of operation. Without guards, workers are susceptible
to extremely serious injuries. For this reason, the Legislature passed section
4558, subdivision (b), which subjects employers to legal liability for removing
guards from powerful machinery where the manufacturer has designed the
machine to have a protective guard while in operation.” (LeFiell Manufacturing
Co. v. Superior Court (2014) 228 Cal.App.4th 883, 892 [175 Cal.Rptr.3d 894].)
• “A cause of action under section 4558 includes the following elements: (a) that
the injury or death is proximately caused by the employer’s knowing removal of,
or knowing failure to install, a point of operation guard on a power press; and
(b) that this removal or failure to install is specifically authorized by the
employer under conditions known by the employer to create a probability of
serious injury or death.” (Saldana v. Globe-Weis Systems Co. (1991) 233
Cal.App.3d 1505, 1516 [285 Cal.Rptr. 385].)
• “A power press is ‘any material-forming machine that utilizes a die which is
designed for use in the manufacture of other products.’ ‘This definition entails
four elements. The power press itself is a machine. It is a machine that forms
materials. The formation of materials is effectuated with a die. Finally, the
materials being formed with the die are being formed in the manufacture of
other products.’ ” (LeFiell, supra, 228 Cal.App.4th at p. 893.)
• “The meaning of the term ‘point of operation guard’ in section 4558 is a legal
question.” (LeFiell, supra, 228 Cal.App.4th at p. 893.)
• “[T]he type of injury excluded from the workers’ compensation system in section
4558 arises from the inherent danger to hands and other body parts at the point
in which the die shapes the material in the absence of guards or safety devices.”
(LeFiell, supra, 228 Cal.App.4th at p. 897.)
• “Limiting the definition of ‘point of operation guard’ to the area where the die
forms the material on a power press is consistent with the legislative purpose in
enacting section 4558.” (LeFiell, supra, 228 Cal.App.4th at p. 895.)
• “From the plain language of section 4558, it is clear that an exception to the
exclusivity of workers’ compensation only arises for a power press injury where
the employer has been expressly informed by the manufacturer that a point of
operation guard is required, where the employer then affirmatively removes or
fails to install such guard, and where the employer does so under conditions
known by the employer to create a probability of serious injury or death. Absent
facts which would establish the employer’s knowledge or action regarding the
absence of a point of operation guard on a power press, the incident would not
come within the exception of section 4558, and an employee would not be
entitled to bring ‘an action at law for damages’ arising from the power press
injury. If such action cannot be brought on its own where the facts fail to
establish all the elements of the power press exception under section 4558, it
follows that individual causes of action against an employer which do not meet
141
CACI No. 2804 WORKERS’ COMPENSATION
the requirements of section 4558 cannot be bootstrapped onto a civil action for
damages which is properly brought under section 4558.” (Award Metals, Inc. v.
Superior Court (1991) 228 Cal.App.3d 1128, 1134 [279 Cal.Rptr. 459].)
• “In all its pertinent uses, then, the term ‘die’ refers to a tool that imparts shape
to material by pressing or impacting against or through the material, that is, by
punching, stamping or extruding; in none of its uses does the term refer to a tool
that imparts shape by cutting along the material in the manner of a blade.”
(Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 [92 Cal.Rptr.2d
465, 991 P.2d 1256].)
• “[U]nder subdivisions (a)(2) and (c), liability for ‘failure to install’ a point of
operation guard under section 4558 must be predicated upon evidence that the
‘manufacturer’ either provided or required such a device, which was not installed
by the employer.” (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th
1019, 1027 [20 Cal.Rptr.2d 666].)
• “We find that the term guard, as used in section 4558, is meant to include the
myriad apparatus which are available to accomplish the purpose of keeping the
hands of workers outside the point of operation whenever the ram is capable of
descending. Because we find that the term guard is not a specific legal term of
art, we hold that the trial court properly provided the jury with a dictionary
definition of the term guard to explain its meaning under section 4558.”
(Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [282 Cal.Rptr. 161],
internal citation omitted; cf. Gonzalez v. Seal Methods, Inc. (2014) 223
Cal.App.4th 405, 410 [166 Cal.Rptr.3d 895] [point of operation guard does not
include unattached device, such as a safety block, that the worker moves into
and out of the point of operation].)
• “Physical removal, for the purpose of liability under section 4558, means to
render a safeguarding apparatus, whether a device or point of operation guard,
dysfunctional or unavailable for use by the operator for the particular task
assigned.” (Bingham, supra, 231 Cal.App.3d at p. 68.)
• “Nothing in the language, history or objectives underlying section 4558
convinces us that the Legislature intended that section 4558 would immunize
employers who design, manufacture and install their own power presses without
point of operation guards. A manufacturer is defined broadly in section 4558 as a
‘designer, fabricator, or assembler of a power press.’ An ‘employer’ is not
excluded from the definition of a manufacturer, nor would doing so promote the
objectives of the statute.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp.
1029–1030, internal citation omitted.)
• “The element of knowledge requires ‘actual awareness’ by the employer—rather
than merely constructive knowledge—that a point of operation guard has either
been provided for or is required to prevent the probability of serious injury or
death.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1031–1032, internal
citation and footnote omitted.)
• “Liability under section 4558 can only be imposed if the employer fails to use or
142
WORKERS’ COMPENSATION CACI No. 2804
143
2805. Employee Not Within Course of Employment—Employer
Conduct Unrelated to Employment
unwittingly participating in the mock robbery as a victim was not part of the
employee’s work.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
628–629 [210 Cal.Rptr.3d 362].)
• “The jury could properly find the injury did not arise out of the employee’s work
because it was caused by such employer action and therefore the conditions of
compensation did not exist. To hold that the jury must first find the injury to be
within the conditions of compensation and then find it also to be within the
Fermino exception, instead of simply finding that the conditions of compensation
were not met in the first place in light of Fermino, would be elevating form over
substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)
• “[T]he exclusive remedy provisions are not applicable under certain
circumstances, sometimes variously identified as ‘conduct where the employer or
insurer stepped out of their proper roles’ [citations], or ‘conduct of an employer
having a “questionable” relationship to the employment’ [citations], but which
may be essentially defined as not stemming from a risk reasonably encompassed
within the compensation bargain.” (Light v. Department of Parks & Recreation
(2017) 14 Cal.App.5th 75, 97 [221 Cal.Rptr.3d 668].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation, § 62
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption—Preemption Defenses, ¶ 15:526 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 20, Workers’ Compensation, § 20.13
(Matthew Bender)
Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 11,
Actions Against the Employer Under State Law and Third-Party Tort Actions,
§ 11.05 (Matthew Bender)
52 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.315 (Matthew Bender)
20 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.39 (Matthew Bender)
California Workers’ Compensation Law and Practice, Ch. 2, Jurisdiction, § 2:122
(James Publishing)
2806–2809. Reserved for Future Use
145
2810. Coemployee’s Affirmative Defense—Injury Covered by
Workers’ Compensation
• “Labor Code section 3601 affords coemployees the benefit of the exclusivity rule
only ‘[w]here the conditions of compensation set forth in Section 3600
concur . . . .’ Those conditions, as has been mentioned, include the requirement
of industrial causation.” (Lee, supra, 5 Cal.App.5th at p. 634, internal citation
omitted.)
• “[A] coemployee’s conduct is within the scope of his or her employment if it
could be imputed to the employer under the doctrine of respondeat superior. If
the coemployee was not ‘engaged in any active service for the employer,’ the
coemployee was not acting within the scope of employment.” (Hendy, supra, 54
Cal.3d at p. 740, internal citation omitted.)
• “[G]enerally speaking, a defendant in a civil action who claims to be one of that
class of persons protected from an action at law by the provisions of the
Workers’ Compensation Act bears the burden of pleading and proving, as an
affirmative defense to the action, the existence of the conditions of compensation
set forth in the statute which are necessary to its application.” (Doney v.
Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d 1160].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1006 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶ 12:192 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶ 13:951 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
147
CACI No. 2810 WORKERS’ COMPENSATION
148
2811. Co-Employee’s Willful and Unprovoked Physical Act of
Aggression—Essential Factual Elements (Lab. Code, § 3601(a)(1))
the employee but severely limited a preexisting right to freely sue a fellow
employee for damages.’ ” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations and
footnotes omitted.)
• “[W]e conclude an ‘unprovoked physical act of aggression’ is unprovoked
conduct intended to convey an actual, present, and apparent threat of bodily
injury. A ‘threat,’ of course, is commonly understood as ‘an expression of
intention to inflict evil, injury, or damage’ and as ‘[a] communicated intent to
inflict harm or loss on another . . . .’ Thus, ‘unprovoked physical act of
aggression’ logically contemplates intended injurious conduct. By adding the
term ‘willful,’ the Legislature has underscored the need for an intent to bring
about the consequences of that expression, i.e., an intent to inflict injury or
harm.” (Torres, supra, 26 Cal.4th at p. 1005, internal citations omitted.)
• “As with other mental states, plaintiffs may rely on circumstantial evidence to
prove the intent to injure.” (Torres, supra, 26 Cal.4th at p. 1009.)
• “[T]o invoke civil liability under section 3601, subdivision (a)(1), a physical act
causing a reasonable fear of harm must be pleaded and proved, but the resulting
harm need not also be physical.” (Iverson v. Atlas Pacific Engineering (1983)
143 Cal.App.3d 219, 225 [191 Cal.Rptr. 696].)
• “We agree that conduct constituting a common law assault may be actionable
under section 3601(a)(1), provided that the conduct was intended to injure
. . . .” (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829 [12
Cal.Rptr.2d 405].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres, supra, 26 Cal.4th at p. 1006, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶¶ 13:951, 13:962
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
150
WORKERS’ COMPENSATION CACI No. 2811
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
151
2812. Injury Caused by Co-Employee’s Intoxication—Essential
Factual Elements (Lab. Code, § 3601(a)(2))
153
VF-2800. Employer’s Willful Physical Assault (Lab. Code,
§ 3602(b)(1))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2801, Employer’s Willful Physical
Assault—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that defendant engaged in conduct other than that which is
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2801.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
155
VF-2801. Fraudulent Concealment of Injury (Lab. Code,
§ 3602(b)(2))
157
VF-2801 WORKERS’ COMPENSATION
6. Answer question 7.
7. Subtract the total amount in question 6 from the total amount in
question 5. This is the amount [name of plaintiff] is entitled to
recover. $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2802, Fraudulent Concealment of
Injury—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
questions 5 and 6, and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
158
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2803, Employer’s Defective
Product—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
160
WORKERS’ COMPENSATION VF-2802
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.
161
VF-2803. Removal or Noninstallation of Power Press Guards (Lab.
Code, § 4558)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2011,
December 2016
163
VF-2803 WORKERS’ COMPENSATION
164
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of
Aggression (Lab. Code, § 3601(a)(1))
165
VF-2804 WORKERS’ COMPENSATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2811, Co-Employee’s Willful and
Unprovoked Physical Act of Aggression—Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant engaged in conduct other than that
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2811.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
166
WORKERS’ COMPENSATION VF-2804
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.
167
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab.
Code, § 3601(a)(2))
168
WORKERS’ COMPENSATION VF-2805
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2812, Injury Caused by Co-Employee’s
Intoxication—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
169
VF-2805 WORKERS’ COMPENSATION
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2806–VF-2899. Reserved for Future Use
170
FEDERAL EMPLOYERS’ LIABILITY ACT
171
2900. FELA—Essential Factual Elements
Cal.App.4th 269, 275 [189 Cal.Rptr.3d 150], original italics, internal citations
omitted.)
• The FELA is “liberally construed” to further Congress’s remedial goal of
protecting railroad workers. (Consolidated Rail Corp. v. Gottshall (1994) 512
U.S. 532, 543 [114 S.Ct. 2396, 129 L.Ed.2d 427].)
• “The elements of a FELA case are: (1) the injury occurred while the plaintiff
was working within the scope of his or her employment with the railroad; (2)
the employment was in furtherance of the railroad’s interstate transportation
business; (3) the employer railroad was negligent; and (4) the employer’s
negligence played some part in causing the injury for which compensation is
sought under the Act.” (Monarch v. Southern Pacific Transportation Co. (1999)
70 Cal.App.4th 1197, 1210, fn. 10 [83 Cal.Rptr.2d 247], internal citations
omitted.)
• “That FELA is to be liberally construed . . . does not mean that it is a workers’
compensation statute. We have insisted that FELA ‘does not make the employer
the insurer of the safety of his employees while they are on duty. The basis of
his liability is his negligence, not the fact that injuries occur.’ ” (Consolidated
Rail Corp., supra, 512 U.S. at p. 543, internal citations omitted.)
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence based
on failure of the SAA-mandated safety appliances to function. When such strict
liability does not apply, i.e., the injury does not result from defective equipment
covered by the SAA, the employee must establish common law negligence.”
(Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158, 1170, fn. 4 [86
Cal.Rptr.2d 832, 980 P.2d 386], internal citations omitted.)
• “The standard under FELA is a relaxed one; to prove that a railroad breached its
duty, a ‘plaintiff must show circumstances which a reasonable person would
foresee as creating a potential for harm [and] then show that this breach played
any part, even the slightest, in producing the injury.’ ‘It is well established that
the quantum of evidence required to establish liability in an FELA case is much
less than in an ordinary negligence action.’ If the negligence of the employer
‘played any part, however small, in the injury,’ the employer is liable.” (Fair,
supra, 238 Cal.App.4th at pp. 275–276, internal citation omitted.)
• “The test for coverage under the amendment is not whether the employee is
engaged in transportation, but rather whether what he does in any way furthers
or substantially affects transportation.” (Reed v. Pennsylvania Railroad Co.
(1956) 351 U.S. 502, 505 [76 S.Ct. 958, 100 L.Ed. 1366].)
• “Where more than one inference can be drawn from the evidence, the question
whether an employee was, at the time of receiving the injury sued for, engaged
in interstate commerce, is for the jury.” (Sullivan v. Matt (1955) 130 Cal.App.2d
134, 139 [278 P.2d 499], internal citations omitted.)
173
CACI No. 2900 FELA
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:485–15:488, 15:495 (The Rutter
Group)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 3, Removing a State Court Case to Federal Court, 3.14
174
2901. Negligence—Duty of Railroad
when the issue is properly raised and an instruction is requested, the FELA
requires jury instructions on the duty to provide a reasonably safe place to
work.” (Ragsdell v. Southern Pacific Transportation Co. (9th Cir. 1982) 688 F.2d
1281, 1283, internal citations omitted.)
• “The test of negligence in supplying the employee a safe place to work is
‘whether reasonable men, examining the circumstances and the likelihood of
injury, would have taken those steps necessary to remove the danger.’ ”
(Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244 [53
Cal.Rptr. 851], internal citations omitted.)
• The duty to use reasonable care “is a duty which becomes ‘more imperative’ as
the risk increases. ‘Reasonable care becomes then a demand of higher
supremacy, and yet, in all cases it is a question of the reasonableness of the
care—reasonableness depending upon the danger attending the place or the
machinery.’ ” (Bailey v. Central Vermont Ry., Inc. (1943) 319 U.S. 350, 353 [63
S.Ct. 1062, 87 L.Ed. 1444], internal citation omitted.)
• “The employer is not the insurer of the safety of its employees and the test of
the employer’s liability to an injured employee is whether ordinary care was
used by the employer in regard to the risk.” (Baez v. Southern Pacific Co. (1962)
210 Cal.App.2d 714, 717 [26 Cal.Rptr. 899], internal citation omitted.)
• The U.S. Supreme Court has held that an independent contractor is an “agent”
for purposes of establishing an employer’s liability under the FELA if the
contractor performs “operational activities” of the employer. (Sinkler v. Missouri
Pacific Railroad Co. (1958) 356 U.S. 326, 331–332 [78 S.Ct. 758, 2 L.Ed.2d
799].)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
176
2902. Negligence—Assignment of Employees
177
2903. Causation—Negligence
Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
• “Although the burden upon the plaintiff in proving causation in an F.E.L.A. case
can be weighed neither in pounds nor ounces, it is a substantially lighter burden
that that imposed upon him by [the common-law jury instruction].” (Parker,
supra, 263 Cal.App.2d at p. 678.)
• “[T]he same standard of causation applies to railroad negligence under Section 1
as to plaintiff contributory negligence under Section 3.” (Norfolk Southern Ry. v.
Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 129
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
179
2904. Comparative Fault
181
2905. Compliance With Employer’s Requests or Directions
182
2920. Federal Safety Appliance Act or Boiler Inspection
Act—Essential Factual Elements
If the plaintiff is bringing a negligence claim under the Federal Employers’ Liability
Act (FELA) and a claim under the Federal Safety Appliance Act (SAA) or the
Boiler Inspection Act (BIA), the court may wish to add an introductory instruction
that would alert the jury to the difference between the two claims.
Do not give a comparative fault instruction if the case is brought under this theory.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• Assumption of Risk Under the FELA. Title 45 United States Code section 54.
• FELA Regulations Deemed to Be Statutes. Title 45 United States Code section
54a.
• Railroad Safety Requirements. Title 49 United States Code section 20302(a).
• Installation of Railroad Signal System. Title 49 United States Code section
20502(b).
• Use of Locomotive or Tender. Title 49 United States Code section 20701.
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence based
on failure of the SAA-mandated safety appliances to function. When such strict
liability does not apply, i.e., the injury does not result from defective equipment
covered by the SAA, the employee must establish common law negligence. The
Supreme Court has also recognized that the SAA imposes a duty on railroads
extending to nonemployee travelers at railway/highway crossings, who must
bring a common law tort action in state court (absent diversity) and must prove
negligence.” (Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158, 1170, fn.
4 [86 Cal.Rptr.2d 832, 980 P.2d 386], internal citations omitted.)
• “[An] FSAA violation is per se negligence in a FELA suit. In other words, the
injured employee has to show only that the railroad violated the FSAA, and the
railroad is strictly liable for any injury resulting from the violation.” (Phillips v.
CSX Transportation Co. (4th Cir. 1999) 190 F.3d 285, 288, original italics.)
• “ ‘The BIA and the SAA are regarded as amendments to the FELA. The BIA
supplements the FELA to provide additional public protection and facilitate
employee recovery. . . . [T]he BIA imposes on the carrier an absolute duty to
maintain the locomotive, and all its parts and appurtenances, in proper condition,
and safe to operate without unnecessary peril to life or limb.’ ” (Fontaine v.
National Railroad Passenger Corp. (1997) 54 Cal.App.4th 1519, 1525 [63
Cal.Rptr.2d 644], internal citation omitted.)
• “[N]either contributory negligence nor assumption of the risk is a defense to a
BIA violation which has contributed to the cause of an injury.” (Fontaine, supra,
54 Cal.App.4th at p. 1525.)
184
FELA CACI No. 2920
185
2921. Causation Under FSAA or BIA
186
2922. Statute of Limitations—Special Verdict Form or
Interrogatory
187
2923. Borrowed Servant/Dual Employee
be deemed pro hac vice employees of the railroad.” (Kelley, supra, 419 U.S. at
p. 330.)
• “The determination of whether a worker is a borrowed servant is accomplished
by ascertaining who has the power to control and direct the servants in the
performance of their work, distinguishing between authoritative direction and
control, and mere suggestion as to details or the necessary cooperation, where
the work furnished is part of a larger undertaking. There is thus a distinction
between ‘authoritative direction and control’ by a railroad, and the ‘minimum
cooperation necessary to carry out a coordinated undertaking’ which does not
amount to control or supervision. The control need not be exercised; it is
sufficient if the right to direct the details of the work is present. (Collins, supra,
207 Cal.App.4th at p. 879.)
• “The special employment relationship and its consequent imposition of liability
upon the special employer flows from the borrower’s power to supervise the
details of the employee’s work. Mere instruction by the borrower on the result to
be achieved will not suffice.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486,
492 [162 Cal.Rptr. 320, 606 P.2d 355] [not a FELA case].)
• “The question of whether a special employment relationship exists is generally a
question of fact reserved for the jury.” (Collins, supra, 207 Cal.App.4th at p.
878.)
• Contract terms are not conclusive evidence of the existence of the right to
control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr.
671, 588 P.2d 811] [not a FELA case].)
• Restatement Second of Agency, section 220 provides:
(1) A servant is a person employed to perform services in the affairs
of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right
to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among others,
are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
190
FELA CACI No. 2923
192
2924. Status as Defendant’s Employee—Subservant Company
Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt, supra, 605 F.3d at p. 690, fn. 3.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 126
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
195
2925. Status of Defendant as Common Carrier
196
2926. Scope of Employment
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2927–2939. Reserved for Future Use
199
2940. Income Tax Effects of Award
[Name of plaintiff] will not be required to pay any federal or state income
taxes on any amount that you award.
[When calculating lost earnings, if any, you should use after-tax
earnings.]
200
2941. Introduction to Damages for Personal Injury
• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the employer
has undertaken voluntarily to indemnify itself against possible liabilities under
the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984) 726 F.2d 448,
450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he should
not be allowed to set off compensation from a ‘collateral source’ against the
amount he owes on account of his tort.” (Russo v. Matson Navigation Co. (9th
Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and that
the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.43, 485.44
(Matthew Bender)
203
2942. Damages for Death of Employee
return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
v. Chesapeake & Ohio Railway Co. (6th Cir. 1971) 449 F.2d 1238, 1243, internal
citation omitted.)
• “[T]he conclusion is unavoidable that the personal representative is to recover on
behalf of the designated beneficiaries, not only such damages as will compensate
them for their own pecuniary loss, but also such damages as will be reasonably
compensatory for the loss and suffering of the injured person while he lived.”
(St. Louis, I.M. & S. Railway Co. v. Craft (1915) 237 U.S. 648, 658 [35 S.Ct.
704, 59 L.Ed. 1160].)
• “Funeral expenses . . . may not be included in damages awarded in FELA
actions.” (Dubose v. Kansas City Southern Railway Co. (5th Cir. 1984) 729 F.2d
1026, 1033.)
• “In a wrongful-death action under the FELA, the measure of recovery is ‘the
damages . . . [that] flow from the deprivation of the pecuniary benefits which
the beneficiaries might have reasonably received . . . .’ The amount of money
that a wage earner is able to contribute to the support of his family is
unquestionably affected by the amount of the tax he must pay to the Federal
Government. It is his after-tax income, rather than his gross income before taxes,
that provides the only realistic measure of his ability to support his family. It
follows inexorably that the wage earner’s income tax is a relevant factor in
calculating the monetary loss suffered by his dependents when he dies.” (Norfolk
& W. Ry. Co. v. Liepelt (1980) 444 U.S. 490, 493–494 [100 S.Ct. 755, 62
L.Ed.2d 689], internal citation omitted.)
• “[T]he damages are such as flow from the deprivation of the pecuniary benefits
which the beneficiaries might have reasonably received if the deceased had not
died from his injuries.” (Michigan Central Railroad Co. v. Vreeland (1913) 227
U.S. 59, 70 [33 S.Ct. 192, 57 L.Ed. 417].)
• “The seaman may thus recover for all of his pecuniary damages including such
damages as the cost of employing someone else to perform those domestic
services that he would otherwise have been able to render but is now incapable
of doing.” (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723
[Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp.
(1990) 498 U.S. 19, 32–33 [111 S.Ct. 317, 112 L.Ed.2d 275].)
• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the employer
has undertaken voluntarily to indemnify itself against possible liabilities under
the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984) 726 F.2d 448,
450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
206
FELA CACI No. 2942
is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he should
not be allowed to set off compensation from a ‘collateral source’ against the
amount he owes on account of his tort.” (Russo v. Matson Navigation Co. (9th
Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and that
the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
2 Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 21,
Jurisdiction, § 21.01[3] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.36,
485.43, 485.44 (Matthew Bender)
2943–2999. Reserved for Future Use
207
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2900, FELA—Essential Factual Elements, and
CACI No. 2904, Comparative Fault.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
210
FELA VF-2900
211
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act
Signed:
Presiding Juror
Dated:
213
VF-2901 FELA
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2920, Essential Factual Elements—Federal Safety
Appliance Act or Boiler Inspection Act.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2902–VF-2999. Reserved for Future Use
214
CIVIL RIGHTS
217
3000. Violation of Federal Civil Rights—In General—Essential
Factual Elements (42 U.S.C. § 1983)
that the defendant, acting under color of state law, deprived the plaintiff of a
federally protected right.” (Modacure, supra, 30 Cal.App.5th at p. 694.)
• “As we have said many times, § 1983 ‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’ ” (Graham v. Connor (1989) 490 U.S. 386, 393–394 [109 S.Ct. 1865,
104 L.Ed.2d 443], internal citation omitted.)
• “Section 1983 does not create any substantive rights; rather it is the vehicle
whereby plaintiffs can challenge actions by governmental officials.” (Jones v.
Williams (9th Cir. 2002) 297 F.3d 930, 934.)
• “By the plain terms of § 1983, two—and only two—allegations are required in
order to state a cause of action under that statute. First, the plaintiff must allege
that some person has deprived him of a federal right. Second, he must allege
that the person who has deprived him of that right acted under color of state or
territorial law.” (Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 890 [104 Cal.Rptr.3d 352].)
• “Section 1983 can also be used to enforce federal statutes. For a statutory
provision to be privately enforceable, however, it must create an individual
right.” (Henry A. v. Willden (9th Cir. 2012) 678 F.3d 991, 1005, internal citation
omitted.)
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d 920].)
• “[S]tates are not ‘persons’ subject to suit under section 1983.” (Mackey v. Board
of Trustees of California State University (2019) 31 Cal.App.5th 640, 654 [242
Cal.Rptr.3d 757].)
• “The jury was properly instructed on [plaintiff]’s burden of proof and the
particular elements of the section 1983 claim. (CACI No. 3000.)” (King v. State
of California (2015) 242 Cal.App.4th 265, 280 [195 Cal.Rptr.3d 286].)
• “ ‘State courts look to federal law to determine what conduct will support an
action under section 1983. The first inquiry in any section 1983 suit is to
identify the precise constitutional violation with which the defendant is
charged.’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 203 [73
Cal.Rptr.2d 571], internal citations omitted.)
• “ ‘Qualified immunity is an affirmative defense against section 1983 claims. Its
purpose is to shield public officials “from undue interference with their duties
and from potentially disabling threats of liability.” The defense provides
immunity from suit, not merely from liability. Its purpose is to spare defendants
the burden of going forward with trial.’ Because it is an immunity from suit, not
just a mere defense to liability, it is important to resolve immunity questions at
the earliest possible stage in litigation. Immunity should ordinarily be resolved
by the court, not a jury.” (Martinez v. County of Los Angeles (1996) 47
Cal.App.4th 334, 342 [54 Cal.Rptr.2d 772], internal citations omitted.)
• “[D]efendants cannot be held liable for a constitutional violation under 42 U.S.C.
219
CACI No. 3000 CIVIL RIGHTS
§ 1983 unless they were integral participants in the unlawful conduct. We have
held that defendants can be liable for ‘integral participation’ even if the actions
of each defendant do not ‘rise to the level of a constitutional violation.’ ”
(Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1241, internal citation omitted.)
• “Constitutional torts employ the same measure of damages as common law torts
and are not augmented ‘based on the abstract “value” or “importance” of
constitutional rights . . . .’ Plaintiffs have the burden of proving compensatory
damages in section 1983 cases, and the amount of damages depends ‘largely
upon the credibility of the plaintiffs’ testimony concerning their injuries.’ ”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321 [103 Cal.Rptr.2d
339], internal citations omitted.)
• “[E]ntitlement to compensatory damages in a civil rights action is not a matter
of discretion: ‘Compensatory damages . . . are mandatory; once liability is
found, the jury is required to award compensatory damages in an amount
appropriate to compensate the plaintiff for his loss.’ ” (Hazle v. Crofoot (9th Cir.
2013) 727 F.3d 983, 992.)
• “[T]he state defendants’ explanation of the jury’s zero-damages award as
allocating all of [plaintiff]’s injury to absent persons reflects the erroneous view
that not only could zero damages be awarded to [plaintiff], but that [plaintiff]’s
damages were capable of apportionment. [Plaintiff] independently challenges the
jury instruction and verdict form that allowed the jury to decide this question,
contending that the district judge should have concluded, as a matter of law, that
[plaintiff] was entitled to compensatory damages and that defendants were jointly
and severally liable for his injuries. He is correct. The district judge erred in
putting the question of apportionment to the jury in the first place, because the
question of whether an injury is capable of apportionment is a legal one to be
decided by the judge, not the jury.” (Hazle, supra, 727 F.3d at pp. 994–995.)
• “An individual acts under color of state law when he or she exercises power
‘possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’ ” (Naffe v. Frey (9th Cir. 2015) 789
F.3d 1030, 1036.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “A state employee who is off duty nevertheless acts under color of state law
when (1) the employee ‘purport[s] to or pretend[s] to act under color of law,’ (2)
220
CIVIL RIGHTS CACI No. 3000
his ‘pretense of acting in the performance of his duties . . . had the purpose and
effect of influencing the behavior of others,’ and (3) the harm inflicted on
plaintiff ‘related in some meaningful way either to the officer’s governmental
status or to the performance of his duties.’ ” (Naffe, supra, 789 F.3d at p. 1037,
internal citations omitted.)
• “ ‘While generally not applicable to private parties, a § 1983 action can lie
against a private party when “he is a willful participant in joint action with the
State or its agents.” ’ ” (Julian v. Mission Community Hospital (2017) 11
Cal.App.5th 360, 396 [218 Cal.Rptr.3d 38].)
• “Under this Court’s cases, a private entity can qualify as a state actor in a few
limited circumstances—including, for example, (i) when the private entity
performs a traditional, exclusive public function; (ii) when the government
compels the private entity to take a particular action; or (iii) when the
government acts jointly with the private entity.” (Manhattan Cmty. Access Corp.
v. Halleck (2019) — U.S. — [139 S.Ct. 1921, 1928, 204 L.Ed.2d 405], internal
citations omitted.)
• “[P]rivate parties ordinarily are not subject to suit under [section 1983], unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Under the Court’s cases, a private entity may qualify as a state actor when it
exercises ‘powers traditionally exclusively reserved to the State.’ It is not enough
that the federal, state, or local government exercised the function in the past, or
still does. And it is not enough that the function serves the public good or the
public interest in some way. Rather, to qualify as a traditional, exclusive public
function within the meaning of our state-action precedents, the government must
have traditionally and exclusively performed the function.” (Manhattan Cmty.
Access Corp., supra, — U.S. — [139 S.Ct. at p. 1928], original italics.)
• “The Ninth Circuit has articulated four tests for determining whether a private
person acted under color of law: (1) the public function test, (2) the joint action
test, (3) the government nexus test, and (4) the government coercion or
compulsion test. ‘Satisfaction of any one test is sufficient to find state action, so
long as no countervailing factor exists.’ ‘ “[N]o one fact can function as a
necessary condition across the board for finding state action; nor is any set of
circumstances absolutely sufficient, for there may be some countervailing reason
against attributing activity to the government.” ’ ” (Julian, supra, 11 Cal.App.5th
at p. 396.)
• “Because § 1983 ‘was designed to secure private rights against government
221
CACI No. 3000 CIVIL RIGHTS
222
3001. Local Government Liability—Policy or Custom—Essential
Factual Elements (42 U.S.C. § 1983)
New September 2003; Revised December 2010; Renumbered from CACI No. 3007
and Revised December 2012
Directions for Use
Give this instruction and CACI No. 3002, “Offıcial Policy or Custom” Explained, if
the plaintiff seeks to hold a local governmental entity liable for a civil rights
violation based on the entity’s official policy or custom. First give CACI No. 3000,
Violation of Federal Civil Rights—In General—Essential Factual Elements, and the
instructions on the particular constitutional violation alleged.
In element 3, a constitutional violation is not always based on intentional conduct.
Insert the appropriate level of scienter. For example, Eighth Amendment cases
involving failure to provide a prisoner with proper medical care require “deliberate
indifference.” (See Hudson v. McMillian (1992) 503 U.S. 1, 5 [112 S.Ct. 995, 117
L.Ed.2d 156].) And Fourth Amendment claims require an “unreasonable” search or
seizure. (See Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento
(1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834.)
For other theories of liability against a local governmental entity, see CACI No.
3003, Local Government Liability—Failure to Train—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
223
CACI No. 3001 CIVIL RIGHTS
226
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
New September 2003; Revised June 2012; Renumbered from CACI No. 3008
December 2012
Directions for Use
These definitions are selected examples of official policy drawn from the cited
cases. The instruction may need to be adapted to the facts of a particular case. The
court may need to instruct the jury regarding the legal definition of “policymakers.”
In some cases, it may be necessary to include additional provisions addressing
factors that may indicate an official custom in the absence of a formal policy. The
Ninth Circuit has held that in some cases the plaintiff is entitled to have the jury
instructed that evidence of governmental inaction—specifically, failure to investigate
and discipline employees in the face of widespread constitutional violations—can
support an inference that an unconstitutional custom or practice has been unofficially
adopted. (Hunter v. County of Sacramento (9th Cir. 2011) 652 F.3d 1225, 1234, fn.
8.)
Sources and Authority
• “The [entity] may not be held liable for acts of [employees] unless ‘the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers’ or if the constitutional deprivation was ‘visited pursuant to
governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ ” (Redman v.
County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1443–1444, internal citation
omitted.)
• “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have the force of
227
CACI No. 3002 CIVIL RIGHTS
law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117 S.Ct.
1382, 137 L.Ed.2d 626].)
• “The custom or policy must be a ‘deliberate choice to follow a course of action
. . . made from among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in
question.’ ” (Castro v. County of Los Angeles (9th Cir. 2016) 833 F.3d 1060,
1075 (en banc).)
• “While a rule or regulation promulgated, adopted, or ratified by a local
governmental entity’s legislative body unquestionably satisfies Monell’s policy
requirement, a ‘policy’ within the meaning of § 1983 is not limited to official
legislative action. Indeed, a decision properly made by a local governmental
entity’s authorized decisionmaker—i.e., an official who ‘possesses final authority
to establish [local government] policy with respect to the [challenged]
action’—may constitute official policy. ‘Authority to make municipal policy may
be granted directly by legislative enactment or may be delegated by an official
who possesses such authority, and of course whether an official had final
policymaking authority is a question of state law.’ ” (Thompson v. City of Los
Angeles (9th Cir. 1989) 885 F.2d 1439, 1443, internal citations and footnote
omitted.)
• “[A] plaintiff can show a custom or practice of violating a written policy;
otherwise an entity, no matter how flagrant its actual routine practices, always
could avoid liability by pointing to a pristine set of policies.” (Castro, supra,
833 F.3d at p. 1075 fn. 10.)
• “Appellants need not show evidence of a policy or deficient training; evidence of
an informal practice or custom will suffice.” (Nehad v. Browder (9th Cir. 2019)
929 F.3d 1125, 1141.)
• “As with other questions of state law relevant to the application of federal law,
the identification of those officials whose decisions represent the official policy
of the local governmental unit is itself a legal question to be resolved by the trial
judge before the case is submitted to the jury.” (Jett v. Dallas Independent
School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct. 2702, 105 L.Ed.2d 598].)
• “[I]t is settled that whether an official is a policymaker for a county is dependent
on an analysis of state law, not fact.” (Pitts v. County of Kern (1998) 17 Cal.4th
340, 352 [70 Cal.Rptr.2d 823, 949 P.2d 920], internal citations omitted.)
• “Once those officials who have the power to make official policy on a particular
issue have been identified, it is for the jury to determine whether their decisions
have caused the deprivation of rights at issue by policies which affirmatively
command that it occur, or by acquiescence in a longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the local governmental
entity.” (Jett, supra, 491 U.S. at p. 737, internal citations omitted.)
• “Gibson v. County of Washoe [(9th Cir. 2002) 290 F.3d 1175, 1186] discussed
two types of policies: those that result in the municipality itself violating
228
CIVIL RIGHTS CACI No. 3002
New September 2003; Revised December 2010, December 2011; Renumbered from
CACI No. 3009 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the entity’s failure to adequately train its officers
or employees. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
The inadequate training must amount to a deliberate indifference to constitutional
rights. (Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249,
overruled en banc on other grounds in Castro v. County of L.A. (9th Cir. 2016) 833
F.3d 1060, 1070.) Element 2 expresses this deliberate-indifference standard.
Deliberate indifference requires proof of a pattern of violations in all but a few very
rare situations in which the unconstitutional consequences of failing to train are
patently obvious. (See Connick v. Thompson (2011) 563 U.S. 51, 63 [131 S.Ct.
1350, 179 L.Ed.2d 417].) Delete the bracketed language in element 2 unless the
facts present the possibility of liability based on patently obvious violations.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
230
CIVIL RIGHTS CACI No. 3003
cause of action are well established, and include that the City ‘knew because of
a pattern of similar violations that the inadequate training was likely to result in
a deprivation’ of some right of plaintiffs. Put otherwise, the inadequate training
must amount to a deliberate indifference to constitutional rights. Such deliberate
indifference requires proof of a pattern of violations (except in those few very
rare situations in which the unconstitutional consequences of failing to train are
patently obvious).” (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 597
[180 Cal.Rptr.3d 10], footnote and internal citations omitted.)
• “ ‘The issue in a case like this one . . . is whether that training program is
adequate; and if it is not, the question becomes whether such inadequate training
can justifiably be said to represent “city policy.” ’ Furthermore, the inadequacy in
the city’s training program must be closely related to the ‘ultimate injury,’ such
that the injury would have been avoided had the employee been trained under a
program that was not deficient in the identified respect.” (Irwin v. City of Hemet
(1994) 22 Cal.App.4th 507, 526 [27 Cal.Rptr.2d 433], internal citations omitted.)
• “Where the proper response . . . is obvious to all without training or
supervision, then the failure to train or supervise is generally not ‘so likely’ to
produce a wrong decision as to support an inference of deliberate indifference by
city policymakers to the need to train or supervise.” (Flores v. County of L.A.
(9th Cir. 2014) 758 F.3d 1154, 1160 [no need to train officers not to sexually
assault persons with whom they come in contact].)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 897
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[3]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
232
3004. Local Government Liability—Act or Ratification by Official
With Final Policymaking Authority—Essential Factual Elements
(42 U.S.C. § 1983)
New December 2010; Renumbered from CACI No. 3010 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the acts of an official with final policymaking
authority. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
Liability may be based on either the official’s personal acts or policy decision that
led to the violation or the official’s subsequent ratification of the acts or decision of
another. (See Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346–1347.) If both
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CACI No. 3004 CIVIL RIGHTS
theories are alleged in the alternative, include “either” in element 1. Include the last
paragraph if ratification is alleged.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3003, Local Government Liability—Failure to Train—Essential
Factual Elements.
The court determines whether a person is an official policymaker under state law.
(See Jett v. Dallas Independent School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct.
2702, 105 L.Ed.2d 598].)
Sources and Authority
• “[A] local government may be held liable under § 1983 when ‘the individual
who committed the constitutional tort was an official with final policy-making
authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or
action and the basis for it.’ ‘If the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable
to the municipality because their decision is final.’ ‘There must, however, be
evidence of a conscious, affirmative choice’ on the part of the authorized
policymaker. A local government can be held liable under § 1983 ‘only where “a
deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” ’ ” (Clouthier v. County of Contra
Costa (9th Cir. 2010) 591 F.3d 1232, 1250, overruled en banc on other grounds
in Castro v. County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1070, internal
citations omitted.)
• “Two terms ago, . . . we undertook to define more precisely when a decision on
a single occasion may be enough to establish an unconstitutional municipal
policy. . . . First, a majority of the Court agreed that municipalities may be held
liable under § 1983 only for acts for which the municipality itself is actually
responsible, ‘that is, acts which the municipality has officially sanctioned or
ordered.’ Second, only those municipal officials who have ‘final policymaking
authority’ may by their actions subject the government to § 1983 liability. Third,
whether a particular official has ‘final policymaking authority’ is a question of
state law. Fourth, the challenged action must have been taken pursuant to a
policy adopted by the official or officials responsible under state law for making
policy in that area of the city’s business.” (St. Louis v. Praprotnik (1988) 485
U.S. 112, 123 [108 S.Ct. 915, 99 L.Ed.2d 107], internal citations omitted.)
• “[A] municipality may be liable for an ‘isolated constitutional violation when
the person causing the violation has final policymaking authority.’ ” (Garmon v.
County of L.A. (9th Cir. 2016) 828 F.3d 837, 846, internal citation omitted.) “As
with other questions of state law relevant to the application of federal law, the
identification of those officials whose decisions represent the official policy of
the local governmental unit is itself a legal question to be resolved by the trial
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CIVIL RIGHTS CACI No. 3004
judge before the case is submitted to the jury.” (Jett, supra, 491 U.S. at p. 737,
original italics.)
• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [104
Cal.Rptr. 57, 500 P.2d 1401].)
• “[R]atification requires, among other things, knowledge of the alleged
constitutional violation.” (Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1239,
internal citations omitted.)
• “[A] policymaker’s mere refusal to overrule a subordinate’s completed act does
not constitute approval.” (Christie, supra, 176 F.3d at p. 1239.)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 905
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[2][b]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.12 (Matthew Bender)
235
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C.
§ 1983)
New April 2007; Renumbered from CACI No. 3013 December 2010; Revised
December 2011; Renumbered from CACI No. 3017 December 2012; Revised June
2013
Directions for Use
Read this instruction in cases in which a supervisor is alleged to be personally liable
for the violation of the plaintiff’s civil rights under Title 42 United States Code
section 1983.
For certain constitutional violations, deliberate indifference based on knowledge and
acquiescence is insufficient to establish the supervisor’s liability. The supervisor
must act with the purpose necessary to establish the underlying violation. (Ashcroft
v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for
claim of invidious discrimination in violation of the First and Fifth Amendments,
plaintiff must plead and prove that defendant acted with discriminatory purpose].) In
such a case, element 3 requires not only express approval, but also discriminatory
purpose. The United States Supreme Court has found constitutional torts to require
specific intent in three situations: (1) due process claims for injuries caused by a
high-speed chase (See County of Sacramento v. Lewis (1998) 523 U.S. 833, 836
[118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for injuries
suffered during the response to a prison disturbance (See Whitley v. Albers (1986)
475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3) invidious
discrimination under the equal protection clause and the First Amendment free
exercise clause. (See Ashcroft v. Iqbal, supra, 556 U.S. at pp. 676–677.)
The Ninth Circuit has held that deliberate indifference based on knowledge and
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CIVIL RIGHTS CACI No. 3005
blanket requirement that applies equally to all constitutional tort claims. Iqbal
makes crystal clear that constitutional tort claims against supervisory defendants
turn on the requirements of the particular claim—and, more specifically, on the
state of mind required by the particular claim—not on a generally applicable
concept of supervisory liability. ‘The factors necessary to establish a Bivens
violation will vary with the constitutional provision at issue.’ Allegations that the
[defendants] knowingly acquiesced in their subordinates’ discrimination did not
suffice to state invidious racial discrimination claims against them, because such
claims require specific intent—something that knowing acquiescence does not
establish. On the other hand, because Eighth Amendment claims for cruel and
unusual punishment generally require only deliberate indifference (not specific
intent), a Sheriff is liable for prisoner abuse perpetrated by his subordinates if he
knowingly turns a blind eye to the abuse. The Sheriff need not act with the
purpose that the prisoner be abused. Put simply, constitutional tort liability after
Iqbal depends primarily on the requisite mental state for the violation alleged.”
(OSU Student Alliance, supra, 699 F.3d at p. 1071, internal citations omitted.)
• “ ‘[S]upervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy “itself is a repudiation of constitutional rights” and is the “moving force
of a constitutional violation.” ’ ” (Crowley v. Bannister (9th Cir. 2013) 734 F.3d
967, 977.)
• “When a supervisory official advances or manages a policy that instructs its
adherents to violate constitutional rights, then the official specifically intends for
such violations to occur. Claims against such supervisory officials, therefore, do
not fail on the state of mind requirement, be it intent, knowledge, or deliberate
indifference. Iqbal itself supports this holding. There, the Court rejected the
invidious discrimination claims against [supervisory defendants] because the
complaint failed to show that those defendants advanced a policy of purposeful
discrimination (as opposed to a policy geared simply toward detaining
individuals with a ‘suspected link to the [terrorist] attacks’), not because it found
that the complaint had to allege that the supervisors intended to discriminate
against [plaintiff] in particular. Advancing a policy that requires subordinates to
commit constitutional violations is always enough for § 1983 liability, no matter
what the required mental state, so long as the policy proximately causes the
harm—that is, so long as the plaintiff’s constitutional injury in fact occurs
pursuant to the policy.” (OSU Student Alliance, supra, 699 F.3d at p. 1076.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 413
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 8
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State
Law—General Principles, ¶ 7.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
239
CACI No. 3005 CIVIL RIGHTS
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.20[4][a] (Matthew Bender)
3006–3019. Reserved for Future Use
240
3020. Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements (42 U.S.C. § 1983)
New September 2003; Revised June 2012; Renumbered from CACI No. 3001
December 2012; Revised June 2015, June 2016, May 2020, November 2020
241
CACI No. 3020 CIVIL RIGHTS
• “The most important of these [factors from Graham, above] is whether the
suspect posed an immediate threat to the officers or others, as measured
objectively under the circumstances.” (Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “[The Graham] factors, however, are not exclusive. We ‘examine the totality of
the circumstances and consider “whatever specific factors may be appropriate in
a particular case, whether or not listed in Graham.” ’ Other relevant factors
include the availability of less intrusive alternatives to the force employed,
whether proper warnings were given and whether it should have been apparent
to officers that the person they used force against was emotionally disturbed.”
(Glenn, supra, 673 F.3d at p. 872, internal citations omitted.)
• “With respect to the possibility of less intrusive force, officers need not employ
the least intrusive means available[,] so long as they act within a range of
reasonable conduct.” (Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,
1006.)
• “Although officers are not required to use the least intrusive degree of force
available, ‘the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider.’ ” (Vos, supra, 892 F.3d at p. 1033, internal
citation omitted.)
• “Courts ‘also consider, under the totality of the circumstances, the quantum of
force used to arrest the plaintiff, the availability of alternative methods of
capturing or detaining the suspect, and the plaintiff’s mental and emotional
state.’ ” (Brooks v. Clark County (9th Cir. 2016) 828 F.3d 910, 920.)
• “Because the reasonableness standard ‘nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or judgment as a matter of law
in excessive force cases should be granted sparingly.’ ” (Torres v. City of Madera
(9th Cir. 2011) 648 F.3d 1119, 1125.)
• “Justice Stevens incorrectly declares [the ‘objective reasonableness’ standard
under Graham] to be ‘a question of fact best reserved for a jury,’ and complains
we are ‘usurp[ing] the jury’s factfinding function.’ At the summary judgment
stage, however, once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
record, the reasonableness of [defendant]’s actions—or, in Justice Stevens’
parlance, ‘[w]hether [respondent’s] actions have risen to a level warranting
deadly force,’ is a pure question of law.” (Scott, supra, 550 U.S. at p. 381, fn. 8,
original italics, internal citations omitted.)
• “Because there are no genuine issues of material fact and ‘the relevant set of
facts’ has been determined, the reasonableness of the use of force is ‘a pure
question of law.’ ” (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248,
1256 (en banc).)
• “In assessing the objective reasonableness of a particular use of force, we
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CIVIL RIGHTS CACI No. 3020
consider: (1) ‘the severity of the intrusion on the individual’s Fourth Amendment
rights by evaluating the type and amount of force inflicted,’ (2) ‘the
government’s interest in the use of force,’ and (3) the balance between ‘the
gravity of the intrusion on the individual’ and ‘the government’s need for that
intrusion.’ ” (Lowry, supra, 858 F.3d at p. 1256.)
• “To be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’s Fourth Amendment interests’ against
the government’s interests. But in weighing the evidence in favor of the officers,
rather than the [plaintiffs], the district court unfairly tipped the reasonableness
inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro. Police Dep’t (9th
Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)
• “The district court found that [plaintiff] stated a claim for excessive use of force,
but that governmental interests in officer safety, investigating a possible crime,
and controlling an interaction with a potential domestic abuser outweighed the
intrusion upon [plaintiff]’s rights. In reaching this conclusion, the court
improperly ‘weigh[ed] conflicting evidence with respect to . . . disputed material
fact[s].’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 880.)
• “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
constitutional liability.” (Hayes v. County of San Diego 57 Cal.4th 622, 639 [160
Cal.Rptr.3d 684, 305 P.3d 252].)
• “[S]tate negligence law, which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law, which tends to focus more narrowly on the moment when deadly force is
used.” (Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “While a Fourth Amendment violation cannot be established ‘based merely on
bad tactics that result in a deadly confrontation that could have been avoided,’
the events leading up to the shooting, including the officers tactics, are
encompassed in the facts and circumstances for the reasonableness analysis.”
(Vos, supra, 892 F.3d at p. 1034, internal citations omitted.)
• “We are cognizant of the Supreme Court’s command to evaluate an officer’s
actions ‘from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police
officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.’ This does not mean, however, that a Fourth
Amendment violation will be found only in those rare instances where an officer
and his attorney are unable to find a sufficient number of compelling adjectives
to describe the victim’s conduct. Nor does it mean that we can base our analysis
on what officers actually felt or believed during an incident. Rather, we must ask
if the officers’ conduct is ‘ “objectively reasonable” in light of the facts and
circumstances confronting them’ without regard for an officer’s subjective
intentions.” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3d 805, 831, internal
citations omitted.)
245
CACI No. 3020 CIVIL RIGHTS
verbal threat might create an immediate threat.” (George v. Morris (9th Cir.
2013) 724 F.3d 1191, 1200, original italics, internal citations omitted.)
• “Two cases published about three years before the April 2016 incident, Hayes v.
County of San Diego and George v. Morris, made ‘clear to a reasonable officer’
that a police officer may not use deadly force against a non-threatening
individual, even if the individual is armed, and even if the situation is volatile.”
(Estate of Aguirre v. County of Riverside (9th Cir. 2022) 29 F.4th 624, 629.)
• “ ‘[A] simple statement by an officer that he fears for his safety or the safety of
others is not enough; there must be objective factors to justify such a concern.’
Here, whether objective factors supported [defendant]’s supposed subjective fear
is not a question that can be answered as a matter of law based upon the limited
evidence in the record, especially given that on summary judgment that evidence
must be construed in the light most favorable to [plaintiff], the non-moving
party. Rather, whether [defendant]’s claim that he feared a broccoli-based assault
is credible and reasonable presents a genuine question of material fact that must
be resolved not by a court ruling on a motion for summary judgment but by a
jury in its capacity as the trier of fact.” (Young v. County of Los Angeles (9th
Cir. 2011) 655 F.3d 1156, 1163–1164.)
• “An officer’s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an officer’s good intentions make
an objectively unreasonable use of force constitutional.” (Fetters v. County of
Los Angeles (2016) 243 Cal.App.4th 825, 838 [196 Cal.Rptr.3d 848].)
• “Where . . . ‘an officer’s particular use of force is based on a mistake of fact,
we ask whether a reasonable officer would have or should have accurately
perceived that fact.’ ‘[W]hether the mistake was an honest one is not the
concern, only whether it was a reasonable one.’ ” (Nehad v. Browder (9th Cir.
2019) 929 F.3d 1125, 1133, original italics, internal citation and footnote
omitted.)
• “Although Graham does not specifically identify as a relevant factor whether the
suspect poses a threat to himself, we assume that the officers could have used
some reasonable level of force to try to prevent [decedent] from taking a suicidal
act. But we are aware of no published cases holding it reasonable to use a
significant amount of force to try to stop someone from attempting suicide.
Indeed, it would be odd to permit officers to use force capable of causing serious
injury or death in an effort to prevent the possibility that an individual might
attempt to harm only himself. We do not rule out that in some circumstances
some force might be warranted to prevent suicide, but in cases like this one the
‘solution’ could be worse than the problem.” (Glenn, supra, 673 F.3d at p. 872.)
• “This Court has ‘refused to create two tracks of excessive force analysis, one for
the mentally ill and one for serious criminals.’ The Court has, however, ‘found
that even when an emotionally disturbed individual is acting out and inviting
officers to use deadly force to subdue him, the governmental interest in using
such force is diminished by the fact that the officers are confronted . . . with a
247
CACI No. 3020 CIVIL RIGHTS
mentally ill individual.’ A reasonable jury could conclude, based upon the
information available to [defendant officer] at the time, that there were sufficient
indications of mental illness to diminish the governmental interest in using
deadly force.” (Hughes v. Kisela (9th Cir. 2016) 841 F.3d 1081, 1086.)
• “Whether an officer warned a suspect that failure to comply with the officer’s
commands would result in the use of force is another relevant factor in an
excessive force analysis.” (Nehad, supra, 929 F.3d at p. 1137.)
• “By contrast, if the officer warned the offender that he would employ force, but
the suspect refused to comply, the government has an increased interest in the
use of force.” (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, 1175,
internal citation omitted.)
• “[P]reshooting conduct is included in the totality of circumstances surrounding
an officer’s use of deadly force, and therefore the officer’s duty to act reasonably
when using deadly force extends to preshooting conduct. But in a case like this
one, where the preshooting conduct did not cause the plaintiff any injury
independent of the injury resulting from the shooting, the reasonableness of the
officers’ preshooting conduct should not be considered in isolation. Rather, it
should be considered in relation to the question whether the officers’ ultimate use
of deadly force was reasonable.” (Hayes, supra, 57 Cal.4th at p. 632, internal
citation omitted.)
• “Sometimes, however, officers themselves may ‘unnecessarily creat[e] [their]
own sense of urgency.’ Reasonable triers of fact can, taking the totality of the
circumstances into account, conclude that an officer’s poor judgment or lack of
preparedness caused him or her to act unreasonably, ‘with undue haste.’ ”
(Nehad, supra, 929 F.3d at p. 1135, internal citation and footnote omitted.)
• “A person is seized by the police and thus entitled to challenge the government’s
action under the Fourth Amendment when the officer by means of physical force
or show of authority terminates or restrains his freedom of movement through
means intentionally applied.” (Nelson v. City of Davis (9th Cir. 2012) 685 F.3d
867, 875.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
248
CIVIL RIGHTS CACI No. 3020
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of
a writ of habeas corpus. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
(Heck v. Humphrey (1994) 512 U.S. 477, 486–487 [114 S.Ct. 2364, 129 L.Ed.2d
383], footnotes and internal citation omitted.)
• “Heck requires the reviewing court to answer three questions: (1) Was there an
underlying conviction or sentence relating to the section 1983 claim? (2) Would
a ‘judgment in favor of the plaintiff [in the section 1983 action] “necessarily
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” (Fetters, supra, 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section 1983
claim would establish beyond all doubt the invalidity of the criminal outcome;
rather, a court need only ‘consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.’ ” (Fetters,
supra, 243 Cal.App.4th at p. 841, original italics.)
• “[A] dismissal under section 1203.4 does not invalidate a conviction for
purposes of removing the Heck bar preventing a plaintiff from bringing a civil
action.” (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217
Cal.Rptr.3d 423].)
• “[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the
arresting officer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though, requires
a separate analysis. ‘For example, a defendant might resist a lawful arrest, to
which the arresting officers might respond with excessive force to subdue him.
The subsequent use of excessive force would not negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of the criminal defendant’s
attempt to resist it. Though occurring in one continuous chain of events, two
isolated factual contexts would exist, the first giving rise to criminal liability on
the part of the criminal defendant, and the second giving rise to civil liability on
the part of the arresting officer.’ ” (Yount v. City of Sacramento (2008) 43 Cal.4th
885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471], original italics.)
• “Plaintiffs contend that the use of force is unlawful because the arrest itself is
unlawful. But that is not so. We have expressly held that claims for false arrest
249
CACI No. 3020 CIVIL RIGHTS
and excessive force are analytically distinct.” (Sharp v. County of Orange (9th
Cir. 2017) 871 F.3d 901, 916.)
• “[T]he district court effectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the question whether
[officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was
lawful, the district judge implied simultaneously that [plaintiff] was in fact
resisting or failing to obey the police officer’s lawful instructions. Presuming
such resistance could certainly have influenced the jury’s assessment of ‘the need
for force,’ as well as its consideration of the other Graham factors, including
‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight. By erroneously granting judgment as a matter of law on [plaintiff]’s
unlawful arrest claim, the district court impermissibly truncated the jury’s
consideration of [plaintiff]’s excessive force claim.” (Velazquez v. City of Long
Beach (9th Cir. 2015) 793 F.3d 1010, 1027, original italics.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 902
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶¶ 10.00–10.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
250
3021. Unlawful Arrest by Peace Officer Without a
Warrant—Essential Factual Elements (42 U.S.C. § 1983)
New April 2009; Revised December 2009; Renumbered from CACI No. 3014
December 2012, June 2016
Directions for Use
Give this instruction in a false arrest case brought under title 42 United States Code
section 1983. For an instruction for false arrest under California law, see CACI No.
1401, False Arrest Without Warrant by Peace Offıcer—Essential Factual Elements.
The ultimate determination of whether the arresting officer had probable cause
(element 1) is to be made by the court as a matter of law. (Hunter v. Bryant (1991)
502 U.S. 224, 227–228 [112 S.Ct. 534, 116 L.Ed.2d 589].) However, in exercising
this role, the court does not sit as the trier of fact. It is still the province of the jury
to determine the facts on conflicting evidence as to what the arresting officer knew
at the time. (See Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010,
1018–1023; see also King v. State of California (2015) 242 Cal.App.4th 265, 289
[195 Cal.Rptr.3d 286].) Include “without probable cause” in element 1 and the last
optional paragraph if the jury will be asked to find facts with regard to probable
cause.
The “official duties” referred to in element 2 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 2.
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CACI No. 3021 CIVIL RIGHTS
she can make a prima facie case simply by showing that the arrest was
conducted without a valid warrant. At that point, the burden shifts to the
defendant to provide some evidence that the arresting officers had probable cause
for a warrantless arrest. The plaintiff still has the ultimate burden of proof, but
the burden of production falls on the defendant.” (Dubner v. City & County of
San Francisco (9th Cir. 2001) 266 F.3d 959, 965.)
• “There is no bright-line rule to establish whether an investigatory stop has risen
to the level of an arrest. Instead, this difference is ascertained in light of the
‘ “totality of the circumstances.” ’ This is a highly fact-specific inquiry that
considers the intrusiveness of the methods used in light of whether these
methods were ‘reasonable given the specific circumstances.’ ” (Green v. City &
County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047, original italics,
internal citations omitted.)
• “Because stopping an automobile and detaining its occupants, ‘even if only for a
brief period and for a limited purpose,’ constitutes a ‘seizure’ under the Fourth
Amendment, an official must have individualized ‘reasonable suspicion’ of
unlawful conduct to carry out such a stop.” (Tarabochia v. Adkins (9th Cir. 2014)
766 F.3d 1115, 1121, internal citation omitted.)
• “ ‘[Q]ualified immunity is a question of law, not a question of fact. [Citation.]
But Defendants are only entitled to qualified immunity as a matter of law if,
taking the facts in the light most favorable to [the plaintiff], they violated no
clearly established constitutional right. The court must deny the motion for
judgment as a matter of law if reasonable jurors could believe that Defendants
violated [the plaintiff’s] constitutional right, and the right at issue was clearly
established.’ ‘The availability of qualified immunity after a trial is a legal
question informed by the jury’s findings of fact, but ultimately committed to the
court’s judgment.’ “ ‘[D]eference to the jury’s view of the facts persists
throughout each prong of the qualified immunity inquiry.’ ” ‘[T]he jury’s view of
the facts must govern our analysis once litigation has ended with a jury’s
verdict.’ ‘Where, as here, the legal question of qualified immunity turns upon
which version of the facts one accepts, the jury, not the judge, must determine
liability.’ ” (King, supra, 242 Cal.App.4th at p. 289, internal citations omitted.)
• “[Plaintiff] did have a constitutional right under the Fourth Amendment to be
free from involuntary detention without probable cause. Therefore, the issue is
whether the undisputed facts demonstrated that a reasonable officer would have
believed there was probable cause to detain [plaintiff] under [Welfare and
Institutions Code] section 5150.” (Julian v. Mission Community Hospital (2017)
11 Cal.App.5th 360, 387 [218 Cal.Rptr.3d 38].)
• “[I]f what the policeman knew prior to the arrest is genuinely in dispute, and if a
reasonable officer’s perception of probable cause would differ depending on the
correct version, that factual dispute must be resolved by a fact finder. [Citations.]
[¶] . . . [W]e do not find the facts relative to probable cause to arrest, and the
alleged related conspiracy, so plain as to lead us to only a single conclusion, i.e.,
a conclusion in defendants’ favor. The facts are complex, intricate and in key
253
CACI No. 3021 CIVIL RIGHTS
areas contested. Even more important, the inferences to be drawn from the web
of facts are disputed and unclear—and are likely to depend on credibility
judgments.” (King, supra, 242 Cal.App.4th at p. 291, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 181
Chin et al., California Practice Guide: Employment Litigation, Ch.7-C, 42 USC
§ 1983, ¶ 7:1365 (The Rutter Group)
5 Levy et al., California Torts, Ch. 60, Principles of Liability and Immunity of
Public Entities and Employees, § 60.06 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.36A (Matthew
Bender)
1 Civil Rights Actions, Ch. 2, Institutional and Individual Immunity, ¶ 2.03
(Matthew Bender)
254
3022. Unreasonable Search—Search With a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
New September 2003; Renumbered from CACI No. 3002 December 2012; Revised
November 2017
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
This instruction may be modified to assert a claim for an unreasonable detention
while a search warrant is being executed by referencing the detention in elements 2
and 5, in the sentence introducing the factors, and in factor (d). Additional factors
relevant to the reasonableness of the detention should be included under factor (e).
(See Davis v. United States (9th Cir. 2017) 854 F.3d 594, 599.)
255
CACI No. 3022 CIVIL RIGHTS
257
3023. Unreasonable Search or Seizure—Search or Seizure
Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
New September 2003; Renumbered from CACI No. 3003 December 2012; Revised
November 2019
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.’ ” (Conway v.
Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52 Cal.Rptr.2d 777],
internal citation omitted.)
• “A Fourth Amendment ‘search’ occurs when a government agent ‘obtains
information by physically intruding on a constitutionally protected area,’ or
infringes upon a ‘reasonable expectation of privacy,’ As we have explained, . . .
‘when the government “physically occupie[s] private property for the purpose of
obtaining information,” a Fourth Amendment search occurs, regardless whether
the intrusion violated any reasonable expectation of privacy. Only where the
258
CIVIL RIGHTS CACI No. 3023
search did not involve a physical trespass do courts need to consult Katz’s
reasonable-expectation-of-privacy test.’ ” (Whalen v. McMullen (9th Cir. 2018)
907 F.3d 1139, 1146–1147, original italics, internal citations omitted.)
• “[A] seizure conducted without a warrant is per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.” (Sandoval v. County of Sonoma (9th Cir. 2018) 912 F.3d
509, 515, original italics.)
• “[F]or the purposes of § 1983, a properly issued warrant makes an officer’s
otherwise unreasonable entry non-tortious—that is, not a trespass. Absent a
warrant or consent or exigent circumstances, an officer must not enter; it is the
entry that constitutes the breach of duty under the Fourth Amendment. As a
result, the relevant counterfactual for the causation analysis is not what would
have happened had the officers procured a warrant, but rather, what would have
happened had the officers not unlawfully entered the residence.” (Mendez v.
County of Los Angeles (9th Cir. 2018) 897 F.3d 1067, 1076.)
• “[T]here is no talismanic distinction, for Fourth Amendment purposes, between a
warrantless ‘entry’ and a warrantless ‘search.’ ‘The two intrusions share this
fundamental characteristic: the breach of the entrance to an individual’s home.’ ”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 874.)
• “ ‘The Fourth Amendment prohibits only unreasonable searches . . . . [¶] The
test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v. County
of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834], internal
citation omitted.)
• “ ‘[I]n justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.’ ‘And in making that
assessment it is imperative that the facts be judged against an objective standard:
would the facts available to the officer at the moment of the seizure or the
search “warrant a man of reasonable caution in the belief” that the action taken
was appropriate?’ An officer’s good faith is not enough.” (King v. State of
California (2015) 242 Cal.App.4th 265, 283 [195 Cal.Rptr.3d 286], internal
citations omitted.)
• “Thus, the fact that the officers’ reasonable suspicion of wrongdoing is not
particularized to each member of a group of individuals present at the same
location does not automatically mean that a search of the people in the group is
unlawful. Rather, the trier of fact must decide whether the search was reasonable
in light of the circumstances.” (Lyall v. City of Los Angeles (9th Cir. 2015) 807
F.3d 1178, 1194.)
259
CACI No. 3023 CIVIL RIGHTS
• “ ‘It is settled doctrine that probable cause for belief that certain articles subject
to seizure are in a dwelling cannot of itself justify a search without a warrant.’
Thus, a warrantless entry into a residence is presumptively unreasonable and
therefore unlawful. Government officials ‘bear a heavy burden when attempting
to demonstrate an urgent need that might justify warrantless searches or
arrests.’ ” (Conway, supra, 45 Cal.App.4th at p. 172, internal citations omitted.)
• “ ‘[I]t is a “basic principle of Fourth Amendment law” ’ that warrantless searches
of the home or the curtilage surrounding the home ‘are presumptively
unreasonable.’ ” (Bonivert, supra, 883 F.3d at p. 873.)
• “The Fourth Amendment shields not only actual owners, but also anyone with
sufficient possessory rights over the property searched. . . . To be shielded by
the Fourth Amendment, a person needs ‘some joint control and supervision of
the place searched,’ not merely permission to be there.” (Lyall, supra, 807 F.3d
at pp. 1186–1187.)
• “[T]he Fourth Amendment’s ‘prohibition on unreasonable searches and seizures
applies to searches conducted by public school officials.’ ” (Scott v. County of
San Bernardino (9th Cir. 2018) 903 F.3d 943, 948.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],’ ” does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “[P]rivate parties ordinarily are not subject to suit under section 1983, unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private parties
involved in such a conspiracy may be liable under section 1983.” (United
Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865 F.2d 1539,
1540, internal citations omitted.)
260
CIVIL RIGHTS CACI No. 3023
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
261
3024. Affirmative Defense—Search Incident to Lawful Arrest
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required. To succeed, [name of defendant] must
prove all of the following:
1. That the search was conducted as part of a lawful arrest of [name
of plaintiff];
2. That [name of defendant] searched only [name of plaintiff] and the
area within which [he/she/nonbinary pronoun] might have gained
possession of a weapon or might have destroyed or hidden
evidence; and
3. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor].
New September 2003; Renumbered from CACI No. 3004 December 2012
Directions for Use
For instructions regarding whether an arrest is lawful, see instructions in the False
Imprisonment series (CACI Nos. 1400–1409).
This instruction is not intended for use in cases involving automobile searches:
“[W]e hold that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.” (New York v. Belton (1981)
453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768], footnotes omitted.)
Sources and Authority
• “Searches incident to lawful arrest constitute a well-established exception to the
warrant requirement of the Fourth Amendment.” (Hallstrom v. Garden City (9th
Cir. 1993) 991 F.2d 1473, 1477, internal citations omitted.)
• “Under applicable federal law, a lawful custodial arrest creates a situation which
justifies the full contemporaneous search without a warrant of the person arrested
and of the immediately surrounding area. Such searches are considered valid
because of the need to remove weapons and to prevent the concealment or
destruction of evidence.” (People v. Gutierrez (1984) 163 Cal.App.3d 332,
262
CIVIL RIGHTS CACI No. 3024
263
3025. Affirmative Defense—Consent to Search
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required because [name of plaintiff/third person]
consented to the search. To succeed, [name of defendant] must prove both
of the following:
1. That [[name of plaintiff]/[name of third person], who controlled or
reasonably appeared to have control of the area,] knowingly and
voluntarily consented to the search; and
2. That the search was reasonable under all of the circumstances.
[[Name of third person]’s consent is insufficient if [name of plaintiff] was
physically present and expressly refused to consent to the search.]
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor(s)].
New September 2003; Revised April 2009; Renumbered from CACI No. 3005
December 2012
Directions for Use
Give the optional paragraph after element 2 if the defendant relied on the consent of
someone other than the plaintiff to initiate the search. (See Georgia v. Randolph
(2006) 547 U.S. 103, 106 [126 S.Ct. 1515, 164 L.Ed.2d 208].)
Sources and Authority
• “The Fourth Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects. The
prohibition does not apply, however, to situations in which voluntary consent has
been obtained, either from the individual whose property is searched or from a
third party who possesses common authority over the premises.” (Illinois v.
Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148], internal
citations omitted.)
• “ ‘[C]ommon authority’ rests ‘on mutual use of the property by persons generally
having joint access or control for most purposes . . . .’ The burden of
establishing that common authority rests upon the State.” (Illinois v. Rodriguez,
supra, 497 U.S. at p. 181, internal citation omitted.)
• “The Fourth Amendment recognizes a valid warrantless entry and search of
264
CIVIL RIGHTS CACI No. 3025
premises when police obtain the voluntary consent of an occupant who shares, or
is reasonably believed to share, authority over the area in common with a co-
occupant who later objects to the use of evidence so obtained. The question here
is whether such an evidentiary seizure is likewise lawful with the permission of
one occupant when the other, who later seeks to suppress the evidence, is
present at the scene and expressly refuses to consent. We hold that, in the
circumstances here at issue, a physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable and invalid
as to him.” (Georgia, supra, 547 U.S. at p. 106, internal citations omitted.)
• “Where consent is relied upon to justify the lawfulness of a search, the
government ‘has the burden of proving that the consent was, in fact, freely and
voluntarily given.’ ‘The issue of whether or not consent to search was freely and
voluntarily given is one of fact to be determined on the basis of the totality of
the circumstances.’ ” (U.S. v. Henry (9th Cir. 1980) 615 F.2d 1223, 1230,
internal citations omitted.)
• “Whether consent was voluntarily given ‘is to be determined from the totality of
all the circumstances.’ We consider the following factors to assess whether the
consent was voluntary: (1) whether the person was in custody; (2) whether the
officers had their guns drawn; (3) whether a Miranda warning had been given;
(4) whether the person was told that he had the right not to consent; and (5)
whether the person was told that a search warrant could be obtained. Although
no one factor is determinative in the equation, ‘many of this court’s decisions
upholding consent as voluntary are supported by at least several of the factors.’ ”
(U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026–1027, internal citations
omitted.)
• “According to [defendant], ‘express refusal means verbal refusal.’ We disagree,
as this interpretation finds no support in either common sense or the case law.”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 875.)
• “In determining whether a person consented to an intrusion into her home, we
distinguish between ‘undercover’ entries, where a person invites a government
agent who is concealing that he is a government agent into her home, and ‘ruse’
entries, where a known government agent misrepresents his purpose in seeking
entry. The former does not violate the Fourth Amendment, as long as the
undercover agent does not exceed the scope of his invitation while inside the
home. But ‘[a] ruse entry when the suspect is informed that the person seeking
entry is a government agent but is misinformed as to the purpose for which the
agent seeks entry cannot be justified by consent.’ ” (Whalen v. McMullen (9th
Cir. 2018) 907 F.3d 1139, 1146–1147, internal citations omitted.)
• “Because he entered the home while using a ruse and not while undercover, it is
immaterial that he stayed within [plaintiff]’s presence in the home and did not
conduct a broader search. He did not have consent to be in the home for the
purposes of his visit.” (Whalen, supra, 907 F.3d at p. 1150.)
265
CACI No. 3025 CIVIL RIGHTS
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
266
3026. Affirmative Defense—Exigent Circumstances
New September 2003; Renumbered from CACI No. 3006 December 2012
Sources and Authority
• “Absent consent, exigent circumstances must exist for a warrantless entry into a
home, despite probable cause to believe that a crime has been committed or that
incriminating evidence may be found inside. Such circumstances are ‘few in
number and carefully delineated.’ ‘Exigent circumstances’ means ‘an emergency
situation requiring swift action to prevent imminent danger to life or serious
damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.’ ” (Conway v. Pasadena Humane Society (1996) 45
Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777], internal citation omitted.)
• “Before agents of the government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091,
80 L.Ed.2d 732].)
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
267
CACI No. 3026 CIVIL RIGHTS
interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police officers’
‘community caretaking function’ and allows them ‘to respond to emergency
situations’ that threaten life or limb; this exception does ‘not [derive from] police
officers’ function as criminal investigators.’ By contrast, the ‘exigency’ exception
does derive from the police officers’ investigatory function; it allows them to
enter a home without a warrant if they have both probable cause to believe that
a crime has been or is being committed and a reasonable belief that their entry is
‘necessary to prevent . . . the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.’ (Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 763,
original italics, internal citations omitted.)
• “[D]etermining whether an official had ‘reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a] “question[] of fact to be
determined by a jury.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1475 [150 Cal.Rptr.3d 735].)
• “There is no litmus test for determining whether exigent circumstances exist, and
each case must be decided on the facts known to the officers at the time of the
search or seizure. However, two primary considerations in making this
determination are the gravity of the underlying offense and whether the delay in
seeking a warrant would pose a threat to police or public safety.” (Conway,
supra, 45 Cal.App.4th at p. 172.)
• “ ‘[W]hile the commission of a misdemeanor offense,’ such as the petty theft
that [defendants] were investigating, ‘is not to be taken lightly, it militates
against a finding of exigent circumstances where the offense . . . is not
inherently dangerous.’ ” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d
1178, 1189.)
• “Finally, even where exigent circumstances exist, ‘[t]he search must be “strictly
circumscribed by the exigencies which justify its initiation.” ’ ‘An exigent
circumstance may justify a search without a warrant. However, after the
emergency has passed, the [homeowner] regains his right to privacy, and . . . a
second entry [is unlawful].’ ” (Conway, supra, 45 Cal.App.4th at p. 173, internal
citation omitted.)
• “ ‘Exigent circumstances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police
were to delay a search [] until a warrant could be obtained.’ Mere speculation is
not sufficient to show exigent circumstances.” (United States v. Reid (9th Cir.
2000) 226 F.3d 1020, 1027−1028, internal citations omitted.)
• “The government bears the burden of showing specific and articulable facts to
justify the finding of exigent circumstances.” (United States v. Iwai (9th Cir.
2019) 930 F.3d 1141, 1144.)
• “This is a heavy burden and can be satisfied ‘only by demonstrating specific and
articulable facts to justify the finding of exigent circumstances.’ Furthermore,
268
CIVIL RIGHTS CACI No. 3026
269
3027. Affirmative Defense—Emergency
and manner were reasonable to meet the need.’ ” (Ames v. King County (9th Cir.
2017) 846 F.3d 340, 350.)
• “The testimony that a reasonable officer would have perceived an immediate
threat to his safety is, at a minimum, contradicted by certain portions of the
record. The facts matter, and here, there are triable issues of fact as to whether
‘violence was imminent,’ and whether [defendant]’s warrantless entry was
justified under the emergency exception.” (Sandoval v. Las Vegas Metro. Police
Dept. (9th Cir. 2014) 756 F.3d 1154, 1165, internal citation omitted.)
• “In sum, reasonable police officers in petitioners’ position could have come to
the conclusion that the Fourth Amendment permitted them to enter the . . .
residence if there was an objectively reasonable basis for fearing that violence
was imminent.” (Ryburn v. Huff (2012) 565 U.S. 469, 477 [132 S.Ct. 987, 181
L.Ed.2d 966].)
• “[W]e have refused to hold that ‘domestic abuse cases create a per se’
emergency justifying warrantless entry. [¶] Indeed, all of our decisions involving
a police response to reports of domestic violence have required an objectively
reasonable basis for believing that an actual or imminent injury was unfolding in
the place to be entered.” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d
865, 877, original italics, internal citations omitted.)
• “[O]fficer safety may also fall under the emergency rubric.” (Sandoval, supra,
756 F.3d at p. 1163.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3028–3039. Reserved for Future Use
271
3040. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
New September 2003; Revised December 2010, June 2011; Renumbered from CACI
No. 3011 December 2012; Revised December 2014, June 2015, May 2017, May
2020
Directions for Use
Give this instruction in a case involving conduct that allegedly created a substantial
risk of serious harm to an inmate. (See Farmer v. Brennan (1994) 511 U.S. 825
[114 S.Ct. 1970, 128 L.Ed.2d 811].) For an instruction on deprivation of medical
care, see CACI No. 3041, Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care. For an instruction involving the deprivation of
272
CIVIL RIGHTS CACI No. 3040
necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil Rights—Eight
Amendment—Deprivation of Necessities.
In element 1, describe the act or omission that created the risk. In elements 2 and 3,
choose “conduct” if the risk was created by affirmative action. Choose “failure to
act” if the risk was created by an omission.
In prison-conditions cases, the inmate must show that the defendant was deliberately
indifferent to the inmate’s health or safety. (Farmer, supra, 511 U.S. at p. 834.)
“Deliberate indifference” involves a two part inquiry. First, the inmate must show
that the prison officials were aware of a “substantial risk of serious harm” to the
inmate’s health or safety, but failed to act to address the danger. (See Castro v.
County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1073.) Second, the inmate must show
that the prison officials had no “reasonable” justification for the conduct, in spite of
that risk. (Thomas v. Ponder (9th Cir. 2010) 611 F.3d 1144, 1150.) Elements 3, 4,
and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475, 125
L.Ed.2d 22].)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “[D]irect causation by affirmative action is not necessary: ‘a prison official may
be held liable under the Eighth Amendment if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’ ” (Castro, supra, 833 F.3d at p. 1067, original
italics.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
273
CACI No. 3040 CIVIL RIGHTS
from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107 S.
Ct. 2254, 96 L. Ed. 2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply to
Eighth Amendment claims. . . . The existence of a legitimate penological
justification has, however, been used in considering whether adverse treatment is
sufficiently gratuitous to constitute punishment for Eighth Amendment purposes.”
(Grenning v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
. . . conditions of confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies needed to preserve
discipline and maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016)
836 F.3d 1239, 1254, internal citation omitted.)
• “However, our precedent should not be misread to suggest that jail officials are
automatically entitled to deference instructions in conditions of confinement or
excessive force cases brought by prisoners, or § 1983 actions brought by former
inmates. We have long recognized that a jury need not defer to prison officials
where the plaintiff produces substantial evidence showing that the jail’s policy or
practice is an unnecessary, unjustified, or exaggerated response to the need for
prison security.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1183, internal
citations omitted.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter, supra, 895 F.3d at p. 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
274
CIVIL RIGHTS CACI No. 3040
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶¶ 11.02–11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.28 (Matthew Bender)
275
3041. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
New September 2003; Revised December 2010; Renumbered from CACI No. 3012
December 2012; Revised June 2014, December 2014, June 2015, May 2020,
November 2021
Directions for Use
Give this instruction in a case involving the deprivation of medical care to a
276
CIVIL RIGHTS CACI No. 3041
medical opinion about which treatment is best for a particular patient. Nor is this
a case of ordinary medical mistake or negligence. Rather, the evidence is
undisputed that [plaintiff] was denied treatment for his monocular blindness
solely because of an administrative policy, even in the face of medical
recommendations to the contrary. A reasonable jury could find that [plaintiff] was
denied surgery, not because it wasn’t medically indicated, not because his
condition was misdiagnosed, not because the surgery wouldn’t have helped him,
but because the policy of the [defendant] is to require an inmate to endure
reversible blindness in one eye if he can still see out of the other. This is the
very definition of deliberate indifference.” (Colwell, supra, 763 F.3d at p. 1068.)
• “[C]laims for violations of the right to adequate medical care ‘brought by
pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard. Based thereon, the elements of a pretrial detainee’s medical care claim
against an individual defendant under the due process clause of the Fourteenth
Amendment are: (i) the defendant made an intentional decision with respect to
the conditions under which the plaintiff was confined; (ii) those conditions put
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did
not take reasonable available measures to abate that risk, even though a
reasonable official in the circumstances would have appreciated the high degree
of risk involved—making the consequences of the defendant’s conduct obvious;
and (iv) by not taking such measures, the defendant caused the plaintiff’s
injuries. ‘With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that will necessarily “turn[ ] on the facts and
circumstances of each particular case.” ’ The ‘ “mere lack of due care by a state
official” does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.’ Thus, the plaintiff must ‘prove more than negligence
but less than subjective intent—something akin to reckless disregard.’ ” (Gordon
v. County of Orange (9th Cir. 2018) 888 F.3d 1118, 1124–1125, internal citations
omitted.)
• “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition
could result in further significant injury or the ‘unnecessary and wanton infliction
of pain.’ The ‘routine discomfort’ that results from incarceration and which is
‘part of the penalty that criminal offenders pay for their offenses against society’
does not constitute a ‘serious’ medical need.” (Doty v. County of Lassen (9th Cir.
1994) 37 F.3d 540, 546, internal citations and footnote omitted.)
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 244
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial,
Ch. 2E-10, Special Jurisdictional Limitations—Eleventh Amendment As Limitation
On Actions Against States, ¶ 2:4923 (The Rutter Group)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State Law-
281
CACI No. 3041 CIVIL RIGHTS
282
3042. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
New September 2003; Revised June 2010; Renumbered from CACI No. 3010
December 2010; Renumbered from CACI No. 3013 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
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CACI No. 3042 CIVIL RIGHTS
There is law suggesting that the jury should give deference to prison officials in the
adoption and execution of policies and practices that in their judgment are needed to
preserve discipline and to maintain internal security in a prison. This principle is
covered in the final sentence by the term “good faith.”
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d 920].)
• “The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who
may not, for example, use excessive physical force against prisoners. The
Amendment also imposes duties on these officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’ ” (Farmer v. Brennan (1994)
511 U.S. 825, 832 [114 S.Ct. 1970, 128 L.Ed.2d 811], internal citations omitted.)
• “[A]pplication of the deliberate indifference standard is inappropriate when
authorities use force to put down a prison disturbance. Instead, ‘the question
whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on “whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” ’ ” (Hudson v. McMillian (1992) 503 U.S. 1, 6 [112 S.Ct. 995,
117 L.Ed.2d 156], internal citations omitted.)
• “[W]e hold that whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” (Hudson, supra, 503 U.S. at pp. 6–7, internal citations omitted.)
• “[E]xcessive force under the Eighth Amendment does not require proof that an
officer enjoyed or otherwise derived pleasure from his or her use of force.”
(Hoard v. Hartman (9th Cir. 2018) 904 F.3d 780, 782.)
• “[T]here is ample evidence here that the Supreme Court did not intend its use of
‘maliciously and sadistically’ . . . to work a substantive change in the law on
excessive force beyond requiring intent to cause harm. Chief among this
evidence is the fact that the Supreme Court has never addressed ‘maliciously and
sadistically’ separately from the specific intent to cause harm. It has even, on one
occasion, omitted any mention of ‘maliciously and sadistically’ altogether and
simply explained that ‘a purpose to cause harm is needed for Eighth Amendment
liability in a [prison] riot case.’ ” (Hoard, supra, 904 F.3d at p. 789.)
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CIVIL RIGHTS CACI No. 3042
responsible officials on the basis of the facts known to them, and any efforts
made to temper the severity of a forceful response.” (Whitley v. Albers (1986)
475 U.S. 312, 321 [106 S.Ct. 1078, 89 L.Ed.2d 251], internal citations omitted.)
• “ ‘[T]he appropriate standard for a pretrial detainee’s excessive force claim
[under the Fourteenth Amendment] is solely an objective one.’ In contrast, a
convicted prisoner’s excessive force claim under the Eighth Amendment requires
a subjective inquiry into ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.’ ”
(Rodriguez v. County of L.A. (9th Cir. 2018) 891 F.3d 776, 788, internal citation
omitted.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.01 (Matthew Bender)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.70 (Matthew Bender)
286
3043. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities (42 U.S.C. § 1983)
substantial risk of serious harm to the inmate’s health or safety. Second, the inmate
must show that the prison officials had no reasonable justification for the conduct, in
spite of that risk. (Thomas, supra, 611 F.3d at p. 1150.) Elements 4 and 5 express
the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475, 125
L.Ed.2d 22].)
• “Prison officials have a duty to ensure that prisoners are provided adequate
shelter, food, clothing, sanitation, medical care, and personal safety.” (Johnson v.
Lewis (9th Cir. 2000) 217 F.3d 726, 731, internal citations omitted.)
• “[E]xtreme deprivations are required to make out a conditions-of-confinement
claim. Because routine discomfort is ‘part of the penalty that criminal offenders
pay for their offenses against society,’ ‘only those deprivations denying “the
minimal civilized measure of life’s necessities” are sufficiently grave to form the
basis of an Eighth Amendment violation.’ ” (Hudson v. McMillian (1992) 503
U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citations omitted.)
• “[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious,’
a prison official’s act or omission must result in the denial of ‘the minimal
civilized measure of life’s necessities,’ . . . .” (Farmer, supra, 511 U.S. at p.
834, internal citations omitted.)
• “ ‘[O]nly the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison
official must have a ‘sufficiently culpable state of mind.’ In prison-conditions
cases that state of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations omitted.)
• “[A]n inmate seeking to prove an Eighth Amendment violation must ‘objectively
show that he was deprived of something “sufficiently serious,” ’ and ‘make a
subjective showing that the deprivation occurred with deliberate indifference to
the inmate’s health or safety.’ The second step, showing ‘deliberate indifference,’
involves a two part inquiry. First, the inmate must show that the prison officials
were aware of a ‘substantial risk of serious harm’ to an inmate’s health or safety.
This part of our inquiry may be satisfied if the inmate shows that the risk posed
by the deprivation is obvious. Second, the inmate must show that the prison
officials had no ‘reasonable’ justification for the deprivation, in spite of that
288
CIVIL RIGHTS CACI No. 3043
risk.” (Thomas, supra, 611 F.3d at p. 1150, footnote and internal citations
omitted.)
• “Next, the inmate must ‘make a subjective showing that the deprivation occurred
with deliberate indifference to the inmate’s health or safety.’ To satisfy this
subjective component of deliberate indifference, the inmate must show that
prison officials ‘kn[e]w[] of and disregard[ed]’ the substantial risk of harm, but
the officials need not have intended any harm to befall the inmate; ‘it is enough
that the official acted or failed to act despite his knowledge of a substantial risk
of serious harm.’ ” (Lemire v. Cal. Dep’t of Corr. & Rehab. (9th Cir. 2013) 726
F.3d 1062, 1074, internal citations omitted.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply to
Eighth Amendment claims. The existence of a legitimate penological justification
has, however, been used in considering whether adverse treatment is sufficiently
gratuitous to constitute punishment for Eighth Amendment purposes.” (Grenning
v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
. . . conditions of confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies needed to preserve
discipline and maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016)
836 F.3d 1239, 1254, internal citation omitted.)
• “However, our precedent should not be misread to suggest that jail officials are
automatically entitled to deference instructions in conditions of confinement or
excessive force cases brought by prisoners, or § 1983 actions brought by former
inmates. We have long recognized that a jury need not defer to prison officials
where the plaintiff produces substantial evidence showing that the jail’s policy or
practice is an unnecessary, unjustified, or exaggerated response to the need for
prison security.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1183, internal
citations omitted.)
289
CACI No. 3043 CIVIL RIGHTS
290
3046. Violation of Pretrial Detainee’s Federal Civil
Rights—Fourteenth Amendment—Medical Care and Conditions of
Confinement (42 U.S.C. § 1983)
so under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if
not yet convicted, under the Fourteenth Amendment’s Due Process Clause.
Under both clauses, the plaintiff must show that the prison officials acted with
‘deliberate indifference.’ ” (Castro, supra, 833 F.3d at pp. 1067–1068, internal
citation omitted.)
• “[W]e hold that claims for violations of the right to adequate medical care
‘brought by pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard.” (Gordon, supra, 888 F.3d at pp. 1124–1125.)
• “[C]laims for violations of the right to adequate medical care ‘brought by
pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard. Based thereon, the elements of a pretrial detainee’s medical care claim
against an individual defendant under the due process clause of the Fourteenth
Amendment are: (i) the defendant made an intentional decision with respect to
the conditions under which the plaintiff was confined; (ii) those conditions put
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did
not take reasonable available measures to abate that risk, even though a
reasonable official in the circumstances would have appreciated the high degree
of risk involved-making the consequences of the defendant’s conduct obvious;
and (iv) by not taking such measures, the defendant caused the plaintiff’s
injuries. ‘With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that will necessarily “turn[ ] on the facts and
circumstances of each particular case.” ’ The ‘ “mere lack of due care by a state
official” does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.’ Thus, the plaintiff must ‘prove more than negligence
but less than subjective intent-something akin to reckless disregard.’ ” (Gordon,
supra, 888 F.3d at pp. 1124–1125, internal citations omitted.)
• “ ‘[T]he objective deliberate indifference standard applies even when the incident
occurred pre-Gordon.’ Thus, to determine whether the defendants are entitled to
qualified immunity, we do not consider whether they subjectively understood that
[the detainee] faced a substantial risk of serious harm. Rather, we conduct ‘an
objective examination of whether established case law would make clear to
every reasonable official that the defendant’s conduct was unlawful in the
situation he confronted.’ ” (Russell v. Lumitap (9th Cir. 2022) 31 F.4th 729, 740,
original italics, internal citations and footnotes omitted.)
• “Our cases make clear that prison officials violate the Constitution when they
‘deny, delay or intentionally interfere’ with needed medical treatment. The same
is true when prison officials choose a course of treatment that is ‘medically
unacceptable under the circumstances.’ ” (Sandoval v. County of San Diego (9th
Cir. 2021) 985 F.3d 657, 679.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 356
292
CIVIL RIGHTS CACI No. 3046
293
3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
New June 2010; Revised December 2010; Renumbered from CACI No. 3016 and
Revised December 2012; Revised June 2013, May 2020, May 2021, November 2021
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, if the claimed civil rights violation
294
CIVIL RIGHTS CACI No. 3050
295
CACI No. 3050 CIVIL RIGHTS
must ultimately prove first that [defendant] took action that ‘would chill or
silence a person of ordinary firmness from future First Amendment activities.’ ”
(Skoog v. County of Clackamas (9th Cir. 2006) 469 F.3d 1221, 1231–1232,
footnote and citation omitted.)
• “The plaintiff pressing a retaliatory arrest claim must plead and prove the
absence of probable cause for the arrest.” (Nieves v. Bartlett (2019) ___ U.S. ___
[139 S.Ct. 1715, 1724, 204 L.Ed.2d 1].)
• “[W]e conclude that the no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech
had not been.” (Nieves, supra, 139 S.Ct. at p. 1727.)
• “[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury—i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights—because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
• “Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300–1301,
internal citation omitted.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl v. City of Mountlake Terrace (9th Cir. 2012)
678 F.3d 1062, 1072–1073, internal citation omitted.)
• “While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez v.
Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 894,
895, 978
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
297
CACI No. 3050 CIVIL RIGHTS
298
3051. Unlawful Removal of Child From Parental Custody Without
a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their homes
[without prior judicial authorization] absent such a showing. [Citation.] Officials,
including social workers, who remove a child from its home without a warrant
must have reasonable cause to believe that the child is likely to experience
serious bodily harm in the time that would be required to obtain a warrant.’
Because ‘the same legal standard applies in evaluating Fourth and Fourteenth
Amendment claims for the removal of children,” we may “analyze [the claims]
together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473–1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires an
official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d 990,
1000, internal citations omitted.)
• “This requirement ‘balance[s], on the one hand, the need to protect children
from abuse and neglect and, on the other, the preservation of the essential
privacy and liberty interests that families are guaranteed under both the Fourth
and Fourteenth Amendments of our Constitution.’ ” (Demaree v. Pederson (9th
Cir. 2018) 880 F.3d 1066, 1074.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Under the Fourth Amendment, government officials are ordinarily required to
obtain prior judicial authorization before removing a child from the custody of
her parent. However, officials may seize a child without a warrant ‘if the
300
CIVIL RIGHTS CACI No. 3051
information they possess at the time of the seizure is such as provides reasonable
cause to believe that the child is in imminent danger of serious bodily injury and
that the scope of the intrusion is reasonably necessary to avert that specific
injury.’ ” (Kirkpatrick v. Cnty. of Washoe (9th Cir. 2016) 843 F.3d 784, 790 (en
banc).)
• “[I]t does not matter whether the warrant could be obtained in hours or days.
What matters is whether there is an identifiable risk of serious harm or abuse
during whatever the delay period is.” (Demaree, supra, 880 F.3d at p. 1079,
original italics.)
• “The parental right secured by the Fourteenth Amendment ‘is not reserved for
parents with full legal and physical custody.’ At the same time, however,
‘[p]arental rights do not spring full-blown from the biological connection
between parent and child.’ Judicially enforceable interests arising under the
Fourteenth Amendment ‘require relationships more enduring,’ which reflect some
assumption ‘of parental responsibility.’ It is ‘[w]hen an unwed father
demonstrates a full commitment to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,’ that ‘his interest in personal
contact with his child acquires substantial protection under the due process
clause.’ Until then, a person with only potential parental rights enjoys a liberty
interest in the companionship, care, and custody of his children that is
‘unambiguously lesser in magnitude.’ ” (Kirkpatrick, supra, 843 F.3d at p. 789.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at a
hospital as part of a child abuse investigation, such that a reasonable person in
the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “An official ‘cannot seize children suspected of being abused or neglected unless
reasonable avenues of investigation are first pursued.’ Further, because the ‘scope
of the intrusion’ must be ‘reasonably necessary to avert’ a specific injury, the
intrusion cannot be longer than necessary to avert the injury.” (Keates v. Koile
(9th Cir. 2018) 883 F.3d 1228, 1237, internal citations omitted.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial rights.”
(Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
301
CACI No. 3051 CIVIL RIGHTS
302
3052. Use of Fabricated Evidence—Essential Factual Elements (42
U.S.C. § 1983)
306
3053. Retaliation for Exercise of Free Speech Rights—Public
Employee—Essential Factual Elements (42 U.S.C. § 1983)
employment action even absent the protected speech. ‘[A]ll the factors are
necessary, in the sense that failure to meet any one of them is fatal to the
plaintiff’s case.’ ” (Kennedy v. Bremerton Sch. Dist. (9th Cir. 2017) 869 F.3d
813, 822, internal citations omitted.)
• “In a First Amendment retaliation case, an adverse employment action is an act
that is reasonably likely to deter employees from engaging in constitutionally
protected speech.” (Greisen v. Hanken (9th Cir. 2019) 925 F.3d 1097, 1113.)
• “Pickering [v. Bd. of Educ. (1968) 391 U.S. 563 [88 S.Ct. 1731, 20 L.Ed.2d
811]] and the cases decided in its wake identify two inquiries to guide
interpretation of the constitutional protections accorded to public employee
speech. The first requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the
speech. If the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public. This consideration reflects the importance of the
relationship between the speaker’s expressions and employment. A government
entity has broader discretion to restrict speech when it acts in its role as
employer, but the restrictions it imposes must be directed at speech that has
some potential to affect the entity’s operations.” (Garcetti, supra, 547 U.S. at p.
418, internal citations omitted.)
• “In the forty years since Pickering, First Amendment retaliation law has evolved
dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history
reveals a sequential five-step series of questions: (1) whether the plaintiff spoke
on a matter of public concern; (2) whether the plaintiff spoke as a private citizen
or public employee; (3) whether the plaintiff’s protected speech was a substantial
or motivating factor in the adverse employment action; (4) whether the state had
an adequate justification for treating the employee differently from other
members of the general public; and (5) whether the state would have taken the
adverse employment action even absent the protected speech. Analysis of these
questions, further complicated by restraints on our interlocutory appellate
jurisdiction, involves a complex array of factual and legal inquiries requiring
detailed explanation.” (Eng, supra, 552 F.3d at p. 1070.)
• “Whether speech is on a matter of public concern is a question of law,
determined by the court . . .. The speech need not be entirely about matters of
public concern, but it must ‘substantially involve’ such matters. ‘[S]peech
warrants protection when it “seek[s] to bring to light actual or potential
wrongdoing or breach of public trust.” ’ ” (Greisen, supra, 925 F.3d at p. 1109.)
• “Public employees’ expression is on a matter of public concern if it ‘relat[es] to
any matter of political, social, or other concern to the community,’ and not ‘upon
matters only of personal interest.’ Some subjects both affect a public employee’s
personal interests and implicate matters of public concern. Rendish [v. City of
Tacoma (9th Cir. 1997) 123 F.3d 1216, 1223] held that unlawful discrimination
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CACI No. 3053 CIVIL RIGHTS
employer expressed opposition to the speech; or (3) introduce evidence that the
proffered explanations for the adverse action were false and pretextual.”
(Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)
• “[I]n synthesizing relevant Ninth Circuit precedent since Garcetti, an en banc
panel of this Court in Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir.
2013), announced three guiding principles for undertaking the practical factual
inquiry of whether an employee’s speech is insulated from employer discipline
under the First Amendment. . . . The guiding principles are: [¶] 1. ‘First,
particularly in a highly hierarchical employment setting such as law enforcement,
whether or not the employee confined his communications to his chain of
command is a relevant, if not necessarily dispositive, factor in determining
whether he spoke pursuant to his official duties. When a public employee
communicates with individuals or entities outside of his chain of command, it is
unlikely that he is speaking pursuant to his duties.’ [¶] 2. ‘Second, the subject
matter of the communication is also of course highly relevant to the ultimate
determination whether the speech is protected by the First Amendment . . .
When an employee prepares a routine report, pursuant to normal departmental
procedure, about a particular incident or occurrence, the employee’s preparation
of that report is typically within his job duties . . . . By contrast, if a public
employee raises within the department broad concerns about corruption or
systemic abuse, it is unlikely that such complaints can reasonably be classified as
being within the job duties of an average public employee, except when the
employee’s regular job duties involve investigating such conduct.’ [¶] 3. ‘Third,
we conclude that when a public employee speaks in direct contravention to his
supervisor’s orders, that speech may often fall outside of the speaker’s
professional duties. Indeed, the fact that an employee is threatened or harassed
by his superiors for engaging in a particular type of speech provides strong
evidence that the act of speech was not, as a ‘practical’ matter, within the
employee’s job duties notwithstanding any suggestions to the contrary in the
employee’s formal job description.’ ” (Brandon v. Maricopa County (9th Cir.
2017) 849 F.3d 837, 843–844, internal citations omitted.)
• “Initially, in this case, the burden was properly placed upon respondent to show
that his conduct was constitutionally protected, and that this conduct was a
‘substantial factor’—or, to put it in other words, that it was a ‘motivating factor’
in the [defendant]’s decision not to rehire him. Respondent having carried that
burden, however, the District Court should have gone on to determine whether
the [defendant] had shown by a preponderance of the evidence that it would
have reached the same decision as to respondent’s re-employment even in the
absence of the protected conduct.” (Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle (1977) 429 U.S. 274, 287 [97 S.Ct. 568, 50 L.Ed.2d 471].)
• “Although the Pickering balancing inquiry is ultimately a legal question, like the
private citizen inquiry, its resolution often entails underlying factual disputes.
Thus we must once again assume any underlying disputes will be resolved in
favor of the plaintiff to determine, as a matter of law, whether the state has
311
CACI No. 3053 CIVIL RIGHTS
312
3055. Rebuttal of Retaliatory Motive
punished the plaintiffs in the absence of the protected speech; instead, “the
burden is on the defendants to show” through evidence that they “would have”
punished the plaintiffs under those circumstances.’ ” (Bello-Reyes v. Gaynor (9th
Cir. 2021) 985 F.3d 696, 702, original italics, internal citations omitted.)
Secondary Sources
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Pretrial, § 367
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 511
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 894–895
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.15 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3056–3059. Reserved for Future Use
314
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ.
Code, §§ 51, 52)
New September 2003; Revised December 2011, June 2012; Renumbered from CACI
No. 3020 December 2012; Revised June 2013, June 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s
conduct. “Substantial motivating reason” has been held to be the appropriate
standard under the Fair Employment and Housing Act to address the possibility of
315
CACI No. 3060 CIVIL RIGHTS
justify extension of a disparate impact test, which has been developed and
applied by the federal courts primarily in employment discrimination cases, to a
general discrimination-in-public-accommodations statute like the Unruh Act.
Although evidence of adverse impact on a particular group of persons may have
probative value in public accommodations cases and should therefore be
admitted in appropriate cases subject to the general rules of evidence, a plaintiff
must nonetheless plead and prove a case of intentional discrimination to recover
under the Act.” (Harris, supra, 52 Cal.3d at p. 1149.)
• “On examining the language, statutory context, and history of section 51,
subdivision (f), we conclude . . . [t]he Legislature’s intent in adding subdivision
(f) was to provide disabled Californians injured by violations of the ADA with
the remedies provided by section 52. A plaintiff who establishes a violation of
the ADA, therefore, need not prove intentional discrimination in order to obtain
damages under section 52.” (Munson, supra, 46 Cal.4th at p. 665.)
• “Civil Code section 51, subdivision (f) states: ‘A violation of the right of any
individual under the federal [ADA] shall also constitute a violation of this
section.’ The ADA provides in pertinent part: ‘No individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who . . . operates a place of
public accommodation.’ The ADA defines discrimination as ‘a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.’ ” (Baughman v. Walt Disney World Co. (2013) 217
Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825], internal citations omitted.)
• “ ‘Although the Unruh Act proscribes “any form of arbitrary discrimination,”
certain types of discrimination have been denominated “reasonable” and,
therefore, not arbitrary.’ Thus, for example, ‘legitimate business interests may
justify limitations on consumer access to public accommodations.’ ” (Hankins v.
El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520 [74 Cal.Rptr.2d 684],
internal citations omitted.)
• “Discrimination may be reasonable, and not arbitrary, in light of the nature of
the enterprise or its facilities, legitimate business interests (maintaining order,
complying with legal requirements, and protecting business reputation or
investment), and public policy supporting the disparate treatment.” (Javorsky,
supra, 242 Cal.App.4th at p. 1395.)
• “[T]he Act’s objective of prohibiting ‘unreasonable, arbitrary or invidious
discrimination’ is fulfilled by examining whether a price differential reflects an
‘arbitrary, class-based generalization.’ . . . [A] policy treating age groups
differently in this respect may be upheld, at least if the pricing policy (1)
ostensibly provides a social benefit to the recipient group; (2) the recipient group
319
CACI No. 3060 CIVIL RIGHTS
New September 2003; Revised June 2012; Renumbered from CACI No. 3021 and
Revised December 2012; Revised June 2013, December 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Under the Unruh Civil Rights Act (see CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements), the California Supreme Court has held that
intentional discrimination is required. (See Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159–1162 [278 Cal.Rptr. 614, 805 P.2d 873].) While there
is no similar California case imposing an intent requirement under Civil Code
section 51.5, Civil Code section 51.5 requires that the discrimination be on account
of the protected category. (Civ. Code, § 51.5(a).) The kinds of prohibited conduct
would all seem to involve intentional acts. (See Nicole M. v. Martinez Unified Sch.
Dist. (N.D. Cal. 1997) 964 F. Supp. 1369, 1389, superseded by statute on other
grounds as stated in Sandoval v. Merced Union High Sch. (E.D. Cal. 2006) 2006
U.S. Dist. LEXIS 28446.) The intent requirement is encompassed within the
motivating-reason element (element 2).
There is an exception to the intent requirement under the Unruh Act for conduct that
violates the Americans With Disabilities Act. (See Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 665 [94 Cal.Rptr.3d 685, 208 P.3d 623].). Because this exception is
based on statutory construction of the Unruh Act (see Civ. Code, § 51(f)), the
committee does not believe that it applies to section 51.5, which contains no similar
language.
Note that there are two causation elements. There must be a causal link between the
discriminatory intent and the adverse action (see element 2), and there must be a
causal link between the adverse action and the harm (see element 4).
Element 2 uses the term “substantial motivating reason” to express causation
between the protected classification and the defendant’s conduct. “Substantial
motivating reason” has been held to be the appropriate standard under the Fair
Employment and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies under Civil
Code section 51.5 has not been addressed by the courts.
For an instruction on damages under Civil Code section 51.5, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
322
CIVIL RIGHTS CACI No. 3061
It is possible that elements 3 and 4 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
The judge may decide the issue of whether the defendant is a business establishment
as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178
Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed
if there are factual issues. This element has been omitted from the instruction
because it is unlikely to go to a jury.
Conceptually, this instruction has some overlap with CACI No. 3060, Unruh Civil
Rights Act—Essential Factual Elements. For a discussion of the basis of this
instruction, see Jackson v. Superior Court (1994) 30 Cal.App.4th 936, 941 [36
Cal.Rptr.2d 207].
Sources and Authority
• Discrimination in Business Dealings. Civil Code section 51.5.
• Protected Characteristics. Civil Code section 51(b).
• “In 1976 the Legislature added Civil Code section 51.5 to the Unruh Civil
Rights Act and amended Civil Code section 52 (which provides penalties for
those who violate the Unruh Civil Rights Act), in order to, inter alia, include
section 51.5 in its provisions.” (Pines v. Tomson (1984) 160 Cal.App.3d 370, 384
[206 Cal.Rptr. 866], footnote omitted.)
• “[I]t is clear from the cases under section 51 that the Legislature did not intend
in enacting section 51.5 to limit the broad language of section 51 to include only
selling, buying or trading. Both sections 51 and 51.5 have been liberally applied
to all types of business activities. Furthermore, section 51.5 forbids a business to
‘discriminate against’ ‘any person’ and does not just forbid a business to ‘boycott
or blacklist, refuse to buy from, sell to, or trade with any person.’ ” (Jackson,
supra, 30 Cal.App.4th at p. 941, internal citation and footnote omitted.)
• “Although the phrase ‘business establishment of every kind whatsoever’ has
been interpreted by the Supreme Court and the Court of Appeal in the context of
section 51, we are aware of no case which interprets that term in the context of
section 51.5. We believe, however, that the Legislature meant the identical
language in both sections to have the identical meaning.” (Pines, supra, 160
Cal.App.3d at p. 384, internal citations omitted.)
• “[T]he classifications specified in section 51.5, which are identical to those of
section 51, are likewise not exclusive and encompass other personal
characteristics identified in earlier cases.” (Roth v. Rhodes (1994) 25 Cal.App.4th
530, 538 [30 Cal.Rptr.2d 706], internal citations omitted.)
• “[T]he analysis under Civil Code section 51.5 is the same as the analysis we
323
CACI No. 3061 CIVIL RIGHTS
have already set forth for purposes of the [Unruh Civil Rights] Act.” (Semler v.
General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 [127
Cal.Rptr.3d 794].)
• “[W]hen such discrimination occurs, a person has standing under section 51.5 if
he or she is ‘associated with’ the disabled person and has also personally
experienced the discrimination.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118,
1134 [205 Cal.Rptr.3d 656].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 994–1015
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
324
3062. Gender Price Discrimination—Essential Factual Elements
(Civ. Code, § 51.6)
New September 2003; Renumbered from CACI No. 3022 December 2012; Revised
June 2013, July 2018
Directions for Use
For an instruction on damages under Civil Code section 51.6, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
It is possible that elements 2 and 3 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
The judge may decide the issue of whether the defendant is a business establishment
as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178
Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed
if there are factual issues. This element has been omitted from the instruction
because it is unlikely to go to a jury.
Price discrimination based on age has been held to violate the Unruh Act, at least if
there is no statute-based policy supporting the differential. (See Candelore v. Tinder,
325
CACI No. 3062 CIVIL RIGHTS
Inc. (2018) 19 Cal.App.5th 1138, 1146–1155 [228 Cal.Rptr.3d 336]; but see
Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1402–1403
[195 Cal. Rptr. 3d 706].)
Sources and Authority
• Gender Price Discrimination. Civil Code section 51.6.
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
• “ ‘[D]iscounts must be “applicable alike to persons of every sex, color, race,
[and age, etc.]”, instead of being contingent on some arbitrary, class-based
generalization.’ ” (Candelore, supra, 19 Cal.App.5th at p. 1154.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1002,
1003
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.44 (Matthew Bender)
326
3063. Acts of Violence—Ralph Act—Essential Factual Elements
(Civ. Code, § 51.7)
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023A December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving actual acts
of violence alleged to have been committed by the defendant against the plaintiff.
For an instruction involving only threats of violence, see CACI No. 3064, Threats of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s acts.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
327
CACI No. 3063 CIVIL RIGHTS
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and provides
for a civil remedy for violation of that right. Nothing in the statute requires that
a plaintiff prove that the offending act was motivated by hate.” (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150 Cal.Rptr.3d 861].)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims and
Defenses, Ch. 14(IV)-B, Ralph Civil Rights Act of 1976—Elements, ¶ 14:940 (The
Rutter Group)
Cheng et al., Cal. Fair Housing and Public Accommodations § 914:2, 14:39 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
328
CIVIL RIGHTS CACI No. 3063
329
3064. Threats of Violence—Ralph Act—Essential Factual Elements
(Civ. Code, § 51.7)
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023B December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving threats of
violence alleged to have been directed by the defendant toward the plaintiff. For an
instruction involving actual acts of violence, see CACI No. 3063, Acts of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s threats.
“Substantial motivating reason” has been held to be the appropriate standard under
330
CIVIL RIGHTS CACI No. 3064
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
No published California appellate opinion establishes elements 3 and 4. However,
the Ninth Circuit Court of Appeals and the California Fair Employment and
Housing Commission have held that a reasonable person in the plaintiff’s position
must have been intimidated by the actions of the defendant and have perceived a
threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc.
(9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co.
Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and provides
for a civil remedy for violation of that right. Nothing in the statute requires that
a plaintiff prove that the offending act was motivated by hate.” (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150 Cal.Rptr.3d 861].)
• “The test is: ‘would a reasonable person, standing in the shoes of the plaintiff,
have been intimidated by the actions of the defendant and have perceived a
threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal
citation omitted.)
• “When a threat of violence would lead a reasonable person to believe that the
331
CACI No. 3064 CIVIL RIGHTS
threat will be carried out, in light of the ‘entire factual context,’ including the
surrounding circumstances and the listeners’ reactions, then the threat does not
receive First Amendment protection, and may be actionable under the Ralph Act.
The only intent requirement is that respondent ‘intentionally or knowingly
communicates his [or her] threat, not that he intended or was able to carry out
his threat.’ A threat exists if the ‘target of the speaker reasonably believes that
the speaker has the ability to act him or herself or to influence others. . . . It is
the perception of a reasonable person that is dispositive, not the actual intent of
the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp.
55–56, internal citations omitted.)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Employment
Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims and
Defenses, Ch. 14(IV)-B, Ralph Civil Rights Act of 1976—Elements, ¶ 14:940 (The
Rutter Group)
Cheng et al., Cal. Fair Housing and Public Accommodations §§ 14:2, 14:3 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation §§ 3:1–3:15 (Thomson Reuters)
332
3065. Sexual Harassment in Defined Relationship—Essential
Factual Elements (Civ. Code, § 51.9)
New September 2003; Revised April 2008; Renumbered from CACI No. 3024
December 2012; Revised January 2019
Directions for Use
Select the appropriate option for element 1 depending on the nature of the
relationship between the parties. Select either or both options for element 2
depending on the defendant’s conduct. For a nonexclusive list of relationships
covered, see Civil Code section 51.9(a)(1).
See also CACI No. 2524, “Severe or Pervasive” Explained.
Sources and Authority
• Sexual Harassment in Defined Relationship. Civil Code section 51.9.
• “[The] history of the [1999] amendments to Civil Code section 51.9 leaves no
doubt of the Legislature’s intent to conform the requirements governing liability
333
CACI No. 3065 CIVIL RIGHTS
334
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
New September 2003; Renumbered from CACI No. 3025 and Revised December
2012, November 2018
Directions for Use
Select the first option for element 1 if the defendant’s conduct involved threats of
violence. (See Civ. Code, § 52.1(k).) Select the second option if the conduct
involved actual violence.
The Bane Act provides that speech alone is not sufficient to constitute a violation
unless it involves a credible threat of violence. (Civ. Code, § 52.1(k).) This
limitation would appear to foreclose a claim based on threats, intimidation, or
coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris
Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of
action under Bane Act there must first be violence or intimidation by threat of
violence].) For example, it would not be a violation to threaten to report someone to
335
CACI No. 3066 CIVIL RIGHTS
immigration if the person exercises a right granted under labor law. No case has
been found, however, that applies the speech limitation to foreclose such a claim,
and several courts have suggested that this point is not fully settled. (See Shoyoye v.
County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839] [we
“need not decide that every plaintiff must allege violence or threats of violence in
order to maintain an action under section 52.1”]; City and County of San Francisco
v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also noting issue but
finding it unnecessary to address].) To assert such a claim, modify element 1, option
1 to allege coercion based on a nonviolent threat with severe consequences.
Civil Code section 52(a) provides for damages up to three times actual damages but
a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act), 51.5, and
51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil
Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions
the Bane Act or Civil Code section 52.1. Nevertheless, the reference to section 52 in
subsection (b) of the Bane Act would seem to indicate that damages may be
recovered under both subsections (a) and (b) of section 52.
Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought, it
is not necessary to prove harm and causation. (See Koire v. Metro Car Wash (1985)
40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for
minimum statutory damages for every violation of section 51, regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].) Presumably, the same rule applies under the Bane
Act as the statutory minimum of section 52(a) should be recoverable Therefore,
omit elements 2 and 3 unless actual damages are sought. If actual damages are
sought, combine CACI No. 3067, Unruh Civil Rights Act—Damages, and CACI No.
3068, Ralph Act—Damages and Penalty, to recover damages under both subsections
(a) and (b) of section 52.
It has been the rule that in a wrongful detention case, the coercion required to
support a Bane Act claim must be coercion independent from that inherent in the
wrongful detention itself. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th
968, 981 [159 Cal.Rptr.3d 204].) One court, however, did not apply this rule in a
wrongful arrest case. The court instead held that the “threat, intimidation or
coercion” element requires a specific intent to violate protected rights. (Cornell v.
City & County of San Francisco (2017) 17 Cal.App.5th 766, 790–804 [225
Cal.Rptr.3d 356].) Element 2 expresses this requirement.
Sources and Authority
• Bane Act. Civil Code section 52.1.
• Remedies Under Bane Act. Civil Code section 52.
• “The Bane Act permits an individual to pursue a civil action for damages where
another person ‘interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or enjoyment by
any individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this state.’
336
CIVIL RIGHTS CACI No. 3066
‘The essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., “threat[], intimidation or coercion”), tried to or did prevent
the plaintiff from doing something he or she had the right to do under the law or
to force the plaintiff to do something that he or she was not required to do under
the law.’ ” (King v. State of California (2015) 242 Cal.App.4th 265, 294 [195
Cal.Rptr.3d 286], internal citation omitted.)
• “[S]ection 52.1, was enacted a decade [after the Ralph Act] as part of Assembly
Bill No. 63 (1987–1988 Reg. Sess.) (Assembly Bill No. 63) and is known as the
Tom Bane Civil Rights Act. It was intended to supplement the Ralph Civil
Rights Act as an additional legislative effort to deter violence. The stated
purpose of the bill was ‘to fill in the gaps left by the Ralph Act’ by allowing an
individual to seek relief to prevent the violence from occurring before it was
committed and providing for the filing of criminal charges.” (Stamps v. Superior
Court (2006) 136 Cal.App.4th 1441, 1447 [39 Cal.Rptr.3d 706], internal citation
omitted.)
• “The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v.
Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941],
internal citation omitted.)
• “[T]o state a cause of action under section 52.1 there must first be violence or
intimidation by threat of violence. Second, the violence or threatened violence
must be due to plaintiff’s membership in one of the specified classifications set
forth in Civil Code section 51.7 or a group similarly protected by constitution or
statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10
Cal.App.5th 1268, 1290 [217 Cal.Rptr.3d 275].)
• “The plaintiff must show ‘the defendant interfered with or attempted to interfere
with the plaintiff’s legal right by threatening or committing violent acts.’ ”
(Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395 [218
Cal.Rptr.3d 38].)
• “However, the statutory language does not limit its application to hate crimes.
Notably, the statute does not require a plaintiff to allege the defendant acted with
discriminatory animus or intent based upon the plaintiff’s membership in a
protected class of persons.” (Shoyoye, supra, 203 Cal.App.4th at p. 956.)
• “The phrase ‘under color of law’ indicates, without doubt, that the Legislature
intended to include law enforcement officers within the scope of Section 52.1 if
the requisites of the statute are otherwise met.” (Cornell, supra, 17 Cal.App.5th
at p. 800.)
• “Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section
422.6, recognizes a private right of action for damages and injunctive relief for
interference with civil rights.” (In re M.S. (1995) 10 Cal.4th 698, 715 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
• “[T]he Bane Act requires that the challenged conduct be intentional.” (Simmons
v. Superior Court (2016) 7 Cal.App.5th 1113, 1125 [212 Cal.Rptr.3d 884].)
337
CACI No. 3066 CIVIL RIGHTS
340
3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
New September 2003; Revised June 2012; Renumbered from CACI No. 3026
December 2012; Revised June 2013
Directions for Use
Give this instruction for violations of the Unruh Civil Rights Act in which actual
damages are claimed. (See Civ. Code, § 51; CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements.) This instruction may also be given for claims
under Civil Code section 51.5 (see CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements) and Civil Code section 51.6 (see CACI No.
3062, Gender Price Discrimination—Essential Factual Elements). If the only claim
is for statutory damages of $4,000 (see Civ. Code, § 52(a)), this instruction is not
needed. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133,
707 P.2d 195] [Unruh Act violations are per se injurious; Civ. Code, § 52(a)
provides for minimum statutory damages for every violation regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].)
See the instructions in the Damages series (CACI Nos. 3900 et seq.) for additional
instructions on actual damages and punitive damages. Note that the statutory
minimum amount of recovery for a plaintiff is $4,000 in addition to actual damages.
If the verdict is for less than that amount, the judge should modify the verdict to
reflect the statutory minimum.
341
CACI No. 3067 CIVIL RIGHTS
342
3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
New September 2003; Revised June 2012; Renumbered from CACI No. 3027
December 2012
Directions for Use
Give this instruction for violations of the Ralph Act. (See Civ. Code, § 51.7; CACI
No. 3063, Acts of Violence—Ralph Act—Essential Factual Elements, and CACI No.
3064, Threats of Violence—Ralph Act—Essential Factual Elements.) This instruction
may also be given for claims under Civil Code section 51.9 (see CACI No. 3065,
Sexual Harassment in Defined Relationship—Essential Factual Elements) with item
2 omitted. (See Civ. Code, § 52(b)(2).)
See the Damages series (CACI Nos. 3900 et seq.) for additional instructions on
actual damages and punitive damages. CACI No. 3942, Punitive
Damages—Individual Defendant—Bifurcated Trial (Second Phase), instructs the jury
on how to calculate the amount of punitive damages.
Sources and Authority
• Remedies Under Ralph Act. Civil Code section 52(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1014,
1015
Chin, et al., California Practice Guide: Employment Litigation, Ch. 7-G, Unruh
Civil Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
343
CACI No. 3068 CIVIL RIGHTS
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.48 (Matthew Bender)
344
3069. Harassment in Educational Institution (Ed. Code, § 220)
New April 2009; Renumbered from CACI No. 3028 December 2012
Directions for Use
This instruction does not include language that elaborates on what does or does not
constitute “deliberate indifference” beyond the broad standard of “clearly
unreasonable in light of all the known circumstances.” In Donovan v. Poway Unified
School Dist., the court noted that “deliberate indifference” will often be a fact-based
question for which bright line rules are ill-suited. However, the court noted
numerous examples from federal cases in which the standard was applied. The
failure of school officials to undertake a timely investigation of a complaint of
discrimination may amount to deliberate indifference. School officials also must take
timely and reasonable measures to end known harassment. A response may be
clearly unreasonable if a school official ignores a complaint of discrimination or if
the initial measures chosen to respond to the harassment are ineffective. (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d 285].)
Any of these factors that are applicable to the facts of the case may be added at the
end of the instruction.
Sources and Authority
• Harassment in Educational Institution. Education Code section 201.
• Discrimination in Educational Institutions. Education Code section 220.
• Duty to Inform of Remedies. Education Code section 262.3(b).
345
CACI No. 3069 CIVIL RIGHTS
• “We conclude that to prevail on a claim under section 220 for peer sexual
orientation harassment, a plaintiff must show (1) he or she suffered “severe,
pervasive and offensive” harassment that effectively deprived the plaintiff of the
right of equal access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the school district
acted with ‘deliberate indifference’ in the face of such knowledge. We further
conclude that from the words of section 262.3, subdivision (b), as well as from
other markers of legislative intent, money damages are available in a private
enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p.
579.)
• “Like Title IX, . . . enforcement of the Education Code’s antidiscrimination law
rests on the assumption of ‘actual notice’ to the funding recipient. . . . [¶¶] We
decline to adopt a liability standard for damages under section 220 based on
principles of respondeat superior and/or constructive notice, particularly in light
of the circumstances presented here when the claim of discrimination is not, for
example, based on an official policy of the District, but is instead the result of
peer sexual orientation harassment and the District’s response (or lack thereof) to
such harassment. . . . [N]egligence principles should not apply to impose
liability under a statutory scheme when administrative enforcement of that
scheme contemplates actual notice to the funding recipient, with an opportunity
to take corrective action before a private action may lie. By requiring actual
notice, we ensure liability for money damages under section 220 is based on a
funding recipient’s own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at
pp. 604–605, original italics, internal citations omitted.)
• “The decisions of federal courts interpreting Title IX provide a meaningful
starting point to determine whether the response of defendants here amounted to
deliberate indifference under section 220. Under federal law, deliberate
indifference is a ‘ “very high standard.” ’ Actions that in hindsight are
‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167
Cal.App.4th at p. 610, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 869,
870
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-
Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.32A (Matthew Bender)
346
3070. Disability Discrimination—Access Barriers to Public
Facility—Construction-Related Accessibility Standards
Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)
(§ 55.56, subd. (b)). It also limits statutory damages to one assessment per
occasion of access denial, rather than being based on the number of accessibility
standards violated. (Id., subd. (e).)” (Munson, supra, 46 Cal.4th at pp. 677−678.)
• “ ‘[S]ection 54.3 imposes the standing requirement that the plaintiff have
suffered an actual denial of equal access before any suit for damages can be
brought. . . . [A] plaintiff cannot recover damages under section 54.3 unless the
violation actually denied him or her access to some public facility. [¶] Plaintiff’s
attempt to equate a denial of equal access with the presence of a violation of
federal or state regulations would nullify the standing requirement of section
54.3, since any disabled person could sue for statutory damages whenever he or
she encountered noncompliant facilities, regardless of whether that lack of
compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s
argument would thereby eliminate any distinction between a cause of action for
equitable relief under section 55 and a cause of action for damages under section
54.3.’ ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 [99 Cal.Rptr.3d
746].)
• “We do not read Reycraft and Urhausen for the proposition that plaintiffs may
not sue someone other than the owner or operator of the public facility described
in section 54, for violating a plaintiff’s rights under the DPA. A defendant’s
ability to control a particular location may ultimately be relevant to the question
of liability, that is, whether the defendant interfered with the plaintiff’s admission
to or enjoyment of a public facility. But nothing in the language of section 54.3
suggests that damages may not be recovered against nonowners or operators. To
the contrary, section 54.3 broadly and plainly provides: ‘[a]ny person or persons,
firm or corporation who denies or interferes with admittance to or enjoyment of
the public facilities as specified in [s]ections 54 and 54.1 or otherwise interferes
with the rights of an individual with a disability under [s]ections 54, 54.1 and
54.2 is liable for . . . actual damages . . . .’ ” (Ruiz v. Musclewood Investment
Properties, LLC (2018) 28 Cal.App.5th 15, 24 [238 Cal.Rptr.3d 835].)
• “In our view, Reycraft does not require that a plaintiff who sues for interference
of his rights must present himself to defendant’s business, with the intent to
utilize defendant’s services. Instead, a plaintiff who seeks damages for a
violation of section 54.3 must establish that he ‘presented himself’ to a ‘public
place’ with the intent of ‘utilizing its services in the manner in which those . . .
services are typically offered to the public and was actually denied’ admission or
enjoyment (or had his admission or enjoyment interfered with) on a particular
occasion. Here, as alleged, plaintiff presented himself at a public place (the
sidewalk) with the intent of using it in the manner it is typically offered to the
public (walking on it for travel), and actually had his enjoyment interfered with
on six occasions. Plaintiff therefore has standing to sue for damages.” (Ruiz,
supra, 28 Cal.App.5th at p. 24, original italics, internal citation omitted.)
• “Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent
that ‘A violation of the right of an individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this
349
CACI No. 3070 CIVIL RIGHTS
section.’ (Civ. Code, § 54, subd. (c).” (Baughman v. Walt Disney World Co.
(2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1073
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.36 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
350
3071. Retaliation for Refusing to Authorize Disclosure of Medical
Information—Essential Factual Elements (Civ. Code, § 56.20(b))
352
VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C.
§ 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
354
VF-3001. Public Entity Liability (42 U.S.C. § 1983)
[policy/custom]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3005 December 2012; Revised December 2016
356
CIVIL RIGHTS VF-3001
357
VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2011; Renumbered from CACI No. VF-3006 December 2012; Revised December
2016
Directions for Use
This verdict form is based on CACI No. 3003, Local Government Liability—Failure
to Train—Essential Factual Elements. It should be given with CACI No. VF-3000,
Violation of Federal Civil Rights—In General, to impose liability on the
governmental entity for the acts of its officer or employee.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
359
VF-3002 CIVIL RIGHTS
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3003–VF-3009. Reserved for Future Use
360
VF-3010. Excessive Use of Force—Unreasonable Arrest or Other
Seizure (42 U.S.C. § 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3001 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3020, Excessive Use of
Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
362
VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C.
§ 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3002 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3022, Unreasonable Search—Search With
a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
364
VF-3012. Unreasonable Search or Seizure—Search or Seizure
Without a Warrant (42 U.S.C. § 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3003 December 2012; Revised December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search or
Seizure—Search or Seizure Without a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
366
VF-3013. Unreasonable Search—Search Without a
Warrant—Affirmative Defense—Search Incident to Lawful Arrest
(42 U.S.C. § 1983)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3004 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search or
Seizure—Search or Seizure Without a Warrant—Essential Factual Elements, and
CACI No. 3024, Affırmative Defense—Search Incident to Lawful Arrest. This form
368
CIVIL RIGHTS VF-3013
can be modified if another affirmative defense is at issue (see CACI No. 3025,
Affırmative Defense—Consent to Search, and CACI No. 3026, Affırmative
Defense—Exigent Circumstances).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3014–VF-3019. Reserved for Future Use
369
VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
370
CIVIL RIGHTS VF-3020
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3007 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3042, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Excessive Force.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
371
VF-3020 CIVIL RIGHTS
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.
372
VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
373
VF-3021 CIVIL RIGHTS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3008 December 2012; Revised June 2015, December 2016
374
CIVIL RIGHTS VF-3021
375
VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3009 December 2012; Revised June 2014, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 3041, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Medical Care.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
377
VF-3022 CIVIL RIGHTS
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
378
VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
380
CIVIL RIGHTS VF-3023
381
VF-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
382
CIVIL RIGHTS VF-3030
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012; Renumbered
from CACI No.VF-3010 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3060, Unruh Civil Rights Act—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff’s association with another is the basis for the claim, modify question
2 as in element 2 of CACI No. 3060.
Questions 3 and 4 may be omitted if only the statutory minimum of $4,000 damages
is sought. Harm is presumed for this amount. (See Civ. Code, § 52(a); Koire v.
Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195].)
The penalty in question 5 refers to the right of the jury to award a maximum of
three times the amount of actual damages but not less than $4,000. (Civ. Code,
383
VF-3030 CIVIL RIGHTS
§ 52(a).) The judge should correct the verdict if the jury award goes over that limit.
Also, if the jury awards nothing or an amount less than $4,000 in question 5, the
judge should increase that award to $4,000 to reflect the statutory minimum.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
384
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5,
52(a))
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Answer question 5.
5. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012; Renumbered
from CACI No. VF-3011 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If an alternative basis for the defendant’s alleged motivation is at issue, modify
question 2 as in element 2 of CACI No. 3061.
The award of a penalty in question 5 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(Civ. Code, § 52(a).) The judge should correct the verdict if the jury award goes
over that amount. Also, if the jury awards nothing or an amount less than $4,000 in
question 5, then the judge should increase that award to $4,000 to reflect the
statutory minimum.
It is possible that questions 3 and 4 may be omitted if only the statutory minimum
386
CIVIL RIGHTS VF-3031
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
387
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
Answer question 4.
4. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3012 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3062, Gender Price
Discrimination—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
The award of a penalty in question 4 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(See Civ. Code, § 52(a).), The judge should correct the verdict if the jury award
goes over that amount. Also, if jury awards nothing or an amount less than $4,000
in question 4 then the judge should increase that award to $4,000 to reflect the
statutory minimum.
It is possible that questions 2 and 3 may be omitted if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
389
VF-3032 CIVIL RIGHTS
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.
390
VF-3033. Ralph Act (Civ. Code, § 51.7)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010;
Renumbered from CACI No. VF-3013 December 2012; Revised June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 3063, Acts of Violence—Ralph
392
CIVIL RIGHTS VF-3033
393
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code,
§ 51.9)
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[Answer question 7.
7. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010; Renumbered
395
VF-3034 CIVIL RIGHTS
396
VF-3035. Bane Act (Civ. Code, § 52.1)
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3015 and Revised December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 3066, Bane Act—Essential Factual
Elements.
398
CIVIL RIGHTS VF-3035
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the first option for elements 1 and 2 if the defendant has threatened violence.
Give the second option if the defendant actually committed violence.
Civil Code section 52(a) provides for damages up to three times actual damages but
a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act), 51.5, and
51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil
Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions
the Bane Act or Civil Code section 52.1. Nevertheless, the Bane Act refers to
section 52. (See Civ. Code, § 52.1(c).) This reference would seem to indicate that
damages may be recovered under both subsections (a) and (b) of section 52. The
court should compute the damages under section 52(a) by multiplying actual
damages by three, and awarding $4,000 if the amount is less. Questions 5 addresses
punitive damages under section 52(b).
If no actual damages are sought, the $4,000 statutory minimum damages may be
awarded without proof of harm and causation. (See Koire v. Metro Car Wash (1985)
40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195].) In this case, only questions 1
and 2 need be answered.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3036–VF-3099. Reserved for Future Use
399
ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT
402
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst.
Code, § 15610.30)
New September 2003; Revised June 2005, October 2008, April 2009, June 2010,
December 2013, June 2014
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder financial abuse, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage) in the Damages series. Plaintiffs who
are suing for their decedent’s pain and suffering should also use CACI No. 3101,
Financial Abuse—Decedent’s Pain and Suffering.
If the individual responsible for the financial abuse is a defendant in the case, use
“[name of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
To recover compensatory damages, attorney fees, and costs against the employer
under a theory of vicarious liability, see instructions in the Vicarious Responsibility
series (CACI No. 3700 et seq.).
If “for a wrongful use” is selected in element 3, give the next-to-last optional
paragraph on appropriate facts. This is not the exclusive manner of proving
wrongful conduct under the statute. (See Welf. & Inst. Code, § 15610.30(b).)
If “by undue influence” is selected in element 3, also give CACI No. 3117,
Financial Abuse—“Undue Influence” Explained.
Include the last optional paragraph if the elder was deprived of a property right by
an agreement, donative transfer, or testamentary bequest. (See Welf. & Inst. Code,
§ 15610.30(c).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Abuse of Elder or Dependent Adult. Welfare and Institutions Code section
15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Financial Abuse” Defined. Welfare and Institutions Code section 15610.30.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “The Legislature enacted the Act to protect elders by providing enhanced
remedies to encourage private, civil enforcement of laws against elder abuse and
404
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3100
neglect. An elder is defined as ‘any person residing in this state, 65 years of age
or older.’ The proscribed conduct includes financial abuse. The financial abuse
provisions are, in part, premised on the Legislature’s belief that in addition to
being subject to the general rules of contract, financial agreements entered into
by elders should be subject to special scrutiny.” (Bounds v. Superior Court
(2014) 229 Cal.App.4th 468, 478 [177 Cal.Rptr.3d 320], internal citations
omitted.)
• “The probate court cited Welfare and Institutions Code section 15610.30 to
impose financial elder abuse liability as to plaintiffs’ first cause of action for
fiduciary abuse of an elder. This liability is supported by the court’s findings that
‘[decedent] did not know the extent of [defendant’s] spending,’ and that ‘[w]hile
it is not uncommon for a spouse to spend money or purchase items of which the
other is unaware, and the line between such conduct and financial abuse is not
always clear, what [defendant] did in this case went well beyond the line of
reasonable conduct and constituted financial abuse,’ and the court’s further
conclusion that much of defendant’s credit card spending and writing herself
checks from decedent’s bank account during the marriage amounted to financial
abuse.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1356 [167 Cal.Rptr.3d 50].)
• “[T]he Legislature enacted the Act, including the provision prohibiting a taking
by undue influence, to protect elderly individuals with limited or declining
cognitive abilities from overreaching conduct that resulted in a deprivation of
their property rights. To require the victim of financial elder abuse to wait to file
suit until an agreement obtained through the statutorily proscribed conduct has
been performed would not further that goal.” (Bounds, supra, 229 Cal.App.4th at
p. 481.)
• “When the [operable pleading] was filed, former section 15610.30, subdivision
(a)(3) referred to the definition of undue influence found in Civil Code section
1575. However, in 2013, the Legislature amended section 15610.30, subdivision
(a)(3) to refer, instead, to a broader definition of undue influence found in the
newly enacted section 15610.70.” (Bounds, supra, 229 Cal.App.4th at p. 479.)
• “[A] party may engage in elder abuse by misappropriating funds to which an
elder is entitled under a contract.” (Paslay v. State Farm General Ins. Co. (2016)
248 Cal.App.4th 639, 656 [203 Cal.Rptr.3d 785].)
• “[U]nder subdivision (b) of section 15610.30, wrongful conduct occurs only
when the party who violates the contract actually knows that it is engaging in a
harmful breach, or reasonably should be aware of the harmful breach.” (Paslay,
supra, 248 Cal.App.4th at p. 658.)
• “The text of section 15610.30 is broad. It speaks not only of ‘taking’ real or
personal property, but also ‘secreting, appropriating, obtaining, or retaining’ such
property, and then, to capture the sense of all of these terms, goes on to use the
more expansive term ‘deprive[].’ Some of the terms used in section 15610.30 are
narrower than others; to ‘secret,’ for example, suggests hiding or concealment,
and to ‘retain’ or to ‘obtain’ suggests affirmatively acquiring possession of
405
CACI No. 3100 ELDER ABUSE & DEPENDENT ADULTS
406
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. &
Inst. Code, § 15657.5)
New September 2003; Revised June 2005, October 2008, April 2009
Directions for Use
Give this instruction along with CACI No. 3100, Financial Abuse—Essential
Factual Elements, if the plaintiff seeks survival damages for pain and suffering in
addition to conventional tort damages and attorney fees and costs. (See Welf. &
Inst. Code, § 15657.5.) Although one would not normally expect that financial abuse
alone would lead to a wrongful death action, the Legislature has provided this
remedy should the situation arise.
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant].” If only the individual’s employer is a defendant, use “[name
of employer defendant]’s employee.”
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Financial Abuse. Welfare and Institutions Code section
15657.5.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.
‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
407
CACI No. 3101 ELDER ABUSE & DEPENDENT ADULTS
take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney, supra, 20 Cal.4th at pp. 31–32, internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 8:5–8:7, 8:15 (The Rutter
Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34, 6.45–6.47
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
408
3102A. Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657,
15657.05; Civ. Code, § 3294(b))
Derived from former CACI No. 3102 October 2008; Revised April 2009, May 2020
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is also a defendant. (See Civ.
Code, § 3294(b) Welf. & Inst. Code, §§ 15657(c), 15657.05.) If the employer is the
only defendant, give CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only. The requirements of Civil Code section
3294(b) need not be met in order to obtain enhanced remedies from an employer for
409
CACI No. 3102A ELDER ABUSE & DEPENDENT ADULTS
411
3102B. Employer Liability for Enhanced Remedies—Employer
Defendant Only (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code,
§ 3294(b))
Derived from former CACI No. 3102 October 2008; Revised April 2009, May 2020
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is not also a defendant. (See
Civ. Code, § 3294(b); Welf. & Inst. Code, §§ 15657(c), 15677.05.) If the employee
is also a defendant, give CACI No. 3102A, Employer Liability for Enhanced
Remedies—Both Individual and Employer Defendants. The requirements of Civil
Code section 3294(b) need not be met in order to obtain enhanced remedies from an
412
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3102B
employer for financial abuse. (See Welf. & Inst. Code, § 15657.5(c).)
Sources and Authority
• Enhanced Remedies for Physical Abuse, Neglect, or Abandonment. Welfare and
Institutions Code section 15657.
• Enhanced Remedies Against Employer for Acts of Employee. Welfare and
Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• Punitive Damages Against Employer. Civil Code section 3294(b).
• “[A] finding of ratification of [agent’s] actions by [employer], and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
413
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.57)
New September 2003; Revised December 2005, June 2006, October 2008, January
2017
414
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3103
As used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.’ Thus, the statutory
definition of ‘neglect’ speaks not of the undertaking of medical services, but of
the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290], original italics,
internal citations omitted.)
• “The Elder Abuse Act does not ‘apply whenever a doctor treats any elderly
patient. Reading the act in such a manner would radically transform medical
malpractice liability relative to the existing scheme.’ ” (Alexander v. Scripps
Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223 [232 Cal.Rptr.3d
733], original italics.)
• “We granted review to consider whether a claim of neglect under the Elder
Abuse Act requires a caretaking or custodial relationship—where a person has
assumed significant responsibility for attending to one or more of those basic
needs of the elder or dependent adult that an able-bodied and fully competent
adult would ordinarily be capable of managing without assistance. Taking
account of the statutory text, structure, and legislative history of the Elder Abuse
Act, we conclude that it does.” (Winn, supra, 63 Cal.4th at p. 155.)
• “[T]he Act does not apply unless the defendant health care provider had a
substantial caretaking or custodial relationship, involving ongoing responsibility
for one or more basic needs, with the elder patient. It is the nature of the elder
or dependent adult’s relationship with the defendant—not the defendant’s
professional standing—that makes the defendant potentially liable for neglect.”
(Winn, supra, 63 Cal.4th at p. 152.)
• “It must be determined, on a case-by-case basis, whether the specific
responsibilities assumed by a defendant were sufficient to give rise to a
substantial caretaking or custodial relationship. The fact that [another caregiver]
provided for a large number of decedent’s basic needs does not, in itself, serve
to insulate defendants from liability under the Elder Abuse Act if the services
they provided were sufficient to give rise to a substantial caretaking or custodial
relationship.” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382,
405 [___ Cal.Rptr.3d ___].)
• “The Act seems premised on the idea that certain situations place elders and
dependent adults at heightened risk of harm, and heightened remedies relative to
conventional tort remedies are appropriate as a consequence. Blurring the
distinction between neglect under the Act and conduct actionable under ordinary
tort remedies—even in the absence of a care or custody relationship—risks
undermining the Act’s central premise. Accordingly, plaintiffs alleging
professional negligence may seek certain tort remedies, though not the
heightened remedies available under the Elder Abuse Act.” (Winn, supra, 63
Cal.4th at p. 159, internal citation omitted.)
• “ ‘[I]t is the defendant’s relationship with an elder or a dependent adult—not the
416
ELDER ABUSE & DEPENDENT ADULTS CACI No. 3103
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.70–2.71
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[3] (Matthew Bender)
418
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code,
§ 15657)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for
neglect by clear and convincing evidence, and must also prove by clear
and convincing evidence that [[name of individual defendant]/[name of
employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in neglecting [name of
plaintiff/decedent].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
her own basic needs; and (3) denied or withheld goods or services necessary to
meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of the
high probability of such injury (if the plaintiff alleges recklessness). The plaintiff
must also allege (and ultimately prove by clear and convincing evidence) that
the neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406–407 [129 Cal.Rptr.3d 895], internal citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:9, 9:11.1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) § 2.72
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
3105. Reserved for Future Use
421
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst.
Code, § 15610.63)
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Physical Abuse” Defined. Welfare and Institutions Code section 15610.63.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 1:1, 9:1, 19:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.69, 2.71
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[2] (Matthew Bender)
423
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst.
Code, § 15657)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
physical abuse by clear and convincing evidence, and must also prove by
clear and convincing evidence that [[name of individual defendant]/[name
of employer defendant]’s employee] acted with [recklessness/oppression/
fraud/ [or] malice] in physically abusing [name of plaintiff].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
426
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.06)
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The instructions in this series are not intended to cover every circumstance under
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• “Abduction” Defined. Welfare and Institutions Code section 15610.06.
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07 provides:
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1, 7:3 (The Rutter
Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[5] (Matthew Bender)
428
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst.
Code, § 15657.05)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
abduction by clear and convincing evidence.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised December 2005, April 2008, October 2008
Directions for Use
Give this instruction along with CACI No. 3109, Abduction—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and/
or damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code,
§ 15657.05.)
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both Individual
and Employer Defendants, or CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only.
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
429
CACI No. 3110 ELDER ABUSE & DEPENDENT ADULTS
430
3112. “Dependent Adult” Explained (Welf. & Inst. Code,
§ 15610.23)
431
3113. “Recklessness” Explained
conduct creates an unreasonable risk of physical harm to another, but also that
such risk is substantially greater than that which is necessary to make his
conduct negligent.”
Secondary Sources
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:33, 9:33.1 (The
Rutter Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[1] (Matthew Bender)
433
3114. “Malice” Explained
434
3115. “Oppression” Explained
435
3116. “Fraud” Explained
436
3117. Financial Abuse—“Undue Influence” Explained
437
CACI No. 3117 ELDER ABUSE & DEPENDENT ADULTS
438
VF-3100. Financial Abuse—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.30, 15657.5(b))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant assisted in the wrongful conduct, modify
question 1 as in element 2 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
440
ELDER ABUSE & DEPENDENT ADULTS VF-3100
441
VF-3101. Financial Abuse—Employer Defendant Only (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant’s employees assisted in the wrongful
conduct, modify question 1 as in element 1 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
443
VF-3101 ELDER ABUSE & DEPENDENT ADULTS
444
VF-3102. Neglect—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.57, 15657; Civ. Code,
§ 3294(b))
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of employer
defendant] had advance knowledge of the unfitness of [name of
employee defendant] and employed [him/her/nonbinary pronoun]
with a knowing disregard of the rights or safety of others?
[6. Yes No]
[7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[7. Yes No]
[7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
446
ELDER ABUSE & DEPENDENT ADULTS VF-3102
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016, November 2017
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual Elements,
CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No. 3102A,
Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
Optional questions 6, 7, and 8 address enhanced remedies. If the neglect is proved
by clear and convincing evidence, and it is also proved by clear and convincing
evidence that the individual defendant acted with recklessness, malice, oppression,
or fraud, attorney fees, costs, and a decedent’s predeath pain and suffering may be
recovered. (See Welf. & Inst. Code, § 15657.) If any of these remedies are sought
against the employer, include question 6. (See Welf. & Inst. Code, § 15657(c).)
Question 6 may be altered to correspond to one of the alternative bracketed options
for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the neglect led to the elder’s death, in question 5 include only
item 5a for past economic loss. But also include the transitional language after
question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6 or
7 or both, depending on which questions are to be included. If question 7 is to be
included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
447
VF-3102 ELDER ABUSE & DEPENDENT ADULTS
findings that are required in order to calculate the amount of prejudgment interest.
448
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code,
§§ 15610.57, 15657; Civ. Code, § 3294(b))
450
ELDER ABUSE & DEPENDENT ADULTS VF-3103
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual Elements,
CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No. 3102B,
Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657; Code Civ.
Proc., § 377.34.) Question 6 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the neglect led to the elder’s death, in question 5 include only item 5a for past
economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
451
VF-3104. Physical Abuse—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.63, 15657; Civ. Code,
§ 3294(b))
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of employer
defendant] had advance knowledge of the unfitness of [name of
employee defendant] and employed [him/her/nonbinary pronoun]
with a knowing disregard of the rights or safety of others?
[5. Yes No]
[6. Did [name of plaintiff] prove 1 through 3 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[6. Yes No]
[6. [If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3106, Physical Abuse—Essential Factual
453
VF-3104 ELDER ABUSE & DEPENDENT ADULTS
Elements, CACI No. 3107, Physical Abuse—Enhanced Remedies Sought, and CACI
No. 3102A, Employer Liability for Enhanced Remedies—Both Individual and
Employer Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 5, 6, and 7 address enhanced remedies. If the physical abuse is
proved by clear and convincing evidence, and it is also proved by clear and
convincing evidence that the individual defendant acted with recklessness, malice,
oppression, or fraud, attorney fees, costs, and a decedent’s predeath pain and
suffering may be recovered. (See Welf. & Inst. Code, § 15657.) If any of these
remedies are sought against the employer, include question 5. (See Welf. & Inst.
Code, § 15657(c).) Question 5 may be altered to correspond to one of the alternative
bracketed options for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 6. If the physical abuse led to the neglected elder’s death, in
question 4 include only item 4a for past economic loss. But also include the
transitional language after question 6 and include question 7.
In the transitional language after question 3, direct the jury to answer questions 5 or
6 or both, depending on which questions are to be included. If question 6 is to be
included but question 5 is not, then 6 will be renumbered as 5.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
454
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst.
Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3106, Physical Abuse—Essential Factual
456
ELDER ABUSE & DEPENDENT ADULTS VF-3105
Elements, CACI No. 3107, Physical Abuse—Enhanced Remedies Sought, and CACI
No. 3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 5 and 6 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657; Code Civ.
Proc., § 377.34.) Question 5 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the physical abuse led to the elder’s death, in question 4 include only item 4a for
past economic loss. But also include the transitional language after question 6 and
include question 7.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
457
VF-3106. Abduction—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.06, 15657.05; Civ. Code,
§ 3294(b))
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
[name of employee defendant] was an officer, director, or managing
agent of [name of employer defendant] acting on behalf of [name of
defendant].
[6. Yes No]
[7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence?
[7. Yes No]
[7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
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.
459
VF-3106 ELDER ABUSE & DEPENDENT ADULTS
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102A, Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 6, 7, and 8 address enhanced remedies. If the abduction is
proved by clear and convincing evidence, attorney fees, costs, and a decedent’s
predeath pain and suffering may be recovered. (See Welf. & Inst. Code,
§ 15657.05.) If any of these remedies are sought against the employer, include
question 6. (See Welf. & Inst. Code, § 15657.05(c).) Question 6 may be altered to
correspond to one of the alternative bracketed options for employer liability in
CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the abduction led to the abductee’s death, in question 5
include only item 5a for past economic loss. But also include the transitional
language after question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6, 7,
or both, depending on which questions are to be included. If question 7 is to be
included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
460
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
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.
462
ELDER ABUSE & DEPENDENT ADULTS VF-3107
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657.05(b); Code Civ.
Proc., § 377.34.) Question 6 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the abduction led to the abductee’s death, in question 5 include only item 5a for
past economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3108–VF-3199. Reserved for Future Use
463
Table A. Elder Abuse: Causes of Action, Remedies, and Employer
Liability
464
SONG-BEVERLY CONSUMER WARRANTY ACT
466
3200. Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities—Essential Factual
Elements (Civ. Code, § 1793.2(d))
New September 2003; Revised April 2007, December 2007, December 2011
Directions for Use
An instruction on the definition of “consumer good” may be necessary if that issue
is disputed. Civil Code section 1791(a) provides: “ ‘Consumer goods’ means any
new product or part thereof that is used, bought, or leased for use primarily for
personal, family, or household purposes, except for clothing and consumables.
‘Consumer goods’ shall include new and used assistive devices sold at retail.”
Select the alternative in element 4 that is appropriate to the facts of the case.
Regarding element 4, if the plaintiff claims that the consumer goods could not be
delivered for repair, the judge should decide whether written notice of
nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on
this point.
Depending on the circumstances of the case, further instruction on element 6 may
be needed to clarify how the jury should calculate “the value of its use” during the
time before discovery of the defect.
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] [did not match the quality [of
the [sample/model]]/as set forth in the written statement];
See also CACI No. 1243, Notification/Reasonable Time.
If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove
the cause of a defect in the [consumer good].” The Song-Beverly Consumer
Warranty Act does not require a consumer to prove the cause of the defect or
failure, only that the consumer good “did not conform to the express warranty.”
(See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8
[109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for use
in cases involving an express warranty in a lease of consumer goods.
468
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3200
consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p.1079, internal citations and footnotes omitted.)
• The act does not require a consumer to give a manufacturer, in addition to its
local representative, at least one opportunity to fix a problem. Regarding
previous repair efforts entitling an automobile buyer to reimbursement, “[t]he
legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local representative
is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 888
[263 Cal.Rptr. 64].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 321–334
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 3.4, 3.8, 3.15, 3.87
2 California UCC Sales and Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70